Government of Wales Bill

My Lords, I thank the Minister for his polished presentation of a very unpolished Bill. On the poem by RS Thomas, The Old Language, I remind the Minister that the Opposition passed the Welsh Language Act 1993, which did a great deal of service to the old language. There has been a positive development in my party’s thinking and attitude to devolution since the advent of our new leader, David Cameron. This pleases me and my noble friends, because I have long believed that there was considerable scope to improve on the original devolution settlement for Wales. Of course, the Labour Government appear to share that view in that they have now produced the Bill before us, which is the curiously enigmatic—some might even say devious—sequel to the Government of Wales Act 1998 and the outcome of seven years’ experience of its operation. It is also the result of extensive consideration, notably by the noble Lord, Lord Richard, and his commission, whose main recommendations at box 13.5, which might have provided a firmer, more principled basis for legislation, have been influential but have not been substantially accepted by the Government, except for one recommendation on the separation of the Executive and the legislature. The Bill was preceded by the White Paper, Better Governance for Wales, which the Select Committee on Welsh Affairs examined. Some of our own committees have also had a hard look at the Bill. The Constitution Committee is only the latest to report, and I hope that its members will contribute their wisdom to our debates. There is therefore no shortage of background material to assist us in our deliberations. As the Minister said, the Bill contains repeats or adaptations of much that was in the 1998 Act, as well as some fresh proposals, such as the separation of the legislature and the Executive, which are broadly welcome. There is a cross-party consensus that it is high time that the National Assembly and the Assembly Government ceased to be tarred with the same brush. They should be separated, and should be perceived to be so by the public. Then there are some 24 clauses that are novel and controversial. They are largely contained in Parts 3 and 4 of the Bill, and deal with the transfer of primary legislative powers to the Assembly. As the Explanatory Notes state on page 62:"““It should be noted that, with minor exceptions . . . the Bill does not itself confer additional legislative powers on the Assembly: rather, it provides a mechanism whereby such powers can be conferred on a case by case basis as appropriate, with Parliamentary consent””." That is a fair and accurate statement of the Bill’s intent, especially in Part 3, but the Government have not always adhered to it. They have claimed much more for the Bill when it suits them. At the Bill’s launch on 8 December last year, the Secretary of State said that the Bill would,"““give the Assembly more powers, more opportunity and more scope to make decisions””." But your Lordships will be aware that the mechanism to secure those powers is complex and hedged with hurdles. The ultimate guide to the maze, and controller of entries and exits, is the Secretary of State, whose minatory shadow is everywhere in this Bill. At times the Bill reads more like a centralising than a devolutionary measure. The fundamental question that many ask is why the Government do not propose a direct grant of primary legislative powers, particularly in the devolved areas of government, as recommended by the commission chaired by the noble Lord, Lord Richard. The Government’s answer is that this would require the people’s endorsement in a referendum and they do not think that they could win it. As recently as Third Reading in the other place, the Secretary of State, Mr Peter Hain, said:"““I have no doubt that if a referendum were held today, it would be lost””.—[Official Report, Commons, 28/2/06; col. 209.]" That is in spite of the glowing achievements reeled off by the Minister at the start of his speech. The Secretary of State’s statement read very oddly on the eve of the St David’s Day opening of the new Assembly building and the publication of that curious ICM poll for the BBC, which was optimistically interpreted as showing a total of 55 per cent of the 1,000-people sample in favour of a more powerful—39 per cent—or independent—16 per cent—Assembly. Was the Secretary of State genuinely defeatist, which is out of character, in his view of referendum prospects or was his caution an inspired response to the unhappiness of his own Welsh Labour MPs at the prospect of redundancy as more powers passed from Westminster to Cardiff Bay? I am not surprised at the Government’s lack of confidence, considering the narrowness of the majority in 1997—0.6 per cent—and the Assembly Government’s disappointing record of achievement in certain areas since then, especially health. The Assembly’s standing with the Welsh electorate is prima facie precarious. The Secretary of State’s indications about a referendum and the consequences are indicative of that precariousness. In Committee in the other place, the Secretary of State confessed that he was ““haunted””—that is the word that he used—by the 1979 referendum, which the Callaghan government lost by four to one. Mr Hain went to say:"““I am also haunted by the narrowness of the vote in 1997. Unlike 1979, the Labour party was not bitterly divided on the question””." He might have added that it was supported by Plaid Cymru and the Liberal Democrats. He went on:"““I do not think that we should go anywhere near a referendum that could produce those circumstances. That is why I built in carefully a two-thirds vote in the Assembly””.—[Official Report, Commons, 24/1/06; col. 1399.]" The Secretary of State was of course referring to the provision made for a referendum in Part 4 on the grant of primary legislative powers over a broad range of responsibilities without the need for further recourse to Parliament. Two-thirds of Assembly Members and both Houses of Parliament must support the proposal before a referendum on the issue can take place at all. Most people would agree that a positive final outcome to Part 4 is a very distant prospect. However, the Government have not succumbed to their fears and given up entirely on devolution—far from it. As we have heard, they have provided in Part 3 for the National Assembly to gain legislative powers in specific areas by Orders in Council, approved by both Houses. The novel procedure by which the Assembly secures and Parliament endorses such orders, bearing in mind that orders are ultimately unamendable, has yet to be satisfactorily defined and refined. There will be pre-legislative scrutiny of the proposed order in draft form and of some explanatory memorandum/documentation, but doubt and uncertainty persist about the precise procedure involved, and its scope and acceptability. I refer noble Lords to col. 168 of the Official Report of the other place on 28 February, if they wish to savour the confusion that still exists. The Constitution Committee’s eighth report also highlights the staggering complexity of this procedure and the uncertainty attached to it. The ultimate result is intended to be Assembly measures that will have the same force as Acts of Parliament. The Transport (Wales) Bill recently passed by your Lordships has been cited as an illustrative example of what the Government have in mind, as I noted at the time of the Bill’s final passage through this House on 14 February. My main point now is that it has been established in the other place that the process of devolving primary legislative powers, by Order in Council, is open-ended and seemingly endless. The noble Lord, Lord Richard, described the procedure’s possible operation in his evidence to the Welsh Affairs Committee. He said:"““It is a device to avoid having to come to Westminster to ask for primary powers to be formally devolved. It is quite an interesting device””." It is quite a good device in that sense, because you get a situation in which Cardiff ends up with greater powers. He continued:"““Westminster can say they have not devolved primary legislative powers, but depending on the way in which the Order in Council procedure is used, it could in effect be a concealed grant of almost a direct legislative competence down to Cardiff””." The Father of the House of Commons, the right honourable Alan Williams, referred in Committee to this piecemeal devolution of powers as ““salami slicing””. In short, the very extensive transfer of legislative power that might be achieved after a successful referendum under Part 4 could be reached over time without a referendum by repeated use of the provisions under Part 3—it is as clear as it could be. If that is so, and I have no reason to doubt it, there is a strong argument, consistent with the logic of the Government and the Bill, for having a referendum before the Order in Council procedure for devolving power comes into effect—assuming, of course, that the procedure has parliamentary approval. This would be a referendum not on the continued existence of the Assembly, but on the bestowal of primary legislative powers. The Government may be fearful of the consequences of even a limited referendum of this sort, but the issue will have to be faced sooner or later. The Government have promised a referendum to the electorate under Part 4. Part 3, surely, is not simply a ruse or device to avoid a referendum and to achieve the transfer of powers by other means. That would be blatantly dishonest. I am sure that the Government would not wish to be guilty of that. Meanwhile, the Government continue to increase the powers of the Assembly to make subordinate legislation. The NHS Redress Bill, to which the Minister referred, is mentioned on page 5 of the Explanatory Notes as an example of a very broad framework provision; indeed, it attracted the critical attention of our Delegated Powers and Regulatory Reform Committee. There is no requirement in this Bill for such enabling framework provisions, unpopular as they are with legislators, to have general endorsement. They will have to be debated individually as and when they arrive, but I feel sure that debated they will be. Another aspect of the Bill is causing concern, particularly to the smaller parties. It is the proposal to prohibit candidates from standing both in constituencies and on the regional lists that provide the additional Members of the Assembly. They must choose one route to election or the other. As the Labour Party has no regional list Members in Wales, the Government’s proposal affects the minority parties most severely and is regarded as a somewhat mean and spiteful tactic to handicap them. The independent Electoral Commission is critical of the Government’s proposal, while Sir John Arbuthnott, who examined the issue in Scotland and considered the Welsh advice in that context, found no reason to recommend the change. He said:"““Preventing dual candidacy would be undemocratic. It would place an unnecessary restriction on the democratic rights of individual candidates, parties and local electors to have as unrestricted a choice as possible in an election””." Meanwhile, the Government have actually quoted Sir John, as they have quoted the noble Lord, Lord Steel, as being somehow supportive of their line on this. We now know that the Government agree with Arbuthnott for Scotland, but not for Wales. Replying to the debate on the Bill of the noble Lord, Lord Foulkes of Cumnock, to ban dual candidacy at Scottish parliamentary elections, the noble Lord, Lord Evans of Temple Guiting, said that,"““there is no prospect of government support for reopening the Scotland Act for this or any other purpose””.—[Official Report, 3/3/06; col. 504.]" He went on to discourage his noble friend from proceeding further with his Bill. I am bound to say that there is a whiff of inconsistency here. Why should a principle be valid in Scotland but not in Wales?