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Government of Wales Bill

moved Amendment No. 61C:"Page 51, line 40, at end insert—" ““(   )   An Order in Council under this section shall include all of the principal features of the proposed Assembly Measure.”” The noble Lord said: I believe that, since the experience of 1998 and the legislative requirements of the Assembly, there is widespread support to enable the Assembly to gain easier access to legislation than the current arrangements allow. The present arrangements are inevitably about trying to get a couple of Bills into the parliamentary Session and to achieve success for either Wales-only Bills or UK Bills with Welsh-only clauses. We should not dismiss the value of that experience, because there has already been a significant transfer of legislative competence in education and in health through that process, but those who pragmatically wish the devolution process to develop are making the reasonable point that we should find an easier way for the Assembly to fast-track legislation. The Richard commission considered aspects of this, and we came up with the idea of framework legislation. Indeed, there is evidence of that in the present NHS Redress Bill, which has gone through this House and in which an important framework clause paves the way. Such a means by which the Assembly might obtain legislative competence in the future may still be one of the routes that will be followed, because it makes sense to do it sometimes in a UK Bill. The Government at least appear, in the Part 3 Orders in Council, to have responded to the general feeling that there should be some way in which they could fast-track Assembly legislation. They have been described in a variety of ways since the novel introduction of such an Order in Council. They have been called an ingenious device, a backdoor means of transferring primary legislative powers or a virtual transfer of primary legislative powers. My amendment was prompted by the debate on the nature and character of these novel Orders in Council. What will they look like? What is the nature of their context? How widely or specifically drawn will they be? As they are novel we have no precedents to pursue; therefore, I tabled this amendment to allow the Committee to explore what an Order in Council should contain. My amendment was also prompted by the Government’s very helpful effort to give us two mock examples of how an Order in Council would look. Members of the Committee who have followed these issues will know that the Government put forward mock orders for two Bills that have already gone through this House, so that we could compare the Order in Council process to the Bills, which are now Acts, which have gone through. The first relates to the Bill to create a Welsh ombudsman covering a whole range of public services in Wales. We were very helpfully given a draft mock order, if this Bill had not gone through, of how an Order in Council would have paved the way for the measure that subsequently would have been drafted and taken up by the Assembly. The mock order was comprehensible, but rather convoluted. Matter 14.1 refers to:"““The creation of, and conferral of functions on, an office or body for and in connection with investigating complaints about relevant public sector persons””," When I read that draft order I understood exactly what I was expected to support: to transfer legislative competence to the Assembly to create an ombudsman for Wales. I was also informed of the limitations of that ombudsman’s role. The draft mock Order in Council included a provision that,"““at least one-half of the expenditure on the exercise of the person’s functions of a public nature in relation to Wales””," has to come out of the Welsh Consolidated Fund. In other words, it limited the scope of the ombudsman and his role. He or she could not investigate bodies not covered by the provision. That draft order is perfectly understandable and sufficiently informative in content. I could understand what I was being asked to support. The second draft mock order covered the Transport Bill that had gone through this House, which enabled me to compare the contents of the measure in the draft order, but I found this one far less satisfactory. This and the other House would have been informed only that various provisions would be required in plans and strategies for transport and that there would be arrangements for the discharge of local party transport functions. Frankly, from that draft order I would not have fully understood the nature of the proposed measure. In particular, I could not have picked up that this subsequent measure would include the groundbreaking provision to possibly finance air services and airport services in Wales. That was of major importance and caused a great deal of genuine discussion, which was not necessarily an argument or controversy but nevertheless of interest. One could not have divined from such a draft order that the subsequent Assembly measure would include such a provision. That prompted me to wonder whether we should not at least try to consider what we should expect to be in a draft Order in Council. So the proposals I have put down as a basis for debate, not as an ultimate solution, would ensure that an Order in Council should at least identify the principal features of what would become an Assembly measure. I think that consideration of these issues, in particular the two illustrative examples provided by the Government, prompts the following questions: how much should be included in an order; how much of an indication should be given of a subsequent measure that the Assembly would introduce; and how far should the Order in Council define the terms and limits of the subsequent measure? These are important questions. Perhaps I may anticipate an obvious criticism of my proposal. Why, for example, should information be put in an order which, unlike a Bill, is unamendable? Why should Westminster get involved in the substance of subsequent Assembly measures? To those questions I give this simple answer: unlike those who argue that Part 3 is in fact a virtual transfer of primary powers, it does not transfer primary legislative powers; both Houses in Westminster remain in legislative control. Ultimately, whether we pass or reject an Order in Council is a matter for the two Houses. Obviously, if we have been asked to pass such an order, we should have some idea of what we are being asked to pass. A clearer indication of what is subsequently to become an Assembly measure is needed. I believe passionately that if people wish to move to primary legislative power, Part 4 is the way to do it—through a referendum. As my noble friend Lord Richard and I suggested when I served on the commission, there should be a model for that transfer. In many cases it would possibly include additional Members and, of course, the possibility of an alternative voting system. That I could at least contemplate because it makes sense, but we should answer the critics who say that Part 3 is a back-door way of doing this by saying that we should expect Orders in Council that come before this House and the other place to be specific in their aim, about what kind of legislative competence the Assembly seeks and about the objectives of such competence. I beg to move.