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Clause 100 — Power to intervene in certain cases

Government of Wales Bill — [2nd Allotted Day] – in the House of Commons at 6:30 pm on 24th January 2006.

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Votes in this debate

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments: No. 158, in page 54, line 41, leave out paragraph (b).

No. 126, in page 54, line 43, leave out paragraph (c).

No. 175, in page 54, line 44, after 'England', insert 'and Wales'.

No. 176, in page 55, line 22, leave out subsection (8) and insert—

'(8) No order under this Section may be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.'.

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) 6:45 pm, 24th January 2006

I rise to speak to amendments Nos. 125, 158 and 126, which stand in my name and those of my hon. Friends.

The reason why the amendments have been tabled is very simple. The first amendment would deal with subsection (1)(a), which says:

"if a proposed Assembly Measure contains provisions which the Secretary of State has reasonable grounds to believe—

(a) would have an adverse effect on any matter which is not specified in Part 1 of Schedule 5".

That is terrifically broad to a point that it is almost nonsense. I hope that in responding the Minister will give us some detail, because in the hands of an unsympathetic Secretary of State it could be a tool to stamp on the Assembly and prevent it from proceeding in its normal democratic way. The notes on clauses are more obtuse than usual, so there is no help there. I press the Minister for as much detail as possible on that paragraph. I am sure that he will do his best to enlighten us in due course.

Amendment No. 126 relates to paragraph (c), which effectively gives the Secretary of State the same veto. It refers to whether a Measure

"would have an adverse effect on the operation of the law as it applies in England".

Again, my objection is that that is nebulous. We would like to know more. In all the various reports and the notes on clauses that I have read, I have seen nothing of any great help. The provision is extremely broad and, again, an unsympathetic holder of the office could easily pray in aid such a power to prevent any legislation.

By far the most concerning is paragraph (b), which is the subject of amendment No. 158. For the record, I shall read the paragraph. It also provides for a veto and would come into effect where any Measure might have

"a serious adverse impact on water resources in England, water supply in England or the quality of water in England".

I remember as a young boy going with my father to Tryweryn. I have the honour to represent that area now, and I shall deal briefly with the history of the drowning of the valley. I know some of the displaced people from the Tryweryn valley, and I know that never again will the people of Wales stand for such undemocratic, Mugabe-type dealings. Every single Member of Parliament from Wales was against the drowning of the valley, but it went ahead. I hope that we will never see such an event again, because I do not know what would happen, but this clause would enable it, and that is my concern.

The provision has touched a raw nerve, not just among people such as myself who support Plaid Cymru but among others, because once more they can see potential for conflict. The paragraph clearly refers to water resources in England, and I can easily envisage that in some years from now somebody might consider that there is a need to drown another valley in Wales. As that would be such a large planning operation, it would come under the Office of the Deputy Prime Minister and then bypass the planning procedures in the Assembly. The Government could rely on that paragraph, among others, to ensure that the plan went ahead, whatever the view of the Welsh Assembly, which would be expressing the view of the Welsh people.

We have experienced that once already. I know families who were displaced and who still live in the Bala area. Most of the elderly people have now passed away, but some remain; their wounds are still open and they still feel a great deal of hurt. Subsection (1)(b) therefore touches a very raw nerve.

Photo of Jennifer Willott Jennifer Willott Liberal Democrat, Cardiff Central

My reading of the clause is that it applies only to Measures proposed by the Assembly, so the paragraph refers to the Secretary of State's decision, not on legislation that is coming from Parliament to the Assembly, but on a Measure proposed by the Assembly that would have an effect on the water supply. Will the hon. Gentleman clarify?

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)

By all means. If the Assembly of its own volition, through one of its Measures, wished to signal that it opposed any such thing happening, the paragraph would enable the Secretary of State to overrule it. Now that the hon. Lady is taking an interest, perhaps she will tell me how she squares what she has just said with what the Liberal Democrat leader in Wales said. His response to the clause, which has been described as "bizarre" and "patronising", was:

"We're not children. Does anyone seriously think that a future Welsh Government would turn off the taps to England? Or that we would poison the water in our reservoirs? If we are to be trusted with making our own laws, then surely we can be trusted not to damage the supply of water to homes in the neighbouring country. This clause is insulting, and we will be seeking to get it removed as the Bill goes through Parliament and the Assembly."

I emphasise the last sentence. Is the hon. Lady disobeying her Welsh leader?

Photo of Jennifer Willott Jennifer Willott Liberal Democrat, Cardiff Central

I was actually asking a question, not stating a fact. The hon. Gentleman has not answered my question, but has merely quoted words back at me.

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)

While I am at it, I shall quote the Conservative leader in Wales. He said:

"I find this clause odd. Things like this show the Secretary of State for Wales has the powers of a colonial governor and we are not being treated as grown-ups."

Plaid Cymru's Assembly deputy leader said:

"We don't want a Secretary of State telling us what we should do with our water. I thought the whole point of devolution was to transfer power from London to the democratically elected 60 Members of the National Assembly."

If the hon. Lady's reading of paragraph (b) is correct, her colleagues in the National Assembly and hon. Members here—myself included—will take some comfort from that; but my ordinary reading of it suggests that it goes far broader than she has implied. It seems to me that a future Welsh Government could say, for whatever reason, that they were not willing to accept further valley drownings, and be overruled. My reading of the provision might not be correct, but that is my understanding.

When the Government were asked to comment on the provision in Wales on Sunday, the Wales Office spokesman said only:

"It is a fallback provision, and would only ever be used in extreme circumstances."

That being so, may I ask the Minister what he means by "extreme circumstances"? If they include closing off the water supply or, worse still, fouling the water supply, does not the Civil Contingencies Act 2004 deal with them? We are owed a better explanation. I ask the Minister to give us examples of extreme circumstances and to tell the Committee that my reading of the clause is wrong and that it would not allow Parliament to override the democratic view of the National Assembly if it decided against another valley being drowned.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Mr. Llwyd has understated his case. The three amendments are most important. Paragraphs (a) and (c) in subsection (1) differ from paragraph (b) because paragraph (b) contains the word "serious". I find that peculiar, because it means that the provisions that are the least precise may be activated when the consequence or effect of the Measure is not serious, but merely adverse.

It is extremely difficult to envisage how paragraphs (a) or (c) would be used. They can be used even in circumstances where the Minister would not have to show that the "adverse effect" was serious. Even the word "effect", used in paragraphs (a) and (c), is less powerful than "impact", which is used in paragraph (b); an effect is a passing matter. I imagine that the phrase "adverse effect" refers to a range of issues—the list of fields specified in part 1 of schedule 5 is considerable, encompassing a huge number of areas. Under the clause, a Secretary of State, by diktat, would be able to say that a Measure that has a passing or glancing effect on some matter of importance—sufficiently important for the Assembly to feel that a Measure is needed—should be stopped because he has "reasonable grounds to believe" that it would have an "adverse effect". It is difficult to imagine that a Secretary of State would not be able to stop anything that he did not like. The condition of having "reasonable grounds" does not help, so vague is the wording used in the following paragraphs.

In my opinion, paragraphs (a) and (c) are entirely otiose. Their presence suggests that the Bill will not do what it is supposed to. I have all sorts of doubts about the processes set out in the Bill—they are far too opaque. However, if we are to proceed, we must not pretend that the Bill is a means of enhancing the powers of the Assembly, when, just in case the Assembly does something of which we do not approve, we have put in a few get-out clauses to keep power in the hands, not of Parliament, but of the Secretary of State. That is the second reason why I feel so strongly about this matter: I do not like Ministers having such powers without reference back to Parliament. Through the Bill, in effect, Parliament is delegating further legislative powers to the Assembly, but the Government are ensuring that Ministers will still have power, even though Parliament has delegated it. Both paragraphs (a) and (c) are unacceptable.

On subsection (1)(b), I agree with the hon. Member for Meirionnydd Nant Conwy. Either we trust the Welsh people or we do not. It is extremely difficult for me to accept that the Welsh people have to be singled out and measures taken to ensure that, where water is concerned, they should not in any way or in any circumstances be able to do anything that might upset the plans of English Ministers.

I have another reason to object. These days, when even some of our less educated newspapers are beginning to understand the importance of climate change, the issues relating to water have become more important, not less. I do not want to give the impression to the Welsh people—or to the English people—that if we are short of water, our first response will be to extend the resource, rather than to improve retention and reduce use. The clause is very old fashioned. It suggests that Wales is a provider of water for England. It does not say that England and Wales together must deal with the problems of the shortage of water, the effect of climate change, the need to restrain our use of water, and the like.

The clause comes from a civil servant. Having been a Minister for 16 years, I know the sort of civil servant who would have drafted it.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal 7:00 pm, 24th January 2006

It is for the Government to name him or her. I suspect that somebody came out of the woodwork one day and said to the Minister, "Ah, Minister, better not." That is a very dangerous part of the civil servant's language. "Better not give the Welsh the possible power to do something about water. Better remind them that it's not their water. It is, in effect, our water and we're going to decide what is done with it. Better not, Minister. Let's keep the powers that really matter."

That is offensive to Welsh people. One would not have said that about any other community in the United Kingdom, either historic communities or newly found communities. I invite the House to substitute the names of a range of newly found communities in the clause and see how well that goes down. The quality of the drafting is below even the low standard of the Bill.

I suggest that we use the Civil Contingencies Act to cover the problem of a revolutionary party in the Assembly bent on stopping people having water. There is no need for the clause. It is an unnecessary attempt to remind the Welsh where they really are—under the control not of the House, but of Ministers. If I were living in Wales, I would find the clause unacceptable, as the leader of the Conservative party in Wales suggested, and I hope very much that it is removed.

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

My right hon. Friend Mr. Gummer raised a number of interesting issues, which I look forward to hearing the Minister address. As I said in relation to an earlier amendment, the confusion derives from the explanatory notes that accompany the Bill and the lack of clarity about the meaning of nebulous phrases such as "adverse effect" and "serious adverse effect". It is incumbent on the Minister to define for us the difference between the two, and to explain the reason for two definitions in the same clause.

As there is a conjoined English and Welsh jurisdiction, subsection (1)(c) should refer to that, and not just to the law in England, which does not exist as a jurisdiction. That is the purpose of amendment No. 175. If the Minister is able to satisfy the House as regards the terminology in subsection (1), we propose in amendment No. 176 an affirmative procedure for orders brought before the House.

The Minister can hardly expect anything other than the reaction in the Chamber this evening to the clause, given that the definition is so nebulous and the potential impact of the clause is so serious. If the clause had been proposed as an amendment by the Opposition, the Minister and others would have called it a wrecking amendment tabled by people determined to ensure that the Bill and the procedures would not work. It is incumbent on the Minister to answer the questions that have been raised, and further questions that my hon. Friend Mr. Jones intends to raise.

Photo of David Jones David Jones Conservative, Clwyd West

I am concerned about clause 100(1)(c). As my hon. Friend David Mundell observed, we occupy a conjoined jurisdiction of England and Wales, yet the clause provides that the Secretary of State can effectively put a stop to an Assembly Measure only if it has an adverse impact on the operation of the law as it applies in England. We have a large body of law that may well be affected by an Assembly Measure not only in England, but in Wales. It is extraordinary that the Secretary of State has no power of intervention if an Assembly Measure has an adverse effect on the operation of the law as it applies in Wales also. The explanatory notes are silent on that point, so will the Minister expand on it?

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

The measures set out in subsection (1) replicate schedule 3, paragraph 6 of the Government of Wales Act 1998. There is nothing new in subsection (1). The provisions were discussed in this place and passed in 1998. That provides some context for the measure.

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

I am assured that that is the case. Perhaps that will lower the temperature of the debate so that we can address the detail.

Clause 100 contains powers for the Secretary of State, by order, to prevent a proposed Assembly Measure from being submitted for approval by Her Majesty in Council. These powers are rightly constrained. The Secretary of State would be able to block a proposed measure only in certain prescribed circumstances. Moreover, the Secretary of State must have reasonable grounds to believe that those circumstances exist.

Hon. Members asked about the difference between paragraph (a), which refers to adverse effects beyond the Assembly's legislative competence, and paragraph (b), which refers to

"a serious adverse impact on water resources".

An adverse effect on matters beyond the Assembly's legislative competence is an issue that we have already discussed. That could be addressed through the Counsel-General or the Attorney-General. I emphasise to the hon. Member for Meirionnydd Nant Conwy that the clause relates to Assembly Measures and their possible effect, not to a UK Department imposing some measure on Wales. There is a remote possibility that these circumstances may occur and as in the 1998 Act, we need to deal with that possibility.

The clause refers to an adverse effect on matters outside the Assembly's legislative competence. If the process already exists whereby such an issue may be referred to the Supreme Court in the Order in Council process, the provision in the Bill would mean that if, after a Measure had been completed, a problem—possibly purely technical—emerged in relation to whether the Measure would have an impact in an area for which the Assembly did not have legislative competence, the Secretary of State could prevent it from going forward, or perhaps suggest to the Assembly that it look again at the Measure and amend it.

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)

May I take the Minister back to clause 100(1)(b), which deals with water resources? What would happen if the National Assembly wanted to pass a measure to outlaw any further drownings of valleys because it believed that water needed to be conserved and that a certain percentage of water was being wasted through leaking pipes every day of the year? Could the Secretary of State say, "No, we are not having that, because we might need compulsorily to acquire land to drown in the future." I believe that Parliament would prevail in those circumstances and that the voice of the Assembly would be drowned.

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

Let us examine the hypothetical case that the hon. Gentleman has raised, in which the Assembly said that there would be no increase in the amount of water available. As I read clause 100(1)(b), such a proposal would have a serious adverse impact on water resources, water supply or the quality of water in England. The proposal does not specify an increase; it describes the current situation and states that it should not be made any worse. Hon. Members were seeking an example of an Assembly Measure that would have such an impact, but I cannot think of one. However, there might be a measure affecting a major forestry issue, for example, that would have an impact on the water resources that are supplied to England. The provision might apply in that kind of area.

I repeat that this does not involve something being done to Wales. It would involve an Assembly Measure that was being introduced. The hon. Member for Meirionnydd Nant Conwy referred to the drowning of valleys, but I just cannot see how that would relate to the circumstances to which these requirements refer.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I ask the Minister to look again at his explanation of clause 100(1)(b). It seems clear to me that the provision could be used by a Minister against an Assembly Measure that related to the increase of water resources. If England thought that there was a need for such an increase, any such Measure could have a serious adverse impact on water resources. The provision does not mention present or previous water resources; it simply mentions water resources. The Minister is giving that opportunity; he might want to. I think that we ought to know.

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

We are starting to get into the realms of fantasy now. This provision has been on the statute book since 1998, and there has never been a problem with it. I simply cannot accept some of the arguments that have been put forward. These are perfectly reasonable proposals that were originally set out in schedule 3(6) of the Government of Wales Act 1998.

Photo of David Jones David Jones Conservative, Clwyd West

I note that the word "effect" is used in clause 100(1)(a) and (c), while the word "impact" is used in paragraph (b). Will the Minister please explain—[Interruption.] Clearly, an Act of Parliament uses words in a particular manner in order to convey a particular meaning; at least, one hopes that it does. Can the Minister explain why the word "impact" is used in paragraph (b), and the word "effect" in paragraphs (a) and (c)?

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

No, I cannot. We are trying to scrutinise a very large Bill, and I think that we are now moving into an area in which our proceedings might fall into disrepute. We really need to move on.

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

I will give way to the hon. Gentleman, but I hope that he is going to make a sensible intervention.

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 only make sensible interventions. I have been listening very closely to the arguments put forward by the hon. Member for Meirionnydd Nant Conwy and to the Minister's response to them, and I must take issue with what the Minister has just said. As Mr. Jones has just pointed out, the wording of these provisions is very important, and it is our duty to get this right. If different terminology is used in paragraph (b) from that in paragraphs (a) and (c), one has to assume that there is some logic behind that. I know that this argument is taking a bit of time, but I hope that the Minister is about to receive some clarification on this, because for me at least, his answer will be salient to what we should do if there were a vote on the amendment.

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

This will really enlighten the Committee. The reason that the word "effect" is used is because it relates to the legislative environment. The reason that the word "impact" is used is because it relates to the physical environment. I hope that everyone is happy with that explanation.

As I was saying, the intervention powers are extremely limited, but they are important. It is absolutely right that the Secretary of State should be able to prevent proposed Assembly legislation from having adverse consequences of the kind set out in clause 100(1). It is unlikely that that would be necessary, but it is important that that power should exist.

Amendment No. 175 would give the Secretary of State the power to override proposed Assembly legislation just because he or she thought that it would have a bad effect. That would be completely unacceptable. We must strictly constrain the powers of the Secretary of State, and I would urge hon. Members not to support that amendment.

Amendment No. 176 would provide that an order preventing an Assembly Measure from being submitted for approval by Her Majesty should be subject to the affirmative rather than the negative resolution procedure. I suspect that it has been tabled in this way because the previous amendment, amendment No. 175, is so powerful. The reason that we have proposed to use the negative procedure, which could be implemented by either House of Parliament, is that the Secretary of State must make an order within four weeks. It would not be possible to do that, or to be properly accountable, if we were to use the affirmative order procedure.

In conclusion, the Conservative amendments and the Plaid Cymru amendments are poles apart, in that they seek to do completely opposite things. Any of them would unbalance devolution in one direction or another. The position that we have outlined in the Bill strikes a perfect balance, and I would therefore ask the hon. Member for Meirionnydd Nant Conwy not to press his amendment to a vote.

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)

Perhaps unsurprisingly, I am far from satisfied. The Minister has not assisted us very much on amendment No. 158. We have had a discussion, and he has said certain things about it, but I am still unclear. From my reading of paragraph (b), I still believe that, were the Assembly to decide to introduce a measure to prevent the creation of any more dams or the drowning of any more valleys in Wales for any purpose, Parliament could lawfully override that measure via the Secretary of State. That is quite plain, because the provision does not use words such as "current" or "historical". It does not relate to the here and now; it is for the future. Let us be straight about this; all legislation is about the present and the future, not the present alone. We do not legislate for tomorrow alone; we legislate for 10 years from tomorrow, and for 20 and 30 years from tomorrow if the Bill is reasonable.

Unfortunately, I am dissatisfied. I know that time is short for our debate generally, but I wish to put amendment No. 158 to the vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 317.

Division number 141 Government of Wales Bill — [2nd Allotted Day] — Clause 100 — Power to intervene in certain cases

Aye: 7 MPs

No: 317 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Clauses 100 and 101 ordered to stand part of the Bill.