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Lord Stanley of Alderley: My Lords, the noble Lord did not deal satisfactorily with either point. I would rather he dealt with the wider points I raised before supper when the amendment of my noble friend Lord Crickhowell came up.

In relation to the specific concordat point, I am not asking for it to be written in stone, as the Minister suggested. All I am saying is that I hope there will be some openness when things go wrong--they have certainly gone wrong in the past--and it is made clear that it is the assembly's fault, if I may put it that way. Alternatively, I hope that the assembly will be able to do something about putting right these long-running problems that we have in Wales. As I understand it, that would be where the concordat comes in, because there will be a concordat probably between the Welsh assembly and whoever is doing the nitty-gritty work of paying the grants.

Lord Williams of Mostyn: My Lords, I do not believe that a concordat will solve that problem. The noble Lord identified the problem as one of out-of-date computer technology. It seems to me that no concordat will be able to deal with that.

Where the assembly could be influential, however, is in raising the questions put forward by the noble Lord, applying political pressure to the first secretary and, if necessary, instigating a vote of censure or no confidence, subject to the usual standing order arrangements, in the assembly itself. That is the way to deal with late payments. I do not believe that something as specific as late payments--I do not overlook it for one moment--should be the subject of a concordat. I hope I have dealt at least clearly, though I know not entirely to the noble Lord's satisfaction, with this point.

Lord Stanley of Alderley: My Lords, I do not suppose the noble Lord will ever entirely satisfy me. However, the point he made is relevant.

I wanted to establish that, whereas in the past we seemed to be hitting our head against a brick wall and could not get anywhere, he made it clear to me and your Lordships that there will be a case for the assembly when things go wrong to "chase" the first secretary or whoever it is, to make sure that the matter is put right. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved.]

Lord Crickhowell moved Amendment No. 43:

After Clause 29, insert the following new clause--

Assembly representation at Council of Ministers

(". At any meeting of the Council of Ministers of the European Community at which matters relating to Assembly functions are to be considered, a member of the executive committee (established under clause 56) shall, with the consent of the Minister of the Crown leading the United Kingdom delegation, be entitled to speak and vote on behalf of the Assembly and of the United Kingdom.").

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The noble Lord said: My Lords, we now return to the important issues that were raised by my noble friend Lord Mackay of Ardbrecknish on Amendment No. 34 before the dinner break.

Amendment No. 43 puts in statutory form what Ministers have said they want to happen. I shall speak also to Amendment No. 51, which concerns consultation and has the same wording that I tabled at Committee stage. I shall also refer briefly to Amendments Nos. 63 and 64, which the noble Lord, Lord Elis-Thomas, tabled and with which I have some sympathy. I look forward to hearing what he has to say. This subject has been debated previously but in detail only at a very late hour in this House. It is therefore right that we should return to it now.

At Second Reading, I made plain my serious anxieties about the Government's arrangements for dealing with European issues and about the idea being propagated in some quarters that Wales was likely to be better represented in Europe than it had been in the past. That proposition, at least as it applies to Scotland, was effectively demolished in an important speech by my noble friend Lord Lindsay during the Second Reading debate on the Scotland Bill. He spoke from a wealth of experience as both a Scottish and a UK Minister at Council of Ministers' meetings. He asked acute and important questions and he received no adequate response from Ministers, who at times, I have to say, appeared to be ill informed about the issue. There was also no adequate response to the queries and points of my noble friend Lord Mackay of Ardbrecknish at the Committee stage of this Bill. This amendment gives us an opportunity to discover from the Government exactly how they think Welsh and Scottish interests are to be represented and defended in Brussels. The same principles apply in each case.

In my Second Reading speech, I referred to the proposition that had been advanced that,

    "with the agreement of the UK lead Minister, the relevant Assembly Secretary could speak to the agreed UK line in the Council of Ministers".--[Official Report, 21/4/98; col. 1059.]
In his reply, the noble and learned Lord, Lord Falconer of Thoroton, said:

    "And why should they not do so...?".--[Official Report, 21/4/98; col. 1130.]
My amendment attempts to give the proposition a statutory foundation, a foundation that may prove to be significant if an assembly member, asked by the lead Minister to represent the United Kingdom view, was to be challenged in the Council about his right to do so for reasons that I will refer to later. What I want the Minister to explain in detail are the circumstances in which they could do so and I want him to give us some very clear answers to some very important questions.

As I pointed out in the debate which we have just concluded on concordats, the Secretary of State for Wales argued in his response to the debate in another place on 25th March that it was all a matter for concordats, which meant that he left the position totally obscure. His response was referred to in the debate on the Scotland Bill in another place, in the course of which

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Mrs. Margaret Ewing drew attention to the fact that representatives of the German Lander had represented German interests in the Council of Ministers on four occasions. This matter was referred to earlier today.

Mr. Tam Dalyell, as so often in the past on these issues, was well informed and helpfully filled in the details. He told those present in another place that the State Secretaries for Justice and the Interior and the Senator for Internal Affairs of Hamburg had attended a meeting on 28th/29th November 1996, and that on 16th December 1996 there was a meeting to discuss audio-visual and cultural affairs. Apparently, the Foreign Affairs Minister and the Minister President of the Rhineland-Palatinate attended that meeting. On 20th November 1997, the State Secretary for Education, Science, Research and Technology and the Minister for Culture of Hessen attended a meeting on education. Finally, on 24th November 1997, the Foreign Affairs Minister and the Minister for Education, Culture, Science and the Arts of Bavaria attended a meeting on culture. The House was informed that, although Lander ministers attended Council meetings on those four occasions, they were never the sole representatives of the German government. I also believe it to be the case that they were not the lead ministers on those occasions.

In the speech to which I have already referred, my noble friend Lord Lindsay said that, despite the innumerable hours that he had spent in and around Council meetings, he never met, nor indeed did he ever hear, any reference to the presence of a minister from Catalonia, or any Belgian or other devolved region.

Following the Maastricht Treaty, Germany added a new Article 23 to its Basic Law. I received a most helpful brief on the subject from the Library of this House. It informs me that that article provides that the decision of the Bundesrat is decisive where such a transfer of legislative competence affects the exclusive legislative competence of the Lander; and also provides that Germany may be represented by a member of a Land Government in the Council of Ministers when matters affecting the legislative competence of Lander are being discussed. Representation in Council by a Land Minister should take place in areas of exclusive competence of the Lander. I ask the House to note that point. The note goes on to say that that would include cultural matters, for example, where the federal government has no competence.

The note goes on to explain the special agreement of 1993 that covers the arrangements in Belgium, which are rather more complex than those in Germany. There the Council of Ministers meetings are divided into four categories, (A to D), depending on the relative importance of federal and regional competences in the area under discussion. Federal ministers' only may attend Type A councils. Regional ministers accompany federal ministers at Type B councils where there are shared competences, but the federal level is more important, but only the federal minister may vote. In the Type C councils there are shared competences but the regional level has a greater weight; both levels are represented but only the regional minister may vote. At

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Type D councils where matters within the exclusive competence of the regional governments are discussed, only regional ministers may attend and vote.

The Lords' brief also referred to a House of Commons research paper 97/126, which has this to say about the situation in Spain. I refer to it because the subject of Catalonia is frequently raised, not least by the noble Lord, Lord Elis-Thomas. Mrs. Ewing stated in the debate to which I refer that the Spanish Parliament had recently voted to guarantee the representation of Catalonia and the Basque countries at Council meetings on devolved matters. However, in response, the Secretary of State for Scotland, Mr. Donald Dewar, rather sat on that suggestion. He said that there is no right, as Mrs. Ewing suggested, for Catalonia, the Basque country, or any other region to be part of the delegation. One representative of the 17 provinces will be on the delegation and the great question is how the 17 provinces will decide who that person should be. I believe that the situation as regards Catalonia remains to be established one way or the other. It is important to note and clearly understand that in each of the cases that have been described the arrangements are those that arise from and are made possible by domestic law, domestic agreements or domestic practice.

I have been anxious to discover what rights and opportunities are provided for by European law and practice. I believe that the House will be as anxious as I am to know if each member country of the European Union has a free hand as to the manner in which it is represented.

The question that I put to others in the course of my inquiries and which I now put to Ministers is this. Can the UK lead Minister decide that a case can be presented by representatives of the Scottish Parliament or the Welsh assembly regardless of the views of other member states' ministers in the Council and regardless of any treaty obligation? My noble friend Lord Cockfield has given me a most useful note on the subject. He has referred me to the Treaty of Paris signed in 1951 and the Treaty of Rome which established the European Economic Community, signed in 1957. The English translation of the original of the latter document provides that,

    "The Council shall consist of representatives of the Member States. Each Government shall delegate to it one of its members".
The phraseology was applied to all three Communities by the so-called "Merger Treaty" of 1967 and it survived right down to the Maastricht Treaty, officially called the "Treaty on European Union", which substituted the following words. Again, I ask the House to listen to them carefully. The treaty stated:

    "The Council shall consist of a representative of each Member State at Ministerial level, authorized to commit the government of that Member State".

My noble friend Lord Cockfield observes that the critical point is the phrase,

    "authorized to commit the government".
The "government", so far as the Union is concerned, is the Westminster Government. My noble friend says that he does not see how a member of the Welsh assembly or the Scottish parliament could commit the Westminster

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Parliament; nor does he think that the House of Commons in particular would be at all happy if the Government attempted to give those members such powers. My noble friend says that none of that would prevent a Minister taking along a member of the Welsh assembly or of the Scottish parliament as part of his delegation, but that there could be objections on the part of other members of the Council, particularly in view of the establishment of the Committee of the Regions. My noble friend questions whether at a meeting of EU Councils, covering subjects that fall within the competence of the Welsh assembly, a member of the executive committee of the assembly would be entitled not only to attend, but also to speak and vote as the representative of the UK Government.

The final point to note in all these relative positions is that representation is in any case confined to those subjects where there is exclusive competence. This is the dramatic moment when I lose my text. No, I have found it again.

I refer now to a comment made by Mr. Derek Prague in his pamphlet, Democracy in the European Union, which describes the nature of negotiations in the Council, a subject on which my noble friend Lord Mackay of Ardbrecknish has touched on a number of occasions. Mr. Prague observes that negotiations in the Council normally involve a great deal of give and take. That means that the efforts of national parliaments to control the concessions of their Minister, as he attempts to get maximum consideration in the Council for his government's view, are fraught with difficulty. It is extremely difficult to influence a Minster engaged in a fluid negotiation in the Council of Ministers. Even the national parliament best organised for the scrutiny of European legislation--surely Denmark's Folketing--must find it difficult to control its Minister in the last stage of a negotiation when Ministers are making compromise concessions to each other.

My noble friend Lord Lindsay made much the same point on 17th June when he asked some key questions which apply equally to the Welsh assembly. He asked, for example, that when the Council of Ministers goes into closed session and only member state Ministers are allowed to remain in the room, how easy would it be for devolved Scottish Ministers to stay with their Minister or Crown colleagues. The same question applies to Welsh representatives. My noble friend also asked whether Scottish Ministers would be confined to the public areas of the Council buildings and whether they would be allowed to access the Council buildings and the Council chamber as and when they wish, even when their assistance has either not been sought by a UK Minister or has actually been refused by a UK Minister. Those are important questions to which I should like to hear an answer tonight. One begins to understand why Mr. Dewar was so cautious in the Scottish debate on 30th March and why Mr. Ron Davies, in the debate on 25th March, and the noble Lord the Minister who dealt with this matter in Committee in this House were so reticent.

There may be a few subjects on which a Welsh assembly representative may speak but not vote; for example, cultural and language issues. But it is clear

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that on great political issues such as agriculture, which we have discussed in relation to a number of amendments this evening, and industrial aids or employment measures, the UK will continue to be represented by a Minister of the Government at Westminster who will both speak and vote for Britain as a whole.

Let us consider what will now happen in the situation created by this Bill. Discussions about the UK's negotiating position will no longer take place between Ministers of one administration involving civil servants who prepare and defend a departmental case and have shared loyalty and responsibility to the same government. No. There will be discussions between Ministers who have different and perhaps opposing interests and civil servants with differing loyalties. To take agriculture as an example, perhaps UK Ministers want to adopt a negotiating position on beef on the bone that seems likely to add to the immense problems that already face the farmers of Wales. There will be a huge temptation for the chief secretary of the Welsh assembly to take up a public position of outrage and dismay so that he can defend himself in the face of the assembly and his electors. There is likely to be tension and conflict.

There is sometimes a wonderful symmetry about events in this place. Twenty four hours after the noble and learned Lord the Solicitor-General spoke about representation and the ability of Ministers to speak, to which I have already referred, a Question was posed by the noble Lord, Lord Islwyn, about the current negotiations on the crucial matter of the allocation of regional aid to Wales and the Agenda 2000 package. Confronted with that Question, the noble Lord, Lord Clinton-Davis, said:

    "I do not believe it would be helpful at this stage as regards the negotiations if I were to give further and better particulars of our negotiating position".--[Official Report, 22/4/98; col. 1154.]
Later, when pressed he said, at col. 1155:

    "I have already indicated that I do not believe it to be helpful in what is a difficult negotiating position to single out specific parts of the United Kingdom".
When pressed further he said, at col. 1156:

    "I have already indicated that it is not helpful at this point in the negotiations to embark upon a sectoral appraisal of the position. All these questions are bound to impact upon the Government's thinking. Representations are made by all areas in the United Kingdom and we will listen to them".

Clearly, that is what will happen. UK Ministers will have to take up a position that represents UK interests. It is wholly desirable that the cards are kept face down on the table. But what happens to those who have taken part in the preliminary discussions? What will the first secretary do? He knows the negotiating position and believes--perhaps like my noble friend Lord Stanley of Alderley--that it will be catastrophic for Welsh agriculture. Will he be silent or reveal that there is a profound difference between the Government of the United Kingdom and British Ministers? What is absolutely certain is that he will not be asked to represent the UK in those discussions. The negotiations would have to be conducted by the UK Minister.

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My amendment establishes a statutory basis for the Welsh representation of UK interests in the Council of Ministers in those exceptional cases where lead Ministers agree to such representation. The amendment gives representatives of the Welsh assembly rights comparable with those of the German Lander and the Belgian regional Ministers who have so often been quoted as precedents. Unfortunately much of what has been said in earlier debates indicates that either the Government do not understand what happens in Council negotiations or they are attempting to put up a smokescreen to mislead the people of Wales.

Throughout our proceedings, the Ministers who reply to our debates are as helpful as they can be. I hope that we shall have real frankness from whichever noble Lord replies about questions that are of immense importance to Wales.

9.45 p.m.

Lord Elis-Thomas: My Lords, my Amendments Nos. 63 and 64 are grouped with these amendments and are intended to ensure that there is a representative--an assembly secretary for a responsible field in devolved functions--as part of the UK delegation and that, in parallel, the assembly can make representations to the EU commission.

I regret that my amendments are grouped with the rather lengthy lecture that we have heard from the noble Lord, Lord Crickhowell, on the existing and past arrangements of the European Union. All this is now up in the air. The letter from the Chancellor of the Federal Republic and the President of the French Republic in advance of the Cardiff summit, the communique of the Cardiff summit and the decision of heads of government and the president of the Commission to have an informal summit as part of the Austrian presidency in October relate to the whole question of relations between the European Union as a structure, member states and regional and national levels of government.

I will not quote from the letter or from the presidency decisions in detail except to emphasise that we are now in a new situation. The lecture we have just heard may be a rather inadequate summary of what was past practice. We are now in a new situation within the context of extension, within the context of the interesting political argument inside the German state about the relationship between the Lander and the federal government. In particular, the re-election of Chancellor Kohl and the positioning of the SDP in relation to that, has meant that the question of the role of regions--that is, a level of government below member state--in relation to the European Union is now a major issue in the politics of Germany. As often in these matters, the politics of one member state reverberate in another.

The issue of subsidiarity, the issue of levels of decision making--local, regional and national, as they are described in the Chirac-Kohl letter--are all issues which are currently part of the discussion within the Union. The points which were put forward by the noble Lord, Lord Crickhowell, about recent practices of the Council of Ministers and ways of operating are all issues now open for debate.

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I am not going to argue how those issues should be resolved. Clearly there are issues of competence which work at different levels. I do not accept the point that the noble Lord was making rather strongly that the issues of competence relating to Wales have to do only with matters which are somehow marginal, as he described them. According to him, culture is marginal, although it is a major source of employment in the Welsh economy. He was suggesting that issues relating to agriculture in the economy were somehow more central.

The division of relationships between different areas of policy is no longer relevant. We are in a position where the whole nature of the relationship between member states, regions, localities within the Union and subsidiarity will be an area for discussion at the informal meeting of heads of government under the Austrian presidency in October. We need to be creative in such a situation. I do not understand why the noble Lord, Lord Crickhowell, is so insistent upon freezing the relationships of the national assembly, the Northern Ireland Assembly, and the Scottish parliament into one model, and why he is so keen to fix upon what was agreed in the Belgian federation, the Spanish state, and the German Lander at particular times. Those are moving issues.

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