Government of Wales Bill

moved Amendment No. 9: Page 58, line 16, leave out from ““Parliament”” to end ofline 23. The noble Lord said: My Lords, Clause 104 deals with the situation where the National Assembly passes a resolution in favour of a referendum by the requisite two-thirds majority of seats—that is 40 out of the total of 60. The First Minister must give notice of the resolution to the Secretary of State and then, within 120 days, the Secretary of State must, "““lay a draft of a statutory instrument containing an Order in Council … before each House of Parliament””," causing a referendum to be held throughout Wales about whether the provisions in Part 4 of the Act should come into force. That is a précis of the procedure and I know that my noble friend Lord Crickhowell will have some interesting comments to make on that process under the next set of amendments. For the moment, let us assume, ““So far so good””. Precisely at this point I see the rub. Subsection (3)(a) says that the Secretary of State must do that or, "““(b) give notice in writing to the First Minister of the Secretary of State’s refusal to do so and the reasons for that refusal””." The First Minister's duty then is to lay a copy of the notice before the Assembly and its duty is to see that it is published so that the people of Wales know why the Secretary of State is refusing a referendum on whether the Assembly should be granted greater powers as specified in Part 4. As some of us have noted, particularly the Liberal Democrats under another set of amendments, the Secretary of State has truly astonishing interventionist powers under the Bill. He can slam on the brakes, bringing the Assembly to a grinding halt, and not only when it is calling for a referendum; he has a similar power to stop the Assembly in its tracks in Clause 95 relating to Orders in Council amending Schedule 5 to change the fields of Assembly measures. Clause 95(7) allows the Secretary of State 60 days to lay a draft before each House of Parliament or to give notice of his refusal to do so, giving the reasons why. Again, under Clause 101, the Secretary of State can, by order, prohibit the Clerk from submitting a proposed Assembly measure for approval by Her Majesty in Council. Those almost autocratic powers to intervene might be justifiable in the context of the devilish complexities of Part 3, but surely not in connection with Part 4, which is much more straightforward. However, the powers are there, too. The Secretary of State can not only stop a referendum, but later, when the Assembly has fulsome legislative powers and is in full swing, under Clause 114(2) he can make an order prohibiting the Clerk from submitting a Bill for Royal Assent. As my noble friend Lord Kingsland said on our second day on Report: "““The real shift in power is from this Parliament to the Executive and the Secretary of State””.—[Official Report, 28/6/06; col. 1237.]" Never were truer words uttered. Indeed, the more I think about it, the more extraordinary I find this interventionist role for the Secretary of State, and I know that others, including the noble Lord, Lord Thomas of Gresford, find this centralist thrust almost offensive. It certainly would be offensive to a genuine devolutionist. In fairness, I am bound to say that there is a similar power in Section 35 of the Scotland Act for the Secretary of State to prevent a Scottish Parliament Bill from receiving Royal Assent, but the circumstances for intervention in that case are much more specific—they are where a Bill is incompatible with international obligations or has adverse effects on the law relating to reserved matters. I shall concentrate the rest of my remarks, which I hope will be brief, on the Secretary of State’s right to refuse a referendum when two-thirds of the Assembly have voted for it. That is a special category of intervention. What could be the reasons for refusing such a request if the proposal was acceptable to the Assembly and the electors of Wales? When one has dismissed potential natural calamities of tsunami dimensions, such as the drowning of the Assembly in Cardiff bay, one returns to the possible political scenario that might induce the Secretary of State to refuse to lay an order requested by the Assembly before each House of this Parliament. The fact that such an order might be voted down in either House would not, in my view, be a sufficient reason to refuse to lay it. The only credible reason for the Secretary of State’s refusal that I can imagine is that the Government of the day do not approve of the Assembly’s decision to go for a referendum and are determined to resist it at all costs. But is it really necessary to spell out the overriding interventionist power of the Secretary of State and central Government quite so blatantly in an allegedly devolutionary measure? I do not think so, which is why the amendment proposes the excision of the words. If the Government of the day oppose the Assembly’s will to hold a referendum, they can defeat the order in another place or even in your Lordships’ House. Surely Parliament is the proper body to overrule the Assembly on a matter such as this, rather than the Secretary of State. This Parliament continues to have an override power, as it does in Scotland, even when Part 4 comes into effect. I beg to move.