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Government of Wales Bill

moved Amendment No. 59:"After Clause 92, insert the following new clause—" ““REFERENDUM ABOUT COMMENCEMENT OF ASSEMBLY MEASURES PROVISIONS (1)   Her Majesty may by Order in Council cause a referendum to be held throughout Wales about whether the Assembly Measure provisions should come into force. (2)   If the majority of voters in a referendum held by virtue of subsection (1) vote in favour of the Assembly Measure provisions coming into force, the Assembly Measure provisions are to come into force in accordance with section 92. (3)   But if they do not, that does not prevent the making of a subsequent Order in Council under subsection (1). (4)   No recommendation is to be made to Her Majesty in Council to make an Order in Council under subsection (1) unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament and the Assembly. (5)   But subsection (4) is not satisfied unless the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats. (6)   A draft of a statutory instrument containing an order in Council under subsection (1) may not be laid before either House of Parliament, or the Assembly, until the Secretary of State has undertaken such consultation as the Secretary of State considers appropriate. (7)   For further provision about referendums held by virtue of subsection (1) see Schedule 6. (8)   In this Act, ““The Assembly Measure provisions”” means sections 92 to 101.”” The noble Lord said: The argument for a referendum before the Assembly measure provisions in Part 3 come into force is similar to the Government’s argument for a referendum on the commencement of Assembly Act provisions in Part 4. The argument is similar because the effect of implementation of Parts 3 and 4 could be similar over time. This was elicited in Committee and on Report in the other place and has subsequently been clarified in the 17th Report by the Delegated Powers and Regulatory Reform Committee. My noble friend Lord Crickhowell was quite right in saying that that report has not been referred to sufficiently, but I shall do so now. I shall quote the statement in paragraph 27, page 5, of that report, to which my noble friend referred earlier. The report says:"““We draw to the attention of the House the width of the power in Part 3 and that it could, subject to the necessary parliamentary approval, be used to achieve a situation (by filling up the ““fields””) which is not really distinguishable from that under Part 4 (for which a referendum is required)””." We recognise that the committee’s judgment is independent of party interest and noble Lords will respect it as totally non-partisan. It highlights the close interrelationship between these two parts of the Bill and the situations that may result from their implementation. I remind your Lordships that they are described by the committee as ““not really distinguishable””. Why then should a referendum be required to introduce Part 4 but not Part 3? The short answer is that the Government do not see eye to eye with the committee, or the Opposition, on this issue. They believe that the outcomes of the implementation of the two parts are very distinguishable. The Government’s commitment to a referendum goes back to the White Paper Better Governance for Wales, in particular to paragraphs 3.22 and 3.23, on page 25, where it is stated that the enhanced powers described in the preceding paragraphs,"““would be adaptations of the current settlement and the Government believes that they do not require a referendum””." The enhanced powers include those available under Part 3. The White Paper goes on to say that if further transfers of primary legislative powers over all devolved fields are required:"““The Government is clear that this would represent a fundamental change to the Welsh settlement and would have to be endorsed in a referendum””" I do not query that referendum conclusion. I believe the Liberal Democrats do. They are not in favour of referendums. Let us be clear that what we are talking about here is the quantitative rather than the qualitative difference between the outcomes of Part 3 and Part 4. It is not a fundamental change at all, but an incremental one. That is a description that the Government use from time to time. The noble Lord, Lord Davies, used the word ““incremental”” earlier in our proceedings today. The very meaning of ““incremental”” is quantitative, not qualitative. If a referendum under Part 4 produced an affirmative result and the provisions came into force, one of the immediate consequences would be that Part 3 would cease to have effect, as the Explanatory Notes and Clause 105 make absolutely clear. In short, Part 3 would be submersed—not subsumed but submersed—by Part 4. The line between Part 3 and Part 4—where a referendum is not required and where a referendum is necessary—is a very fine one, and it is not easy to detect on the slippery slope from a little primary legislative power in a corner of a devolved field to full primary legislative power all over the devolved fields in their entirety. The implementation of Part 4 is by far the more satisfactory from a democratic point of view, as my noble friend Lord Kingsland emphasised earlier, because it would represent the will of the Welsh electorate as expressed in a much-needed referendum. The interim Part 3 position is totally unsatisfactory, because it leaves the legislative competence of the Assembly to be defined by Orders in Council, which are ultimately controlled by the Secretary of State. That is an autocratic, not a democratic, solution. The incremental process of increasing the Assembly’s competence requires the endorsement of the electorate in a referendum just as much as, if not more than, the ultimate goal of full primary legislative power in the devolved fields. That is why we are calling for a referendum before the process begins and before Part 3 is implemented, rather than Part 4. A referendum at the Part 4 stage would be rather late in the day; possibly it would take place more than a decade hence. It would be long after the horse had bolted from the grip of the Welsh electorate. Our new clause is a replica of the Government’s Clause 102 and must therefore be beyond ministerial criticism. If carried, of course, there would need to be some consequential changes to Schedule 6, which could be introduced at a later stage. I hope that the Minister will not press me on what the question for a referendum should be, because the Government have already thought about that, and they have got their question ready for the implementation of a referendum under Part 4. The same mechanism would apply to a referendum under Part 3. I beg to move.