Government of Wales Bill

My Lords, like others who have already spoken, there is much in the Bill that I welcome, particularly the separation of executive and legislature as it brings the Assembly in line with traditional parliamentary structures, provides clarity of roles for the public and improves independence and accountability. I support the principle of giving the Assembly greater legislative competence, recognising the Assembly’s development and contribution over the last seven years. Wales needs to have its request for legislation freed from the logjam that has existed. But, my concerns are in three key areas: the committee structures; the way the powers are to be enhanced; and the changes to the electoral system. First, I am concerned about the changes to the party balance in Assembly committees, as proposed in Clause 29. The Better Governance for Wales White Paper promised a more wide-ranging reform affording greater flexibility for the Assembly to decide the constitution of its committees, which would bring the Assembly committee provisions broadly in line with those set out in the Scotland Act 1988. However, contrary to the promise of applying the simple and straightforward approach taken in Scotland, Clause 29 is considerably more prescriptive and complex than both the 1998 Act and the White Paper, requiring the allocation of seats on committees to be calculated using the d’Hondt formula. The formula is used to calculate the allocation of regional list seats in Assembly elections, and in Northern Ireland and Scotland to allocate committee chairs. An attempt was made in 1999 in Scotland to apply d’Hondt principles to committee membership, but it was subsequently abandoned to allow single member parties a seat on committees. The Secretary of State for Wales has acknowledged that the d’Hondt formula becomes distorted when applied to smaller committees of six or fewer members. So, to apply the d’Hondt formula restricts the Assembly’s flexibility to set up smaller committees when it needs to do the job that we will be asking it to do. If the Government insist on the d’Hondt formula, the call for more AMs becomes an imperative to ensure balance and allow minority representation on committees. Will the Minister explain why the case is so different for Wales from that of Scotland and Northern Ireland, and why Wales warrants the use of the d’Hondt formula for the membership of committees, rather than just for the election of chairs? When applied to the election of chairs it actually seems to make a lot of sense. My second set of concerns relate to the Assembly’s legislative powers. The Better Governance for Wales White Paper clearly states that Her Majesty’s Government’s intention is to immediately, in drafting primary legislation relating to Wales, delegate to the Assembly maximum discretion in making its own provisions using its secondary legislative powers. Recently, the Assembly Minister for Health and Social Services gave us an insight into his own experience of framework powers in a debate and discussion on the NHS Redress Bill, saying that,"““some of the signals that we are getting from Westminster were that . . . in making the case for framework legislation, there had to be some immediacy in the sense that we would be likely to use that framework legislation sometime within the next couple of years in order to have a strong intellectual case for it””." From Dr Gibbons’ statement, it appears that the Assembly must continue to make a case for framework powers, rather than, as was promised last June, a policy for new Bills to frame legislative discretion in devolved areas. Can the Minister clarify this apparent departure from the White Paper commitment and the possible internal inconsistency? I understand the Government’s view is that they would not be able to make the case for full primary legislative powers for the Assembly to the Welsh electorate at this time. Powers previously delegated to the Assembly by Order in Council have been repeatedly criticised by the Delegated Powers and Regulatory Reform Committee of this House as giving powers to the Assembly which, in its view, would not be appropriate to be delegated, for England, to a Minister. Orders in Council, as far as I understand, would be unamendable. So Orders in Council appear a rather awkward halfway house in transferring legislative responsibility to the Assembly. Will the Minister explain why this approach is recommended and detail how it will work with the checks and balances that are required for a safe legislative process? Despite all this, the Bill seems to lack a very practical provision. There is no provisional duty to publish and maintain a register to track subordinate legislation by the Assembly. That is a mechanism that the Law Society in Wales has called for and is supported by the BMA in Wales. The Government have increasingly given clearer information—I am grateful—for the tracking of primary legislation as it affects Wales. I hope that the improved tables and explanatory notes will continue and will become routine practice in drafting all explanatory notes. We need to track all legislation, particularly as it increasingly diverges from regulation affecting England. Solicitors and other professionals in Wales, such as healthcare professionals, need to know all the details and to be able to access them rapidly—hence the call for a register. My third concern is the reform to the electoral system, with proposals to prevent dual candidacy. Far from being seen as a means of hedging your bets, dual candidacy is an express requirement when standing for election in some countries. We have two separate ballot papers in the Assembly elections: one first past the post and the other for the list. Success on one ballot paper is independent of failure on the other. Of course, as an AM can occupy only one seat, the first past the post system took preference—but there were two ballot papers. In its submission to the Welsh Affairs Committee, the Government’s own Electoral Commission cautioned against this change, which it perceived to be partisan and possibly adding to a prevailing distrust of politicians. It stated that the case for change had not been made. The Secretary of State discussed these remarks, saying that they were not the Electoral Commission’s finest hour, but the Electoral Reform Society also vehemently opposes the proposals. It urges,"““the Government to reconsider their proposal to ban dual candidacy, a controversial and divisive argument for which the case has not been adequately made””." The recent Arbuthnott commission in Scotland, already referred to, considered dual candidacy. It concluded that its prevention would be ““undemocratic”” and agreed that it would place,"““an unnecessary restriction on the democratic rights of potential candidates, parties and local electors to have as unrestricted a choice as possible in an election””." Furthermore, I do not understand how banning dual candidacy would stop regional Assembly Members who have not secured a first-past-the-post seat then setting up offices as a representative in the constituency where they stood. Surely the roles of constituency and regional Members should be clearly set out in an Assembly-endorsed code of practice, with job descriptions for regional Members to focus their role on all-Wales concerns, which override constituency or even regional boundaries. There are issues such as north-south transport links, the environment and water, which are dramatically going to affect the future of Wales, particularly economically. We need AMs who take an all-Wales view. I would prefer that they had an all-Wales view, not even a sub-regional view. This proposed system of banning dual candidacy has been widely condemned as undemocratic and partisan, and risks reducing voter choice and the quality of campaigning, particularly for the smaller parties. Why is it being forced on Wales, without demonstrable need and without any real consultation?