Government of Wales Bill

My Lords, I start by saying what a pleasure it was to hear the noble Lord, Lord Elystan-Morgan, after his long absence from this House. He looked back a mere 19 years, but I look back more than 30 years to the time when, in Cardigan Mart on the borders of our respective constituencies, he and I on the last Monday of the election campaign used to address the farmers of Pembrokeshire and Cardigan. It seems a long time ago. It is nice to have the noble Lord, Lord Elystan-Morgan, back here active after so long a gap. As there is a good deal in the Bill that I will be criticising, I shall start by identifying the one section that has my total support, which is Part 2, which affects the formal separation of the executive and legislative branches of the Welsh Assembly. There may be points of detail that need consideration, but the principle is clearly right. I shall have something to say about Part 1 later, but I now turn to Part 3. I listened with considerable interest to the not so stealthy criticism by the noble Lord, Lord Richard, of that part of the Bill. It may not be immediately obvious to noble Lords who have not followed exchanges in another place exactly what would be the consequences if Parliament approves Part 3 of the Bill. I believe that the constitutional and practical impacts of the Bill, if passed, are so significant that every Member of this House should be made aware of them. If Clauses 92 to 101 were to be passed, primary legislation would cease to be the responsibility of Westminster or of the Welsh Assembly. The responsibility would be replaced by a system of government through Orders in Council. On 28 February, during the Third Reading debate in another place, the Minister, Nick Ainger, described the process and corrected some misunderstandings that had arisen in Committee. He said:"““The Welsh Assembly will propose an Order in Council which will then be subjected to pre-legislative scrutiny, when it can be amended. After that, the Assembly will consider any changes and introduce a draft Order in Council. The draft order will then be laid before the House by my right hon. Friend the Secretary of State, and the normal affirmative procedures, both here and in the House of Lords, will apply””." The next sentence of the Minister’s remarks and the exchange that followed should be engraved in our minds during our later proceedings. He said:"““It is not the measures that will come before Parliament in any form, but the policy statement justifying why the Order in Council is required. There will be a substantial amount of information attached to that, and it will be subject to pre-legislative scrutiny””." My honourable friend Dominic Grieve commented that,"““it sounds even worse than I originally thought. In Committee I understood that although the House would vote on the draft Order in Council, there would be an opportunity for the House to scrutinise the actual draft measure. The Minister shakes his head and says that that is not the case””.—[Official Report, Commons, 28/2/06; cols.162-3.]" What that means is that the actual measure that will go through the Assembly will not come before us, but the Orders in Council, which reference to Part 3 of the Select Committee on the Constitution report will show are very brief and uninformative, will be seen. It seems to me that this is a procedure that we will have to probe very closely in Committee. Indeed, the case for doing that was strongly reinforced by the remarks of the noble Lord, Lord Richard. There are other reasons for saying that the process is flawed. Clauses 92 to 101 make it glaringly apparent that the exercise of power supposedly to be transferred to the Assembly will remain entirely at the discretion of the Secretary of State. Clause 94(7) allows the Secretary of State the right to refuse a draft order proposed by the Assembly. Ministers lay great emphasis on the effectiveness of pre-legislative scrutiny. But it is very hard to see how pre-legislative scrutiny can be effective in these circumstances. In any event, pre-legislative scrutiny should be an aid to consideration by both Houses and not a substitute for it. Furthermore, the devil is in the detail, and it is bizarre to imagine that the detail can be adequately dealt with by the arrangements that I have described. The hour-and-a-half debate under the affirmative resolution procedure on a brief order and a measure that will not come before the House, but which will be based just on a policy statement, is likely to be a curious and unproductive occasion. My right honourable friend John Gummer was surely right when he argued that legislative activity is at the heart of what Parliament does, and either the Assembly should do it or Parliament should. It would be unacceptable for no one to do it or for it to be done inadequately because of the strains that the Select Committee on the Constitution fears may be placed on the Assembly. I suggest that we should not be prepared to surrender the power to scrutinise and enact legislation to a system that very considerably increases the power of the Executive. Part 3 of the Bill is not a modest measure. It is a measure aimed at conferring primary legislative competence on the Assembly on a piecemeal basis. As the right honourable Alan Williams, Labour Member and Father of the House of Commons, put it at Second Reading—and my noble friend Lord Roberts of Conwy referred to this—"““under the Bill as drafted, which provides for a succession of orders, the full legislative objective could be achieved without a referendum . . . a succession of orders could achieve that objective””." He also drew attention to what he described as the Trojan Horse clause, because:"““if just one non-controversial, innocuous order is passed, a policy area is opened. Once that happens, the Assembly is free to introduce new measures with different policy objectives, without having to go for a further order. It is a form of creeping devolution””.—[Official Report, Commons, 9/1/06; col. 53.]" My noble friend Lord Roberts of Conwy has already quoted the evidence of the noble Lord, Lord Richard, to the Welsh Affairs Committee, so I do not need to do that again. But as he said, it is an interesting device and it could in effect be a concealed grant of almost a direct legislative competence down to Cardiff. I think that the noble Lord, Lord Richard, is absolutely right about that, but it would not be Westminster that controls the process so much as the Secretary of State, and that is where the real control would rest. It is going to be very difficult to sort out the fundamental flaws in Part 3 of the Bill. Part 4 of the Bill deals with the possibility that the Welsh Assembly will be given primary legislative powers if consent is obtained by means of a referendum. The Secretary of State for Wales has said that the Bill presents the opportunity to settle for a long time the constitutional status of Wales. It does northing of the sort. On the contrary, it places a huge question mark over the constitutional status of Wales. While pretending to offer primary powers subject to approval by means of a referendum, the offer of a referendum is rendered almost meaningless by conditions designed to ensure that it cannot take place until some distant time in the future when the Secretary of State and those who share his views can be absolutely certain of getting the result that they want. No referendum can be held until the Secretary of State himself decides that what he judges to be ““adequate public consultation”” has taken place. It has to be triggered, as we have heard, by a vote supported by two-thirds of all Assembly Members, and it has to be approved by both Houses of Parliament by affirmative Motion. Mr Hain has made it very clear that he is determined not to have a referendum for fear that he might not get the result that he wants. That is not a democratic approach. I opposed the devolution scheme put to Parliament in the 1970s, and the people of Wales supported my position in a referendum by an overwhelming majority. Two decades later, I was equally opposed to the legislative scheme that set up the present Welsh Assembly, albeit by the narrowest of margins. But the Welsh people gave it their approval. From that moment on it has been my constant belief that the sensible way forward was to try to make devolution work effectively for the good of the people of Wales. That is not just my view; it is also the policy of the Conservative Party. Many would agree with Nick Bourne, the Conservative Leader of the Assembly, that the present situation is not sustainable in the long term. There are those who want to go forward. There are others who would like to scrap the whole scheme and abolish the Assembly. I do not share the latter point of view. Abolition would certainly not create a situation sustainable in the long term but would simply trigger a fresh campaign for a new Assembly and reopen old wounds. It would generate damaging tensions in Wales and create a situation that could be extremely difficult for a future Conservative government seeking to exercise their authority in Wales. That is an alarming prospect, but what is almost equally alarming is that, as a consequence of this Bill, we seem to be evolving a system in which the Government, by executive action, decide the way forward, rather than the Welsh people through their Assembly or the people of the United Kingdom through this Parliament. That is undemocratic. It is not what the people of Wales were told they were voting for when the previous referendum was held. There are valid reasons for Wales to follow the route taken in Scotland and to have primary legislative powers if that is what is desired. Equally, it can be argued that the alleged log-jam has been exaggerated—that emerged clearly in Committee in another place—and that therefore the Assembly should concentrate on making the present arrangements work. I would allow the Welsh people the choice. I trust the people. They should be asked whether they want to stick with what they have or whether we should go the whole way and go for primary legislative competence along the Scottish lines. I would amend Part 4 so that it could not simply be blocked by the Secretary of State. I would like it to be triggered by a majority of the Assembly if that is what they want. It is up to the people of Wales if they want to have fully fledged devolution to have it. I want to remove the blockages. As my noble friend Lord Baker of Dorking made clear when he introduced his Parliament (Participation of Members of the House of Commons) Bill, and as many of us warned many years ago, that may have consequences in terms of fewer Members of Parliament or restrictions on their powers to decide on purely English legislation. One day the West Lothian question will have to receive an answer, and I look forward to what my noble friend has to say on the subject later. I return now to Part 1 of the Bill. Clause 7 seeks to prevent candidates standing in both constituency and regional elections. In another place a remark made by me in response to the government Statement repeated in this House on 15 June last year has been cited as evidence that I support what the Government propose. That is entirely my fault. Ignoring the wise words of my noble friend Lord Roberts of Conwy, who had done his homework, I commented on a topic about which I then knew absolutely nothing, and was beguiled by the superficially persuasive words of the Statement, which—unlike my noble friend—I had not had the opportunity to see or consider in advance. When I came to read the comments of those bodies well qualified to comment—the Electoral Commission, the Electoral Reform Society, the Richard commission, and particularly those of the commission appointed by the Secretary of State for Scotland, chaired by Sir John Arbuthnott—I found that I was completely wrong. The Arbuthnott commission, having looked closely at the Welsh arguments for Scotland,"““firmly rejected limiting the opportunity of parties or individuals to stand in both constituencies and regions, as it appears to us that such a restriction would be undemocratic””." The arguments that the Arbuthnott commission advanced were detailed and persuasive and we will return to them in Committee. The House was given an opportunity to debate the issue by the noble Lord, Lord Foulkes of Cumnock, on 3 March when he introduced a measure similar to the Welsh Secretary’s bit of gerrymandering. His attempt was wisely rejected by the noble Lord, Lord Evans of Guiting, speaking on behalf of the Government. The Minister has today, as he had on that occasion, the unenviable job of seeking to condemn what is said to be a monstrously unfair practice in Wales while insisting that it is entirely sensible and defensible in Scotland, where the noble Lord, Lord Foulkes—who made a challenge that was rejected earlier this afternoon—has shown that the circumstances are precisely similar. The conclusive argument is that changes in electoral arrangements should be introduced only on the basis of independent advice and a wide political consensus. Clause 29 is almost as bad, forcing the Assembly to have larger committees than it can sustain, with eight or 10 members, if it is to avoid the Labour Party having a dominance in those committees not justified by the total number of seats that it holds in the Assembly. In any event it is wrong that this Parliament, at the instigation of the current Labour Administration, should dictate such limitations. Like the Select Committee on the Constitution, I think that it is an inappropriate incursion into matters that should be left to the Assembly to determine for itself. I conclude by emphasising that this is not a measure that should concern only Welsh Members of this House. As with the Legislative and Regulatory Reform Bill we are dealing with issues of grave constitutional importance concerning the role of Parliament, the powers of the Executive, the manner in which legislation is handled and the appropriate way of ensuring good government for all the different parts of what is still, and I trust will remain, a United Kingdom.