Clause 92 — Assembly measures

Orders of the Day — Government of Wales Bill — [1st Allotted Day] – in the House of Commons at 3:36 pm on 23rd January 2006.

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Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following amendments: No. 60, in page 50, line 5, leave out 'National Assembly for Wales' and insert 'Senedd'.

No. 61, in page 50, line 7, leave out 'Assembly' and insert 'Senedd'.

No. 62, in page 50, line 8, leave out first 'Assembly' and insert 'Senedd'.

No. 96, in page 50, line 8, leave out second 'Assembly' and insert 'Senedd'.

No. 63, in page 50, line 10, leave out 'Assembly' and insert 'Senedd'.

No. 64, in page 50, line 11, leave out 'Assembly' and insert 'Senedd'.

No. 65, in page 50, line 12, leave out 'Assembly' and insert 'Senedd'.

No. 66, in clause 1, page 1, line 5, leave out from 'be' to end of line 6 and insert

'A Parliament for Wales to be known as the "Senedd".'.

No. 85, in clause 1, page 1, line 12, leave out 'Assembly' and insert 'Senedd'.

No. 86, in clause 1, page 1, line 12, leave out '"Assembly' and insert '"Senedd'.

No. 87, in clause 1, page 1, line 15, leave out 'Assembly' and insert 'Senedd'.

No. 88, in clause 1, page 1, line 16, leave out 'Assembly' and insert 'Senedd'.

No. 89, in clause 1, page 1, line 17, leave out 'Assembly' and insert 'Senedd'.

No. 90, in clause 1, page 1, line 18, leave out 'Assembly' and insert 'Senedd'.

No. 91, in clause 1, page 1, line 20, leave out 'Assembly' and insert 'Senedd'.

No. 92, in clause 1, page 1, line 21, leave out 'Assembly' and insert 'Senedd'.

No. 93, in clause 1, page 1, line 22, leave out 'Assembly' and insert 'Senedd'.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

May I welcome you, Sir Alan, to what will unquestionably be the most exciting debate that we have had about Welsh constitutional matters so far this year?

The amendments relate to nomenclature, and our first debate focuses on a point of principle that in many ways marks the dividing line between the different visions of devolution that each party has. The name of the Administration is fundamental to what it represents and the way in which it is perceived. We need to ask ourselves what we want the Administration to represent. For the Welsh Lib Dems, the answer is simple. We want a strong and autonomous Welsh body with primary powers. In other words, we want a Welsh Parliament: a Welsh Senedd.

Wales is not just another region and its Administration should not be just another Assembly. We are not talking about the west midlands or the north-east—Wales is a proud nation, so its Administration should have the powers and a title that reflect its status.

My worry is that we are in danger of blowing an historic opportunity. Of the four parties in Wales, only one is opposed to the devolution project. There is certainly only one that believes that giving more powers to the Assembly would be

"like giving a latchkey, a bank account, and shotgun to a 10 year old" and that

"these people should not be trusted with more powers under any circumstances."

Presumably, that shows the new progressive face of the Conservative party. I look forward to finding out how things might change during today's debate, but that view seems to have more in common with Whitehall in the 18th century than Wales in the 21st century.

The other two Opposition parties that are represented today believe that Wales is something more than a troublesome colony. The Government know full well that they should have followed the path drawn up by the Richard commission. Had they done so, they would have had our full support, but instead they have been timid when they should have been bold.

We have tabled amendments that point the way to a powerful and capable Welsh Senedd. Using the title "Senedd" would be a sensible signal of the Government's intent. If they are serious about fulfilling the devolution project and getting to the so-called stage 3, at which the Welsh political body would have primary law-making powers, they should be happy to use the name Senedd. Obviously, we look forward to hearing what Ministers have to say. I hope that we will get support from Plaid Cymru, and I will listen with great interest to what the Conservatives have to say. I should point out now that we would like to push this matter to a vote because of its iconic importance.

Photo of Albert Owen Albert Owen Labour, Ynys Môn

I am a little confused. First, the hon. Gentleman says that it is demeaning to call the body an Assembly, because that would mean that we were not a nation—yet France has a National Assembly, of which it is very proud. Secondly, he wants the body to be called the "Senedd"—but now that we have a bilingual policy in Wales, we can call it either the National Assembly for Wales or Cynulliad Cenedlaethol dros Cymru, so what does he propose as the English version of Senedd?

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

On the first point, the hon. Gentleman knows perfectly well that this is a matter of translation. I think that the French, on grasping the relationship between the word "Assembly" and the word "Senedd" in the context of what we are seeking to achieve in Wales, would understand the Liberal Democrats' aspiration to use "Senedd". Hon. Members, of course, may hold a different view. On the second point, it seems to me that calling the Assembly the Welsh Senedd would be a fairly easy way to describe it. The word "senedd" would work in either language, so I see no confusion there.

Photo of David Davies David Davies Conservative, Monmouth

Will the hon. Gentleman give way on that point?

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

No. I am about to finish and Members can make speeches of their own.

Scotland has a Scottish Parliament, and the Welsh Liberal Democrats who helped to guide the original devolution legislation through in 1997 were always apprised of the difference. We felt that Wales was getting a second-class arrangement in comparison with Scotland. I ask right hon. and hon. Members to consider that just as Scotland has a Scottish Parliament, it would be reasonable for Wales to have a Welsh Senedd.

We believe that this is an iconic matter. We will listen to whatever contributions are made, but we sincerely hope that Opposition parties, and the more progressive people on the Government Benches, will see fit to support the amendment.

Photo of David Mundell David Mundell Shadow Secretary of State for Scotland

I was disappointed not to be able to contribute to the debate on 9 January. I know well, from reading early-day motion 1421, that Welsh Members take an active interest in the deliberations of the Scottish Parliament, and this is reciprocated by Scottish Members in respect of the National Assembly of Wales—[Hon. Members: "For Wales!"] I mean the National Assembly for Wales. In any event, the Scottish Parliament provides an important point of reference in the explanatory notes on the Bill.

I listened carefully to what Lembit Öpik said, and it is pretty much the same as what he said in the debate in 1997, when the Liberal Democrats made the same proposal. Now, as then, we are not convinced of its merits. Indeed, our view is even more pronounced now than when it was eloquently put on that occasion by my hon. Friend Mr. Evans.

The term "Welsh Assembly" has been in common parlance for some six and half years among the people of Wales. Some—although not those on the Conservative Benches—may take its name in vain; others may speak more highly of it. It would bring little benefit, other than to signwriters and stationers, who are already well catered for in Wales, to change the name at this stage.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

As the hon. Gentleman's party now ostensibly supports furtherance of the devolution settlement, would he be in favour of the Assembly being called the Welsh Parliament or the Parliament of Wales?

Photo of David Mundell David Mundell Shadow Secretary of State for Scotland 3:45 pm, 23rd January 2006

We are not in favour of that proposal unless it is the clear wish of the people of Wales, as evidenced in a referendum.

We should not forget that it is not the name or, dare I say, the powers of a body that deliver it recognition, authority and respect. It is how it behaves and what it delivers for the people. Many bodies and organisations have sought to operate with a different name but have had mixed success, because ultimately it is the public and what they want that matters, and in this case they clearly recognise the Welsh Assembly.

If we reflect on the work of the Richard commission, we see that it is clear that on a number of aspects voters in Wales are confused, as I think we shall hear throughout the consideration of this Bill, about the exact role of the Assembly, just as people are in relation to the Scottish Parliament. In light of that confusion and of the need to address it, I see no benefit in moving forward with this measure at this time when the effort should be directed towards extending understanding of the Welsh Assembly. Accordingly, we oppose the amendments.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

The amendment is worthy of support. Adverting to what has just been said about some perceived confusion, I should say that the new building in Cardiff is to be known as the "Senedd". Therefore, far from creating more confusion, the proposal might even clear up confusion. I do not in principle see why it should not be called a Senedd. In future, who knows, there might be regional assemblies in England, and a distinction must be drawn between the legislative body for the whole of Wales and a regional assembly in England. Therefore, the amendments are sensible.

I do not want to dwell too long on the amendments, but if Lembit Öpik is to divide the Committee on this issue, we will support him. I am glad that we have had the opportunity to debate these amendments and we will support him in a vote.

Photo of David Davies David Davies Conservative, Monmouth

I am surprised that Plaid Cymru Members are choosing to support the amendment, because I would have thought that, for different reasons, we would all have an interest in opposing it. I oppose the amendment because, as Albert Owen has pointed out, the word "Senedd" translates, as probably everyone here knows, as "parliament". To suggest that the Welsh Assembly should be called the Welsh equivalent of "parliament" would add a lot of confusion. I would not have thought that that would be in the interests of Plaid Cymru, as it would suggest that a parliament exists, but at the moment we have only the Welsh Assembly. It would almost be a breach of the Trade Descriptions Act to describe the Welsh Assembly as a parliament. I and many of my colleagues would like it to remain a Welsh Assembly. Therefore, we do not support the idea of calling it a parliament, as that would add to the inevitability of it becoming one.

Photo of Wayne David Wayne David PPS (Rt Hon Adam Ingram, Minister of State), Ministry of Defence

Will the hon. Gentleman clarify for my benefit and for that of others whether the new debating chamber is to be called a Senedd? Would not calling the debating chamber as well as the rest of the institution a Senedd cause confusion?

Photo of David Davies David Davies Conservative, Monmouth

It will certainly cause a lot of confusion. I believe that the hon. Gentleman is correct that the debating chamber is to be called a Senedd, but I am afraid that he will have to ask others why, because they certainly did not consult the hon. Member for Monmouth when coming up with its name. He will surely recognise, as his colleagues appear to, that at the moment we have the National Assembly, and that, we are told, is what it will remain even after this legislation goes through. To call it something else, even in Welsh, will add to the confusion and I therefore suggest that we oppose the amendment.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

Lembit Öpik said in introducing this group of amendments that it was iconic. Basically, he and others believe that they should have a parliament for Wales, but the Government of Wales Act 1998 and this Bill do not create a parliament.

David Mundell—the name of his constituency is even longer than mine—made the point that there was an extensive debate on the term "Senedd" in the Committee on the Government of Wales Act 1998 and it was decided then that the title "Assembly" was appropriate. Although I understand the position taken by the hon. Members for Montgomeryshire and for Meirionnydd Nant Conwy (Mr. Llwyd), the Government and the Assembly are happy with the title "National Assembly for Wales". Several hon. Members referred to the risk of causing further confusion and the possibility that people would start to refer to the body as "parliament", which could cause it to be confused with this place.

All hon. Members agree on the proposals in the Bill for the separation of the legislature and the Executive. One of the reasons why we need that separation is to give clarity to the devolution settlement in Wales—the public need to understand who is responsible for decisions. In putting that separation into effect, we are sticking with the terms that have gained common currency in the past four years: "the Assembly" and "the Wales Assembly Government". It has been argued that a new name for the Assembly would bring home to people the difference between the Government and the legislative body, but I do not believe that that argument is justified. The fact is that people have got used to calling the Assembly "the Assembly" and changing its name to "the Senedd" would only cause confusion.

Given that the hon. Member for Montgomeryshire has said that he will press the amendment to a Division, I urge the Committee to reject it.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

In our extensive debate today we have more or less rehearsed the debates that those of us who were in Parliament in 1997 had then. For that reason, it is appropriate to be concise in responding to the key points made.

We need to start looking at the big picture. We are not dealing with legislation for the next few years: it is likely that the decisions that we make today will be in force for decades and that the institution itself will exist for centuries. It is therefore appropriate that, six or seven years into the Assembly's life, we get the terminology right. There is a difference of view, but I am surprised that the hon. Members for Caerphilly (Mr. David) and for Monmouth (David T.C. Davies) think that people would be confused if "Senedd" meant a building as well as an institution. I presume that they are speaking from experience—that on at least one occasion the hon. Member for Monmouth got lost because both the building in which we are debating and the political institution of which we are a part are often referred to as "the British Parliament," but I have never got lost like that and I have never heard of other politicians doing so. More than anything, as Mr. Llwyd said, changing the name would create consistency between the bricks and mortar and the politics of Wales. Hon. Members need not fear: in 10 years' time, "Assembly" will have been comfortably replaced by "Senedd".

Photo of David Davies David Davies Conservative, Monmouth

I assure the hon. Gentleman that I was not lost, but does he agree that people will get lost if we have an Assembly in Wales called a Senedd, which implies a parliament; a parliament in Scotland that is a parliament, and regional assemblies throughout England that will not be parliaments at all? Surely that is a recipe for getting lost.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

People looking for the Senedd are less likely to get lost if they have to go to a building called the Senedd. In the hon. Gentleman's logic, he must be claiming that people are more likely to get lost if they have to go a building called the Senedd to find something called the Assembly.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

The hon. Gentleman is correct. He is almost entirely duplicating the debate that took place in the first sitting in Committee on the previous Government of Wales Bill. As the Assembly grows and gradually acquires more power, is there any reason why it should not apply, under field 13 in schedule 5—part of the convoluted process put in place by the Government—to have control over the name of the Assembly and to amend its name in the future? Does the hon. Gentleman see any reason why that should not fall under field 13 in schedule 5? Perhaps the Minister could say whether that would be possible.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

The hon. Lady makes an interesting point. I have not thought through that approach, but if in theory it is possible, perhaps that is one way in which those who resist the amendment today intend to proceed.

Why are we being so timid? The point of the Bill is to give Wales what it deserves. Those of us who are committed to devolution at a strategic level and in principle—I include Plaid Cymru in that—think that we should now generate parity with Scotland. Part of that is changing the name of the Welsh Assembly to something more in keeping with what Scotland has. We think "Welsh Senedd" is the right phrase. I understand why the change of name would be resisted by those in the Chamber who are not minded to provide strategic parity with Scotland, but we are not making legislation for the next six years—we are making legislation that will outlive our political careers. We must therefore be a little more strategic than worrying that there will be a brief period of confusion, probably lasting months, and at the most lasting a few years, as people get used to the new name.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

To help the hon. Gentleman and to respond to the question put by Mrs. Gillan, she is correct that under schedule 5, field 13, it would be possible under the Order-in-Council procedures and the Assembly measures procedures to change the name of the National Assembly.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

That intervention is helpful. However, I shall press the amendment to a Division all the same, for the simple reason that this is an opportunity to establish the intended destination of the various parties with regard to the current legislation and parity with Scotland.

Photo of Albert Owen Albert Owen Labour, Ynys Môn

I was not confused when I started listening to the hon. Gentleman, but I am now. Is he honestly suggesting that just by changing the name, he is changing the aspirations of different parties? The argument that I put forward earlier about simple translation is an important one. When people refer in Welsh to this Parliament, they call it San Steffan, the historic name of St. Stephen's, the chapel where the Chamber first met. That is the simple level of language and translation with which I am dealing. I understand and respect the aspirations of the hon. Gentleman and his party, but if he intends to divide on that basis, surely he is doing so just for the sake of it.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

We have demonstrated in this first debate that hon. Members are being concise. There has not been an undue amount of discursive commentary.

In conclusion, I shall explain why it is important to divide on the matter. Although it may not be so important to Albert Owen, there are many who take seriously the title of the Welsh Assembly. They think it is the wrong name and they aspire to "Welsh Senedd". We should not demean the importance of the terminology that we use for the institution that we are modifying through the Bill. Of course we are not changing the world by changing the name of the Welsh Assembly, but in one significant and demonstrable way we will illustrate that we change our intent as to how strategic we wish that institution to be.

As the hon. Member for Chesham and Amersham rightly pointed out, some of us made these points at an early stage in our previous debate nine years ago, when the Welsh Assembly was set up. It is natural for us to be consistent and to pursue the matter again. Our point has now been made and I hope that, having reflected on the matter, some hon. Members will now be persuaded to support the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 38, Noes 398.

Division number 134 Orders of the Day — Government of Wales Bill — [1st Allotted Day] — Clause 92 — Assembly measures

Aye: 38 MPs

No: 398 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

The Chairman:

Before we proceed, may I say to the Committee that the occupant of the Chair should be referred to as Chairman or by name? The term "Deputy Chairman" is not applicable in these circumstances. As we have three days to go, I thought it as well to make that clear.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 4:15 pm, 23rd January 2006

I beg to move amendment No. 161, in clause 92, page 50, line 9, at end insert

'following resolutions of each House of Parliament, both prior to and after the enactment of each such measure'.

The Chairman:

With this it will be convenient to discuss the following amendments: No. 162, in clause 92, page 50, line 10, leave out subsection (3).

No. 177, in clause 101, page 55, line 25, after 'by', insert

'resolution of each House of Parliament prior to their submission for approval by'.

No. 178, in clause 101, page 55, line 27, after 'by', insert

'resolution of each House of Parliament prior to its submission for approval by'.

No. 179, in clause 101, page 55, line 37, after 'by', insert

'resolution of each House of Parliament prior to its submission for approval by'.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

We come now to an important part of the consideration of part 3 in respect of Assembly Measures. As we pointed out briefly on Second Reading, the problem concerning the Assembly Measures procedure is that it is a way of getting around the necessity of holding a referendum to give primary legislative power to the Welsh Assembly. As we explained and is our view, while there may be arguments for or against giving primary legislative power to the Welsh Assembly, that is a matter for the people of Wales to determine if they so wish and a referendum is the essential precondition for doing that.

The problem of the route that appears to commend itself to the Government and that is contained in part 3 is that it envisages achieving roughly the same outcome by a mechanism that does not require a referendum and does not give primary legislative power to the Welsh Assembly. It allows the Welsh Assembly to enact Orders in Council, which are equivalent in scope to primary legislation.

We exist in this House to scrutinise legislation. We may not do it as well as we should. Guillotines, lack of time and a host of other problems, some of them archaic procedure, do not lend themselves to our always doing it properly. Nevertheless, the process of a Bill—the process on which we are embarked this afternoon—is important. We are here not just to pass principles of legislation but, normally, to look at its detail. As most of us know, the process by which we examine the detail of legislation, if people are prepared to bother to come into the Chamber, sit, listen and participate, can improve legislation. The people who go up to the Committee corridors and listen to a Standing Committee are often pleasantly surprised to note the spirit in which the debate is conducted and sometimes the willingness of the Government to accept proposals.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend is right, unfortunately. If the Government listened more often, some of the nonsense that we have occasionally enacted into law would not have happened.

Out of the 318 amendments that I tabled to the Proceeds of Crime Bill, I succeeded in getting about four accepted.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The criticisms that have been heaped on that legislation suggest that it was at least four too few, if not 314 too few.

On the whole, it is a pretty good process but the problem is that the Government intend to take the detailed scrutiny of the legislation away from this House and to give it to the Welsh Assembly. Not only that, but the process that they are proposing to the Committee to get around the problem of not enacting primary legislation entails a diminution of scrutiny and a raising of the power of the Secretary of State—the Executive—to interfere with the legislative process. Throughout the procedure in part 3, it is the Secretary of State who will be exercising a form of tutelage over the way in which the Welsh Assembly carries out its functions. He has the power to block and to interfere and, in many cases, he will be able to exert influence because he can threaten to stop the procedure.

A further difficulty was explained to the House on Second Reading by the Under-Secretary, although I think that he got the procedure wrong.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Minister nods, but we have since had a correction. The difficulty that I am describing is that the House will be asked to vote on an Order in Council that cannot be amended but which sets out the parameters of what the Welsh Assembly legislates on. After that, the House has no further role in the process.

The Secretary of State made it clear that the Government will do all that they can to provide information about a proposed Assembly Measure before the House votes on it, which will happen at the end of the normal short debate on an Order in Council. The problem arises once the House has voted on the proposal and the Secretary of State has approved it: after its own scrutiny process, the Assembly might produce a Measure substantially different in detail from the draft proposal on which this House votes.

That problem must be inherent in the procedure that the Secretary of State proposes. Although this House will retain responsibility for primary legislation in this country, there is a danger that it will abdicate some of that responsibility.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Secretary of State shakes his head, but an MP is sent to the House to legislate. If the people of Wales make it clear in a referendum that they want the Welsh Assembly to have responsibility for primary legislation, and if the Government hand over that responsibility, the result will be similar to what happened with Scotland—this House will relinquish some of its power, and therefore shed an element of sovereignty.

The Secretary of State will accept that, when the Government's proposed procedure is a hybrid, the responsibility for good governance remains here. However, the Government's proposals envisage that this House will part with its responsibility in response to a draft document that cannot be reconsidered. That is what worries me: once the principle of the Order in Council has been accepted, the Secretary of State and the Assembly will resolve the details of legislation and Parliament will have no further opportunity to consider the matter.

Photo of Peter Hain Peter Hain The Secretary of State for Northern Ireland, The Secretary of State for Wales

The hon. Gentleman and his party have to decide whether they are on the side of the Assembly, and whether they favour the proposed modest extension of its powers through Orders in Council and the Assembly Measures that will follow. The Opposition are in a bind: when it comes to the crunch, they do not want to give the Assembly more powers because they would prefer to retain all the power in Westminster. I stress that nothing will be decided other than as a result of this House's express authority, which will confer on the Assembly the ability to promote Measures in the area designated by the Order in Council. The House and Parliament will remain in charge.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful for that intervention, because I do not think that the Secretary of State understands the procedure of this House at all. This is the Committee stage of a Bill that is an important constitutional measure. It is being held on the Floor of the House so that hon. Members, and especially Opposition Members, can probe and question the Government about their proposals.

The headline in The Western Mail today was "Hain accuses Tories of a bid to 'castrate' Assembly". The Secretary of State said that the amendments that we have tabled

"are a total insult to the people of Wales. Not only do they prove that the Tories still don't understand devolution and don't trust the Assembly. They show that the Tories are trying to turn the clock back and reverse the outcome of the 1997 referendum."

Most extraordinarily of all, he alleged that Tory amendments to the Bill would involve not only a referendum first but the clearing of a long list of hurdles.

The Secretary of State has been in this House longer than I have and he can read the amendments that we have tabled. May I gently point out to him that some of them adopt the alternative position? That seems not to have dawned on him in considering the Bill. [Interruption.] He says, "They are all down there." This is a classic illustration of all that is wrong with this Government. What does he think that we are supposed to be doing here today? We are supposed to be scrutinising and probing and putting proposals to the Government that might indeed commend themselves to him. Yet all he does is to lump our amendments together, put out a propaganda statement that is worthy of South Africa's apartheid regime in terms of trying to blacken one's opponents, and tell the Committee that this is a wrecking procedure. It is nothing of the kind. [Interruption.] If the Secretary of State would listen, he would discover those areas of the Bill that we think could be improved, and those about which we are concerned.

One way in which we might address the problem that I identified is to provide a mechanism through which the House of Commons—and, indeed, the House of Lords—can both vote to empower the Assembly to work out the detail of such legislation and enact it, and vote on that legislation once it has been prepared, so as to give its seal of approval. That mechanism does not involve 16 more hoops—it involves one.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

We will come back to that point in a moment. How is such a mechanism any less, or more, devolutionary than the Government's proposal in part 3, which is not devolution, either? They are proposing to substitute government by primary legislation in respect of important laws with government by Order in Council. The Secretary of State seems not to understand that that is an assertion of Executive authority, not legislative authority. I fear that he has put together this proposal because he knows that he cannot satisfy either half of his party on the question of whether to proceed with the transfer of primary legislative functions and nor does he have a clue whether he would win a referendum. [Interruption.]

The Secretary of State, having asked me a number of questions, is disappearing from the Chamber. He asked me rhetorically whether we are in favour of this legislation or against it, so let me make our position clear. We have reservations about giving the Assembly more power, but we are absolutely clear that, if there is to be a transfer to it of primary legislative power, such a transfer should be put to the people of Wales in a referendum. If that is what they want, we will of course accept their view, because referendums are there for that precise purpose. What we are very worried about is part 3 of the Bill. As it stands, there will be no referendum in respect of part 3. There will be no formal consultation of the people of Wales whatsoever. The Government propose to take away this House's power to scrutinise and enact legislation, and to create a hybrid instrument involving the Executive and the Assembly governing by Order in Council. They say that that is a better procedure, but by any objective analysis, it diminishes democratic accountability at every level. Indeed, we in this House have often criticised the system of governance by Order in Council for Northern Ireland. While I accept that the analogy with Northern Ireland is not perfect because Northern Ireland does not have its own Assembly to carry out any function at all, it remains the case that the Government's understanding of how the constitution in this country works is woeful.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst 4:30 pm, 23rd January 2006

My hon. Friend rightly said that referendums have become one of the accepted mechanisms whereby people are asked whether they want more powers or fewer powers to be given to this or that body. Does he, in the same context, accept, on the same basis, that referendums can, and occasionally should, be used to ask people whether they want the body to exist at all? In other words, a referendum can be used to give, but on occasion also be used to take away.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

To my mind, properly conducted referendums are on issues on which Government ought to give people choices. They ought not, in fact, to labour to influence the result, but to set out the options and ask whether people want them. That is how referendums were always supposed to work. The trouble is that Napoleon III rapidly turned them into a form of executive and parliamentary dictatorship, using them for that purpose. This Government have been adept at picking up the tip.

If there were a clearly manifested desire among the people of Wales for a referendum on whether to get rid of the Assembly, the House would have to listen very carefully. For present purposes, and for the purposes of the Bill, we are content to operate on the principle that, so far as we can see, the Assembly as set up, with its imperfections, appears to have a sufficient measure of support to justify its continued existence. What we will seek to do, therefore, is to see whether there are ways in which we can improve the working of the Assembly, either by granting the option, as the Secretary of State and the Minister want to do, of letting the Assembly have primary legislative powers, or by separating the executive from the legislature, which we entirely agree with.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I will in a moment.

What we are not prepared to do is allow the Government to manipulate the constitution simply because it suits them to do so to satisfy the tendencies in the Labour party that are pulling two ways. I regret to say that that is what part 3 is all about. The Minister's party is split. There are many in Wales who have no desire that primary legislation powers should be granted. In any case, the Minister knows, that there is no possibility of the Welsh people voting in a referendum for primary legislative powers.

That raises an interesting question: if the Welsh people do not want the powers in that form, why should they have them thrust down their throats in the form proposed in part 3? Were the Government going ahead with part 4, we would cheerfully support them; indeed, we shall do so when we come to part 4. We will try to improve any parts that need it, but we do not object to the principle of part 4, including the referendum.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I thought I had made it absolutely clear that we were not in favour of multi-option referendums. The Bill does not offer one and we are not trying to amend it to suggest that it should. I hope that that reassures the hon. Gentleman.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I am delighted to hear of that transformation on the road to Damascus on the Conservative Front Bench, at least, on the idea of a multi-option referendum in which one option would be the abolition of the Assembly. Does the hon. Gentleman feel that the Conservatives returned to Parliament from Wales share his view? If not, for my clarification, what has driven that strategic change of heart?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I fear that we may be straying somewhat from the purpose of the lead amendment. The view taken by my party is that, at present, we should concentrate on seeing whether the way in which the Assembly operates can be improved, and that is what we will seek to do in the course of the passage of the Bill. In doing that, we are prepared to consider whether the Assembly should have more powers, although we believe that if it is to have powers, they should be the powers in part 4 and should come into force only if a referendum has taken place beforehand—a democratic process with which, I would hope, most hon. Members would find it difficult to disagree.

We favour the splitting of the executive and legislative roles, because they have not worked. I think that there is general agreement on that point. We have anxieties about some of the other details of the Bill, including the gerrymandering of the electoral system, to which we shall return later, but for present purposes, I enjoin the Committee to concentrate on the issues in part 3.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall give way to the hon. Gentleman, but I hope his intervention concerns part 3. If not, this debate might go on for longer than people would wish.

Photo of Wayne David Wayne David PPS (Rt Hon Adam Ingram, Minister of State), Ministry of Defence

I thank the hon. Gentleman for finally giving way. If he is in favour of a referendum on whether Orders in Council should be introduced, can he tell the Committee what might be on the ballot paper?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That is a matter that we will come on to debate. The group of amendments before the Committee concerns the mechanism by which further scrutiny of the part 3 process might be achieved. Later, we shall look at other ways in which part 3 might be improved. As I said to the Secretary of State, my experience of a lot of Standing Committee work suggests that it is not unusual to advance different options to the Government and the Committee on how we might proceed. Otherwise, we would fetter our options. It might be that one option commends itself to the Committee more than others, in which case we will go away and think about it. I thought that that was what a Committee stage was about. I despair at the way in which proceedings in Committee are treated as policy utterances, rather than as what they should be, which is a debate on the detail.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

The hon. Gentleman indirectly refers to the next group of amendments on referendums, as well as to the current group on resolutions of both Houses. Am I right in assuming that he is implying that there is a principle behind both groups of amendments but that they manifest it in slightly different ways?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

In each case, we want to achieve two things. First, we want it to be clear that the changes are what the people of Wales want. That is why my hon. Friend Mrs. Gillan will move the next group of amendments on the need for a referendum on the part 3 proposals. Those proposals are of as great constitutional significance as the part 4 proposals. In fact, in terms of the practical consequences of removing scrutiny by this House from the life of the people of Wales in certain areas of primary legislation, part 3 is as important as part 4, so it is in our view wrong to deny people a referendum in those circumstances.

The question is what is the formula that we would offer the people of Wales? That is what the amendments in this group are about. In brief, they envisage that this House, instead of just voting to allow the Assembly to enact legislation in accordance with the framework in a draft Order in Council, would have an opportunity to see the finished product when it came back from the Assembly. The House would then have the opportunity to say yes or no to it.

At one point earlier, I heard a sedentary intervention that implied that the amendments would provide some appalling obstacle or would be anti-democratic in terms of the Assembly's rights. However, it is worth noting that the Secretary of State already possesses major residual powers under the part 3 procedure to obstruct the passage of legislation. If I am asked whether it is better for the Secretary of State to have the powers to obstruct or for this House to take a decision because it considers that the legislation is unsatisfactory, I think that, in terms of democratic accountability, it is better for this House to make the decision. The further debate of one and a half hours that would take place would be extremely important in highlighting whether Members of the House have any reservations about what the Assembly has done and about the detail on whether there was any great difference between the original instruction or permission that was given to the Assembly and the end product that came back.

It is worth remembering, for example—Lembit Öpik will be aware of this—that there are all sorts of mechanisms and procedures by which the Secretary of State can make the Assembly reconsider the detail of its proposals under part 3, so the idea that the Assembly has unfettered discretion under part 3 simply does not reflect the case. What is lost in part 3, as it is drafted, is our ability as Members of Parliament to serve the people of this country properly by carrying out our normal scrutiny role. I am prepared to go along with that, but only if we have the opportunity of looking at the end product as well as the proposal.

Photo of John Bercow John Bercow Conservative, Buckingham

By way of underlining the case that my hon. Friend makes, does he recall Second Reading on 9 January and the part of that debate in which the Secretary of State told me that he was preserving his power to intervene in certain cases precisely to protect Parliament? May I put it to my hon. Friend that the mistake that the right hon. Gentleman has made is to regard himself, on the one hand, and Parliament, on the other, as synonymous? Surely if the interests of Parliament are to be protected and we have a choice as to whether the Secretary of State or the House is to do that, most of us would opt for the latter.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I entirely agree with my hon. Friend. There are some worrying aspects of part 3. I have a niggling feeling that it is only the beginning of a process that, one day, we will find foisted on people in England as well. Effectively, this Parliament will shed its responsibility for primary legislation except as a rubber stamp or stop mechanism. It will be said that it is so much better that such legislation is considered at a lower level with a wonderful dialogue taking place between the Executive and Assemblies that can be browbeaten. Scrutiny of such legislation can be dispensed with when, in fact, it has been our meat and drink for many centuries. It is in the detail and in our willingness to address the detail that lies our best ability to serve our constituents and the electorate of this country.

It is one thing to part, by way of devolution, as we did for Scotland, with a tranche of powers and say, "This is what you want and we wash our hands of our responsibility for it", but it is quite another to create a hybrid in which we will end up being criticised for poor governance—and rightly so, because we will have parted with part of our responsibility and thereby failed to discharge other parts of it in any way that is proper.

I hope that amendment No. 161, which provides for that double scrutiny, commends itself to the Committee. The other amendments in the group—amendments Nos. 171, 178 and 179—are consequential and simply amend other clauses, including clause 101, so that they read in a manner that is compatible. That is the intention, but the draftsmen may inform us that they could be improved. If the Government find the principle of what we are saying worth while, I am sure that the draftsmen will be able to put it into proper order.

Amendment No. 162 is a probing amendment that raises a concern about clause 92(3), which says:

"The validity of an Assembly Measure is not affected by any invalidity in the proceedings of the Assembly leading to its enactment."

I would like an explanation from the Minister as to what that would mean in practice. If the Assembly enacts Assembly Measures in a manner and by procedures that are fundamentally flawed and subsequently overturned by the courts—that is the likely route that would be taken—why should those Measures be deemed to have been valid at the time? I am worried about that.

I understand the need for such a provision when a sovereign body is legislating because it is not answerable to anyone. However, why is such a safeguard being provided to the Assembly, as a subordinate body, because I would not necessarily have expected it to have one? It might mean, for example, that an Assembly Measure could wrongly affect people's private interests and that, subsequent to it being overturned because of the invalidity of the process, there would be no redress for those individuals whatsoever. Is that the proper course of action for the House to adopt? Perhaps the Minister will be able to give me another explanation for why subsection (3) has been included in the Bill. The provision troubles me, so I hope that he will be able to enlighten us on how it is intended that it will work.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering 4:45 pm, 23rd January 2006

Subsection (3) troubles me, too. It is extraordinary that the proceedings of the Assembly could be deemed invalid, yet that the legislation that was passed, which could affect thousands, if not millions, of people, could be deemed valid in the courts. Surely that would undermine the duty of care relating to legislative scrutiny in Wales.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with my hon. Friend. It would also undermine the duty of care that we owe to the people of Wales of ensuring that the legislation that they will get through the hybrid system is acceptable. The buck stops with us. Why should we give a blanket exemption to the Assembly if it fails to operate in line with the statutory powers that have been conferred on it, without which it has no power whatsoever?

There are aspects of the Bill that cause concern because of the extent to which the Assembly will be able to depart from its standing orders. We want to have the necessary reassurance that the Assembly will discharge its functions under the hybrid system in the way in which Parliament intends, but the Bill will allow it to change its standing orders so that it does not scrutinise legislation fully. That is an extraordinary thing to do in part 3. It might be a proper thing to do in part 4 if we are handing over a tranche of responsibilities entirely, but doing that in part 3 is very odd. I hope that the Minister will take the first opportunity to respond to that point.

I apologise for taking up so much of the Committee's time, but the matter is important and numerous interventions have been made. If part 3 of the Bill were to be acceptable in any way, a situation in which the House did not have control over the final text of legislation to be implemented, even if the detail had been worked out by the Welsh Assembly, would be quite wrong. The amendments are designed to address that situation.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I apologise for effectively demoting you to Deputy Chairman earlier, Sir Alan.

I listened intently to what Mr. Grieve said. He is a good debater and an extremely clever man. I share his concerns about the numerous aspects of the Bill that almost give a mandate to the Secretary of State to run Wales from his armchair. However, there are several reasons why I do not think that the hon. Gentleman's solution is right. I believe that there will be sufficient scrutiny, even at stage three, and that more than a sufficient role for Members of Parliament will be built in to the process as the Bill stands.

I have two great concerns. First, having allowed—perhaps that is the wrong word; perhaps I should say "permitted", or even "seen"—the National Assembly to go into considerable detail as part of a process that may last many months, we have that detail brought to us in this House, and in an hour and a half, we are expected to go through all the detail and all the amendments that are necessary. That is not feasible.

The hon. Member for Beaconsfield rightly said at the beginning of his speech that we often get legislation wrong in this place. That is partly because we are overworked; we have too much to do. With European legislation and everything that goes on in Committee and so on, it is difficult to catch up with everything that goes through this House. This suggestion would add to that work load.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I should make it clear that I did not envisage an amendable order. If an order came back after the Assembly had had the initial right to do the work and draft the details, the response would be either yes or no, as with any Order in Council. I would not envisage this House second-guessing the Assembly's detailed scrutiny by substituting something of its own. That was not my intention.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I am grateful to the hon. Gentleman for making that point clear, and I fully understand what he says.

My great concern is partly based on the fact that even in the current position, progress is extremely slow. Progress will be slow under the arrangements in the Bill, too, but it would be slower still if the hon. Gentleman's solution, which may well appear reasonable at first sight, were adopted.

Let me tell the House about one actual instrument that was recently processed through this place and the National Assembly; the Removal and Disposal of Vehicles (Amendment) (Wales) Regulations 2005. Here is a brief chronology. The process started on 10 April 2002, when this House implemented legislation to reduce notice periods that must be given by local authorities and the police regarding the removal of abandoned vehicles. Some Members may recall having dealt with the substance of that debate.

From April 2002 to February 2003, the Welsh Assembly Government lobbied the Department for Environment, Food and Rural Affairs to support the devolution of the relevant powers on reduction of notice periods and so on. In February 2003 there was a submission to the Minister in Cardiff for permission to seek DEFRA's permission for a transfer of functions order and to consult Welsh stakeholders, which was then done.

In August, the Minister at DEFRA wrote to his opposite number in Cardiff agreeing to a transfer of functions order when convenient to the House of Commons timetable. That was because a suitable vehicle needed to be programmed into the Westminster process; it is not available on demand. In September it became clear that the abandoned vehicle powers would have to wait for a larger transfer of functions order. In March 2004 the Minister at the Wales Office wrote to the Minister in Cardiff that the powers would have to wait for the transfer of functions order relating to animal health later that year. That was to avoid Parliament being criticised for putting through a separate transfer of functions order.

In July the National Assembly approved a draft transfer of functions order. In November it was passed by both Houses of Parliament. On 31 December it came into force, and a motion to delegate functions under the transfer of functions order was scheduled for discussion on 18 January 2005. That did not take place, for various operational reasons. Another motion to delegate under the transfer of functions order was rescheduled for 2 February. There were 11 explanatory notes and summary tables, which were e-mailed to Assembly Members at 2.12 on Thursday 27 January, at short notice.

The story went on until November last year; and this was an uncontentious piece of legislation. Imagine what would have happened if it had been contentious.

Photo of John Bercow John Bercow Conservative, Buckingham

The hon. Gentleman has certainly offered us an impressive chronology of the events, but I put it to the hon. Gentleman, whom I hold in very high esteem, that he has deployed the tried and tested technique of invoking a worst-case scenario in support of his thesis. Every single week of the parliamentary year there are delegated legislation Committees after delegated legislation Committees considering a plethora of Orders in Council and statutory instruments, contentious and uncontentious, so the hurdle is not quite as great ordinarily as it could be and obviously was in an isolated but unrepresentative case.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I have a great deal of regard for the hon. Gentleman, but the point that I was making is that there are other such cases. I was given this one by a colleague in the Assembly and it is probably on the bad side—otherwise I would not use it in my speech—but there are others and I am told that such matters take on average 18 or 20 months. A further procedure as proposed will of course add up to a considerably longer time.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I understand the temptation to use the worst-case scenario. The hon. Gentleman began by saying that the measure was first anticipated in 2002. As his example shows that the process appears to be taking years rather than months, does he know whether there is any bar to the Welsh Assembly's gathering together the provisions that it wishes to be considered in this House and the Government each year bringing forward a Bill on such matters that they would put through in the normal fashion? To-ing and fro-ing and dilatoriness is a creature of both the Assembly and this House, and therefore one straightforward Bill in every Session for which there would be plenty of time would solve the problem. Can he think of any bar to that procedure? Perhaps it ought to be considered.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

The hon. Lady is right, but the bar is the content of the Bill. I know that it accommodates what are rather inelegantly called jumbo orders, but that would not cover the point. A Bill such as she proposes might be difficult, because it might deal with as many as 20 or 30 subjects. However, we should be looking at that, and she makes the point in the right spirit to try to improve matters. Perhaps the Minister could in due course respond to that; perhaps not tomorrow but Monday.

Photo of David Jones David Jones Conservative, Clwyd West

I agree with the hon. Gentleman that delay is likely to be inherent in the procedure that is set up by part 3, but is that not a very good argument for dispensing with part 3 altogether? The only reason why we have part 3 is that the Government have latched on to such a byzantine process in order to avoid asking the people of Wales in a referendum whether they want primary legislative powers. If we dispensed with part 3 altogether and went straight to part 4, giving the people of Wales a referendum, we could spare this House a great deal of time.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I know that that view is held by the hon. Gentleman and some of his colleagues in the National Assembly. We are not afraid of a referendum; we are happy for one to come when it has to come under part 4, but I certainly would not favour the hon. Gentleman's proposal. There is a logic to us going through part 3 before part 4. We make no secret of wanting full powers immediately, but that would mean an increased capacity for those who are able to draft legislation, and Assembly Members would need to be up to speed in dealing with the part 3 procedure. Common sense dictates that that is logical. Although I would like things to happen overnight, realistically it will take time for the National Assembly to get up to speed in order to legislate at the rate and with the thoroughness that it would no doubt wish to do so.

I have listened to the debate and much of what has been said is logical. Unlike the Minister, I do not think that the amendments were intended to be wrecking amendments. They are logical. I simply do not agree with them.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills 5:00 pm, 23rd January 2006

I have listened carefully to the debate and I wonder whether the Minister can give me some assurances on procedure and on the role of draft legislation in particular. We have not yet discussed draft legislation in this debate, but it is important that we recognise that progress has been made in the last and present Parliaments in the development of draft legislation and of Joint Committees of the Assembly and the UK Parliament.

The role of draft legislation in the procedure that is outlined in the Bill is not as clear as I would like. Will the Minister explain whether Members of this House will, at an early stage, consider the orders that are to be produced, so that they are aware of what Measures the Assembly is to propose? It seems to me that one of the essential safeguards needed in the process is that Members of this House have an opportunity at an early stage to make known their views on proposed Assembly Measures. Bearing in mind that the Order in Council procedure does not allow amendments to be made at a late stage, it is extremely important that there be widespread consideration of proposed Assembly Measures by Members of this House.

Photo of Albert Owen Albert Owen Labour, Ynys Môn

My hon. Friend has highlighted that point on numerous occasions in the past. Is he suggesting the creation of a Joint Committee consisting of Assembly Members and Members of Parliament so that such debates can take place in one forum or separately in the Assembly and perhaps another forum of this House?

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills

I think that a Joint Committee approach has worked extremely well in the past, because it promotes a positive atmosphere of Assembly Members and Members of Parliament working together. I hope that that will develop as the process in the Bill develops.

The position of the official Opposition confuses me. In recent years in this Parliament, legislation appropriate to Wales or directed at Wales alone has been drafted in the form of enabling legislation and has been passed either in a separate Bill or as a Wales-only section of a larger Bill. It seems to me that there has been little difficulty with those proposals being considered by Joint Committees, being drafted in the broadest terms in primary legislation and passed in those terms by this Parliament, and the Assembly implementing the proposals at a later stage, after its process has been gone through. It has not been necessary after the Assembly has gone through its process to bring legislation back to this place for a vote, as the official Opposition are suggesting should happen, and it would be unnecessary after the Bill was passed if Members of Parliament were closely involved at an early stage of the process.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman may know my views. I am not sure how many Orders in Council there were, but in 1966 there were 35 statutory instruments passed as subordinate legislation; only a tiny handful. Now, we constantly pass legislation that gives wide discretion to Secretaries of State to enact secondary legislation, which the House has grossly insufficient opportunity to scrutinise adequately. That is a constitutional reform that I would very much like to see.

However, it remains the case that the House has a responsibility for primary legislation. I am sure the hon. Gentleman will recognise that what the Government are doing in the Bill is turning what is normally primary legislation into secondary legislation, so issues of even greater importance will not be properly scrutinised here, on the promise that they may get better scrutiny elsewhere, but without our having any opportunity to see the final product and pronounce on it.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills

I am most grateful to the hon. Gentleman for that intervention, because it takes us to the heart of the Conservative position. What he has ignored throughout all his comments so far in the debate is that the National Assembly for Wales is a democratically elected institution. The point of devolution was to introduce a more democratic element to the process of dealing with the huge number of distinct regulations that the Secretary of State for Wales dealt with in the past. The central weakness of the Conservative position is that it does not recognise that the Assembly has any democratic validity at all.

Photo of David Jones David Jones Conservative, Clwyd West

The hon. Gentleman is right; the National Assembly is a democratically constituted institution. But does he agree that it is constituted on the basis of a referendum that was held in 1997, in which the powers of the proposed Assembly were carefully defined? Does he agree also that the explanatory material that preceded that referendum made it clear that the powers to be devolved were secondary legislative powers, and that what is being proposed in part 3 is the piecemeal conference of primary powers on a step by step basis? That is quite different from what the people of Wales voted for in 1997.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills

I hear what the hon. Gentleman says. I do not regard the measure as the introduction of primary legislative powers by the back door. I do not support primary legislative powers for the Assembly. There has been an incremental process since the establishment of the National Assembly for Wales; for example, the introduction of Joint Committees, to which I referred. The Opposition did not at that stage call for a referendum. With respect to them, it is not possible for us to call for a referendum at each stage when procedures change. The correct time for a referendum to take place is when primary legislative powers are passed, if ever, to the Assembly. The present position is that the ultimate decisions will remain in this place. As long as that remains so, there is no need for a referendum.

Photo of David Davies David Davies Conservative, Monmouth

First, the hon. Gentleman says there is no need for a referendum until primary legislative powers are given to the Assembly, but surely the point of the Bill is that primary legislative powers will be given to the Assembly, albeit in a slightly restricted fashion. Secondly, the point behind what he is saying is surely that there should be a referendum if significant extra powers are going to the Assembly. The Secretary of State for Wales and his colleague have already said that this is a significant Bill. Thirdly, the scrutiny process that can take place in the Assembly necessarily will be far more restricted because there are at most only 60 people whose input can go into that scrutiny, whereas in the House and the other place, as the hon. Gentleman knows, there are more than 1,000 people.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills

The point about scrutiny is a valid one. That is the reason that I am so strongly in favour of Joint Committees of this place and the Assembly. That is a way of dealing with the relatively low number of Members in the Assembly. This is why I asked for some assurance from the Front Bench about the continued role of Members of Parliament in this regard.

To return to the issue of a referendum, this place will continue to have a role to play in legislation that is passed for Wales, but if there were a proposal to take away that role, there would need to be a referendum. However, the process that exists here means that I will continue to have a role as a Member of Parliament in proposals that are outside the Assembly's present legislative competence, and I am content that no referendum will be required as long as that role remains.

I would like more reassurance on the early stages of the procedure that is to be introduced, but the Conservative party needs to wake up to the fact that there has been incremental improvement of the process through the development of the Joint Committees and the work of the Welsh Affairs Committee. That process has already happened; we did not need a referendum for it to begin, and we do not need one now.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

Sir Nicholas, what a delight it is to see you in the Chair. Thank you very much for giving me the opportunity to make a brief contribution to the debate.

We seem to have debated this group of amendments and the next one by proxy, in that this group does not really deal with referendums. We shall come to the next group shortly, so I shall limit my comments to amendment No. 161 and the associated amendments. There seems to be a contradiction between what the leader of the Conservatives has said and what the amendments seek to do. Both positions are legitimate but they do not fit together. I have a strong sense that Mr. Cameron has expressed his support for devolution, yet this group of amendments seems to roll back the latitude that the Welsh Assembly has in regard even to its existing powers. The two positions do not fit together. If I have misunderstood the import of the amendments, I hope that Mr. Grieve will intervene on me to clarify the matter.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The amendments have absolutely no bearing on the present powers of the Assembly, which involve the right to enact statutory instruments in the same manner as the Secretary of State previously had the power to do by virtue of legislation enacted by this House. That is its remit—

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Indeed. The amendments propose to extend that provision so that measures that currently require primary legislation here would be dealt with by virtue of an Order in Council's sleight of hand and be converted into secondary legislation, so that the Assembly could also deal with them. Previously, it would have been unable to consider them because they required primary legislative consideration here. I can therefore reassure the hon. Gentleman that the amendments have no bearing on the Assembly's present powers. I have to say that I am slightly troubled if he cannot see the distinction between primary and secondary legislation, because that is precisely the piece of wool that the Government are trying to pull over everyone's eyes.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I have been wearing that particular woolly hat for about nine years, because I was here when we created the original legislation. I look forward to hearing what the Minister has to say about this. I understand that the hon. Member for Beaconsfield has perhaps not been involved in Welsh stuff for quite as long as some of us, and I also accept that I might be wrong, but my understanding is that, as an unintended consequence, the amendments would impact on what the Assembly is already able to do. As I have said, however, I could be wrong about that.

Photo of Wayne David Wayne David PPS (Rt Hon Adam Ingram, Minister of State), Ministry of Defence

The hon. Gentleman has a point. As my hon. Friend Ian Lucas said earlier, enabling powers are in widespread use at the moment, whereby the National Assembly for Wales is given permissive authority to draft specific clauses in primary legislation. The official Opposition's proposals would clearly undermine the spirit of that arrangement, if nothing else.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I am grateful for the hon. Gentleman's intervention, because the amendments seem to have missed something. As he rightly says, if the amendments are passed, the Assembly will no longer be able to do certain aspects of its work in the same way. If we were debating solely amendments Nos. 161, 162 and 177 to 179, the Assembly would, if those amendments were passed, feel the pinch in terms of its current powers. That might not have been the intention, but I am pretty sure that it is the outcome.

Photo of David Jones David Jones Conservative, Clwyd West 5:15 pm, 23rd January 2006

Does the hon. Gentleman agree that the Conservative amendments relate only to Assembly Measures, which are not passed by the Assembly at the moment? How can the amendments therefore affect the Assembly's current workings in any way?

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

The Assembly's current workings are affected because of the amendments' unintended consequence in terms of existing legislative procedures. I do not want to speculate about that, because I am sure that the Minister will have had a more detailed analysis from his advisers, which will give a definitive answer.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I am merely trying to be helpful. The hon. Gentleman seems to think that our amendments to the first clause in part 3—on Assembly Measures, which do not exist at the moment—will affect the Assembly's current legislative position. Will he give examples of the unintended consequences to which he has referred? We should have a list of those, because it was neither my intention nor that of my hon. Friends who tabled the amendments to do other than to probe this matter and get clarification. The discussion of the amendments leads me to believe, however, that the longer the hon. Gentleman goes on, the more likely we are to put them to a vote.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I have been inspired to raise such points only by the exhortation from the hon. Member for Beaconsfield that we should have a proper debate. It is useful that we are having such a debate, as we cannot both be right. I do not have a profound insight, as I do not read his amendments in great detail at night, but I believe that my hon. Friend Mr. Williams does, so I shall give way to him to clarify the situation definitively.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

As my hon. Friend might have realised, much of the primary legislation passed in this place enables the Assembly to carry on its work and achieve its objectives without further reference back to this place. The Conservative amendments, however, seem to me to put a hurdle or even an obstacle in the way of the Assembly carrying out its purposes.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I am grateful to my hon. Friend for his intervention. I feel that we are the warm-up act for the political giant to follow, who will give the definitive answer to the question.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman makes a point on which I shall be interested to hear the Minister's comments. The amendments could only have the unintended consequences that he states if, as a result of the passage of the Bill, the previous mechanism governing the Assembly's action disappeared, so that everything had to be an Assembly Measure. The Minister might tell me that that is how the Government have done it. If so, the House needs to debate that, because an Assembly Measure is different from the Assembly's previous powers. If that is one of the consequences of part 3, I find it slightly surprising that it was not highlighted by the Minister on Second Reading, because it would not only enhance the Assembly's existing powers but change them radically so that the Assembly could do something that it could not do previously.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I think I can say on behalf of all Members that we are in for a treat when the Minister clarifies the issue. I do not think that I have anything to add. The Minister has heard the question, which now hangs poised above him as we await his answer.

There is another point, probably less controversial in terms of interpretation, but nevertheless controversial in terms of judgment. Notwithstanding the debate in which we have just engaged, the aim of the Conservative amendments is evidently to rein in the Assembly's latitude to operate autonomously, because they introduce the necessary involvement of both Houses of Parliament to affirm matters that, as the Bill stands, would not require the affirmation of either House. As Mr. Llwyd observed, that is a legitimate position, but my position is different. The amendments go even less far than a Bill that I feel does not go far enough, and it therefore goes without saying that we cannot support them.

It is not clear to me why the Conservatives seem to be both very pro-devolution and very much against giving the Assembly its head. I think it was Ian Lucas who pointed out that the Assembly is democratically elected by the people of Wales.

Photo of Betty Williams Betty Williams Labour, Conwy

May I offer a simple explanation for the amendments? Could it be that none of the four Members who tabled them has represented a Welsh constituency since devolution or, indeed, sat on the Welsh Affairs Committee, which has worked hard and closely with the Assembly, as was pointed out by my hon. Friend Ian Lucas?

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I will not go down that path. I do not question the intellect or the parliamentary capabilities of three Conservative Front Benchers with a collective IQ of at least 600—which is doubled if we include the acting duty Whip, Michael Fabricant.

That issue does not concern me. The issue that concerns me is an issue of judgment. Surely if we are truly committed to devolution we must, at the very least, oppose the amendments. The Liberal Democrats think that the Bill as it stands is timid, but the amendments take it backwards.

I will now sit down, and give way to the main attraction.

Photo of Paul Murphy Paul Murphy Chair, Intelligence and Security Committee of Parliament

I am the second main attraction.

Issues relating to scrutiny may also be discussed later, particularly when we debate clause 97, but I was prompted to speak at this stage by what was said by my hon. Friend Ian Lucas. Mr. Grieve made an interesting speech, although I do not agree with the requirement for resolutions. I think that we achieved a balance when providing for Orders in Council. Another possibility would have been primary legislation every time the Assembly wished to deal with an issue. That would have been entirely impracticable.

The hon. Gentleman made some interesting points about scrutiny of the Orders in Council, as did my hon. Friend the Member for Wrexham. It was pointed out that in Northern Ireland, in the absence of a functioning elected Assembly, direct rule must rely on Orders in Council. As everyone knows, Orders in Council are unamendable, and the time taken for consideration is very short. In Northern Ireland the problem has been partly overcome through a decent system of pre-legislative scrutiny, and I think that that is what should happen in this instance.

Having read the notes on clauses and the various other documents that we are obliged to read in connection with the Bill, I am not entirely convinced that we have arrived at the right answer yet.

The Select Committee on Welsh Affairs recommended in its report on these issues that

"Standing Orders be amended to disapply Standing Order No.118 in respect of draft Orders in Council made under the proposed new Act."

It went on to talk about the role of the Welsh Grand Committee. The reply from the Government was effectively that it was a matter for the business managers. I am not convinced that it is. Obviously, business managers have an important role to play but the House has a right to look at how properly to scrutinise the legislation. There is a case for both the Assembly and Parliament meeting together in a Committee structure to look at that. There is a case for the Select Committee on Welsh Affairs to play a role in such legislation. In particular, there is a case seriously to question whether one and a half hours' debate on Orders in Council is adequate. I am sure that it would be possible to extend that debate to three hours. I am sure that debates could be held on the Floor of the House if the issue were of such gravity, and that we can look at the role of the Welsh Grand Committee in these matters. That may be another way out.

In all the documentation surrounding this part of the Bill, little is said about the parliamentary scrutiny of the Orders in Council, but plenty is said about the role of Government, whether it is in Cardiff or in London. Such comment is right, but then it stops. The arrangements for the Assembly Government, or the Executive as it is likely to be called, and the British Government in terms of working out what happens with the Orders in Council are well defined in the Bill. Checks and balances exist, but there is a gap as far as this place is concerned. My right hon. Friend the Secretary of State and my hon. Friend the Minister would do well to return to the issue with colleagues, whether it be the Leader of the House or whoever, to consider again whether to establish formally in writing—in Standing Orders, in legislation or wherever—a system by which pre-legislative scrutiny is defined more closely and adequately, and Orders in Council themselves are not limited to one and a half hours' debate upstairs in a Committee. That is not good enough for the issues that we are dealing with.

As the hon. Member for Beaconsfield said, these are gravely important issues. This is a new form of procedure and arrangement for the House of Commons, so there is nothing to stop us having a new form of scrutiny. I look forward to the response of my hon. Friend the Minister, but these are important issues and I am sure that many Labour Members agree with my argument.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North

I want to make a brief contribution. Mr. Grieve says that part 3 gives primary legislation to the Welsh Assembly by the back door. That is the basis of his argument, which is a huge exaggeration. The proposals in the Bill are relatively modest. I would support primary legislative powers and campaign for them, but only if there were a referendum. I do not believe that the proposed measures introduce primary legislative powers.

Part 3 clearly preserves the right of Parliament to oversee legislation in Wales in principle. It is clearly laid down that that right will be debated in Parliament and that the Assembly will not be able to go ahead with anything unless it is debated here. If the hon. Gentleman's proposals were adopted, it would make the whole process much more cumbersome and difficult. It would be a step backwards. As a result, a proposal that I support strongly, albeit a small step forward, would be held back.

Photo of David Jones David Jones Conservative, Clwyd West

Does the hon. Lady agree that, once legislative competence has been devolved by adding a matter to one of the fields listed in schedule 5, the Assembly can continue to make Assembly Measures ad infinitum, without any input from this House? Once legislative competence is devolved, it is devolved for good, and this House will have no input in the process.

Photo of Julie Morgan Julie Morgan Labour, Cardiff North 5:30 pm, 23rd January 2006

As has been noted, devolution exists already. The Assembly is democratically elected, and we must trust its ability to carry out legislative functions. The Opposition are making a great mistake in attempting to hang on to power in Westminster in a way that will not allow the Assembly to develop.

There will be difficulties when it comes to scrutiny, as the Assembly has only 60 Members, and it must take that problem on board and deal with it. However, I strongly support what has been said by my hon. Friend Ian Lucas and others about the importance of pre-legislative scrutiny and of working together through the Welsh Affairs Committee. When I was a member of that Committee, we worked with the Assembly to carry out joint scrutiny of quite a few Bills. That extremely effective way of working can be built into this process.

In conclusion, the amendments would create another obstacle to giving the Assembly more power over what it does. I hope that they will be resisted.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

Before I respond to the debate, I want to point out that the amendments, and the contribution by Mr. Grieve, take us back to the fundamental question of devolution. The Opposition are reluctant to accept that the democratically elected Assembly in Cardiff does have powers to scrutinise legislation and to hold the Executive to account. Mr. Cameron has said that the Tories have moved to a pro-devolution position, but the amendments seem to cut across that.

The enhanced legislative powers that part 3 would enable to be conferred on the Assembly are an adaptation of the current settlement. Parliament will be able to scrutinise and control the powers that it devolves to the Assembly on a case-by-case basis. It will then be for the Assembly to scrutinise how those powers are used to make Assembly Measures that address the needs of Wales.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

In the 1997 referendum, the people of Wales voted by a small majority for devolution powers that were clearly explained. Those powers were subsequently legislated on, and I took part at some length in the debate in this House about the transfer to the Assembly of the Secretary of State's function to make statutory instruments. The Minister seems to want to fudge the issue, so does he agree that the Bill, by means of the mechanism in part 3, transfers further powers to the Assembly? If part 3 is enacted, therefore, the Assembly will be able to do things that it could not do previously. Can we get that established at the outset, so that we can see the parameters of the debate?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

Very simply, the answer is yes, because giving the Assembly enhanced legislative powers was a manifesto commitment. I am surprised that the hon. Gentleman had to ask that question, given the purpose of the Bill and everything that we have said about it, including in the White Paper.

The Bill is designed to give the Assembly enhanced legislative powers, but the amendments show that the Tories still have no faith in the Assembly's ability to scrutinise its own legislation. If that is not so, why does Amendment No. 161 enable Parliament to examine an Assembly Measure not only at the beginning of the process but at the end, and to say yes or no to it? That is not accepting devolution.

Photo of David Davies David Davies Conservative, Monmouth

As one of the more sceptical Assembly Members, I can assure the Minister that we do not think that the Assembly would fail to do the job of scrutinising; it would do as good a job as it possibly could. My point is—to some extent, Julie Morgan agreed with this—that 60 people, even with the help of the Welsh Affairs Select Committee and of Joint Committees, are not going to be able to do as good a job as the 1,000-plus who sit in this House and in the other place.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

That is an interesting point, but once the hon. Gentleman has been here a little longer and been through the Whips Office, he will perhaps realise how many people are actually actively involved in scrutinising legislation. It is interesting to count the number of Members who participate in the scrutiny even of controversial Bills on Second Reading, in Committee, on Report and on Third Reading. The Assembly currently sits for only two or three days a week, and as the First Minister and its Presiding Officer have said, it will have to sit full time. Its doing so will address a lot of the practical problems associated with 60 AMs scrutinising legislation.

The hon. Member for Beaconsfield said that these amendments would not affect current processes, but frankly they attempt to turn the clock back. Schedule 11 allows for framework powers that can be given to the Assembly through primary legislation to be converted into Orders in Council or into Assembly Measures. If his amendment were accepted, legislation that the Assembly had been given the power to develop by primary legislation passed in this House would have to come back to this place for further approval. That is nonsensical. We are trying to give the Assembly enhanced powers, but if his amendment were accepted, the Assembly would have to come back here for approval of such legislation, yet secondary legislation undertaken by the Assembly would not be affected. That, too, is nonsensical.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Minister will surely see some logic in our proposal. The giving of enhanced powers to do things that previously were not possible is a very good reason for asking that such legislation be sent back for approval. However, we are content that the ordinary powers provided for under statutory instrument should not be sent back. That is a perfectly basic and sensible point, and if I have misunderstood the Minister he will doubtless explain himself.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

That is not giving enhanced legislative powers—it is keeping a very tight grip on such powers. I suggest that the hon. Gentleman read the White Paper, and I remind him that the Bill's purpose is to give enhanced legislative powers to the Assembly.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I will give way again, but in response I shall simply repeat what I said before.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister—such to-ing and fro-ing can be helpful. He clearly did not listen fully to what I said. I pointed out at the outset that if the Government want to give the Assembly primary legislative functions, we will support part 4, subject to a referendum. Instead, however, they propose to give the Assembly the ability, through Order in Council, to enact Assembly Measures that currently require primary legislation passed first in this House. That is where we have a disagreement. If the Minister wishes to proceed down that route, my view, without the part 4 procedure, would be that although I might be prepared to let the detail be worked out by the Assembly, I should still wish the Measure to come back to be validated by the House before it could be enacted.

We have a disagreement, but to say that I am not prepared to give enhanced powers to the Assembly is to traduce my words. No logical analysis could lead the Minister to that conclusion, leaving just a desire, I am afraid, to make propaganda, which slightly irritates me.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. I make a plea for slightly shorter interventions. From the Chair, they appear to be becoming short speeches. I appeal to hon. Members to try to make interventions shorter.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

The hon. Member for Beaconsfield still refuses to accept that the enhanced powers we are talking about mean giving further responsibility. It would be wrong if, having given the Assembly the responsibility to develop the detail of a Measure, it then has to come back to this place for us to say yea or nay to that detail. That is not devolution; that is not giving powers to the Assembly—that is holding power even tighter than we hold it now.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I touched on that point earlier, and the Minister is absolutely right. The flaw in the argument of Mr. Grieve is that if, as we should, we allow the Assembly to deal with all the detail, when the Measure comes back here we will not have all the detail to go through. Nor have we the time to go through all the detail. If, rightly, we have left the Assembly to deal with the detail, we are merely the machinery by which the Assembly makes that detail law.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

Exactly. In effect, as my right hon. Friend the Secretary of State is saying to me now, all we could do would be to hold a veto. That is certainly not in line with our devolution position, but I thought that it was also the new devolution position of the Conservatives.

I come now to the contributions made by hon. Members. I say with the greatest of respect that the hon. Member for Beaconsfield misconceives what the Orders in Council do. They do not change the law, they merely give permission to the Assembly to develop, through the Assembly Measures method, its own law. He said that the Orders in Council changed the law—they do not; they merely give the Assembly permission to carry out those functions.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall seek to be as brief as possible. In the schedule that lays out the powers we are transferring—schedule 5, I think—it is quite clear that we are substantially giving primary law-making powers to the Assembly. It may be called an Order in Council, but the Assembly Measure is a primary law-making power that we are, without referendum, shedding to the Assembly, and disguising by calling it an Order in Council.

If the Minister wants to persuade me that I am wrong about that, I shall listen, but I shall take a lot of convincing. He is simply dressing up a primary legislative function as something else and saying that we need not worry about it because it is not a primary legislative function, when it plainly is.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

The point that the hon. Gentleman does not seem able to accept is that Parliament will decide case by case the areas in which the Assembly can legislate. If Parliament decides that it does not want to give the Assembly powers to legislate in a clearly defined area, Parliament will not do that. We have to accept that the Order in Council will not change the law: it will be the Assembly Measure that will change the law.

Photo of David Jones David Jones Conservative, Clwyd West 5:45 pm, 23rd January 2006

The Minister has conceded that what is being handed over to the Assembly, on a case-by-case basis—as he puts it—is primary legislative competence. That being the case, can he tell the Committee why he does not have enough faith in the people of Wales to put these proposals before them in a referendum? I suggest that the answer is simple, and it is because he knows—as the Secretary of State has conceded—that the Government would lose such a referendum.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I am afraid that we do have a mandate. We made it clear in both the UK Labour manifesto and in the manifesto for Wales that we would give enhanced legislative powers to the National Assembly. The hon. Gentleman argues that we are giving primary powers by the back door, but if so, we are doing so very openly because Parliament will decide whether to give the Assembly those powers on each issue. It is not the carte blanche provided for in part 4—which will give the Assembly total discretion in the areas for which it has Executive responsibility—to bring in legislation. That is completely different from part 3.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills

Does my hon. Friend agree that the logic of the Opposition's position is that even if we passed primary legislation to give the Assembly powers, as we did in the case of the fire authorities, for example, we would need to have a referendum to enable us to do so?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

That is the logical conclusion.

I have another example. In section 62 of the Education Act 2005, the Assembly was given framework powers over education inspection. I have checked the Hansard for the Committee stage of that Bill and there was not a peep from the Opposition. A power was given to the Assembly to carry out its own policy programme and develop its own regulations on the inspection of schools and educational establishments in Wales, and it went straight through on the nod.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

Does the hon. Gentleman think, therefore, that we were being supportive of the proposition that such a power should go to the Assembly and, therefore, supportive of the Assembly having those powers at that time?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I have listened to the hon. Member for Beaconsfield, but the hon. Lady does not appear to have done so. Powers were given straight to the Assembly to develop their own policies and legislation, and the Opposition accepted that. However, in this case, with powers to be given through the Assembly Measure and Order-in-Council process, they say that there should be a referendum. In 18 years in power, the Conservatives held not a single referendum. How serious are they on this issue?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If the logic of the Minister's argument is correct, there is no need for the legislation. If the Minister were correct, it would be possible, under the existing arrangements, for the Assembly to do what he wants it to be able to do. The Minister knows that that is not the case, so perhaps he would concentrate on why it is that the Government have had to latch on to the mechanism of the Order in Council to provide the enhanced functions. That might then help him to understand why part 3 represents a major shedding of power by this House, without referendum, to the Welsh Assembly, under the tutelage of the Secretary of State in its implementation. As a democrat and because I was elected to this House to represent people, that is what I object to.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

The hon. Gentleman cannot have read the White Paper. The main thrust behind the introduction of the part 3 powers is the delays and logjam that occur with the parliamentary process here. If the Assembly is to be totally dependent on primary legislation being passed here and then given framework powers for secondary legislation, it will have to wait a long time. It may be that there will be occasions when legislation will give the Assembly framework powers that it can convert into Assembly Measures, and I have quoted the Education Act 2005. However, the point of part 3 is to address the issue that was highlighted in the Richard report about the parliamentary legislative logjam that exists here. It prevents the Assembly from getting through the pieces of legislation that it wants.

I think that I have dealt with virtually all the points raised by the hon. Member for Beaconsfield. Clearly, I have not convinced him, but I did not expect to do so. However, I shall now turn to some of the points about draft legislation and scrutiny that were raised by my right hon. and hon. Friends. I notice that Lembit Öpik is no longer in his place.My right hon. Friend Mr. Murphy touched on the importance of pre-legislative scrutiny in this process. The problem that we face is that the Bill cannot fetter the procedures of the House. We cannot dictate to the House the procedures for pre-legislative scrutiny. I agree with everything that my right hon. Friend and my hon. Friend Ian Lucas said about the importance of pre-legislative scrutiny. The Welsh Affairs Select Committee has done an excellent job in considering pieces of primary legislation and has changed them.

It is important for all Members to understand the process that will be involved. We envisage that, with the agreement of the House and the Select Committee, a preliminary draft order will be produced by the Assembly after it has been through whatever processes it wants to go through, and that may include considering a report produced by one of its Committees. The Secretary of State would then ask the House and, in particular, the Select Committee to scrutinise that draft legislation or Order in Council.

I hope that my right hon. Friend has seen the two documents that I have made available to the House, the first of which was a draft document relating to the Bill for a public services ombudsman. Instead of being a piece of primary legislation, the document shows how it would have followed the Order in Council and Welsh Assembly Measure system. The second relates to the Transport (Wales) Bill, which is completing its stages through the House. That would also have gone through the Order in Council process. Both documents clearly show the opportunities that exist for pre-legislative scrutiny.

Photo of Alan Williams Alan Williams Labour, Swansea West

May I reassure the Minister that the Liaison Committee and its member Committees are constantly asking for more draft Bills? If the Wales Office produces them, I assure it that they will be considered. However, that does not avoid the fact that after such Bills have been looked at, discussed in depth and amendments to them recommended, it is not the House that will decide whether the amendments will be accepted—it will be the Secretary of State.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

Let me describe the process, and perhaps that will help my right hon. Friend.

Once the pre-legislative scrutiny has been undertaken, any suggested changes would return to the Assembly in a report produced by the Welsh Affairs Committee, or jointly by an Assembly Committee. In fact, the Assembly Committee may separately be considering the same proposal. It would then be for the Assembly possibly to reconsider the form of the draft Order in Council, taking into account the pre-legislative scrutiny. The order would then return to the Secretary of State, who would lay it before the House, and it would be debated. If members of the Welsh Affairs Committee or anybody else who had been involved in the pre-legislative scrutiny felt that their reasonable comments and suggested amendments had not been taken on board, it is possible that they could persuade their colleagues in the House that the order should not go through.

Photo of Alan Williams Alan Williams Labour, Swansea West

We would have to do that in the limited time of one and a half hours allowed to debate the order placed before the House. Virtually no one would be able to take part.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

That is why it is so important that we have the pre-legislative scrutiny.

I respond to my right hon. Friend the Member for Torfaen by pointing out that these are important issues and we recognise the importance of getting them right. We will look at them and see whether there is any way to ensure that the Orders in Council receive full pre-legislative scrutiny and that there is no question—either now or in the future—that that could be circumvented in any way. I can give him that assurance.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

How does the Minister see clause 94(7)(b) and subsection (8) fitting into the process? It appears that the Secretary of State can just say no and give a few reasons for saying no. The First Minister then just has to announce that to the Assembly. How does that fit in with what the Minister said in reply to the first intervention from the Father of the House? There appears to be an incongruity here.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

Knowing my right hon. Friend's position, I think that he would be more than happy if the Secretary of State used the powers in clause 94. However, the Secretary of State will have to put in writing his reasons for refusal to lay an order, and if those reasons are unreasonable they will clearly be subject to judicial review. I think that that responds to that point.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills

I am most grateful for the reassurances that my hon. Friend the Minister has given about the importance of pre-legislative scrutiny. However, my concern is that there has been no reference whatever to a draft order being placed before Parliament before the Assembly considers it. Would it be possible for the legislation to provide for draft orders to be placed before this House as well as before the Assembly?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I do not wish to confuse my hon. Friend, but we need to be clear about what we are calling draft orders. Preliminary draft orders—the first draft, in effect—would undergo pre-legislative scrutiny in the same way as draft Bills, such as the Transport (Wales) Bill. We would have to keep calling the Measure a draft Order in Council until it was agreed to and thus became an Order in Council. I assure my hon. Friend that the preliminary drafts will come before the House for pre-legislative scrutiny every time.

Photo of Dai Havard Dai Havard Labour, Merthyr Tydfil and Rhymney 6:00 pm, 23rd January 2006

My hon. Friend explained that there would be an iterative process through which we would end up with an Order in Council before Parliament. At that point, we would presumably discuss it as parliamentarians, so would there be a whipped vote or a free vote?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I speak as a former member of the Whips Office. The Secretary of State would be laying a Government order, so I would expect my hon. Friends to follow the Secretary of State's suggestion of supporting it.

We have had a long exchange on the detail of amendment No. 161. The hon. Member for Beaconsfield raised several points when he spoke to amendment No. 162, so it is worth putting our thinking on record. Amendment No. 162 would remove the protection afforded to an Assembly Measure against legal challenge on the ground of a procedural invalidity in the proceedings of the Assembly that led to its enactment. The Bill provides for the legal separation of the Assembly Government from the Assembly, as is the case here, in the Northern Ireland Assembly and in the Scottish Parliament.

The Assembly should not be impeded in its primary function of making legislation by legal challenges, some of which could be wholly spurious and based on a technical invalidity during proceedings. In respect of Parliament, that principle is enshrined in article 9 of the Bill of Rights, which provides that freedom of speech, debates and proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament. It is also reflected in respect of the Scottish Parliament in section 28(5) of the Scotland Act 1998, and in respect of the Northern Ireland Assembly in section 5(5) of the Northern Ireland Act 1998. Clause 92(3) and the equivalent Measure in clause 106(3), which relates to Acts of the Assembly, will put the Assembly on the same footing as Parliament, the Northern Ireland Assembly and the Scottish Parliament.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

If the principle is as obvious as the Minister suggests, why was it not thought necessary when the original Government of Wales Act 1998 was passed? If such a provision is now thought necessary, what has changed? Why was it originally thought that the position should be different from that of Scotland and Northern Ireland, but now thought obvious that the situation should be the same?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

Because the Bill gives the Assembly the right to enact Assembly Measures. That is the difference between where we were at the time of the 1998 Act and where we are today.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Will the Minister thus tell me what I should say to my constituents who are not protected in such a way and have no such opportunity to deal with English matters with the same clarity that he is allowing for the Welsh?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

That is a slur on not only the right hon. Gentleman, but all English Members of Parliament. Of course they have exactly the same powers and defences regarding legislation. Now that we are giving the Welsh Assembly the power to make Assembly Measures, it requires the same protection as Parliament, the Northern Ireland Assembly and the Scottish Parliament.

We have had a good run around all the issues. Obviously, we are still trying to persuade the new Conservative party—if I may call it that, given its position on devolution—to accept that they have to let go a bit. I hate to use this term, but perhaps it is still a little anally retentive. It is time to move forward and realise that the enhanced legislative powers will be good for the Assembly and for Wales, and certainly do not require a referendum.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I hope that my participation in the previous Government of Wales Bill and, indeed, the Bill that became the Scotland Act 1998, has made me pragmatic about the constitution of our country. Our constitution is, of course, unwritten, and it has great flexibility. Mr. Murphy made the point that constitutions evolve, which I acknowledge. I accept the Minister's argument that the separation of primary and secondary legislation has a certain flexibility. In recent years, we have seen ample signs that the Executive have taken to addressing matters through secondary legislation that the House would have thought of as requiring primary legislation in the past. I also acknowledge that, as the right hon. Member for Torfaen said on Second Reading, the important aspect of scrutiny is its effect on the delivery of good governance and legislation to recipients. I thus hope that it is not the case that sacred notions of parliamentary propriety or historical ways of conducting business are simply embedded in my mind. I learned that when we considered both Bills in 1998, which I enjoyed participating in very much.

The Minister's answers to the questions of my right hon. Friend Mr. Gummer about amendment No. 162 were telling. The reason why the protection that we have under the Bill of Rights was not given to the Welsh Assembly in 1998 was because it was considered that it was being set up not as a parliamentary body, but as a local government body. At the time at which we debated the matter, I highlighted my worry that, whereas the solution that we had adopted for Scotland was quite neat—one might have disagreed with it, but shedding a whole raft of areas of parliamentary responsibility to the Scottish Parliament had a neatness about it—the solution for Wales was fraught with problems because of the difficulty of separating primary and secondary legislative functions. That is embedded in my mind from all those years ago.

Today's debate has highlighted the problem. Despite all the explanations that the Minister offered, we cannot escape the fact that the reason why the Government thought it necessary to give immunity to the Welsh Assembly was precisely because they intended to transfer primary legislative functions to it under part 3. I enjoy debating with the Minister—or any other hon. Member, for that matter—but when we are discussing constitutional measures, it is important that, while arguing our cases, we are honest with the electorate about what we are doing. The Government's tendency to say that changes do not really matter because they are minor incremental moves, or gentle tweaks to the system about which we should not worry, is quite wrong. Even by the standards of the present blurred distinctions between primary and secondary legislation, the Government are presenting a fundamental, major constitutional change.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does my hon. Friend agree that it then becomes increasingly difficult to explain to English constituents the fact that some parts of the United Kingdom have powers from which other parts are excluded, yet the representatives of those parts in this House still play their part in making decisions on the future of English constituencies?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend is right. That is a serious issue, which is likely to continue to grow. Indeed, it has become more serious in the past eight years since devolution and it will continue to be a subject of debate.

For the purposes of this debate, I shall concentrate on the impact of these measures on the people of Wales, for whom we have a major responsibility, and we will continue to have that responsibility even after part 3 is enacted. If part 4 were ever enacted, however, our responsibility would shift considerably.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills

Does the hon. Gentleman consider that the passage of the part 3 measures should mean that I, as a Member of Parliament from Wales, should have my power to participate in proceedings in this House reduced? Should part 3 mean that my votes here will count for less?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall avoid having a major constitutional debate with the hon. Gentleman, although that is a relevant and important topic. If part 4 were ever enacted, the argument about reducing the role of Welsh Members would become similar to that for reducing the role of Scottish Members. The same applies to a reduction in the number of Welsh MPs.

From the Government's point of view, the nice thing about part 3 is that it blurs all that and provides a mechanism by which Parliament sheds its law-making powers to a mixture of the Secretary of State and the Assembly, but in a way that preserves the notion that Parliament remains in complete control of Welsh matters.

I shall now bring my remarks to a close, because that is precisely why I tabled amendment No. 161 in the first place. Its merit is that it would ensure that Parliament scrutinised the end product of an Assembly Measure before it was enacted. If I may say so to the Minister, that reflects exactly the constitutional position for which he is trying to argue.

I found the Minister's arguments about my proposal being a kick in the face for the Assembly odd. Under part 3, the Assembly's powers would be enhanced. We gradually drew that out from the Minister. It took time to succeed, but finally we got an acknowledgment that these powers are different from the pre-existing powers. A final ratification procedure therefore seems to me fairly reasonable.

The Minister argued that that would interfere grossly with the way in which the Assembly carries out its functions and delay things. I find that an odd argument. What on earth is wrong with a one and a half hour debate in this House to enable the House to satisfy itself that the Assembly has operated in compliance with the remit originally given to it, and that the Measure does not offend constitutional propriety or cause difficulties? All those are powers that we are to give to the Secretary of State, but apparently we do not want to keep them for ourselves.

The longer this debate has gone on, the more convinced I have become that my decision to table the amendment was correct. I listened carefully to the arguments of Lembit Öpik, who suggested that we would be taking back something from the old devolution settlement of 1998, but he will have heard what the Minister said, and I do not think that we are doing that. Even if there is an area of interface between the two—I fully acknowledge that constitutional issues can be blurred at the edges—I genuinely think that this is an improvement in the system.

After all, the Bill is about all sorts of ways of improving that system. I do not think that my proposal would diminish the Assembly's ability to do the detail, and it certainly would not reduce or interfere with the power that the Government propose to give the Assembly to do the detail, or with its existing powers to implement what was previously the Secretary of State's remit. My amendment would provide a way by which the House could continue to be involved.

I agree with Ian Lucas about the scrutiny issues. I am not sure what all the solutions are. I am open-minded on that subject. On its own, the proposal before us would not be a substitute for the pre-legislative scrutiny. These things have to go hand in hand, but to suggest that the idea behind amendment No. 161 is an insult to the Assembly or the people of Wales is far off the mark.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs 6:15 pm, 23rd January 2006

It sounds as if the hon. Gentleman is saying that he wants to institute a system that would give the Assembly the latitude to make the tactical decisions within subject areas, but that he would like to maintain the strategic decision making in this Parliament, here in London. That is a legitimate position to hold, but he will understand that I have a different view, because I think it right to devolve the strategic decisions as well. Nevertheless, I understand his position, even if there is a genuine difference of view.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am most grateful to the hon. Gentleman. I do not want to go over the point again, but if we want to devolve strategic decision making to the Assembly, part 4 would do exactly that. One may disagree about whether that would be a good or a bad thing, but part 4 has an internal coherence that part 3 does not possess.

Part 3 is about a troika—one individual and two institutions. There is the Secretary of State with his Executive functions, the Welsh Assembly and this Parliament. It is for us to bring about a system that, if this is what the House wants, will enable us to give the necessary powers to the Assembly to deal with the detail while still—this is what the Government say that they want to achieve—leaving us with residual responsibility. What could be a better expression of that residual responsibility than our voting, after a one and a half hour debate, on the ratification of the Assembly Measure when it comes back to us?

The alternative is to tolerate a situation in which we give a power, yet once we have lost it, problems can arise, and the criticism can come back to us. I have great reservations about part 3, but if it is to be made to work, the amendment would be an improvement, so I commend it to the House.

Question put, That the amendment be made:—

The Committee divided: Ayes 160, Noes 314.

Division number 135 Orders of the Day — Government of Wales Bill — [1st Allotted Day] — Clause 92 — Assembly measures

Aye: 160 MPs

No: 314 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I beg to move amendment No. 48, in page 50, line 9, at end insert—

'(2A) No Assembly Measure may be introduced unless a majority of voters in a referendum vote in favour of Assembly Measure provisions coming into force.'.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following: New clause 6—Referendum about commencement of Assembly Measure provisions—

'(1) Her Majesty may by Order in Council cause a referendum to be held throughout Wales about whether the Assembly Measure provisions should come into force.

(2) If the majority of voters in a referendum held by virtue of subsection (1) vote in favour of the Assembly Measure provisions coming into force, the Assembly Measure provisions are to come into force in accordance with section 92.

(3) But if they do not, that does not prevent the making of a subsequent Order in Council under subsection (1).

(4) No recommendation is to be made to Her Majesty in Council to make an Order in Council under subsection (1) unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament and the Assembly.

(5) But subsection (4) is not satisfied unless the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats.

(6) A draft of a statutory instrument containing an Order in Council under subsection (1) may not be laid before either House of Parliament, or the Assembly, until the Secretary of State has undertaken such consultation as the Secretary of State considers appropriate.

(7) For further provision about referendums held by virtue of subsection (1) see Schedule 6.

(8) In this Act, "the Assembly Measure provisions" means sections 92 to 101.'.

New clause 19—Referendum about commencement of Assembly Measure provisions (No. 2)—

'(1) Her Majesty may by Order in Council cause a referendum to be held throughout Wales about whether the Assembly Measure provisions should come into force.

(2) If the majority of voters in a referendum held by virtue of subsection (1) vote in favour of the Assembly Measure provisions coming into force, the Assembly Measure provisions are to come into force in accordance with section 92.

(3) But if they do not, no subsequent Order in Council under subsection (1) may be made until eight years have elapsed after the referendum held by virtue of the first such Order in Council.

(4) If the majority of voters in a second referendum held by virtue of subsection (1) do not vote in favour of the Assembly Measure provisions coming into force, no further Order in Council under subsection (1) may be made.

(5) No recommendation is to be made to Her Majesty in Council to make an Order in Council under subsection (1) unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament and the Assembly.

(6) But subsection (5) is not satisfied unless the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats.

(7) A draft of a statutory instrument containing an Order in Council under subsection (1) may not be laid before either House of Parliament, or the Assembly, until the Secretary of State has undertaken such consultation as the Secretary of State considers appropriate.

(8) For further provision about referendums held by virtue of subsection (1) see Schedule 6.

(9) In this Act, "the Assembly Measure provisions" means sections 92 to 101.'.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I hope that in the course of our consideration of this group of amendments we will not hear about Ministers or Government Members engaging in debate by press release. You might not know, Sir Nicholas, that the Government issued a press release and the article that resulted from it was headed, "Hain accuses Tories of a bid to 'castrate' Assembly". I have never been accused of trying to castrate anything, let alone an Assembly. I know that the Government are hidebound—they have got themselves into a Procrustean bed that they cannot get out of—but they will have to get used to the idea that the Opposition are trying hard to improve the position of the people of Wales. Through this group of amendments, we are trying to ensure that the people of Wales have a vote and a say in the matters that are before the Committee.

Clause 92 is the foundation stone of the new legislative architecture being constructed by the Government and it was debated in some detail in relation to the last group of amendments. It is the clause that confers on the Assembly the power to make a type of legislation in relation to Wales known as an Assembly Measure. In the previous debate, the Minister said that the clause provided "enhanced legislative powers". That means that the status quo will not remain and that the Assembly will have enhanced capabilities, over and above those that were originally envisaged. According to the explanatory notes,

"Measures will . . . have the same effect as an Act of Parliament."

The notes continue:

"they may modify the effect of legislation made or enacted before or after this Bill is enacted, or make entirely new provision."

Under the clause, even if the process of enacting an Assembly Measure is invalid or irregular, that will not stop the Measure becoming law. That is set out in subsection (3).

Our amendments are designed to give the people of Wales a voice before that new, complex and—dare I suggest—cunning legislative device comes into force. Let me make it clear that we are not seeking a referendum because we believe that it would fail, or that it would succeed. We are keen to ensure that the Assembly develops in the way that the people of Wales want it to develop. Their wants and needs should be paramount.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

That is a crucial point. The National Assembly was set up after a referendum—albeit one whose result was extremely close—and any substantive changes to the way in which the Assembly operates should also be put to the people of Wales.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

My hon. Friend makes an excellent point. There is no doubt that if the people of Wales think that they are getting one thing when they are, in fact, getting another, it would be incorrect not to consult them or give them the opportunity to have a say on that specific matter. [Interruption.] I am being told by Kevin Brennan that they had a general election. There is no doubt that these matters were raised during the general election, but they were not raised in the detail that we now have before us in the Bill. It is only right that we have the opportunity to scrutinise the details, and if the Opposition genuinely conclude that the status quo has not been maintained and the caravan has moved on, it is only right that the people of Wales be taken along with it.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does my hon. Friend agree that that is especially true for those of us who are opposed to referendums in principle? If one has had a referendum on a particular constitutional base, one is then placed in great difficulty if the same mechanism is not used to ask when one wants to make a change. The Government are pretending not to be making a change in order to avoid that mechanism. Even those of us who hate referendums have to accept that the process is a continuation of one that, unfortunately, the Government forced through previously.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I thank my right hon. Friend for that generous intervention, not least because I know that, in normal circumstances and on most matters, his face is set firmly against referendums. However, if a referendum has been offered initially, it is dishonest to take the process forward without going back to consult the people. I concede that point.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills

In that case, why is the hon. Lady not calling for a referendum on the abolition of the corporate status of the Assembly?

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I do not believe that that is a constitutional issue. Progress on the separation of powers is based on a consensus across the board. It is something to which the Secretary of State and all parties represented in the House acceded, particularly on Second Reading. But by all means, if the hon. Gentleman would like a referendum on that, perhaps he will persuade those on the Government Front Bench to offer it. I confine myself to changes in the legislative process whereby primary legislative powers are no longer to be reserved to the House, but will be passed down to the Assembly. The people of Wales ought to be given a voice. I should have thought that the hon. Gentleman supported me, as I am supporting the people of Wales.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills

I will take no lectures from the hon. Lady concerning the people of Wales, some of whom I represent. I should have thought that the hon. Lady, who has been in the House far longer than I, understood that the abolition of the corporate status of the Assembly is indeed a constitutional amendment. I am not calling for a referendum on the proposal relating to Assembly Measures; she is. The logic of her position is that she should call for a referendum on the abolition of corporate status.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

The hon. Gentleman is trying to take us down a road that I do not wish to follow. I agree that the Assembly has not been functioning correctly. That is partly due to the confusion over the difference between the Welsh Assembly Government and the Welsh Assembly itself. If there is a consensus across the board, I see no reason to call a referendum. However, on legislative matters, there is a reason to call a referendum. I hope the hon. Gentleman will follow the argument as I present it, as he may wish to give his constituents the voice that I seek to offer them.

Photo of David Jones David Jones Conservative, Clwyd West

Is not the essential point that the Government propose the transfer of primary powers from this place to another legislative body? Is it not the case that a convention has emerged over the years that where power is ceded by Parliament to another body, be it the European Union, the Scottish Parliament or the Welsh Assembly, the people are consulted in a referendum? That is being denied them on this occasion by the Government.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

The point stands alone. I invite Labour Members who want the people of Wales to be given a voice in the process to join us in the Lobby tonight and support a referendum.

Photo of Mark Tami Mark Tami PPS (Rt Hon Dawn Primarolo, Paymaster General), HM Treasury

If the hon. Lady and her party are so fond of referendums, can she tell me how many referendums the Conservatives have given the British people?

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

This is not a trivia quiz; it is a serious proposition. If this is the first referendum that we give the people in Wales, the hon. Gentleman ought to welcome it. His Government believed in offering referendums when it suited them, but when it does not suit them, they do not permit the people to have a voice.

Let us deal with the principle of a referendum. The Government are clearly not averse to referendums. The Bill allows for a referendum prior to full legislative powers being devolved to the Assembly. I hope Labour Members agree that there is no objection in principle to a referendum. I assume they have no objection and will support the referendum offered in part 4.

On Second Reading the Secretary of State gave the impression that he thought the question as to whether to grant interim powers by Orders in Council was too complex to be put to the people in Wales. If that is the case, it is appalling that the Government do not consider the electorate sufficiently intelligent to understand what they are proposing for Wales, and that they should not be consulted. A referendum at this point would ensure that resources were used to promulgate the work of the Assembly. It is the Secretary of State who is afraid that any referendum at this stage would be lost. I hate to remind the Minister that the Secretary of State said:

"Rhodri and I and Welsh Labour are not in the business of calling referendums we are going to lose".

His fear is robbing the people of Wales of both information and choice.

There we have it; referendums are all right in principle. The Labour Government will hold a referendum, but only if it suits them, and certainly not a referendum that may suit the people of Wales.

Photo of Peter Bone Peter Bone Conservative, Wellingborough 6:45 pm, 23rd January 2006

Is that not the nub of the argument? The Government have learned from their experience with referendums of the regions that they can lose them. Is that why they do not trust the people of Wales?

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

Ah, yes; once bitten, twice shy. I thank my hon. Friend for reminding the House of the north-east referendum. When the Labour Government think they will win, they hold a referendum. If they think they may not win, or there is a chance that another view will be expressed, they have no intention of allowing that device to be used by the people.

The next point that we need to consider is whether the proposal is for a fundamental change. Throughout the debate, the Secretary of State and the Minister have tried to talk up the Assembly Measures as a more radical devolution, or to talk down the Measures as merely a device of convenience to overcome legislative roadblocks. The proposal is a handling plan to appease the opposing factions in the Labour party. They should not try to pull the wool over our eyes in order to sort out their internal differences.

When giving evidence to the Welsh Affairs Committee on 10 December the Secretary of State said that the device enabled the Government to

"get on with the job in the meantime and give substantial powers . . . to the Assembly through Orders in Council between 2007 and 2011".

On Second Reading the Father of the House, Mr. Williams, who sadly is not in his place, raised concerns. He said that he believed it was technically possible under these provisions for the full legislative objective to be achieved without a referendum. He raised further concerns about what he described as a "Trojan horse". He said that

"if just one non-controversial, innocuous order is passed, a policy area is opened. Once that happens, the Assembly is free to introduce new measures with different policy objectives, without having to go for a further order. It is a form of creeping devolution."—[Hansard, 9 January 2006; Vol. 441, c. 53.]

I hope the Minister will take seriously the words of the Father of the House.

Last week in the debate in the Assembly the First Minister, who has been alerted to the possibility of having primary legislative powers in all but name and without the inconvenience of a referendum, said that every party in Wales would be able to start the process of preparing their manifestos on the basis of the extension of the Assembly's law-making powers. He went on to boast that the third Assembly would have far greater law-making powers than the first and second, which meant more meat on the bones, more choice for the people and more power for the people of Wales.

Let us be clear. There will not be more power for the people of Wales. There will be more power for the Labour Executive in Wales, whether the people want them to have it or not. The First Minister has no plans to ask them, either.

The provisions extend significantly the powers of the Assembly and the people should be consulted first, not least as this is not what they voted for in the last referendum which, as everybody recalls, was won by a whisker. What did the people of Wales vote for? We are all more than aware of their lukewarm endorsement of the original Assembly provisions. However, I am more concerned with what the people of Wales think they have voted for, rather than reliving the referendum.

I have examined the policy papers produced in August 1997. They make extremely interesting reading. In policy paper 3 the Government told the people that the Assembly would consider how new laws from the Westminster Parliament would be implemented in Wales, and that the Assembly would fill in the details of those laws by secondary legislation to reflect the needs in Wales. The policy paper answers those questions by saying that primary legislation will be made in Westminster, and that it effectively will be interpreted in Wales by the Assembly. So the people of Wales were led to believe that they were voting only for secondary legislation.

More importantly, in answer to a question in policy paper 6, the Government answered the question as to why the referendum would not offer a wide range of options such as full independence by saying that Ministers believed that those options had been rejected by the voters in the general election. They said that the purpose of the referendum was to seek endorsement of the Government's "detailed plans" that voters had accepted in principle. In other words, the last referendum was specifically on the detailed plans that were enacted in the Government of Wales Act 1998, and not on the general outline. The people were certainly neither consulted on, nor led to believe that they would get, the system that is before us today.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Is it not worse than that? Is it not true that when Labour politicians saw how close the result of the referendum was likely to be, they went round the Principality telling people that they need not be frightened, because the proposals were a step not towards a Welsh Parliament but towards a kind of local government in which Wales would be able properly to examine the details rather than the principles? If they had not done that, they would have lost even that referendum.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I have always had the impression, from talking to people who lived through that, that the message from the Government at the time was the one that they thought their audience wanted to hear. On one street corner, they played the proposals down, telling people that they would stay firmly part of the United Kingdom, that primary legislation would remain with Parliament, and that the Assembly would deal only with secondary legislation, while on the next street corner, they were selling the measures as the final road to independence.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I shared many a platform with people from the Labour party and the Liberal Democrats at that time, and I did not hear any of that kind of thing being said. While the hon. Lady is talking about putting this question to the people of Wales, may I ask her to comment on something that her leader in the Welsh Assembly said recently? He said:

"I think we have at the moment an insecure settlement which cannot persist. We either need to move forward to legislative powers or abolish the assembly and I think that's not an option. We've got to see how we can move things forward and that's got to mean legislative powers."

Another senior member of her party in the Assembly, Glyn Davies, said on 15 June 2005 that he agreed with the

"objective of a law-making Assembly as the only way to create true accountability for the Government in the National Assembly."

Neither of those hon. Gentlemen said anything about involving the people in such a decision.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

These are obviously selective quotes from the hon. Gentleman. However, neither of those statements is incompatible with our view that, if we are to move forward in that fashion, we should hold a referendum. I would have hoped that the hon. Gentleman appreciated the spirit of our amendment, which would allow the people of Wales to have a voice. Too often, they have been ignored. The amendment would provide the opportunity for them to say what they would like and whether they approved of the detailed plans in the Bill. If the people of Wales were capable of being consulted on the detailed proposals before, why not ask them again this time, when the mechanisms for legislation and the outcomes are so patently perceived to be changing in such a complex and opaque fashion?

Another reason that is given for the introduction of Assembly Measures is the lack of parliamentary time and the alleged frustrations of the Welsh Assembly Ministers with their failure to secure legislative time. When I spoke to the First Minister a few weeks ago, the only real example that he cited was the failure to get legislation considered that would make St. David's day a bank holiday. In other words, it was a proposal that he had put forward and that the Government had sought to block by ignoring it.

There is no real evidence of a vast backlog of legislation. These measures are therefore an indictment of the way in which the Secretary of State fights his corner in Cabinet for legislative time to be given to Wales. If that is the case, will a full list of every proposal that has been rejected by the Labour Government to date be placed before the House? I invite the Minister to place in the Library of both Houses a list of the requests that the Secretary of State and the Department have received from the Assembly that they have failed to satisfy. If we had that list before us, we would be better able to understand the position relating to the legislative timetable and the blockage to which everyone is alluding.

It is interesting that, while we are arguing about this in Westminster, the First Minister is arguing a different point in the Welsh Assembly. Last week, he stated that a "Westminster Department or two" would be able to get a Bill that they would not be able to get at the moment because of the lack of time in the parliamentary year. It is interesting that the Assembly should be pleading the case of Government Departments here, but I find it hard to believe that the parliamentary timetable is really so overcrowded, especially as the Government have now pulled their Northern Ireland on-the-runs legislation and appear to have pulled their legislation on the National Offender Management Service. They are also devoting six days on the Floor of the House to this Bill. I believe that there would have been plenty of time to accommodate not only the hard-done-by Westminster Departments so fondly defended by the First Minister but any outstanding requests from the Assembly.

However, the very fact that detailed scrutiny is to pass to the Assembly highlights the variation between the Government's proposals and what the people of Wales have voted for. Such a change should receive their blessing or otherwise. Such a complicated process should not be put before the House when we could dispense with part 3 if we speeded up the process here and left in the Bill future legislative powers and the provision for the main referendum that has already been suggested. I believe that there is enough parliamentary time, and that this is really a question of business management. However, if this procedure is to be introduced, the people of Wales should have a voice in the matter.

Furthermore, the Minister should have consulted fully in this Parliament before the Bill goes through. In order to know what we would be putting to the people of Wales in a referendum, we should ensure that we have considered these proposals properly in this House and the other place. I was surprised to find that the proposals for the Assembly Measures had not been examined by the Procedure Committee in this House. I wrote to its Chairman on 11 January to ask the Committee to examine the implications of the legislative proposals in the Bill, so that it could give its view on parliamentary scrutiny for the procedures in both Houses. Before any matter is put to the people of Wales in any referendum, they should know the views of this House on the procedures that are being promulgated.

On Second Reading, the Secretary of State gave the impression that these matters had been discussed with Lord Holme and Lord Dahrendorf, the Chairmen, respectively, of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee in another place, and that the Committees had been consulted. However, reading the letters from those Chairmen to the Secretary of State that have been placed in the Library of both Houses, it is obvious that neither the Committees nor the Chairmen had even seen the Bill, let alone had the opportunity to comment on it in any fashion. So perhaps the Minister could let us have sight of the response of the Secretary of State and tell us whether the Committees of this House and the other place will have the chance to examine these complex procedures, which were certainly not envisaged by the Richard commission. They would need to be examined to discover the full implications of what we would be putting to the people of Wales in a referendum. As Lord Richard suggested, as a very minimum, the Henry VIII powers ought to be considered, not least to see whether a more transparent and understandable method could be used than the tortuous route envisaged under the Order in Council mechanism.

The Conservative party is committed to giving the Assembly the chance to work well. I do not want to rehearse the argument that we should allow it to improve its current performance before loading more competences on to its Members. As the Richard commission has said, however, given the complexity of devolved powers, knowing what the Assembly can and cannot do is becoming less of a problem for those close to Government, but it remains a central issue of accountability for the people of Wales. Perhaps it would therefore be more sensible to divide the Executive from the Assembly and look for a period of stability rather than load on another piece of complex legislative architecture. Were the Minister to dispense with part 3, maintain the status quo and consider improving the way in which the Welsh Assembly works currently—as it was envisaged working—perhaps we would withdraw the amendment, as there would be no need to insist on a referendum of the people of Wales.

I want to prevent an open-ended opportunity for repeated referendums should the initial result not be in accordance with the Government's wishes. As we shall see later in our deliberation of the Bill, the Government have a tendency to leave the door wide open for repeated referendums, as they have done on part 4. That would not be healthy legislation, so one of my amendments would rule that out.

The Secretary of State and Labour Ministers constantly try to depict the Conservative party as negative towards devolution. As I have explained, we have proposed a referendum not because we would expect a negative reaction—I leave that to the Secretary of State and the First Minister—but simply to ensure that the Government are moving ahead at a speed that is acceptable to the people of Wales. Nor are we reluctant to see further powers given to the Assembly, which should only be done if it has the capability to exercise those powers and the full backing of the Welsh nation.

We have been disappointed by the progress made by the Assembly in its current tasks and would like to see it improve its performance before we spend more time saddling it with what must be one of the most complicated legislative procedures imaginable. If we burden the Assembly in such a fashion, we will risk its existence, because we will be rushing the process to keep pace with Labour's political timetable.

The people of Wales deserve better than that. They deserve a voice in the process. We should consult them before the event, not after. If the Minister has the guts to do it, I ask him to accept the amendments and give the people of Wales the vote that they deserve. He was happy enough to consult them previously, and he should be happy to do so again.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice) 7:00 pm, 23rd January 2006

I oppose the amendments, as I do not believe that the step change contained in part 3 justifies a referendum. Nevertheless, I agree that the referendum provided for in relation to part 4 is warranted, and I would be happy for that to be called. I agree with Mrs. Gillan, however, about the correspondence between Lord Dahrendorf and Lord Holme and the Secretary of State. I have also seen copies of letters placed in the Library dated 12 and 13 January, which are, to put it mildly, strident. Whatever has been going on, her call to see a copy of the Secretary of State's response is well made.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

Does the hon. Gentleman agree that it is alarming that we should be led to believe one thing on Second Reading when in fact the truth is completely different? In relation to the procedure under discussion, therefore, the Government have not come clean—passing on primary legislation is an enormous step forward, and the people of Wales should be consulted.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

The hon. Lady does not expect me to agree with the second part of her question, but I agree with her on the giving of information on Second Reading. During that debate, we also had a long discussion of little substance about dual candidature. I have yet to see any raison d'être for that provision. I have scoured the Library, and I cannot find mention of that arrangement anywhere but in relation to pre-revolution Ukraine—if that is the example we will be following, heaven help us. In due course, I hope that we can have a copy of the Secretary of State's response to their lordships.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I earnestly hope that it will not create difficulties between this place and the other place. Traditionally, the other place has had an unsympathetic view of the Order in Council procedure anyway, and I do not think that this matter will assist very much. We will wait to see the response, and I hope that it was placatory.

We will be unable to support the amendment if it is pressed to a vote, but, in one or two respects, I agree with the hon. Member for Chesham and Amersham.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I wonder whether it is reasonable to remind the House that those of us who represent English constituencies but come from Welsh stock also have a concern to promote the best possible government for Wales, and have no concern to remove the devolution arrangement, which is now part of our history. Whatever the arguments at the time might have been, that is the point that we have reached. The question that we are asked to discuss today is whether the change being made is sufficiently large to invalidate the decision made when the referendum was held, and to demand another referendum to ensure that the people of Wales wish to make such a step.

As the House will know, I am a disbeliever in referendums, which I consider to be a foreign and non-parliamentary activity. I would not have had a referendum in the first place—if the imperial Parliament, as it was once called, has decided to devolve its powers, that is a decision that the whole nation makes. That is not what happened, however. In this case, we established that a decision was reached as a result of a referendum. I have voted against referendums in every other circumstance, and I only think it possible to hold one in this case because of continuity with a previous decision that was made as a result of such a referendum.

Having said that, the Government are being peculiarly difficult in trying to pretend, on the one hand, that the changes are so minor that they do not require this reference to the people of Wales, and on the other, that they are too complicated for the people of Wales to make a decision. The Minister cannot have it both ways. The truth is that the changes are complicated because they are intended to hide the fact that they are so fundamental. The difficulty that the Minister must face is that I can find no parallel for this kind of legislative change outside of the desires of Napoleon III of France to avoid democracy. He used to so complicate the system that, at various points, people had a bit of a say, but, in the end, he gave himself the final say.

Were I voting in a referendum in Wales, therefore, I would want to ask a lot of questions about the role of the Secretary of State, about where, in the end, the power will lie, and about whether I wanted this change, which removed the power from the democratically elected Parliament of the United Kingdom but did not give it directly to a democratically elected Assembly in Wales but rather passed it through a series of sieves, one of which was the Secretary of State for Wales, as well as many other mechanisms.

It seems to me, therefore, that a referendum would give not just the people of Wales but the rest of us an opportunity to be quite sure what the Government are about. In a sense, the more complicated that is, the more important a referendum is. In a referendum, the details would have to be presented to the people of Wales in a form that would allow them reasonably to be expected to be able to make up their minds.

Photo of David Davies David Davies Conservative, Monmouth

Does my right hon. Friend believe that some of Napoleon's descendants are still hard at work complicating matters in another Parliament, in Brussels?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I am a great believer in the Parliament in Brussels. We often find ourselves very much on the side of the French, if we only recognised it. One of our problems is that we do not fight our corner properly in the European Union, because we are always semi-detached from it. Some of my colleagues make it more difficult for us to do that. I think that we ought to be right in there, part of the European Union, determined to make it work more and more effectively.

That is my view of the European Parliament. I also want the Welsh Assembly to work more effectively, but it will not work effectively if the proposals are so complex and the democratic deficit so obvious that the Minister is not prepared to put the proposals to a vote.

There is another problem with not having a referendum. I do not think that the Minister recognises the growing anger in the rest of the United Kingdom, particularly in England, about the fact that, increasingly, power is being removed from the House of Commons in relation to Wales and Scotland, but representatives of Wales and Scotland can make decisions on issues in parts of England where people have no right to say anything about Wales and Scotland. The referendum is crucial in that regard. At least my constituents must know that the people of Wales want this. That will give them a start. They may ask for a change in the way in which things work here, but I think it very bad in today's society to make changes in the constitution when there is uncertainty about whether they are wanted by those for whom they are being made. I believe that the deficit in trust that the Government have extended should concern us all, wherever we come from.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

Let me make two points. First, the people of Wales voted overwhelmingly at the last election in favour of three parties that promised a strengthened National Assembly akin to a Parliament. Secondly, the logic of the right hon. Gentleman's argument suggests that he should be pressing for an English Parliament, and good luck to him.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I agree with the hon. Gentleman so often that I do not want to fall out with him on this issue. I am sufficiently concerned about the unity of the United Kingdom to say that I would prefer the simpler course of enabling English Members of Parliament to vote on English matters, and not allowing those who do not represent English seats to vote on matters that are devolved to their areas. That would mean that in some cases Welsh Members could vote and in other cases they could not, and that in many cases Scottish Members could not vote at all. It strikes me as a reasonable solution. I do not want a separate Parliament, and I do not think that it would be suitable.

Let me remind the hon. Gentleman that the issue before us is the nature of the referendum. I think that if I took up his point about an English Parliament, Sir Michael, you would rightly call me to order. I find it odd that the hon. Gentleman, who has upheld the democratic way in a manner that is not always observed on the Labour Benches, does not want a referendum that would give his party an opportunity to explain why it would like to go further than the Government are going. I should have thought that it would also give him an opportunity to dissect the divisions in the Labour party that have resulted in this ridiculous proposal.

As we know perfectly well, notwithstanding all the ideas about Orders in Council and the Secretary of State for Wales and an hour and a half of discussion in the Select Committee, all this has come about purely because there are two diametrically opposed groups in the Labour party—those who want more powers for the Assembly, and those who want fewer powers for it. They have produced a result that appears to give more powers, but in such a complicated way that the Minister is not even prepared to try to explain it to his electorate. He clearly does not want the opportunity to do so, because it would be too difficult. He found it difficult enough to explain to the Committee, let alone the electorate.

I should have thought, however, that Mr. Llwyd and his party would be delighted to give this dying Government, in particular, an opportunity to push the proposal in the Principality. The fact that he does not want a referendum makes me worry considerably on his behalf. However, I urge the Committee to vote for the referendum not because I believe in referendums, but because I believe in keeping our word. In the last referendum, the word was that there would be a limited kind of devolution, different in nature from that provided for Scotland, and by a very small majority the proposal was passed. Whatever we hear sotto voce from the Minister about the referendum, I know perfectly well what went on. It was very simple. The Labour party snatched the last few votes by promising that it would not be all that different.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I will in a moment, although the hon. Gentleman has not been present much today.

That is how the Labour party won the referendum, and it strikes me as an instance of constitutional impropriety for the party, having won it on that basis, to slide through significant changes without asking again.

Photo of David Taylor David Taylor Labour, North West Leicestershire

The right hon. Gentleman seems to be suggesting that the arrangements put to the UK population, and indeed the Welsh population, in the original referendum are now being expanded with no further consultation or soundings. As recently as nine months ago, precisely what is in the Bill was contained in the UK-wide Labour manifesto and in the Welsh manifesto, and was put to the people accordingly.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

The hon. Gentleman was not present to hear his Minister explain to us that the issue was so complicated that it was not possible to put it in a referendum. For him to claim that it was not so complicated when it came to a general election is fatuous. He knows perfectly well that in a general election people vote on a range of matters. I do not accept that that grants any kind of mandate for change in a referendum matter.

The hon. Gentleman ought to have been present to note the care with which I said—[Interruption.] The hon. Gentleman should stop blowing his top in that amazing manner and listen.

I have said from the outset that I oppose referendums. I believe that Parliament ought to make the decisions. I believe that general elections are about giving mandates to parliamentarians to make decisions. The Government, however, do not believe that. The Government decided that there would be a referendum on this issue, and then said "We make changes that are so complicated that we cannot put them to the electorate in a referendum, but the electorate understood them enough to vote in a general election." It is impossible to uphold that argument.

The issue seems simple to us. We say "There was a referendum. Some of us did not want it, and do not like referendums. But when a referendum has taken place, it is dishonourable to turn to the people of Wales and say 'We are going to change the deal on which you vote without giving you an opportunity to understand clearly what we are doing, and to say whether you want it or not'." If the Secretary of State is not prepared to do that, I suggest that it is because he thinks he would lose—and if that is the reason, it is even more dishonourable than the first.

Photo of David Davies David Davies Conservative, Monmouth

I am grateful for the opportunity to pick up some of what was said by my right hon. Friend Mr. Gummer. I remind the Committee that the last referendum was indeed very narrowly won, and that only one in four people voted in favour of the Assembly. The referendum was narrowly won, despite the fact that the Government spent vast amounts of money putting out one document after another purporting to show what a utopia Wales would be if and when the referendum were won. To some extent, they also encouraged people to vote in favour of the Assembly by deliberately holding the referendum one week after the referendum in Scotland. They were not prepared to risk Wales voting on the same day. Most important, they made it clear all along that the people of Wales would be voting on a Welsh Assembly, not a Parliament. Despite all that, they could only get a very narrow result in favour of a Welsh Assembly—the difference was about 2,000 votes. To change the ground rules just seven years or so after that referendum would be unfair and cheat the people of Wales.

The reality is that we are embarking on a huge constitutional change that has not been thought through properly. No one has sat down in government and thought where they want the British constitution to be and how they will reach that state. As my right hon. Friend the Member for Suffolk, Coastal has pointed out, we still have the huge difficulty of providing an answer to the West Lothian question. I do not happen to know what the answer is. We cannot carry on with the status quo. I do not like the idea of more politicians sitting in an English Parliament. I tend to go along with my right hon. Friend's view that preventing Welsh and Scottish Members from voting is the answer, but the constitution is a fragile flower and if we are going to start tampering with it, we need to be clear what we are trying to achieve.

For example, there is, within one strand of the Conservative party, a perfectly logical argument for some sort of federal United Kingdom. I do not happen to share that argument but I can see the logic of it. However, if one is going to go down that line, one has to say so from the start and set out exactly how it will be achieved on an equitable basis.

We now have the prospect of yet more powers for the Welsh Assembly without any of those other questions being answered, and those questions will get bigger and bigger. That is why it is important that we have a referendum. It is only fair. Before the referendum took place, the former Secretary of State for Wales, Ron Davies, was asked in The Western Mail:

"Is a Welsh Assembly seen as an end in itself, or the first step towards a fully federal system in Britain".

He said:

"This question is based on a false antithesis. It is an end in itself".

If the Welsh Assembly were an end in itself back in 1998, it is completely wrong that we should come back just a few years later to discuss giving it significant further powers, without any prospect of a further referendum. Therefore, I support the amendment.

Photo of David Jones David Jones Conservative, Clwyd West

I also support the amendment wholeheartedly because it seeks to redress the fundamental dishonesty of the Bill, namely, that the powers that are to be transferred are so small and modest that they do not need to be put to a vote of the Welsh people. We have heard already that those powers can be used for the purpose of amending, extending or repealing Acts of Parliament. It is hard to think of powers that can be more extensive than those.

We have heard that in 1997 it was made abundantly clear to the people of Wales what they were voting for—an Assembly that would assume responsibility for exercising the powers that were at that stage exercised by the Secretary of State for Wales. They were secondary law-making powers. The Minister has conceded today that what is proposed is the extension of primary legislative competence to the Welsh Assembly, not as a block but, as was eloquently described by Mr. Williams on Second Reading, on a salami-slicing basis: a bit of power is given here, a bit more next year, then a bit more and a bit more. Ultimately, we end up with the whole salami transferred to the devolved body and none left with Parliament. That is by any standard a major transfer of power. The convention in this country is that such transfers of power are put to the vote of the people in a referendum.

It is abundantly clear why the Government do not want a vote. It is because, as the Secretary of State has already conceded, they know that they would lose the vote. It is simple. He said that the Labour party is not in the business of holding referendums that it knows it would lose. This is an illegitimate, dishonest device for getting around the problem of going to the people in a referendum.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does my hon. Friend agree that that gives the lie to the argument that the Labour party has a mandate because of the general election? If it were so sure of its mandate because of the general election, would it not be happy to have a referendum? Is it not the case, in fact, that it knows perfectly well that the people of Wales did not vote on the issue at all at the general election?

Photo of David Jones David Jones Conservative, Clwyd West

Not only did the people of Wales not vote on the issue, but the Labour party knows that, if it were to hold a referendum, it would lose it.

Lord Richard made the position clear in his evidence to the Welsh Affairs Committee. It is worth quoting. He hit the nail on the head:

"Let's be frank about it, it is a device to avoid having to come to Westminster and ask for primary powers to be formally devolved. It is quite an interesting device. It is quite a good device in that sense because what you end up with is a situation in which Cardiff ends up with greater powers, Westminster can say they have not devolved primary legislative powers, but depending on the way in which the Order in Council procedure is used, it could, in effect, be a concealed grant of almost a direct legislative competence down to Cardiff."

That is exactly what is proposed by the Government. They are behaving in the most dishonest fashion. I, as a Welsh Member, sitting for a Welsh constituency, feel angry that they will not give the people of Wales the right to vote in a referendum. If the Government are so convinced that what they are proposing is for the good of the people of Wales, let them ask the people of Wales. Otherwise, let them withdraw their proposals.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I think that everyone has got it off their chest now—this artificial indignation, saying that we have something to hide, are misleading the people of Wales and are dishonest. It may be helpful to Conservative Members to read out from the public document that was the UK Labour party's manifesto and the manifesto that we fought the election under in Wales. The UK manifesto says:

"In Wales we will develop democratic devolution by creating a stronger Assembly with enhanced legislative powers and a reformed structure and electoral system to make the exercise of Assembly responsibilities clearer and more accountable to the public."

The Welsh manifesto said:

"In a third term we will legislate for a stronger Assembly with enhanced legislative powers. We will improve the accountability of Ministers".

He has now left his place, but as Mr. Llwyd said, the Labour party fought on that manifesto, which was open with the people of Wales that we would give them enhanced legislative powers. I know that Plaid Cymru went further, as did the Liberal Democrats. In Wales, overwhelmingly, those parties that won were looking to give the Assembly more legislative powers. For Conservative Members to claim that we have been trying to slip the proposal through and hide it is totally unacceptable and contrary to the facts. The Labour party had a special conference in September 2004, some six months before the general election, in which we clearly debated the issue and formulated the policy on which that manifesto commitment was based. We have not been trying to slip something through, as was confirmed by the hon. Member for Meirionnydd Nant Conwy, to whom I am grateful. Conservative Members have failed to make the case that the proposal represents such a substantive change from the position in the 1997 referendum, and the case that was put then, that a second referendum is justified.

At all stages, Parliament will be able to grant powers to the Assembly that are very confined. That means that the change is not huge—unlike the major constitutional change that followed the 1997 election, when the 60 Members of the Assembly were elected. They were given Executive powers and the ability to deal with secondary legislation that previously had been handled by this place.

Mr. Gummer said that such significant changes—he did not say how they were significant—warranted a referendum. However, part 4 of the Bill states that there will be a referendum if there is a call to move to full primary powers. We are not hiding that, or trying to run away from holding a referendum, as we will hold referendums when they are warranted. I was amazed to hear the right hon. Gentleman ask why, if we were so confident of our manifesto commitment, we were reluctant to put it to a referendum. Our manifesto contained many pledges to the people of Wales and of England, so is it being suggested that all those commitments should be subject to the referendum process? That would be a nonsense. The people of Wales and the rest of the UK gave this Government a mandate to implement this specific manifesto commitment, and that is what we intend to do.

Photo of David Jones David Jones Conservative, Clwyd West 7:30 pm, 23rd January 2006

Is the Minister suggesting that it was proper to offer the people of Wales a referendum on the devolution of secondary powers, but not to do so when primary powers are being devolved, albeit on a piecemeal basis?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

That is exactly the point—we are devolving primary powers on a case-by-case basis. In each case, Parliament will decide whether it agrees that a measure should be sent down for the Assembly to develop its Assembly Measures.

Mrs Gillan referred to the comment made on Second Reading by my right hon. Friend Mr. Williams that this was a salami-slicing process. Schedule 5 sets out the process by which matters that can be legislated on are identified, so if my right hon. Friend is right, the salami is an awfully long one. Some would say that the Bill goes the whole hog, but if that is true the hog comes rasher by rasher. The Opposition seem to fear primary powers being devolved without a referendum, but that process will take many years, during which time I believe that a referendum is bound to be held.

Photo of Alan Williams Alan Williams Labour, Swansea West

On Second Reading, I was trying to make the point that the Government would continue the process of salami-slicing even if a referendum said no.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

That is true, but it will happen on a case-by-case basis. The documents placed by the Government in the Library give a clear and focused definition of the powers that each Order in Council would confer.

Photo of David Davies David Davies Conservative, Monmouth

I shall twist the Minister's metaphor a little further. He has talked about salami slices and rashers, but are not the complicated constitutional measures in the Bill more of a dog's breakfast than a cooked breakfast? Few people will understand it.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

My hon. Friend is right to say that the hon. Gentleman made a bit of a hash of his question, but I do not think that the proposal is that complicated. It is certainly more transparent than the current process. The hon. Member for Chesham and Amersham asked how many pieces of legislation the Assembly had asked for. I shall not deal with every request since 1999, but at present there are three proposals for Bills that it would like to have on the statute book.

In this Session, the Government are dealing with this Bill and two others. In addition, there have been requests for Bills on tourism and accommodation registration, housing, and local government community councils. There is no way that those Bills could be fitted into the legislative programme for this Session, as they would have to compete with Bills coming from all the Departments in Whitehall. The main purpose of these proposals is to ensure that the Assembly can get the legislation that it needs in a reasonable time and without encountering the logjam that exists as a result of our processes in this Parliament.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

The three pieces of legislation to which the Minister referred could easily be dealt with in less than the time being devoted on the Floor of the House to this Bill. However, I hope that the Minister will give his opinion on what Lord Richard told the Welsh Affairs Committee. He said:

"Let's be frank about it, it is a device to avoid having to come to Westminster and ask for primary powers to be formally devolved. It is quite an interesting device. It is quite a good device in that sense because what you end up with is a situation in which Cardiff ends up with greater powers, Westminster can say they have not devolved primary legislative powers, but depending on the way in which the Order in Council procedure is used, it could, in effect, be a concealed grant of almost a direct legislative competence down to Cardiff."

Is Lord Richard absolutely wrong, or is his experience coming to the fore? Is he giving us the real view of a procedure about which we believe that the people of Wales should have their say?

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

I disagree with Lord Richard on his last point. The Bill is extremely transparent and conceals nothing. There will be pre-legislative scrutiny of all the relevant Orders in Council, the Assembly will use its own procedures to give proper scrutiny to Assembly Measures, and this House and the House of Lords will be able to decide whether the powers defined in the Order in Council should be given to the Assembly.That is a much more transparent system than what we have now. Under the present system, the Assembly can make a request for primary legislation, but there is no real discussion about why that legislation gets delayed or is prevented from reaching the statute book.

On the previous group of amendments, we debated at some length how the proposed powers will work and the degree of change that they represent. The Government argue that Parliament will retain control of the process by which power is given to the Assembly to legislate in clearly defined areas, so the Bill does not represent a change that is so substantial and significant that it warrants a referendum. Moreover, I challenge Opposition Members with Welsh constituencies to say how many people have gone to their weekly surgeries—or written to them, or phoned their offices—to demand a referendum on the Orders in Council. The fact is that nobody has expressed any concern about a referendum—except members of the Conservative party. I understand that Nick Bourne, who leads the Conservatives in the Assembly, has gone on record as saying that there are divisions within the party on this issue. One good reason for having a referendum is to resolve that issue within the Conservative party.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

Nick Bourne went on to say that there are also divisions in the Labour party on this issue, as evidenced by voting on the Welsh Affairs Committee report, so the Minister should not be quite so keen to attack; rather, he should address the divisions in his own party. He asks how many people have asked for a referendum, but how many have been excitedly battering down his door and asking for this convoluted Orders-in-Council process? Where has the demand come from? If he can point to it, I should be delighted to read the references in the Libraries of both Houses. I do not believe that anybody has been demanding this process, except for the Labour Government.

Photo of Nick Ainger Nick Ainger Parliamentary Under-Secretary, Office of the Secretary of State for Wales

As I pointed out earlier, the three main political parties in Wales stood on manifestos that made it clear that they intended to give enhanced powers, in various forms, to the Assembly. If such demands had not come from those parties, why on earth would we have introduced this legislation? It stands to reason that there is demand in Wales for giving the Assembly enhanced powers, but Conservative Members seem not to want to accept that. The manifesto on which we fought the last election, and won, made it very clear that we intended to give the Assembly enhanced powers. However, the structure that we have provided means that Parliament will remain in control of deciding which powers we will give. That constitutes no significant change from the current settlement, so it does not warrant a referendum. I therefore urge colleagues to vote against the amendment.