Government of Wales Bill
Lord Davies of Oldham (Deputy Chief Whip (House of Lords), HM Household; Labour)
My Lords, we have had an interesting debate on this important amendment. As far as the Government are concerned, this is not an issue of seeking to aggrandise the Secretary of State, but we think there is an issue of constitutional principle here, and that is what I want to defend.
I also want to disabuse the House of the notion that the amendment would be an essential defence against a Government who were hostile to a referendum being conducted in Wales, and so should be put in the Bill. The simple fact is that if a Government were hostile to a referendum and potential progress on devolution, they would just produce primary legislation to take out Part 4 of the Bill entirely. If they were set upon that course, nothing would prevent them so doing, provided they could command a majority in both Houses. The amendment cannot stand as the essential defence against such action and should not be supported as such, because it will not provide that defence.
I agree with all noble Lords who have spoken that it would be a somewhat unwise Secretary of State who sought to block a referendum when the National Assembly had expressed itself in these terms by a two-thirds majority. Nevertheless, we think that the Secretary of State should have some discretion in this matter and be able to take account of the views expressed in consultation. If the order is to be laid before Parliament, that is the proper responsibility of the Minister of the Crown. It is not constitutionally defensible for the Assembly to be able to demand that the Secretary of State does this regardless of whether he has the will to do so. That is an important constitutional point.
I am not opposing the amendment on the grounds that the Bill needs a new roadblock against devolution. I cannot foresee the circumstances in which a Secretary of State would take such action when faced, as I have indicated, with a majority decision of the Assembly, but there are proper lines of constitutional accountability, which is why the Secretary of State's position needs to be defined in these terms.
There are also genuine practical reasons why the Secretary of State should not be constrained to lay a draft order within 120 days, as the amendment requires. He or she would still have to comply with the requirements of Clause 103 before doing so, including possibly the preparation of the draft order itself and statutory consultation. It would also be the case that the draft order would be laid before the Assembly before it was laid before Parliament. The amendment would leave no scope for altering that timescale should it not be possible to complete all those steps within 120 days.