Government of Wales Bill

My Lords, I think that I have indicated to your Lordships how many years we have been treading the same track. Perhaps Part 3 will not be too long. We both hope for that. The noble Lord, Lord Richard, referred to Part 3 as being over-paternalistic.  They cannot let go. It is rather like a slab of toffee that is being pulled apart—you can see the strands on both sides remaining behind. As the noble Lord, Lord Griffiths, said, it shows a lack of trust in the ability of Welsh people to rule themselves and to pass legislation. We can illustrate it through the minatory shadow of the Secretary of State, as the noble Lord, Lord Roberts, said, by looking at his role. Under Part 3, the Orders in Council will extend legislative competence, but in a piecemeal way, as the noble Lord, Lord Crickhowell, said. How often will that be? How will that be initiated? These questions have arisen in debate. Will they last, and how will they be brought forward? According to the Bill, the Assembly Government will introduce a specific policy and we will get a policy document accompanied by the Orders in Council. The purpose of the orders will be to add a matter to the vires of the Assembly. What is a matter? Schedule 5 gives illustrations of a matter—Field 13.1, dealing with the Welsh Assembly, for example, creates a complaints machinery in the Assembly. That is a matter which is specifically given to the Assembly to legislate about. But once the matter is added it remains in perpetuity. It may be used to pass legislation that reverses the policy which initially was the reason for the order being made. It may repeal existing legislation passed by this Parliament. The noble Lord referred to Henry VIII. The powers that are given to amend existing legislation are greater in this Bill and under this machinery than we have come across before. Questions have been asked about pre-legislative scrutiny. The pre-legislative scrutiny envisaged in this Bill is for the initial policy when the order is made. On page 19 of the Guide to the Government of Wales Bill, quoting from the White Paper Better Governance for Wales, one reads:"““The consideration (i.e., consideration by Parliamentary Committees or perhaps a joint Committee of both Houses) could be informed by understanding the use the Assembly might propose to make of these powers in the immediate future. However, as the power would be a general and continuing one for that particular policy area, this would serve only as an example of what could be done; the issue for the Committees and for each House would be the appropriateness in general of delegating legislative authority to the Assembly on the particular policy area specified in the draft Order in Council””." So, when we talk about pre-legislative scrutiny, we are not dealing with a series of Assembly measures which are being put forward by the Welsh Assembly. What we are dealing with is just the initial policy paper upon which these powers are to be extended for the first time. The powers will continue—there will be no scrutiny of later policy matters. That is a considerable diminution in pre-legislative scrutiny by this Parliament. As a convinced devolutionist, I welcome that. The responsibility and the accountability for Assembly measures should rest with the Assembly. But this is the ““proceeding by stealth”” to which the noble Lord, Lord Roberts, referred, because piece by piece, as each order comes forward—we do not know how many there will be in any given period—the legislative competence of the Assembly will be extended and will remain there. The Secretary of State comes in again. He may refuse to lay before Parliament the Order in Council. He would be a rash Secretary of State, the noble Lord, Lord Anderson, suggested, but where there are conflicts between the Government in Cardiff and the Government here one could imagine that that might very easily happen. All he has to do is to give his reasons. As the noble Lord, Lord Prys-Davies, mentioned, I raised the matter of judicial review. The only way in which the Secretary of State’s reasons could be challenged—and only on the basis that they were completely unacceptable—would be by way of going to the courts. I do not think that that is a suitable way of dealing with issues that would arise. I have already pointed out that no scrutiny is envisaged by Parliament of Assembly measures in themselves. Once the legislative competence has been given, Assembly measure after Assembly measure in that particular field can be brought forward. But then again, the Secretary of State may step in to block the Assembly’s will be refusing to send the Assembly measure, once it has passed through the Assembly, for Royal Assent. On this occasion, all he has to do is to say he has reasonable grounds to believe it would have an adverse effect on any matter not specified in Part 1 of Schedule 5 and he gives his reasons for that. Again, presumably, that is challengeable only by judicial review, which is a highly unsatisfactory mechanism. I have dealt with the way in which the legislation is brought into being and how the Secretary of State can block it at various stages, but he also has some control over resources. The grants will still be by way of the Barnett formula. But if, for a temporary purpose and for a short-term deficit in the fund, the Assembly wishes to borrow some money, it can do so only with the consent of the Secretary of State and do so only for up to £500 million. This is a clumsy mechanism which is there simply to enable Parliament to hang on and to allow it to interfere at various stages. It is not a lasting settlement for a generation. Surely Part 3 and its mechanisms must be temporary. The noble Lord, Lord Howarth, said, ““Trust the Assembly””, and that is the view that we take on these Benches. Finally, the Secretary of State may block any further evolution because a referendum cannot be held unless he has undertaken such consultation as he considers appropriate—and he has an entire discretion as to what he considers appropriate. Again, he may refuse to lay before Parliament an order for a referendum. The sensible thing to do is to make this stage as short as possible and always have in mind that we move to full primary powers as soon as we can. There has been much debate on electoral considerations and I do not propose to add to that tonight. I am sure that we will have a lot to do with it in Committee. The first past the post system of elections does have winners and losers. The person who has the highest votes and who gets past the winning post, even if it is only 35 per cent or 36 per cent, is the winner. When you are dealing with the proportional representation system, as the Arbuthnott commission pointed out, you are not talking about winners and losers. The aim is to have a balanced legislature. To say, ““Four people lost in Clwyd—what on earth are they doing turning up in Cardiff?”” is to misunderstand what proportional representation is all about. If you have STV, some people will get more votes than others, but you cannot think in terms of winners and losers. As I said, that is a topic that we shall no doubt discuss in Committee. Will the Minister confirm that the Committee stage will take place on the Floor of the House? The noble Lord, Lord Anderson, said that this was a pragmatic step forward. So it is, and I welcome it for that reason. But I think that it is an opportunity missed. It could have been more radical, it could have gone further, and the people of Wales should have been trusted with greater powers.