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Government of Wales Bill

Consideration of amendments on Report resumed.

Schedule 3 [Transfer etc. of functions: further provisions]:

[Amendment No. 36 not moved.]

Lord Williams of Mostyn moved Amendment No. 37:

Page 83, line 19, leave out from ("culture,") to end of line 21.

The noble Lord said: My Lords, in speaking to Amendment No. 37 I shall speak to Amendments Nos. 38, 228, 231, 232, 233 and 238, which are all within the same group. This set of amendments deals with the definition of Wales in the Bill and in particular the extent to which it includes the sea. The Interpretation Act of 1978 defines Wales by reference to the counties created by the Local Government Act 1972 in Section 20. As a result, the definition of Wales does not include the sea adjoining Wales. Paragraph 2 of Schedule 3 to the Bill currently provides for a ministerial function in relation to an area of sea adjoining the coast of Wales

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to be regarded as exercisable in relation to Wales, but this does not confine the reference to the territorial sea and only applies for the purposes of the transfer of ministerial functions to the assembly under Clause 22.

Amendment No. 232 inserts a definition of Wales in Clause 155 to include,

    "the sea adjacent to Wales out as far as the seaward boundary of the territorial sea".
This applies to all references to Wales in the Bill.

Amendment No. 233 gives an order-making power to determine for the purposes of the definition of Wales any boundary between the parts of the sea which are to be treated as adjacent to Wales and those which are not. This is necessary in the case of the Dee and the Severn estuaries and the Bristol Channel, where the coast of Wales is less than 24 nautical miles from the coast of England. The definition of the parts of the sea adjacent to Wales may be included in an Order in Council under Clause 22 or an order made by the Secretary of State under Clause 155.

Amendment No. 231 provides for an order by the Secretary of State to be subject to the affirmative resolution procedure, as is already the case for draft orders under Clause 22. We anticipated the need for provisions in the Bill about matters relating to the sea because the Secretary of State has certain powers in relation to fisheries conservation and management, marine emergencies, the protection of the human food chain and the protection of the maritime environment. These amendments simply enable the seaward areas for which the assembly will have responsibility to be clarified and therefore defined.

We thought that it was right to limit the responsibility to the territorial sea to 12 nautical miles from the coast. It was also decided that the Bill should permit certain functions exercised beyond that limit to be made subject to a requirement to consult the assembly. That is the point of Amendment No. 38. They are largely functions concerned with the disposal and abandonment of oil and gas installations in Welsh-controlled waters.

As with the territorial sea adjacent to the coast of Wales, it is necessary to have the power to determine what are the boundaries of Welsh-controlled waters. This can be done by means of an order under Clause 22 or Clause 155, but again, I stress, subject to the approval of Parliament via the affirmative resolution procedure. I beg to move.

Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord for his explanation. I now rise only to say to him that he has in fact answered the questions I was going to ask, and so I am grateful for what he has said.

The Earl of Balfour: My Lords, I should like to ask just one question, because I am sure we are all very concerned about the smuggling of illegal drugs and so on. I hope that Customs and Excise, which would be dealing with such matters, is basically under United Kingdom control and its powers would not necessarily be delegated to the Welsh assembly in respect of the protection of these waters against smuggling and so on.

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It concerns me that the coastguards and Customs and Excise will continue to be managed by the United Kingdom Parliament.

Lord Williams of Mostyn: My Lords, I understand the noble Earl's concerns, but the powers that are intended to be devolved to the assembly are simply those powers which the Secretary of State presently has, and police powers, Customs and Excise powers and powers of the kind the noble Earl has in mind are not presently under the control of the Secretary of State. They are--wearing my other hat--powers that are still within the Home Office or within Customs and Excise.

The Earl of Balfour: My Lords, I am much obliged to the Minister.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 38:

Page 83, line 47, at end insert--
("Functions exercisable beyond the territorial sea
.--(1) The power conferred by section 22(1)(c) includes power to direct that any function under--
(a) Part II of the Food and Environment Protection Act 1985 (deposits in the sea), or
(b) Part IV of the Petroleum Act 1998 (abandonment of offshore installations),
so far as exercisable by a Minister of the Crown in relation to Welsh controlled waters shall be exercisable by the Minister only after consultation with the Assembly.
(2) In this paragraph "Welsh controlled waters" means so much of the sea beyond the seaward boundary of the territorial sea as is adjacent to Wales.
(3) The power conferred by section 22(3) includes (in particular) power to determine, or make provision for determining, for the purposes of the definition of "Welsh controlled waters" any boundary between--
(a) the parts of the sea which are to be treated as adjacent to Wales, and
(b) those which are not,
including power to make different determinations or provision for different purposes; and an order under section 155(1A) may include any provision that by virtue of this sub-paragraph may be included in an Order in Council under section 22.").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 39:

Page 85, leave out lines 19 and 20 and insert--
("(1) This paragraph applies where a function is exercisable by a Minister of the Crown--
(a) only with the agreement of, or after consultation with, another Minister of the Crown, or
(b) only with the authorisation of Parliament or either House of Parliament.").

The noble Lord said: My Lords, this amendment provides for the disapplication of provisions in certain Acts: for example, the Ministry of Transport Act 1919 and the Industrial Development Act 1982, where action can only be taken by the Secretary of State if authorised by a Resolution of either House or both Houses of

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Parliament. The Bill at present would not disapply those provisions and so this amendment widens the scope of paragraph 8 of Schedule 3 so that it operates to disapply not only the requirements for ministerial consultation and agreement but also parliamentary authorisation requirements. It would not, I suggest, be appropriate to subject the assembly to the latter requirements because your Lordships have already agreed that other forms of ministerial and parliamentary approval should not apply to the assembly. This is therefore essentially a tidying-up amendment. I beg to move.

On Question, amendment agreed to.

Lord Roberts of Conwy moved Amendment No. 40:

After Clause 26, insert the following new clause--

Concordats with Assembly

(" .--(1) No minister of the Crown or Government Department shall enter into a concordat with the Assembly or a committee of the Assembly unless a draft of the concordat has been laid before each House of Parliament.
(2) Any such concordat may be annulled by either House of Parliament.").

The noble Lord said: My Lords, although the word "concordat" featured in the paper entitled A Voice for Wales it does not appear anywhere in this Bill and yet there is no doubt about the importance of the concept. It is to be the practical means by which the unity of the United Kingdom is maintained, and of course concordats are the subject of Amendments Nos. 40 and 42.

The Secretary of State for Wales, Mr. Ron Davies, in a Written Answer dated 27th February stated that the White Paper noted that the assembly would need to work in close partnership with those Whitehall departments responsible for developing policies and preparing secondary legislation for England on matters which in Wales would be the responsibility of the assembly. It also noted that the assembly's officials and their Whitehall counterparts would need to consult each other on a range of issues. The basis of the consultations would be set out in concordats.

Mr. Davies went on to say in his reply that the Government had produced guidance, setting out the principles which might govern the concordats, and placed copies in the Libraries of both Houses. I do not intend to comment in detail on the guidance, but your Lordships may wish to know that according to the document good working relationships currently exist between the Welsh Office and other departments of Government, and that such relationships are vital to the effectiveness of Government and serve the interests of the public.

Following devolution, the need for co-ordination will remain to take account of the programmes for implementing new legislation and shared interests in matters such as European Union business. It is clear that concordats are to be all-important links between central government and the assembly's executive and, for that matter, the Scottish parliament's executive. Yet we are told that concordats will normally be signed at senior official level only, except when they deal with

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politically sensitive issues when they might be signed by UK Ministers and assembly secretaries. They are all likely to be published.

As these concordats will increase in number and be the linchpin of co-operation between our governmental institutions post devolution, is it not appropriate that they should at least be laid before Parliament? Their contents must be known to and approved of by the assembly in the case of Wales; indeed, we gleaned that much from the remarks made by the noble and learned Lord the Solicitor-General, on Second Reading. Parliament should surely have the chance to consider them as well as the assembly. Again, that is one of the main purports of our proposed new clauses.

It may be argued that concordats already exist and that they are non-statutory. The best known is probably the Barnett formula described as,

    "a non-statutory policy rule based on mutual understanding between parties within the policy network, the implementation of which is subject to both sides observing the behavioural 'rules of the game'".
There is also the DTI's most interesting Concordat on Inward Investment, which is broad in its scope and which provides for the resolution for disputes at official level, Cabinet Office level and, ultimately, through discussions between Ministers. But the key point is that whereas concordats have been fairly rare to date and of limited importance within a unitary government, they are now to increase in number and significance and become an important instrument of government.

I am sure that all of us who have had some governmental experience can give instances of how we have behaved when acting for other departments. I well recall an occasion when I visited a company in Japan. I was told that it had a great love of and interest in Wales, especially a part of it called Lanarkshire--whereupon, of course, I had to put on my best friend's Scottish hat and sing the praises of Lanarkshire. No concordat or understanding was necessary between myself and a Minister at the Scottish Office: we knew what was expected of us and what we were meant to do. However, in the future, I imagine that that kind of situation will be covered by a form of agreement by way of a concordat.

In my view, it would be totally wrong to bypass Parliament in this matter. Parliament really should know what is going on. The Institute of Welsh Affairs, which examined the issue after the publication of the White Paper, came out strongly in favour of,

    "establishing in law the principle of concordats between the Assembly and the Whitehall departments".
The institute went further and said:

    "It would be helpful, from the point of view of information and elucidation, for the Bill to contain a model of such concordats setting out the basic features of the relationship".
We have not had such a model. As I said earlier, there is barely a mention of concordats per se in the Bill. This is an important and obviously sensitive area. The success or failure of the devolution experiment may well depend upon it, together with the maintenance of the unity of the United Kingdom.

Our proposed new clauses are slightly different. In Amendment No. 40, the annulment could occur at any time whereas, as far as concerns Amendment No. 42,

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we are timed by the procedures relating to statutory instruments. That accounts for the main difference between the two clauses. I beg to move.

9 p.m.

Lord Thomas of Gresford: My Lords, the flaw in the amendments proposed by the noble Lord, Lord Roberts, seems to me to be the fact that they are far too legalistic. They are trying to set in stone agreements between the assembly and this Parliament, when those concordats should be flexible understandings between departments which are practical and readily capable of being amended.

Having made that criticism of the amendments, I believe that it is incumbent upon the Government to explain how they intend to make those concordats available for people to see so that they may understand what they are. In other words, there should be transparency. We should be able to know what arrangements are in place between the assembly and the Westminster Parliament. I look forward to hearing from the Minister the nature of those proposals.

It would be unfortunate if relationships were to develop between the assembly and this Parliament which remained secret and subject to speculation and rumour. That could give rise to problems either here or in Cardiff, which could easily be avoided by a transparent look at the arrangements.

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