Government of Wales Bill

My Lords, I believe in subsidiarity—the principle that power and accountability should be as close as practicable to the people. Nye Bevan said that the purpose of power was to give it away. Of course, it is unusual that politicians choose to give away power, and it is greatly to the credit of this Government that they have adopted their policies of devolution. It was right, in 1997, that the Government offered the people of Wales the opportunity of devolution, and I am very glad that the people of Wales said yes. Since the passage of the Government of Wales Act and the establishment of the Assembly, the system has worked well, separatism has abated, Wales has prospered, and the democratic culture of Wales has thrived and matured. It is time now, however, to review that legislation. I believe we all agree that the Government are right to separate the executive from the legislature, and to address the problems that have emerged from the way in which we legislate at Westminster on matters devolved to Wales. Whereas primary legislative powers were afforded to Scotland, I believe it was right that they were not conferred upon Wales at that time. The mandate was too thin. Since then, we have encountered the problem of lack of time in the Westminster legislative programme for Welsh measures, and when there has been legislation, there has been insufficient scrutiny—in the House of Commons at any rate—in my experience. They have developed varieties of useful, pre-legislative scrutiny, but few Members of Parliament representing Welsh constituencies have been appointed to stand in committees on Bills that contain important clauses referring to Wales; and non-Welsh MPs have either been uninterested or have felt that they should not presume to intrude on issues that are devolved to Wales. We have had framework Bills—very possibly outflanking Parliament’s original intention when devolution for Wales was established—but necessary to enable the Assembly to exercise the powers devolved to it. Critics of this Bill, who complain that it would diminish Parliament’s powers of scrutiny, should take account of the failure of the House of Commons, all too often, to scrutinise the detail of legislation in relation to Wales in recent years, and the tolerance by Parliament of very large, permissive, legislative measures. The upshot is that policies agreed by the executives in Cardiff and Whitehall have been perfunctorily scrutinised before landing on the people of Wales. Some would say that the remedy for these difficulties is to move now to full primary legislative powers. I agree with the Government that it is unlikely that the people of Wales would vote for that transference now; and I also agree with the Government that they are right that the representatives of the people of Wales in the Assembly should determine the eventual timing of a referendum on this matter. In my judgment, the Assembly is not yet ready to assume full primary legislative powers. I speak with great respect, but I believe that the Assembly has further to go to gain the confidence and the affection of people in many parts of Wales. I also respectfully submit that it needs to re-orientate some of its focus and efforts and to develop some of its procedural methods. Surprisingly little time has been spent by the Assembly in the period of its existence in scrutiny, and in taking the advantage that it might have done in of the enormous potential of its powers to enact secondary legislation. It is a small body, less than one-tenth of the size of the House of Commons. It sits for fewer weeks than either the House of Commons or the House of Lords, and there is no second chamber in Cardiff to assist in the process of scrutiny. The objective should be to move to transfer to devolution of full primary powers, and that it is therefore sensible to take this opportunity to provide in legislation for a referendum to occur to enable primary powers to be transferred. It is also sensible, however, to proceed gradually as the Government wish to do. The interim arrangements—the procedures that are proposed in the Bill for Orders in Council leading to Assembly measures—are ingenious. There are problems of legislative time, of inadequate scrutiny, and of inadequate accountability. Part 3 addresses them. Critics of Part 3 need to offer their own constructive alternative. I do not think that the referendum being called for by the Conservative Party on the creation of the powers set out in Part 3 is any kind of constructive alternative. Views within the Conservative Party vary, but it is unclear whether the Conservatives hope that the referendum would be lost. They would be embarrassed about that because I do not think they have the political will to revoke devolution, and so we would be stuck with a system that does not work well either democratically or technically. Some issues arise from the scheme proposed by the Government. I fancy that the Assembly, rightly being ambitious, will make many bids for new legislative competencies, so much so that when the great day comes for a referendum in 2011 or whenever, what will be left to devolve? Can my noble friend tell us whether it is indeed the case that once legislative competence has been conferred in relation to a particular matter—or field, to use the jargon of the Bill—the Assembly will not need to come back for it to be renewed? The letter from the Parliamentary Under-Secretary of State to the shadow Secretary of State setting out illustrative examples seems to envisage that the Government would be transferring very broad powers, for example in the field of transport. If there are many such bids, the load on the Welsh Affairs Select Committee is going to be considerable. Have the Government considered whether the Welsh Grand Committee might have a useful part to play, particularly in pre-legislative scrutiny? A committee consisting of every Welsh Member of Parliament, and which on the past pattern has not met very often, would seem to be available as a rather useful instrument for this work. How are the interests of England and the United Kingdom to be taken into account in pre-legislative scrutiny? In recent years we have seen that policies on one side of the border for the National Health Service or for student support, to take two examples, have important impacts on the other side. What, as other noble Lords have asked, is to be the role of the House of Lords? Are our procedures to be changed so that we vote on Orders in Council, or is our role simply to be advisory? What will be the processes for reconciliation if the two Houses of Parliament arrive at different views on a proposal for a new legislative competence in Wales? I am inclined to think that there will be too few Assembly Members to undertake the responsibility of scrutiny, even during this interim stage two period. My noble friend Lord Rowlands was optimistic on this point. He thought that on the whole they would handle it, particularly working in partnership with the two Houses of Parliament. But it would helpful if, when he comes to wind up, my noble friend would tell the House why the Government have chosen to reject the recommendations of the commission chaired by my noble friend Lord Richard, and on which my noble friend Lord Rowlands served, that the number of Assembly Members should be increased to 80, all of them to be elected through the single transferable vote? What is wrong, in the Government’s view, with having more Assembly Members, having them all elected on the same basis, and therefore with equality of status? If we are to keep the additional member system, why do we not move to a national list, a move which would dispose of many of the difficulties about which the Government complain regarding the operation of the additional member system on regional lists? I am struck by the number of blocking powers provided for the Secretary of State in this legislation. He has the power to change the fields of legislative competence, to agree or disagree with an Assembly bid for a legislative competence order, to refuse to lay a draft order, to reject amendments that emerge from pre-legislative scrutiny, and even to prohibit the Clerk from submitting an Assembly measure to Her Majesty in Council. He has the power to disallow the referendum, and of course he has the power to determine the composition of committees in the Assembly. If the Government believe in devolution, they should act accordingly and trust the Assembly. Is it that the evolution of devolution will lead to the extinction of the role and office of the Secretary of State and that Whitehall is still too reluctant to face that? Am I right to discern some Treasury negativism in these blocking powers, and apprehension on the part of the Treasury that the Assembly will get a little uppity about public expenditure and the constraints of the Welsh Consolidated Fund which this Bill would create? It is said that this Bill will settle for a generation the constitutional status of Wales, but it contains nothing about tax varying powers. In due course the issue is bound to arise, and it would be a constitutional issue that would need to be dealt with in a constitutional Bill rather than in a finance Bill. It is bound to arise if only because at some point the people of Wales will insist on parity with the people of Scotland. No doubt these issues will be examined searchingly during the passage of the Bill through this House, but I believe that it imaginatively and constructively addresses real problems and needs, and I wish it a fair passage.