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Government of Wales Bill

moved Amendment No. 45A:"Page 36, line 11, at end insert—" ““other than where to do so would render the exercise of the duties and functions currently undertaken by bodies in Wales created by royal charter or warrant in whole or in part redundant”” The noble Lord said: I say at the outset that I have a presence here which needs to be explained in that after nearly 28 years in another place, representing an English constituency, very few people tend to remember—although I am sure that most Members of the Committee are aware of what I am about to say—that I come from Wales, I am proud to say. I come from Cardiff and, indeed, Wales is very much the land of my fathers and of my grandfathers. Over the years I have retained many contacts in Wales, most particularly in the arts sector, which is why I have tabled this amendment. I have a considerable concern—which I hope is shared by Members of the Committee—that we get devolution right. I say that having been very much in favour of devolution. Indeed, I was publicly in favour of it when I was still a Conservative and devolution was not a policy of that party. There is a very real danger here. Some Members of the Committee may consider that the sequence which I shall outline in a moment is an example of that. After a long period of English dominance over Welsh institutions, there is a danger of overdoing it and of clutching unto oneself all the power that one can—a sort of devolutionary aspect of the ““We are the masters now”” syndrome. I also have a very real concern about the merits of the issue. I make it clear at the outset that we are after the best and most effective governance of the arts in Wales and the maintenance of the arm’s-length principle which has been with us since 1945, and was introduced by Jennie Lee herself. There is absolutely no argument about the desirability of increasing attendance and participation of disadvantaged groups in the arts within Arts Council of Wales circles or, indeed, anywhere else. Indeed, the excellent record of the Arts Council of Wales in that regard should be referred to. I mention in particular the charity, Youth Music, a creation of the Arts Council of England, but which, to my knowledge, has done excellent work in Wales. It was introduced under the present Government very much with those objectives in mind but is administered mainly by itself under the guidance of the Arts Council and the supervisory role of central government. These issues, and the background to them, need to be put firmly on the record as the Bill goes through this House and the Government should have the opportunity to comment on and to justify their stance. I have tabled the amendment in no party political spirit. I want my noble friends and Members on all sides of the Committee to realise that. We are dealing here with the governance of the arts. We are effectively granting powers to one part of the United Kingdom; namely, Wales, that are not so exercised in England. I say by way of illustration that I would be horrified if, for example, the National Theatre, of which I am a fairly frequent patron, was to come under the direct control of any government department, however benevolent that control seemed to be when it was introduced. I believe that Jennie Lee would agree with me, were she here today. I now come to the background to these matters, which it is very important to set out. Section 28 of the Government of Wales Act 1998 gave the Assembly the power to change or abolish a range of public bodies in Wales. These were listed in Schedule 4 to the 1998 Act, which introduced devolution to Wales. The schedule divided the public bodies into four categories—Parts I to IV. The Arts Council of Wales, the Sports Council for Wales, the National Museum of Wales, the National Library of Wales and the Royal Commission on Ancient and Historical Monuments of Wales are listed under Part IV. Bodies created—this is an important point—by Royal Charter or warrant were all included in Part IV. Under Section 28 of the 1998 Act, the Assembly was debarred from removing any function from a body listed in Part IV unless it was done with the consent of that body. It could not even add a function without that body’s consent. The clear motive was to protect the status quo as far as those bodies were concerned. It was, in effect, the statutory embodiment of the arm’s-length principle. That was confirmed with a number of references leading up to the 1998 Act, which should be referred to. Before the present Government came to power in 1997, a Welsh Labour Party document—a good document—was published in 1996. The document, Preparing a New Wales, said: ““Bodies established by Royal Charter or by warrant, under the Royal Prerogative such as the National Museum of Wales, the Arts Council of Wales and the Royal Commission for Ancient and Historical Monuments in Wales will continue to be responsible for their existing activities. The Assembly will take over the role and responsibilities of the Secretary of State””— in other words, of central Government— ““with regard to these bodies, and will ensure openness and public accountability in their activities””. All is well and good with that, I am sure most of your Lordships will agree. There then comes, after the accession into power of the Labour Government, a government White Paper in 1997, leading up to the 1997 referendum. It was called A Voice for Wales. It made quite clear that: ““The Assembly’s powers to restructure bodies will not apply to those which, firstly, operate at arm’s length from Government, specially to guarantee the independence of their decisions; and secondly, were created by Royal Charter or Warrant (such as the National Library of Wales). Such bodies are governed by their Charters or Warrants, and these can only be amended by Her Majesty’s agreement””. Finally, we come to the debate on the Government of Wales Bill in 1998, in Parliament. During the passage of the Bill in another place, Peter Hain, now Secretary of State for Wales, and for whom I have the highest personal regard, then Parliamentary Secretary at the Welsh Office, said: ““Under Clause 29””— which became the Section 28 that I have already mentioned— ““we have made it clear that royal charter bodies can only gain functions; they cannot be taken away””.—[Official Report, Commons, 25/2/98; col. 466.] Mr Hain had earlier said: ““The assembly has the ability to leave only 16 quangos in existence, if it so chooses. That amounts to a bonfire of the quangos, which we lit with the Bill, and we have complied with our commitments in the White Paper””. This so-called ““bonfire of the quangos”” is an important part of the background to this, because the Under-Secretary, Mr Hain, then goes on: ““Why did we not abolish all the bodies? That brings me directly to the Arts Council of Wales and the Sports Council for Wales. They together with the other three bodies—the National Library of Wales, the National Museum of Wales and the Royal Commission on Ancient and Historical Monuments of Wales—are all bodies created by charter or royal warrant. Unless the Conservative Opposition have suddenly become a republican Opposition, surely they would agree with me that it is for Her Majesty to agree changes to those bodies. It is not appropriate to amend them by means of a Bill””.—[Official Report, Commons, 25/2/98; col. 462.] We then come to the actions of the Welsh Assembly. I will deal with this as succinctly as I can—it is the recent history of this matter. As part of the Assembly Government’s review of Assembly-sponsored public bodies in 2004, only two years ago, they decided to circumvent that protection of the status quo in the case of the Arts Council of Wales, by seeking to use Section 32 of the 1998 Act—to circumvent therefore the Section 28 that I have mentioned by use of Section 32 of the 1998 Act—which is the equivalent of the Clause 61 that I seek to amend. Section 32 of the 1998 Act gave the Assembly a general power to do anything appropriate to support the arts. They intended to use this section to allow them to transfer responsibility for six large arts organisations, from the Arts Council of Wales to the Assembly Government’s culture department, thus making them direct clients of government. That was, of course, the direct subject of a defeat in the Welsh Assembly, which I will refer to in a moment. That was the intention; it has now been, for the moment at least, thwarted by that defeat. The companies were—for the record I have to mention them, but they are all the largest clients of the Arts Council of Wales—the Welsh National Opera; the BBC National Orchestra of Wales; the Clwyd Theatr Cymru; the Welsh Language National Theatre Company; the Diversions dance company; and the Academi, which is a literature promotion agency for Wales and a representative organisation for Welsh writers in both languages. Their combined annual grants were at the time equivalent to no less than 43 per cent of the total Arts Council of Wales grant in aid. If that is not a form of emasculation, I do not quite know what is. The Assembly Government also sought to transfer—I say ““sought to”” because for the moment it has not been able to take effect—or the actual words were to ““bring together””, the strategic planning functions of the council to the department responsible for culture. In relation to the Arts Council, the Assembly Government challenged the arm’s-length principle that has governed the relationship between government and the arts since the creation of the Arts Council of Great Britain in 1945. There had been—and this is not unimportant—no prior consultation on these important proposals. The Arts Council of Wales opposed the change, but proposed a compromise solution that the Minister for Culture, Welsh Language and Sport rejected. It became a matter of public debate—which I remember going on at the time as I was following it quite closely—in which the arts sector gave overwhelming support to the Arts Council’s position. The matter was pressed eventually to a vote in the Assembly in the plenary session on 1 February 2006, and the opposition parties combined to defeat the Assembly Government by one vote. The resolution that was carried instructed the Assembly Government to halt all preparations to transfer responsibility for the six large arts operations until a public review and consultation with all stakeholders was carried out and a further Motion brought to the Assembly in December 2006. We are well ahead of that for the moment. That committee is now in active session. The terms of reference for the review were agreed, and they were extensive. It is being conducted by a panel of six people under the chairmanship of Elan Closs Stephens, the former chairman of S4C. They are all very distinguished people in their own right. It is fair to say that this clause is running ahead of any conclusion that that committee might reach. That is an important point. I have already mentioned a couple of relevant issues of concern. First, under the current Act an Assembly Member would not be able to abolish the Arts Council of Wales without persuading the Secretary of State for Wales—in other words a Cabinet Minister in central government—to petition the Privy Council to that effect. Under the new Bill, Welsh Ministers are themselves Ministers of the Crown and would be able to petition the Privy Council directly for changes to or abolition of the Arts Council, or the National Museum of Wales, or any of the other bodies. The protection given by the arm’s-length principle is therefore considerably less than the 1998 Act. It goes around the safety valve of the Secretary of State. The second item of immediate concern is Clause 61, which seeks to replicate the effect of Section 32 of the 1998 Act, which I have already mentioned, by giving Welsh Ministers the general power to, ““do anything which they consider appropriate to support””, arts, crafts, cultural activities, projects and so on. Given the uncertainty about the use to which Section 32 of the 1998 Act was put, there is a strong case for clarifying the issue in the Bill. Speaking now with a legal hat on, there could be a considerable legal argument here as to whether the action of using Section 32 against Section 28 was legitimate and not perhaps ultra vires, but that has never been heard legally. The sweeping powers that we are giving in Clause 61 in advance of the proceedings of the committee that I have mentioned need to be justified by central government. It is for your Lordships’ House, the other place and central Government in taking through this Bill to act in the necessary supervisory way that is merited in this case. I want to re-emphasise that there is an active committee set up to consider this matter because of an Assembly defeat. My amendment limits what I have described as fairly sweeping powers to support the arts. I hope it clarifies the matter, but such a clarification is not intended to subvert the primary intention of this Bill, which grants the Assembly and its Government a much wider degree of competence. That is all well and good. It introduces a check and balance to ensure that if or when changes are made to these Royal Charter bodies, they will be made by reference to the Privy Council, after full consideration and debate by all parties in Wales, and not by administrative action alone, which is what Clause 61 amounts to. I now want to sum up the position. I believe that this whole process has been unsatisfactory. There has been no proper consultation with the Arts Council; there has been no proper consultation with anybody else. The former chairman of the Arts Council, who was obliged to leave office on 31 March 2006, was—shall we say—at least constructively, or summarily, dismissed on 23 December 2005. He was a person of very high status and renown in the Welsh arts, and indeed generally. The Arts Council of Wales was united in his defence and against these proposals. There had effectively been no consultation about them. There was also widespread public feeling against the Assembly Government over this, which has done my own party’s government considerable harm. It went well beyond the Welsh arts world, leading to the defeat in the Assembly on 1 February 2006. There is a basic unsuitability in these six bodies being brought into the Government’s culture department. There has been talk in Wales of parallels with the Soviet Union and eastern Europe before the Berlin Wall came down. That is a gross exaggeration and I want to make it clear that in moving this amendment I do not doubt the good intentions of the Assembly Government. It is not their integrity that is at stake here, but the good governance of the arts in the longer term. There are many people here who know Wales as well as—or better than—me, including a number who have helped to administer it. Wales is a small place. It is certainly a place where, in its establishment, and indeed generally, everyone knows everyone. In such a small place, a scenario where too much power is put in one place will inevitably lead to a sense of obligation and a general unwillingness to displease that source of power. The effect of that is possibly, or even probably, insidious. I shall give a couple of examples. Theatres should not be direct clients of government; nor should the BBC National Orchestra of Wales. There is an obvious clash of interest here. The BBC, and not just in Wales, is frequently out of sync with the government of the day. By putting a very important instrument of BBC Wales under the control of the government of Wales, there is a conflict. It should not be a direct client of that government. Finally, Academi gives grants to and represents writers; it should not be a direct client of government. This is an important amendment. It raises important principles of democratic government and of devolution. Central government and this House have a responsibility to consider it very carefully. In that context, I look forward to my noble friend’s reply.