Government of Wales Bill

moved Amendment No. 36A:"Page 50, line 37, at end insert ““, adopted by resolution of each House of Parliament””" The noble Lord said: My Lords, in moving Amendment No. 36A I shall also speak to Amendments Nos. 60A, 60B and 60C. All these amendments qualify the decision to adopt a Welsh Assembly measure in the Privy Council by requiring that the measure, prior to the Privy Council decision, is adopted by a resolution in both Houses of Parliament. In order for me to put these amendments in context, it may be helpful to the House if I remind your Lordships of the statutory scheme in Part 3 of the Bill. It is a scheme of breathtaking complexity. I said, earlier, that it was serpentine in conception and labyrinthine in application. If anything, that is an understatement. The procedure involves a two-stage statutory scheme for devolving power to the Welsh Assembly by a system of Orders in Council. Stage one of the process delegates to the Welsh Assembly, by Order in Council, the power to legislate on certain matters in certain areas that appear in Schedule 5 to the Bill. The second stage, stage two, gives the Welsh Assembly the authority to make what are called Assembly measures, as long as those measures are within the scope of the order passed at stage one. Rather confusingly, Part 3 of the Bill starts not with the stage one orders, but with the stage two orders; that is to say, the orders that confirm the Assembly measures. It then goes on to consider stage one orders, the devolving orders. This amendment concerns the end of the Part 3 legislative procedure, stage two orders, not the beginning. I felt it necessary to say that before I turn to the amendment itself. The issue behind the amendments is whether the procedure set out in Part 3 is a subordinate or a primary legislative procedure. If your Lordships were to glance at the proceedings in another place, particularly the speeches made by the right honourable gentleman Mr Hain, you would quickly apprehend that he was extremely concerned to emphasise that this procedure was a subordinate procedure. The Government do not want to admit that, without a referendum, they are delegating primary legislative powers to the Welsh Assembly through the Bill. The reality, of course, is that it is not a subordinate procedure, though there are certain exceptions to which I shall come in a minute. The provisions in the second stage Order in Council are automatic, following the decision of the Welsh Assembly. That was recognised by the noble Lord, Lord Thomas of Gresford—I see him nodding—in an exchange that I had with him in Committee. There is a constitutional convention that whenever an Order in Council is to be made in the Privy Council, it is first tabled both in your Lordships’ House and in another place for a certain period of time. Sometimes the procedure is the procedure of negative resolution and sometimes it is the procedure of affirmative resolution, but the order is always tabled in draft before it goes to Buckingham Palace. Why is that not the case in this Bill? Why are the Government breaking that constitutional convention for subordinate legislation? In Committee, in an exchange I had with the noble Lord, Lord Davies of Oldham, who I see is in his place, when I suggested that the parliamentary procedure should be interposed, the Minister said:"““I am saying to the noble Lord that it is a complete denial of devolution to suggest that, after the Assembly—a democratically elected body with its own direct mandate—has had the approval, won through Orders in Council, to use its discretion in a particular area and then takes measures, Parliament should intervene again””.—[Official Report, 3/5/06; col. 550.]" In other words, the Government are saying that this is a subordinate procedure, but that for some extraordinary and unarticulated reason the convention in relation to subordinate measures should not apply. The noble Lord, Lord Davies, is using precisely the argument which convinced the noble Lord, Lord Thomas of Gresford, that we are in reality talking about primary legislation. I have one further observation to make about the noble Lord’s intervention at col. 550. Why is Parliament not allowed to interpose itself between the Welsh Assembly measure and the Buckingham Palace procedure, when the Secretary of State is? If the noble Lord, Lord Davies of Oldham, turns to Clause 100, which is entitled Power to intervenein certain cases, he will see that although Parliament is not allowed to have any further say, the Secretary of State is. I apologise for the tedium but it is worth reading out the relevant subsection to your Lordships’ House. Clause 100(1) states:"““This section applies if a proposed Assembly Measure contains provisions which the Secretary of State has reasonable grounds to believe—""(a) would have an adverse effect on any matter which is not specified in Part 1 of Schedule 5,""(b) might have a serious adverse impact on water resources in England, water supply in England or the quality of water in England,""(c) would have an adverse effect on the operation of the law as it applies in England, or""(d) would be incompatible with any international obligation or the interests of defence or national security””." Clause 100(2) says:"““The Secretary of State may make an order prohibiting the Clerk””—" that is, the Clerk of the Assembly—"““from submitting the proposed Assembly Measure for approval by her Majesty in Council””." So, in the context of Clause 100, what of the democratic rights of the Welsh Assembly? They can be interfered with by the Secretary of State, but the democratically elected Parliament of the United Kingdom is not to be allowed to have any further say. In my submission, these clauses are complete hypocrisy and should be expunged. I beg to move.