Power of Secretary of State to Prevent or Require Action

Part of Orders of the Day — Wales Bill – in the House of Commons at 12:00 am on 4 April 1978.

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Photo of Mr Francis Pym Mr Francis Pym , Cambridgeshire 12:00, 4 April 1978

The debate has shown, once again, that there is a remarkable lack of genuine support for the Bill in the House of Commons. The Bill has had a certain amount of support from the hon, and learned Member for Montgomery (Mr. Hooson). It has had halfhearted support from the hon. Member for Wrexham (Mr. Ellis). The hon. Gentleman linked that limited support with half-hearted apologies for the shortcomings of the Bill and forecast that it could not last long. He seemed to be saying that he wanted to change things for the sake of change. I think that that is a sort of anarchy.

The clause relates to the override provisions which empower Westminster to override the Assembly. If that is not to lead to dispute and disharmony within the United Kingdom, I do not know what is. The hon. Member for Bed-wellty (Mr. Kinnock) thought that that would happen, and I entirely agree with him. Even the hon, and learned Member for Montgomery thought that it would lead to difficulties. Of course it will. Surely we should be concentrating upon finding a way of binding the United Kingdom together more harmoniously and not bringing forward Bills that are bound to damage the unity of the United Kingdom.

I, too, offer my congratulations to my hon, and learned Friend the Member for Cleveland and Whitby (Mr. Brittan). I am glad that I can call him that. Although I have never been able to call him that before, I have always thought of him as that. My hon, and learned Friend concentrated on two of the main issues that are raised by the clause. There are a number of issues to which the Minister will have to reply, but surely the most important is the proposed procedure in Parliament, especially the procedure as regards another place. That is because the power is taken in the clause to overrule not only the Assembly in Wales but another place. We come to the issue properly in Clause 73, but even then I do not think it will be the appropriate time to take up the point made by the hon. Member for West Lothian (Mr. Dalyell) and to deal properly with the constitutional implications of another place.

In Amendments Nos. 229, 233 and 234, the Opposition seek to expunge from the clause the Government's flight into unicameralism. After all, that is what it is. The Government like to make it sound innocent and to dress it up, but what is proposed is the overruling of another place should it come to an inconvenient decision. If it should come to a decision that the Government do not like, they want the power to override. They are saying "We are masters now and we shall take no notice of what another place has decided". The Opposition are utterly opposed to that attitude, Whatever changes are required in another place—and we agree that changes are necessary and desirable—that is not a change that we can possibly accept.

However, that approach suits the Labour Party very well at the moment. In a way, I suppose that it is the beginning of its programme leading to the demolition of another place, which is what it comes to. I find it surprising that the Government should be worried in any way about the powers in another place. They are used very seldom. I suppose that that is part of the difficulty. As regards subordinate legislation, I think that it has used is powers only once, and that was 10 years ago on the Rhodesian sanctions. Its powers have been used hardly ever before or since. I do not know why the Government should be worried about needing to exclude whatever another place may decide on the basis of a whipped vote in this place.

However, in the clause the overruling of another place would be bound to fuel the flames of controversy between the House of Commons and the Welsh Assembly. In such circumstances the other place would be supporting the Assembly against the Secretary of State. The circumstances would be that those in another place would be refusing to pass an order that prevented the Assembly from doing something that it wanted to do, or directing it to do something that it did not want to do—the point made by my hon. Friend the Member for Conway (Mr. Roberts). Whatever else would be the consequence of that, it would increase the tension and conflict that will arise between the House of Commons and the Assembly.

I regret that there has not been a proper or adequate public debate in the country about these issues and that there is a completely inadequate appreciation of the implications of the Bill. If it is passed—I hope that it is not—and if in due time it comes to a referendum, I believe and forecast that there will, even at that time, be too little public understanding in Wales and anywhere else about the true meaning and implications of the Bill.

In the context of the House of Lords, it is wrong to play about with the constitution of the United Kingdom in the course of trying to pass a Bill dealing with the constitution of Wales.

The second main matter dealt with by my hon, and learned Friend the Member for Cleveland and Whitby was the need to give Parliament the right to express a view on these override questions and the power to initiate the use of the override provisions. In the Bill only the Secretary of State has that right. Of course, he will be subject to all manner of political pressures. All kinds of influences and considerations will be brought to bear upon him, and naturally they will have a powerful effect on his decisions.

It seems that in future there will be nothing to stop a Secretary of State altering or expanding the powers of the Assembly without any reference to Parliament. He could do it by not exercising his powers under Clause 35. The mere inactivity of the Minister will change the powers of the Assembly.

It appears that the intention of the clause, if passed in its present form, is that if, in the opinion of the Secretary of State—and only the Secretary of State—an Assembly action would or might affect a reserved matter, whether directly or indirectly and that action is not in the public interest, again, in the opinion solely of the Secretary of State, that action would be stopped.

It is not a question of vires. The courts cannot intervene. They have no power, authority or means of intervening. It is left solely to the discretion of the Secretary of State, because no one else can operate these powers—not even the House of Commons. We think that is wrong.

Parliament has a say only if the Secretary of State takes certain action. It cannot have any say if the Secretary of State fails to take any action or decides not to take any action. Therefore, is it not possible in this way to change and extend the powers of the Assembly, as it were, by default either deliberately or otherwise? If the powers in the clause were not used on an occasion when many people thought that they should be used, we should establish a precedent for non-use of the powers. Therefore, there is here a great deal of anxiety. I hope that the Minister will comment on that aspect of the matter.

A third major matter, which has hardly been touched upon in the three hours of debate, relates to Amendments Nos. 230 and 235. They are concerned with powers of override in relation to our European Community and international obligations.

If the Government believe that the arrangements for overruling the Assembly in instances where its actions might affect a reserved matter are right, why did they choose not to use them in instances of alleged incompatibility with European Community or international obligations? Under the Bill the Secretary of State, acting on his own, will be able to veto any action of the Assembly which appears to him to be incompatible with a Community or other obligation. That does not seem to the Opposition to be a satisfactory arrangement.

First, there is the parliamentary point. Should not the Secretary of State have to seek parliamentary approval for his decision? There is no provision for that in subsection (2). Should there not be an opportunity for Parliament to question any action of the Assembly which it believes to be potentially incompatible?

Secondly, there is the legal point. International obligations are matters of fact and of law and, therefore, are capable of resolution by the judicial process. It seems to us that that process would be the most appropriate way of deciding whether, in the words of subsection (2) (a), any action proposed to be taken by the Assembly would be incompatible with Community obligations or any other international obligations of the United Kingdom". Indeed, the Government took that view in their White Paper "Our Changing Democracy", published in 1975. That states in paragraph 91 that international obligation is essentially a matter of fact and law (often involved and technical) rather than of general political judgment". I agree. So why not refer it to the body most experienced in making such judgments—the courts? It seemed that at one stage the Government thought that, but they have now changed their mind. I wonder whether the Government's experience in relation to their appearances in court in connection with television licences, Laker Airways or comprehensive schools has anything to do with their change of mind. It certainly seems to the Opposition that the matters referred to in subsection (2) could and should be resolved by the courts.

5.45 p.m.

Fourthly—I shall not dwell on this matter because of time—there is the question of enforcement, which has been raised by a number of hon. Members. It is not the same as with a local authority. The House of Commons has imposed upon local authorities duties and responsibilities which they are expected and, indeed, required to carry out. What is more, the House of Commons took powers to enforce the law in that respect and to insist that those duties and responsibilities were carried out. For example, there is the power to surcharge councillors who are found to have failed in their responsibilities. Apparently there is no machinery here to enforce that what is required to be done will be done. That point was made by a number of hon. Members of trust that the Minister of State will have something to say about that matter.