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Lord Williams of Mostyn: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has a point which is well worth considering. I promise to do that without guarantee.

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Lord Simon of Glaisdale: My Lords, in those circumstances, all that remains for me is to thank my noble friend Lord Bledisloe who is, after all, a famous Queen's Counsel and particularly renowned on matters of statutory construction. I must also thank the noble Lord, Lord Mackay, for his late conversion to the view that I take of unnecessary provisions. I must also thank once again the Minister. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Pensions etc.]:

[Amendment No. 27 not moved.]

Clause 19 [Publication of information about remuneration paid]:

Lord Williams of Mostyn moved Amendment No. 28:

Page 12, line 32, leave out ("of the Assembly").

The noble Lord said: My Lords, this group contains a vast number of amendments. The group starts with Amendment No. 28 and finishes with Amendment No. 236. They are drafting amendments and are intended to bring clarity to the drafting in the Bill and to simplify aspects of accounting provisions for the assembly, Her Majesty's Chief Inspector of Schools and the Forestry Commission during the assembly's first year. Some consequential amendments follow. Amendment No. 125 stands on its own. It is intended to correct a drafting error in Clause 93(8) which otherwise would have required the Auditor General for Wales to produce accounts for each financial year of the assembly.

Without these amendments it would be necessary for the Chief Inspector of Schools and the Forestry Commission to prepare one full set of accounts for the period from 1st April 1999 to the date on which the assembly is set up and another from that date to the end of the 1999-2000 financial year. This is because for the first few months of the financial year, OHMCI would receive its funding direct from Parliament, and for the remainder of the year from the assembly.

I hope that your Lordships will consider that the effect of the amendments is sensible. Their effect would be that for the whole of the financial year 1999-2000 a single set of accounts would be prepared for each body for the whole year and audited by the Auditor General for Wales. The Secretary of State would take decisions on funding for 1999-2000 and would make the payments for the first few months, with the assembly taking over thereafter. A number of the amendments delete the words "of the Assembly" or insert the word "financial". In respect of the former, the words are otiose. I hope that we have improved the drafting, not least by being more economical.

Finally, the Bill in Clauses 91 and 93 makes it clear that the Secretary of State will provide funding for the Auditor General before the assembly is established. As currently drafted, the Bill stipulates that the Auditor General must prepare accounts for each financial year of the assembly. However, the office of the Auditor General for Wales will be established before the assembly. Amendment No. 125 ensures that the

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requirement to prepare accounts should apply from the date of his appointment. I hope that this simplified drafting will commend itself to the House. I beg to move.

On Question, amendment agreed to.

Clause 20 [Oath or affirmation of allegiance]:

Lord Falconer of Thoroton moved Amendment No. 29:

Page 12, line 41, leave out from ("not") to ("at") in line 42 and insert ("do anything as an Assembly member (other than take part in proceedings of the Assembly").

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 22 [Transfer of Ministerial functions]:

Lord Roberts of Conwy moved Amendment No. 30:

Page 13, line 24, after ("function") insert ("in the fields specified in Schedule 2").

The noble Lord said: My Lords, the amendments in this group deal with the transfer of functions. As we know, the transfer of functions clause is almost limitless in its scope as regards governmental functions exercised in Wales. We seek to limit the transfer of functions to those related to the 18 fields noted in Schedule 2. These are the fields where the Secretary of State currently has functions which are to be transferred by order under subsection (2) of Clause 22. In short, Schedule 2 denotes the extent of the initial tranche of transferred functions.

The question that our amendment poses is whether the scope for the transfer of functions to the assembly should be extended beyond the fields where the Secretary of State for Wales has exercised functions hitherto. It can be argued that the Bill's provisions are right as they stand and that they simply reflect the historical situation regarding transfers in Wales. The functions of the Secretary of State for Wales and the role of the Welsh Office have grown, like Topsy, over the years, as I know from personal experience.

I hope your Lordships will allow me a minor personal reminiscence. When I resigned from my post at the Welsh Office in 1994 I realised that I had served in that department for half its lifetime. The department was established only in 1964, and I joined it in 1979 under the auspices of my noble friend Lord Crickhowell. During my time there I saw the responsibility of the office extend, in education for example from primary to secondary, and to further and higher education. It was a tremendously impressive march as regards functions, and it secured many advances and benefits for young people in Wales.

There are other fields where similar progress has been, and can be, made and where there is scope for further progress. The field of health is one example. I saw many developments in that field and I am sure there will be more in time to come.

The question is whether new fields should be added to those listed in Schedule 2. The 18 fields listed in the schedule where the Secretary of State currently has functions involve the expenditure of some £7 billion. But total government expenditure in Wales is almost

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twice that amount. The key question is whether the assembly's functions are to be limited or extended beyond the Schedule 2 fields to other areas such as social security, defence, and so on--to what might be called the reserved matters.

We are always aware of the Secretary of State's view that devolution is an ongoing process. The question is: how far should it go without further parliamentary consideration? Surely we must put a brake on this roller-coaster sooner or later. We must put a brake on the extension of functions beyond the areas referred to in Schedule 2.

The Scotland Bill has a whole schedule of reserved matters. The Bill before the House is based on a different principle. Even so, we should not abandon control by this Parliament. I believe in a "tight lines" policy. I am sure that my noble friend Lord Mackay of Ardbrecknish would approve of such a policy too. So would others who are devoted to the fine art of angling. It is a sound policy for devolution as well. I believe that we shall live to regret it if we do not set limits for further consideration and review on the devolution of functions. It will be the citizens who will suffer.

Amendment No. 36 refers to Schedule 3. It makes clear that an Order in Council under Clause 22 can extend to,

    "any function of a Minister of the Crown".
It is as open-ended as it could be. Does it mean that a function of a Prime Minister, Foreign Secretary or Chancellor of the Exchequer can be transferred by order? I might tell my noble friends that even the Scottish executive is not safe from having a function transferred by order if I read paragraph 10 of Part III of the schedule correctly.

Our aim in Amendments Nos. 31 and 32 is clear. It is to ensure the possibility of transferring functions from, as well as to, the assembly. At present, it is all one way. There is what has been referred to in the past as a ratchet effect. The assembly appears only to be able to gain functions.

The Government already acknowledge in the Bill that they may make mistakes and that an order may have to be laid varying or revoking a previous order. All kinds of circumstances may arise where functions that it may now be thought appropriate for the assembly to exercise may in fact prove inappropriate over time. The clause appears to cover every possible kind of transfer except that described in our amendment. It seems odd that the Government have not included it and made sure that the Bill contains the safeguard provided by the amendment.

As matters stand, should circumstances arise where a transfer back from the assembly to a Minister is necessary, there will have to be special primary legislation. That is the position, as I understand it. That should not be necessary when we can make the transfer of functions asymmetrical by including a useful amendment in the Bill. I beg to move.

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7.15 p.m.

Lord Williams of Mostyn: My Lords, if it is convenient for the House, I shall also speak to Amendments Nos. 30 to 33 and 36, since the noble Lord dealt with them all.

Essentially these amendments seek to alter the mechanism under Clause 22 for transferring functions. We debated this matter at length on an earlier occasion. I shall deal as shortly as I can, first, with Amendments Nos. 30 and 33. What we have here is the proposition that the assembly should acquire functions only in the fields specified in Schedule 2--that is, areas where the Secretary of State for Wales exercises functions now.

We intend to transfer to the assembly the functions of the Secretary of State for Wales by means of the initial Order in Council under Clause 22. However, as the noble Lord indicated, the process of devolution, administratively, has been cumulative. The Welsh Office acquired new functions on a regular basis on many occasions when the noble Lord was the appropriate Minister and via subordinate legislation such as is proposed in Clause 22. I therefore suggest that there is no great issue of constitutional principle. We think that that approach should continue.

If in the future the Government of the day, having the permission of Parliament, find it expedient, then functions should continue to be devolved to Wales by order. We have no plans to bring forward further orders. We simply believe it right to maintain a flexible mechanism should the opportunity be required. That is why we have introduced the transfer order process which the noble Lord's amendments would remove.

Clause 22 gives ample opportunity for parliamentary debate through the affirmative resolution procedure if any future government wished to transfer further functions. If these amendments were accepted, it would mean fresh primary legislation, even in relation to the most modest additional functions, where everyone judged that to be appropriate and sensible. I recognise the noble Lord's concern. However, I reiterate that we have no plans to bring forward further orders. We simply think that the mechanism should be available.

Amendments Nos. 30 and 33 could also prevent the transfer order making provision in respect of functions which do not fall neatly into one or other of the fields in Schedule 2. The Government have decided, for instance, that one of the appointments to each of the Equal Opportunities Commission, the Commission for Racial Equality and the National Disability Council should be made with the assembly's agreement. Those functions could be said to relate to all the fields in Schedule 2 but do not relate to any one of them in particular. There is no reason why the assembly should not have the powers I have indicated, but the noble Lord's amendments might prevent that.

We look to a stable constitutional settlement. Amendments Nos. 31 and 32 are a recipe for instability. Functions could be removed from the assembly or made subject to ministerial control almost at the behest of the Government of the day. We think that that is wrong.

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The Bill is drafted so that the power to transfer functions by order cannot be used to remove functions from the assembly unless the assembly itself--that is important--agrees to it. Clause 102 of the Scotland Bill has a similar effect, so that changes to the list of reserved matters in Schedule 5 to that Bill can be made by order only if the Scottish parliament agrees to it. We believe therefore that Amendments Nos. 31 and 32 will bring about uncertainty and instability.

If there is to be an assembly, which everyone now accepts, powers could be whittled away. That is a recipe for severe conflict. This Bill cannot affect the right of Parliament to pass fresh primary legislation that reduces the assembly's responsibilities. Clause 22 does not therefore affect the ultimate sovereignty of Parliament. But fresh primary legislation would be the proper way to proceed if it were decided to cut away the settlement that this Bill puts in place.

The Government placed limited provisions in paragraph 8 of Schedule 3 to the Bill for the assembly's functions to be subject to ministerial control--for example, in respect of cross-order bodies and functions in an English border area. There are strictly confined powers to override the assembly; for example, those in Clause 108. Amendment No. 32 heads in entirely the opposite direction and holds out the prospect--potentially--of every assembly decision being made subject to consultation with, or the agreement of, a Minister of the Crown. That undermines the very point of the Bill, the very principle which underlies this legislation: that certain decisions should be taken by an assembly elected by the people of Wales.

Amendment No. 36 would leave out paragraph 1 of Schedule 3 to the Bill. That would leave a degree of uncertainty as to whether functions in Acts passed after this Bill is enacted could be transferred to the assembly by order under Clause 22. I have already indicated that we wish to leave a structure available which can bring about the possibility of additional functions being transferred in due time.

The amendment seems to us also to make it possible for any ministerial function in the Bill to be transferred to the assembly. We do not believe that to be right. I hope that my explanation of our approach to these amendments, recognising the legitimate anxieties of the noble Lord, will satisfy him and induce him either not to move those amendments or to withdraw the one under consideration.

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