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The Earl of Northesk: Before the noble Lord sits down, I wish to refer to a matter which may almost appear to be a red herring. I should be intrigued to know whether it is the Government's wish that the Salisbury Convention should apply to the assembly as regards any delegated powers--for example, to set class size limits for five, six and seven year-olds.

Lord Williams of Mostyn: I am not entirely certain of the point of that question. Is the noble Earl referring to the Salisbury Convention with regard to manifesto commitments in this Chamber, or is he referring to a sub-Salisbury Convention, a Cranborne Convention, as regards the attitude that opposition parties should adopt to manifesto commitments in the case of a majority party being in power--if one exists--as defined in the interesting way that we discussed earlier this evening? I am not sure to which position the noble Earl attaches his question.

The Earl of Northesk: I have a slight difficulty as regards the electoral procedures for the assembly. We could end up with a democratic mandated assembly--almost parliament--which potentially could have a different manifesto to that of the UK Parliament. I am interested in the inter-relationship between the two. Would skeletal Bills passed by this Parliament permit an assembly to fly in the face of the UK-wide democratic mandate?

Lord Williams of Mostyn: With great respect that has nothing at all to do with the Marquess of Salisbury or his convention. The Marquess of Salisbury's convention can bite only if there is a bicameral legislature; in other words, can the upper Chamber overrule manifesto commitments made by those who are elected to the lower Chamber? However, there is only one chamber in the Welsh assembly. I do not see that the noble Earl's question bites on the Welsh assembly at all.

Lord Mackay of Ardbrecknish: I am grateful to the Committee for the points that have been made. I am sorry the Committee takes such a dismissive view of the poor old Welsh MPs at the other end of the building. I was trying to find a meaningful role for them, but I have been brushed aside. I did not consider them as some kind of supervisory body from another planet. I thought they were from the planet Wales. But be that as it may.

I wish to question the Minister a little further as regards my concerns about the constraints which primary legislation passed by the Welsh MPs might

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place on the Welsh assembly. As I know from my experience, if someone feels that secondary legislation goes beyond what is consistent with primary legislation, or indeed with the explanations given by the Minister when the primary legislation was enacted, that person can take the matter to court. He or she can claim that the Government are exceeding their powers. Indeed, organisations are quite vigorous in that regard, especially in regard to social security. What I am trying to tease out is that this would be the same, as I assume it would, for the Welsh assembly, despite the fact that the primary legislation and the commitments were made in this Parliament, either in this Chamber or in the other place. If some organisation thought that the Welsh assembly was going beyond the powers granted in primary legislation, could it take a court action and prevent secondary legislation going ahead? I believe that to be the case. Perhaps the noble Lord will give his view. We are grateful to have his legal views for free, which must annoy him somewhat.

9.30 p.m.

Lord Williams of Mostyn: It is not annoying to give legal advice free; it is deeply distressing--particularly for someone from North Wales.

When the noble Lord referred to primary legislation passed by Welsh MPs, I think he meant by Parliament, and I understand that. If primary legislation gives powers to a Welsh assembly to introduce what by definition would be secondary legislation, should there be a question of vires the matter would be justiciable. If it is justiciable in some circumstances, not all, then the ruling in Pepper v. Hart would apply. I do not think therefore that we are in disagreement.

Lord Mackay of Ardbrecknish: I am grateful to the Minister for that very clear reply. If the amendment has done nothing else, it has provided me with an opportunity to tease out that point. Having been reprimanded by other noble Lords for wanting to double-guess the Welsh assembly, I have to say to the noble Lords, Lord Prys-Davies and Lord Hooson, that, on Report, if I put forward an amendment to Clause 59(6)(c) to give the Welsh assembly some more bite in these joint matters, I shall look forward to their support. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66 [Regulatory appraisals]:

[Amendments Nos. 194A to 194D not moved.]

Clause 66 agreed to.

Clause 67 [Making of Assembly general subordinate legislation]:

[Amendment No. 195 not moved.]

Lord Williams of Mostyn moved Amendment No. 196:

Page 34, line 19, leave out ("standing orders") and insert ("subordinate legislation procedures").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

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[Amendments Nos. 196A to 197 not moved.]

Clause 67, as amended, agreed to.

Lord Stanley of Alderley moved Amendment No. 197A:

After Clause 67, insert the following new clause--

Appraisal of proposed guidance to local planning authorities
(" . Where the Assembly proposes to make relevant Welsh subordinate legislation other than Assembly general subordinate legislation in the form of guidance to local planning authorities, the subordinate legislation procedures must include provision for securing that an appraisal is carried out comparing the proposed guidance with any similar guidance in force or proposed for England, and for the appraisal to be published before the Assembly makes a decision whether to issue the guidance.").

The noble Lord said: This amendment returns to the thorny problem of subordinate legislation. The Bill makes provision for the handling by the assembly of assembly general subordinate legislation; that is to say, legislation required to be made by statutory instrument.

However, the Bill makes no minimum requirements for other subordinate legislation, such as circulars, guidance or directions. Thus, it would be possible, for example, for the assembly to go against the drafting of planning circulars to the relevant assembly secretaries. Town and country planning legislation operates in such a way that that guidance for Ministers has been very important in creating the conditions in which the law operates. Welsh farmers must not be disadvantaged by planning guidance which, for example, would make it more difficult for them to obtain consent for diversified farm enterprises as compared with their counterparts in England. The purpose of the amendment is to ensure that an appraisal is carried out comparing proposed planning guidance for Wales with any similar guidance in force or proposed for England, such appraisal to be published before the assembly proceeds to issue the guidance.

Perhaps this amendment should have been grouped with my Amendment No. 64, which dealt with the problem of who should adjudicate in planning appeals, to which the noble Lord, Lord Williams, replied that such a job will be transferred to the assembly and said:

"I dare say in due time the assembly will wish to give careful attention".--[Official Report, 2/6/98; col. 225.]

I suspect that the Minister will reply in a similar manner to Amendment No. 197A. That gives rise to the question as to whether the Committee can make any suggestions as to how to improve the Bill by making it more definitive. I hope that the Minister and the Committee might be a little more definitive on this matter. After all, guidelines for planning appeals, and so on, have an overall UK significance. I beg to move.

Lord Mackay of Ardbrecknish: This is a difficult subject. Planning appeals, in particular, are highly contentious. Much of the material for planning appeals revolves around the guidance and how it is interpreted by the local planning authority, and so on. I think I know what the answer will be because the amendment is similar to amendments moved earlier by the noble Lord, Lord Elis-Thomas, in an attempt to ensure that nothing should be done in Wales which disadvantaged

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Welsh business against English business. This amendment could be said to be similar, relating to a position where someone in Wales who wants to undertake some business venture finds it more difficult to obtain planning permission than does his competitor just over the border in England under the same primary legislative planning laws.

If the primary legislation is the same, are we sure that it will be "safe" from legal challenge if it ends up, having gone through the Welsh assembly and come out as guidance, different in some degree from what has gone through the UK Parliament and has come out as English guidance? Will there be some tracking back up one tree and down another by the clever lawyers who make their living out of planning inquiries? They are a pretty astute bunch, it has to be said. The Minister, who is equally astute, will have to be absolutely certain that in the future people will not be able to play planning guidelines on one side of the border against planning guidelines on the other side of the border, when both derive from the same primary legislation.

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