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Lord Williams of Mostyn moved Amendment No. 11:
The noble Lord said: In this group are to be found Amendments Nos. 11 to 14--and 15 and 16 which are in the name of the noble Lord, Lord Cope of Berkeley--and Amendments Nos. 18 to 20, 22, 24, 26, 29 and 30.
Essentially, the government amendments are very largely technical, intended to clarify drafting, and bring about consistency, which is plainly desirable.
There are one or two which I should touch on in a little more detail. We propose to leave out subsection (2) of Clause 9, by which it would have been possible for the Assembly to overrule a decision of the presiding officer about whether or not a provision of a Bill would be within legislative competence. As the Committee knows, noble Lords disapproved of the comparable provision in the Scotland Bill and, accordingly, we think it appropriate to bow to the will of the House, as always, and therefore take out subsection (2) of Clause 9.
We also propose to omit Clause 6(3) about reading Acts of the Assembly so as to be within legislative competence. There is a technical deficiency there. We shall want to bring forward a better form of words later--I think it is likely to be longer.
Amendment No. 11 is purely drafting; Amendments Nos. 12 and 13 are purely technical. Clause 6(2)(e) might at the moment suggest that to show that a provision of an Act of the Assembly was outside legislative competence, it would first be necessary to show that it was not incompatible with convention rights, which would be a perverse requirement.
Amendments Nos. 19 and 29 are purely of a drafting nature. Amendment No. 22 is to tighten the drafting of the Bill. Amendments Nos. 24 and 26 are intended to rule out the possibility of amendments being made to a Bill by the Assembly at what one might call third reading. The Bill provides that the Secretary of State may indicate her consent to a Bill before that stage. The Attorney may indicate that he does not intend to make a reference to the Judicial Committee of the Privy Council. Quite plainly, those provisions could not stand if the Assembly was free then to alter the nature of the Bill. Amendment No. 30 is purely a matter of drafting, making it plain that subsection (3) as well as subsection (2) of Clause 13 qualifies subsection (1).
The distinct amendments are those that I indicated in the name of the noble Lord; namely, Amendments Nos. 15 and 16. We do not favour them because they would rob the Assembly of flexibility in its capacity to legislate. They would reduce the range of provision beyond the transferred field that the Assembly was able to make with the consent of my right honourable friend the Secretary of State.
The definition of ancillary provisions comes from the Northern Ireland Constitution Act 1973. Therefore, the system in Northern Ireland is well familiar with it. Without such a definition, the Assembly might find that the reasonable provisions it wished to make as respects excepted matters, in the context of a legislative scheme about transferred ones, were beyond its competence; or as respects reserved matters, they would be subject to parliamentary control in accordance with Clause 13.
We think it is right that the Assembly should be able to fill out legislative schemes within the areas devolved to it with provisions that can reasonably be seen as useful for making it effective. The control of the Secretary of State is necessary, we believe, given the present pattern of devolution because ancillary provision might touch on sensitive areas to do with police and criminal justice, for instance, which remain within the control of the United Kingdom authorities for the present, as the noble Lord himself indicated on earlier amendments.
But we do not want to circumscribe the freedom of the Assembly unnecessarily. We would not want the uncertainty that would come from enabling the Assembly to make particular provisions if it were necessary for making others effective, but not if it were merely expedient for the purpose. We would not wish to deprive the Assembly of the power which seems, first, valuable, and, secondly, unobjectionable, of legislating incidentally to, or consequential on, provisions within its principal sphere.
I commend the government amendments to the Committee. I hope that it has been helpful for me to have indicated the Government's attitude to Amendments Nos. 15 and 16 tabled in the name of the noble Lord, Lord Cope.
Lord Holme of Cheltenham: Broadly speaking, we support the amendments, most of which are fairly minor drafting improvements. I wish in particular to speak in favour of Amendments Nos. 18 to 20 which limit the ability of the Assembly to overrule the decision of the presiding officer as to whether or not an issue is within the remit of the Assembly.
It seems to me desirable at this early stage when the institution is establishing itself that its presiding officer is given all reasonable latitude. It is difficult enough to be Speaker of another place, but to be presiding officer of this new institution will be a great challenge. I do not say that because the present Presiding Officer is a some time Member of these Benches, but because it is a difficult job. Those amendments strengthen somewhat his authority and that is highly desirable.
Lord Cope of Berkeley: I accept the amendments moved by the noble Lord on behalf of the Government. I agree with the noble Lord, Lord Holme of Cheltenham, that, noble Lords having persuaded the Government on the question of the presiding officer, it is wise of the Government also to put the provision into the Bill. The Minister sought to say that the Government always did what this House requested. I think that goes a little far.
As the Minister explained, Amendments Nos. 15 and 16 standing in my name relate to how far the Assembly's competence goes beyond the power strictly given to them. There is no difference between us that the Assembly should be able to enforce the provisions that it is making. The question is whether we should go further. For matters to be considered expedient, incidental to, or consequential on, goes rather wide. Many issues can be regarded as consequential on something else. The provision opens potentially a wide door.
The noble Lord the Minister said that the provision was subject to the Secretary of State. I had not spotted that the Secretary of State was to be able to rein in the Assembly in this way. I am not sure what the noble Lord meant. He may have been referring to Amendment No. 17 or some other provision which I had not appreciated bore on this part of the Bill. If the noble Lord can help me on the matter, I may be able to agree with him, or go a little further along his line of argument.
Lord Williams of Mostyn: I am grateful to the noble Lord for his customary courtesy in giving way. I sought to say that the proposed scheme which underpins the Bill is to have a control by the Secretary of State, for instance, touching on sensitive areas to do with police and criminal justice, which I specified earlier. Equally, when one devolves power to an assembly of this kind, the Welsh assembly or the Scottish parliament, one needs to trust the assembly with the right to fill out legislative schemes in the areas devolved to it.
The amendments in the name of the noble Lord, Lord Cope, limit unnecessarily the ability of the Assembly. His amendments take out the word "expedient" but leave the power to legislate where necessary. They take out entirely matters which are incidental to, or consequential on provisions. We believe that if one is to trust an assembly to legislate, one should give it the tools reasonably so to legislate. That is why we think that it is better to leave the drafting in its present form. I hope that that is of assistance.
Lord Cope of Berkeley: Am I right in thinking that it is Clause 7 which gives the Secretary of State the leverage?
Lord Williams of Mostyn: It is.
Lord Cope of Berkeley: In view of that, I shall not move my amendments.
Lord Simon of Glaisdale: Perhaps I may say a word about Amendment No. 14 which leaves out subsection (3). It is clearly right because subsection (3) does no more than state what the law states without any statutory necessity. The doctrine is that there is a strong presumption in the present circumstances that an act is regular. I use the word "act" in the general sense, not as
I intervene only because I may have misheard the Minister. I understood him to say that a different form of words to the same effect would be inserted later. I venture to submit that that is unnecessary because the law already takes care of the situation. It is true that the rule of law is generally expressed in Latin, but since the noble Earl, Lord Onslow, is not in his place, perhaps we can get by on the English words. Otherwise the Minister will have it readily at the tip of his tongue. I hope that he can reassure us that this provision disappears and will not reappear differently phrased.
Lord Williams of Mostyn: The noble and learned Lord is right. I stated--in English, not in Latin--that we were going to think about redrafting. But before any redrafting occurs, bearing in mind the helpful and instructive seminars we had on the Government of Wales Bill, I shall bear in mind the noble and learned Lord's cautionary words.
On Question, amendment agreed to.
Page 3, line 22, leave out first ("matters").
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