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Clause 75 — Business Organisations

Orders of the Day — Government of Wales Bill — [2nd Allotted Day] – in the House of Commons at 5:10 pm on 28th February 2006.

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Votes in this debate

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss new clause 12—Business scheme—

'(1) The Welsh Ministers must make a scheme ("the business scheme") setting out how they propose, in the exercise of their functions, to take account of the interests of business.

(2) The business scheme must specify how the Welsh Ministers propose—

(a) to carry out consultation about the exercise of such of their functions as relate to matters affecting the interests of business, and

(b) to consider the impact of the exercise of their functions on the interests of business.

(3) The Welsh Ministers—

(a) must keep the business scheme under review, and

(b) may from time to time remake or revise it.

(4) Before making, remaking or revising the business scheme, the Welsh Ministers must consult such organisations representative of business (including trade unions) and such other organisations as they consider appropriate.

(5) The Welsh Ministers must publish the business scheme when they make it and whenever they remake it; and, if they revise the scheme without remaking it, they must publish either the revisions or the scheme as revised (as they consider appropriate).

(6) If the Welsh Ministers publish a scheme or revisions under subsection (5) they must lay a copy of the scheme or revisions before the Assembly.

(7) The Welsh Ministers must—

(a) within the period of two years beginning with the day on which the business scheme is first made, and

(b) subsequently at intervals of no more than two years, publish a report of how the proposals set out in the business scheme have been implemented.

(8) The Welsh Ministers must lay before the Assembly a copy of each report published under subsection (7).'.

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Tessa Jowell, Secretary of State), Department for Culture, Media & Sport

I am pleased to move the amendment and support the new clause because their purpose is to recognise the interests of business throughout Wales. I was especially pleased that, on Second Reading, when my hon. Friend Jessica Morden and I spoke for such a provision, the Under-Secretary appeared to respond favourably. Now that it has been drafted accurately—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. Will hon. Members who are leaving the Chamber or holding conversations in the Chamber please leave quickly and quietly?

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Tessa Jowell, Secretary of State), Department for Culture, Media & Sport

I am especially pleased that business interests are recognised in the amendments as being those not solely of employers but of employees. They are tied together in new clause 12 so that the voice of the trade unions and employees is equally important to that of employers. When we talk about developing the economic, environmental and social well-being of Wales, as we did in our previous discussion, the business community should have a powerful say.

We tabled the amendments to ensure that the voice of the business sector—employees and employers—was recognised and included in the Bill in the same way as that of the voluntary sector and the public sector. Subsection (4) of new clause 12 refers to

"organisations representative of business (including trade unions) and such other organisations as they consider appropriate."

That is why the amendment and new clause have the support of not only the TUC in Wales but the Wales Trades Union Council.

The amendments were tabled in the spirit of consensus. They have the backing of the people, business organisations and employee organisations in Wales. I hope that not only the House but the Under-Secretary will support them.

The new clause proposes that reports be made at intervals of no more than two years, rather than yearly, as will apply to the voluntary and public sector schemes. In defence of that slight deviation from the other two schemes, I would say that this is precisely what the unions and employers in the business community have asked for. They recognise the need for openness and transparency in reporting back, but they believe that it could be extremely cumbersome if that were to be an annual requirement. They would prefer the period to be up to two years.

I hope that amendment No. 62 and new clause 12 will garner the support of the House today.

Photo of Adam Price Adam Price Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry) 5:30 pm, 28th February 2006

I am happy to support the amendment moved by Huw Irranca-Davies. It was made clear by Ministers at the time of the passing of the Government of Wales Act 1998 that trade unions were meant to be included in the ambit of business organisations, but the amendment makes that absolutely explicit. It should be welcomed for that reason in particular, but also because it clearly sets out the requirement for consultation with social and economic organisations—as I prefer to call them—in a way that is consistent with the schemes that apply to other sectors. This would be widely welcomed by many including the Wales TUC, whose response to the consultation conducted by the Welsh Assembly Government on business consultation made it clear that the TUC wanted a formal basis for the inclusion of trade unions and a structured process to be put in place.

That sentiment has been echoed by the main representatives of the private sector. The CBI has called for a scheme along similar lines to those proposed by the hon. Members for Ogmore and for Newport, East (Jessica Morden). Other business organisations, including the West Wales Chamber of Commerce and the Federation of Small Businesses, have made a plea that the general duty to consult business organisations needs a proper structure in terms of its mechanism and its timetable, similar to that proposed by the hon. Gentleman. I hope that this will not have to be a Labour rebellion, and that the Minister will finally accept a substantial amendment, because it has garnered considered support on both sides of the House. I shall listen with optimism to the Minister's response in due course. Meanwhile, we are happy to offer our support for the proposals.

Photo of Jessica Morden Jessica Morden Labour, Newport East

In speaking to the amendment and the new clause, I support the comments of my hon. Friend Huw Irranca-Davies. I also acknowledge that the Welsh Assembly Government has a good, constructive relationship with business and the trade unions in Wales, which is illustrated by the work that is being done through the Business Partnership Council.

Clauses 72 and 73 provide that Welsh Ministers must establish the Business Partnership Council with local government and place a duty on the Welsh Assembly Government to consult and advise local government, and to set up and publish a local government scheme. Clause 74 provides that Welsh Ministers must set up a voluntary sector scheme to explain how they will work and consult with the voluntary sector in Wales. Yet clause 75 calls for Ministers only to carry out consultations with

"such organisations representative of business and such other organisations as they consider appropriate".

The obligation in the Bill to consult business is therefore considerably weaker than the obligations relating to local government and the voluntary sector, and it contains no reference to trade unions representing employees.

It is important to recognise that business and the trade unions play a key role in developing Wales. The new clause acknowledges that and proposes a similar arrangement for business and the unions, to be known as "the business scheme". That would enable the public to see what Welsh Ministers are committed to do for business. Relations with business and trade unions are currently good, but future Administrations would have an obligation to ensure that that continued. The scheme would also ensure that the role of the trade unions was formally acknowledged. Welsh Ministers would have a duty to consult them, and the views of workers in Wales would be heard when decisions were made by the Welsh Assembly Government.

I am grateful to my right hon. Friend the Secretary of State for considering opinions that have the support of the CBI and the TUC in Wales. I hope that the Minister will support the new clause.

Photo of Mark Williams Mark Williams Shadow Minister (Education)

We support the amendment and, in particular, the new clause. The amendment touches a nerve among many businesses, especially small businesses, which feel that any existing consultation arrangements are not working very well. The new clause sets out the proposed arrangements very clearly, especially the monitoring arrangements.

Clause 75 refers to

"consultation with . . . organisations as they consider appropriate".

I remind Members of the importance of organisations such as the Mid Wales Manufacturing Group and chambers of trade throughout Wales. I hope that the new clause will enable their views to be taken into account.

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

I hope that the Minister will tell us whether what is proposed in new clause 12 could be dealt with by clauses 60 and 70, which we have just discussed. I should also like to know whether he has any idea of the cost of the business scheme. I do not know whether Huw Irranca-Davies has estimated the cost, the time and the number of staff involved. Would any extra staff be needed?

The recent Ministry of Defence withdrawals have affected the deep servicing base at St Athan, which has caused a great deal of concern. I hope that if the Minister accepts new clause 12 or any similar proposal—which I doubt very much; he does not look as though he is in an accepting mood—there will be appropriate consultation with representatives of those working in such areas.

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Tessa Jowell, Secretary of State), Department for Culture, Media & Sport

There would undoubtedly be consultation with various organisations, large and small. The hon. Lady will have noted another slight difference between the new clause and the clauses relating to the public and voluntary sectors: there is no duty to sustain. The independent nature of the business community is reflected in the slightly different wording. While the requirement for consultation is absolutely correct, I do not see the need for a duty to step in and sustain a business. I do not think that any of us would want that.

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

That answers one of my questions.

New clause 12(7) states that

"within the period of two years beginning with the day on which the business scheme is first made, and . . . subsequently at intervals of no more than two years", reports must be presented on

"how the proposals set out in the business scheme have been implemented."

The period of two years seems to be arbitrary, plucked out of the air. Perhaps the Minister will comment.

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Tessa Jowell, Secretary of State), Department for Culture, Media & Sport

As I have said, the TUC and the CBI support the amendment and the new clause, but that proposal follows a request from them. They consider the procedure more manageable and operable than the onerous duty of publishing a report every year. They appreciate the transparency, but do not want a commitment to annual reporting.

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

I am grateful for that intervention. I realise that the proposal is supported by the CBI and the TUC—I merely wanted to know why a period of two years is preferred to, say, three, five or 10 years, as is normal with a business plan. However, I look forward to hearing what the Minister has to say in response to new clause 12 in particular.

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

Surprise, surprise, Madam Deputy Speaker—we accept and welcome the amendment and the new clause, and I am sure that everyone welcomes that. The Welsh Assembly Government have worked closely with the business community, including the trade unions, and I expect that they will continue to do so. The new clause, which is a sensible addition to the Bill, is designed to ensure that all parts of the Welsh Assembly Government take the impact on business into account when drawing up policy. I also welcome its clarifying the position of trade unions within the business scheme.

Mrs. Gillan asked why such matters could not be dealt with under clauses 60 and 70—

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

Do not such powers already exist under clauses 60 and 70? Welsh Ministers could use the powers granted by their wide provisions to take precisely such action, if they wished.

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

The point is that under the terms of clauses 60 and 70, Ministers would choose whether to take such action. The new clause puts the scheme on a statutory footing—an option that Ministers clearly could not exercise under clauses 60 and 70.

The extra costs involved will be minimal. The point is to ensure that regulations emerging from the Assembly are made with the involvement and agreement of all parts of industry, which is why we welcome the new clause.

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

I am grateful to the Minister for giving way again. He says that the cost will be minimal and I presume, given that he is going to accept the new clause, that he has had a chance to calculate in detail the costs and staffing necessary to implement it. Will he agree to place in the Library of the House those detailed calculations, which would be helpful? Will he also justify to the House the two-year period, so that I can satisfy myself that another period would not be more optimal?

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

I am assured that the costs are minimal as most of this work is already being done by Assembly officials. All sides of business and industry have decided that they want a scheme that can be reviewed every two years. The new clause takes on board their views and I would be amazed if the hon. Lady disagreed with them.

In conclusion, I welcome the new clause and I commend it to the House.

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Tessa Jowell, Secretary of State), Department for Culture, Media & Sport

I am very pleased to see not only cross-party support for the new clause but support from throughout the Labour Benches. The Minister has given his support not just to the principle behind the new clause, as he did on Second Reading, but to the new clause itself. As my hon. Friend Jessica Morden pointed out, there is already a good working relationship between the Assembly and business. However, the new clause will formalise the Assembly's relationship not only with employers' organisations, but with employees. I am grateful for such support and I thank the Minister for his consideration.

Amendment agreed to.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 4, in page 50, line 7, leave out clauses 92 to 101.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss the following amendments: No. 5, in page 50, line 17 [Clause 92], at end insert

'; and the Assembly may by resolution request that the Parliament of the United Kingdom legislate on any matter specified in Part 1 of Schedule 5.'.

No. 59, in page 51 [Clause 94], leave out lines 29 to 31.

No. 60, in line 38, leave out subsections (7) and (8) and insert—

'(7) The Secretary of State must, before the end of the period of 30 days beginning immediately after the day on which notice of the Assembly's resolution is received, submit the draft to the Clerk.

(8) It is for the Clerk to submit draft Orders in Council for approval by Her Majesty in Council.'.

No. 61, in page 52, line 7 [Clause 95], leave out '60' and insert '30'.

No. 7, in page 89 [Clause 160], leave out line 23.

New clause 1—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 3—Scrutiny of proposed Orders in Council by Joint Scrutiny Committee—

'(1) There shall be a Joint Scrutiny Committee (in this section, "the Committee") that shall scrutinise every Order in Council made pursuant to section 94 of this Act and report on its expediency to the House of Commons and to the National Assembly for Wales.

(2) The Committee shall consist of ten Members of the House of Commons and ten Members of the National Assembly of Wales.

(3) The Committee may choose its own Chairman and determine its own procedure.'.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 5:45 pm, 28th February 2006

Clauses 92 to 101 make up part 3 of the Bill, which deals with Assembly measures. We debated these provisions in detail and at length in Committee, but I was left entirely unpersuaded by the Government's arguments about the proposals' necessity or desirability.

The House must bear it in mind that these clauses would mean that primary legislation would cease to be the responsibility of this House—or any Assembly or Parliament—and be replaced by a system of government through Order in Council. It would be difficult to imagine a more fundamental shift from the normal convention and practice in our country's constitution, although the Legislative and Regulatory Reform Bill tries to extend the same principles to the entirety of the governance of this country, including England.

It became clear in the course of our Committee debates that the Government simply did not grasp the extent of the change that these proposals would introduce. We were told that the measures were perfectly reasonable, and that Orders in Council are commonly used. I accept the latter point, but they are not used for enacting measures that are normally the preserve of primary legislation. However, that is precisely the system that we will be introducing if we allow these clauses to go through.

Parliament gives power to the Executive. The Government have argued that they want to devolve power so that it is brought closer to the people, but where will that power be exercised? That is the important question, as clauses 92 to 101 make it glaringly apparent that the exercise of the power supposedly to be transferred to the Assembly will remain entirely at the discretion of the Secretary of State.

For example, clause 94(7) allows the Secretary of State the right to refuse to enact a draft order proposed by the Assembly. Parliament will have an opportunity to vote on such a draft order, but will be able to see it only in draft form. We will not be able to see the order in its final form.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Minister shakes his head. Perhaps I have chosen my words badly, but in Committee we established that Parliament will be presented with a draft Order in Council and asked to decide whether it should go ahead. However, it will not be able to determine whether the order in its final form, as put together by the Welsh Assembly, should be approved. That is because, at that stage, the Secretary of State is the only person with the power to intervene and prevent a measure from being enacted. If I have got any of that wrong, I shall be pleased to give way to the Minister so that he can correct me.

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

I shall try to help the hon. Gentleman with how the system will work. The Welsh Assembly will propose an Order in Council, which will then be subjected to pre-legislative scrutiny, when it can be amended. After that, the Assembly will consider any changes and introduce a draft Order in Council. That draft order will then be laid before the House by my right hon. Friend the Secretary of State, and the normal affirmative procedure, both here and in the House of Lords, will apply. It is not the measures that will come before Parliament in any form, but the policy statement justifying why the Order in Council is required. There will be a substantial amount of information attached to that, and it will be subject to pre-legislative scrutiny. I hope that that clarifies the matter for the hon. Gentleman.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It certainly clarifies the matter up to a point, and it sounds even worse than I originally thought. In Committee I understood that although the House would vote on the draft Order in Council, there would be an opportunity for the House to scrutinise the actual draft measure. The Minister shakes his head and says that that is not the case, but I have to express some surprise. That is not at all what I remember.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does my hon. Friend agree that what is being removed from Parliament are precisely the rights that were not afforded to it by dictatorial monarchs down the ages? This activity is at the heart of what Parliament does, and either the Welsh Assembly should do it or this place should. It is unacceptable for no one to do it.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with my right hon. Friend; that is the matter that was of such concern to us in Committee. We tabled amendments to try to beef up the procedures, but they were all rejected. That is why I shall invite the House to take out the entirety of this part of the Bill. In my view, it has no place in the architecture of the legislation—and indeed, it is completely unnecessary.

If the Government were honest and true to their principles they would have no hesitation in putting the idea of Acts of the Assembly to a referendum, getting the necessary powers and handing those powers to the Welsh Assembly. There are arguments both in favour of and against further devolution, but at least that would have some intellectual honesty about it, whereas what is now proposed is a hybrid system that will grossly undermine this House's ability to scrutinise legislation, but will not give the Welsh Assembly any measure of sovereign control over its own legislation.

The matters in schedule 5, part 1—all important areas of legislation for the people of Wales—will be determined by a sort of minuet danced between the Secretary of State and the Assembly, in which the Secretary of State ultimately exercises all the control. A measure more calculated to undermine the principles of parliamentary democracy would be difficult to find. However, having seen the Legislative and Regulatory Reform Bill, and what the Government seek to impose on the country more generally in that measure, we should not be surprised by what they are doing to the people of Wales, who are being treated as guinea pigs for their proposals elsewhere.

The longer we debated this issue in Committee, the less persuaded I was that these measures were necessary. If the Government had the courage to bring devolution a further notch forward, they would accept the need for a referendum and Assembly Acts. Moreover, there are so many downsides to the proposals, which risk producing an environment in which the ability to scrutinise legislation and determine it properly will be seriously undermined.

Photo of Adam Price Adam Price Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry)

Does the shadow Attorney-General see any contradiction between his proposal to delete part 1 of schedule 5 and the position taken by the leader of his party in the Assembly, who has voted, and called, for extending schedule 5 to include new areas such as energy?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Not at all; this highlights the nub of the issue. It is possible to have a perfectly reasoned debate about whether the Welsh Assembly should be granted more powers. I am aware that within Wales, and outside it, there will be people with different opinions on that subject. There are perfectly valid arguments that Wales should follow the pattern of Scotland and have primary legislative powers, and that the Welsh Assembly should acquire sovereign authority over areas of legislative competence, if that is what is desired. That, in a sense, is what the Government propose in part 4.

I shall make something clear again, both to Adam Price and to the Minister—and, indeed, to anybody else. We have said all along that if that is what the Government seek to do, it is right that they should put it to the people of Wales, and if the people of Wales want it, they should have it. That is why we shall certainly not oppose the measures in part 4.

My colleagues in the Welsh Assembly have views on that subject, and are perfectly entitled to argue that greater powers should be devolved to Wales. That is what an evolving democracy is about—just as people are also entitled to argue that that should not happen. My objection is not to the principle that there might be further devolution to Wales, but to the hybrid system that the Government seek to set up to avoid having to ask the Welsh people a referendum question, because they know that would be embarrassing within their own party.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does my hon. Friend accept the fact that I believe in further devolution, and that, as we have taken this step, I would like the Welsh people to make many more of their own decisions? There are arguments about whether we should have devolution at all, but now that it has been introduced, it ought to be effective. What is so dangerous is the fact that we are evolving a system in which the prime player is neither the Welsh people through their Assembly, nor the United Kingdom people though the United Kingdom Parliament, but the Government through executive action. That is intolerable and undemocratic.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree entirely. This is a creeping process, which has probably been going on for some time. This Parliament has been successively surrendering powers of legislative competence through the greater use of statutory instruments and Orders in Council for a long time. In 1966 there were, I think, 35 statutory instruments, whereas there are now some 3,000 to 4,000 a year. That is already a measure of the loss of competence—but at least in key areas of primary legislation, historically we have kept the competence. That is what we are surrendering now.

As I have said, if I were being asked to surrender that competence to a Welsh Assembly taking over our powers, I might argue against that because of my attitude to devolution, but I could not fault it as a procedure. I also have to acknowledge that in the Scottish context, that has worked quite well. However, I am not prepared to surrender the power of this House to scrutinise and enact legislation to a system that very considerably increases the power of the Executive.

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 trying to understand the Conservatives' position on this matter, because that would help us to see what the hon. Gentleman seeks to do with his amendments. Can he clarify the definitive Conservative party policy? As Adam Price has pointed out, there seems some confusion between what the leader of the Conservatives in Wales was saying and what the hon. Gentleman is saying now.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am afraid that the only confusion is in the hon. Gentleman's mind. The Conservative party's position is extremely straightforward: any increased devolved powers for the Welsh Assembly should come through part 4. If the people of Wales want those devolved powers, they can have them by voting in a referendum under part 4. If they chose to have them in that way, our party's task would be to facilitate that process and make it work effectively.

The Conservative party—the official Opposition—will not at any stage subscribe to a system of governance that removes legislative competence from everybody and hands it to the Executive. I hope that that is now clear to the hon. Gentleman, and that he understands exactly where we stand.

Photo of Daniel Kawczynski Daniel Kawczynski Conservative, Shrewsbury and Atcham 6:00 pm, 28th February 2006

Does my hon. Friend agree that the Bill would make it easier for the Government to impose regional government in the west midlands without offering a referendum?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is true that the people of Wales will have no referendum on the part 3 proposals. My hon. Friend will have noticed that one of our amendments would require a referendum to be held. The people of Wales should be consulted on whether they wish to be governed by Order in Council, but the Government have never consulted the people of Wales on part 3. It was dreamt up by bureaucrats and will be imposed on the people of Wales. It suits the Government because it resolves the internal problems in the Labour party, with some members set against further devolution and some wanting much more.

Photo of Adam Price Adam Price Spokesperson (Defence; Transport; Economy & Taxation; Miners Compensation; Regeneration; Trade & Industry)

I wish to return to the internal problems in the Conservative party. If the Order in Council procedure is such anathema to the Conservative party, why, on 25 January in the Assembly Committee considering the Bill, did the leader of the Welsh Conservative party ask for more subject areas to be added to schedule 5?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Schedule 5 defines the powers that could be given to the Welsh Assembly under part 3 or part 4. I do not see a problem with those of my colleagues in the Welsh Assembly who say that they would like more devolved powers for Wales. The question is how those powers should be devolved. It seems to me to be a fairly simple matter.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

If I sat in the Welsh Assembly, I would want the schedule to include several powers that it does not include at present, but I would expect that—in order to press for part 4 to be enacted—the people of Wales could make that judgment. The argument advanced by Adam Price, with whom I often agree, misses the point. If one wants greater devolved powers, this is the only way to achieve that under the format presented by the Government.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend makes a good point. To return to the point made by my hon. Friend Daniel Kawczynski about whether such powers could be used more extensively in England, the answer must be yes. Indeed, the whole constitutional trend since Labour came into power in 1997 is to minimise the use of Parliament for governmental business. The Government go to considerable lengths to avoid having legislation scrutinised in this place. When it is scrutinised in this place, the guillotining of business means that we cannot give it adequate scrutiny. One of the real ironies—I regard it as a disgrace—is that the Government, having preventing us from scrutinising legislation properly, claim that as Parliament cannot do the job they might as well give it to someone else. That is a pattern of behaviour from this Government.

The House should not subscribe to part 3, unless the Government choose to have a referendum on it and allow the Welsh people to understand what it is all about. That is what we try to achieve in new clause 1.

Photo of David Jones David Jones Conservative, Clwyd West

If the Government were to be minded to offer such a referendum, would it not be just as easy for them to offer one on part 4 at this stage and forget part 3?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It would be and, from a constitutional point of view, part 4 would be a much better option than part 3. If someone offered me a choice between part 3 and part 4, I would choose part 4. Although it is a major constitutional change, part 4 at least has some internal coherence, which part 3 lacks. I accept that it is possible that the Welsh people, if they were to be consulted, might decide that they wished to be governed by Order in Council under the part 3 procedure. If that choice were put to them, I would enjoy campaigning in Wales and explaining to people what part 3 is all about. If the Government think that part 3 is such an attractive proposal, they should accept new clause 1, and I hope to hear the Minister say so before the end of the debate. If new clause 1 is accepted, we will see the same spirit of concord that we saw when the Government accepted an amendment tabled by Labour Back Benchers a few moments ago.

New clause 3 is a fall-back position. Inadequate as part 3 is, new clause 3 would provide a system for a Joint Committee of both Houses of Parliament and the Assembly to scrutinise draft orders. That would go some way to remedying the democratic deficit of part 3. Amendment No. 7 is consequential to amendment No. 4.

Our view is straightforward. Further devolution can work only if it is honest in empowering the legislature rather than favouring the Executive. Part 3 is a bureaucrat's charter. It is also a charter that suits Government very well, and hundreds of years of acquired rights, which are enshrined in legislatures, are being systematically eroded by the drafting of part 3. The House should have nothing to do with it. It is unworthy of the Government to propose it. Despite having sat through Committee and debated the Bill extensively during its passage, I did not understand a point that the Minister made today. If, however, it is true that Parliament will have only the vaguest notion of the detail of what the Assembly will enact, that is an even more compelling reason why part 3 should be rejected. Part 3 is the creature of the Executive and I hope that the House will send out a signal that some of us, at least, will not accept that principle.

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

What we have just heard is a gross misrepresentation of the system that is proposed and betrays a profound lack of understanding of the legislative system that has been in operation, certainly since I came to this place in 2001. That is perhaps not surprising from the Conservatives, because they have limited experience of legislation affecting Wales during that period. In reality, that legislation has been subject to unprecedented scrutiny, because of the emergence of pre-legislative scrutiny. I suggested as much to Mr. Grieve during earlier proceedings on the Bill, but he does not seem to have taken it on board.

Pre-legislative scrutiny was instituted under the Conservative Government before 1997 and has developed substantially since then, especially since 2001 in respect of Wales. Proposals from the Assembly have been scrutinised by Committees of the House, primarily the Welsh Affairs Committee. They have been almost scrutinised to death. In at least two cases, the Public Audit (Wales) Bill and the Transport (Wales) Bill, the pre-legislative scrutiny of the Welsh Affairs Committee—often working with the Assembly—meant that no substantial amendments were needed when the measures came before the House. Bills have avoided taking up unnecessary Chamber time due to the extent of the pre-legislative scrutiny. No amendments were tabled in the House and Bills went through without difficulty.

As pre-legislative scrutiny will apply to the process outlined in the Bill, I cannot for the life of me understand why it is regarded as so heinous. The Conservatives often seem to believe in a Whig concept of constitutional history whereby legislative processes in the Chamber reached a state of grace in 1997, such that no constitutional improvement could be possible after that date and that any proposal made since then has been a usurpation of the powers of the general populace—powers that the Government are determined to take from them.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I certainly do not suggest that the problems date only from 1997—some of them predate 1997. I want to pick the hon. Gentleman up on one point. He talks about pre-legislative scrutiny, but of what—the Order in Council or the draft measure? That was the point I made to the Minister, who in Committee made a considerable error that he subsequently had to correct by writing to people. He said that

"the preliminary draft measure, along with its explanatory memorandum, will be attached. It will therefore, going through its pre-legislative scrutiny, be amendable".—[Hansard, 9 January 2006; Vol. 441, c. 121.]

He had to withdraw those comments, but I did not understand from them that we would not see the preliminary draft measure; yet I understand from what he said earlier today that we shall not see it, so how can we even consider, in pre-legislative scrutiny terms, what the measure will be?

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

The Minister will correct me if I am wrong, but my understanding is that the preliminary draft measure will be given pre-legislative scrutiny, which will be amendable. There is no suggestion that Members will not have the opportunity to consider proposals. They will be considered by the House and by Assembly Members, probably in a joint legislative Committee of the Assembly and Parliament.

Photo of David Jones David Jones Conservative, Clwyd West

Is not the hon. Gentleman falling into the trap of thinking that each Order in Council is a one-off? In fact, each Order in Council will devolve primary competence, for a particular matter in a particular field, to the Assembly. The Assembly can then, if it wants, revisit that devolved competence and create further Assembly Measures, which will never be subject to pre-legislative scrutiny by the House.

Photo of David Jones David Jones Conservative, Clwyd West

Precisely, but Ian Lucas seems to think that pre-legislative scrutiny will apply to every proposed Assembly Measure, when clearly it will not.

Photo of Ian Lucas Ian Lucas PPS (Bill Rammell, Minister of State), Department for Education and Skills 6:15 pm, 28th February 2006

Since the Government of Wales Act 1998, devolution of further powers has occurred regularly, as anyone familiar with the development of devolution must be aware, and we have not needed a referendum at every stage of that process. Indeed, until our debates on the Bill, I had never heard a suggestion that a referendum was needed every time a power was transferred to the Assembly. The process has been continuous, but the Conservatives do not seem to recognise the dynamic of devolution and the joint relationship that has developed between the Assembly and Parliament.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

There is a slight difference between transferring further functions to the Assembly to operate under the existing devolution settlement and creating a new devolution settlement subject to the powers in part 3. The hon. Gentleman has a legal background and I am sure that if he gave even a moment's thought to the difference between the procedures in part 3 and the existing situation, he would acknowledge that point.

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

Of course there will be a change in the process, but as I pointed out earlier the reason for it is that the existing process leads to the House considering legislation unnecessarily, because it has already been scrutinised. The Conservatives are grasping at straws when they suggest that we are engaged in some perverted constitutional exercise that undermines fundamental liberties. The Government have a proud record on developing pre-legislative scrutiny, recognising the existence of the Assembly and facilitating working relationships between it and the Westminster Parliament that have led to an improvement in the scrutiny of legislation affecting Wales. Far from undermining those relationships, the measure will improve them.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

It would be foolish to ignore the background to this part of the Bill. Clearly, some Government Members want no further devolution. For them, even the description of continuing devolution given by Ian Lucas would be anathema. It is pleasing that the Father of the House is not in the Chamber, for he would have been very unhappy had he heard that.

Other Labour Members want more devolution. Both views are perfectly reasonable. Indeed, one might find a range of views about devolution among Opposition Members—whether there is enough or whether it should go further. What is unacceptable is to try to paper over those cracks in a way that strikes at the very heart of the activity of Parliament. That brings me to a direct argument with the hon. Member for Wrexham, but I hope that he will acquit me of anything other than real concern for parliamentary democracy.

I admit that I would have liked a different way of sharing power in the United Kingdom from that decided on in 1997 and thereafter. However, having undertaken it as we have, it is unacceptable that the people of Wales should have a form of devolution significantly different from that provided for the people of Scotland. Were there an opportunity for a referendum, I hope that the people of Wales would vote for greater devolution, much along the lines of that accorded to people in Scotland.

What seems unacceptable is to say that, because the majority party does not believe that it could achieve a common view, it will offer the people of Wales what is in part 3 instead of what is essentially in part 4, but that, of course, they must not have a vote on it, because if they did, they might recognise just how silly it is—silly in the sense that this is a means whereby the future of the people of Wales is removed from the parliamentary hands in which it is now and from any referendum and placed in the hands of bureaucrats and Ministers.

The problem for the Government is that all the parallels to this are unflattering; they happen in circumstances where dictatorial Governments, very often monarchical in kind, wanted to have a parliamentary structure that discussed things, argued things, scrutinised things, but did not actually decide things. The trouble for any of us who take an interest in 19th century history is that the Minister's explanation sounds closer to those of Louis Napoleon[Interruption.] It is all right for Chris Ruane, but I hoped that he would have read up about Louis Napoleon, because he would have found out just how parallel the proposal is.

As my Welsh nationalist friends know, I am in no way unsupportive of many of the positions that they take, but I am disappointed that both they and the Liberals have fallen for the significantly dangerous sleight of hand that the Conservative party is trying to remove under the amendment. I am not trying to remove it to reduce the Welsh Assembly's powers. I want to remove it so that we can move on to offer to the Welsh Assembly greater powers through the referendum, which would do so publicly and clearly, and I would be happy to debate with the Father of the House the advantages of going further, while he would no doubt explain the advantage of going backwards, which is, of course, the usual direction of his party.

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

Although the right hon. Gentleman may indeed be Suffolk, Coastal's first Welsh nationalist, can he nevertheless not grasp the scepticism that some of us feel about his claimed embracement of the devolution project, given that other Conservative Members have made it clear in the debate that they do not support the devolution of further powers? In addition, there is an absolute mess of policy confusion between what Nick Bourne says for the Conservatives in Cardiff and what right hon. and hon. Members say regarding Conservative policy in Westminster.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Subtlety never was a great Liberal virtue, but let me try to explain what is a very clear subtlety in this matter. It should not matter to the hon. Gentleman that Conservative Members will have different views on devolution; what should matter to him is whether the people of Wales will be given an opportunity to decide what they think about devolution. He is a Liberal—and this is the point of my speech with which the hon. Member for Vale of Clwyd can agree—and, in reality, Liberals are always illiberal. When people ask them, "Are you going to stand up for democracy, choice and people deciding?" "Oh, no," they say, "much better to let the Government do it, because we might then get a bit, and we might not have to face the electorate to argue the case." It is very interesting: scratch a Liberal and we always find a fascist. That is absolutely true, universally.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

It is no good saying that I have used an unsuitable word. I mean it in the precise terms of people who believe that the state is right and that the state system should overcome the realities of democracy. The trouble is that the provision proposes the use of Orders in Council—the very phrase is one of those that means something horrific. It means that the Government and Ministers use a technique that specifically makes democratic control as febrile and slim as is humanly possible in a House that calls itself a Parliament. It is a carefully contrived method of making it almost impossible for anyone to disagree. If that is not the mechanism of Napoleon III and his successors, I really do ask what would be.

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

Lembit I. Aside from the somewhat distasteful language that the right hon. Gentleman has uncharacteristically used in his contribution, may I remind him which Government most promoted the use of Orders in Council in the House? Was it not the Conservatives in their 18 years in government who set the precedent for using Orders in Council to govern this country much more than any Government beforehand? Therefore, is he willing to condemn the very Government of whom he was a part?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

The hon. Gentleman should listen to the end of my sentence. If that were true, it is also true that a further and extraordinary extension of that has been done by the Government and is being proposed now. If I were to decide to discuss all the Orders in Council in the past with the hon. Gentleman, you, Mr. Deputy Speaker, would soon stop me, so I will concentrate on the Orders in Council as dealt with in the amendment. I have to tell the hon. Gentleman that it does not help in a logical argument to say, "Because you did it, he can do it." I am arguing something quite different.

Let us not become caught up in what the Liberals say is distasteful. If what I said was in any way distasteful, of course I withdraw any lack of taste in the sentence, but I think that the hon. Gentleman knows precisely what I mean. Liberals are illiberal when it comes to the promotion of their own views. They are thoroughly illiberal, and they would prefer the Government to impose such things than to give the public the chance to choose them. That is the fundamental issue. We are talking about something much more important than merely the way in which Orders in Council will be discussed.

Photo of David Davies David Davies Conservative, Monmouth

Does my right hon. Friend agree that both the Labour party and the Conservative party in government have taken various steps to support a decentralisation of powers, either through the Wales Office or the Welsh Assembly, about which I am less enthusiastic, whereas the Liberal party, which has always claimed to be the party of devolution, had a perfect opportunity to introduce home rule when it was last in government and chose not to do so?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

The great point that my hon. Friend makes is clear: Liberals in power prefer to keep hold of that power and use it in the way that they want, rather than sharing it. It is only when they are out of power that they are keen on the sharing bit. It is a serious issue to find the Liberal party on the side of the proposal, but I would expect that from it. I am much more unhappy about the Welsh nationalists, because the word "principle" means something to Welsh nationalists, and it therefore distinguishes them from my experience of the Liberal party. I always remember the person on the doorstep who told me—[Hon. Members: "Oh, come on."] Labour Members will like this if they wait a moment—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. What is more important in this matter is whether the occupant of the Chair likes it, and we are now getting a little wide of the mark. The right hon. Gentleman ought to draw himself back to the amendment.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I will certainly do that, Mr. Deputy Speaker, although I had hoped to give you a moment of amusement in what might otherwise be a long debate on detail.

If we now take the principle, being obnoxious, that the Government should arrogate to themselves powers that should be properly in the hands of a democratic Assembly, we should ask ourselves which democratic Assembly should have those powers. It seems to me that that is what the amendment deals with. It would mean that if there were to be devolution, it would have to take place in two ways: Parliament would have to decide to offer it and the people of Wales, in this case, would have to decide through a referendum that they wanted it. The Government wish to avoid both those principles. They do not want Parliament properly to scrutinise each item of devolution. As my hon. Friend Mr. Grieve said earlier, such items are part of a group, rather than a series of single items. The Government do not want this Parliament to make those decisions, nor do they want them to be offered to the people of Wales.

My hon. Friend, with typical generosity, suggested that it would be valuable to put part 3 to a referendum. If the Government offered to do that, I understand that we would be prepared to withdraw amendment No. 4, because it would then be possible for the people of Wales to say what they thought of this political stitch-up. It would also be possible for us to flush out the varying attitudes to this proposal in the governing party. However, when the referendum was proposed, there was, if I may say so delicately—I hope that Lembit Öpik, who asserted that he was not keen on my language, does not mind the word that I am about to use—a certain amount of tittering. We imagined going round Wales saying, "Would you like the Government to have a power of Orders in Council in order to be able to present things that you ought to be able to decide on?" I can imagine the enthusiasm with which people would rush out to vote on such a proposal. The tittering came from not only this side of the House. One or two Labour Members—and there are only one or two in the Chamber—managed, rather ineffectively, to cover up their tittering.

The question is more serious than was supposed. The people of Wales are not being offered a referendum on part 3 because the Government know, first, that they would be held up to ridicule and, secondly, that the people of Wales would say no. They would say no on one of two grounds: either because they wanted proper devolution, which is why I would say no, or because they thought that they did not want any more devolution, which is what some of my colleagues might think. They would certainly accept that this part of the Bill is a palpable ruse. It is a fake and a fraud, and not a proper thing to bring in front of the House. That is why the Opposition propose its removal. We are democrats and we want Parliament, whether it is the UK Parliament, the Welsh Assembly, or, indeed, the Scottish Parliament, to make decisions democratically.

My difficulty is that the Minister has been put in an impossible position because he does not really believe what he is saying. I know that because he is a very good arguer on most things. He is clear, concise, comprehensible and comprehensive. On this matter, he has been opaque, long-winded, imprecise and, if I may say so, incomprehensible. My hon. Friend the Member for Beaconsfield is a man whose mind is sharp and who seizes the point rapidly. The fact that he got to this point in the debate before he understood what the Government were about is a comment not on his intelligence, but on the Government's imprecision and, I think, their lack of knowledge of their own proposals.

I do not think that you were in the Chair at the time, Mr. Deputy Speaker, but, interestingly, there was a point at which Members on the Government Front Bench and the Benches behind were busy trying to discuss what the Government's policy actually was. It was clear that the hon. Member for Wrexham put things in a way that did not quite fit what the Minister thought he had been saying. It certainly did not quite fit what we thought the Minister had been saying. If one has been around as long as I have, one begins to get suspicious when a Minister is imprecise, unclear and unable to communicate a key part of a Bill—the part that amendment No. 4 would remove. One begins to wonder whether there is something up and whether things are not quite as they seem—of course, they are not at all as they seem.

Right the way through the debate, the House has been told that we are creating a system that will enable the Welsh Assembly to get more legislation through more rapidly and more sensibly, in terms that are denied it because of the heavy burden on this House. That would sound all right if it were not for the fact that the important necessary phrase, "and therefore the Government have decided to take things into their own hands," is missing from that statement. The Government have decided that they will invent a system that ensures that control is no longer in the hands of this democratic Parliament. However, it will be put not into the hands of the democratic Assembly, but, in fact, into the Government's hands. That must be wrong for everyone, but because the matter does not have to be put to a referendum, the cracks between the various and interestingly different views of members of the Labour party can be papered over. That is why I come back to wooing the Welsh nationalists.

The Welsh nationalists know perfectly well what the Government are about. When it comes to an election, they will say that the provisions are about avoiding the fundamental question of whether the Assembly is going to be a Parliament or not. If the Welsh nationalists were true to their principles, they would say, "Look here, we are not going to provide the cover for this. We are not going to stand in front of the Government and pretend that this is another step on the way to devolution. Instead, we are going to stand up and tell the Government to give us part 4. We will fight them on the doorsteps and make sure that we win a referendum. Give us part 4 and do not palm us off with part 3." That is the heart of the opposition that is summed up in amendment No. 4.

I, who have gone into the Lobbies with my Welsh nationalist friends, sometimes against a Whip, ask them to think seriously about what their position will do to them in the Principality. It will enable people to say very simply, "These are people who are more interested in supporting a bureaucratic fudge than standing for the central issue of democratic control over the future of the people of Wales." In the past, there were better ways of doing things than the way that we ended up with, but, having got where we have, let us not allow ourselves to be led down the dangerous path that the Government have proposed.

If we do not agree to the amendment, we will set a precedent that could be used much more widely. Mr. Deputy Speaker, you have not sat through every hour of the debate on the Bill—although it may have seemed like it from time to time—but it is right that the important subject of Welsh Government matters and the Principality should have occupied so much of our time. Those of us who live in the county of Suffolk—one of the six counties that, for the purpose of administrative regions, the Government call the east of England—note that we have not been given the equivalent time to discuss forced regionalisation, which we do not want and which involves the transfer of powers relating to our police, ambulances and hospitals to a central body in a region. We are concerned that the pattern evident here, a point that my hon. Friend Daniel Kawczynski rightly raised, will enable the Government to say, "If this is how we do it for Wales, why don't we do it for the non-existent region of the east of England? There is a lot of business in Parliament. Why don't we bypass the people of that region, just as we have bypassed the people of Wales?".

My hon. Friend the Member for Beaconsfield has to accept that I speak on his side on this occasion not only because I think that we should stand up for the ability of a different part of the United Kingdom to govern itself in a more effective and direct way than the bureaucratic answer being presented by the Minister, but because those of us who are being threatened by another bureaucratic nightmare called regionalisation see in this clause a means of removing from us the right to make decisions through local government that we have at the moment.

As my hon. Friend says, we tabled the amendment because we need to stand against something that is at the heart of this Government's activity—constantly emasculating the House of Commons, removing from us our powers of control and not allowing us to devolve those powers as we think fit subject to a referendum of the people of that area. If, Mr. Deputy Speaker, you feel that I am moving away from the amendment, I remind you that it would remove from the Bill the very trick that could be used to get round the problem that this Government cannot win a referendum in England either. Why on earth are they not offering a referendum to the people of Wales? I will tell you, Mr. Deputy Speaker—it is because they know very well that they would lose it, and this Government have referendums only if they think that they can win them.

We want to get rid of part 3 altogether, but I would hope that the Government, in answering, would offer something in its place. I am sure that the real answer is for us to withdraw our amendment and allow the Government to move forward to a referendum on either part 3 or part 4. I suggest that it should be on part 4, and I hope in that case that I would find myself campaigning in the more pleasant company of Hywel Williams rather than that of the Father of the House.

At least we would be arguing about reality, democracy, clarity, transparency and consistency. At this moment, we are offered something that is opaque, inconsistent, unclear and fundamentally dishonest. It is for that reason that I am pleased that this party has insisted that we stand up for democracy and against the growing bureaucratisation of our society, led by a Government who are frightened of Parliament, which is best illustrated by the fact that they have a Prime Minister with the worst record of coming here of any Prime Minister since we first started.

Photo of Jennifer Willott Jennifer Willott Liberal Democrat, Cardiff Central 6:30 pm, 28th February 2006

I would like to speak to amendments Nos. 59 to 61. It seems a long time since we started debating this group of amendments and I shall endeavour to be brief.

The amendments would restrict the ability of the Secretary of State to derail the Welsh Assembly's wishes. They would remove the power to refuse to lay a draft order before the House and prevent unnecessary delay by requiring the Secretary of State to act within 30 days, rather than the 60 days currently stated in the Bill. Given that any Assembly Measures or draft orders have already been debated and agreed in the Assembly, there appears to be no need for further delay at this end. Liberal Democrats believe that the whole point of devolution is to let the people of Wales have their views represented, and it would completely undermine that principle if the democratic will of the Assembly were allowed to be delayed or completely stymied by the will of one individual in the person of the Secretary of State for Wales.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs 6:45 pm, 28th February 2006

My hon. Friend will, like me, expect Mr. Gummer to vote for that change because he has made it very clear that he would support any opportunity to increase democratic accountability in the system. Obviously, then, he would agree with my hon. Friend's argument that the will of the Assembly is clearly a more democratic guide to the interests of Wales than one appointed Secretary of State for Wales.

Photo of Jennifer Willott Jennifer Willott Liberal Democrat, Cardiff Central

Not surprisingly, I agree with my hon. Friend.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I would be grateful if, in the course of her remarks, the hon. Lady spoke to amendment No. 59 in her name and those of her hon. Friends. I am sympathetic to the idea of preventing the Secretary of State from derailing the process, but the impact of that amendment, if I understand it correctly, appears to be to remove the need for there to be a resolution of this House at all.

Photo of Jennifer Willott Jennifer Willott Liberal Democrat, Cardiff Central

As the hon. Gentleman is aware, the Liberal Democrats believe in a full Welsh Parliament, so ideally we would like the democratic will of the Welsh people to be expressed in such a Parliament. However, the amendments are about ensuring that, in the orders that come through this Parliament, the will of the Assembly cannot be derailed.

Photo of Jennifer Willott Jennifer Willott Liberal Democrat, Cardiff Central

I would rather not. This debate has gone on for a long time and it is important that we move on, or many issues will not be covered.

Unfortunately, we cannot support the Tory amendments in this group. Although we do not agree with all of the Bill, as we have made clear a number of times during the debates, we believe in devolution and would like the Assembly to have further powers. The Conservatives' amendments would slow up the process and cause unnecessary delays that would undermine the view of the Assembly; therefore we cannot support them.

Photo of David Jones David Jones Conservative, Clwyd West

The hon. Lady talks in terms of delay, but could not delay be avoided altogether if we deleted part 3 and proceeded immediately to part 4?

Photo of Jennifer Willott Jennifer Willott Liberal Democrat, Cardiff Central

I point out that the hon. Gentleman's own party does not necessarily agree with that. We have made our view clear throughout.

Depending on the Minister's response, we may want to press amendment No. 60 to a vote.

Photo of David Jones David Jones Conservative, Clwyd West

I rise to support wholeheartedly the amendment that stands in the name of my hon. Friend Mr. Grieve. Part 3 goes to the heart of what I consider to be a most reprehensible and devious piece of legislation proposed by this Government.

The Government seek to portray part 3 as an innocuous measure aimed at modestly increasing or, if you like, streamlining the powers of the Assembly. Were that the case I have no doubt that neither I nor my right hon. and hon. Friends would have any problems with it and we would not be taking up the time of the House. The Assembly is now a fact of life in Wales. It may not yet be working entirely satisfactorily but it is part of the fabric of government in Wales and we all have a duty to make it work as best it can. However, part 3 is not a modest measure. It is a measure aimed at conferring primary legislative competence on the Assembly on a piecemeal basis. It is therefore, by any measure, a major constitutional innovation which, if enacted, will transfer a significant degree of legislative competence from this place to another legislative body.

The fact that such transfer is, as I say, on a piecemeal basis through Orders in Council does not render it any less significant. The fact is that, over time, more and more primary powers will be ceded by Parliament to the Assembly, subject of course always to the executive filtration process of the Secretary of State, which, like my hon. Friend the Member for Beaconsfield, I find particularly repugnant.

It is generally agreed that the convention that has developed in this country is that if primary powers are ceded by Parliament to another body, a referendum should first take place in which the will of the people is consulted. That is what happened in Wales in 1997; that is what should happen now. The Government know that. Part 4 provides that such a referendum must take place before Assembly Acts may be passed, but Assembly Measures will be no less primary legislation, so the question is: why will the Government not give the people of Wales the simple right to vote on the proposals in a referendum? The answer is simple: they know that they would lose.

The Secretary of State has already acknowledged that there is no consensus in Wales for more primary powers for the Assembly. On 15 June last year, he said:

"we will call a referendum only if there is a consensus for one. There is no consensus for one now, and it would be lost."—[Hansard, 15 June 2005; Vol. 435, c. 266.]

and recently the right hon. Gentleman said that neither he nor the Welsh First Minister was

"in the business of calling referendums we are going to lose."

That is all well and good, but if the Secretary of State fears that the people of Wales would vote against the transfer of primary powers to the Assembly, why is he so insistent on inflicting those powers on the people of Wales, whether or not they want them?

The suspicion must be—I hope that it is not unfair—that some internal Labour party tension is prompting the proposals in part 3, which enable the transfer of powers to the Assembly while preserving the illusion of power remaining at Westminster, whereas, in fact, the power remains in the hands of the Secretary of State for Wales. The fact that the proposals constitute such a device was acknowledged by Lord Richard when he gave evidence to the Welsh Affairs Committee. What he said has been quoted before, but it deserves to be quoted again. 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. . . . 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."

In fact, it is more than almost; it is the transfer of a direct legislative competence to Cardiff without first consulting the people of Wales in a referendum.

That is reprehensible, and made all the more so by the fact that control of the whole procedure resides in the Executive and not in this House. The Minister shakes his head, but it is true: control rests with the Secretary of State for Wales, not with this House. The proposals represent a fraud on the people of Wales and the electorate of the entire United Kingdom. If the people of Wales are to have more devolution—not an ignoble aspiration on the part of those who want it—we should be entirely satisfied that that is what they want. Part 3 is wholly unnecessary; it is in the Bill purely and simply to serve the internal interests of the Labour party.

I say that we should proceed immediately to part 4 and consult the people of Wales now, through a referendum, on whether they do indeed want more legislative competence to be handed down to Cardiff. If so, we must abide by their decision and hand over that power. If not, we must equally respect their decision. The proposal is a three-card trick—an absolute disgrace to the Labour party. Perhaps the absence of Labour Members indicates the shame that they feel. What is proposed is an illegitimate exercise—an attempt to usurp the powers of this place. It is wholly reprehensible and the amendment should be supported.

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

Well, we have gone over the same old ground as we did in Committee. Let me put on the record what is, in fact, proposed in part 3, and not the fantasy outlined by Conservative Members. The purpose of part 3 is to provide the Assembly with a streamlined procedure to achieve its legislative priorities. It builds on the existing devolution settlement, giving the Assembly greater scope to determine the detail of Welsh legislation, but with Parliament remaining in overall control through the Order in Council process. It will enable the Assembly to break free from the Westminster logjam without fundamentally altering the devolution settlement. That was approved by the referendum in 1997.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Minister repeats what he said on Second Reading—that there is a legislative logjam—but we established in Committee that there is no legislative logjam. Why should we take seriously what he has to say when, in fact, he is merely repeating verbatim what he said on Second Reading and not engaging in debate at all.

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

It is not surprising that I repeat what I said verbatim: the hon. Gentleman made the same points on Second Reading and I am merely responding to them.

The hon. Gentleman claims that there is no legislative logjam, but of course there is. The Welsh Assembly cannot get legislation on the statute book as quickly as it would like to. The Bill proposes a way to deal with that problem.

Everyone agrees that the split between the legislature and the Executive needs to be established, but if amendment No. 4 were passed, it would result in the absurdity of a legislature without any legislative powers. The Assembly might have to wait many years to acquire primary powers in a referendum; in the meantime, Wales would be wholly dependent on primary legislation passed at Westminster, which would have to compete for time with UK Government priorities.

Photo of David Jones David Jones Conservative, Clwyd West

The Minister suggests that there would be a delay of years, but why should there be any delay at all? Why do the Government not simply proceed immediately to a referendum under part 4? Is it because they know that they would lose it?

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

As we have debated on many occasions and as my right hon. Friend the Secretary of State has explained several times, the Labour party's view is that if a referendum on any particular issue were held now, there would be no guarantee that it would be won. That would deal a fundamental blow to the confidence and reputation of the Assembly. We have put part 4 in the Bill so that, in the future, when a two-thirds majority in the Assembly deem that the time is right for a referendum and that there is a consensus in Wales in favour of moving forward to full primary powers, a referendum will be held. At present, the judgment is that now is not the time.

Photo of David Davies David Davies Conservative, Monmouth

The Minister said that the Government would not hold a referendum because there is no guarantee that they will win it. Does not that underline the point that we have been trying to make, which is that the Government have got into the habit of holding referendums only when they feel that they can win them, whereas we believe in holding referendums to allow people to have their say?

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

I am trying to remember how many referendums were held in 18 years of Tory rule. The answer is: not one. I will take no lectures from the hon. Gentleman about referendums. His argument is bizarre. The purpose of referendums is to establish people's view on a change.

It is pointless to hold a referendum if one knows that one is not going to achieve the change that is its purpose. [Interruption.] I am not going to take any lectures from Mr. Gummer, who was a member of the Cabinet for many of the 18 years in which the Conservatives were in government. During that period, not one referendum was held.

The procedure set out in part 3 will enable the Assembly to deal in a more timely way with legislation to deliver manifesto commitments made by Welsh Ministers, and will prevent the need to secure slots for Wales-only Bills or to rely on suitable England and Wales Bills being introduced at the right time.

Turning to Conservative new clause 1, which is the same as new clause 6, which was debated and rejected in Committee, the proposal to hold a referendum before the relevant part of the Bill can come into effect is unnecessary. There was a clear commitment in the Labour manifesto at the general election in May 2005 to

"legislate for a stronger Assembly with enhanced legislative powers".

The Government were elected on that manifesto. It is argued that the proposals were not set out in detail for the electorate, but the electorate knows that once a Government are formed their job is to introduce detailed proposals, and that is what we did in the White Paper published in June last year. There was not a single response among the 81 responses received to suggest that a referendum was required before the Assembly could be granted power to make Assembly Measures on matters on which Parliament had given it legislative competence. Those powers are an adaptation of the current settlement, not a fundamental change, and they are not the same as giving the Assembly primary powers.

Part 3 does not give the Assembly any new powers to legislate on devolved subjects, but it provides a new procedure for Parliament to grant such powers. It is extraordinary that the Opposition should want Parliament to hold an expensive referendum to seek permission to change our own procedures. Parliament will be able to scrutinise and control on a case-by-case basis the draft Orders in Council that confer those legislative powers on the Assembly. It will rightly be for the Assembly to scrutinise the way in which its legislative competence is used to enact Assembly Measures that address the needs of Wales. Since 1999, Parliament has passed legislation that gives the Assembly powers to make its own provisions for Wales. Increasingly, Parliament has been willing to give the Assembly broad powers to legislate in Wales-only clauses in England and Wales Bills. The proposed system develops that approach. Parliament still has control of the process, as legislative competence cannot be conferred on the Assembly unless both Houses of Parliament have agreed to do so. It is essential that part 3 should be in place from the outset. It is essential, too, that the Assembly should have the ability to seek legislative competence on its own initiative.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 7:00 pm, 28th February 2006

The Minister says that it is essential that part 3 should be in place, yet only a few moments ago, he acknowledged that part 4 probably could not be implemented because the people of Wales did not want it. Why does he think that part 3 is desired by the people of Wales?

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

Because they voted for a Labour Government and a Labour manifesto.

Amendment No. 5, which was tabled by the Conservatives, deals with Assembly resolutions to ask Parliament to pass legislation on devolved matters, but it would not change the legal effect of the Bill. There is nothing in the Bill to prevent the Assembly from making such a resolution. While Parliament passes legislation, it is for Government to introduce it, so the Government's role could not be circumvented and the amendment is not required. In addition, I remind Members of the provision in clause 33 whereby the Secretary of State is required to consult the Assembly about the Government's legislative programme. The Assembly can use the consultation to ensure that the Secretary of State is aware of matters that it wishes to be dealt with in primary legislation affecting Wales, whether or not the Assembly has competence to make Assembly Measures on those matters. There is therefore no need for the amendment.

Turning to new clause 3, I have made it clear throughout the progress of the Bill that pre-legislative scrutiny of proposed Orders in Council under clause 94 should be at the discretion of Members of Parliament and of Assembly Members. It is worth maintaining flexibility, rather than specifying requirements for joint scrutiny in the Bill. It is worth noting, too, that the House of Commons already makes provision for the Welsh Affairs Committee to undertake joint inquiries with Assembly Committees under Standing Orders Nos. 137A(1)(a) and 137A(3). That arrangement has led to successful pre-legislative scrutiny of a number of Wales-only Bills, so we do not require any further legislation. The right way forward is to allow Parliament to work with the Assembly to develop that successful model further, rather than establish over-prescriptive requirements in legislation. The way in which pre-legislative scrutiny is carried out is usually left to Parliament to decide, rather than being specified in legislation. Standing Orders, not legislation, are the appropriate means of dealing with that.

Amendment No. 7, which was tabled by the Conservatives, would prevent Orders in Council that amend schedule 5 from being made before the Assembly election in 2007. The Bill provides for the early commencement of clauses 94 and 95 so that clarifying amendments can be made to schedule 5 before general commencement, should that prove necessary. For example, if one of the descriptions of fields or matters in schedule 5 is found to be insufficiently clear, an Order in Council under clause 94 could be proposed to clarify the extent of the field or matter. I am quite happy to place on record the fact that it is not intended that such Orders in Council should be used to confer wholly new legislative competence on the Assembly in advance of general commencement of the Bill following the 2007 election. Although the Bill provides that sections 94 and 95 will come into force on the day on which it is enacted, in fact, we would not carry out any functions under those sections for a period of two months following Royal Assent.

Under amendments Nos. 59 to 61, which were tabled by Jenny Willott, Parliament cannot be written out of the process of approving draft Orders in Council. Mr. Grieve was quite right—the amendments would mean that there would be no parliamentary scrutiny of Orders in Council. It is not acceptable for the Assembly to vote itself additional powers. It is for Parliament to decide whether it is appropriate to confer legislative competence on the Assembly. Parliament has the right to legislate in relation to Wales, so it has the right to decide whether to allow another legislature to do so.

Amendments Nos. 60 and 61 would leave the Secretary of State with a vestigial role in the process. He or she would receive notice of a draft Order in Council approved by the Assembly, but he or she could do no more than sit on it for up to 30 days before having to return it to the Clerk of the Assembly, who would submit the draft Order for approval by Her Majesty in Council. There would not be any scrutiny by Parliament. The amendments illustrate the dangers of starting to unpick the Bill's provisions. If the Assembly could give itself legislative competence, what opportunity would there be to challenge it? I assume that the 30 day-provision is designed to cater for that, but it is a most unsatisfactory way of tackling the issue. I therefore urge hon. Members who have tabled amendments in this group not to press them any further.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I suspect that the Minister and I agree on one thing—amendment No. 59 encapsulates the criticism that my right hon. Friend Mr. Gummer made of the Liberal Democrats. When faced with a difficult choice, they decided that the best way to proceed was to eliminate all form of democratic scrutiny from the legislation to enable the Secretary of State to have a free hand with the Assembly without any intervention from Parliament in part 3. I do not know whether they intend to press their amendment to a vote, but I wish to concentrate on amendment No. 4.

The Minister has been wholly unpersuasive on the matter. One of the most telling comments that we have heard during the debate was the confession made for the first time by the Government that they considered that part 4 would not pass a referendum in Wales. Regrettable though that might be to my right hon. Friend and others, it highlights the absurdity of the Government proceeding by means of part 3. The justification offered to the House was that the Assembly would otherwise wither on the vine, whereas in fact it can have a perfectly respectable and separate existence implementing secondary legislation, if that is what the people of Wales want. There is no reason why the Executive cannot be split from the Legislature in order to improve that, which is why we supported the part of the Bill which does exactly that.

Our position is that in the absence of an assurance from the Government that there would be a referendum on the implementation of part 3, the only proper course of action is to remove part 3 from the Bill entirely. The people of Wales will lose nothing thereby. Part 4 offers them real change if they want it. The other parts of the Bill, particularly the splitting of the Assembly and the Legislature, offer them a new format for governance along current lines, if that is what they want. Part 3 should have no place in the Bill, and I urge every hon. Member in the House to support us in opposing it. If we do not succeed in removing part 3, I hope at the appropriate moment later this evening to press new clause 1 to the vote.

Question put, That the amendment be made:—

The House divided: Ayes 133, Noes 337.

Division number 177 Orders of the Day — Government of Wales Bill — [2nd Allotted Day] — Clause 75 — Business Organisations

Aye: 133 MPs

No: 337 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.