Government of Wales Bill

moved Amendment No. 43:"Page 51, line 41, at end insert—" ““(   )   An Order in Council under this section shall include the principal reasons for seeking the enhancement of legislative competence.”” The noble Lord said: My Lords, in moving Amendment No. 43 I have no wish to rehearse or readdress the debate that we had in Committee on this issue but, perhaps drawing upon that debate and also on the debate on 24 January in another place, to see whether we can come to a conclusion about the nature and contents of Orders in Council. When my noble friend replies, perhaps we could have the equivalent of a definitive statement on what he sees as the essential elements of the contents of an Order in Council. I venture, therefore, to offer two or three thoughts about such contents as a contribution to his conclusions. It seems to me that the first conclusion we can draw from the discussions that we had in Committee, and certainly from those in the other place on 24 January, is that any Order in Council can be brought forward only in a particular policy context. In other words, it cannot be brought forward in a kind of vacuum. That has been emphasised over and over again by my noble friend in this House and certainly by Mr Nick Ainger in the other place. In fact, it appears that before we ever see an Order in Council there is going to be a very elaborate pre-Order in Council process. The Parliamentary Secretary described it on 24 January: there will be memoranda explaining what the measures will cover; the reasons behind them; the policy developed and so on. Then there will be, as my noble friend emphasised in the debate in Committee, a thorough pre-legislative scrutiny. Again, the Parliamentary Secretary said that the proposed draft orders can be amended, which would mean that more weight would be given to pre-legislative scrutiny than usual—possibly because orders are ultimately not amendable. I find it very comforting and reassuring that there will be a considerable run-in to an Order in Council coming before us in draft form and, subsequently, in its final form. However, none of those statements quite answers the question I posed in Committee—that is, what will be included in the Order in Council as presented to us? The only way in which we can answer that so far as I can see now is to fall back upon the two mock draft orders that the Government helpfully offered us as examples of the shape that an Order in Council will take. Looking at the two mock draft orders—the transport and public ombudsman orders—we notice, first, that there has to be a specific identification of the field within which enhanced legislative competence is being sought. For example, the transport order will obviously identify that it is field 10 under which the competence is being sought. Then, under that, there is ““The Matter””; and under ““The Matter”” there is, possibly, ““Provision””. There could be more than one provision or a provision and a series of subsections. I shall come to the transport order in a minute. I assume from these two mock draft orders that the principal purpose or purposes for which the enhanced competence is being sought—and the reasons why—will be included in the Order in Council. That is one of the assurances that I would like my noble friend to give me, because that seems to be the only conclusion we can draw from the two mock draft orders we have received. This is a fundamental point as it demonstrates that these are not open-ended orders in many respects. On the draft transport order, in Committee I raised the question—my noble friend did not deal with it, but I do not blame him because he was replying to a fractured debate of one kind or another—why this order did not include one of the most eye-catching aspects of the original transport Bill: the power which the Assembly was seeking to fund and support or subsidise air services and airports. I hope my noble friend will say why that was excluded, especially because on rereading the draft transport order, he may have come to the same conclusion to which I have come, that as the order was drafted I do not believe that it would have given the Assembly such competence. Interestingly, the last part of the provision in relation to it refers to financial support for such bodies by levy or precepts. The reference to such bodies is in paragraph (b), and all those are about local authority transport functions. Therefore, I suspect that as drafted, and by leaving out the specific reference to the support for air services, it may be that the Assembly would not have such competence. All that I wish to do is to emphasise the importance of the essential elements of the Order in Council so that we know what we are voting for. The kind of assurance that I seek is that we do not have a draft order that reads something like this:"““Field 16: support for sport and recreation””," or,"““provisions in relation to support””," or,"““Field 5: provisions in relation to nursery education””." We expect, and I hope that my noble friend will give us the assurance, that such minimally worded orders with such huge potential for expansion of Assembly legislative competence will not be considered or come to this House or the other place. I beg to move.