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Lord Davies of Oldham: My Lords, I beg to move Motion B standing in the name of my noble friend Lord Evans of Temple Guiting that this House do not insist on its Amendment 4, to which the Commons have disagreed, but do agree with the Commons in their Amendment 4A in lieu. I shall also speak to Motion C.

The amendments concern the composition of the Assembly Commission and Assembly committees in general. As a Government, we have always recognised that having a proper political balance is critical to the future working of the Assembly, as evidenced by the provisions in Clause 29, which I shall come to shortly. We do not contest the principle that the Assembly Commission should be made up of members from different political groups. Therefore, I am pleased to be able to respond to the call to enshrine this in the Bill by offering our amendment in lieu of Amendment No. 4.

It provides that standing orders should require that, as far as is reasonably practicable, no two members of the commission should be drawn from the same political group. This does not include the presiding officer who will chair the Assembly Commission. The amendment simply clarifies the intended effect of your Lordships’ amendment and provides for situations that may arise in the future when in theory there may be fewer than four political groups in the Assembly.

Amendment No. 5 seeks to replace Clause 29 with a new requirement to ensure that Assembly committees have regard to party balance. The amendment shows that all sides of the House are in agreement on the key issue that committees of the new Assembly should be politically balanced. That has always been the Governmment’s intention.

As I stressed on Report, the amendment does not address the situation where agreement is not reached on the composition of committees. The aim is for the Assembly to reach agreement on the size and make-up

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of committees. The composition of committees should not be a matter of party-political contention, but should be the product of cross-party agreement. That is clearly the most desirable situation, and it is the one that obtains here and in the other place as a matter of course. We are familiar with that process. But the reality of the electoral system for the Assembly is such that there is a risk that that may not happen.

That said, the Government recognise the concern that has been expressed in your Lordships’ House and in the other place during the passage of the Bill; namely, that the provision in the Bill relating to the use of the d’Hondt formula should be explicitly worded as a fallback provision. One or two speeches were made against the entire concept, but I wish to emphasis again that the d’Hondt formula is merely a mathematical formula for resolving difficulties on the allocation of places.

The noble Lord, Lord Thomas of Gresford, said:

The noble Lord, Lord Henley, speaking for the Official Opposition, expressed concern that Clause 29 as drafted required the Assembly to contract out rather than contract in to d’Hondt. He wanted greater emphasis on the use of the formula as a fallback. That is what this amendment delivers, and I believe that with this amendment, noble Lords will be reassured that that is expressly the intention.

The other concern expressed during debates on this clause was that it disadvantages smaller parties and independent Members. In response, I point out that this amendment reinstates the provisions to ensure that independent Members and those belonging to smaller parties—I want to give that assurance to the noble Lord, Lord Elis-Thomas, who is in his place—are entitled to a place on a committee, subject to there being enough committee places to make that possible. We believe that that is crucial to safeguard the interests of independent Members and those who represent smaller political parties.

I hope that in listening to both your Lordships’ House and the other place, we have satisfied the concerns expressed while ensuring that the Bill gives direction as to what should happen in the event that parties within the Assembly fail to reach a consensus.

There were two concerns. The first is what to do about smaller parties and how to recognise that with four main parties, very small committees raise problems. The d’Hondt formula works perfectly with a committee of 10 and the present composition of the Assembly. It provides exactly the right proportions between the parties. The difficulty would be if the Assembly set up smaller committees. However, the Assembly will be mindful that, like all parliamentary assemblies, it wants to guarantee that its committees properly and fairly reflect its composition.

Secondly, there was rather more suspicion about the d’Hondt formula than was justified. It is merely a mathematical formula very widely used across the known democratic world to resolve the technical

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problem of how to produce fractions of a member and round them up into proper representation on a committee. The concern expressed was that the Government appeared to put such store by the d’Hondt formula that it was elevated to a significant principle in the Bill rather than being a mechanism for resolving difficulties. It is not a principle. I emphasise again that it is a fall-back position when agreement cannot be reached.

I hope that noble Lords will recognise that our amendments resolve that position and meet the two main objections raised at previous stages.

Moved, That this House do not insist on its Amendment 4 to which the Commons have disagreed, but do agree with the Commons in their Amendment 4A in lieu.—(Lord Davies of Oldham.)

4.30 pm

Lord Livsey of Talgarth: My Lords, I thank the Minister in particular for the conclusion in the amendment about fair representation on the Assembly Commission. We put forward the amendment and there was a lot of support for it throughout Wales. The Conservative Party supported it, too. Common sense has very much come to the fore. It is important with a committee of four and the presiding officer, which affects the whole of the Assembly, that it is fairly representative with one Member from each political party. So I would like to thank the Ministers and their teams for listening and accepting the amendment. Amendment No. 5A has replaced Amendment No. 5. We were greatly exercised by the d’Hondt formula on the original amendment—more exercised than the Minister is by this. I will not go into the difficulties of the calculations involved. As the Minister has pointed out, there is no doubt that minority parties are excluded from smaller committees. We want an inclusive Assembly that can consider all the matters brought before it.

We believe that Amendment No. 5A is a compromise. As the Minister said, it is a last resort to use the d'Hondt formula. This has been considered and although we are not entirely satisfied with the outcome, we can be satisfied that the Government have listened and come forward with a new amendment that meets nearly all our concerns.

Lord Roberts of Conwy: My Lords, we are very glad that the Government have taken note of Lords Amendment No. 4, which we supported, and that they have proposed their own amendment which should ensure a better party political balance in the membership of the commission. It is of course a very important Assembly body and should represent the interests of the Assembly as a whole. It should certainly not be the tool of the governing party.

The Minister drifted on to Clause 29 and Amendments Nos. 5 and 5A. I propose to do the same in order to abbreviate our proceedings. Again we are glad the Government have taken note of our amendment. If my memory serves me right, we led on this amendment and the Liberal Democrats put their names to it. The Government have brought forward their own amendment whose emphasis is clearly on the duty of the Assembly to secure party political

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balance on its committees and sub-committees. I think that that emphasis is right. But, at the same time, one has to acknowledge that the Government may well be right in that it will not be easy to secure agreement and the support of two-thirds of the Assembly membership every time. At least we can say that the Assembly Members will have had their chance to resolve their difficulties before the d'Hondt formula comes into play. We believe that the Government's amendment is an improvement on the original proposal.

Baroness Finlay of Llandaff: My Lords, I make one brief point. I appreciate the Minister’s comment that the amendment to Clause 29 is not a matter for party-political contention, and that this is now a fall-back position. I am glad to see that an Assembly Member who does not belong to a political group is entitled to be a member of at least one committee.

I have a small concern on Amendment No. 5A. New subsection (1A)(b) requires two-thirds of Assembly Members to vote in support of a Motion. I put on record my hope, although it may not be achievable, that that is a two-thirds majority on a free vote. The reason is that a committee may need to ask questions that are uncomfortable for the Government of the day. If it was a two-thirds majority on a whipped vote, the Government of the day could effectively veto the proposed constitution of such a committee; whereas, if it was two-thirds of the Members on a free vote, each Assembly Member could vote according to their conscience. I hope that such a position never arises, but I should like to have that concern flagged up on record at this stage. Otherwise, like other noble Lords, I greatly appreciate that the d'Hondt formula has now become a fallback position; I hope that it will remain as such.

Lord Elis-Thomas: My Lords, I support Motions B and C and inform the House—I know that many noble Lords and Members in another place follow events in the Assembly in detail—that, by using the device for electing Assembly committees, we have established the shadow commission which has met formally on at least three occasions. It indeed includes a member of each political group. Therefore, I very much welcome the amendment. I hope that, when the commission becomes statutory under the Bill, it will be able to pursue its activities in a non-party-political, non-partisan way. Having representation from each political group will help us to do that.

On Motion C, I also welcome the reference to independent Members. We seem to have more and more independent Members in the present Assembly. In the post-2007 Assembly, there may be even more. I hope that no such Member represents Dwyfor Meirionnydd, otherwise I am in difficulty. However, that proposal is very welcome—as, indeed, is the whole compromise on this matter.

I have been particularly concerned about the establishment, selection or election of committees and their size and function. I was especially concerned when d'Hondt appeared rather late in the day. D'Hondt did not appear in the White Paper or in

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early versions of the provisions; d'Hondt suddenly appeared in the Bill. I publicly admit to having carried on a bit of a campaign on this matter because d'Hondt would not have been an appropriate way to establish committees in the first instance. I accept the compromise that it is a backstop, but to set down in the Bill that all committees, with a few exceptions, would have to be constituted in that way would have meant that all committees would have had to have 10 members. Already, half of the Assembly would be committed to being members of committees. There is clearly inflexibility in that approach.

Now, we will have three stages: I hope a negotiated agreement for committee structures; if not, a two-thirds majority approving them by resolution. My noble friend Lady Finlay said that she is concerned that committees should ask critical questions of government. I hope that all Assembly committees will be willing and able to ask much more critical questions of government than they have done so far. She referred to a free vote in the establishment of committees. That is a very important principle. I am sure that she has already read the detail of Sir Jeremy Beecham's report. She will find a section there on scrutiny that advocates that very principle: that scrutiny committees in local government should be elected without a party whip and on a free vote. I hope that we can pursue that matter. I am especially anxious to encourage the scrutiny of government policy by its own supporters, those who are part of its vote, in any parliamentary institution. We have not perhaps seen as much of that in the Assembly as we might.

I had better not go on in this vein because I might be accused of being negative, which I would never want to be. I warmly welcome the willingness of the Government to compromise and the way in which Ministers have sorted this out. I pay tribute to the Liberal Democrats and all Members who have helped to bring this about.

Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have spoken in this debate, particularly for the support from the two Front Benches and their recognition of the move that we have made in response to their arguments. However, I must insist again that d’Hondt was there as an aid, support and mechanism. It was never a principle for which this Government would die at the stake on these issues. The basis on which we expect to work is that the Assembly should be responsible for creating its own committees and composition by consensus.

I am grateful to the noble Baroness, Lady Finlay, for her comments. She will know that we appreciated her contribution that d’Hondt should be only a fallback position. It is an odd concept to say, “I am so much in favour of a free vote that I will establish in legislation what parties should do”. That is to misunderstand how parties organise themselves in Parliament. I cannot think how such legislation could ever be enforced on a political party, which is why we did not contemplate it. There are enough difficulties about free votes within a legislature without the law seeking to intrude and bring in an element of compulsion. Therefore, I do not accept that.



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I am grateful to the noble Lord, Lord Elis-Thomas, for indicating that progress has already been made on the Commission on the basis of representation, and for his understanding that we should bear in mind the need for a fallback position on the composition of committees. I am less enthusiastic about his concept of the independent Member, but I hear what he says about expecting more in Wales: we will just have to ensure that any seats are held by Labour.

On Question, Motion agreed to.

“( ) The standing orders shall include provision for ensuring that in apportioning members to committees and sub-committees regard is had to the balance of political parties represented in the Assembly.”(a) which secures that its membership reflects (so far as is reasonably practicable) the balance of the political groups to which Assembly members belong, and(b) which (if the motion for it is passed on a vote) has no effect unless at least two-thirds of the Assembly members voting support it.(a) the person appointed to the first place on the committee is an Assembly member belonging to the largest political group, and(b) ” (a) every Assembly member who does not belong to a political group is entitled to be a member of at least one committee, and(b) ”

Lord Davies of Oldham: My Lords, I beg to move that the House do not insist on its Amendment No. 5 to which the Commons have disagreed, but do agree with the Commons in their Amendments Nos. 5A to 5D in lieu.

Moved accordingly, and, on Question, Motion agreed to.



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 (a) any enactment (including any enactment comprised in or made under this Act) or prerogative instrument, or(b) any other instrument or document,

Lord Evans of Temple Guiting: My Lords, I beg to move that this House do not insist on its Amendments Nos. 6, 7, 8, 9, 19 and 20, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 20A in lieu.

Your Lordships’ amendments, tabled by the Conservatives, seek to re-name the Assembly’s Audit Committee as the Accounts Committee. The Government do not agree with the Conservatives’ wish to dictate a name to the Assembly, particularly one that the Assembly has expressed a preference for avoiding so that the committee is not confused with the House of Commons Public Accounts Committee.

However, the Government recognise that the Assembly should be able to decide for itself what this committee should be called, as the Liberal Democrats stressed during consideration of the Bill. We therefore propose an amendment in lieu which explicitly gives the power to the Assembly to change the name of this committee if it so desires, while avoiding the technical defects of the amendments from Report stage. I hope we can all agree that it is appropriate for the Assembly to decide on its committee names and I therefore ask the House to support the amendments.

Moved, That the House do not insist on its Amendments Nos. 6, 7, 8, 9, 19 and 20, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 20A in lieu.—(Lord Evans of Temple Guiting.)

Lord Roberts of Conwy: My Lords, the Government are right to leave the door open to the Assembly to change the name of the Audit Committee. There is a strong case for calling it an accounts committee, as my noble friend Lady Noakes pointed out in earlier debates, because its work will approximate in character the kind of work done by the Public Accounts Committee in this Parliament. At the same time, I realise that considerable consequential changes would be necessary if the name of the committee were changed now. The Government are right to leave the Assembly to assess the situation.

4.45 pm

Lord Livsey of Talgarth: My Lords, we too think that this is a very satisfactory outcome. The amendment is a combination of amendments originally tabled in Committee by both the Conservatives and the Liberal Democrats to allow for a wider choice in the name of the committee and we are pleased that the Government have now brought forward Amendment 20A. It will allow the Assembly to decide on the name, which takes us to the place we wanted to reach. We should like to thank Ministers for that.



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Lord Evans of Temple Guiting: My Lords, I am most grateful for the support expressed for this amendment.

On Question, Motion agreed to.

Lord Evans of Temple Guiting: My Lords, I beg to move that the House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A.

I appreciate very much the acuity with which the noble Lord, Lord Kingsland, has scrutinised these and other provisions of the Bill. Our debates in this House and in another place have quite properly required the Government to explain and justify their proposals in detail. I note that Lords amendments recognise the principle that retrospective provision may be necessary in certain circumstances. I note also that the Shadow Attorney-General in another place said on 20 July at col. 220 that he fully accepted that this provision was intended to rectify technical omissions. We are talking about provisions that would be used only on rare occasions. Concerns were expressed in another place that if any individual’s rights should be affected, they should be guaranteed redress. These concerns are important and I recognise that noble Lords opposite have quite properly pressed further and further on a point on which they wanted reassurance; I hope that I can give that reassurance.

These constrained powers to make retrospective provision will enable technical points to be dealt with which protect the position of a person who acted in good faith on Assembly legislation only to find that there was some doubt over whether that legislation was within the Assembly’s legislative competence. The power in Clause 94 would allow the Assembly’s legislative competence to be corrected retrospectively should that prove necessary to give proper effect to the intention of Parliament in granting that competence in the first place, and when not to do so would leave the law unclear or could be detrimental to third parties.

Noble Lords rightly asked about cases where it might be to the detriment rather than the benefit of third parties to correct the law retrospectively. What if a court had already decided in their favour? I have confirmed in a letter now available in the Library, in response to points raised on Report by the noble

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Lord, Lord Kingsland, that the Government would not seek to use these powers to undermine court proceedings where the vires of an Assembly measure was at issue. I am happy to add that the Government would not make an order that retrospectively altered a court’s decision and that if any future Government should seek to do so, clearly Parliament could be expected to block it. The Government could not alter the fact that the court had taken a particular view on the vires of an Assembly measure but they might need to take action in consequence of a court’s decision. It is not possible to predict what that action would be, but one cannot rule out the need to include retrospective provision.

In another place, the shadow Attorney-General asked for,

That has to be right in principle. I find it hard, though, to imagine circumstances where that might become an issue given that the purpose of these provisions is, as I have said, to deal with technical points and to ensure that persons who acted in good faith on the basis of Assembly legislation are not disadvantaged if it is subsequently found to be ultra vires.

However, I can offer reassurance in this sense: any Assembly measure would have to treat private legal rights fairly in the first place. If it did not, and therefore was not compatible with the European Convention on Human Rights, it would not be law and no amount of retrospective provision under the Bill could make it law. If, however, the measure treated those rights fairly and it was only a technicality which meant that some provision in it was ultra vires, then to remedy the technicality would simply restore what was intended to be the status quo. Any persons affected by provisions in the measure would continue, therefore, to be entitled to the compensation or other redress provided for in the measure itself.

I would expect any Government to weigh these issues very carefully and to satisfy themselves that no person’s rights would be affected without proper redress if retrospective provision was made. If they did not, of course, Parliament could block the proposal, as I have said before. Ultimately it would be for the courts to establish whether an individual was legally entitled to redress or greater redress than already offered, and it is proper that the court should be the ultimate arbiter in those circumstances.

In the light of the reasons I have given, I hope noble Lords opposite will accept the Government’s view that these amendments should not stand. I beg to move.

Moved, That this House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A.—(Lord Evans of Temple Guiting.)



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Lord Kingsland rose to move, as an amendment to the Motion, leave out from “House” to end and insert “do insist on its Amendments 17, 21 and 22”.

The noble Lord said: My Lords, the charm and diplomacy of the Minister is greatly appreciated; but, I fear, as far as I am concerned, to no avail. I do not find his reassurances sufficiently reassuring. It may be intended that the clause should deal with technical points; but the consequence for the private individual of dealing with those technical points continues to worry the Opposition.

Our constitution abhors retrospection. When a citizen’s private rights are breached and he is damaged as a result, he is invariably entitled to redress. Retrospective powers enable the Government to abandon that principle. That is why we challenged Clause 94(4) on Committee and Report.

At Third Reading we offered the Government an olive branch. We suggested that retrospective powers would be acceptable as long as such powers were not exercised,

To this proposal we have received an ominously evasive response—first from Ministers in this House and then from the honourable Member Mr Ainger in another place, who said:

I cannot decide whether that is a profoundly ingenuous or profoundly disingenuous remark. In either case, such a proposition should never be allowed to justify retrospection. Of course the public interest should play a part in deciding what the law should be in the future; but it has no part to play in determining the application of existing private rights. That kind of thinking engendered the Acts of indemnity so beloved of Tudor and Stuart monarchs.

Mr Ainger claimed that there remained the protections of the Human Rights Act and of our own parliamentary procedures. However, in continental jurisprudence, the rule against retrospection is much less well-entrenched than in our own common law. Despite the Human Rights Act, for example, the Government were perfectly happy to claim the other day that the Compensation Bill conformed with the convention even though it contained a clause that is plainly retrospective. That is an example of the Human Rights Act undermining the traditional protections of common law.

As to the protection of Parliament, at least the Burma Oil legislation in 1965 had to go through the full legislative procedures of both Houses. In this case, there would be a single vote on an unamendable draft order after derisory debate.

From the evasiveness of the Government responses, I can only conclude that they do indeed intend on occasions to alter existing private rights retrospectively

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and in circumstances where those who lose out as a result will suffer. I remain astonished that they should subscribe to something so meretricious. I beg to move.

Moved, as an amendment to the Motion, leave out from “House” to end and insert “do insist on its Amendments 17, 21 and 22”.—(Lord Kingsland.)

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