Government of Wales Bill

moved Amendment No. 38:"Leave out Clause 92." The noble Lord said: My Lords, Amendment No. 38 and all the other amendments in its line seek to remove Part 3 from the Bill. I spoke at some length on this matter in Committee on 3 May, at cols. 519 to 521 and 530 to 533 of Hansard. My mind has remained unchanged since then, so I need do no more than summarise what I said on that occasion. There are four reasons why this part should be removed. The first is a drafting reason, the second concerns the lack of a referendum, the third relates to the minimised involvement of your Lordships’ House and another place and the fourth concerns the degree of discretion that is transferred from Part 3 to the Secretary of State. I can deal with the first point very briefly. As I said in the discussion on the first amendment, the structure of Part 3 seems entirely illogical. The natural process is, first, for authority to be delegated by Parliament to the Welsh Assembly to do certain things additional to those that it does at the moment; and, secondly, when it has that general authority, to enact particular measures that conform to the delegated powers. Your Lordships may think that that is the way in which Part 3 ought to be set out—but not a bit of it. Part 3 starts in Clause 92 with stage 2 and making Welsh Assembly measures. It then goes back in Clause 94 to the act of delegating the authority to legislate to the Welsh Assembly and, at the end, comes back again to Assembly measures. My minimal requirement is for the Government to go away at this stage and reorder the clauses in Part 3 so that the Bill can make more sense to the electorate. I challenge anyone to understand before they have read it at least three times. It is plain throughout the deliberations in another place that as many interventions were made on the basis of misunderstanding as on the basis of true understanding—and that applies to government Ministers as well as to Back Benchers. My second reason for removing the part is the absence of a referendum. We have said repeatedly from these Benches that we would be entirely content for Part 4 of the Bill to become operative following a referendum. We would far prefer that Part 4 formed the basis of Welsh devolution than Part 3. Indeed, I would go as far as to say that I would prefer Part 4 to form the basis of Welsh devolution without a referendum than Part 3. I am not very well disposed towards referendums, as I think that they undermine the system of representative democracy in this country. But the fact of the matter is that the powers of the Welsh Assembly were originally devolved following a referendum; and I do not see how a further act of devolution can be undertaken without a further referendum. These points were well canvassed in another place. Mr Ainger, the Minister in another place, said with complete openness and frankness that the reason why the Government had not contemplated a referendum was that they knew that they were not going to win it. Mr Ainger based his approach to the absence of the need for a referendum with respect to Part 3 on the manifesto; but there is nothing in the manifesto to indicate that Part 3 was in the Government’s mind before the election. There was a debate about devolution, but that was entirely limited to the proposals put forward by the commission chaired by the noble Lord, Lord Richard. In short, the absence of a referendum ought to be fatal to Part 3. Then there is the third issue of parliamentary involvement. We have already looked at that in some detail when considering Amendment No. 36A and I do not wish to say any more about it, as it is a matter on which your Lordships’ House has already voted. The fact is that there is no parliamentary involvement in stage 2. As for stage 1, under the Bill there is the same parliamentary involvement as in the making of any Order in Council. Parliament has a short opportunity to debate, with no opportunity to amend, followed by a take-it-or-leave-it vote. That seems entirely unsatisfactory when one considers the monumental constitutional consequences of what we are doing in Part 3. The Government to some extent recognised this in another place when they suggested a pre-legislative process involving perhaps both the Welsh Affairs Committee and the Welsh Grand Committee. Mr Ainger foreshadowed the possibility that amendments by these committees would be seriously considered by the Welsh Assembly in considering the final draft of the Order in Council; but at no stage will Parliament have any opportunity to amend the draft Assembly measure for adding to the fields contained in Schedule 5. Moreover, at no stage have the Government given any indication that they might allow Parliament to amend that draft Order in Council. This is wholly unsatisfactory, given the scale of the issues that the Bill confronts. Finally, the Government’s rhetoric suggests that this is a big transfer of powers from one Parliament to another; but that is far from the case, as one sees when one grapples with the detail of the Bill. The real shift in power is from this Parliament to the Executive and the Secretary of State. We have already seen, in the second stage process under Part 3, that the Secretary of State can under Clause 100 intervene to prevent a Welsh Assembly measure, properly passed by the Welsh Assembly under clear delegated authority under Schedule 5, from being considered by the Privy Council. As for the first stage devolution, the Secretary of State has wide powers to prevent the draft Order in Council from going to Buckingham Palace. We consider any one of these considerations to be sufficiently powerful to ask the House to excise Part 3 from the Bill. In our view, all four of them make out of a case of the greatest cogency. I beg to move.