Clause 103 — Proposal for referendum by Assembly

Government of Wales Bill (Programme) (No. 3) – in the House of Commons at 7:45 pm on 18th July 2006.

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Votes in this debate

Lords amendment: No. 18.

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

I beg to move, That this House
disagrees with the Lords in the said amendment.

This amendment removes the Secretary of State's discretion over how and when to lay a draft referendum Order in Council before Parliament if the Assembly passed such a request on a two-thirds vote. The purpose of clause 103 is to ensure that the Secretary of State responds to a request from the Assembly within a proper time scale. It is right that such a request cannot simply be sat upon.

The effect of this amendment, however, would be to compel the Secretary of State to lay a draft order before Parliament within 120 days. I recognise the concern that the Secretary of State—perhaps one less charitable towards devolution than I—should not be able to obstruct the will of the democratically elected Assembly and that for the Liberal Democrats, that is a particular point of principle. I understand that fully. The commitment of the Liberal Democrats to devolution and to primary powers for Wales is long established, and I fully understand the concern that a move to primary powers should not be frustrated by a hostile Secretary of State. I would not support that myself, but of course I am sympathetic to primary powers and always have been. However, if any Government were bent on frustrating the will of the Assembly, this amendment would not be enough to stop them.

A hostile UK Government could always resort to primary legislation. After all, Parliament is sovereign. The real safeguard—I know that Lembit Öpik has real concerns about this point—is political. Any governing party in London that sought, arbitrarily or on some point of dogma, to block a decision by two thirds of Assembly Members in Cardiff would pay a heavy political penalty. They would be run out of town, just as the Conservatives were in 1997 for similar behaviour.

I respect the intentions of the Liberal Democrats and others who proposed the change, but I do not believe that this amendment will achieve the desired outcome as effectively as the Bill as it currently stands does. If a Secretary of State were wilfully to attempt to thwart the clear will of the elected representatives of the people of Wales, after a referendum request had been given full and detailed consideration by the Assembly, and approved by at least two thirds of Assembly Members, the consequences would be grave, both politically and constitutionally. There would be a real crisis and the Secretary of State would clearly be in the wrong.

The Government's objection to this amendment is not because we wish to aggrandise the role of the Secretary of State. Nor do we wish to put in place some kind of mechanism for thwarting a two-thirds majority of the National Assembly. Indeed, I do not see a real difference of principle between the concerns expressed in the House of Lords and by the hon. Gentleman and other Liberal Democrats, and the Government's position. It is a question of how to achieve the same end, and we do not think that the amendment is constitutionally appropriate. I shall explain why.

If an order is to be laid before Parliament, that is properly a matter for a Minister of the Crown. It would not be constitutionally appropriate for the Assembly to be able to force the Secretary of State to lay a draft order before Parliament, regardless of whether the Secretary of State was even ready to do so. The Secretary of State, as a member of Her Majesty's Government, cannot be accountable both to Parliament and to the Assembly. The Secretary of State—for that matter, any Minister of the Crown—is accountable to this House and to Parliament. He cannot at the same time be accountable to an Assembly. That is the clear issue at stake. However, the intention of this provision is not to create a new roadblock. As I have said, the Secretary of State would be likely to face irresistible pressure to lay the Order in Council. Nonetheless, the Government believe that it is important to maintain proper lines of constitutional accountability.

There are also genuine practical reasons why the Secretary of State should not be constrained to lay a draft order within 120 days. He or she would still have to comply with the requirements of clause 102 before doing so, including the preparation of the draft order itself and a statutory consultation—a point made very persuasively by my right hon. Friend Mr. Murphy. The draft order would have to be laid before the Assembly before it was laid before Parliament. The amendment would leave no scope whatsoever to alter that time scale, should it not prove possible to complete all those steps within 120 days. The amendment does not take account of those practical considerations, of the requirements of clause 102 or of the obvious point about parliamentary sovereignty and accountability. I repeat that the Secretary of State is accountable to Parliament, not to the Assembly, although I would certainly want to act in keeping with the wishes of a two-thirds majority of the Assembly.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs 8:15 pm, 18th July 2006

I have listened to the Secretary of State's comments with great interest and I acknowledge that he is genuinely attempting to acknowledge the concerns as highlighted by my Liberal Democrat colleagues in the other place and others. To an extent, his remarks have been reassuring and helpful. However, he has not answered the underlying question. Why not give the full authority to call and plan a referendum to the Welsh Assembly? Why does the Secretary of State need to have any role in that procedure? I understand that this Secretary of State thinks that that is necessary, but I would be interested to know his rationale.

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

I am grateful to the hon. Gentleman for his intervention and I appreciate the open-minded and constructive way in which he has sought a resolution to this and other outstanding points in a way that will allow the Bill to receive Royal Assent by the end of next Tuesday. If primary powers were to be granted, it would be by decision of this Parliament. The Assembly cannot grab the initiative. It is for Parliament to decide whether it is right for the Assembly to have primary powers. I hope that all parties will help the Bill to receive Royal Assent through their response in the House of Lords next Monday and that they accept the principle that Parliament cannot accept the decision on calling a referendum to trigger the primary powers—a fundamental step—being taken by anyone other than this House and the House of Lords.

I am trying to be as helpful as I can be to the hon. Gentleman, because he has sought to improve the Bill, not to block it or wreck it, in great distinction from the behaviour of the Conservative party throughout its progress.

Frankly, it would be an act of utter folly for anyone in the Secretary of State's position to attempt to obstruct the will of the people of Wales. Welsh voters simply would not tolerate it. Even a sceptical Secretary of State—we had plenty of those before 1997—would find it impossible to ignore such a request from the Assembly. The Government of the day would have to give the request the most sympathetic and serious consideration and ultimately, in my view, support. But it cannot be a rubber-stamp decision, for the constitutional reasons that I have explained.

Photo of Don Touhig Don Touhig Labour, Islwyn

I am following my right hon. Friend's argument. Will he confirm that, under our constitutional arrangements, the Assembly cannot require this House to pass legislation? The Assembly may request that, but, at the end of the day, this Parliament of the United Kingdom holds the ultimate responsibility for law making in this land and only this Parliament can grant full powers to the Assembly.

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

That is absolutely the case. I agree with my hon. Friend. I could not have put that better myself. That is the point that I have been seeking to make.

I want to make a secondary point. Let us also remember that it will still be for the Secretary of State to consult on the draft order before the Assembly can vote on it. That is the sequence in which things happen. After an Assembly request, a draft order would be drawn up, and then the Assembly would consider the draft order and vote on it. It could be highly significant if it turns out that the Assembly itself is not happy with the content of the order. It will have started the clock ticking under the amendment—120 days—and be unable to stop it, even if there was a process of interaction between the Assembly and Westminster on the detail of the order. The way in which we have framed things at least offers a sensible consultation process that could prove crucial in the final forming of the referendum, its wording and the process of the vote.

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

The Secretary of State is right to say that, throughout, the Liberal Democrats have sought to improve the Bill rather than to block it, and it is in that context that we have had the dialogue. In the context of what he is saying now, will he accept and register the fact that we still feel unease because we cannot be guaranteed that any future Secretary of States for Wales will necessarily be sympathetic to the referendum? How can he feel confident that the arrangement that he has constructively laid out will nevertheless not offer an opportunity for, for example, an anti-devolutionary Conservative Secretary of State for Wales to prevent the referendum from taking place, given that he is not giving us a time-limited period by which the Secretary of State must necessarily have laid the referendum before the House?

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

The resolution of that problem does not lie in the Lords amendment, because even if the Lords amendment were carried, the Assembly could not compel Parliament to do anything. In the event of, as the hon. Gentleman puts it, an anti-devolution Conservative Secretary of State—I suppose that there might be one of those creatures around in the future—wanting to do that, there would be an almighty constitutional bust-up. It would not be in Westminster's interests, and I do not even think that it would be in the interests of an anti-devolution Conservative Secretary of State, to behave in that way. It would cause a real conflict. If a Conservative Government were determined not to grant primary powers despite the Bill, and not to call a referendum, that would be a political battle that had to be had. That relates to the point made by my right hon. Friend the Member for Torfaen. Despite the clear route map that the Bill lays out towards primary powers via a referendum—when it gets Royal Assent, that will be on the statute book—if a hostile Conservative Government, who were never going to give Wales or the Welsh Assembly what they wanted in those circumstances, were determined to stop that, Parliament would be sovereign. However, that would create not just the constitutional crisis that I described, but a political crisis for the Conservative party that would be extremely damaging to its future prospects in Wales.

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

I grateful to the Secretary of State for giving way, because he is having his love-in and his little backroom deal with those on the Liberal Democrat Front Bench —[ Interruption. ] I am certainly not jealous; I do not want to be catching the Secretary of State's germs by getting that close to him— [Hon. Members: "Oh!"] Well, I feel sorry for him. He is not feeling well, you know. Notwithstanding all those silver-tongued words and the ridiculous picture that is being painted of an anti-devolution Conservative Secretary of State for Wales—I am glad that he acknowledges that there is going to be a Conservative Secretary of State for Wales—the issue with the amendment is all about his having proconsular powers so that he can control the timing of any referendum that is given to the people of Wales. Is that not the fact of the matter? If we do not allow the Lords amendment to go through, it means that he can act as the lord and master of Wales, calling the referendum whenever he wishes. That is the truth of the matter, because, of course, he and the First Minister and the Welsh Labour party are not in the business of calling a referendum that they may lose.

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

I find that the most extraordinary of the contributions that the hon. Lady has made during the debate. She is somehow setting herself up as the defender of the Assembly against a reactionary Secretary of State—if we were talking about a Conservative Secretary of State for Wales, we would have a reactionary Secretary of State by definition. To set herself up somehow as a champion of the Assembly against the rights and necessities of parliamentary sovereignty defies reason. I will not even attempt to respond any more, because she is smiling away—she does not really believe what she said, any more than anybody else does. The way that she has behaved, which I regret, right the way through the course of the Bill is to seek to frustrate it at every point and to seek to oppose the greater devolution of power to the Welsh Assembly. I am proud of what the Bill does in relation to the greater devolution of power. I am also proud that it offers the prospect of primary powers for the Welsh Assembly if a referendum triggers them. If a referendum does that, there will be primary powers.

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

The Secretary of State has made the constitutional points extremely well and I agree with him. But does he agree that there is a political element to this matter, too? Any decision to go ahead with the referendum to seek primary powers for the Assembly would have to be the result of political consensus between the Government, Parliament, and the Welsh Assembly Government. That is important, as is any vote in the Assembly. The Assembly on its own does not reflect completely the views of the people of Wales, because we have a role in that as well as Members of the House of Commons. The political reality would be that there would have to be an agreement and a consensus between Parliament, Government and the Assembly.

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

Again, I could not agree with my right hon. Friend more. He is absolutely spot on. The proposal in the Bill—but certainly not the amendment—would require active partnership between the Assembly Government and the United Kingdom Government. In a sense, it requires that—rather than an Assembly elected at a different stage in the electoral cycle ending up, as it were, being able to instruct this Parliament, which is elected at another stage in the electoral cycle.

I think that we are seeing much fuss about nothing. Given the clear assurances that I have given to the hon. Member for Montgomeryshire, I hope that the House will not divide on this matter and will accept the principles of the Bill and see it as a tremendous advance for Wales that will settle the whole issue for generations to come. Then, instead of constitutional matters, we can get on with debating better housing, better jobs, better health services, better education and all the other things that concern the people of Wales in their daily lives.

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

If there is a commitment to devolution, it is necessary to ask why the Secretary of State would want to exert a power of refusal that would put him on a collision course with the Assembly of the day about the very powers that his Government have brought forward. The Government's spokesman in the Lords, Lord Davies of Oldham, said that this was not an issue of seeking to aggrandise the Secretary of State, but that is the effect of the power and everyone in the House knows it.

The power allows the Secretary of State both to delay and to obstruct the Assembly's wishes and process and to remove or delay the ability of both Houses of Parliament to have a say in the matter. After two thirds of the democratically elected Assembly had voted in favour of holding a referendum on part 4 powers, why would the Secretary of State wish to act as a road block to such a provision receiving consideration in the House?

The whole process is fairly tortuous, but as I understand it, if the requisite two thirds of Assembly Members voted to pass a resolution in favour of a referendum, the First Minister would have to give notice of the resolution to the Secretary of State. Within 120 days of that, the Secretary of State must

"lay a draft of a statutory instrument containing an Order in Council...before each House of Parliament".

If the order was passed, a referendum would be held to decide whether the part 4 provisions would come into force. However, if the Lords amendment is not allowed to stand, the Secretary of State will be able unilaterally to give notice in writing to the First Minister that he refuses to lay an order and merely give his reasons. The order simply would not have to be laid and the Secretary of State could block the process from reaching Parliament.

During the debate in another place, Lord Kingsland [Interruption.] Hon. Members should listen to this. Lord Kingsland said:

"The real shift in power is from this Parliament to the Executive and the Secretary of State."— [ Hansard, House of Lords, 28 June 2006; Vol. 683, c. 1237.]

And a shift of power it is. The provision places the Secretary of State in a proconsular position over Wales—as the lord and master. It interposes a single member of the Executive between the Assembly's decision and the order resulting from that decision reaching Parliament for a vote. The process certainly does not square with the Government's response to the House of Lords Select Committee on the constitution, in which they said:

"The Government agrees that this is a matter for Parliament to decide", because the Secretary of State is placing himself in the dominant position.

The Bill has been characterised by the ingenuity that has enabled the Secretary of State to say one thing in Cardiff and another in Westminster. The provision, like the part 3 powers, gives the Secretary of State the opportunity to say pompously in Cardiff that he is proudly enshrining in legislation for the very first time the possibility of full law-making powers, while saying here that he has put a provision in the Bill to stop a referendum from being held if that does not suit him, or if he does not like the timing. In other words, he is saying here that he will not let the Assembly dictate to him.

Rhodri Morgan—the First Minister—the Secretary of State and Welsh Labour are not in the business of calling a referendum that they are going to lose, so the Secretary of State has taken a power that will allow him to block that. The Conservative party has made the decision to support a Welsh Assembly that works for the people of Wales. We will do that in a straightforward manner, not with weasel-like—

It being three hours after the commencement of proceedings, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [this day]

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 294, Noes 189.

Division number 293 Government of Wales Bill (Programme) (No. 3) — Clause 103 — Proposal for referendum by Assembly

Aye: 294 MPs

No: 189 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Lords amendment disagreed to.

Mr. Deputy Speaker then proceeded to put the remaining Questions required to be put at that hour.

Lords amendment No. 4 disagreed to.

Government amendment (a) in lieu thereof agreed to.

Lords amendment No. 5 disagreed to.

Government amendments (a) to (d) in lieu thereof agreed to.

Lords amendments Nos. 6 to 9 disagreed to.

Lords amendments Nos. 19 and 20 disagreed to.

Government amendment (a) in lieu of Lords amendments Nos. 6 to 9, 19 and 20 agreed to.

Remaining Lords amendments agreed to.

Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to certain of their amendments to the Bill: Nick Ainger, Mrs. Cheryl Gillan, Huw Irranca-Davies, Lembit Öpik and Chris Ruane; Nick Ainger to be the Chairman of the Committee; Three to be the quorum of the Committee.— [Huw Irranca-Davies.]

To withdraw immediately.

Reasons for disagreeing to certain Lords amendments reported, and agreed to; to be communicated to the Lords.