Government of Wales Bill

Given the time, I shall confine my observations to Parts 3 and 4 of the Bill. First, it was a privilege and a pleasure to be a member of the Richard commission and to serve under my noble friend’s chairmanship. At least he will have the satisfaction of knowing that, unlike many other commission reports, the dust has not gathered on his. Not only has it not gathered dust, it has been the prompter of change and has influenced government thinking. As my noble friend Lord Prys-Davies said, this Bill would not be before the House had it not been for the Richard commission report. The commission recommended that, ultimately, there should be the full transfer of primary powers to a Welsh Assembly. During its deliberations, particularly in chapter 13, it looked at other ways in which legislative competence could be bestowed on the Assembly within the existing arrangements of the 1988 settlement—the notion of framework legislation to which a number of Members have referred. Since I came to this House, I—unlike the noble Lord, Lord Baker—have watched pre-legislative scrutiny work very effectively in the Welsh context. We have had a kind of legislative trinity—Lords, Commons and Assembly—working together to produce good Bills. The latest Bill, the transport Bill, created a new precedent where the Assembly committee and the Welsh Select Committees in the other place worked together, jointly, and produced a very effective Bill, to which the Minister has listened and has amended accordingly as a result. The noble Lord’s dismissal of the pre-legislative scrutiny procedure is unfair in the Welsh context. The NHS Redress Bill and the framework clause of Clause 17 have now come before us, which the Constitution Committee on which I sit has now accepted as an essential part of the process of extending legislative competence to the Welsh Assembly. Of course, we did not anticipate—it is not in the Richard commission report—the novel, interesting and innovative idea of the Orders in Council in Part 3. Members in this House have referred to debates in the other place already and the noble Lord, Lord Roberts of Conwy, produced the same line as was taken by the Conservative Front Bench in the Commons; namely, that this is a disguised, kind of virtual transfer of primary law-making powers to such an extent that it is believed that there should be a referendum on Part 3. I would love to see the draft question that would be put to the Welsh people on the intricacies of Part 3, which would obviously grasp the imagination of the Welsh electorate. It is a ludicrous suggestion that Part 3 has to be put in the form of a referendum. The debate and discussion that took place as a result of that argument raises a fundamental issue, which was raised properly and effectively by the noble Lord, Lord Crickhowell, and my noble friend Lord Richard: what will be the nature and content of the Orders in Council? Will we be presented with an Order in Council which is minimal in words, signifying a massive transfer of legislative competence over a wide area of policy? Indeed, if that were so, I would be a part of those people who would jib at the whole notion of doing so. We certainly will want to know what we are voting for. While I do not agree that there should be a draft measure, we have a right to expect clarification on the content, nature and scope of the Orders in Council. In that context, it is interesting and helpful that the Government did two kind of mock-up Orders in Council on Bills which have already passed; namely, the public ombudsman Bill—I do not know whether Members have seen it—and on what is now the transport Act. Having read both of those mock-up Orders in Council, I found the first perfectly comprehensible. At least I would have understood what I was voting for and the sort of competence that we would give to the Assembly, and its measure. The mock-up order on the transport issue, I found opaque. Had I not known what was in the Transport Act, I do not think that I would have understood what was being proposed. Therefore, the content, scope and nature of the Orders in Council that which we will be presented is very important. If they are to be broad and clear as to what specific legislative competence has been sought by the Assembly in the subsequent measure, we would have every reason to object. The Government have suggested that the process of pre-legislative scrutiny and the Explanatory Notes will help and in that process. As a member of the Constitution Committee, I should bring the attention of the House to the concerns that the committee has that this House could be marginalised in the process. We are not likely, or have not yet got a procedure, to be part of any pre-legislative scrutiny of the kind that will probably happen between the Assembly and the Commons on these draft Orders in Council. The committee rightly suggests—it is for the House to decide—in what structure, manner and way we will be able to deal with those issues and, as it were, participate and not be marginalised. Therefore, there is quite a serious point, which Members on all sides have raised, in relation to Orders in Council. We should expect any Orders in Council to flag up the key features of what will be an Assembly measure. We should not dwell on Assembly measures as such—that is not the kind of progress that this Bill anticipates in Part 3. The Orders in Council should flag up the key features of what an Assembly measure should be. Then we would know what we are expected to vote for and what kind of legislative competence we would therefore bestow, in a particular field or on a particular issue, on the Assembly. I turn briefly to Part 4. When we debated within the commission, I did not support the decision to transfer primary legislative powers. I understood, however, that if one did support that, the capacity of the Assembly would be inadequate. There would not be a kind of Back-Bench backbone sufficient to fully scrutinise the primary legislation to be transferred. I am therefore concerned that, in what is omitted from Part 4, the issue of the Assembly’s capacity has not been addressed. I believe that the Assembly’s capacity to handle Part 3 will be okay—partly because Westminster will be involved and Welsh Members in the other place will be sharing and taking part in the pre-legislative process. That will immensely help the subsequent development of Assembly measures. My noble friend and I immodestly suggest that everybody discussing the capacity issue should read Chapter 4 of the Richard commission report. Re-reading it, I was forcefully struck by what a thorough and detailed analysis we did on the Assembly’s capacity—or, as the Secretary of State put it bluntly to the Constitution Committee, how the Assembly can work harder. There is considerable scope for the Assembly to work harder and therefore to accommodate the new legislative responsibilities that could be bestowed on it by Part 3. The Commission was unambiguous in its conclusion that if there was a transfer of full primary powers to an Assembly, an Assembly of 60 Members would be insufficient. There would not be a sufficient Back-Bench backbone to carry out that kind of scrutiny and investigation. I understand very well—because we are all critical realists—why the Secretary of State and the Government have shied away from including any such reference to it in Part 4. I hope that my noble friend would agree with me that the commission grappled with this issue hour upon hour. Once one decides to increase the membership, one opens up the issue of how to elect the extra 20 members. That is pretty fundamental and, understandably, extremely difficult. I am indicating at this stage that the issue will not go away. If a referendum is called, the Assembly’s capacity to cope with these new powers would arise and the issue of how to elect the extra 20 Members will arise sooner or later; it will not go away. However, as we will see in the way Part 3 works out, we will have in the mean time knowledge and experience of the practice of what has happened to the Assembly and how well it has coped with and managed to carry the Assembly measures through. That invaluable experience will then inform the debate about the future size and capacity of an assembly if it were given full primary powers. My noble friend and I are at one on this issue: if you do transfer primary powers, you have to increase the Assembly from 60 to 80 Members. I support this Bill. I believe it carries the process of devolution further. It is incremental. I have always believed constitutional and institutional development should be allowed to mature, to grow and to take root. You should not keep on pulling up the seed that is growing. This Bill does not do that. It helps and carries the process of devolution further, and I support it.