Clause 94 — Amendment of Schedule 5

Government of Wales Bill — [2nd Allotted Day] – in the House of Commons at 4:32 pm on 24th January 2006.

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Amendment proposed [23 January]: No. 180, in page 51, line 26, after 'Assembly', insert

'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'.—[Mr. Grieve.]

Question again proposed, That the amendment be made.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means 4:43 pm, 24th January 2006

I remind the Committee that with this we are discussing the following: Amendment No. 154, in page 51, line 28, after 'approved', insert '(i)'.

Amendment No. 155, in page 51, line 29, at end insert

'or

(ii) has been laid before each House of Parliament and has been approved by a resolution of the House of Commons, but has been rejected by the House of Lords.

(5A) If subsection (5)(b)(ii) applies, the Order in Council shall not take affect until one year has elapsed since the date on which the House of Commons came to the resolution.'.

Amendment No. 27, in page 51, line 29, at end insert—

'(5A) In the event of approval of a draft statutory instrument by the Assembly, as specified in subsection (5)(a), but there not being within 60 days of that approval, an approval by a resolution of each House of Parliament as specified in subsection (5)(b), subsection (5) shall cease to have effect in the case of that draft statutory instrument, and the procedure specified in subsection (5B) will then apply to that draft statutory instrument.

(5B) The procedure which will apply in cases specified in subsection (5A) will be that no recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council—

(a) has been laid before, and approved by a resolution of, the Assembly, and

(b) 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.'.

Amendment No. 187, in page 51, line 29, at end insert—

'(5A) Any draft of an Order in Council laid before Parliament under this section must be accompanied by—

(a) a detailed memorandum setting out the scope of the proposal, its practical effects on Wales and the legislative authority that would pass to the National Assembly, and

(b) a draft of the proposed Assembly Measure.

(5B) Before an Order in Council is subject to a resolution of both Houses of Parliament, the Secretary of State must make a motion to refer the draft of the Order in Council, along with the draft Assembly Measure, to the Welsh Grand Committee for consideration.

(5C) A report of the debate in the Welsh Grand Committee on the draft Order in Council and Assembly Measure must have been available to both Houses of Parliament for a period of not less than 60 days before any Order in Council is made under this section.'.

Amendment No. 211, in page 51, line 29, at end insert—

'(5A) 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.'.

Amendment No. 212, in page 51, line 29, at end insert—

'(5A) But subsection (5) is not satisfied unless, before the draft of the statutory instrument containing the Order in Council has been approved by a resolution of the House of Commons

(a) the Welsh Grand Committee has debated the draft, and

(b) the Welsh Affairs Committee has reported to the effect that it approves the draft.'.

Amendment No. 122, in page 51, line 38, leave out 'either'.

Amendment No. 123, in page 51, line 39, leave out from 'Parliament' to end of line 1 on page 52.

Amendment No. 181, in page 51, line 39, leave out from 'Parliament' to end of line 41.

Amendment No. 53, in page 51, line 40, at beginning insert 'if subsection (7A) applies,'.

Amendment No. 54, in page 51, line 41, at end insert—

'(7A) This subsection applies only if the Secretary of State has reason to believe that the Assembly Measure made under the order—

(a) would have an adverse effect no any matter which is not specified in Part 1 of Schedule 5,

(b) might have a serious adverse impact on water resources in England, water supply in England or the quality of water in England,

(c) would have an adverse impact on the law as it applies in England, or

(d) would be incompatible with any international obligation or the interests of defence or national security.'.

New clause 4—Refusal to lay draft statutory instrument—

'In the event of approval of a draft statutory instrument by the Assembly, as specified in section 94 (5) (a), followed by a refusal to lay that draft statutory instrument before each House of Parliament, as specified in section 94 (7) (b), the Counsel General or the Assembly may refer to the Supreme Court for decision the question whether the Secretary of State's decision to refuse to lay the draft statutory instrument was made reasonably in the circumstances and intra vires.'.

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

Indeed it does. We were discussing the group of amendments beginning with No. 180, and I was talking about the proposal in the amendment that would require a two-thirds majority before any Order in Council process could begin. I was saying that the Order in Council process is one that is completely different from the Order in Council that would introduce a referendum on primary powers for the Assembly. It is a completely and utterly different order. An Order in Council, for example, that would have brought in the legislation that would have enabled the Assembly to consider the legislation on the public administration ombudsman or transport in Wales would be very different.

I wish to remind Mr. Grieve of the situation when parties present their manifestos at election time. If the Welsh Assembly Government that is formed in 2007 is elected on the basis of a manifesto commitment and if that commitment needs new legislation to be delivered, it would be a clear basis for a proposed Order in Council to enable the Assembly to legislate on that matter. With the electoral arrangements that we have for the National Assembly for Wales, it is unlikely that the ruling group or party would have a two-thirds majority. The hon. Gentleman's proposal would mean that a party or group of parties, having fought an election on a proposal, would not be able to legislate for that proposal.

Even when no specific manifesto commitment is involved, such a request will not come out of the blue. To take the transport example that I mentioned earlier, I placed in the Library the Order in Council example with its explanatory memorandum. Before the draft Bill came before the House, we had a full report by the relevant Assembly subject Committee, which led to the conclusion that the Assembly needed further powers to enable it to play a more effective strategic role in transport in Wales. Opposition Members should recognise the fact that the Assembly, as a democratic institution, has an open process for debating and developing policy, as does the Welsh Assembly Government. The requirement for a two-thirds majority before an Order in Council could be introduced is wholly disproportionate.

Amendments Nos. 187 and 212 address an important issue that has been mentioned by right hon. and hon. Members, especially my right hon. Friend Mr. Murphy. On Second Reading and on several other occasions, he raised the issue of pre-legislative scrutiny and how it will be carried out. I recognise the importance of pre-legislative scrutiny in the proposal for Orders in Council. Several interventions have been made on that point and I am grateful for the many suggestions that have been made as to how that process could be conducted, including the proposals in amendment No. 187.

I should say immediately that I do not think that it is right that the Government should prescribe in the Bill how such scrutiny must be conducted, but that is what amendment No. 187 suggests. That would not allow parliamentarians the proper discretion to determine the most appropriate arrangements. However, in my letter to Mrs. Gillan of 17 January, which was circulated and placed in the Library, and which covered the illustrative examples of Orders in Council, I outlined the normal procedure that I envisaged for scrutiny of such proposals. It may be helpful if I run through them again for the benefit of the Committee.

When the Assembly has a proposal, it will discuss it with the UK Government. If broad agreement were reached, the Assembly would produce a proposed draft Order in Council—this is the difference between what is set out in amendment No. 187 and what I propose in my letter. The proposed draft Order in Council would be accompanied by an explanatory memorandum, as is shown in the examples attached to the letter. It is worth pointing out that the proposed draft Order in Council could be amended, which would mean that more weight would be given to pre-legislative scrutiny than would be the case if the process of scrutiny did not allow amendments to be made, which I understand is what is set out in amendment No. 187.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 4:45 pm, 24th January 2006

Who would be doing the amending, and in what setting?

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

Let me continue to go through the process.

The Secretary of State would forward the proposed Order in Council to the appropriate parliamentary body—for example, the Welsh Affairs Committee—in the same way as is the case when draft Bills receive pre-legislative scrutiny. It would be open for any other Select Committee to scrutinise the proposal. When draft Bills receive pre-legislative scrutiny, the Wales Office announces that the public may give their views and, if they wish, contact their Member of Parliament, who may wish to contribute to the process. Pre-legislative scrutiny would thus not be restricted to Members of the House because members of the public could contribute their views.

The practice of joint scrutiny between the Welsh Affairs Committee and Assembly Committees has worked well in the past. Depending on the type of Order in Council, the Welsh Affairs Committee could choose to continue with that arrangement, or decide to examine the proposal separately. That would be a matter for the Committee, but such a process would assist in gathering the widest possible input into the consideration of the proposal.

I did not mention this in my letter, but as part of the pre-legislative scrutiny of draft Bills, reports of the Welsh Affairs Committee have regularly been debated in the Welsh Grand Committee. I have noted the thoughts of my right hon. Friend the Member for Torfaen about that. We would encourage such debates on proposed Orders in Council. If it were felt that such a debate in the Welsh Grand Committee would help the process, we certainly would not put any obstacles in the way of that. I also agree that it is important that all hon. Members have the opportunity to comment on a proposed draft Order in Council, to ask questions about its scope and to propose ways in which amendments could be made.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

Has the Minister made any assessment of how many Orders in Council might have been brought forward in any specific year, such as during the previous year? We must consider not only Wales-only legislation, but the Welsh elements of England and Wales Bills. The Childcare Bill is going through the House at the moment. Would that require a separate Order in Council? If so, how many times would the Welsh Grand Committee need to meet to consider all the Orders in Council?

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

It is difficult to give a totally accurate prediction of how many Orders in Council will come through. Orders in Council would not be required for primary legislation because the arrangements under which primary legislation gives secondary legislative powers to the Assembly would continue. It would be for Parliament to decide whether it was happy for such powers to be passed on, as is the case at the moment. I do not envisage that the number of proposals for Assembly Measures would be much greater than the number of requests for primary legislation that come through at present. However, the First Minister said that he would be surprised if there were more than five or six a year. I hope that that is helpful.

On the scrutiny and involvement of all hon. Members, my right hon. Friend the Member for Torfaen asked whether it was possible for those who are not members of the Welsh Grand Committee to attend its debates. Again, we cannot dictate to the House what should happen. That is for the House to decide under its Standing Orders. However, I am sure that if a good case were made for an amendment to the Standing Orders—perhaps to consider a particular Order in Council or Orders in Council in general—the House could change its Standing Orders to widen the membership.

Photo of Alan Williams Alan Williams Labour, Swansea West

Would the Minister support such an application?

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

I would have no problem with that. In addition, there is nothing to prevent a report by the Welsh Affairs Committee on a particular Order in Council from being debated in Westminster Hall. Again, hon. Members could make a contribution in that way, which would be open to everyone. That is an alternative to the Welsh Grand Committee.

The hon. Member for Beaconsfield asked how Orders in Council would be amended. Once pre-legislative scrutiny is complete, reports will have been produced by the Welsh Affairs Committee. The Welsh Assembly might also have produced a report, and there may well be minutes of the Welsh Affairs Committee or, perhaps, the debate in Westminster Hall. Those will be taken into account, along with changes or problems highlighted in the pre-legislative scrutiny. Once that has been put together, the Secretary of State will liaise with the Welsh Assembly Government to produce a finalised draft Order in Council. Then, and only then, would the Secretary of State lay the draft Order in Council in an unamendable form for the 90-minute debates in both Houses of Parliament, inviting their approval. I would expect those debates to take place on the Floor of the House, certainly in the early days of the process. That process follows the successful model, developed over a number of years, for the pre-legislative scrutiny of draft Bills, which has helped to improve those Bills and ease their passage through the House. It represents a good model to apply to the Orders in Council.

The Government welcome and encourage pre-legislative scrutiny of proposals for enhanced legislative competence. At the same time, there should be flexibility in the system. I would not wish either the Welsh Affairs Committee or the Welsh Grand Committee to have their business dictated by statute, which is the implication of amendments Nos. 187 and 212.

Amendment No. 187 would also set fixed time scales for the draft Orders in Council. I am not talking about proposed draft Orders in Council; it clearly refers to draft Orders in Council that have been finalised by the Assembly after pre-legislative scrutiny. The amendment would require those to be laid before Parliament for 60 days—the so-called super-affirmative procedure. As I said, there will have been ample opportunity for hon. Members to have taken part in the pre-legislative scrutiny, so there is no need for a fixed period.

The hon. Gentleman did not put much emphasis on draft Measures that are attached to the draft Order in Council. I remind Members that, by their nature, the Orders in Council do not change the substance of the law. Substantive changes of law would be made by the Assembly Measures themselves. Assembly Measures will be subject to detailed scrutiny by the Assembly. That is what we term the enhanced legislative process, which part 3 is all about.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 5:00 pm, 24th January 2006

I suspect that I may not have spent as much time on this as I should have, in the hope that we would make some progress after yesterday's quite slow progress. There is an important issue, because it is far from clear—the Minister will appreciate this—to what extent the Order in Council will give an indication to Members of this House of what in reality will be in the Measure. I appreciate that there is a difficulty. The Measure has to be fleshed out by the Assembly and that cannot be done here, but how will reassurance be provided to Members of this House that they are not writing a blank cheque?

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

I am not sure whether the hon. Member for Chesham and Amersham gave the hon. Gentleman a copy of my letter of 17 January and the attachments thereto, but there will be a clear indication in the attached memorandums of what such Measures will cover, the reasons behind them, the policy development and so on. I am pretty certain that pre-legislative scrutiny will be able to tease out any other issues that may not have been fully explained in the explanatory memorandum. I am also pretty certain that the Welsh Affairs Committee, the Welsh Grand Committee or any other Committee of this House would be able to establish whether they were getting a pig in a poke. I hope that the hon. Gentleman is reassured on that point.

Amendments Nos. 122, 123, 181, 53 and 54 relate to the role of the Secretary of State. Much has been made of the fact that the Secretary of State has discretion whether to lay a draft legislative competence order—or an Order in Council—before both Houses, but that position is perfectly reasonable and rational. As I explained earlier, these proposals will not come out of the blue. Normally, the preliminary draft Orders in Council and the explanatory material that will accompany the draft would reflect the outcome of discussions between the Welsh Assembly Government and the UK Government, so that issues of scope, clarity and vires would have been thoroughly thought through before even the preliminary draft was laid before Parliament for pre-legislative scrutiny.

The Secretary of State should be cast not in the role of Napoleon, as Mr. Gummer implied, but genuinely as an honest broker. It would in any event be unreasonable to force the Secretary of State to lay before the House a draft order that he or she felt was defective, unworkable or premature. The provisions will ensure not only that the proposals that are put before Parliament are properly prepared but that the Government's view on them is clear.

In new clause 4, Mr. Llwyd proposes that the Assembly or Counsel General should be able to refer to the Supreme Court any decision by the Secretary of State to refuse to lay a draft Order in Council before each House of Parliament, so that the Supreme Court could decide whether such a decision was reasonable and intra vires. I do not believe that such a provision is necessary. The Bill already provides for the Secretary of State to give notice of his reasons for refusing to lay the draft Order in Council. That, in itself, is a powerful incentive to any Secretary of State to ensure that he or she has good reasons for any refusal to lay such a draft. The Assembly and the public at large would know the Secretary of State's reasons for refusing.

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 hear what the Under-Secretary says, but the only reference in the White Paper to the Secretary of State's duty to provide reasons is a statement that the reasons he gives should not be trivial. That does not take us very far. Can the Under-Secretary provide examples of why the Secretary of State should refuse to lay a draft Order in Council?

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

Pre-legislative scrutiny might have failed to tease out an issue relating to whether the Measure fits correctly within one of the fields. The Secretary of State would therefore query whether the proposal is workable and firmly grounded. In such a case, he would say, "There is something wrong with this proposal—I cannot support it. The Assembly should consider the matter again." That is the type of case that we have in mind. Understandably, some have argued that the Secretary of State might block an Order in Council for purely political reasons—because he did not like the contents of the Measure—but we do not expect the process to work in that way. I hope that the hon. Gentleman is satisfied with that answer.

Photo of David Davies David Davies Conservative, Monmouth

I appreciate that the Minister is attempting to reassure us that the Secretary of State would never turn down an application for political reasons, but although that might be the present intention, the Bill as drafted allows the Secretary of State for Wales, now or in future, to turn down a Measure for political reasons, if he or she wishes to. I cast no aspersions on the present Secretary of State when I say that, although that might be the present intention, if the wording of the Bill is not amended, it might not necessarily be what happens in future.

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

The political reality is that if the Secretary of State's reasons were weak or unconvincing, he would come under considerable public pressure. In addition, the Bill provides powers for the Counsel General to refer questions to the Supreme Court—for example, whether a matter relates to a field listed in part 1 of schedule 5. However, careful thought must be given to when those powers are required. In general, we have provided such powers where the question is clearly one of legal interpretation and requires a decision of the senior judiciary, given the constitutional significance of the matter in question. In such a case, judicial review is available to anyone who thinks that the Secretary of State's decision is unreasonable. An additional power for the Assembly or the Counsel General to refer the Secretary of State's decision to the Supreme Court is not necessary. Furthermore, the Secretary of State's decision is an Executive decision and is therefore qualitatively different from matters in respect of which the Bill provides a power for the Counsel General and the Attorney-General to refer questions to the Supreme Court.

I have taken some time to respond to an important debate, which started last night. I hope that what I have said persuades Opposition Members that our proposal is reasonable and that we expect to have rigorous and effective pre-legislative scrutiny. I urge the hon. Member for Beaconsfield to withdraw the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I thank the Minister for the way in which he has presented the Government's case, both yesterday and today.

I said at the outset that amendment No. 180 was probing in nature. It was designed to highlight the difference of approach in the part 4 and part 3 procedures. The Minister is right, and I accept that if the amendment were to be accepted, it would have a sclerotic effect on the way in which the Assembly functions. Although I may have serious reservations about the operation of part 3 in principle, as the Minister no doubt realises, it is not my purpose to scupper it by making it ineffective if Parliament decides it wants part 3 in place. For those reasons, I shall not press amendment No. 180 to a Division.

I hope that in due course it will be possible to press amendment No. 187. I continue to have serious reservations about the scrutiny procedure. I am grateful to the Minister for the letter that he wrote to my hon. Friend Mrs. Gillan on 17 January and the two memorandums attached to it, which I had an opportunity to read before they were put in the Library. They make interesting reading. I can see how the Government seek to involve the House and the Welsh Grand Committee in the formulation of policy in Wales and in taking a decision whether the Welsh Assembly should be allowed to pass an Assembly Measure.

However, as I am sure the Minister recognises, the word "amendable" in the context of what goes on in this House usually suggests that it is possible to table an amendment and carry it by some vote or other or with the agreement of all concerned, so that the text can be varied. That, of course, is not possible under the proposed procedure, which envisages a consultation mechanism by which a draft order can be scrutinised. If individuals in the House or elsewhere—the various public bodies that the Government intend to consult—succeed in raising sufficient objection to make the Government consider that there may be a mistake in the drafting of the scope of the order, or that they may have difficulty getting the order in its present form through the House, they can redraft it and present a new order. That, as I am sure the Minister acknowledges, is not the same as an amendable order. It is an entirely different creature.

In those circumstances, the House faces a possible difficulty. I shall not revisit the debate that we had yesterday on my first amendment, No. 161. That suggested to the Government that one possible way of proceeding was to hold a further vote after the Assembly Measure was drawn up and before it was submitted to Her Majesty in Council for ratification. In terms of the House having scrutiny of what is passed in Wales, that to my mind remains a better mechanism, but if that is not to be the course of action, we need to set out formally a procedure that will allow the House to undertake pre-scrutiny.

The Minister worried me a little in the course of his comments, because he made it clear, rightly, that the system could be short-circuited. We will be relying on the Standing Orders of the House. No formal mechanism will be prescribed. That is not adequate. The Government need to consider what mechanism they want for the proper scrutiny process to take place. If amendment No. 187 is not a suitable vehicle for that, I look forward to a Government alternative being tabled on Report.

As we are dealing with a novel area—I cannot think of previous legislation of this kind—I am not persuaded that the existing informal systems, which are enshrined only in convention and Standing Orders, are adequate. If the House is to have a proper role in deciding whether the Welsh Assembly should legislate, there is no reason why the scrutiny procedure should not be laid down in primary legislation. For those reasons, I seek to put amendment No. 187 to the vote. Even if it is not carried, it may be an inducement to the Government to consider the matter further. Subject to that, I seek leave to withdraw amendment No. 180, and to press amendment No. 187 to the vote.

Amendment, by leave, withdrawn.

Amendment proposed: No. 187, in page 51, line 29, at end insert—

'(5A) Any draft of an Order in Council laid before Parliament under this section must be accompanied by—

(a) a detailed memorandum setting out the scope of the proposal, its practical effects on Wales and the legislative authority that would pass to the National Assembly, and

(b) a draft of the proposed Assembly Measure.

(5B) Before an Order in Council is subject to a resolution of both Houses of Parliament, the Secretary of State must make a motion to refer the draft of the Order in Council, along with the draft Assembly Measure, to the Welsh Grand Committee for consideration.

(5C) A report of the debate in the Welsh Grand Committee on the draft Order in Council and Assembly Measure must have been available to both Houses of Parliament for a period of not less than 60 days before any Order in Council is made under this section.'.—[Mr. Grieve.]

Question put, That the amendment be made:—

The Committee divided: Ayes 172, Noes 328.

Division number 138 Government of Wales Bill — [2nd Allotted Day] — Clause 94 — Amendment of Schedule 5

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Question accordingly negatived.

Amendment proposed: No. 123, in page 51, line 39, leave out from 'Parliament' to end of line 1 on page 52.—[Mr. Llwyd.]

Question put, That the amendment be made:—

The Committee divided: Ayes 206, Noes 275.

Division number 139 Government of Wales Bill — [2nd Allotted Day] — Clause 94 — Amendment of Schedule 5

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No: 275 MPs

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Question accordingly negatived.

Motion made, and Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 277, Noes 62.

Division number 140 Government of Wales Bill — [2nd Allotted Day] — Clause 94 — Amendment of Schedule 5

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No: 62 MPs

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Question accordingly agreed to.