ABOLITION ETC. (Hansard, 25 February 1998)

§ Mr. Wigley
I beg to move amendment No. 274, in page 59, leave out lines 18 to 20.

The First Deputy Chairman
With this, it will be convenient to discuss the following amendments: No. 275, in clause 131, page 62, leave out lines 8 and 9.
No. 276, in clause 135, page 64, leave out lines 27 to 29.
No. 512, in clause 141, page 66, leave out line 30.

§ Mr. Wigley
I am grateful for the opportunity, in the brief time that I have available before the witching hour 446 at 9 o'clock, to deal with this group of amendments. Amendment No. 512 does not belong to us, so I shall leave that to those who claim paternity to it—[Interruption.]—if anyone wants to claim paternity to it. Ours are the type of probing amendments that would be relevant for the Committee stage of any Bill. Had the proceedings been taken in Standing Committee, we would have gone into such detail much more.
Amendment No. 274 seeks to delete lines 18 to 20 to ascertain the exact intention of clause 125, particularly the interplay between subsections (3) and (4). I suspect that that amendment, which deals with the Development Board for Rural Wales, and amendments Nos. 275 and 276, which deal respectively with the Land Authority for Wales and Housing for Wales, are the type of provisions that were heralded in the White Paper. Paragraph 3.23 of the White Paper says: Where necessary the Bill will give the Assembly limited powers to amend existing primary legislation. That is what is happening by virtue of those clauses.
I want to ensure that we know the extent of that power to amend. As we heard in a number of our debates this evening, the DBRW has important functions for the parts of Wales for which it is responsible. Those responsibilities might well have been applied in other parts of Wales, as was suggested earlier. The question of amending other legislation because of the effect of the repeal of the Development of Rural Wales Act 1976 is fairly significant. If it is felt that, because of the absence of that Act, there is a need to amend other legislation that impinges on a range of economic and social powers—social powers are within the purview of the 1976 Act—these provisions enable such primary legislation to be amended by order introduced by the Secretary of State to this House.
Subsections (3) and (4) must be taken together in order to understand what we are discussing. I shall select just one part of the wording so that the provision makes sense, because the way in which the draftsmen have attacked this part of the Bill has not resulted in the most attractive English. Subsection (3) says: The Secretary of State may by order make any consequential … provisions … in connection with … the repeal by this Act of any provision of the Development of Rural Wales Act 1976. It goes on: An order under subsection (3) may include provisions … of amendments … of any … other enactment. Any other enactment could be amended by order if it was deemed to be dealing with any matter that was incidental to or consequential on the abolition of the Development Board for Rural Wales. That is fairly far-reaching, but it is necessary because many aspects will come to light that should have been covered by the legislation. This provision allows a fast route for changes to primary legislation.

§ Mr. Öpik
Is the right hon. Gentleman trying to ensure that we do not drop the ball when powers are transferred from the Development Board for Rural Wales to the new organisation? Is that correct?

§ Mr. Wigley
Yes, that is correct, but I am going beyond that. These are probing amendments. I want to know what the effect of leaving out those lines would be, 447 but first I want to establish what they facilitate. They seem to facilitate the far-reaching changes that may be necessary.
Amendment No. 275 deals with the Land Authority for Wales. Clause 131(3) and (4) give the Secretary of State the power to amend any enactment relating to land that it is felt appropriate to amend according to the wishes and policies of the National Assembly for Wales. Amendment No. 276 deals with Housing for Wales. Clause 135(3) and (4) enable the Secretary of State by order to make any incidental provisions that he deems appropriate.
Those three clauses could have substantial significance, because they allow the Secretary of State to make orders that change whole sections of housing, land or rural affairs legislation. I welcome that. The White Paper included that proposal: the Government said that they would enable primary legislation to be amended by order. The House will not lose its veto over changes to primary legislation, because an order will have to be approved by the House. An order is the vehicle for enabling provisions that would otherwise have to be included in primary legislation to be taken quickly through Parliament, to meet the requirements of the National Assembly for Wales to change the law in those three areas. The proposed mechanism is fast and effective.

§ Mr. Letwin
Does the right hon. Gentleman agree that the Secretary of State could make the process even faster if, by a transfer of functions order or subsequent such order, he were to transfer the order-making power in those clauses to the assembly?

§ Mr. Wigley
Yes, that would be a mechanism whereby the assembly could change primary legislation of its own volition without reference to the House of Commons, but the Government are not proposing that. Under the Government's proposals, the House of Commons will ultimately have a veto over such changes to primary legislation. Scotland is allowed to change primary legislation, and we want our assembly to be able to do likewise, but the clauses do not allow that.

§ Mr. Letwin
Does the right hon. Gentleman agree that the structure is in place to permit that change? Under the Bill, the Secretary of State could, by order, transfer those powers to the assembly so that it could thereafter by order change primary legislation.

§ Mr. Wigley
Yes, but only for such matters as are covered by the Bill. There is no provision for a general facility along those lines.

§ Mr. Letwin
indicated dissent.

§ Mr. Wigley
The hon. Gentleman is shaking his head, but the clauses and amendments that we are discussing deal with the activities of the Development Board for Rural Wales, Housing for Wales and the Land Authority for Wales.

§ Mr. Letwin
Will the right hon. Gentleman give way?

§ Mr. Wigley
By all means.

§ Mr. Letwin
I apologise for intervening again, but the matter that I wish to raise is of some constitutional significance. Clause 22(1) makes it explicit that Her Majesty may by Order in Council … provide for the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales". Clearly, the provisions to which the right hon. Gentleman draws attention are "in relation to Wales". They concern the power exercisable by a Minister of the Crown". Therefore, under clause 22, the powers involved could presumably be transferred by a transfer of functions order to the assembly, which would then have the power, by order, to overturn an Act of Parliament.

§ Mr. Wigley
At the risk of trespassing on our earlier debates—I remember that the subject was touched on, although I think that we got into time trouble—let me say that there are restraints on clause 22.
I was not aware that primary legislation, in its generality, could be amended by order, but if that is the case, and if the arrangement is open-ended, the hon. Gentleman is clearly right. The amendment may be redundant, having already been dealt with by that mechanism. In the case of three of the four areas specified in part VI, however, there are mechanisms to allow changes in primary legislation.
I think that right and proper, and I believe that it should apply to other areas, too. I will not pursue the argument, because I would be trespassing on the Committee's time; but, if responsibilities that lie firmly with the assembly need to be modified, it would be nonsensical not to modify them. The modifications would relate only to Wales, and there is a long stop on the order in this part of the Bill. There are other long stops in other parts with regard to the financial implications. If we do not allow such a development, we shall create a structure that could lead to tensions between the assembly and the House of Commons.
If we want a devolved structure—I realise that Conservative Members may not—we must ensure that it takes on proper responsibility, carries that responsibility and does not merely lead to sniping between one Chamber and another. That is why I welcome the facility provided in the three subsections to which our three amendments relate. I hope, however, that the Minister will tell us how he envisages the working of those subsections, in the context of my comments. I hope that he will justify the need for them, given that—as the hon. Member for West Dorset (Mr. Letwin) pointed out—clause 22 may provide an overarching mechanism that makes those requirements redundant. Some clarification is needed.

§ Mr. Michael Ancram (Devizes)
I am grateful to my hon. Friend the Member for West Dorset (Mr. Letwin) for succinctly raising one of the major points at issue in the amendments. In our view, it is clearly the beginning of a slippery constitutional slope, which is why the right hon. Member for Caernarfon (Mr. Wigley) was so keen to support the principle behind them. What my hon. Friend warned against, however, is even more evident in clause 141, which our amendment No. 512 addresses.
Clause 141 states: The Secretary of State may by order make in any enactment contained in … an Act passed before or in the same session as this Act, or … subordinate legislation … such amendments or repeals as appear to him to be appropriate in consequence of this Act. 449 If my hon. Friend is right, that is also a power that can then be transferred to the assembly under clause 22. In effect, that would allow the assembly—or, indeed, the Secretary of State, which is bad enough—to change primary legislation not on the ground that it was necessary to do so, but on the ground that it appeared to the Secretary of State to be appropriate in consequence of this Act. We have discussed Henry VIII clauses before, but this is a Henry VIII clause of which not only Henry VIII but Cardinal Wolsey would have been proud. According to the Delegated Powers and Deregulation Committee's report of 1992–93, a Henry VIII clause is a provision which enables primary legislation to be amended or repealed by subordinate legislation with or without further Parliamentary scrutiny. All the authoritative statements on such clauses make it clear that they were not intended to be used in this rather loose and informal way. They are intended to be used restrictively. The report of the Delegated Powers and Deregulation Committee in the other place summed up the definition. It stated: the case for using Henry VIII clauses for updating lists, or uprating for inflation and for making consequential and transitional provisions was recognised. In any event the Government should be expected to justify the use of such clauses as being necessary: they should not be used simply for convenience. I think that the Committee will agree that if such a mechanism is to be used, those criteria might apply, but they are not contained in clause 141. The clause states: such amendments or repeals as appear to him to be appropriate in consequence of this Act. That is a judgment by the Secretary of State, and there are no criteria by which to judge it. The clause could allow him, by order, to change primary legislation through a one-and-a-half-hour debate without amendment. As my hon. Friend the Member for West Dorset said, if that power were transferred to the Welsh assembly, that body could change primary legislation, whether by amendment or repeal, and Parliament would not have a chance to consider the matter.
That is a dangerous precedent, and I do not think that the Committee should lightly allow it to pass. I hope that even if the Minister cannot accept the amendment, he will bear in mind the seriousness of my statement and will at least agree to look at the issue again.

§ Mr. Hain
I can reassure the right hon. Members for Devizes (Mr. Ancram) and for Caernarfon (Mr. Wigley) that their concerns are misplaced. The amendments relate to residual order-making provisions in the Bill that allow the Secretary of State, by order, to amend primary legislation as a consequence of the quango reform provisions in part VI or the enactment of the Bill generally. All major Bills have an impact on existing statutes and require repeals and amendments. Although we have tried to provide for those in the Bill as, for example, in schedules 8 and 14, it is possible that some detailed matters have not yet been identified. That is why the safety net powers are necessary.
I understand the concerns of hon. Members who have tabled the amendments and I reassure them that the powers are intended to be used and, I stress, could be used only as a means of tidying up the statute book where other provisions in the Bill make that necessary. The alternative 450 would be to return with fresh primary legislation to cover minor and technical matters. I hope that all hon. Members will agree that that would not be a fruitful use of parliamentary time.
Amendment No. 512 was tabled in the name of the right hon. Member for Devizes and some of his hon. Friends. I have heard the phrase "slippery slope" so often during the Bill's passage that by now the slope is well oiled. It is pure fantasy. The amendment would remove from clause 141 the Secretary of State's power to amend primary legislation by order when the Bill's other provisions made that necessary or desirable. The power represents a far better approach than burdening Parliament with fresh primary legislation to effect technical amendments.

§ Mr. Ancram
Will the Minister give way?

§ Mr. Hain
No, because I do not have much time.
I recognise the right hon. Gentleman's concern, but there is no scope for such a power to be misused. As I have said, it may be used only as a consequence of the Bill's provisions. Clause 144 provides that any orders made under clause 141, which amend primary legislation, would be subject to affirmative resolution here and in the other place.

§ Mr. Ancram
Will the Minister give way?

§ Mr. Hain
No, and I regret that I cannot give way. I have not been left much time.
The same arguments apply to the clauses that the right hon. Member for Caernarfon seeks to amend. A Secretary of State who, for whatever reason, sought to use the power unreasonably, could be checked by Parliament, which could also reject a draft order if it considered that the matter would be more properly dealt with by fresh primary legislation.
The amendments tabled by the right hon. Member for Caernarfon would remove the Secretary of State's order-making powers in the merger of the Welsh Development Agency, the Development Board for Rural Wales and the Land Authority for Wales and in the abolition of Tai Cymru, which would seriously impede the smooth implementation of those proposals. If further technical matters were uncovered during the merger process, we should then have to introduce new primary legislation to deal with them. I am sure that the right hon. Gentleman would not wish that to happen, and therefore invite him to withdraw his amendment.

§ Mr. Wigley
I am very grateful for the Minister's response, and I have taken note of the points made by the right hon. Member for Devizes (Mr. Ancram). The point is that—although different arguments may apply to clause 22—the clause would provide a safeguard for the House and avoid the need for primary legislation each time there was a need for consequential changes arising from the Bill.

§ Mr. Letwin
On a point of order, Mr. Martin. I wonder whether you will give some guidance to a new Member on a genuine point of order. Earlier in the Committee's proceedings, the Secretary of State wrote to me—he deposited the letter in the Library—stating that there neither were nor would be powers other than those that I had mentioned for the assembly to overturn primary legislation passed by the House. The Minister—in failing to respond to what was said, and by what he has or has not said—has virtually implied that that letter was false or was inadvertently misleading. I wonder whether you can give us some idea of how one should deal with such a situation in the Committee's proceedings.

The First Deputy Chairman
Perhaps the hon. Gentleman can table questions to the Minister to get some elucidation on what he meant. The hon. Gentleman will understand that we have now passed that matter because of an instruction of the House.