Government of Wales Bill

My Lords, I pay tribute to my noble friend Lord Richard for the report produced two years ago by his committee under his masterly chairmanship. The committee reviewed the working of the Government of Wales Act 1998. It is my belief that, without the commission’s report, we would not today have before us a Bill to make provisions about the Government of Wales, if I may use the term in the Long Title. The commission offered a vision, a blueprint, for future development of the National Assembly for Wales. I very much welcome the Bill. Before moving on to draw attention to serious concerns about certain omissions from the Bill, I shall briefly offer a few comments on the important Part 3. Part 3 is intended to enhance the Assembly’s law-making powers and, I believe, has the potential to offer a huge improvement on the present position. However, as my noble friend Lord Richard said, it is novel and complex and there are unanswered questions. Therefore, the question arises: will it work as well and effectively as is hoped? One can see that there may be testing challenges at two stages in the procedure. The Secretary of State retains control over the process. It can be triggered only with his consent. If there is an inter-Government disagreement on the merits of the Assembly’s request for an Order in Council, there is no tailored procedure to resolve it. On what the noble Lord, Lord Thomas of Gresford, said about judicial review, the judicial review process itself is complicated and can arise only where it has been shown that the Minister’s decision has been irrational. Of course, judicial review is not the same as a right of appeal to an independent tribunal by reference to the potential merits or demerits of the proposal. Furthermore, there may be difficulties at another stage: the approval of the draft order by both Houses of Parliament. I very much hope that there will be a role for this House in the scrutiny of the proposal. In paragraph 3.9 of the White Paper, Better Governance for Wales, the Government said:"““a more liberal approach should be reflected in Government and Parliamentary attitudes to making legislation at Westminster which affects the Assembly’s areas of responsibility””." That is the hope. How likely is that to come about? The Government have not claimed or pretended that the Order in Council procedure will achieve what it is designed to achieve. It may not. Paragraph 3.22 of the White Paper seems to imply that the Government recognise that possibility. The relevant sentence reads:"““However, it may prove in the future that even these additional powers are still insufficient to address the Assembly’s needs and the option of providing the Assembly with further enhanced law-making powers needs to be available””." I believe that, in a few years’ time or in a decade or so, conditions may be created in which a powerful case may have been built for giving the Assembly primary legislative powers over the devolved remits, provided that the case is supported by a majority of the people voting in a referendum on the question. I am pleased that, in Part 4, the Bill recognises that principle. I now want to voice legitimate concerns at two significant omissions from the Bill. I have informed Ministers in advance of the debate of my intention to pursue this matter. The issue underlying both concerns is ministerial responsibility for the Welsh language, the old language, Yr hen iaith, as was quoted by my noble friend Lord Evans from the Front Bench. I hope that the words of RS Thomas are appreciated and understood. The first concern is this: Section 47 of the Government of Wales Act 1998 imposes on the Assembly as a corporate body with executive and legislative functions a duty to give effect in the conduct of its business to the principle of equality of the English and Welsh languages—the principle enshrined in Section 5(2) of the Welsh Language Act 1993. Although the present law obviously separates the executive and legislative branches of the Assembly, the duty in Section 47 to treat the two languages on a basis of equality should, I submit, continue to apply in parallel to both the executive and legislative branches of the Assembly. However, Clause 35 imposes the duty only on the legislative branch. Nowhere in the Bill have I seen a duty on Ministers to give effect to the principle of the equality of the two languages. I am completely nonplussed by that omission. It is worrying. Is it an oversight on the part of the authors of the Bill? My second concern is that the Bill does not place a duty on the Executive to promote the Welsh language in the governance of Wales. Such a duty would be fully consistent with the duty imposed by the Bill on Ministers to promote or support local government and voluntary action—I accept that my noble friend Lord Davies of Coity requires that duty to be reinforced—the business sector, equality of opportunity and sustainable development. The duties in respect of those sectors are not expressed in identical terms, but a duty is clearly spelt out in some detail in Clauses 73 to 75, 77 and 78. In essence, they require Ministers to make, keep under review and publish a scheme in respect of each sector and publish periodic reports showing how the schemes have been implemented during the period under review. I do not quarrel with those clauses, but I wonder why a similar clause imposing a similar duty in relation to the Welsh language does not appear in the Bill. Yr hen iaith, the old language, is an essential element of the good governance of Wales and of no less importance than the other duties to which I referred. I therefore submit that the principles underlying Clauses 73 to 78 should be adapted to apply to the needs of the Welsh language. Of course, I accept that it will be for the Assembly Government to design policies to promote the language but the duty to promote and sustain Yr hen iaith should be entrenched in the statute book. It must be noted that there is a cloud on the horizon. The Assembly Government have announced that they intend to assume most of the functions of the statutory Welsh Language Board by April 2007. There is considerable—and, more importantly, growing—unease about that decision. Bereft of the protection of a vigorous, independent statutory watchdog and a statutory duty to promote and sustain the language, the existing statutory infrastructure that serves the needs of the Welsh language will have been damaged and considerably weakened. For all those reasons, I urge the Government to table appropriate amendments. Finally, I want to put on record that I am grateful to Ministers and to Mr Rhodri Morgan, the First Minister of the Welsh Assembly, for having listened to these genuine concerns of a very elderly Member of your Lordships’ House, who recalls going to City Hall in Cardiff 43 years ago to give evidence to the working party under the chairmanship of Sir David Hughes Parry. My concerns, which I have sought to convey to the House, are shared by the Welsh Language Board and a growing body of Welsh opinion.