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Lord Hooson: I am grateful to the noble and learned Lord for giving way. Perhaps he will consider Clause 32(4), which is the most objectionable part of this provision. It states:
- "This section does not require the Secretary of State to undertake consultation with the Assembly about a bill if he considers that there are considerations relating to the bill which make it inappropriate for him to do so".
Suppose we had a Secretary of State of a different political complexion from that of the assembly. What he might consider the considerations relating to the Bill which make it inappropriate for him to consult the assembly may be very different from what the noble and learned Lord has in mind here. I know that my noble friend does not intend to press this matter to a Division, but it may be necessary to return to it on Report. It seems to me that problems arise from Clause 32 as at present drafted. Can the noble and learned Lord give us an assurance that the matter will be reconsidered before Report stage?
Lord Falconer of Thoroton: Before inviting Members of the Committee to withdraw their amendments, I can assure them that we intend that there should be full consultation with the assembly about those Government Bills which affect the assembly's responsibilities, such as education, health, housing and the environment.
To take up the point made by the noble Lord, Lord Hooson, the way that the clause is drafted inevitably gives an element of judgment to the Secretary of State to determine what Bills he consults upon. We think that that is inevitable if there are some Bills that should not be consulted upon and some that should. In practice, it cannot be done in any other way. I undertake to consider all that the noble Lord said about that; but I suspect that, as a matter of drafting technique, this is the only practical way to do it.
Lord Hooson: I am most grateful to the noble and learned Lord for giving way. I am sure that he is not right about this. I have no doubt that the Government, in their present frame of mind, intend that this clause should provide the consultation that is indicated. What I am concerned about is whether in future the form of words used here will ensure that that consultation takes place.
Lord Falconer of Thoroton: I fully understood what the noble Lord said. I will certainly think about it, but to some extent I stand by the remark that I made. I hope that, in the light of the explanations that I have given and of my undertaking to consider what has been said in relation to the matter, Members will withdraw their amendments.
Earl Russell: I am most grateful to the noble and learned Lord for a carefully considered reply, to which I listened with a great deal of care. The question is not, as my noble friend said, about intention. Always the question on this type of issue is about the vires which are being created and left behind. I was particularly interested in what the noble and learned Lord said about judicial review. I should be grateful if he could fill that out a little more. Is that judicial review of which he speaks under the Wednesbury principle? If it is, that gives us some grounds for considering what issues it might apply to. The Secretary of State might consider it inappropriate to consult, for a great variety of reasons. Suppose, for example, an English nationalist majority appeared at Westminster and decided to repeal the Welsh Language Act and thought it inappropriate to consult the Welsh assembly on that matter. Would that be Wednesbury unreasonable?
Lord Falconer of Thoroton: It would be wholly wrong for me to express off-the-cuff views in relation to what may or may not be Wednesbury unreasonable. I go back to the first question that the noble Earl asked as to the kind of principles that would apply in relation to judicial review. They would be the normal principles that would apply to the exercise of a statutory discretion by a Minister such as the Secretary of State. They would normally include the obligation on the part of the Minister to act in accordance with a Wednesbury degree of reasonableness. As we indicated earlier, they would require that the person who brought the proceedings had some adequate locus to bring those kinds of proceedings.
I fully appreciate that intention is not the issue that is raised in principle by the noble Earl or the noble Lord, Lord Hooson; it is a matter of what is the detailed extent
of the obligation. I think it would be inappropriate for me to go any further at this stage than to say that the ordinary principles of judicial review would apply, which is in a sense the answer to the point that the noble Earl made. I cannot remember exactly how he put it, but it was to the effect that this provision means that the Minister can do what he likes. I believe that that is a totally inaccurate statement of the effect of the imposition of a duty such as this.
Lord Thomas of Gresford: Even though this may shock the noble Lord, Lord Mackay of Ardbrecknish, this is an occasion when, as Ministers may understand, we do not propose to "roll over".
It seems to me that this is an important matter and that the answers given by the noble and learned Lord are, at the moment, wholly inadequate. The noble and learned Lord may have overlooked the fact that an unusual and novel situation is proposed in the whole framework of this Bill--I referred to it at Second Reading--namely, that the Westminster Parliament remains responsible for primary legislation and the assembly is confined within that primary legislation in the making of secondary legislation. It is not as though the Welsh assembly will have a free discretion to make whatever secondary legislation it likes. It is confined to the policy laid down by the primary legislation. It is therefore inconceivable that on any matter involving primary legislation in relation to the areas of responsibility of the assembly, the relevant Bill could be introduced into Westminster without the assembly's views having first been sought.
It is important that the Government should grasp the principle that, from now on, every Bill which affects the responsibilities that have been devolved to Wales, every piece of primary legislation is in itself a devolution instrument. It has implications; it sets out the limits, the policies within which that secondary legislation can take place. Even when one gets to the spheres of policy which have been reserved to the Westminster Parliament--matters of defence, foreign affairs, social security, taxation and so forth--the assembly will have a view. It may not have any power to make secondary legislation, but there will be representatives elected by the people of Wales with a specific view to pass to the Secretary of State. For the Secretary of State simply to have a discretion, as my noble friend pointed out--under subsection (4) he is not required to consult the assembly if he considers it inappropriate to do so--is entirely inadequate.
To turn to the judicial review aspect of the matter, suppose the assembly were to judicially review the Secretary of State--a difficult concept--and say, "You have not consulted with us". The matter may go before the judge and the judge may ask what are the specific powers set out in the Government of Wales Act which has been through Parliament. When he looks at it he will see that the Secretary of State does not necessarily have to consult. What is the touchstone? It is not whether he is acting reasonably or unreasonably; it is whether he thinks that it is inappropriate for him to do
so. The Bill will answer any judicial review that is based upon Wednesbury unreasonableness principles and there will be no answer to it.I have to say to the noble and learned Lord the Solicitor-General, that this Bill is not properly drafted. I know that the intentions are good but the phraseology must be looked at again. It must be redrafted to firm up the duty of the Secretary of State to consult. He will not be an adequate channel between the assembly and the Westminster Parliament if it is left in this way. We will most certainly return to this issue on Report, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elis-Thomas moved Amendment No. 96:
The noble Lord said: This represents the reverse of the process which has been so admirably proposed by my noble friend Lord Thomas of Gresford from the party for Wales, as I shall now always call it. It provides that the Secretary of State should have regard to what I term in Amendment No. 96, and later in Amendment No. 98, as the assembly's legislative proposals. I tabled this amendment following the instigation and spiritual support of the noble Lord, Lord Mackay of Ardbrecknish, who, with his usual customary wit and intelligence, picked up in the course of my Second Reading speech some attempt to construct a form of primary legislative fast-track procedure at Westminster which might deal with any issues arising from the delegated legislation activity of the national assembly. I am looking forward earnestly to having his strong support and that of his noble friend on these two amendments.
We are seeking a way of ensuring that the assembly is able to propose aspects of primary legislation to government so that there is a two-way process. What I indicated clearly at Second Reading was misinterpreted by some of my political critics inside my party, of whom I have few--at least two. They seem to imply that I have become unionist. I have been called many things in my political turnarounds, but never a unionist. In this sense I am a unionist. On Second Reading I was not seeking to institute proceedings which would transfer to Cardiff Bay greater legislative powers beyond the delegated legislation. I was seeking to look for processes at Westminster which would become the primary legislative body in relation to any issues which might arise out of Cardiff deliberations on delegated legislation and which might require further primary legislative activity.
I mentioned one in particular which is of concern to me as chairman of the language board; namely, the question of the registration of births that occur over the border in Wales where bi-lingual registration does not apply. I hope that we can deal with that at some stage, perhaps in the next session of Parliament, with government support.
In moving these amendments I am looking for the possibility of using the amended structure of the Welsh Select Committee or the Welsh Grand Committee or a
Although I did not speak in order to save time, I support fully the earlier set of amendments. There is clear consultation on the Government's programme on a whole range of primary legislation which will have an effect on the assembly. That is absolutely essential. I shall certainly support any amendments that may be moved at a later stage on that issue.
There is another side of the process; namely, that the assembly may be able to instigate changes of a non-controversial nature and that they may be dealt with as primary legislation in this House.
I ask the Government to take away these amendments and consider them, even if they cannot instantaneously accept them. I know they have the support in spirit of the noble Lord, Lord Mackay of Ardbrecknish. I beg to move.
Page 21, line 3, at end insert ("and the Assembly's legislative proposals").
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