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Lord Williams of Mostyn: Those last points are well considered and are well taken. I endorse what the noble Lord, Lord Mackay of Ardbrecknish, said. The primary legislation will remain common to both jurisdictions. The assembly will not have the capacity to amend it. However, within that framework the assembly needs proper room for manoeuvre in adjusting planning policies to Welsh circumstances. We do not believe that a formal requirement of the type envisaged by the proposed new clause would assist that process.

The position is not the same in Wales and in England at present. Unlike the position in England, planning policy guidance to Welsh authorities is embodied in two self-standing documents which are supplemented by a series of technical advice notes. In England the system is different, where there is a series of planning policy guidance notes, which some of us happily recognise as having sustained us over the past years as PPGs.

The Welsh documents cover much of the same ground as the English documents. But they are not the same and are differently presented. I therefore recognise what the noble Lord, Lord Mackay, said and the concerns expressed by the noble Lord, Lord Stanley. However, the primary legislation remains the same. There is no opportunity for amendment of the legislation. There is the same area of manoeuvre as is generally available to the Secretary of State at the moment. Of course it is the Secretary of State's functions which are devolved to the assembly.

I have taken a little trouble to tease out the situation. At the end of the day there is not much difference between the noble Lord, Lord Mackay, and myself on the general approach.

Lord Stanley of Alderley: It was not just planning that I had in mind; I was thinking also of other guidance notes. It is late in the evening, but I am surprised that the planning guidance lines are different in Wales from England. The few odd guidance lines that I have come

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across--one particularly, needless to say, was in relation to wind farms--were the same in the two countries. However, I shall look at the matter again.

My noble friend Lord Mackay raises a real problem. I shall consider what the Minister said, because there may still be an issue in this regard. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 [Disapplication of procedural requirements]:

[Amendment No. 198 not moved.]

Clause 68 agreed to.

Clause 69 [Financial initiative]:

Lord Williams of Mostyn moved Amendment No. 199:

Page 35, line 38, 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.

[Amendment No. 200 not moved.]

Lord Williams of Mostyn moved Amendment No. 201:

Page 35, line 42, leave out ("standing orders") and insert ("subordinate legislation procedures").

On Question, amendment agreed to.

Clause 69, as amended, agreed to.

Clause 70 [Preservation of order]:

Lord Williams of Mostyn moved Amendment No. 201A:

Page 36, leave out lines 5 to 8 and insert--
("( ) In particular, standing orders made for preserving order in such proceedings must include provision for--
(a) preventing conduct which would constitute a criminal offence, and
(b) a sub judice rule,
and may include").

The noble Lord said: Within this group of amendments are an important number of matters. Essentially, they relate to the conduct of the assembly's public proceedings in plenary session or in committee.

Amendment No. 201A brings this Bill into line on this point with the Scotland Bill by requiring, rather than permitting, the assembly's standing orders to include provision preventing criminal acts in the course of proceedings, and also requiring the assembly to adopt a sub judice rule in respect of its debates. Standing orders could then, if the assembly wished, also include provision for excluding members from proceedings and for withdrawing their rights and privileges. Amendments Nos. 201B, 202B and 202C are then designed to secure consistency of language in reference to the proceedings of the assembly or its committees.

The amendments proposed to Clause 73--Amendments Nos. 202D to 202J--are mainly to improve the drafting. But Members of the Committee should particularly note Amendment No. 202F. As drafted, the clause is concerned with preventing or

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restricting a member's participation in assembly plenary or committee proceedings if he or she has a registrable interest. Amendment No. 202F, however, adds a new element: standing orders may include provisions preventing or restricting a member of the executive committee from exercising a function if he or she has a registrable interest in any matter to which the function relates. This reflects the fact that, following adoption of the amendments to permit a cabinet system to operate, decisions will frequently be taken by individual assembly secretaries rather than by committees. Standing orders may make similar provision in respect of the chairman or other authorised person who is permitted to act for the subordinate legislation scrutiny committee under subsection (6) of Clause 60.

Amendments Nos. 202K and 203A seek to make drafting improvements, but Amendment No. 204A is a little more important. This amendment has been tabled following an undertaking given to Opposition Conservative spokesmen in another place that we would seek to clarify the scope of absolute privilege afforded to assembly members in assembly proceedings. The amplification provided by proposed new subsection (2) to Clause 78 is entirely modelled on the provisions in the Defamation Act 1996. In particular paragraph (2)(e) allows absolute privilege to be claimed in respect of a statement and any communication about registration of interests. That is taken from the 1996 Act. It is important to ensure that individuals who are concerned that assembly members have not followed the rules about registration of interests should be able to communicate that to the proper persons without fear of incurring liability and defamation.

Amendment No. 204B is a drafting amendment designed to secure consistency of language in references to assembly, plenary or committee proceedings--in this case in relation to liability for contempt of court. Amendment No. 212B is simply a consequential amendment flowing from the changes proposed to Clause 78.

In a sense this is a technical set of amendments, but they are important to facilitate proper standards of integrity on the part of members of the executive committee and to protect freedom of speech in the assembly through the changes to Clause 78. At this stage, therefore, I beg to move Amendment No. 201A.

9.45 p.m.

Lord Roberts of Conwy: I thank the Minister for taking us through these very important amendments, which we welcome. They help to allay concerns that were expressed earlier about actions or failures on the part of the assembly, assembly members and its officials. We respect the fact that they are intended to maintain high levels of integrity and, at the same time, safeguard freedom of speech.

Lord Hooson: We regard these amendments as essential for the good working of the assembly. It is

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difficult to see them slightly out of context, but we think that they meet the requirements. If we have any reservations we can come back with them on Report.

Lord Williams of Mostyn: If any of your Lordships have reservations, and you felt able to communicate them to me, then if there were any difficulties in drafting I would be more than happy to meet those matters.

On Question, amendment agreed to.

Clause 70, as amended, agreed to.

Clause 71 [Openness]:

Lord Williams of Mostyn moved Amendment No. 201B:

Page 36, line 33, leave out from ("any") to first ("to") in line 35 and insert ("proceedings of the Assembly (including proceedings of a committee of the Assembly or of a sub-committee of such a committee) which have taken place, or are to take place,").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 202:

Page 36, line 38, leave out ("alleging maladministration by the Assembly") and insert ("about actions or failures on the part of the Assembly and for dealing with reports by the Welsh Administration Ombudsman and the Health Service Commissioner for Wales of investigations pursuant to complaints relating to the Assembly").

The noble Lord said: This is a new group of amendments starting at Amendment No. 202 and ending eventually at Amendment No. 273. Amendment No. 202 relates to Clause 71 by inserting references to the new office of Welsh administration ombudsman and the existing office of Health Service Commissioner for Wales. I said earlier that we have listened with some care to observations put forward in another place about whether or not we should have a Welsh administration ombudsman, and I think that this new view has been generally welcomed. In speaking to Amendment No. 202, I shall, with the Committee's leave, speak to the new schedules, which it is proposed should be inserted into the Bill, relating to both these offices and also to consequential amendments.

In the White Paper we indicated that we wanted to extend the jurisdiction of the Parliamentary Commissioner for Administration to cover the work of the assembly. At that time we were going to follow the precedent of the Wales Act 1978. However, the parliamentary commissioner himself suggested a different approach; that is, the creation of a new office of Welsh administration ombudsman. We gave that very careful thought. Having done that, it involved a quite significant change of direction as far as concerns the drafting of the Bill. If any of your Lordships chide me that there is a good deal of re-amendment to be done, I accept that charge. But I plead guilty on the basis that the cause is worthy. It is only now that we can come forward with the extensive amendments necessary. We are persuaded that the parliamentary commissioner's approach is right.

The principal considerations leading us to that conclusion were the inappropriateness of an officer of Parliament, as the commissioner is treated, having dealings with, and reporting to, members of another

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elected body; and difficulties connected with the remedial process where maladministration was found, given that no Minister would be accountable to Parliament for the assembly's performance of its functions and any remedies offered.

The detail is set out in Part I of the first new schedule. Appointments, remuneration and so forth are closely modelled on the 1967 Act which established the parliamentary commissioner. On remuneration, your Lordships may wish to look at paragraph 4(2) of the schedule. That provides for no remuneration to be payable if the Welsh ombudsman is simultaneously the parliamentary commissioner. It is possible for the two offices to be held simultaneously by the same person. That refers back to the point raised earlier by the noble Lord, Lord Cledwyn, about abatements of salary if two posts are held.

The expenses of the Welsh ombudsman will be met by the assembly, to which he will report. Presently, the parliamentary commissioner's costs come from a Cabinet Office Vote. Discussions are proceeding for an element of that Vote, representing the Welsh component of the parliamentary commissioner's costs, to be transferred to the Welsh block to enable the assembly to meet the Welsh ombudsman's costs.

The new ombudsman's jurisdiction is set out in paragraphs 14 and 15 of the first new schedule. It goes beyond that of the assembly itself. At the moment the parliamentary commissioner has jurisdiction over the Welsh Office and a number of Welsh non-departmental public bodies. But it is not always clear, certainly to me, why some bodies are inside the jurisdiction and others are not. The Development Board for Rural Wales is within the jurisdiction but the WDA is not. We are dealing specifically with that by making the new WDA subject to the new ombudsman's jurisdiction. We also propose that the assembly be given power to revise the list of bodies subject to that jurisdiction. That power would be limited. The assembly could only add a public body to the list if it had functions exercisable in Wales in a field in which the assembly itself has functions. So it would offer scope in due course for rationalisation of jurisdiction, which is a very important matter, particularly when domestic politics in Wales have been plagued either by corruption, or allegations of corruption, or, often just as mischievous, suspicions of corruption.

On re-viewing matters we have come to the conclusion that the definition of a body which may be added to the list was drawn rather wider than intended. If your Lordships are content to accept the amendments as they stand, we shall need to bring back some further amendments at Report to make clear that the bodies which can be added to the list cannot include government departments, as paragraph 14(5) envisages. The ombudsman can investigate allegations of maladministration by any of the bodies subject to his jurisdiction.

Paragraph 16(4) of the new schedule is of interest because it requires a complainant to exhaust any internal remedies provided by the body complained against before the ombudsman can take up the case. However,

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the ombudsman has discretion to waive that requirement if he does not feel it reasonable in the particular circumstances for that to have happened. That is an important balance. One ought to exhaust internal remedies in the same way as one has to on judicial review. But there is the exception available in the ombudsman's discretion if he believes that it is not appropriate. This is a more flexible mechanism than the usual judicial review.

Paragraph 17 of the new schedule deals with complaint-making. Again, we are taking up a suggestion made by the parliamentary commissioner. It was pressed on us by CBI Wales. It will be open for an individual to go directly to the ombudsman without the need for such complaints to go via the complainant's assembly member. That is different from the Westminster situation, but it is consistent with the current arrangements for the Health Service Commissioner and the local government ombudsman. We believe that that is the right way for the new office. It will certainly make it more readily accessible to individual complainants.

I draw the attention of the Committee to paragraphs 21 and 22 of the new schedule. They deal with reports and action taken. If the ombudsman investigates and finds maladministration, the body responsible, which includes the assembly, will be given three months to decide how to respond. If it fails within that time or its proposed form of action was not satisfactory, a further report would be issued setting out the action which the ombudsman considered necessary to meet the case. If the assembly itself had been guilty of maladministration, the assembly's first secretary would be required to move that the assembly approved the ombudsman's recommendations as to the form of redress. These are novel provisions and they are intended to be such. They have been the subject of discussion with the parliamentary commissioner. I can tell the Committee that they have his warm support.

These are important matters and I deal more briefly perhaps with other amendments. The amendments relating to the Health Service Commissioner look to three objectives: first, to amend the commissioner's jurisdiction to enable him to investigate complaints about the performance of health service bodies, including performance by the assembly itself in the exercise of an assembly health service function. That may be the sort of function that the Secretary of State performs now in relation to the health service, but it might, if the assembly exercises the power given to it by Clause 28 of the Bill, also be concerned with service provision. Secondly, they make provision parallel to that proposed for the Welsh administration ombudsman in relation to reports of investigations and action taken in response. That is in paragraph 11 of the new schedule proposed for the Health Service Commissioner. Again, there is a time limit of three months.

Thirdly, the opportunity is taken to put the Health Service Commissioner on the same formal basis as the Welsh administration ombudsman. The expenses of the office will be met by the assembly following the appropriate transfer, as may be, from a Cabinet Office Vote. There is no bar to the same person holding at the same time the office of Health Service Commissioner

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for Wales and the Welsh administration ombudsman as well as parliamentary commissioner, but only one salary would be payable.

The remaining set of amendments are consequential. I believe that all I need to say is that the bodies subject to investigation by the Welsh administration ombudsman would not generally be subject to investigation by the parliamentary commissioner. Various ombudsmen or women are enjoined to consult and co-operate one with another to ensure that complainants obtain effective and efficient handling of their complaints.

These are important amendments. They took a lot of thinking through and we have not got the final, perfect and definitive form. But I believe I reflect a good deal of feeling in Wales that sometimes in the past there has been a tendency for obscurantist, defensive responses to proper complaints from the public. We believe that it is very important to have this defined, disciplined scheme whereby a particular time limit is set so that a report must be made and, failing that, sanctions will follow. I believe that in some ways this new regime might be a model for other parliamentary institutions. I beg to move.

10 p.m.

Lord Roberts of Conwy: We welcome the new schedule as a major improvement to the Bill. If we as a revising Chamber have been able to do nothing at all other than include this new schedule in the Bill, we shall have performed a very useful service.

As the schedule is based largely on the 1967 Act, we are fairly certain that the Government have got it right. However, there are extensions to, and developments of, the replicated provisions of that Act because not only do we have a Welsh ombudsman who will be responsible for answering complaints of maladministration in the area of responsibility of the assembly, but we also have an extension of that responsibility to the Health Service Commissioner. I am sure that direct approaches on the part of consumers of services to the Welsh ombudsman and the Health Service Commissioner will be very much welcomed, just as the services of the parliamentary commissioner have always been welcomed in Wales. Just as the development of that service has been welcomed--so that there can be a direct approach on the part of electors where permissable--I am sure that this development will be welcomed also.

We shall, of course, study the schedule between now and Report stage. If we can in any way help to improve it, we shall certainly put forward amendments for consideration, as the Minister suggested.

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