I wondered that too. I think that we will find, when the Minister responds, that he will not use that as his defence, because, having identified that as a possibility, I researched the issue and found that that was probably not the case—I see that the Minister is nodding, if not speaking, to confirm my analysis.
The Welsh Affairs Committee reported:
“We are concerned that continuing to use primary legislation to extend the powers of the National Assembly (in a parallel procedure to adding matters by way of Legislative Competence Orders) will mean that matters introduced in this way will escape the detailed arrangements for pre-legislative scrutiny”.
That is the point that hon. Members made on Second Reading. They felt that if the alternative process had been adopted, there would have been closer analysis of some of the proposals through pre-legislative scrutiny.
The Select Committee also said:
“It is unlikely that a single clause in a wider Bill would be subject to the same degree of scrutiny as a draft LCO, especially if the Bill is long and complex and the relevant clause appears towards the end of it...We are also concerned that the use of primary legislation denies the opportunity for joint working between the Welsh Affairs Committee and an Assembly committee in the pre-legislative scrutiny of proposed LCOs...We are concerned that to continue to add matters by primary legislation could therefore be a device for a general, rather than a specific, extension of Assembly powers, which at the same time negates the opportunity for specific and detailed pre-legislative scrutiny either by a committee of the National Assembly or by the Welsh Affairs Committee.”
For those reasons, and having looked closely at the Welsh Affairs Committee report on legislative competence Orders in Council, I have five specific questions for the Minister. Having come here and listened to the rest of the debate, he will get his money’s worth, and so he should.
Why was it decided to use primary legislation in this instance? I am aware of the difficulties of the minority Labour Administration in Wales—it is not easy now in Wales, or anywhere else, for the governing party. I congratulate my colleagues in the Welsh Conservative party on their splendid result in the recent Assembly elections. There are now 12 Conservative representatives in the Assembly.
By using parallel procedures, the Government have created confusing arrangements under which the extension of significant powers escapes detailed pre-legislative scrutiny by either the Welsh Assembly or the Welsh Affairs Committee. Some people have said to me—I do not think that it is the case, but it is a lively matter, particularly among Welsh colleagues—that the Government did not want the matter to be dealt with in the other way, because Welsh representatives would have created more fuss, would have asked more difficult questions and would have been more critical of some aspects, so it was easier to get the legislation through on the sly. I do not think that that is the case, because I do not think that these Ministers operate in that way. With their answers to my questions, they need to reassure those who are making such claims, however. On Second Reading, hon. Members expressed their concern. The former Secretary of State for Wales, no less, the right hon. Member for Torfaen (Mr. Murphy) said:
“I am concerned, however, about the way in which we deal with the pre-legislative scrutiny of Bills and orders that give the National Assembly for Wales new legislative powers... this is not quite what was expected when the Government of Wales Bill was debated in this place.”—[Official Report, 21 May 2007; Vol. 460, c. 1010.]
When the former Secretary of State issues an indictment of that strength, it is an important matter.
The right hon. Member for Islwyn (Mr. Touhig), the name of whose constituency I could not pronounce at the time, although I have been working on it—[Interruption.] I have not been working on it hard enough, by the sound of it, but I have been doing my best. He added:
“I am troubled—as was my right hon. Friend—by clause 25, which makes amendments to the Government of Wales Act 2006. If the clause is approved, it will transfer substantial responsibility to legislate for further education and training from Parliament to the National Assembly. Although I do not oppose the idea of using framework legislation to transfer power from Parliament to the Assembly, I think it wrong to do so without full parliamentary scrutiny of such a change to the devolution settlement...I am particularly worried after reading the memorandum prepared by the National Assembly in support of clause 25 and provided for us by my hon. Friend the Under-Secretary of State for Wales. The memorandum implies that the format set out in clause 25 for giving the National Assembly primary legislative powers will become the norm.”—[Official Report, 21 May 2007; Vol. 460, c. 1015.]