moved Amendment No. 60:
Page 51, line 2, leave out from "competence" to end of line 24 and insert "unless it relates to one or more of the reserved matters specified in Schedule (Reserved matters)"
The founding fathers of the United States, when they put together the American federal constitution in the latter part of the 18th century, had it right: they preserved the legislative competence of the state assemblies which were part of the federal United States. Since that time, this country, in granting independence to our dominions, to Australia and to Canada, has followed that pattern: the legislative competence remains with the state assemblies but powers are reserved to the central or federal parliament. Indeed, as recently as post war, a similar type of constitution was introduced in federal Germany so that the Lander Parliament has legislative competence and certain reserved matters, such as defence, foreign affairs and macroeconomic management, are dealt with centrally by the federal government.
In 1978, when the Labour government under Prime Minister Callaghan introduced the Scotland Act, they reversed the situation and, in granting in that Act primary powers to a Scottish Parliament which the Act was to create, they gave defined fields to the Scottish Parliament and left the overall legislative competence with the Westminster Parliament. That, of course, was changed in the Scotland Act 1998 and, for the first time within the United Kingdom, the Scottish Parliament was granted full primary powers and matters were reserved to the Westminster Parliament in the areas that I have mentioned—defence, foreign affairs, macroeconomic management and so on.
The same happened with Northern Ireland. Under the Northern Ireland constitution, even though we have been faced with a non-functioning parliament or Assembly, full legislative competence was granted to Northern Ireland subject only to reserve powers being retained in Westminster.
My amendment poses the question: why is Wales different? Why should Wales be treated in the way it is? The usual argument put forward by those who believe that the Welsh Assembly should be strictly confined to defined fields is that there is no separate body of law or separate courts in Wales. Whereas Scotland has a separate judicial system which survived the Act of Union in 1705 and a separate body of law based very largely upon the common law as it developed in Scotland, that is not the position in Wales. But that argument did not seem to strike any chord with the Labour government in 1978.
Northern Ireland, on the other hand, a creature of the Government of Ireland Act 1920, when partition was introduced, at that time had no distinctive, separate courts or separate legislation. Two separate systems of law have developed on the island of Ireland, with the northern part of it, Northern Ireland, serving a population of only 1.5 million as opposed to the nearly 3 million in Wales.
So it is perhaps not a very strong argument that Wales does not have a separately organised legal system. It is inevitable that Wales is already developing a separate system of laws as it stands. For example, secondary legislation passed by the Welsh Assembly has to be separately interpreted. Clause 79 shows that the secondary legislation passed by the Welsh Assembly has to comply with Community law and with, via Clause 80, human rights law. If a dispute arises, it is for the courts to interpret whether such legislation is compatible with Community law or human rights law. It so happens in Wales that counsel has been appointed by the Welsh Assembly to appear in judicial review so that, when a problem arises, it is not necessary for counsel to go back to the very beginning of the Welsh separate legislation as it is developing, and matters can be taken forward in court, preferably before judges who know what they are talking about and who are familiar with Welsh devolution, by counsel which is also familiar with, and experienced in, that field.
That is the position with secondary legislation. The Bill grants powers to the Assembly to pass primary legislation, which by its very nature will differ from the primary legislation passed at Westminster. That, too, will require separate interpretation. For example, Part 2 of Schedule 5 reveals that new criminal offences will exist in Wales, provided that the sentence in a magistrates' court does not exceed 51 weeks or that, in a trial on indictment, it does not exceed 12 months. My point is that a separate system of law is emerging in Wales with barristers, solicitors and judges who are familiar with it. Ironically, moves are in hand to try to curtail the Wales and Chester circuit, which has existed since medieval times and the reign of Henry VIII, when the assizes first circulated in Wales. The plan is to remove Chester from the circuit so that we will have a Welsh body of barristers. Therefore, there is no feasible argument to defeat my proposition in this amendment that full legislative competence should be given to the Welsh Assembly, but that there should be reserve powers, just as in Scotland. What I am seeking for Wales is that which this Parliament has already granted both to Scotland and to Northern Ireland.
An obvious area in which there should be legislative competence for a future Welsh Assembly is home affairs. If the Home Office is not fit for purpose, as a Cabinet member of this Government seems to think, it seems extraordinary that it continues to try to centralise. Nowhere in the whole body of government has there been greater opposition to devolution than in the Home Office. Whereas it would be sensible for a Welsh elected Assembly or parliament to take decisions about how Wales is to be policed, about how many police forces there should be, about how Wales is to be served by the prison department and about how probation is to work in Wales, the Home Office has always resisted that sort of thing. For example, recent consultation with the Assembly over the amalgamation of police forces led to a simple pronouncement from the Home Secretary, who said that the four police forces would be amalgamated regardless of what the Assembly and the people of Wales thought: it was to be imposed. That is the sort of thing that we seek to put in the Bill—legislative competence on a wider scale.
The Government may say, "You cannot have legislative competence that goes beyond executive competence. In other words, you cannot expect Ministers to legislate in areas for which they have no executive responsibility". It is a good argument. However, the Bill gives us an opportunity to make a start, to put us on a parity with the other parts of the United Kingdom, to introduce a constitution that is the same in the United Kingdom as in the United States and in our former dominions where federal constitutions have been introduced.
I do not imagine that I will persuade your Lordships that such a radical change to the Bill should be made now. However, I beg to move the amendment on the basis that this is a fight that continues.
Does it follow from the logic of the noble Lord's argument that he would be a supporter of an English parliament? Perhaps I can leave him to reflect on that.
Perhaps I may answer that. Our party is for devolution in England, but I am quite happy for the English to stay as they are because of the signal advantages that devolution brings to Wales and to Scotland over the English regions. If the English do not want devolution, I am sorry for them, but it is a matter for them.
So the answer is that the noble Lord, Lord Thomas of Gresford, would approve of an English parliament?
The noble Lord has, as he always does, put forward a cogent case for his amendment. We find ourselves unable to support it, for one very simple reason: we are opposed to the whole of Part 3. It would plainly contradict that approach if we were to accept an amendment to Schedule 5, because it is incorporated in the whole of Part 3.
For my part, if the amendment were introduced by a referendum in Wales, it would seem a wholly appropriate and logical conclusion for the future of government in a devolved Wales—if the people of Wales accepted that referendum. Otherwise it is a matter that the noble Lord, Lord Thomas, will have to accept will not be supported from these Benches.
As we have heard, the amendments in this group would change how the Bill defines the matters on which the Assembly could legislate, at first by Assembly measure and then, after a referendum, by Assembly Act. One effect of Amendments Nos. 60 and 61, applying as they do to Part 3, would be to confer all legislative competence on the Assembly immediately. That would be entirely inconsistent with the incremental approach that the Government propose in Part 3. Indeed, it would be tantamount to giving the Assembly primary legislative powers, something which the Government believe would require a referendum, a view shared by the noble Lord, Lord Kingsland.
I hope that noble Lords opposite will understand that as a matter of principle I am unable to accept the amendment. However, I take the noble Lord's point that the battle must continue. He and I have had this discussion in a number of Welsh Bills and I admire the way in which he continues to push forward the notion of further and more rapid devolution of powers to Wales. As I said, however, the Government have a view on this, which I have stated a number of times. The course we have set is the one we wish to follow.
All four amendments raise the issue of how to define the Assembly's legislative competence. There are two ways in which this can be done. Either the matters on which the Assembly can make legislation are specified in the Bill, or the matters on which it cannot make legislation are specified. The former is the approach that we have taken. This was broadly the approach followed in the Scotland Act, although the Bill before us today is more intelligible in that it uses plain language and avoids references to specific enactments whenever possible. The latter approach, of specifying matters outside legislative competence, was adopted in the Scotland Act 1998, and is the approach proposed in this amendment. This approach was also adopted in the Northern Ireland Act 1998, with some refinements.
The Government had an open mind on which approach to take, and chose the approach taken in the Bill for technical legal reasons which were set out in the evidence given to the House of Commons Welsh Affairs Committee and the Constitution Committee of this House.
As the noble Lord, Lord Thomas, pointed out, England and Wales is a single legal jurisdiction, and if the Assembly were able to make general legislation on any matter except those which are expressly reserved—like the Scottish Parliament or Northern Ireland Assembly—it would lead to the gradual emergence of a different and separate Welsh jurisdiction unless further, and potentially very complex, reservations were included in relation to matters such as the principles of civil and criminal law. The same complexities did not occur in relation to the Scotland Act, as Scotland already had a separate system of law in 1998.
I do not expect the noble Lord, Lord Thomas of Gresford, to agree with me but the Government's view is that the practical consequence of these amendments would be the need for different systems of legal education, different sets of judges and lawyers, and different courts. In order to avoid this, the better solution legally is to follow the approach of the Bill and limit the legislative competence of the Assembly to specified matters.
In addition, this has the benefit of being clearer for everyone. If any Bill were to list all the matters which were to be outside the Assembly's legislative competence, it would be a much more complex list than was required for the Scottish Parliament, simply because it would require complex exceptions on non-devolved matters such as criminal and civil law.
Liberal Democrat spokesmen in another place explained that one of the motives for their similar amendment was their wish to leave the Bill open to the possibility of devolving further fields of competence to the Assembly. If any similar motive should lie behind this new schedule, I would like to reiterate the Government's clear intention that this Bill is about deepening devolution, and not broadening it. We are giving the Assembly more legislative power, but within the boundaries of the current devolution settlement.
Clause 94, in addition to providing for matters relating to one or more of the fields in Schedule 5 to be added, also allows new fields to be added, so the Bill is already sufficiently flexible to accommodate the possibility of devolving further fields of competence to the Assembly. The Bill makes provision for the addition of new fields of competence to Schedule 5 via the Order in Council procedure specified in Clause 94.
I do not expect the noble Lord, Lord Thomas of Gresford, to agree with what I have said, but I hope that, in the light of the explanation I have given, he will feel able to withdraw the amendment.
I seek to add to the impeccable logic of my noble friend. I am sure that he will address the points on the legal system which the Minister has made. However, Amendment No. 61 would replace Schedule 5 with a new schedule, which would specify reserved matters and those matters which are not reserved. Indeed it does, as the noble Lord said, make the Assembly into a similar body to the Scottish Parliament.
Most people in Wales are concerned that whole areas will be subject not to the logic of primary legislative powers but to the managerial style of the Government, who bring in Orders in Council to get round some of the problems that arise. As my noble friend has said, the legal system in Wales is developing as time goes on. I can back him up in saying that there are strong voices in the legal profession in Wales who want a much more developed legal system in Wales to deal with the developing legislative system that is emerging via the Assembly. What concerns many people are the initiatives, particularly in those areas that impinge on primary legislation in education, health, agriculture—though some parts of the agricultural bodies have already been devolved—and local government. There are other issues such as Europe, broadcasting and transport and, as my noble friend has said, there is the whole issue of the imposition of a centralised solution for police forces in Wales.
The record is that since devolution it has been an extremely long and at times tedious process to get even very few parts of primary legislation that affect Wales through Parliament in Westminster. The ratio is roughly one to eight for Wales, compared with the primary legislation that has gone through the Scottish Parliament in the same time. That is a very unsatisfactory state of affairs. Maybe the managerial system of Orders in Council will produce—as I am sure it will—a hastening of the primary legislative procedure through this Parliament to benefit Wales but, as we know, there are a tremendous number of hurdles in the way. The Secretary of State and the veto powers of both Houses of Parliament are in the way of achieving many of the desirable primary legislative objectives of the National Assembly for Wales. I strongly support what my noble friend has said. I believe that Orders in Council are a managerial system and it would have been far better to have the straightforward competence of primary legislative powers for the Welsh Assembly.
I support the amendment. I have three brief points to make. I am very surprised that the Conservatives are against this move. In our debates on the powers of this House, for example, the argument is always not to clip the authority of this House, because the less responsibility that it has the less attractive it will be for people to come here to try to influence the legislative procedure of this Parliament. If that is the case for the House of Lords, is not the argument the same for the Welsh Assembly? If we have an Assembly that is restricted in its powers and apart from Orders in Council gains hardly any new powers in this Bill, does not the same argument apply? Those who could be of such value in that Assembly will not be attracted to take part in its deliberations because its powers will be so limited.
In 1979, when we had the first referendum in Wales, we lost out. The people of Wales did not want to respond at that time to that move to have an Assembly for Wales. But by 1997 people had changed their views. They had moved ahead in their thinking, and voted—albeit by a tiny majority, but a majority it was—to move ahead with the Assembly. I give credit to the Government for how they responded immediately to that request from the people of Wales. Now we have a development of thinking and support in Wales for a stronger Assembly with the powers suggested in the amendment. For those reasons, the Labour Government and the Conservative Opposition should support the amendment.
After hearing that speech and the remarks of my noble friend, I hope that when we come to Part 4 the noble Lord will enthusiastically support this party, which basically says, "Let's get on with it and have a referendum. Let's make it easier to have a referendum". Then we entirely agree with the proposition advanced from the Liberal Democrat Benches. I was glad to hear what he said.
The noble Lord, Lord Thomas of Gresford, loves to take us back in history. On this occasion, he took us back to the 18th century. The last time we were here, he took us back to some remarks of the great Lord Salisbury with which he disagreed. It is always rather dangerous to go such a step. It tempted me to make a few inquiries and I discovered that, in the first Home Rule debate, immediately after Lord Rosebery had succeeded as Prime Minister and leader of his party, he said that,
"before Irish Home Rule is concluded by the Imperial Parliament, England as the predominant member of the partnership of the three kingdoms will have to be convinced of its justice and equity".
It was not a remark that went down very well with the Celtic fringe of the Liberal Party at the time. Indeed, it led to the almost immediate and crushing defeat on the subject, because the Prime Minister had given an English veto. Listening to the noble Lord, Lord Thomas of Gresford, I wondered what his position was going to be as we move down this route. No doubt I was also prompted by the arrival of my noble friend Lord Baker of Dorking in his place, as he has recently raised the whole issue with his Bill, which is now in another place.
I look forward to Part 4 and make it clear that, when we get there, the Conservative Party will give a great deal of support to the Liberal proposition. However, we cannot do so on this messy and confused part of the Bill. I hope that, when the time comes, I will have the noble Lord's support on the amendments that I will move later this afternoon.
If the people of Wales wish to proceed at a different speed towards greater devolution than the Government of the day wish, how would they be able to acquire a referendum? Would the Government be happy to receive a petition from the people of Wales, presented to the House of Commons asking for a referendum?
I have considerable sympathy with the proposal of the noble Lord, Lord Thomas, because I thought that the original Scotland Act contained some serious errors. Trying to list what were going to be the powers of the Scottish assembly was so confusing that those of us who are lawyers thoroughly enjoyed ourselves working out which bits were still within the remit of Westminster and which were to be within the power of the Scottish assembly. The solution that the Government arrived at in the Scotland Act 1998 was an elegant one. It was a much better idea to say, "These powers will be reserved to Westminster and everything else will rest within the competence of the Scottish Parliament".
I was never very much in favour of devolution to Scotland, and I cannot say that anything done subsequently has either restored my faith or encouraged the Scottish people to believe that a good job is being done. Nevertheless, if we are to alter the constitution, it would be appropriate to provide symmetry between the constituent parts of the United Kingdom. If the Scottish Parliament has powers to legislate on anything except a reserved matter, it would be appropriate for a Welsh assembly or parliament to have a similar range of powers. There would be no confusion. We would all know, when we are dealing here with matters that are reserved for the whole of the United Kingdom, that we are not dealing with matters that may relate to a bit of Wales or a bit of Scotland, and we would know precisely what was going on. For that reason, it would be appropriate to achieve that symmetry.
I have much sympathy with the idea that if we are going to introduce a powerful assembly or parliament in Wales in such circumstances, a referendum should be held to determine the views of the people of Wales. That seems a sensible idea and I do not really understand why there should be any opposition to that.
The noble Lord, Lord Thomas, concentrated on the fact that there is a single legal system in England and Wales. That is, of course, correct. However, if he considers, say, the National Health Service, he will know that there are very different arrangements in Wales. As I understand it, the Welsh Assembly last year voted to abolish prescription charges. That is not the case in England. The Scottish Parliament is also considering such a proposal. Given that that issue affects a large number of people, we must consider that we no longer have a single national health service, but a number of national health services. If that is to be the way that such matters are organised, there should be symmetry between the constitutional arrangements in different parts of the United Kingdom.
I thank the Minister for the measured and courteous way in which he responded to my amendment. I also thank all noble Lords who have spoken for their support. I refer in particular to the noble and learned Lord, Lord Fraser of Carmyllie, whose experience in Parliament, in the courts and as Lord Advocate is very helpful to your Lordships when considering matters of this sort.
I am pleased that we agree that the idea of bolting on bits and pieces to the legal competence of the Welsh Assembly is highly unsatisfactory—that is, that we should from time to time in incremental stages take this bit and that bit and simply say through an Order in Council, "Well, you can now legislate on this or on that". It is a very unsatisfactory solution. I agree with the noble and learned Lord that the solution proposed for Scotland in 1998 was much better.
I do not accept the argument about there being a single legal system for England and Wales. I tried to address that when I moved the amendment and to point out that a corpus of Welsh law is developing which does not apply in England. In the early days of our devolution discussions—perhaps as long ago as 1997—I suggested that the Court of Appeal should sit in Wales and also that divisions of the Divisional Court should sit there to deal with administrative law. I do not suppose that this has anything to do with what I said but subsequently the Court of Appeal sat in Wales and so did the Administrative Court. It is highly appropriate that that should happen because we do not want a system whereby judges with absolutely no experience of devolution or Welsh legislation come to Wales and are presented with a completely new problem and new legislation. It is inevitable that a separate system will grow up, as the noble and learned Lord, Lord Fraser, pointed out, just as has been the case within the National Health Service. We regard this as such a strong matter of principle that I intend to test the opinion of the Committee.
"For the purposes of this section the question whether a provision of an Assembly Measure relates to one or more of the matters specified in Part 1 of Schedule 5 is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances".
What does that subsection add to the existing rules on interpretation, practised by the High Court? In other words, in what way will the courts have to change their approach to statutory interpretation to conform to Clause 93(7)? I beg to move.
As we have heard, Amendment No. 60A would remove Clause 93(7), which is included to help interpret whether a particular provision in an Assembly measure is within the Assembly's legislative competence. There is nothing unusual about it, either; it is modelled on a similar provision in the Scotland Act 1998. If a question arises as to whether a provision in a measure relates to a matter in Schedule 5, it is to be decided by considering the purpose—"the pith and substance" or "the true nature and character"—of the provision. The effect of the provision must be considered in the light of all circumstances.
To illustrate the idea of "pith and substance", we could take the example of restricting smoking in enclosed public spaces. The substance of the matter would be public health, because the purpose was to improve public health and cut deaths from lung cancer, heart disease and so on, caused by passive smoking. This would be a defence against any challenge that it was really about licensing because it applied to licensed premises and imposed conditions on publicans, or that it was about employment law. I use this example because, when it was given in the Commons, the response from the shadow Attorney-General was:
The provision also cuts both ways: it could help in deciding whether something was outside the Assembly's legislative competence, as well as within it.
If this provision did not exist, the Assembly could be severely hampered in its ability to enact legislation. While it is possible that the courts would develop a similar interpretative tool themselves, the absence of this provision would leave unwelcome room for doubt as to how to interpret provisions of Assembly measures. Legal challenges could be brought to Assembly measures which affected, even incidentally, non-devolved matters. Good and innovative legislation could well involve provisions which cut across different subject matters or tackle problems in new ways. This is what the proposed amendment, in our view, would surely hinder. The amendment would greatly increase the scope for legal argument about whether something was or was not within the Assembly's powers.
Given this explanation, I hope that the noble Lord, Lord Kingsland, will withdraw his amendment.
I am grateful to the Minister, and I recognise the profound intellectual perspicacity of the shadow Attorney-General in another place. Nobody admires him more than I do. However, I shall ask the Minister again the question I posed at the outset: how does this change the approach that the courts normally take? Normally, they start off with the text of a statutory provision, and it is only if that text is unclear that they move on to a purposive interpretation. Am I to take it that that approach, which they would normally use, for example, in cases of judicial review, no longer applies and a new approach now derives from Clause 93(7)?
I have to repeat a point I just made: if this provision did not exist, the Assembly could be severely hampered in its ability to enact legislation. While it is possible that the courts would develop a similar interpretive tool themselves, the absence of this provision would leave unwelcome room for doubt as to how to interpret provisions of Assembly measures. If the noble Lord is not happy with that explanation, I undertake to write to him at considerable length within the next two or three days about this matter.
For once, I find myself in support of what the noble Lord, Lord Kingsland, said. All the subsection does is to set out the golden rule of law as far as statutory interpretation is concerned. If the ordinary grammatical meaning of the words is unambiguous, that is the interpretation. If there is ambiguity, one is entitled to look further afield and the boundaries of doing so are set out in the subsection with which we are dealing. It adds nothing to the golden rule of statutory interpretation, and it detracts nothing from it, as I understand it.
In moving Amendment No. 61A, I shall speak also to Amendment No. 61B. Amendment No. 61A refers to Clause 94(1)(b) and Amendment No. 61B refers to Clause 94(2). These amendments are essentially probing amendments. In order to put them into context, I need to summarise what Part 3—I hesitate to say "does", and shall merely say, "seeks to do".
Part 3 seeks to establish the law underlying Assembly measures. Assembly measures are defined in Clause 92. An Assembly measure can only be intra vires what will subsequently become the Act if it is within the range of a matter which itself is within the range of a field, both of which are set out in Schedule 5 to the Bill.
Clause 94 (1) and (2) provide a mechanism for adding to both fields and matters contained in Schedule 5. We learn from Clause 94(1)(b) that the schedule may be amended to add a new field or vary the scope of an existing field. That power is modified by Clause 94 (2) which says that no field can be modified if the modification does not fall into a function that is already exercised by a Welsh Minister. I saw the Minister nodding so I take it that he is with me so far. My question is: what are these powers that are currently exercised by Welsh Ministers that go beyond the fields stipulated in the Bill? I beg to move.
Amendment No. 61A, on which I believe Amendment No. 61B is consequential, would prevent any addition to, or alteration of, the fields listed in Schedule 5 by Order in Council under Clause 94. Such additions or modifications to those fields could be achieved only under another UK Parliament Bill.
The amendments seek to preclude any possibility of the Assembly's legislative competence being expanded into new fields. The Bill does not confer any legislative competence on the Assembly, other than in respect of those matters listed under "Field 13: National Assembly for Wales". Any decision to confer additional legislative competence on the Assembly, or to add to the fields in which it may acquire such competence, will be taken on a case-by-case basis, with the agreement of both Houses of Parliament.
The amendments would mean that even if the Welsh Ministers were to acquire new functions in a field other than those listed in Schedule 5, the Assembly would not be able to seek to gain legislative competence in that field through an Order in Council under Clause 94. That would be unnecessarily inflexible. The Government's intention is that if functions in a new field are transferred to the Welsh Ministers then the Assembly should have the ability to acquire legislative competence over those matters, subject to Parliament's consent.
As drafted, the Bill provides that a field cannot be added to Schedule 5 if the Welsh Ministers, First Minister or Counsel General have no functions in that field. That is consistent with the policy set out in the White Paper, Better Governance for Wales. Amendment No. 61B would remove this condition.
It would be unreasonable to limit the potential legislative competence of the Assembly in perpetuity. If Welsh Ministers were to acquire functions in a new field, as they could do under Clause 58 , it would be inconsistent to say that the Assembly should not be able to acquire legislative competence in that field as well. Why should that field be different from all the others? It would still be a matter for Parliament to decide under Clause 94 whether Schedule 5 should be amended in that way, so Parliament would still be in control.
I hope that what I have said reassures the noble Lord, Lord Kingsland, and that he will feel able to withdraw his amendment.
I am most grateful to the noble Lord for his clarification. I think that he sees the source of my concern. There are already substantial areas of potentially devolved fields under Schedule 5. Is it really necessary to determine what future fields can be exercised under Schedule 5 by reference to functions that are exercised by Ministers and alterable under Clause 58? That is the question. I simply do not understand why such a labyrinthine formula has been devised to extend the scope of the Assembly measures that can be made by the Welsh Assembly. If we are going to add to Schedule 5 in future, surely it would be much better to have a single straightforward rule in one clause, which will subsequently become one section of an Act.
I apologise if I used the word "modification". It is clear from my proposed amendment to Clause 94(2) that the governing words are, "does not have effect". I regard that ingredient in the clause as crucial to my argument.
The Minister offered to write me a letter about my previous amendment; and I wonder whether he would kindly do so on this amendment because I am very anxious to know how wide the gap is between new fields and new ministerial functions. These two variables will determine the expansion of the powers of the Assembly. How will they work together both technically and politically? We do not know.
I will be more than happy to write a second letter to the noble Lord, setting out in considerable detail the arguments that I hope will result in him being reassured about his amendment.
I believe that, since the experience of 1998 and the legislative requirements of the Assembly, there is widespread support to enable the Assembly to gain easier access to legislation than the current arrangements allow. The present arrangements are inevitably about trying to get a couple of Bills into the parliamentary Session and to achieve success for either Wales-only Bills or UK Bills with Welsh-only clauses. We should not dismiss the value of that experience, because there has already been a significant transfer of legislative competence in education and in health through that process, but those who pragmatically wish the devolution process to develop are making the reasonable point that we should find an easier way for the Assembly to fast-track legislation.
The Richard commission considered aspects of this, and we came up with the idea of framework legislation. Indeed, there is evidence of that in the present NHS Redress Bill, which has gone through this House and in which an important framework clause paves the way. Such a means by which the Assembly might obtain legislative competence in the future may still be one of the routes that will be followed, because it makes sense to do it sometimes in a UK Bill. The Government at least appear, in the Part 3 Orders in Council, to have responded to the general feeling that there should be some way in which they could fast-track Assembly legislation. They have been described in a variety of ways since the novel introduction of such an Order in Council. They have been called an ingenious device, a backdoor means of transferring primary legislative powers or a virtual transfer of primary legislative powers.
My amendment was prompted by the debate on the nature and character of these novel Orders in Council. What will they look like? What is the nature of their context? How widely or specifically drawn will they be? As they are novel we have no precedents to pursue; therefore, I tabled this amendment to allow the Committee to explore what an Order in Council should contain. My amendment was also prompted by the Government's very helpful effort to give us two mock examples of how an Order in Council would look. Members of the Committee who have followed these issues will know that the Government put forward mock orders for two Bills that have already gone through this House, so that we could compare the Order in Council process to the Bills, which are now Acts, which have gone through.
The first relates to the Bill to create a Welsh ombudsman covering a whole range of public services in Wales. We were very helpfully given a draft mock order, if this Bill had not gone through, of how an Order in Council would have paved the way for the measure that subsequently would have been drafted and taken up by the Assembly. The mock order was comprehensible, but rather convoluted. Matter 14.1 refers to,
"The creation of, and conferral of functions on, an office or body for and in connection with investigating complaints about relevant public sector persons",
When I read that draft order I understood exactly what I was expected to support: to transfer legislative competence to the Assembly to create an ombudsman for Wales.
I was also informed of the limitations of that ombudsman's role. The draft mock Order in Council included a provision that,
"at least one-half of the expenditure on the exercise of the person's functions of a public nature in relation to Wales", has to come out of the Welsh Consolidated Fund. In other words, it limited the scope of the ombudsman and his role. He or she could not investigate bodies not covered by the provision. That draft order is perfectly understandable and sufficiently informative in content. I could understand what I was being asked to support.
The second draft mock order covered the Transport Bill that had gone through this House, which enabled me to compare the contents of the measure in the draft order, but I found this one far less satisfactory. This and the other House would have been informed only that various provisions would be required in plans and strategies for transport and that there would be arrangements for the discharge of local party transport functions. Frankly, from that draft order I would not have fully understood the nature of the proposed measure. In particular, I could not have picked up that this subsequent measure would include the groundbreaking provision to possibly finance air services and airport services in Wales. That was of major importance and caused a great deal of genuine discussion, which was not necessarily an argument or controversy but nevertheless of interest. One could not have divined from such a draft order that the subsequent Assembly measure would include such a provision.
That prompted me to wonder whether we should not at least try to consider what we should expect to be in a draft Order in Council. So the proposals I have put down as a basis for debate, not as an ultimate solution, would ensure that an Order in Council should at least identify the principal features of what would become an Assembly measure. I think that consideration of these issues, in particular the two illustrative examples provided by the Government, prompts the following questions: how much should be included in an order; how much of an indication should be given of a subsequent measure that the Assembly would introduce; and how far should the Order in Council define the terms and limits of the subsequent measure? These are important questions.
Perhaps I may anticipate an obvious criticism of my proposal. Why, for example, should information be put in an order which, unlike a Bill, is unamendable? Why should Westminster get involved in the substance of subsequent Assembly measures? To those questions I give this simple answer: despite the arguments that Part 3 is in fact a virtual transfer of primary powers, it does not transfer primary legislative powers; both Houses in Westminster remain in legislative control. Ultimately, whether we pass or reject an Order in Council is a matter for the two Houses. Obviously, if we have been asked to pass such an order, we should have some idea of what we are being asked to pass. A clearer indication of what is subsequently to become an Assembly measure is needed.
I believe passionately that if people wish to move to primary legislative power, Part 4 is the way to do it—through a referendum. As my noble friend Lord Richard and I suggested when I served on the commission, there should be a model for that transfer. In many cases it would possibly include additional Members and, of course, the possibility of an alternative voting system. That I could at least contemplate because it makes sense, but we should answer the critics who say that Part 3 is a back-door way of doing this by saying that we should expect Orders in Council that come before this House and the other place to be specific in their aim, about what kind of legislative competence the Assembly seeks and about the objectives of such competence. I beg to move.
The spirit in which the noble Lord, Lord Rowlands, has moved his amendment is entirely shared by all Members on these Benches. The noble Lord will see that our Amendments Nos. 64A, 64B, 64C and 66A are grouped with his; and I would be interested to know at some stage during the debate what his reaction is to our ideas on filling this undoubted gap.
Before I turn to my amendments, I have one question about the detail of Clause 94(3), to which the noble Lord's amendment refers. I am focusing on the powers that an Order in Council provides under this clause, which grant either new fields of action or new matters of action to Schedule 5. How is Clause 94(3) relevant? I ask that for the following reason. Clause 94 provides a mechanism for creating new fields and new matters. Subsection (3) gives power under this procedure to the Crown by Order in Council to disapply existing legislation in the United Kingdom, whether it is primary legislation or secondary legislation. Is this not premature, because the transfer of fields and matters does not itself create new law; all it does is expand the vires of the Welsh Assembly to create new law through Assembly measures?
Where an Assembly measure is approved by the Crown, I can quite understand at the second Order in Council stage, when you have a new law of the land—or, at least, the land in relation to the territory of Wales—that it would be necessary to disapply certain primary legislation and delegated legislation which contradicted the terms of the Assembly measure so approved; but I cannot understand how it could possibly make sense to disapply these measures at the earlier Order in Council stage—because that stage does not change the law of any part of the United Kingdom; it merely provides extra vires to make new laws.
I put this question to the Minister as a matter of inquiry. In my submission, this notion would be much better placed at a later stage of Part 3 of the Bill and in relation to the second Order in Council stage, not the first. I have not given the Minister warning that I was going to say this because it only occurred to me when I was looking at the text just before the noble Lord, Lord Rowlands, spoke. But, as his amendment is to that part of the Bill, it struck me that it would be an appropriate moment to mention it to the government Benches.
As I have said, the spirit of our amendments broadly reflects that of the noble Lord, Lord Rowland. We are seeking to establish as thorough a parliamentary procedure as we possibly can to consider the draft Order in Council passed by the Welsh Assembly, together with whatever memorandum the Government produce in support of it. The attitude of Ministers in another place has been to say, "Well, this is all up to Parliament. We will leave it to you. You will have 60 days to sort all this out". I can see the force of the Government saying that it is up to Parliament—after all, they are rightly reluctant to interfere with procedures which are those exclusively of this House and another place—but, given that we are effectively transferring legislative power from both Houses to the Welsh Assembly, I would humbly submit that we might need rather longer than 60 days to consider all the details of the matter.
That has animated our amendments tabled in this line. We believe that Parliament ought to have up to six months to consider the proposed addition of a field, or of matters under a field, before the 60-day period starts. That six months would give the Government, in seeking to formulate the right order to place before Her Majesty, the opportunity to hear representations from all parts of the United Kingdom, whether or not those submissions are made by lobbying organisations, or by voluntary organisations—of course, voluntary organisations lobby as well—or by vested interests. It would also give the Secretary of State the opportunity to take into account any resolutions about the content of the Order in Council made either by another place or your Lordships' House. Essentially we are engaging with the noble Lord, Lord Rowlands, in his amendment, but we are trying to set out a rather more elaborate procedure than he has done.
I regret that I did not put my name to the amendment of the noble Lord, Lord Rowlands, because his speech clearly expressed the anxieties that exist in Wales about the content of Orders in Council. Anxiety is certainly felt that things will not be spelled out clearly. Whichever of the routes set out by the amendments in this group one takes, I say as someone who is a non-lawyer but who works in Wales and listens to what people are saying that quite a degree of anxiety is felt that Orders in Council will not have their contents sufficiently spelled out and will therefore be inadequately thought through prior to coming before us. The advantage of the noble Lord's wording—
"all of the principal features"— is that it would act as a standard and as a checklist against which different Orders in Council, with time, could be looked at, and it would provide an assurance that what one might call the collateral consequences of legislation had been thought through before we were presented with the outline framework. So I support the principle behind the amendments, although, as a non-lawyer, I am very confused as to what would be the best route to follow.
We owe a great debt of gratitude to the noble Lord, Lord Rowlands, for raising these important issues in the way that he has. I also strongly support the remarks of the noble Baroness. As I listened to my noble friend Lord Kingsland, I was reminded of the important contribution made in another place by Mr Paul Murphy, who, after all, has great authority to speak on the topic. He made it very clear that he was not at all happy about the adequacy of the arrangements for considering these Orders in Council and what was to be in them. He said that he was not convinced that these arrangements should be dealt with simply by the business managers. He argued that there was a case for the Assembly and Parliament to meet together in a committee structure to look at the arrangements. He said:
"The arrangements for the Assembly Government, or the Executive as it is likely to be called, and the British Government in terms of working out what happens with the Orders in Council are well defined in the Bill. Checks and balances exist, but there is a gap as far as this place is concerned"— he was referring to the other place. He continued:
"My right hon. Friend the Secretary of State and my hon. Friend the Minister would do well to return to the issue with colleagues, whether it be the Leader of the House or whoever, to consider again whether to establish formally in writing—in Standing Orders, in legislation or wherever—a system by which pre-legislative scrutiny is defined more closely and adequately, and Orders in Council themselves are not limited to one and a half hours' debate upstairs in a Committee. That is not good enough for the issues that we are dealing with".—[Hansard, Commons, 23/1/06; col. 1195.]
That is another aspect of the limitations, referred to by my noble friend Lord Kingsland, under which we would be operating. Having read the debates in another place, I am not at all clear that there has been an adequate response from the Government on how these matters are to be dealt with.
The Minister has no doubt been considering very carefully the remarks of the right honourable gentleman in another place and other points that have been raised, including those of the noble Lord, Lord Rowlands, about how we are adequately to be apprised of what really is involved in the orders that come before us. The noble Lord, Lord Rowlands, made it clear that this was a probing amendment and that he was looking for information. It is therefore very important at this stage that we hear a pretty coherent account from the Minister so that we can consider the adequacy of these arrangements when we come to a later stage of the Bill.
We owe my noble friend a debt of gratitude for triggering an important part of the debate on how the Orders in Council and measures are intended to work. I am grateful to him for tabling the amendment. It is part of the constructive work that he has done also on the Richard commission and in the preparation of the White Paper. He has raised important points which I will seek to address as fully as I can while commenting on the additional points made by other noble Lords in support of his amendment. I shall also address myself to the amendments of the noble Lord, Lord Kingsland, who specifically asked whether Clause 94(3) was not premature. I hope that I will be able to address that issue more fully when I deal with his alternative proposal on how these issues should be considered. At the root of that lie both the differences between us and perhaps a different understanding of what the Government are seeking to propose. I hope that the noble Lord will eventually change his mind and appreciate that the Government have the issue right.
My noble friend recognises in his amendment that scrutiny of the detail of an Assembly measure is a matter for the Assembly itself. What we are discussing here is how detailed the Orders in Council under Clause 94 will need to be and how much information Parliament will have on which to decide whether it should grant legislative competence to the Assembly on a matter. That is the issue that the Order in Council will put before Parliament. As noble Lords have recognised, Orders in Council are not amendable. I hear what the noble Lord, Lord Crickhowell, says about comments in the other place that an hour and a half's discussion elsewhere might not be enough for these orders. That is a matter for both Houses of Parliament to take into account on the question of the scrutiny. It is not for the Government to dictate to Parliament a detail such as that. I am second to none in my admiration for the insight that my right honourable friend in the other place, Paul Murphy, brings to these debates. He may well have a point that wins favour in Parliament—that the normal length of time for consideration of orders may need to be extended when we are dealing with orders of this kind. However, that is a matter for Parliament to deliberate on. It is not for the Government to instruct Parliament in these terms. We are discussing process: the amount of information required and how Parliament obtains that information.
The key point is that it would be possible for the Assembly to acquire legislative competence under Part 3 only if the Government and Parliament were satisfied of the case for that in each specific matter in which competence was sought. The test for Parliament is whether it will be appropriate in principle to grant the legislative competence to the Assembly. Parliament has the right to ask—in fact, the duty to expect—as much information as it thinks necessary to reach such a judgment. However, we anticipate that that will be provided during the pre-legislative scrutiny of any proposed Order in Council. The Assembly rather than Parliament will scrutinise and decide on the detail and merits of a particular Assembly measure. The question whether the Assembly should be given competence to legislate on a particular matter is an entirely different issue. That, clearly, is for Parliament to consider. That is where the Order in Council is crucial.
Am I right in thinking that once legislative competence has been granted in a particular field by an Order in Council—in other words, as an addition to Schedule 5—any number of Assembly measures may be brought in succeeding years under that increase in jurisdiction? Consequently, is it not inappropriate for a particular measure to be attached to an Order in Council?
That is precisely the case. Not only might more measures be proposed under the powers granted by a specific Order in Council, but it is not unknown for legislative bodies to change their minds—it is not unknown for legislative bodies to see different majority parties in control, which certainly change their minds on what should be enacted. The Assembly might not just propose other measures under the same range of competence; it might also seek to contradict a measure that had obtained under a previous Administration—the noble Lord is absolutely right about that. Therefore, we cannot conceive of the Order in Council being specific to a measure. That would be so limiting a concept of devolution as to make a mockery of it.
The Order in Council seeks to create the power of legislation, which the Assembly then follows through. I shall give way to my noble friend as I believe that he will help me even further. He has sought to identify the nature of the process which guarantees that Parliament has sufficient information to carry out this measure.
If there is a subsequent measure beyond the first measure, does that not have to stay within the terms of the original Order in Council, or can it go beyond it? Let us take the mock order on the ombudsman. Would it be possible in a subsequent measure to alter and amend the role of the ombudsman in such a way that it would be different from that which the Order in Council defined?
No, that would not be possible. The Order in Council specifies the area of competence of the Assembly. I emphasise to the noble Lord, Lord Crickhowell, that the area of competence would have been identified. The preparation of the Order in Council would require intensive pre-legislative scrutiny to identify exactly the information that Parliament would need in order to determine the range of competence and the measures which could be carried out under the order. If a measure is put forward that is beyond the competence of the Order in Council governing that area, it would not obtain the support of the Secretary of State. The Assembly would not be so foolish as to waste its time proposing a measure that it would recognise would be ruled out on the ground that it did not have the relevant competence. The case for the competence, and the understanding of Parliament of what it involves, would be assessed in the process of pre-legislative scrutiny prior to the order being presented.
The noble Lord, Lord Crickhowell, has spoken very articulately on this issue when we have discussed it previously. We all recognise that there are limitations regarding the debate on the Order in Council; I accept that point entirely.
I am most grateful to the noble Lord for giving way. I take up the rather good example given by the noble Lord, Lord Rowlands, about the transport order. Like him, when I read the example, with a lot of stuff about local government, transport plans and so on, I did not have the faintest idea that it covered the possibility of financing air transport. If you were bringing a Bill before Parliament, the Bill would set out clearly that that was one of the things that you wanted to do. But as I understood the noble Lord, somehow Parliament in the pre-legislative scrutiny stage would have to discover the range of things that the Assembly might do without them being named. That would be difficult unless you had a very clear idea of what the Assembly measure was going to be. There may be an answer to that, but the more I think about the example given by the noble Lord, Lord Rowlands, the more puzzled I am about how Parliament is to find out exactly what the scope of the measure is.
I reinforce that point by saying that it adds further weight, if I may respectfully say so, to the arguments that I was advancing earlier about Clause 94(3), which refers to repealing primary and secondary legislation. The Order in Council under Clause 94 can only transfer vires. The Welsh Assembly may not decide to pass any Assembly measures under those transferred vires—to which I am very happy to have the nodding assent of the noble Lord, Lord Thomas of Gresford—and therefore there would be no disapplication of any existing law. In those circumstances, what on earth is Clause 94 doing in the place in the Bill where it is found?
What the noble Lord is referring to in his mention of Clause 94(3) is implicit also in the approach of the amendments tabled in his name and that of the noble Lord, Lord Roberts. In the Government's view, the Opposition Benches are arguing for proposals that set things back to front. The draft measure attached to the draft Order in Council would be one that the Assembly had had the opportunity to scrutinise. It would be odd if the Assembly was to spend time scrutinising legislation that it did not have the legislative competence to make a decision on. We have got it the right way round; the noble Lord is arguing the case back to front. He is suggesting to the Welsh Assembly that it may be encouraged to propose measures in circumstances where it was not clear whether it had the legislative competence to do so. We are arguing the exact opposite.
We recognise that the Order in Council must be precise, narrowly defined and clear, because that is how Orders in Council operate, and they are usually brief, succinct and to the point. We also recognise that Parliament will not assent to Orders in Council until it has the information necessary to understand the power that is being sought. Parliament has the right to make those demands. All those issues will be identified in the pre-legislative provisions, so the competence that the Assembly is seeking will be defined first in the documents put before Parliament. Demands for any further information and debate in the pre-legislative scrutiny stage will clearly identify the areas where the Order in Council will obtain.
If I may say so, with great respect to the noble Lord, it is a bit rich of him to accuse the Opposition of having matters back to front. As I said previously in Committee, it is the Government who have matters back to front. Had they organised themselves both intellectually and politically in a better manner, they would have started off with the provisions concerning the transfer of vires and finished with the provisions on Assembly measures. In fact, they have done exactly the opposite.
Moreover, the Government have added confusion to all this by introducing Clause 94(3), which belongs to the second-stage Order in Council process and not the first. That is precisely why I tabled Amendment No. 64A, which refers expressly to an Assembly measure. It is clear from Clause 94(3) that the clause is intended to change the law. Therefore it was necessary for me to draft an amendment to encompass Assembly measures in Clause 94. I agree that it is completely illogical, but the illogicality is necessary because of the Government's own illogicality, not that of the Opposition.
I shall give my understanding of this matter. Schedule 5 already contains 20 fields, under each of which the National Assembly for Wales will be entitled to bring in an Assembly measure. Such a measure goes through the Assembly and then, unless the Secretary of State intervenes under Clause 100 and stops it—by making,
"an order prohibiting the Clerk from submitting the proposed Assembly Measure for approval by Her Majesty in Council"— the measure is approved under Clause 101. That is the simple way in which an Assembly measure progresses under any of the 20 fields already in the Bill. Parliament has absolutely no part to play in considering the merits of the policy behind an Assembly measure in an existing field.
If the Secretary of State steps in to prevent a measure from going through and makes,
"an order prohibiting the Clerk from submitting the proposed Assembly Measure for approval by Her Majesty in Council", that order is,
"subject to annulment in pursuance of a resolution of either House of Parliament", under Clause 100(8). That is the procedure. Clause 94 simply deals with extending those 20 fields to something else—some other area. For example, field 5 is education and training. At the moment, without this Parliament getting involved at all, the Assembly will be able to pass an Assembly measure dealing with education—let us say introducing the 11-plus in Wales. A subsequent Welsh Government could abolish the 11-plus. That is all within the fields of competence in Schedule 5.
Schedule 5 does not include energy, for example, and there is no competence at the moment for the National Assembly for Wales to introduce, let us say, a Severn barrage. It would be necessary to obtain an Order in Council under Clause 94 to extend the number of fields from 20 to 21 to put energy in, and then for the Assembly to pass a measure, subject to the right or power of the Secretary of State to stop it. I do not approve of this mechanism, particularly the intervention of the Secretary of State to stop an Assembly measure going through, but that is what it is.
In relation to Clause 94, all that we are really debating is extending the 20 fields that Schedule 5 provides so that there are other fields. When the noble Lord, Lord Rowlands, seeks to have the proposed Assembly measure attached to the Order in Council or information about it, that is quite different. The Assembly may not want to bring in an Assembly measure in a field at the moment; it may seek competence in energy but do nothing about a Severn barrage for a number of years.
I challenge the noble Lord with some trepidation, because he is obviously experienced and knowledgeable in this matter, but I do not think he is right. Surely, the Orders in Council will give the Assembly legislative competence under an existing field. The mock order states:
"Part 1 of Schedule 5 to the Government of Wales Act 2006 is amended by inserting under "Field 14: public administration"— and then follows the ombudsman. It does not extend that field, it allows legislative competence to occur within that field and, therefore, to be delivered through an Assembly measure.
I hear what the noble Lord said. It indicated just how confused and complicated this mechanism is. The noble Lord may be right. I do not believe that that is what Clause 94(1) says, because the Order in Council is to,
"add a new field or to vary or remove any field".
I thought that that was what we were debating.
Perhaps I may ask the Minister what is probably an unbelievably na-ve question. I am not sure that I understand what harm there is in the amendment, but I see an awful lot of harm in not having specificity that defines the competencies within such an order, because I do not see how an order that does not clearly spell out its various sections and principles could possibly be debated in an hour and a half. The only option, then, would seem to be for that Order in Council to be rejected and to go back to the drawing board, which would create a huge circuitous argument. If there was a requirement to be specific, pre-legislative scrutiny could be more focused and more efficient. I cannot see a requirement in the Bill for that degree of specificity to be provided and for it to be feasible to have a one-and-a-half-hour debate on one of these orders.
The situation is not entirely free of confusion. So that I can be sure that I understand the position, perhaps the Minister can confirm, first, that extensive delegated legislation powers are enjoyed by the Assembly. Such powers have been inherited from powers, which from 1964 onwards, were from time to time transferred to the office of the Secretary of State for Wales. Those powers are there. They are exercisable at any time that the Assembly wishes to and it does not have to come to this House for any sanction regarding the validity of those powers.
Secondly, perhaps the Minister can confirm that Part 3, in accordance with the recommendations of the Richard report, allows additions to be made from time to time to the substantial delegated powers that are probably contained in scores of instruments and which are, therefore, additions to the 20 areas of jurisdiction set out in Schedule 5.
Thirdly, if additional scrutiny was necessary, not in relation to the area of jurisdiction that was being transferred, but to the specific matter within that area, it would create a massive log-jam and make Part 3 a total nonsense. It would be impossible for any Government asking for those powers to spell out the exact situations under which they will be exercised. Situations change and the possibilities are infinite. Am I right about those three fundamental points? I would be fortified if that were the case.
I, too, would be grateful if the Minister could clarify a point that arises from the contribution made by my noble friend Lord Rowlands. My question relates to the provision in the order enabling the Assembly to give financial support to the air industry. Let us take that one example. Do I understand my noble friend on the Front Bench to say, "We'll start with the pre-legislative scrutiny and the headings of the order will gradually merge in the course of the discussion between the Assembly Government and the UK Government"? If, in the course of that scrutiny, it emerges that the Welsh Assembly is minded to give financial support to the air industry but the Secretary of State decides that that is not acceptable to the Government's line of thinking, where do we go then? Does that mean that the order cannot include the power to give financial support to the air industry? How does one deal with that practical problem?
I am grateful to all noble Lords, who sought to be constructive and helpful with their interjections, but I particularly appreciate the clarification of the issue by the noble Lord, Lord Elystan-Morgan. He was absolutely right: that is the nature of the proposals in the Bill.
I want to clarify the point introduced by the noble Lord, Lord Thomas. The fields in Schedule 5 simply identify the areas in which the Assembly may acquire legislative competence. Specific matters must be added to Schedule 5 and then the Assembly will indeed have legislative competence in relation to those matters. The noble Lord, Lord Elystan-Morgan, identified that the proposals with which we are engaged here relate to how the Assembly seeks additions to its competence within those broad fields. We recognise that the basis of the Order in Council, which will define the area in which that competence is conveyed, raises all the anxieties to which noble Lords have given voice in this debate and on previous occasions in this Committee.
We have made it abundantly clear throughout the passage of the legislation that we place a great deal of emphasis on the pre-legislative scrutiny—probably a greater emphasis than is the case with any other legislation—because we recognise the validity of the point identified by the noble Lord, Lord Thomas; that is, you cannot possibly be too specific and attach a measure of competence to an Order in Council because that would block off all flexibilities and all developments and it would be a restrictive rather than an enhancing measure. It would enhance in the narrow field where a particular proposal was conducted in the context of the Order in Council but it would be so limited as to be a denial of the concept of devolution.
We are seeking Orders in Council which are bound to be limited in their description and content because that is the nature of Orders in Council, but the parliamentary debate, the understanding of what is at stake in the orders, and the request for information which sustains the case for a proposed enhancement of competence, which potentially will lead to measures by the Assembly, will take place within the framework of the pre-legislative scrutiny. That is why we put a great deal of emphasis on that and why a specific measure would not be attached to the Order in Council.
However, in the proposals leading to the Order in Council, the definition of the area of competence which was being devolved to the Assembly would be identified. That was the basis of my noble friend's question and of his amendment. Therefore, I hope noble Lords will recognise that the Government seek the most open process possible as it cannot be right that every single measure of the Assembly would need to come before both Houses of Parliament. An Order in Council would be so restrictive and would allow only a very limited measure which had been attached to it in the first instance, a point that the noble Lord, Lord Thomas, sought to identify.
It is necessary that an Order in Council defines the competence under which future measures can be enacted. As I said in my opening remarks—I hope I was as fair and as open as I could be to the Committee about these issues—the Assembly can change its mind when it changes its administrative direction. Of course, it may change measures within its framework of competence and it may seek to develop measures, which is what the Order in Council should permit. That is why it cannot be restricted to one narrowly defined measure; it has to be a concept of competence. That is the basis of the Government's case.
I have been listening with the greatest care to what the Minister has said. I find it very difficult to comprehend how this should be managed. I have served on two pre-legislative scrutiny committees, both of which, I believe, did a good job. Of course, they were scrutinising legislative proposals. We looked at the legislation that was put forward and we examined it in detail. The noble Lord has been saying that the Assembly will not know what legislative proposals it intends to put forward within an area—it cannot possibly know as it may not yet have thought of the idea. A priority may appear later and it will then decide to bring forward a legislative proposal. It defeats me how one can have pre-legislative scrutiny across a black hole when one has no idea what the legislative proposal will be.
With great respect to the noble Lord, Lord Elystan-Morgan, I believe he is wrong in this respect. He described perfectly accurately the extensive powers that the Secretary of State used to have but which the Assembly now has, but we are not dealing with those executive powers. Here we are dealing with proposed new legislative powers to give the Welsh Assembly entirely fresh executive powers, powers that it may not even have thought of at the moment. It seems to me that we are stepping over a great chasm without any real knowledge of what we are doing.
My understanding is that the situation is not so fundamentally different from what it was in the old days, if I may say so. When the noble Lord was Secretary of State for Wales, he exercised many powers of delegated legislation. Slots were left in Acts of Parliament, and he was responsible for filling them at his discretion. He did not lose sleep over that, and it was not necessary to come back to this House or to the House of Commons for sanction.
Once that authority had been transferred to him, he had complete jurisdiction within the boundaries of that transfer. I see no fundamental difference, unless the powers added are in a wide field. If, however, the fields are limited, there will be an infinite possibility as to any particular measures within those limited boundaries; not so very different from the situation that previously obtained.
I shall add briefly to the Minister's troubles by trying to be helpful.
I want to look at this concept of pre-legislative scrutiny. To a certain extent, I follow the noble Lord, Lord Crickhowell, and my noble friend Lord Elystan-Morgan. I do not particularly like it but, as I understand it, the idea is that there should be pre-legislative scrutiny of the terms of the Order in Council, but there would be none in respect of any Acts passed by the Assembly under the powers conferred upon it by the Order in Council. "Pre-legislative scrutiny" is rather an ill-chosen phrase to describe that process—which almost amounts to negotiation between the Assembly in Cardiff and the Government in London—as a result of which the scope of the powers to be devolved is arrived at. The Government in London would then agree to put that in the form of an Order in Council, and would bring it to the House.
We have got too bogged down in looking at the mechanism of the Order in Council rather than the substance. The mechanism may indeed not be the most appropriate way of doing this, but that is what the Government have chosen. Given that, we must be perfectly clear as to what it entails. A situation in which a mechanism demands that the Assembly put before Parliament the detailed terms of a measure that it proposes to pass does not make sense. Either you devolve, or you do not. If you do not, so be it. In that case, Parliament has the right to pass whatever legislation it likes. But if you want to devolve certain competences to Cardiff, the way in which they are exercised has to be determined in Wales and should not be subject to legislative scrutiny by the Westminster Parliament. The function of the Westminster Parliament is to give the Assembly the competence. Once the Assembly has the competence, it exercises it. You cannot half devolve in this sense: you either give it to them or not. If you do, you do so in the knowledge that it has competence, authority and jurisdiction to exercise it as it thinks fit.
This is almost a classic discussion between the devolutionists on the one hand and the restrictionists on the other. I am unashamedly a devolutionist, but some of the language I have heard in some of the contributions to this debate almost leads me to believe that people are saying, "Yes, we will accept this, but it is not really going to mean anything". What it will really mean is that Westminster will have control over it; first, by the Secretary of State if he wants to; and, secondly, by a system of pre-legislative scrutiny, allowing Westminster to scrutinise the details of the measures that the Assembly will pass under the devolved competences. That would be wrong, contrary to the purposes of this Bill and certainly incapable of being presented as further devolution to Wales.
I am extremely grateful to all those who have contributed to the debate. I was not sure that I had triggered such a variety of conundrums and discussions. It is important, because this is a novel device and use of an Order in Council to achieve a perfectly proper purpose: an enhancement of the legislative competence of the Assembly in specific areas.
If I may respond to my noble friend and to the noble Lord, Lord Crickhowell, I do not think that the noble Lord, Lord Crickhowell, is right. I do not think that it would be possible to bring forward an Order in Council in a vacuum; that is, without the Assembly having already determined in general terms what it intends to do with the power that it seeks through the Order in Council. Let us go back to the two mock orders and take not only them but also the accompanying document. There would be a two or three-page memorandum from the Welsh Assembly Government on the proposed legislative competence in the field of public administration. It would describe the purpose of the order and would set out what the Welsh Assembly Government were seeking; for example, to have the legislative competence to wind up the various ombudsmen to have one ombudsman. That memorandum would be attached to any draft Order in Council. That is the process. An Order in Council will not just seek competence in areas of public administration; it will be tied to a specific proposal. These two mock orders make that clear.
If what the noble Lord now says is right, I am, at least in part, reassured. But my remarks were prompted by what the Minister said from the Front Bench. I thought he was clearly indicating that we might have proposals that had not been contemplated at the point when the order was put forward. We are dealing with a wide field, and proposals that people have not contemplated might be brought forward. If that is not so and that is not possible, I am happy to be reassured.
I hope that when my noble friend replies he will make clear that any draft Order in Council brought to both Houses at Westminster will have a context that, in many cases, will be quite specific. It will be a specific proposal to create, for example, one public ombudsman or to create powers under transport to achieve certain specific purposes.
I refer to energy, which is not one of the fields at the moment. Suppose the Welsh Assembly Government decided that they would like to control energy policy in Wales. We could have a debate in both Houses of Parliament about whether it would be a good or bad thing for that to be devolved. But the Welsh Assembly Government may have in mind building a nuclear power station here, digging another pit there, putting some offshore wind farms in Cardigan bay and introducing the Severn barrage. But they will not put all those things forward when they say to Parliament that they think it is time that the Welsh Assembly Government should have control over energy policy. So the debate—the pre-legislative scrutiny—would be whether it is a good thing for the Welsh Assembly Government to have control over energy policy, not about what they are going to do.
The noble Lord, Lord Thomas of Gresford, does not distinguish between the issues in the Bill. My noble friend referred to "deepening, not broadening". The process by which, as I understand it, the Assembly would gain a new field—that of energy—is available by amending Schedule 7, or whatever it is. It is a separate process. It is nothing to do with Part 3 in respect of expanding legislative competence under the existing fields. The noble Lord's example of energy does not apply.
As I understand the process—and this is why pre-legislative scrutiny comes into play—when an Assembly Government wish to propose a draft Order in Council, behind and alongside it will be a very specific proposal to legislate. In the Assembly Government's mind there will be, not a detailed draft Assembly measure, but the outline of the proposals, almost like the heads that parliamentary draftsmen have, showing the kinds of things that they would like to do. The Order in Council would then transfer that legislative competence to them. I hope that my noble friend will tell us that that is the case. The question of how specific or unspecific Orders in Council are is extremely important to the wider argument that is being used about whether Part 3 is a backdoor way of transferring primary legislative power. It is important for us to clarify that.
The noble Lord, Lord Kingsland, invited me to comment on Amendment No. 64B. It is an unbelievably cumbersome process—six months and 60 days for every Order in Council—for an Assembly Government to have to go through these lengthy procedures in order to legislate. No, I do not support that. Mine is a simpler view. We should decide that if we pass an Order in Council that that would give the Assembly the power to go ahead and introduce a measure, and not try to bring it back or restrict it subsequently, unless of course during the debates on the provision the border is crossed beyond the terms and limits of the Order in Council.
I am grateful to the noble Lord. He has, indeed, responded to my amendments as I requested, and it would be churlish of me to do other than thank him most profusely. Perhaps I may make one observation. The object of the six-month period of pre-legislative consideration was in response to what Ministers in another place requested. They deliberately said that they do not want to set down a specific timetable in another place—in your Lordships' House—because it is entirely a matter for us. A number of noble Lords around the Chamber have said that 60 days for an instrument that cannot be amended for the transfer of perhaps substantial chunks of power from this Parliament to the Welsh Assembly is simply not enough, especially if you engage with the apposite observation of the noble Lord, Lord Richard, that what will shape the Order in Council is a deal between the Welsh Assembly and the Government, not a deal between the Welsh Assembly and the Westminster Parliament.
In those circumstances, I should have thought it imperative that the House would have wanted a period of time before the order was tabled in its final form to consider representations from a whole range of parties, some political and some industrial and commercial. I have suggested that the period should be six months, but I am perfectly happy to take views around the Chamber about what the length of that period should be.
I know that the noble Lord is impatient to get back. I make one final reflection on his observation about our amendments. He asks: why have such an elaborate procedure every time there is an Order in Council? I think it unlikely, even with the devolutionary enthusiasm that the Government are exhibiting, that there will be that many Orders in Council under Clause 94 because most of the devolved power is already there in Schedule 5. There will be a few Orders in Council on fields, and I should think rather more on matters, but we will not be bombarded with them, and it will not clog up the procedure of your Lordships' House if we take a little time to look at them and take representations from outside. I am most grateful to the noble Lord.
I am grateful to the noble Lord, Lord Kingsland, for his response. When my noble friend said there were two groups, the devolutionists and the restrictionists, I am not sure where he was putting me—in the middle. It is an uncomfortable position to be in the middle. Nevertheless, I think that Amendment No. 64B in the name of the noble Lord, Lord Kingsland, definitely falls in the restrictionist class. I do not consider myself a restrictionist, although I am somewhere between my noble friend and the restrictionists.
I raise one other important issue. In the background to the debate on what the content of an Order in Council should be is the question of how these Orders in Council will be scrutinised. My noble friend rightly placed heavy emphasis on pre-legislative scrutiny. I serve on the Constitution Committee. It produced a report and evidence on the Bill. A major concern of the Constitution Committee was how this House will be involved in the process of pre-legislative scrutiny. The Secretary of State who gave evidence to us said that it had to be concurrent with anything that might happen in the other place. What kind of process are we going to use? The Government's response to our report was that it was in the hands of the House. I do not know who the House is. Is it the usual channels, or is it the Procedure Committee? I ask all those who have spoken today on the role of this House and pre-legislative scrutiny how we will handle this new process, whether it is in six months, in 60 days or within whatever timescale is available. The Constitution Committee poses that question, and I believe that the House has to answer it.
I have found this debate to be extremely useful and important. I am still not totally clear about this, but I will read what my noble friend has said about how much information the Order in Council will contain. I simply put on the record—I do not know how much support one would have for it—that Orders in Council should be specific requests to legislate on specific aspects of a field, and we should be very squeamish about receiving orders that are widely drawn and minimally worded. If my noble friend can assure us in this debate—presumably we will have a debate at some stage on Report—I shall be more than happy not to press my amendment to a vote. I beg leave to withdraw the amendment.
"An Order in Council under this section may make provision having retrospective effect".
My first question to the Minister is: what does this mean in an operational context? I am prompted to ask him because of what Mr David Mundell said in another place on
"where there has been a legal challenge to the validity of an Assembly Measure based on doubt as to whether its provisions relate to a relevant matter, an Order in Council may restore legal certainty about the Measure by amending a matter to remove any ambiguity".
Do the Government really intend, in legal proceedings in the courts of this land, to clarify by exercise of this retrospective power a matter that is in issue? That is totally against our constitutional traditions, and it may affect the existing rights of one party or another. I make that observation particularly in the context of the observations I made earlier about Clause 93(7). I do not know whether the Minister was in his place when the noble Lord, Lord Evans of Temple Guiting, responded to a point about the interpretive approach that the courts are supposed to take to legislative matters under Part 3. In my submission, there is real danger of a conflict between the exercise by the courts of their power under Clause 93(7) and the exercise of the Government's powers under Clause 94(4). Whatever your Lordships will make of those preliminary submissions, I am sure all your Lordships will agree that we ought not to encourage retrospective legislation under our constitutional arrangements. Therefore, any attempt to introduce a retrospective element in a Bill ought to be studied most carefully and most critically. I beg to move.
The Committee will not be surprised that the noble Lord, Lord Kingsland, alighted on this issue and identified it in his Amendment No. 62. I want to respond in a considered way to his arguments and anxieties, because if one concept sets alarm bells ringing among all those who hold democracy dear, it is that of retrospective legislation jeopardising our citizens after they have acted but before they knew that they were acting against the law. I will reassure the noble Lord on that score as best I can.
His amendment would remove the power for an Order in Council amending Schedule 5 to have retrospective effect. This was substantially discussed in the other place. The Government have already explained the circumstances in which they envisage the power being used, both in the Explanatory Notes, to which the noble Lord, Lord Kingsland, referred, and in the debate of this important issue in the other place. I emphasise the fact that we are talking not about a measure having retrospective effect and that might have an impact on the citizen, but about an Order in Council amending Schedule 5 having retrospective effect. It is an absolutely crucial distinction. Such an Order in Council does not confer any rights or impose any obligations on any person. Rather, it amends the parameters of the Assembly's legislative competence to enact measures. The starting point is an Assembly measure that has been enacted and that relates to a matter in Part 1 of Schedule 5.
Let us assume that there is some ambiguity in the wording of the matter, which is later picked up, and that, as a result, it is not clear that it was within the Assembly's competence to pass the measure. By the time the issue has been picked up, the provisions of the measure may well have come into force. I am sure the Committee will recognise that it would be inequitable for persons who have carried out actions in good faith as a result of obligations placed on them by the measure to be in a position where the measure itself calls the legal basis for those actions into doubt. This could be put right in order to give proper and full effect to the Assembly's and Parliament's intention by an Order in Council that could retrospectively amend the description of the matter to which the measure relates and remove any doubt about the validity of the measure.
There are safeguards that will prevent the misuse of this power, because noble Lords will have recognised the significance of it. Before laying the Order in Council before the House, the Secretary of State would first want to ensure that it was compatible with the convention rights in the Human Rights Act 1998. Furthermore, Parliament would have to approve the Order in Council. Of course, Parliament would not do so if the order produced inequitable effects.
I reassure the Committee that the power will be used very rarely and not without careful consideration of the grounds for doing so. In most cases, I expect the pre-legislative scrutiny of proposed Orders in Council to draw out any deficiencies in the drafting of matters to be added to Schedule 5, so that there will rarely be any need to rely on this provision in Clause 94(4) to make retrospective provision. But it is necessary to have that power to be used against a background of careful parliamentary scrutiny necessarily compatible with human rights. Nevertheless it could be that in very rare circumstances such an order would be necessary. That is why we have made provision for it in the Bill. I hope that the noble Lord accepts the Government's arguments.
I am most grateful to the noble Lord for his reply. The circumstances in which concerns could arise might be, for example, where a local authority exercises a compulsory purchase order in an area which is a field under Schedule 5 for which certain matters have been set out, but under which the opponent to the compulsory purchase order alleges that no authority exists for issuing the order in the first place. There is litigation either under the statutory provisions under the compulsory purchase order legislation or by judicial review: things are moving in a certain direction in that litigation and it suddenly becomes clear to the Government that the court is likely to find against it—that the Assembly measure exceeds the vires laid down in Schedule 5.
In those circumstances, will the Government at that moment exercise the retrospective power that they have under Clause 94(4) and clarify the legislation in such a way that the doubt of the compulsory purchase order is resolved by it being declared intra vires? If so, I would suggest to the Minister that that is a particularly glaring and undesirable example of the breach of the principle of the separation of powers in this country, quite apart from the principle of retrospectivity. It is that sort of situation that worries me.
I understand the anxiety of the noble Lord. He will also recognise that if it worries him, it would worry many Members of this House and the other place if an Order in Council was introduced which would so grievously affect the rights of people engaged in litigation. I want to give the noble Lord the obvious assurance on that. We do not expect this power to be used, except very rarely. It certainly would not be used in circumstances where Parliament would clearly recognise that the operation of such an order would be a manifest injustice to someone involved in litigation in those circumstances. So it would not be done during proceedings. The Government would argue the case in such proceedings, if necessary. But if the court decided that technically there was a gap in competence which Parliament had not intended, there could be an Order in Council which would be used to achieve properly that which Parliament had intended in the first place.
Of course, Parliament would be scrupulous in its concern about any individual who might be wrong-footed and disadvantaged in such circumstances, but the noble Lord will recognise that it would be necessary to have that reserve power. Otherwise, we could be in a position where Parliament had clearly intended that a certain circumstance obtained. The court would have identified that Parliament had not done that as effectively as it ought, which would be the basis of any retrospective order, and only within that limited framework.
I am most grateful to the Minister for his response, which partly reassures me because I think that the Minister is genuinely worried about the situation. It partly alarms me because of the latter part of his intervention. In the last resort, it is the courts that interpret the will of Parliament. If the courts say that there is a gap and the Minister in Wales does not have the vires to issue the compulsory purchase order, for that particular dispute, that ought to be that. I can quite see that the Government may then take a political view that the compulsory purchase order ought to have covered that situation, in which case it would make laws for the future dealing with that matter. But the notion that it could, by legislation, change the decision of a court made on existing rights I find profoundly disturbing.
In the period of reflection that the noble Lord will undoubtedly have to endure between the Committee and Report stages of this Bill, I hope that he will be good enough to consider this matter further. I do not say "again" because I like to think that his thoughts are evolving as he speaks. Meanwhile, I beg leave to withdraw the amendment.
This amendment would remove Clause 64(5)(b), which specifies that an Order in Council has to be approved by "each House of Parliament". This removal would give the National Assembly the approval function and, in so doing, the competence to approve an Order in Council unilaterally, as well as being a democratically elected body. We believe that the Assembly should have that power.
Amendment No. 65 in the group would remove subsections (7) and (8) which give the Secretary of State 60 days to lay a draft Order in Council before both Houses of Parliament. As Members of the Committee can see, Amendment No. 65 replaces "60 days" with "30 days" in order to lay a draft Order in Council before the Clerk of the Assembly, which means that that would not be between both Houses of Parliament. It then would be for the Clerk to submit the draft Order in Council to Her Majesty in Council, and not the Secretary of State.
The Secretary of State should not have the role as currently drafted in the Bill, which I believe harps back to the debate that we had particularly on Amendment No. 61C. In our view, as devolutionists, there is a reluctance to let go. It was evident from a previous debate that there is a danger that there will be so many hurdles for the Assembly to cross that the devolution project could be in jeopardy in Wales. People will not accept these matters of how high will the next hurdle be before we can get some legislation. There is a huge matter that the Secretary of State of whatever party may step in and prevent certain legislation going forward, although that is the will of the democratically elected body. As a democrat I have very considerable reservations about that situation, as does my party.
The Assembly itself is a democratic body and the right place for the power to reside. There is no doubt whatever about that.
Amendment No. 68 is a simple proposal to adjust the period of delay from 60 days to 30 when a draft Order in Council is laid before Parliament and notice given in writing to the First Minister. I beg to move.
"having been so approved, has been laid before, and approved by a resolution of each House of Parliament".
The noble Lord has nodded his assent. It seems to follow from this that the Westminster Parliament would have no role in deciding whether or not a function ought to be devolved to the Welsh Assembly under Schedule 5. Whether or not a function should be devolved to the Assembly under that schedule would be entirely a matter for the Assembly itself, in discussion with the Secretary of State. Have I understood correctly what the noble Lord seeks here?
The noble Lord is correct in principle in that specific description.
To take an example that would carry the direction of my argument to its limit, let us suppose that the Welsh Assembly decided that it wanted to acquire foreign affairs as a new area of operation and that it drafted an Order in Council in the Assembly to that effect. If it could convince the Secretary of State—I admit it is highly unlikely—that that was a desirable thing to do, Parliament could do absolutely nothing to stop it because Parliament would no longer be a part of the Order in Council process.
If my illustration is a correct, if somewhat exaggerated, reflection of what the noble Lord, Lord Livsey, is seeking to do, at best this is a vast transfer of power in the United Kingdom from Parliament to the Secretary of State; and at worst it would give the Welsh Assembly, provided that there is a compliant Secretary of State, the power to engage in any governmental activity it likes. So far the noble Lord, Lord Livsey, has been nodding in agreement, so it looks as if my interpretation is not far off the mark.
The noble Lord has taken the argument to its absolute extreme to pray in aid the force of his approach to this issue.
Perhaps I may say to the Minister that for the sake, for example, of improving relations with the European Union, there may be a lot of mileage in Wales for an Order in Council of that kind because in some areas we deal directly with the EU. Indeed, there is official Welsh representation at the EU. However, the noble Lord's extreme argument, in those terms, does not hold water.
The amendment may or may not be attractive, but one thing it clearly is not is devolution. The whole concept of devolution rests on retaining the sovereignty of the United Kingdom Parliament. It is that Parliament, therefore, that has the responsibility and the power to decide which subjects and powers are devolved. It is not the power of the subordinate parliament to assume powers that it wishes on its own accord. So it is a novel constitutional approach, but I am not sure where it would fit in the array of constitutional arrangements that are possible, be they devolution, federalism or whatever. However, it is clearly not an argument that is at all consistent or compatible with any model of devolution.
I am grateful to the noble Lord, Lord Kingsland, for putting much better than I could the Government case against this amendment, and to my noble friend Lord Sewel for underlining the point. Amendment No. 63 would remove the requirement for a draft Order in Council amending Schedule 5 to be approved by both Houses of Parliament. I really do not agree that the example raised by the noble Lord, Lord Kingsland, is extreme. He argued that if the Welsh Assembly decided that it wanted to determine its own foreign policy, it would be able to do so. That is the problem. Under the current devolution settlement, Parliament has a central role in approving additional powers for the Assembly. That is what the people of Wales voted for in the 1997 referendum. The noble Lord, Lord Livsey, speaks of being a good democrat; we are adhering to policy voted on by the great Welsh public in that referendum.
The Bill provides under Part 3 the requirement that all Orders in Council be approved by both Houses of Parliament. Surely it cannot be right that Parliament is written out of the process of approving draft Orders in Council. Indeed, as I have said, to do so would represent a fundamental change of the settlement voted for by the people of Wales in 1997. It would not be sufficient for the Assembly to vote itself additional powers; it is Parliament that has to decide whether it is appropriate to confer further legislative competence on the Assembly.
Amendments Nos. 65 and 68 would require the Secretary of State to pass any draft Order in Council which has been approved by the Assembly to the Clerk of the Assembly within 30 days of receiving it. Amendment No. 65 provides that it is then for the Clerk to submit it for approval by Her Majesty in Council. The Assembly would therefore be in the position of voting itself new powers with little opportunity for Parliament or the Secretary of State to challenge it. It is not clear to us what benefit might be derived from the 30-day period in which the Secretary of State holds the draft Order in Council, but is powerless to do anything with it other than acting as a messenger by delivering it to the Clerk.
I hope that, in the face of a constructive onslaught from all sides of the Committee other than from his own Benches, the noble Lord may feel able to withdraw the amendment.
I may not be able to withdraw the amendment for the reasons given by the Minister, but I might be able to do so for other reasons. I said in response to the noble Lord, Lord Kingsland, that in fact in certain circumstances the Assembly would do this in conjunction with the Secretary of State. To my mind something would be wrong if the Secretary of State did not have some kind of link with the Westminster Parliament because he is its servant. The amendment is deeply probing in nature which has exacted the kind of reaction I had expected. However, we are very concerned about the powers of the Secretary of State to delay Orders in Council for 60 days when it is perfectly reasonable to request that the process should take 30 days, and would take into account those days when Parliament does not sit.
We are trying to ease the passage of legislation originating in the Assembly through, in this case, Orders in Council.
I think the debate has illustrated why we decided earlier today to look at the principles of devolution. Indeed, perhaps subsequent debates have exposed some of the limitations of the Order in Council process, which is the alternative to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 64 had been withdrawn from the Marshalled List.]
[Amendments Nos. 64A to 65 not moved.]
[Amendment No. 66 had been withdrawn from the Marshalled List.]
[Amendment No. 66A not moved.]
[Amendment No. 67 had been withdrawn from the Marshalled List.]
[Amendment No. 68 not moved.]
Clause 94 agreed to.
Clauses 95 and 96 agreed to.
Clause 97 [Proceedings on proposed Assembly Measures]:
Amendment No. 69 and other amendments in the group—Amendments Nos. 70, 71 and 72—deal with the internal proceedings of the Welsh Assembly on considering Assembly measures. They are, to a considerable extent, probing amendments and I hope that they will not arouse great passions during the course of the debate.
Amendment No. 69 relates to Clause 97(2), which states:
"Subsection (1)"— which deals with the normal procedure—
"does not prevent the standing orders making provision to enable the Assembly to expedite proceedings in relation to a particular proposed Assembly Measure".
If you have a well recognised legislative process—which we have, of course, in your Lordships' House—it is quite a serious matter to derogate from that for one reason or another. It is true that, in the case of emergency legislation, law can pass through both another place and your Lordships' House very quickly. This is because the measures are uncontroversial—or, at least, uncontroversial in the sense that everyone recognises their necessity, whether or not they are completely happy with the detail. But, in doing this, we go through each recognised procedure very swiftly and forgo the traditional time limits between stages which are otherwise an essential part of the ability of the House and another place to reconsider the position before the next stage is embarked upon.
Subsection (2) suggests that "a proposed Assembly measure"—and it does not seek to define further what it means by that—could be subject to something called "expedited proceedings"; but we do not know what those expedited proceedings are. Would they involve missing out a stage stipulated in Clause 97(1), or would they simply involve collapsing the time differences between the various stages? I think we need, if not more detail on the face of the Bill, a clear explanation from the Government of what this entails.
Amendments Nos. 70 and 71 seek to amend parts of Clause 97(3). We have no quarrel with the substance of subsection (3)(a) and (b), and we leave those paragraphs intact. Our concerns are with subsection (3)(c), which deals with private proposed Assembly measures. Why should private proposals be dealt with differently from public Bills? We know, of course, that private proposals have a particular political status but, as far as your Lordships' House is concerned, once a Private Member's Bill is on foot, it has to go through all the stages that a public Bill would go through in your Lordships' House. So what is it about private proposals that ought to give them a privileged legislative procedure which public Bills do not have?
Of course, one does not know how this provision will be interpreted. It may be that those who draft the standing orders in the Assembly will place greater hurdles in the way of private Bills than those placed in the way of public Bills. I do not know what is likely to be contemplated and it may well be that the Minister cannot give a complete answer. The Minister looks surprised that he cannot give a complete answer. We are always surprised when he cannot give a complete answer; but, in this case, I, myself, would not be surprised because this is a matter that is within the compass of the responsibilities of the Welsh Assembly. I should be most grateful if the Minister would be kind enough, to the extent that he is able, to explain in more detail what lies behind these provisions. I beg to move.
I briefly intervene because, as on previous occasions, I turn to the Explanatory Notes on the Bill, provided helpfully by the Government, which contain an explanation in the case of private Bills. The notes state that,
"proposed Measures procedures . . . are likely to include an opportunity for individuals affected to make representations to the Assembly, as in the case of private Parliamentary Bills".
But there is absolutely no comment at all on, or explanation for, the expedited procedures referred to in the first of my noble friend's amendments. The Government have not chosen to deal with the matter in the notes and therefore there seems to be a very important reason for having a clear explanation.
I shall attempt to give that clear explanation. It would be unusual for the Bill not to include a provision for how the Welsh Assembly would react when faced with an emergency. I absolutely take the point of the noble Lord, Lord Kingsland, that the Bill does not specifically state "only for emergencies" and that that is something that could be abused, but I hope that if I give an explanation at least we will see where the Government are going.
Amendment No. 69 would prevent the Assembly from creating a fast-track legislative procedure for certain proposed Assembly measures necessary in an emergency. As it stands, the Bill allows the Assembly to make provision for this, if it wishes, via standing orders. We are very sympathetic to the concerns of the noble Lords, Lord Kingsland and Lord Crickhowell, to ensure that all proposed Assembly measures receive proper scrutiny.
Clause 97(2) does not circumvent that. As I have said, it is intended to make allowances for emergencies where there is simply not enough time to pass a proposed Assembly measure via the usual legislative process to ensure that statutory procedures do not impede the Assembly, which is a democratically elected legislature, from acting in a proper and timely fashion to respond to circumstances that may arrive very rapidly. All legislatures require emergency procedures for law making. In this House, for example, the Elections Act 2001 was passed within a week when the date of local elections needed to be moved because of the foot and mouth outbreak. It should be noted that the same provision appears in Section 36 of the Scotland Act 1998. The Assembly will be able to ensure through standing orders that the expedited procedure is applied only in relevant circumstances and with the proper controls.
It has been argued in another place that cases of urgency will arise only in relation to subordinate legislation made by the Welsh Ministers. It is not for us to make assumptions about what level of detail the Assembly will want to include in Assembly measures. We cannot assume that the Assembly will never enact a measure that might need to be amended urgently. It is prudent—I stress "prudent"—to include some degree of flexibility for the Assembly to be able to adjust its procedures should it see the need to do so, as can other legislatures.
Amendments Nos. 70, 71 and 72 would remove the Assembly's discretion to make provision in its standing orders for the handling of proposed private Assembly measures. The Committee will no doubt be aware that both this House and the other place operate under a wholly different set of standing orders when considering proposed private legislation. The complex and often highly specialised nature of proposed private legislation means that having different provision in standing orders is not only appropriate, but also, arguably, necessary. For example, the need to allow those affected by a particular scheme to petition Parliament on the details of the scheme requires a wholly different type of procedure from that adopted in relation to public legislation. The same reasoning would apply equally to the Assembly. It would therefore be anomalous for the Assembly to be denied the discretion to put appropriate procedures in place for proposed private legislation. Indeed, it would arguably inhibit the Assembly's ability to ensure effective scrutiny for such matters.
Amendment No. 89 is similar to Amendment No. 69. It would prevent the Assembly creating in its standing orders a fast-track legislative procedure for certain Bills in certain circumstances. As we said with regard to proposed Assembly measures, accelerated procedure for legislation in emergency situations must be possible. A similar provision already exists in Section 36(2) of the Scotland Act. Both Houses of Parliament also permit proceedings on emergency legislation to be expedited. The Assembly will be able to provide safeguards against the abuse of this procedure in its standing orders. I hope that the noble Lord, Lord Kingsland, is reassured by this explanation. He said that his was a probing amendment.
I hesitate to say that the noble Lord, Lord Kingsland, may be confusing Private Members' Bills, which are a type of public Bill and subject to the normal procedures, with private Bills, which are not.
I am aware of the distinction between Private Members' Bills and private Bills; but it is always reassuring to be reminded that I am still aware of that distinction. To me, at any rate, the drafting of Clause 97(3)(c) does not make that distinction clear, but I am happy to have had it made and am correspondingly reassured.
I am most grateful to the Minister for his response to the amendments. I shall think very carefully about what he said. We all accept that circumstances of emergency will occur from time to time. It is vital not to leave out any stage but, at the same time, there should be a provision, or at least a constitutional convention, that allows the time distances between each stage to be collapsed in a recognised emergency. I agree that it is extremely difficult to define an emergency. It would be not only foolhardy but futile to try to furnish the legislation with such a definition. I am sure that everybody in the Welsh Assembly, like everybody in your Lordships' House and another place, is replete with common sense and will recognise an emergency when they see it. I beg leave to withdraw the amendment.
In moving the amendment, I shall speak also to Amendments Nos. 79 and 85. I have already informed the noble Lord, Lord Roberts of Llandudno, that I will refer to his noble friend Lord Thomas of Gresford during my speech, if only because he has made a number of singular contributions in our debates so far. I understand that he has left to attend some important function—I am sure that it is important—and I hope that, on reading the debate, he will not feel as did Lord Rosebery, whom I have already mentioned once today and who, at the end of the Home Rule debate, was profoundly disgusted with himself because he had stopped speaking after one hour under the misapprehension that he had been speaking for two.
Ministers will be glad to hear that I do not intend to speak for either one hour or two hours, but this is a very important point in our consideration of the Bill. It is the moment when we move from Part 3 to Part 4, which provides for a referendum on whether we should go forward to full and proper devolution of the kind that has been urged on the Government repeatedly from the Liberal Democrat Benches and from elsewhere in the Chamber, including by my own party.
During our debates on the Bill so far in both Houses, there have been a number of revelatory moments. I suppose that one of the first was the contribution of the Secretary of State in another place on
"I have no doubt that if a referendum were held today, it would be lost".—[Hansard, Commons, 28/2/06; col. 209.]
That was a pretty extraordinary way of introducing major legislation which contained provisions for a referendum and extensive devolution on the back of it.
There has been another revelatory moment today. It exposed the extraordinary complexity of this Bill and the unsatisfactory character of Part 3. Again, there was widespread agreement in all parts of the Committee. The noble Lord, Lord Thomas of Gresford, said that the incremental process was a very unsatisfactory solution. He said that he did not approve of the mechanism. He said that it was confused and complicated.
When we last debated these affairs in Committee, at the Committee's second sitting, the noble Lord, Lord Thomas of Gresford, accepted many of the criticisms that had been made by my noble friend Lord Kingsland about Part 3. On that occasion he again said:
"Why do we not simply accept that the Welsh Government need expanded powers in order to do their job, and that this is just an ingenious and tortuous device to bring in legislation without having a referendum? We can then argue on that basis".—[Hansard, 3/5/06; col. 531.]
The noble Lord, Lord Richard, who sadly is not with us now, indicated earlier this afternoon that he did not like Part 3 either.
So we now move to the alternative, Part 4. The third revelatory moment for me in our proceedings on the Bill was when the noble Lord, Lord Thomas of Gresford, said:
"We wish to see steps taken that lead towards the goal which I personally have been advocating for something like 42 years. It will take more than this Bill to stop me advocating full powers for a Welsh parliament".—[Hansard, 3/5/06; col. 523.]
And yet having said that that is what he wanted and that the procedures that we have in Part 3 are highly unsatisfactory in every respect, and having accepted all the criticisms of Part 3, he said that he would be content with Part 3 because it took him a step or two down the road.
As I heard the noble Lord speak, I thought, "This is really the most extraordinary stance to be taking". After all, not only—and I take him at his word—has he been campaigning for 42 years but his party, the Liberal Democratic Party, profoundly believes in the solution offered in Part 4. Plaid Cymru believes in a devolved Assembly on the lines of the Scottish Parliament. The Government proclaim that the Labour Party wants exactly the same. I will refer to some of the differences that exist within the Labour Party. They were slightly indicated, gently, by the noble Lord, Lord Rowlands, in his speech earlier this afternoon. But I will come back to that. I accept that the Labour Party is in favour of full devolution.
It has clearly emerged during our proceedings in both Houses that such a step forward would be welcomed by the Conservative Party, if that is what the people of Wales want. We think that there should be a referendum and we trust the people. If the people of Wales want to move forward in this step, they will have our support. That has been made quite clear by my honourable friend speaking in another place. It has been made quite clear by Nick Bourne, our leader in the Welsh Assembly. There were some passionate speeches in favour by individual Conservatives such as John Gummer in another place. A considerable number of Conservatives will be campaigning with enthusiasm in that cause.
So we have a situation where all the major political parties advocate full and proper devolution on the grounds that the Scots have it. Yet the noble Lord, Lord Thomas of Gresford, having campaigned for 42 years, says that he dare not go down that road—he must allow time for the people of Wales to see sense. There are difficulties now. Until they have the experience of the step-by-step legislative procedures in Part 3, the people of Wales might not accept his arguments.
We are then told that the situation will be different in a number of years' time. The people of Wales can then be given a vote. Then they will be told, "There is no point in your not voting for full devolution because by then you will have got it. We will have gone step by step in this fragmented way without having asked your opinion and we will have 95 per cent of the full devolution on the statute book. Therefore there is no point in your not voting for it in a referendum. We will now allow you a referendum". That is the Government's position. It is the most extraordinary, insulting position for the people of Wales. They are to be allowed to decide only when the decision has effectively already been taken for them in this piecemeal way. But that is what is proposed.
The reason why the Government are in this position is not entirely that the Secretary of State believes he is totally incapable of winning the arguments in a referendum; it is that there are grave divisions among Labour Members of Parliament. One of the reasons why there are divisions among Labour Members of Parliament is that some of them do not like some of the inevitable consequences of full devolution. There will be fewer Welsh Members of Parliament. That is an inevitable consequence. They will have less scope for their activities. They will probably have less opportunity to play a major role in the United Kingdom government. That has always been clear. It has been clear since those days back in the 1970s when some of us debated these issues and when Tam Dalyell spelt out the West Lothian question. The case has recently been well presented in this House by my noble friend Lord Baker of Dorking, who was with us earlier and whose Bill is now in another place. These arguments will not go away. However, it is because the Labour Party is divided that we have this mish-mash, this complicated and unsatisfactory measure which was so exposed by our debates earlier this afternoon for its complexity and for the extraordinary confusion that exists as a consequence.
My position is quite simple. I do not like Part 3. I would prefer to move straight to Part 4. I would prefer to move straight to allowing the Welsh Assembly, when it wishes to, to hold a referendum so that we can move to full legislative devolution if that is what the people of Wales vote for. "Trust the people of Wales" is the basis of my argument.
The Government, I suppose, are trying to pretend to the people of Wales that Part 4 gives them that opportunity. However, Part 4 contains some extraordinary and very stiff hurdles. "Hurdles" is perhaps barely the right word. It would be a Beecher's Brook if it were the Grand National, or perhaps the Lake jump at Badminton. They have to get over it. They have to get over a hurdle which demands that they have a two-thirds majority in the Assembly; not two-thirds of those who vote but two-thirds of the number of seats. They have to have 40 people in favour. It is actually more than two-thirds. The Presiding Officer is an elected Member but he will not be allowed to vote. So the demand is that the Welsh Assembly must produce a two-thirds majority. There must also be the consent of both Houses of Parliament. But this Parliament will be allowed to form a view only when the Secretary of State has carried out some kind of consultation of which he is the sole judge. If he judges that the consultation was not adequate, he need not bring the measure forward.
Again, my position is quite simple. It is based on the arguments that we have heard repeatedly from the Front Bench opposite during our debates—that if you are to have a Welsh Assembly, you should leave it to them. You should trust the judgment of the Assembly.
If we have a Welsh Assembly that understands what is going on in Wales, I do not understand why it cannot be trusted to decide whether a referendum on this issue should be held in Wales. Why should there have to be a two-thirds majority of the whole Assembly, not just those voting? You can envisage all sorts of circumstances in which one, two or three members might not be present due to sickness or other reasons. A two-thirds majority constitutes an enormous hurdle.
We in this Parliament accept that a majority of one is enough. That decides who should govern this country or whether a parliament falls or stands. If we really have confidence in the Welsh Assembly and trust it, why should it be made to jump over these hurdles? My amendments seek to lower the hurdles. They would enable the Assembly to go ahead in this regard with a majority of one and would not require the Secretary of State to consult on the matter. If we were really putting the Bill to rights, there would need to be one or two consequential amendments based on the relevant decision. However, my argument is simple; namely, that the people of Wales deserve to be treated better than they are under the Bill as it stands.
The noble Lord, Lord Richard, has argued elsewhere that it is unlikely that we shall see a referendum before 2011 at least. Others, including the noble Lord, Lord Thomas of Gresford, argue that a vote on a referendum might not occur for a decade or more. If he is so lacking in confidence in his powers of persuasion, that might not occur for another 42 years. That seems to me an extraordinarily feeble approach for those who believe in the devolution case. It shows political cowardice and a lack of trust in the judgment of the people of Wales whom they claim to serve.
As I say, my argument is simple. I did not take part in the campaign on the previous referendum, but I have acknowledged that I was against the step that was then taken. However, I have always accepted that once the decision was taken to have an Assembly, we could not go back and we must make it effective. We must trust the Assembly and the people of Wales. I speak to these amendments on that basis. I am not sure that I shall press them tonight. I want to hear the Committee's response to them. In that respect they are testing the waters. However, before the Bill leaves this House, I shall seek to give the people of Wales the chance to decide their future. If they want a full legislative Assembly, I am very happy that they should have it. I beg to move.
The Liberal Democrats have an amendment in this group. Amendment No. 84 seeks to transfer to the Assembly, not the First Minister, the task of moving and passing a resolution to make an Order in Council for a referendum in Part 4. Amendment No. 86 would remove the ability of the Secretary of State to refuse a referendum if the Assembly wanted it. It would therefore reduce the powers of the Secretary of State in that regard. The elected Assembly should be able to say when a referendum would take place. I hope that the Committee sees the point of that amendment.
I was extremely interested to hear the contribution of the noble Lord, Lord Crickhowell. He referred to my noble friend Lord Thomas. I am sure that on another occasion my noble friend will address the points that the noble Lord made. Suffice it to say that, for very good reasons of a celebratory nature, he and his wife are attending a meeting with a religious adviser to the Speaker, but he will return to the Committee.
The noble Lord made some extremely interesting points. I respect what he said about accepting the result of the previous referendum. I know that that is the case and that is an honourable position to take. The point about a two-thirds majority triggering a referendum is a very interesting one. I must be absolutely frank here. It is my party's policy—and has been for a very long time—not to have a referendum on this matter. I refer to the principle of a Welsh Assembly being accepted in the 1997 referendum.
The Liberal Democrats oppose Clauses 102, 103, 104 and 105, which all refer to the establishment of a referendum. The Committee will note that we are being consistent in opposing referendums. I believe that the concept of a referendum will be manipulated—I believe that has already been tacitly admitted—and that it will occur when it is politically expedient to hold one. The rush of the noble Lord, Lord Crickhowell, to support a referendum may be tactical. I suspect that there is an element of that, although I am expressing that very diplomatically. The Conservative Party has undergone a conversion with regard to a referendum on this issue. A referendum can be used to political advantage. That is one of the reasons that the Liberal Democrats have not gone along that route. We realise the weaknesses of that approach. "Trust the people" is a great rallying cry. However, it depends what the electorate are confronted with in a referendum, the nature of the relevant question, how it is phrased and emphasised. We all know what can happen where the wording of a referendum question is open to manipulation.
We shall see what happens but we do not think that it is appropriate—at present anyway—to consider a referendum. However, one may occur in the future. It is ironic to hear the swings and roundabouts of the argument. The noble Lord, Lord Crickhowell, rightly referred to the Secretary of State's remark in another place that he did not feel that it was possible for a referendum to be won at the present time, yet polling over the past 12 months has consistently demonstrated—there have been three polls to my knowledge—that people in Wales are in favour of giving many more powers to the Assembly and of having primary legislative powers. It is very much a question for debate at the moment. I am particularly speaking in respect of Amendments Nos. 84 and 86.
I shall briefly offer my support and that of the Front Bench to my noble friend Lord Crickhowell on his amendments. We are completely mystified by the policy of the Liberal Democrats. My noble friend might be correct that it would be a good thing not to press this to a Division tonight and leave it for another occasion, because by then the Liberal Democrats might have come round to a more sensible way of thinking on these matters.
For the noble Lord, Lord Livsey, to accuse my noble friend of wanting a mad rush to a referendum completely ignores the facts behind his amendments. As my noble friend said, two enormous hurdles have been erected—or, as he put it, something larger than hurdles—in the way of a referendum. One is the demand that the Assembly should vote by a two-thirds majority of all Members, and the second is that the Secretary of State must then give his approval—so he has a veto on whether it happens—before any amendment could be made.
All that my noble friend is suggesting is, first, that we remove the Secretary of State's veto, and, secondly, that it is merely a matter for the Assembly to decide by a simple majority whether there should be a referendum. The Assembly itself is best equipped to decide whether such a referendum should go ahead. We support what my noble friend is trying to do, and we will support him if he wishes to press this further at a later stage.
The noble Lord, Lord Crickhowell, has been fairly generous and general in his condemnation of the standpoints of various parties and individuals on Parts 3 and 4. It seems that the only person who is entitled to dress himself in a white sheet of purity in this matter is the noble Lord himself. I should like to look a little more closely at that idea for a moment or two. I accept that this is an honourable House and that one does not impugn the motives of people who take views opposed to one's own. One should give the same credit to persons holding such views as if they were one's own views. It is not really a question of whether the noble Lord accepts the fact of the Welsh Assembly; I am fully prepared to accept that that is the case. We are dealing with the translation of the Welsh Assembly into a parliament; a part-parliament under Part 3 and, under Part 4, a full parliament—in many respects one could describe it as a Gladstonian-type Home Rule parliament.
I have never heard the noble Lord, Lord Crickhowell, whose career I have followed closely—at one time we had adjoining constituencies in the House of Commons—say one kind word about Home Rule. Whatever he may have said about devolution, I readily accept that as Secretary of State during a distinguished career he was responsible for many substantial items of devolution that proved to be of very considerable advantage to Wales. However, the issue is his genuineness about Home Rule. If his track record—he has referred to the Grand National in his most eloquent speech—is anything to be relied on, he has placed every conceivable impediment in the way of Home Rule. If I had been asked to anticipate what his amendments would say on this issue, I would have expected them to change "two-thirds" to "97 per cent". So why is he relying on a figure of 51 per cent and seeking to rush the Welsh people into a referendum?
I have my fears of referendums; I have already explained in the House how I was unfortunate enough to be the leader of the "yes" campaign in 1979, when that ill-fated event turned out to be a very great disappointment for everybody who believed in devolution for Wales. I am not confident, nor would I ever be absolutely confident, that a referendum could be carried in any circumstances, whatever the polls said and whatever the Delphic oracles or the runes indicated. I would be extremely wary of feeling confident. However, I accept that it is right and proper that there should be a referendum. It is a very considerable leap forward in constitutional terms, and it is therefore entirely appropriate that the suggestion should be put to arbitrament of the Welsh people in that way.
There can be only one of two reasons for the noble Lord's standpoint—replacing "two-thirds" with "51 per cent" majority—in his amendments. One would be an incandescent commitment to Home Rule. If the noble Lord has suffered or enjoyed a Pauline conversion, it is for him to say so. If he says so, I will withdraw every suggestion that there might be any tactical motivation behind his amendments. If he says that he is not relying on the argument that it is for the Welsh people to decide, that he believes in Home Rule, will vote for it in the referendum, will campaign for it and will advise his party, as one who holds considerable influence in its ranks in Wales, to support it, I will withdraw everything.
On the other hand, one must approach the situation with some suspicion. Either it is a case of total commitment to Home Rule and therefore wanting to ease the path of the Welsh nation towards a Home Rule parliament, or it is a desire to wreck the whole process. Nothing could be easier than to do that by a coalition cobbled together of malcontents about Home Rule, who forced that vote on the Welsh people at a time when it was unlikely to succeed, and where the whole motivation was to kill Home Rule.
I might very well be accused of being less than generous towards the noble Lord on this issue, but I have looked carefully at his track record and noted his attitude to Home Rule at each stage. I have noted what the leaders of his party here at Westminster had to say about the very prospect of a Welsh Assembly. Mr Hague condemned it when he was Secretary of State for Wales and as Leader of the Opposition. Since the Assembly came into being, there have been other voices in Wales, Mr Bourne, the leader of the Conservatives in Wales, among them. How far he goes on the path towards Home Rule of course is another matter. Sweet words, and no doubt genuine words, have been spoken in favour of an Assembly, but that is a very far cry from what we are dealing with here in the context of Part 4.
I therefore reserve very considerable doubts about the exact intentions. If there were no further evidence, one would be entitled to look to the past, but of course there is further evidence. One looks at Amendments Nos. 81 and 82, where the noble Lord proposes that if a referendum is lost, there is a moratorium of four years. Whether a referendum takes place or not, and assuming that it either does not take place or is not carried, at the end of 10 years under Amendment No. 81 the whole matter dies. There is certainly a considerable body of evidence that points to the intentions of certain people to have a referendum called at the most unpropitious stage as far as Home Rule is concerned, for that to be defeated, for the whole situation to be placed in porth for four years, and then—they hope—for it to die out after 10 years. If I am wrong, I will totally withdraw that, but I have my fears and would be foolish and naive not to express them in this way.
I join the noble Lord, Lord Elystan-Morgan, in a wariness regarding the amendment from the Conservative Party. I remember in 1979 the referendum in Wales, when Mr Hamilton's amendment said that we needed 40 per cent of the Welsh electorate to vote yes. I do not recall at all an amendment from the Conservative Party to make that any different. It did not want any movement, because it did not in its heart of hearts believe in devolution. It is a matter of the heart: you are either a devolutionist or a restrictionist. Are you a unionist or somebody willing to allow devolution to strengthen and develop? The opportunity was here this afternoon. We had a vote on the Liberal Democrat amendment that would have given the Welsh Assembly the same powers as the Scottish Parliament. I went to check with those who had been counting, looking at the list of those who voted in favour of that amendment. There was not a single Conservative there, so we suspect any crocodile tears shed in this direction very much indeed.
The new support from the Conservatives for a referendum is very different from their track record. When we had the referendum on our place in Europe, the first referendum in 1979 for Welsh devolution and the referendum in 1997, they were not from Conservative Governments. What is really in the mind of the Conservative Party? What is its intention? Is it not in the end, as the noble Lord, Lord Elystan-Morgan, stated, to put a brake on devolution in Wales?
In the debate earlier this afternoon, the noble Lord, Lord Kingsland, wanted to delay things when the noble Lord, Lord Rowlands, posed his amendment, saying, "Six months, 60 days, don't rush into it". Here is something totally contradictory. With the noble Lord, Lord Elystan-Morgan, I have my suspicions. I do not think that we will be voting tonight but, if this is ever put to the vote, I will still think that 51 per cent is not well intentioned.
I am interested to see that a new constitutional principle is arising whereby one of the devolved assemblies can decide whether it wants further legislative powers. I also think that a constitutional glass ceiling is probably in place, because the Scotland Act is clear that the Scottish Parliament could not legislate to go beyond a devolved parliament status. I of course hope that the Minister will tell me that I am wrong and that the Scottish Parliament could start such negotiations for progress beyond a devolved parliament, but I am interested to see that the Government are now allowing a devolved institution to decide that it wants more powers and to generate a referendum, up to the point of devolution but not beyond.
I am grateful to all Members of the Committee who have spoken in the debate. As and when the referendum occurs, we will expect the Conservative Party to be very much to the fore in campaigning for a yes vote, led no doubt by the noble Lord, Lord Crickhowell. However, I must take the position behind the amendments at face value, and I want to express to the Committee why we have in the legislation a different formula for the basis of the referendum.
Let me make it absolutely clear that referendums are not light-hearted issues. A referendum result is a decisive occasion in the body politic. The 4:1 defeat in 1979 set back the whole devolution project for more than 20 years. It is true that there were other factors; the arrival of the Conservatives—in their pre-pro-devolution days—in government was not helpful. Nevertheless, there were considerable anxieties in Wales that the extent of the defeat in 1979 meant that those who argued for devolution faced a difficult situation.
We are talking about a situation different from 1979 as well. The defeat at that stage merely stopped the proposal dead in its tracks, but now we have a working National Assembly. Even under the proposals of the noble Lord, Lord Crickhowell, 51 per cent of the National Assembly would have voted in favour of a referendum and so would have committed themselves to it. Then they get beaten in the referendum; the referendum is lost. What kind of confidence would such a defeat place in the National Assembly for its continuing work under the existing arrangements? That is why the approach to the referendum should be on the basis of clearly identified support.
The noble Lord seems to be saying that, with the two hurdles put in place, only one man or possibly woman—the Secretary of State—is wise enough to know exactly the moment that the referendum should be offered to the Welsh people. Was that the position that the Deputy Prime Minister was in when he offered a referendum to my colleagues in the north-east, which again was rejected by something like 4:1?
No. If the noble Lord, Lord Henley, reads the Bill carefully, he will recognise that what is being said in it is that two-thirds of the Assembly should support the proposal for a referendum before the process is undertaken. The basis is not one man at all, but very considerable support in the Assembly, with the understanding that that support would then generate considerable campaigning activity by all those involved. By definition, two-thirds support in the Assembly clearly involves a great deal more than one party, so the basis for a successful campaign might be mounted. A 51 per cent position would put that in very different circumstances, which is why the proposal for a referendum needs to be based on very considerable support in Wales.
Of course some judgment has to be made by the Secretary of State, otherwise the Conservatives would be not only arguing most enthusiastically for devolution, but saying that the rest of Britain had no role whatever in this process. A vote in an Assembly that was carried by a majority of one could then be translated into the will of the nation, whereas the nation is more than just Wales; it is also the rest of the United Kingdom, which has a view on devolution. Therefore, of course the Secretary of State should have some interest in this matter. That is bound to be the case. The Conservative position goes from the absurd to the almost outrageous—and is untenable. The noble Lord, Lord Crickhowell, should recognise that his amendments, far from advancing the cause of devolution, potentially devalue the role of the National Assembly under the existing arrangements, never mind build on them.
It is not unreasonable for the Secretary of State to have some discretion in the matter and to be able to take into account views expressed in consultation. The United Kingdom Government of the day should have a say on such a major constitutional decision. Or has the Conservative Party been out of government for so long that it has lost sight of the possibility that it might even be a Conservative Secretary of State to whom it would deny any such role? I am sure that the whole country will take note of that. I and the Government believe that the Secretary of State would have some responsibility to Parliament, to which he would be answerable for a decision taken by the devolved Assembly on this matter.
While appreciating that the Secretary of State is not acting as a mere dummy in this matter and that he has a role to play, would the Minister accept that that role is circumscribed and limited? In other words, the Secretary of State is entitled to refuse to lay that draft order before the House within 120 days and he must state the grounds for his refusal. Do Her Majesty's Government envisage that such a refusal should be only for some grave and weighty reason and should never be part of the tactics of day-to-day politics? The matter should be very substantial.
I think that that is right, but the Secretary of State has responsibilities. Therefore it is entirely appropriate for the Secretary of State to exercise a limited area of discrete powers, as the noble Lord indicated, before the decision of the Assembly is implemented. That is all that is being proposed in the Bill.
The noble Lord, Lord Livsey, has tabled an amendment under which a formal resolution of the Assembly proposing a referendum would not be moved by the First Minister or one of the Welsh Ministers, but would simply be a decision for the Assembly. The restriction in the Bill is there for a good reason. A formal resolution of the Assembly proposing a referendum on primary powers would be a serious step. The Government believe that such a step should not be taken unless there is consensus across the political parties—including the party or parties in government in the Assembly—that the time is right for a referendum. A proposal made formally by Welsh Ministers will carry much more weight than one which is not.
Any referendum would have to be proposed against an expectation of a considerable likelihood of success, in case the Assembly was damaged. Achieving that means that we should have in place proposals that guarantee the broadest level of support in the Assembly and in Parliament for such a development. That is why I can accept neither the Liberal Democrat amendment in its more limited form nor the amendments tabled by the noble Lord, Lord Crickhowell, which others have suggested might be devolution wrecking—I shall content myself by saying that they would do substantial damage to the cause.
This has been a fascinating short debate. The Minister made two arguments, really. In defending the role of the Secretary of State, he said that we must have the national view as well as the view of the people of Wales. That comes pretty close to the words of a former Liberal Prime Minister that I quoted some hours ago, who said that there must be an English veto. What else did the noble Lord's words mean? Then he declared that one should not have a referendum unless one was certain that one was going to win it. What he was really saying was that the people of Wales would not be allowed a choice until Ministers were absolutely confident that they could not lose. He advocated an alternative solution based on subterfuge and deceit: "Step by step we will get there, and only when we have got there will we allow the people of Wales a choice".
The position of the Liberal Democrats is remarkable—it is not to have a referendum at all. Well, the fact is that the Bill provides for a referendum, so the real question is: should the people of Wales be allowed to go ahead and be given their choice or should the Welsh Assembly be allowed to decide whether to ask the people of Wales, albeit at a date effectively to be decided by the Secretary of State and the UK Government acting in what has been described as the national interest?
It was suggested that I, or those who think like me, would fiddle the wording of the referendum, but our Amendment No. 83 proposes that the wording of the referendum question should be decided after consideration by all the political parties in both Houses of Parliament. So that was not a strong suggestion.
I welcomed the return of the noble Lord, Lord Elystan-Morgan, to this House after a long absence and reminded him of when we used to speak in Cardigan Mart many years ago. The noble Lord said that he was not impugning my motives and went on to impugn them robustly. He questioned the genuineness of my attitude. He said that I was trying to rush the Welsh people. Rush the Welsh people? I am not. I am saying that the Welsh Assembly should have the choice. He believes in a Welsh assembly but does not think that the Welsh Assembly should be able to take the decision. I quite understand why he is nervous in his approach; he is living in a past of very bad dreams, because he confessed his role in that 1979 referendum, when only 13 per cent of the people of Wales voted on his side of the argument.
Although the noble Lord has a long memory, he was wrong to suggest that if a referendum was lost, the door would be closed. He criticised our amendment, but that amendment would allow a referendum to be brought forward again in four years. As I pointed out earlier in the debate, the noble Lord, Lord Richard, does not believe that we are going to have a referendum anyway in that timescale. No one who has argued the case on the other side has put forward the proposition that the Welsh people will be given a choice in the next four or five years. Indeed, I think that some hope that it will be 10 years or more before the Welsh people are given a choice.
I was asked what my position would be. My first position is that the people of Wales should be allowed to choose. Whatever doubts I may have had in the past, given a choice between the subterfuge and deceit of Part 3 and going the whole hog of Part 4, I would unhesitatingly campaign for Part 4. I think that Part 3 is wholly disreputable and dishonest. I quoted the criticisms of the mechanism by noble Lords on the Liberal Democrat Benches and by the noble Lord, Lord Richard. The mechanism is deceitful and unacceptable because effectively, step by step, it takes us down the road to devolution without allowing the people of Wales any say in the matter at all and then, when they have got there and the door is closed, the noble Lord, Lord Elystan-Morgan, turns round and says, "Now you can vote on it. And by the way, there is no point in voting against it because we are there already". I call that a dishonest approach and I will not have anything to do with it.
I thank the noble Lord for giving way. I said that I would withdraw completely any imputation as to his genuineness if he answered the question clearly and honestly, and he has done so. He said that, in the situation in which we now are, he would be a supporter of Part 4.
Perhaps I may put the alternative case now that I have absolved the noble Lord of all possible blame. The alternative case is as follows. Not everyone may be as altruistic as the noble Lord. There may be malcontents who harbour in their hearts nothing but a fear of home rule and a feeling that they will retreat only inch by inch as they are driven back. There could be malcontents who could cobble together an unholy alliance to form 51 per cent and wreck the whole of Part 4 of the Bill in that way. So, rather than having the noble Lord in the dock, one has to proceed on the basis that there are people who would gladly welcome that opportunity.
I do not intend to carry the debate any further tonight. We will probably have an opportunity to do so at a later stage in our proceedings. I can say only that I find it extraordinary that those who plead for devolution, who demand that the Assembly should have more powers and more authority and who suggest that, when it comes to all the important decisions, the Assembly should decide, have so little faith in the Assembly or in the judgment of the Welsh people. They talk about democracy but they are denying democracy to the people of Wales. I think that it is a shameful position and I will come back to this matter at a later date, but now I beg leave to withdraw the amendment.
The order referred to in the amendments in this group would cause a referendum to be held throughout Wales on whether the Assembly Act provisions should come into force. It is likely that the order would contain the question or questions to be answered in the referendum, "unprecedented" as that might be, according to the Delegated Powers and Regulatory Reform Committee. I am sure we are all familiar with the fact that it would be very unusual for the question in a referendum to be in secondary rather than primary legislation.
If a referendum took place as the result of an order, presumably it would be after the Electoral Commission had examined the fairness of the question, as it is required to do in legislation. It would seem to me very odd in the circumstances if the two Houses of Parliament were unable to amend what the commission could change. But the strongest justification for ensuring that the order is amendable, which is what the amendment proposes, is that the timing of the order is so uncertain. It may indeed be a decade or more from now before such an order is required. It would certainly seem right to ensure that Parliament had maximum flexibility to act in those totally unforeseeable circumstances. Of course, a referendum Bill may be necessary to allow full parliamentary discussion but, on the other hand, instruments known as super-affirmative orders allow for amendments and modification.
I have to tell the noble Lord, Lord Elystan-Morgan, that Amendments Nos. 81 and 82, into which he read so much, are probing amendments. The matters referred to in these amendments have been discussed in the other place and I think that we should discuss them now. Amendment No. 81 is based on the view that it is unwise to legislate too far ahead and it sets a 10-year limit from the passing of the Bill on the application of subsection (1). That seems to me to be reasonable. Amendment No. 82 sets a four-year interval between one referendum and the next in order to avoid an immediate build-up of pressure following a referendum.
I know that the Government have views on these matters and I am very anxious to hear them. I beg to move.
I am grateful to the noble Lord for the precise way in which he has explained his amendments, but I have to say that a real practical difficulty is attached to Amendment No. 80. The Bill provides that the draft referendum Order in Council must be approved by two-thirds of all Assembly Members. A draft Order in Council would not be laid before Parliament unless it had been approved by the Assembly. If Parliament were to amend the draft order, that would nullify the effect of the Assembly's approval. It would undermine the basis on which any future referendum should be called—that is, a firm basis of consensus about the timing of the referendum—and the exact terms in which it should be put to the electorate. So I do not see what the capacity to amend would do other than severely damage the Assembly, having effectively nullified its role in the first place. The Assembly would have approved by a two-thirds majority any draft order that was laid before Parliament and presumably it would wish to approve any amended order or indeed to have similar powers. The amendment seems to propose an absurd development.
In reality, I believe it will be necessary to reach consensus about the referendum ahead of the formal procedure for approval of the draft Order in Council by the Assembly and both Houses of Parliament. It will be for the Welsh Assembly and UK governments of the day to ensure that sufficient consultation takes place to guarantee that that is the case.
Of course, either House can still reject the draft Order in Council, but amending suggests that the necessary preparation and consultation has not been undertaken. I do not see how the Assembly could conceive of fulfilling its role without having paid its full part in that.
Amendment No. 81 would prevent a referendum under the terms of the Bill from being held more than 10 years after the Bill receives Royal Assent. Why should there be an arbitrary time limit on the possibility of enacting the provisions in Part 4? The powers in Part 4 do not, and should not, have a use-by date. Under the Bill, the timing of a referendum would have to be considered and agreed by both Houses of Parliament and by a two-thirds majority in the Assembly. Such consideration, by democratically elected MPs and Assembly Members, will ensure that the referendum is held at an appropriate time—not within an arbitrary 10-year time limit, which I contend is meaningless.
I know the Secretary of State has said that he cannot see a referendum happening in the near future because it makes sense to see how the provisions enabling the Assembly to make measures bed down first. However, we cannot predict at this stage exactly when a referendum should be held and it would not be appropriate for us to say that a referendum should be held within 10 years or not at all.
Amendment No. 82 seeks to impose a gap of four years between any referendum and an Order in Council calling for a further referendum under the Bill. The fact that a referendum can be held only with the agreement of two-thirds of the Assembly, with the agreement of the Secretary of State and with the agreement of both Houses of Parliament, all of whom will be aware of the financial and political cost of frequently repeated referendums, is surely safeguard enough without us needing the terms of this amendment.
We fully agree that frequent referendums under the Bill would be counter-productive. But the process for approving a call for a referendum which is built into the Bill will guarantee that frequent referendums are not called. Therefore, I hope that the noble Lord will realise that we have thought through these issues carefully and feel able to withdraw his amendment.
I am grateful to the Minister for his comments on the amendments in this group. They are primarily probing amendments. Perhaps he could clarify the point that I have made. Would an order approving a referendum contain the question? Would there be separate legislation to govern the content of the question to be put in a referendum?
Of course, the order would be the result of very considerable consultation on the nature of the referendum and when it would take place. It would be unprecedented for a referendum question to be set in an Order in Council. Putting a referendum question on a matter concerning devolution on the face of primary legislation is not an unvarying rule, as the Northern Ireland Negotiations (Referendum) Order 1998, made under Section 4 of the Northern Ireland Act shows. The point is that in each case the legislation has been framed in a way that best gives effect to the policy requirements. We recognise that the Order in Council is a process—we debated this point at some length earlier—which presumes very extensive consultation and very extensive scrutiny before any such order is tabled before the House. Therefore, the noble Lord will recognise that representations in regard to the order will be conducted on the widest possible basis before any order is tabled.
I am grateful to the Minister for that further clarification. I note that he views with some disfavour the possibility that the order—in other words, secondary legislation—might contain the question to be put in a referendum. I remind him, yet again, of what was said by the Delegated Powers and Regulatory Reform Committee in paragraph 37:
"We draw to the attention of the House that it is unprecedented with a devolution referendum for the wording of the question, and of any statement preceding it, to be left to subordinate legislation".
I am sure that the Government have taken that point on board. I beg leave to withdraw the amendment.
moved Amendment No. 83:
Page 115, line 8, at end insert—
"( ) Both the question to be included on the ballot paper and any statement to precede the question must first have been approved by each House of Parliament in a procedure where the question and statement shall have been capable of amendment by each House."
It is clear that the purpose of the amendment is to ensure that the referendum question on the ballot paper and any accompanying statement have been approved by both Houses in a procedure where they have been open to amendment.
The Delegated Powers and Regulatory Reform Committee has drawn our attention to the fact that it is for the Order in Council to specify the referendum question and any statement to precede the question on the ballot paper. That is contained in the memorandum submitted by the Wales Office. It is unusual for such devolutionary matters to be left to subordinate legislation. The referenda of 1979 and 1997 in Wales and Scotland were covered by primary legislation, as were the London referendum and regional assemblies referendum. The Government defended their decision in their memorandum on the Bill to the Delegated Powers and Regulatory Reform Committee. The memorandum states:
"It is highly desirable that the referendum question, and any preceding statement, are left to the Order in Council rather than specified on the face of the Bill . . . Specifying them on the face of the Bill would be inflexible".
It adds that the need for flexibility is largely based on the obligation to consult the Electoral Commission under Section 104(4) of the Political Parties, Elections and Referendums Act of 2000.
Of course, I grant that the Government have a case of sorts, based on convenience and expediency, but I note that the Delegated Powers and Regulatory Reform Committee is far from convinced. It feels obliged to draw the attention of the House, as I indicated in speaking to an earlier amendment, to the unprecedented nature of leaving these devolution referendum issues to subordinate legislation. I quote:
"In deciding whether that is acceptable, the House will wish to consider whether it is important that the draft legislation containing the proposed question is amendable by the House. If the House concludes that Parliament should be able to amend the Government's proposed question, then subordinate legislation is inappropriate. The House would then need to decide whether it is more appropriate for this bill to contain the question, or for a separate bill to make that provision shortly before the time at which the Government intend to hold the referendum".
As the official Opposition, we take the view that these matters should be amendable and that this is the predominant view of Parliament. We are open-minded as to how that ability to amend question and statement is to be secured, as indicated by our amendment. There is no shortage of time, since Ministers do not anticipate a demand for a referendum under Part 4 for at least a decade, so it is up to the Government to explore the possibilities and come up with a satisfactory answer to the problem. The substance of our amendment to Schedule 6 is still valid, however. I beg to move.
The Government have carefully considered the points raised in this amendment. We are still firmly of the view, however, that the approach presented in the Bill is the right one for Wales in the context of Welsh devolution.
The Bill sets out the issue on which the voters would be asked to give their view in a referendum; namely, whether the primary powers part of the Bill should come into force. In this respect, there is no uncertainty over what Parliament is being asked to agree in this Bill; it leaves no doubt as to what the referendum question must be about. Secondly, the Bill ensures that the extent of the legislative competence which the Assembly would acquire under Part 4 will be clear at whatever point a referendum is called.
So the fundamental principles concerning what the referendum is to be about, and what the consequences of a "yes" vote will be, are being considered here and now as Parliament debates this legislation. The distinction between this Bill and the referendums listed by the Delegated Powers and Regulatory Reform Committee, to which the noble Lord, Lord Roberts of Conwy, drew attention, is that, unlike those other examples, the referendum provided for by this Bill may not occur for some time.
The other examples concern a referendum question which is imminently to be put before the electorate. The Bill recognises that we do not know when the referendum will be called, but we know the issues which will frame the question. By providing for an Order in Council to contain the referendum question and preceding statement, the Bill ensures that the precise wording can take account of the circumstances at the time. I emphasise that we do not know when that will be. For example, the preceding statement might be worded differently according to the extent of the legislative competence that the Assembly had already acquired over any intervening years between this Bill becoming law and the referendum being established. The referendum question and any preceding statement must form a single package and the two should be fixed at the same time; that is, whenever a referendum is to be held. This is consistent with existing practice.
I emphasise again that the consultation necessary for the two-thirds majority of the Assembly to support a referendum, and the consultation between the Assembly, the Secretary of State and Parliament preceding the Orders in Council, guarantee that the issue of the precise question is fully debated and considered before the Order in Council is proposed. It would certainly be a dramatic step—in legislative terms, almost a revolutionary step—for the noble Lord's amendment that an Order in Council should be amendable to be accepted. We do not propose that. We propose that the Order in Council should follow the patterns of Orders in Council which are before this House from time to time and are not amendable, and the Orders in Council on other aspects of this Bill, governing the development of powers for the Assembly of Wales.
The Government have thought through the issues. I recognise the noble Lord's anxiety over the necessity for effective consultation, and the importance of the question. We know the broad terms of the question. They are enshrined in the nature of the Bill. The provisions we have for consultation before the Order in Council, however, will guarantee that effective debate will be had both in the National Assembly for Wales and in pre-legislative scrutiny in both Houses.
Will the Electoral Commission be consulted on the nature of the question by the Assembly and the Government?
That is an obligation, which the Government will fulfil.
I am grateful to the Minister for his reply, which is unprecedented in that we have learnt that the referendum question and the accompanying statement will be put into an unamendable order. True, the order will have been approved by the Assembly; true, it will have been approved by both Houses of Parliament. Let us not exaggerate the scope for debate in that approval process, however. It is a short debate to approve the order, both in this House and the other place. It will certainly be, as the Delegated Powers and Regulatory Reform Committee pointed out, unprecedented for the question and statement to be in secondary legislation.
The Government are breaking new constitutional, or unconstitutional, ground by the process that they anticipate in this case. Mercifully, it will not occur until a substantial time—possibly a decade—has elapsed. I am sure that, a decade hence, Parliament may well take a different view from that put to us by the Government today. I beg leave to withdraw the amendment.