---

Government of Wales Bill

moved Amendment No. 54:"Page 50, line 23, leave out subsection (1)." The noble Lord said: I rise to move Amendment No. 54 and to speak on the Questions whether Clauses 92 to 101 and 108 shall stand part of the Bill. I trust that the fact that I seek to remove the whole of Part 3 from the Bill will in no way undermine the genial and harmonious atmosphere in which today’s deliberations have been conducted. Essentially, Part 2 of the Bill is a statutory system for devolving power to the Welsh Assembly, on a piecemeal basis, by Orders in Council. It is a two-stage process. Stage 1 delegates to the Welsh Assembly by Order in Council the power to legislate on certain matters within certain fields which are stipulated in Schedule 5 to the Bill. Stage 2 gives the Welsh Assembly the power to make what are called ““Assembly Measures””, as long as those measures are within the scope of the authority delegated by the process in stage 1. In essence, Assembly measures are primary legislation; but they do not obtain that character until they are confirmed by an Order in Council. These Orders in Council have two functions. At stage 1 they have an authorising function and at stage 2 they have what I would term a ““camouflaging”” function. At stage 1 they authorise the scope for the Welsh Assembly’s legislative power; at stage 2 they camouflage the fact that what the Welsh Assembly is really doing is making primary legislation. Your Lordships should be in no doubt about that. In my view, one needs inordinate patience in reading Part 3 to reach the analysis that I have just put before the Committee. One would think that Part 3 would start off with stage 1 and then, having completed it, move on to stage 2. In fact, Part 3 starts with stage 2, wanders into stage 1 and in the end wanders back into stage 2. One might take the view that, when the Minister was settling these provisions, he either intended to obfuscate or had just had a very good lunch; indeed, it might have been a mixture of the two. We are opposed to Part 3 for a number of reasons. The first reason is that it is not authorised by a referendum. Like, I suspect, many of your Lordships, I am not an enthusiast for referendums. I believe that our long-standing system of representative government is the best way of taking all decisions in our country. But the fact is that the existing state of the devolved Assembly is the result of a referendum, so it must follow that any change in that existing state—any deepening of devolution—should also be mandated by a referendum. Such a procedure is set down in Part 4 of the Bill. One might, therefore, well ask why we need Part 3 at all. Why cannot we simply move to Part 4, have a referendum and, if the Welsh people authorise the degree of devolution, so be it? But that is not what will happen. As your Lordships know, this Bill has been extensively debated in another place. On Report, the point about a referendum was put to the Minister, Mr Ainger, in as direct a manner as possible. Mr Ainger’s response was:"““The purpose of referendums is to establish people’s view on a change . . . It is pointless to hold a referendum if one knows that one is not going to achieve the change that is its purpose””.—[Official Report, Commons, 28/2/06; col. 179.]" In other words, in the view of the government Minister, referendums are valid only if they produce the result desired by the Government. I would have thought that the point of a referendum was to find out what people think. However, the conclusion that Mr Ainger and the Government have reached is that, since the referendum will not produce the result that they want, they will not have a referendum. Has that deterred them from making any change to the way in which Wales will be governed in the future? Certainly not, because we have Part 3, without a whisper of a referendum to authorise it. That point was also put to Mr Ainger in the debate in another place. Mr Dominic Grieve asked him:"““Why does he think that part 3 is desired by the people of Wales?””." Mr Ainger replied:"““Because they voted for a Labour Government and a Labour manifesto””.—[Official Report, Commons, 28/2/06; col. 180.]" It is true that they voted for a Labour Government and it is true that the Labour Government had a manifesto. But there is not a scintilla of a reference in it to the procedure laid down in Part 3. Indeed, during the time leading up to the manifesto, no Minister or anyone else, as far as I am aware, made any reference whatever to any procedure remotely like the procedure in Part 3. It is true that there was an important debate about Welsh devolution in the months running up to the general election but that was in relation to the commission chaired by the noble Lord, Lord Richard; and the proposals that he made were a long way from what is contained in Part 3. In my submission, the argument—just in case the Government are inclined to include it in their response—that it was in the manifesto is no argument at all. The fact that Part 3 is not authorised by a referendum is only one reason why we think that it does not belong in the Bill. There are two others of equal weight. The first is that the act of delegation in stage 1 is to a very large extent unscrutinised by Parliament in Westminster, either in another place or in your Lordships’ House. We are talking here about an Order in Council process; we are not talking about a process that concludes in an Act of Parliament. How will that process work? Your Lordships will look in vain at this Bill to find that out. In another place, Mr Ainger did to some degree flesh this matter out. Apparently, what is intended is something approaching the following. The Welsh Assembly will make a proposal for a draft Order in Council to delegate certain legislative powers to the Welsh Assembly within the fields capable of delegation under Schedule 5. That draft order will be laid before the Welsh Assembly; but it is envisaged that before it is laid extensive discussions will take place between the Welsh Assembly Government and Whitehall—I presume that ““Whitehall”” means the Secretary of State for Wales. Once that draft order has been passed by resolution, the draft order, together with the resolution, will appear both in your Lordships’ House and in another place. However, the order will not be subject to any form of legislative amendment. It will be subject to something that Mr Ainger called pre-legislative scrutiny; but nowhere in the Bill is the nature of this pre-legislative scrutiny defined. The honourable Minister suggested that it might include consideration by the Welsh Affairs Committee and perhaps also by the Welsh Grand Committee. The conclusions of both those institutions would be dispatched to the Welsh Assembly in the hope that they might take them into account when they reached a final conclusion on the draft order. The final draft order, after further discussion with Whitehall, is then tabled as an Order in Council both in another place and in your Lordships’ House. In the normal way of affirmative resolutions, we will have the opportunity to say yes or no to a text that we cannot amend. In my submission, this is a degree of scrutiny that falls well below the standard one would expect for such a dramatic constitutional change. That is the second reason why we wish to expunge Part 3 from the Bill. The third reason is that if one looks under the skin of what is proposed in Part 3, one sees that what is happening in reality is that delegation—at both stage 1 and to some degree stage 2—is not from this Parliament to the Welsh Assembly, but from this Parliament to the executive, from this Parliament to the Secretary of State for Wales. Throughout the process under stage 1, the Secretary of State for Wales is intimately involved in shaping the draft order. Indeed, it says expressly in the Bill that if in the end he is not satisfied with the draft order he can refuse to table it. This is a plain shift of power from the legislature to the executive. Moreover, even when the Welsh Assembly is authorised to produce Assembly measures, at the end of the day, even when that process is completed, it is still the job of the Secretary of State for Wales to table an Order in Council before it becomes the law of the land. It is almost as if this Bill is being used as a pilot for the Legislative and Regulatory Reform Bill, which your Lordships are expecting soon in this House. I would like to make one further observation in this context. At stage 2, once the Welsh Assembly has the power, the matter will go through to its conclusion. If the political parties that dominate Welsh Government and the political party that dominates the Government of the United Kingdom are of the same hue, one can see them being reasonably co-operative. But what if the Welsh Government in the future are of one political complexion and the United Kingdom Government of another political complexion? How on earth is it envisaged that the process laid down in the Bill could possibly work in any manner that could reasonably be described as harmonious? That said, I wish to emphasise again that the third reason that we are opposed to Part 3 is because of the amount of power that is switched from legislative bodies to executive bodies.