This is my first contribution to the Committee’s debates, Mr. Atkinson, and I belatedly welcome you to the Chair.
Some interesting points have been raised. As the hon. Member for South Holland and The Deepings explained, he might not have spoken were it not for the contributions made by my right hon. Friends the Members for Torfaen and for Islwyn. Both are genuinely my friends: I was the Parliamentary Private Secretary to the former when he was Secretary of State for Wales, and I was the Whip and business manager at the Wales Office when the latter was doing my present job. However, those comments did not come as a surprise to the hon. Gentleman. I have had a number of discussions with my right hon. Friends; they have genuine concerns, and I shall address them today.
I owe the Committee an apology about the explanatory memorandum. Two Acts have used primary legislation to pass legislative competence to the Welsh Assembly. The first was the NHS Redress Act 2006, and the second was the Education and Inspections Act 2006. Both went through without great comment being made on the transfer of powers to the Assembly. The practice followed for the Bill was the same as used for those Acts. I wrote to all Welsh Members of Parliament and to the Welsh affairs Opposition Front-Bench spokesmen in both Houses—in the Commons, it is the hon. Member for Chesham and Amersham (Mrs. Gillan)—to explain what was happening, drawing their attention to the relevant clauses and enclosing an explanatory memorandum.
It was an omission that the Committee did not receive that explanatory memorandum, and I apologise. It would certainly have been better if hon. Members had had a copy to hand. However, irrespective of the experience of the hon. Member for South Holland and The Deepings, a copy was in the Library, and it is unfortunate that it was not readily to hand when he first requested it. I hope that he accepts my answer. We are not trying to get the provision through on the sly, or we would not have written to Members of both Houses informing them that the relevant clauses allowed the transfer of powers and provided them with a copy of the explanatory memorandum.
The hon. Gentleman raised a number of questions—he said that there were four or five, but I counted only three, so perhaps there were some sub-questions. He asked why the primary legislative route had been taken rather than the Order-in-Council procedure. The answer is simple. It is a question of timing. At the moment, the National Assembly for Wales is conducting an independent review of further education in Wales. That review will be reporting in the autumn. If, as my right hon. Friend the Member for Islwyn wanted, we were to wait until the report was completed and thus have far more detail about what was to be placed in a framework power or an Order in Council, there would be considerable delay. In fact, following the Government of Wales Act 2006, there are two routes through which legislative competence can be transferred to the Assembly, namely primary powers and the Order-in-Council procedure.
Because the Order-in-Council process—an hour and a half debate in this place and an hour and a half debate in the other place—is not amendable, we have encouraged the Welsh Affairs Committee to undertake the pre-legislative scrutiny of Orders in Council, although we cannot demand that it does so. We have encouraged it to take on that role, because the opportunities for Members of this House and of the other place to scrutinise Orders in Council are extremely limited. Orders in Council are unamendable and, although they are debatable, the answer at the end of the debate is either yes or no.
We have always argued that we already have sufficient powers to examine the proposal to transfer the competence from this place to the National Assembly—indeed, we are scrutinising the clause today—and we are drawing attention to these matters by the distribution of the explanatory memorandum to relevant hon. Members. I am sure that we will give an adequate response to the Welsh Affairs Committee report that highlights the issue. The open evidence sessions that the Government have introduced at the beginning of Public Bill Committees provide a further opportunity for scrutiny.
Because of the legislative timetable, the problem for any Government, irrespective of their views about pre-legislative scrutiny—this Government are great advocates of pre-legislative scrutiny and of draft Bills—is that there is not always time to provide a draft Bill, to inform a Select Committee that a particular Bill is being produced or to allow for that Committee to conduct pre-legislative scrutiny. The Government’s record on having tried to improve the scrutiny of our legislative process is excellent. In our response to the Welsh Affairs Committee, we will highlight the issues and mention some of the ways in which we can assist not only that Committee but all Members to scrutinise the matter as much as possible.