§ Mr. Ancram
I beg to move amendment No. 45, in page 12, line 39, after '(1)', insert—'Functions in the fields specified in Schedule 2, so far as exercisable by the Secretary of State for Wales are hereby transferred to the Assembly.(1A)'.'
The Second Deputy Chairman
With this, it will be convenient to discuss the following amendments: No. 46, in page 12, line 39, leave out from 'Council' to end of line 10 on page 13 and insert
'transfer any function exercisable by the Assembly by reason of subsection (1) to a Minister of the Crown'.No. 47, in page 13, line 18, leave out from 'Parliament' to end of line 21.
§ Mr. Ancram
This is probably the most important part of the Bill. So far, we have discussed at length the 1067 technical ways in which the assembly will be established and elected. We now come to the part of the Bill that deals with the powers that will be given to the assembly and the functions that will be made over to the assembly, which will decide and shape the qualitative nature of the assembly in the future.
We are concerned to ensure that this part of the Bill is consistent with the claim made throughout the referendum campaign that the devolution proposals for Wales would not weaken, but strengthen the position of Wales within the United Kingdom and would strengthen the United Kingdom as well. It is in that context that we shall examine the matter in detail.
The Secretary of State made available to the House yesterday—and earlier to me, for which I am grateful—a copy of a draft order. It is an example of what might be put before Parliament in the run-up to the first elections of the Welsh assembly. I understand that it is not the draft order itself, but an example of the type of order that might be proposed. I hope that to avoid wasting time in Committee, the Secretary of State will say at an early stage that this is likely to be the shape of the order in the long term. I appreciate that some changes may be made, but we do not want to spend too much time debating the nature and detail of the order if it is merely an example.
§ Mr. Ron Davies
I am grateful to the right hon. Gentleman for acknowledging the papers that I made available yesterday. I gave an undertaking on Second Reading that I would make the order available, and that is what I have done. I shall consult, both within Government and outside, on this matter. I intend to produce a further final draft, perhaps in the autumn of this year, to allow a period of discussion of some six months in which it can be subject to more detailed examination before it is put before the House in its final form in the early summer of next year.
§ Mr. Ancram
I am grateful to the Secretary of State. As he appreciates, once the draft returns to the House in order form, it is likely to be unamendable by the procedures of this House.
§ The Parliamentary Under-Secretary of State for Wales (Mr. Peter Hain)
And incomprehensible, too.
§ Mr. Ancram
As the hon. Gentleman says, it is likely to be incomprehensible, too; it will certainly be unamendable. It is, therefore, right that we look closely at what is proposed. I am sure that my hon. Friends will want to do so during the debate on these amendments.
First, may I outline the position of the official Opposition? We regard this matter as the test of devolution within the Union. We want to be certain that, within these provisions and within what is transferred under these provisions, we are not creating a slippery slope to the future break-up of the UK or to further devolution that will weaken the bonds that tie together the various elements of the UK. We want to ensure that there is flexibility, which will allow the interests of Wales within the UK to be met as and when the need occurs.
On the latter point, we want to ensure that there is no ratchet that will, over time, move in only one direction. Having spent some time negotiating texts in my previous incarnation as a Northern Ireland Minister, I am extremely 1068 conscious of the fact that, when we use words such as "dynamic", which suggest that there will be movement, and when we tie that dynamism within a ratchet that moves in only one direction, we create a situation that is far from stable and which can act in the interest of only one group of people—those who want to see the United Kingdom broken up.
As the clause stands, the elements of the slippery slope and the one-way ratchet are present. The amendments, which we tabled in all seriousness, are intended to try to correct that. Their effect is simple. They will ensure that future transfers, after the first tranche of transfers under the order, will be by primary legislation so that this House decides whether the degree of devolution is to be increased in future. If the matter is left to the dynamics of an assembly, it is highly likely, if not inevitable, that there will be pressure constantly to take more and more power to that body. If that is done merely by unamendable order, the inability of this House to do other than exercise a simple and straightforward veto, which would create tensions within the relationship between Cardiff or Swansea and London, will be seen.
We want future transfers of functions to be carried out by primary legislation within this House. They would be major issues and we should take cognisance of the effect that such transfers would have on the integrity of the UK.
§ Mr. Ron Davies
I appreciate the thoughtful and considered way in which the right hon. Gentleman is approaching this matter. He suggests that he would want a major transfer of powers to be achieved by means of primary legislation but, if he reflects for a moment, he will find that that principle is perfectly compatible with the clause as it stands. A major act of devolution would require primary legislation that conferred powers to the Secretary of State or any other Minister and, in addition, enabled those powers to be subsequently transferred to the assembly by order. If there were to be such a major event, primary legislation would be required.
In that context, we should not only concern ourselves with major transfers of power, but recognise that devolution—even under the Conservative Government—was a rolling process. There were many acts of devolution and transfers of functions to territorial Departments. Now that we are to have a democratic assembly in Cardiff, there is no reason why a mechanism should not be available to transfer those powers by order.
§ Mr. Ancram
In what the Secretary of State has just said lies the fundamental difference between our view and his view. He is essentially saying that, because it is currently possible to transfer power and devolve administration within the United Kingdom under a unitary Government, there should be no difference when making transfers of functions and administrative power under what is no longer a unitary Government, but a devolved set of Governments. However, there is a fundamental difference because, when a transfer is made under the present set-up in Westminster, he, as the Secretary of State for Scot—Wales. I nearly made the mistake that I suspect I shall make more than once over the next few weeks. He, as Secretary of State for Wales, remains accountable to Parliament and to the Government here for what is done with those devolved or transferred administrative functions or powers because they remain within his purview. Under the proposals whereby a Welsh 1069 assembly is set up, there is a devolving of functional power away from this House—this Parliament—and his responsibility and that accountability no longer exist. Therefore, there is a fundamental distinction to be made.
It is for that reason that we regard the danger of the slippery slope with a careful eye, because we believe that if that danger exists, it will be exercised by those in whose interest it is to do so. The Secretary of State and I may have different views on what is a substantial or significant transfer, but my colleagues and I see in the way in which powers and functions can be transferred an inability for Parliament to exercise the sovereignty and degree of scrutiny that is necessary in those circumstances.
§ Mr. Denzil Davies (Llanelli)
I should probably have looked at the clauses before now; I see some confusion in them, but perhaps I am not reading them correctly. Clause 21 states that the assembly shall exercise only functions passed to it by an Act of Parliament, be thatthis Act or any future Act.If clause 21 is all there is, the right hon. Gentleman has nothing to worry about. However, clause 22 states that transfers can be made by order. Presumably, the right hon. Gentleman intends to address that point.
§ Mr. Ancram
I am grateful to the right hon. Gentleman, who makes my point in a different way. If there was only clause 21, I would feel more reassured, because it suggests that transfers can be made only by Act of Parliament. Clause 21, however, refers to "this Act"—
§ Mr. Ancram
Yes, or any other Act. "This Act", which is the primary legislation before us now, goes on to say that under "this Act", functions can be transferred by order. That is why I seek to amend not clause 21, but clause 22, so as to ensure that where the provisions in "this Act" are exercised to transfer functions or powers, that is done not by an order, which is unamendable and largely undebatable, but by primary legislation dealt with in the House so that the full scrutiny of luminaries such as the right hon. Member for Llanelli (Mr. Davies) can be brought to bear.
§ Mr. Ron Davies
Let us not strain unnecessarily on this matter. It is true that clause 21, which now stands part of the Bill, refers to the transfer of functions under "this Act" and that clause 22 refers to orders made under Acts. It is the case that every order transferring powers will have its own originating Act. It was for that purpose that, in the draft order I have tabled, I list the many Acts that currently empower the Secretary of State to lay orders. Clauses 21 and 22 are therefore perfectly compatible.
§ Mr. Ancram
I am not saying that the clauses are incompatible. It is because they are compatible that they are dangerous. What purports in clause 21 to create a 1070 requirement for primary legislation turns out, in clause 22, to require much less. That is what I am trying to cure with the amendments.
The second area, which is of equal concern, is what I earlier described as the ratchet effect. It is my view and that of my colleagues that where devolution takes place within the United Kingdom, that devolution must be capable of being amended in either direction, as circumstances require, in order to maintain the stability of devolution within the United Kingdom. The Bill, however, effectively creates a one-way ratchet.
I see nothing in the legislation—I look nervously at the right hon. Member for Llanelli in case he sees something—to allow any functions or powers to be transferred back from the Welsh assembly, either to Parliament or to the Government, should circumstances arise that require that to be done. For example, the Secretary of State, who is certainly not infallible, may make a mistake in transferring certain powers or functions. My reading of the Bill is that there is no power and no means by which those powers or functions could be transferred back to him or to any other Secretary of State.
§ Mr. Ron Davies
The right hon. Gentleman is rerunning last night's debate, when the Opposition attempted unsuccessfully to insert an otiose amendment asserting the supremacy of Parliament. Parliament is supreme and if, at any time, it is perceived that there is any difficulty or that powers have been vested in the assembly inadvertently, improperly or against the wishes of the Government of the day, the Government or Parliament can reverse that error.
§ Mr. Ancram
The Secretary of State suggests that we should seek confrontation in such cases and that is precisely what makes me nervous. He is saying that, if the House believes that the Welsh assembly has too many functions or if the Welsh assembly believes that it needs more, we should have a stand-up fight, albeit in the knowledge that this House will win. That sort of behaviour seems designed to generate friction and to create frustration in Wales directed against this House.
I am proposing in a serious amendment a means to establish a simple and clear way in which to transfer back powers when that is in the interests of Wales, the assembly and this House. That would avoid what at the moment is a one-way ratchet.
§ Mr. Ancram
The Secretary of State cannot deny which there is a one-way ratchet in the Bill.
We have tabled a series of simple amendments which would cure the two defects in what the Secretary of State would claim is a measure of devolution within the United Kingdom. Returning to a point I made last night, if the Secretary of State is sincere in what he says about the relationship between the assembly and Parliament, he need fear nothing in our amendments because they are consistent with that view. If he resists the amendments, as he resisted the amendment last night, that can only leave us with the suspicion that he does indeed see 1071 devolution as being not an event, but a process—more than that, a process that is travelling in one direction only, towards the eventual break-up of the United Kingdom.
§ Mr. Rhodri Morgan
Surely the right hon. Gentleman realises that, in these amendments and in his efforts yesterday in respect of the name of the assembly and the declaratory statement about the supremacy of Parliament, he is displaying a very niggling spirit. With his constant references to the dangers, the thin end of the wedge and the slippery slope, he is trying to strangle the Welsh assembly and give it no room to breathe even before it starts work. That is the wrong spirit and, now that the referendum and Second Reading are over, he should get rid of that attitude of mental denial towards the existence of the Welsh assembly. He should accept that the assembly is going to happen. He should not try to diminish it, and reduce its stability and the scope within which it will operate before its first meeting.
§ Mr. Ancram
I accept that the assembly will be established. I have made that clear, but, as the official spokesman for the Opposition, not for the Government, it is not my job to be dewy-eyed and to say what will happen in a perfect world. It is my job to test the legislation against not the best-case scenarios, but the days when there are problems and difficulties, and when there is confrontation. Let us face it: there will be times when there will be arguments between the Welsh assembly and the House. There have already been arguments between Cardiff county council and the Secretary of State. We know that arguments can happen. I am trying to ensure that when such situations arise, we have in statute the means by which they can be controlled.
Perhaps, as a Scottish lawyer, I am trained to look closely at the small print because it is normally in the detail that one finds the devil. I am doing so on this occasion because I want to see a Welsh assembly established in a way that is secure within the United Kingdom. It worries me more and more that every time I bring up what I believe are essentially safeguards for the position of Wales within the United Kingdom, I am accused of speaking heresy. The concept that it is heresy ever to consider within devolution that power could come back from the devolved assemblies to the centre also worries me because that is the mentality of the one-way street away from the United Kingdom.
I have tabled the amendments in all seriousness because I believe that they improve the legislation. They secure the claims that were made for it by the Secretary of State during the referendum. I hope that for the first time during the Bill's consideration, the Secretary of State will accept that the amendments have been tabled in good faith and will agree to them.
§ Mr. Denzil Davies
I should like to discuss the interaction of the amendment with clause 21. Perhaps my right hon. Friend the Secretary of State could deal with the point when he replies to the debate.
As I read that clause—at least now, because I read it differently a minute ago—it requires an Act of Parliament to confer or impose functions upon the assembly. The Bill, once enacted, will confer functions and if more functions have to be conferred, that will 1072 have to be done through a future Act. The mechanics of the transfer of those functions are set out in clause 22, which states that that transfer can be done by order. The explanatory note does not say that, but, as I read the Bill now, in future an Act will be required to transfer such functions because clause 21 states:The Assembly shall have the functions which are … conferred or imposed on the Assemblyunder an Act. An Act is, therefore, required to confer those functions. Under clause 22(1)(a), however, the transfer of those functions, to some extent a mechanistic matter, can be done by order.
I may be completely wrong and perhaps my right hon. Friend will clarify the matter because it is important. There appears to be a contradiction between clauses 21 and 22.
§ Mr. Oliver Letwin (West Dorset)
First, I should like to respond briefly to the points raised by the right hon. Member for Llanelli (Mr. Davies).
I believe that it is at least the case that there is a clarity of intention that runs counter to the right hon. Gentleman's suggestion. The statements made by the Secretary of State, the notes on clauses and other statements that have been made about the Bill make it entirely clear that the articulation is at least meant to be—in view of his legal knowledge, I certainly give way to the right hon. Gentleman about the statutory construction of the Bill—that the assembly shall have functions that are granted by whichever Act may have granted powers to the Secretary of State, which under this Bill, once enacted, or any subsequent Act can be transferred by Order in Council.
I therefore take it that the articulation is intended to allow whichever powers are already possessed by any Secretary of State in relation to Wales to be granted to the assembly in due course by Order in Council. If that is a fallacious interpretation of at least the intention of the Bill, I, too, would be grateful if the Secretary of State could make that plain. I am basing my remarks on that assumption, which is at least coherent with what we have been told about the Bill as opposed to the construction placed upon it by the right hon. Member for Llanelli.
I should like to explain why I believe amendments Nos. 45 to 47, which stand in the name of my right hon. Friend the Member for Devizes (Mr. Ancram) and other colleagues, go to the essence of the Bill and are by no means merely incidental to its purposes.
The first point is whether any legislative stability is granted by the Bill, construed at any rate in the fashion that I have just described. That is important for a reason that the Bill makes clear. It provides for the possibility of devolution issues—I believe that that is the phrase that is used—being resolved through a series of quite lugubrious legal mechanics and ultimately by the traditional Committee of the Privy Council. It so provides because it envisages a situation or a series of situations in which there is genuine doubt about whether a power has been devolved. It is a matter of potentially the gravest significance if there is an apparent conflict of laws or jurisdictions.
In those circumstances, and given the great scope for such apparent conflicts, it is of the utmost concern that a body of precedents should be built up by the Judicial Committee of the Privy Council and other subsidiary 1073 courts that gradually clarifies the area of devolution and reduces the scope for discussion and debate. I imagine that that must be common ground between the Conservative Benches and the Secretary of State and his fellow Ministers. If that is the case, it must be of the greatest importance that there should be legal stability and not a continuous legislative flow or ratchet of the kind to which my right hon. Friend the Member for Devizes alluded. It would be difficult to build up a solid body of precedent if on each occasion the Judicial Committee arrived at its final conclusion and offered a judgment, hey presto, the Secretary of State or another Secretary of State devolved a further power. By doing so, they would re-create an area of confusion that had apparently been clarified.
The amendments are of the utmost importance in the strict constitutional sense because they create stability. They provide for a defined series of powers to be devolved under the proposed Act and avoid the creation of a situation in which there could be legal flux. I should have thought that that aim was common ground. That is of particular importance in connection with the Bill because it provides for a wide and indeterminate set of powers to be devolved.
Clause 22(1)(a) providesfor the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown"—unspecified—in relation to Wales".There is no one in the Chamber, and I suspect no lawyer in England or, indeed, in Wales probably who can guess how the phrase "in relation to Wales" will be taken by the courts over the years, and in particular by the Judicial Committee. Does it refer, for example, to the police in Wales, the prisons in Wales or military bases in Wales? All those topics are currently covered by Acts under which Secretaries of State of one kind or another have order-making and regulation-making powers. As I and my right hon. Friend have construed the clauses, and as the Secretary of State has asked us to construe them, all those powers could be gradually devolved by order to the assembly. In those circumstances, the opportunities for apparent conflicts of law and therefore a need for resolution by the Judicial Committee—hence the necessity of stability—are much greater than would have been the case had that process been limited, as my right hon. Friend's amendments would have made the case, to a specified and clear list of pre-defined powers.
§ Mr. Rowlands
The third paragraph of the explanatory note—I realise that it is not in the Bill, but let us borrow it for the moment—states:The Bill allows for further orders to be made, to transfer other Ministerial functions to the Assembly in due course. This gives the opportunity for future Governments to transfer more powers to the Assembly, with Parliament's approval. Other functions can be given to the Assembly directly by Acts of Parliament".It would seem that there are two routes by which powers can be devolved: by individual Acts of Parliament and by the order-making process specified in the Bill. We could do with clarity when it comes to which route will be used and which function will go down which route.
§ Mr. Letwin
The hon. Gentleman is right about what we are told in the notes on clauses. To offer further support to that view, having studied the Secretary of State's statements over the past few months—and those of the Under-Secretary of State—it is abundantly clear that the hon. Gentleman is echoing the interpretation that has been placed upon the matter by the Welsh Office.
It is clear also that there is a distinction between those powers that may be devolved by order and those that will require an Act. I think that the distinction—no doubt the Secretary of State will explain this in his reply—is between those Acts that already confer an order-making power upon a Secretary of State in relation to Wales and situations in which there is no such pre-existing order-making power for any Secretary of State, where therefore the transfer of powers would require a new Act. It is to the first group to which we are addressing the amendment.
The problem is that there is such wide scope in English law. We on the Opposition Benches, alas, must take some of the responsibility for that, as must some on the Government Benches. In my view, there has been a regrettable tendency over the past 50 years for Governments to create wide discretion for Secretaries of State to make orders in an increasing range of affairs. The result is that many of the powers—I have so far been able to identify 461—relate to Wales in some dimension. The scope that will be available under the Act for the transfer of powers by order will be not unlimited but enormously wide. That being so, the necessity to return to Parliament for primary legislation—the second route to which the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) referred—is accordingly limited.
I move on to what is, in my mind, an even more important consideration. Throughout the Bill there are bases, almost as if they had been included on purpose, though I suspect by oversight, for amplifying the chances of a conflict of laws. I shall give one example. Section 147 of the Local Government Finance Act 1988—one of the items referred to specifically in the Secretary of State's draft order—provides that the Secretary of State mayat any time by order make such supplementary, incidental, consequential or transitional provision as appears to him to be necessary or expedient for the general purposes or any particular purposes of the Act.The provision continues:An order under this section may in particular make provision for amending, repealing or revoking … any provision of an Act passed before or in the same session as this Act.I draw the Secretary of State's attention to this point because I very much doubt whether he or his draftsmen have attended to it to date.
We have an Act—regrettably a Conservative Act—that enables a Secretary of State to make orders, some of them definitely in relation to Wales because the 1988 Act had application to Wales. It provides that an order can amend or change a piece of primary legislation passed by the House. It is not a unique example. Indeed, there are many others.
Power could be devolved, through the Bill, to the assembly to make orders to amend or repeal Acts enacted by the House of Commons. If ever I have heard the basis for a conflict of laws, that is it. It accentuates the necessity 1075 for legal stability so that the grave question of what we are to do about such a conflict can be governed by gradually accumulating precedent in the Judicial Committee.
I fear that the situation is far worse than that. There is a severe—
§ Mr. Letwin
I apologise for not being able to offer much sunshine. I fear that the clouds are gathering. When I come to the end of my remarks, I fear that there will be a rainstorm.
§ Mr. Ron Davies
I am following closely the arguments that the hon. Gentleman is developing. I appreciate the clarity with which he is arguing his case. He is fundamentally wrong, however, if he thinks that clause 22 would allow the Welsh assembly in any way to exercise powers conferred on it by means of secondary legislation to repeal or amend existing primary legislation. His interpretation is wrong.
§ Mr. Letwin
It would be extremely helpful to hear from the Secretary of State how the following articulation does not apply. Clause 22(1)(a) gives the Secretary of State the power to convey powers to the Welsh assembly where, as I understand it, the Secretary of State, or another Secretary of State, already has regulation-making powers. I do not think that that is a matter of contention between the Secretary of State and my right hon. and hon. Friends, although the construction of the right hon. Member for Llanelli would alter the matter.
I have cited an example of a particular order-making power that already exists in an Act and gives a Secretary of State—astonishingly to my mind, but factually—the right to amend Acts preceding the Act under which such power is given. That being so, I cannot understand how it would not follow that power currently exercisable by the Secretary of State for the Environment, Transport and the Regions could not be transferred by order to the Assembly. It falls on the Secretary of State not merely to deny that but to explain what in the Act would stop that happening. Perhaps the right hon. Gentleman will do that when he replies.
Unfortunately, the situation is far worse than I have described. We are faced with a severe democratic deficit. It has been a principle—I, for one, acknowledge it—much espoused by Labour Members that we should adhere to the broad format that has been approved, albeit by a narrow majority, by the people of Wales in a referendum. Surely that format should include adhering to the broad scope of powers that the people, at the time that they voted in the referendum, imagined would be accorded to the assembly. If it merely refers to legislative powers in the widest sense and therefore merely constrains the Government, for example, from providing tax-varying powers, that would be odd. It is surely consistent with the general thesis that, on the contrary, there should be some symmetry between what the Bill permits in respect of the transfer of powers and what the people, when they voted in the referendum, thought would be the case. Surely there ought also to be some symmetry between what the people who first elect the Members of the Assembly think will be the relevant powers and what subsequently transpire to be the powers.
1076 The problem is that that is not the case. If we consider the articulation of clauses 22(1)(a), 22(2) and 23 and schedule 2, it is clear that—I half believe that this must be a matter of mis-drafting—before the Bill becomes an Act it is mandated that the Secretary of State should produce a draft order similar to that already produced, and hence specify what he currently intends to transfer. It is clear that after the Bill becomes an Act it will be no longer necessary for the Secretary of State's list of powers subsequently to be transferred to bear any relation to schedule 2. That is the articulation as I construct it. It is the articulation that is verified by the notes on clauses so far as I can make out. I have heard nothing said by the Secretary of State that would deny that.
The situation is, however, worse than that. We discovered that yesterday in what I thought was an intensely revealing moment of honesty. In an unusual parliamentary occasion we were vouchsafed by Labour Members an explanation of what they had been saying on the doorsteps during the referendum campaign about what the Bill would achieve. We were told in so many words—I think twice but certainly once—by Labour Members that they had told the electorate, and had heard many people say, that the Bill would achieve the end of the possibility of measures such as the poll tax in Wales. It was said that it would not have been possible to bring about the poll tax in Wales had the Bill before us been an Act at that time.
When the Minister summed up, I asked him whether the example that he was using—he said that banding would have been possible in Wales in a different fashion from that in England—demonstrated that he knew what he was talking about, because there was no banding in terms of the poll tax. The Minister then seemed slightly uncomfortable and moved on to another topic, but he failed to note the deep malaise and deep democratic deficit that the exchange revealed. The powers in the Local Government Finance Act 1988, the poll tax Act, under which Secretaries of State, before the Act was amended by the more recent Local Government Finance Acts, were able to make orders—hence the powers that, in principle under clause 22(1)(a), could be transferred—are extraordinarily limited and could by no means have prevented the poll tax.
To be precise, so far as I can determine, the Welsh assembly would have had the following magnificent powers. It would have been able to decide how to treat houses that crossed borders between local government boundaries. Probably only one house per 100,000 is seriously in that position because of the way in which building regulations work. The assembly would have been able to decide how to treat students in part-time—not full-time—education. It would have been able to deal with co-ownership—a rare phenomenon. Finally and most magnificently, it would have been able to deal with how to treat the poll tax for the dead. Among the living, at a rough estimate, 95 per cent. of the population would not have been in the slightest way affected by the assembly.
At this stage of the argument, we have established that the Bill creates a flux that will prevent a stable body of precedent law to solve serious disputes about overlapping and potentially conflicting laws. We have established that the Bill has a hugely wide effect that will, over time, transfer an unknown series of powers that were not announced at the time of the referendum and will not be known to the electors even when they first elect the Members of the Assembly. Furthermore, it would not 1077 have done the major thing Labour Members tell us they announced to the people of Wales at the referendum as an advantage—solving a problem such as the poll tax.
§ Mr. Llwyd
I do not know how much campaigning the hon. Gentleman undertook in Wales during the referendum campaign, but I assure him that one of the accusations that the nationalist party levelled at the Labour party was that the assembly would not prevent things such as the poll tax. That is at variance with what he has said.
§ Mr. Letwin
That is an interesting point and I have no doubt that what the hon. Gentleman says is nothing but the truth. It shows that one set of people were trying to sell the proposal as perfect because it would achieve something—which it will not achieve as so drafted—and that another set of people correctly accused the Bill, as it would have been about to be, of not achieving that result. However, some people must have listened to the Labour party because, as we know, there were far more Labour voters in Wales than Plaid Cymru voters.
§ Mr. Ron Davies
The point that my hon. Friend the Under-Secretary made in the debate yesterday is that the poll tax Act could not have been passed in the way that it was if there had been a Welsh assembly. If the power to implement that Act had been vested in the Welsh assembly at the time, the Act would have had to be different. Implementation would have had to be provided for in the Act itself and it would have had to be passed through this Parliament in its entirety, not relying on the Welsh assembly to implement it by means of secondary legislation.
I shall not embarrass the Secretary of State by reading that part of Hansard that relates to the comments made yesterday by the Under-Secretary, but if he reads it he will find that, although that would have been a much wiser thing for the Under-Secretary to say, it was not what he said. It would have been wiser because it would have been arguable, but it would still have been false.
Under the Local Government Finance Act 1988, it was not necessary to delegate any wide range of powers to any Secretary of State. A remarkable feature of the Act is that almost the only power that it delegates is the one that is most constitutionally offensive to me: the power to alter by amendment certain Acts of Parliament that already exist.
I fear that the situation is yet worse and it tells us much about what is happening in this Bill. The Secretary of State has produced a draft order relating to these clauses. We are told that it is an early draft order. For that we have much to be thankful because the draft order displays either a mechanistic approach, to the point where we must be dealing not with Departments of State but with daleks, or a slap-dash approach to the point where we must be dealing with something that was written late at night by someone overtaxed by overwork.
I shall give some examples. The draft order refers to the Emergency Powers Act 1964 as one of the Acts under which powers will be devolved to the assembly. There is 1078 a minor point that betrays, as so often with minor points, an attitude to drafting. On inspection, the draft order should refer not to that Act, but to the Emergency Powers Act 1920 as amended by the Emergency Powers Act 1964.
Leave that aside. The important point is that the way in which the Emergency Powers Act works is that Her Majesty proclaims an emergency. Subsequently, powers are conferred on a Secretary of State by Orders in Council and he is thereby empowered at high speed to make regulations under those powers, which he lays before Parliament.
The draft order implicitly tells us that that process is to be devolved to the assembly. Which part of it? Manifestly, under clause 22(1)(a), the role played by the Secretary of State. What is being said is that the Welsh assembly will be able to make regulations, which it will presumably have to lay before the House, at a time of emergency.
I do not have the faintest idea how the assembly would go about laying regulations before the House. I doubt whether the Secretary of State has the faintest idea. Beyond that, if the assembly were to lay regulations and the House were to deny the regulations—at a time of emergency of all times—we would have a classic conflict between two democratic bodies.
I cannot imagine that the Welsh Office, the Secretary of State or his colleagues intended to create the opportunity for such a conflict at such a time. It must be the result of having included everything they could think of, bar the kitchen sink.
I say bar the kitchen sink, but hardly. The draft order contains a series of items known as the Burial Acts. The powers under them are to be transferred. In particular, the draft order contains the Burial Act 1852. I admit that I was not previously deeply familiar with that Act. I went to the trouble of looking it up. It is an Act to amendthe Laws concerning the Burial of the Dead in the Metropolis".It contains almost exclusively today section 48, under which Brompton cemetery—not, as far as I am aware, in Wales—may be sold by direction of the Treasury and in the meantime used for interments. Someone has included in the draft order—and laid it before this House—an Act that has not the slightest connection with Wales and never could.
I admit that it is not, in a sense, important because I suppose that the Secretary of State, after these admonitions, will ask some official who is awake and who is not overtaxed by work to go back through the list, to investigate what on earth he has put down and to try to come up with a list that is accurate, relates to Wales and does not contain any constitutional abnormalities. The point is nevertheless important because it shows the attitude with which this has been taken forward and, much more important, the attitude with which it might be taken forward were the Bill to go in this shape to the Queen, without having been amended in the way in which my right hon. Friend the Member for Devizes has suggested.
If my right hon. Friend's amendments are accepted, the House will be able to clarify the points made by the right hon. Member for Llanelli and questions of legislative stability. We would include in the Bill a set of well-considered, applicable Welsh measures so that at least we knew for the time being, until Parliament decided to change its mind in an orderly fashion, what would be 1079 devolved, in a way that is broadly symmetrical with what people expected during the referendum campaign and with what electors expect when they first elect Members.
I expect, alas, that the Government will nevertheless reject the amendments, but if they could pause, it would be good not just for this Parliament and the Welsh assembly, but for the Government's reputation.
§ Mr. Ruane
Thank you, Mr. Lord, for the opportunity to speak in the debate.
I want to speak on the transfer of ministerial functions to the assembly. I believe that it was the overcentralisation of those functions during the past 18 years that led to the growth of a movement for devolution in Wales.
The Tory phenomenon of centralising all power affected not only Wales but the entire United Kingdom. Mrs. Thatcher sat, like an octopus, in London, her tentacles stretched to every corner of the land, searching out alternative power bases. When they were detected, they were mercilessly squeezed and drained of all power. That power was taken to the centre. That happened to the Greater London council, the municipal councils and many functions of local government. Those powers remained at the centre and indeed were enhanced under the previous Prime Minister, the right hon. Member for Huntingdon (Mr. Major).
However, it was in Wales that overcentralisation hit the hardest, and it is in Wales that, after 18 years of Tory rule, we have the worst housing and health, and the lowest pay, in Britain. The key decision makers who presided over that process were not affected by their decisions. They did not use public housing or the national health service. They were cocooned on fat salaries. But the ordinary people in Wales—those who were waiting for hospital treatment, those living in slum conditions in houses in multiple occupation, and those on poverty pay—felt, and still feel, the legacy of bad decision making. The transfer of the powers outlined in the Bill will allow us to tackle those Welsh problems at the grass roots.
The philosophy of devolving power or transferring powers away from the centre and possibly out of one's control—out of Labour control, in this case—is alien to many Conservative Members. They cannot even devolve power and decision making to the grass roots in their party.
§ Mr. Ruane
I shall give way in a moment.
In complete contrast, we have a Secretary of State for Wales, my right hon. Friend the Member for Caerphilly (Mr. Davies), who has worked tirelessly for many years to divest himself of the power that he now has as Secretary of State for Wales.
These actions are taken from a position of political strength. We have one of the largest parliamentary majorities that the country has ever had. The Tories have been wiped off the political map of Wales at council and parliamentary level. Even the Tory pundits say that we shall be in power for another 10 years and yet we have chosen as one of our first pieces of legislation the establishment of an assembly for Wales.
1080 I have reservations about proportional representation, but using a PR system in the assembly elections will mean that Labour may not even control that assembly.
The transfer of ministerial functions to the assembly as outlined in the Government of Wales Bill will, I believe, make for better, more democratic, more accountable government in Wales.
§ Mr. Livsey
I want to make a few points about amendments Nos. 45, 46 and 47. As I interpret it, amendment No. 45 specifies that functions may be transferred to the Welsh assembly only as far as they are exercisable by the Secretary of State—as opposed to functions of Ministers as far as exercisable in relation to Wales, as the Bill states.
Amendment No. 46 seems to allow Her Majesty, by Order in Council, to transfer powers back from the assembly to Ministers of the Crown. Amendment No. 47 removes the requirement for orders varying or revoking powers of the assembly to be approved by the assembly. Those amendments seem to the Liberal Democrats to weaken the powers of the assembly, and we shall not support them.
The amendments seek to limit the powers of the assembly to those exercisable by the Secretary of State. Surely the aim of the Welsh assembly is to devolve to Wales decision-making powers on matters that affect Wales. Those powers are not always exercised by the Secretary of State for Wales. All fields listed in schedule 2 should be transferred, regardless of whether they come under the powers of the Secretary of State for Wales or other Ministers. The amendments would weaken the assembly. If the assembly's powers were limited, the confidence of the Welsh people in the assembly's work would be reduced.
Amendment No. 46 allows functions to be transferred back from the assembly to Westminster by Order in Council. If the assembly existed under the constant threat of having its powers withdrawn, its credibility to take decisions would be damaged. The assembly must have the courage to make tough choices and should not feel hindered by threats from central Government that might be made if we had a Government who did not support devolution. Amendment No. 47 weakens the assembly by removing the right to consider Orders in Council that vary or revoke its powers.
For those of us who support devolution, the assembly is a long-term project. To be successful, it must feel sure that it has a long-term future. In his erudite speech, the hon. Member for West Dorset (Mr. Letwin) spoke about a democratic deficit, but surely the amendments would weaken the assembly's powers. I believe that the democratic deficit lies in the amendments and that the democratic deficit is actually remedied in the assembly.
§ Mr. Rhodri Morgan
I want to expand, briefly, on the remarks I made when I intervened on the right hon. Member for Devizes (Mr. Ancram) when he originally spoke.
The amendments seek to destabilise devolution before it starts, and it would be unhealthy for a new assembly to feel that at any stage its powers could be reversed. Because of 1081 the supremacy of Parliament, the assembly's powers can be reversed, just as in 1972 Stormont was suspended—brought to an end—for 25 years. The supremacy of Parliament ensures that that process can, in theory, take place, but any amendment that injects it into the Bill at this stage seems a deliberate attempt to destabilise the Bill and is, therefore, a destructive amendment—a wrecking amendment, I think it is fair to say—in the psychology of passing the Bill. I strongly oppose amendments Nos. 45, 46 and 47 because they simply seek to downplay the significance and stability of the corpus of power that will be transferred.
I believe we are all agreed that the Bill would not bring about a large measure of devolution. By the standards of devolution of the Government of Ireland Act 1920, or of the Scotland Bill that we are considering for the next few weeks, this is a moderate measure of devolution. I believe that is common ground between all hon. Members.
§ Mr. Ancram
Does the hon. Gentleman envisage, or could he ever envisage, circumstances in which a power or function transferred to the assembly might require to be passed back to the House or to the Secretary of State?
§ Mr. Morgan
Of course—in the circumstances that the right hon. Gentleman has mentioned. As was described by the enormous inverted pyramid created by the long speech by the hon. Member for West Dorset (Mr. Letwin), things can be done in error and may require to be reversed. In so far as this Parliament is supreme, that can be done, and I do not doubt that it is conceivable to construct circumstances in which that could be done. However, the amendments tabled by the right hon. Member for Devizes follow the pattern of the amendments that he tabled last night.
The idea is to destabilise devolution before it has even started and not to give it a fair chance. Devolution requires a fair wind from this House. This is not a large measure of devolution, but we do want it to work—with the united support of the House of Commons. Once we accept that it is going to happen—witness the majorities in the referendum and on Second Reading—there is no point in the continual attempts by the Tories to chip away at it. Why not be constructive once in a while?
The hon. Member for West Dorset spoke of powers being transferred by Order in Council going beyond the powers listed in schedule 2. When the right hon. Member for Devizes was asked for an example of the dangers to which he keeps referring, all he could do was repeat phrases such as "one-way ratchet", "slippery slope", and "thin end of the wedge". All these words have been used since time immemorial to argue against change of any kind—universal suffrage, women's votes, the Great Reform Act 1832. Of course, there is no substance to the argument whatever—
§ Mr. Letwin
I would ask the hon. Gentleman to consider clause 22(1)(a), which provides for the transfer to the assembly ofany function so far as exercisable by a Minister of the Crown in relation to Wales".1082 How is that circumscribed? I would then ask the hon. Gentleman to look at clause 23(2), a related clause not covered by the amendments:Subject to subsection (3), an Order in Council under section 22 may make provision about any function of a Minister of the Crown (including a function conferred or imposed after the passing of this Act)".I should like to know how the hon. Gentleman reconciles that with his assertion that there is no evidence of a wide discretion going well beyond the powers specified in schedule 2.
§ Mr. Morgan
In his speech, the hon. Gentleman contented himself with a general reference to the notes on clauses—
§ Mr. Morgan
I am sorry, but when the hon. Gentleman reads Hansard tomorrow he will see that that is what he did. He did not specify where in the notes on clauses he derived the authority for what he said. Of course, they do not offer any basis for claiming that Orders in Council can take powers extending beyond schedule 2 powers.
§ Mr. Letwin
I am sorry if the hon. Gentleman has misconstrued my remarks—perhaps I was not clear enough. My reference to the notes on clauses was made in response to a point of statutory construction raised by right hon. Member for Llanelli (Mr. Davies)—a quite separate issue.
What the hon. Gentleman is talking about now is covered by the Bill itself. I have already read out to him clauses 22(1)(a) and 23(2). I ask him again how he can possibly deny that they mean what they mean—that they confer the ability to transfer powers by Order in Council beyond the scope of this Act. I remind him of the words:including a function conferred or imposed after the passing of this Act".
§ Mr. Morgan
I repeat: when the hon. Gentleman reads Hansard tomorrow, he will see that he quoted the notes on clauses as his authority.
§ Mr. Denzil Davies
Might I suggest that the answer is that this power is circumscribed by clause 21, which states that there must be another Act of Parliament first.
§ Mr. Morgan
The matter may have to be resolved in the wind-up speeches or in correspondence. Still, the hon. Member for West Dorset attempted to justify what the right hon. Member for Devizes could not justify when asked to demonstrate how the Bill constituted a slippery slope. That justification seemed to be based on the hon. Gentleman's perception that there was a general power to extend the scope of the measure to areas such as the police which are not listed in schedule 2. And the only example the right hon. Member for Devizes could come up with was the row with the leader of Cardiff city council, not a legislative issue at all.
Hence the hon. Member for West Dorset attempted to fill the gap by misconstruing—
§ Mr. Letwin
I do not want to try the patience of the Committee, but I do want to ask the hon. Gentleman to 1083 request clarification from the Secretary of State of the relationship between clauses 21, 22 and 23, and our interpretation of it. We need to know whether the Secretary of State's interpretation is consonant with what I have been saying or with what the right hon. Member for Llanelli says. If the latter is correct, the Secretary of State is no longer in alliance with Plaid Cymru: he is in a truly desperate position, because the whole attempt to allow the progressive devolution of powers under the Bill is skewered. If the Secretary of state claims that the right hon. Member for Llanelli is right and we are wrong, that will constitute a remarkable statement.
§ Mr. Morgan
The hon. Gentleman is being a Jeremiah—positing two impossible positions for the Secretary of State: either there is to be no devolution, or devolution will be so horrific that we must resist the whole Bill. That leaves us unable to construct a Bill of any shape that will be proof against both attacks. Either devolution will go too far, and must be stopped; or the Bill will not contain any powers worth transferring, so we will be left with no Bill. Both propositions are absurd.
Devolution is going to happen, so the Tories should stop their niggling and nitpicking. It is not up to me to seek clarification from the Secretary of State. I am sure that the hon. Member for West Dorset has already asked Ministers to give him clear answers at the end of the debate.
§ Mr. Morgan
That is quite absurd. The Conservatives are continually trying to denigrate and downgrade the process of devolution. We heard it last night, we have heard it again tonight. And their only argument is the slippery slope—which just goes to show that they have no argument. As I have said, all the right hon. Member for Devizes could produce was an argument about the location of the assembly with Cardiff city council—
§ Mr. Morgan
That was the right hon. Gentleman's only example of the slippery slope. It is a false and empty argument. The problem is that the right hon. Gentleman has still not really accepted the fact that the Bill has had its Second Reading, that the referendum has taken place—
§ Mr. Jenkin
The abuse that the hon. Gentleman is heaping on us is in no way justified. Can he give us an example of any country in the world where there are not constant disputes—possibly not always acrimonious—between the various tiers of government to which various responsibilities have been ascribed? That has certainly happened ever since local government was invented in this country. We see that between the members of the European Union and the EU institutions. We see that in the tensions between the Lander and the national Government in Germany. We see that in the United States in the argument about states' rights and the federal Government. Through the process of devolution, we are 1084 setting up a constant tension. It is absurd to suggest that this will be the first example of its kind where tension will never occur. If that is the premise of the Bill, we are going down an extremely dangerous road.
§ Mr. Morgan
I thank the hon. Gentleman for that brief intervention. Nothing that I said could be construed, even by him, as implying that devolution in this or any other case does not require a disputes resolution mechanism. Of course it does. It also requires a resource transfer mechanism. Every other devolution does, as well.
The hon. Gentleman is attempting to deny my argument that the right hon. Member for Devizes failed to provide any example to justify his constant repetition and reliance on the empty argument of the slippery slope, which has been used from time immemorial by people who have no argument, other than to say, "I don't like change and I don't like the Bill. I can't think why I don't like it. My gut instinct tells me I don't like it, but I can't think of an argument, so I'll say it's a slippery slope to something else."
When one considers a Bill, one considers the Bill, not whether it is about something else. That is what we are doing. If the right hon. Gentleman has no better argument than the one-way ratchet, the thin end of the wedge and the slippery slope, he knows that his arguments are empty of consequence.
§ Mr. Owen Paterson (North Shropshire)
The debate has been fascinating. It goes to the heart of the problem that the Government have brought upon themselves. There is no clear idea of what the assembly will be. The Secretary of State assures us frequently that this Parliament is sovereign. That comment is presumably addressed to the 75 per cent. of the electorate who did not vote or voted no.
The Government understand that there is not a whole-hearted welcome in Wales for a major measure of devolution. That is why there are no tax-raising powers, and it is why our friends the nationalists are unhappy with the proposal. They see it as only a start. They have made that clear. Somewhere in the middle there is the Welsh establishment, which is well represented on the Labour Benches. I see those hon. Members weekly in the Select Committee on Welsh Affairs. They have a woolly, bland idea that Wales has a grievance, Wales has been done down over the past 18 years and the creation of an assembly with 60 assembly men—probably superannuated ex-county councillors—will solve all Wales's problems.
The muddle has been brilliantly exposed by my hon. Friend the Member for West Dorset (Mr. Letwin). It is clear in clauses 21 and 22 which, to me—a layman—are contradictory. The Government should not have rushed into their proposals. They should have studied other federal systems. In the United States, there is a clear division of powers between the powers held by the federal states and those of the federal Government in Washington. The position is similar between the Länder and the central Government in Bonn. The powers are clearly defined and there is a balance of powers.
§ Mr. Swayne
Does my hon. Friend accept that although there are much tighter definitions of the division of powers, they still give rise to disputes between the 1085 Länder and the federal Government? We are warned by the hon. Member for Cardiff, West (Mr. Morgan) that we are Jeremiahs and that there is no slippery slope, but in fact there is a slope that will be greased continually by hon. Members below the Gangway on the Opposition Benches to create the grievances and pressures to which my hon. Friend has drawn attention.
§ Mr. Paterson
I whole-heartedly welcome that intervention. I am speaking about Germany and America, two countries where there is a properly constituted federal system. Here, we have a muddle. We will have an assembly in Wales with no powers to raise taxes, and a Parliament in Scotland with tax-raising powers. There is already a major imbalance, with England unhappily in the middle, paying the bills.
I draw attention to another unhappy example that has arisen in recent years—the contrast between the positions of the Czechs and of the Slovaks. For years, the Slovaks built up a grievance and claimed that they were done down, although the Czechs were paying the bills and subsidising them. For years, the Slovaks pushed them, and eventually they pushed the Czechs too far. I can see that happening with Wales.
We must look at the worst case. [Interruption.] When one conducts due diligence, one considers the worst case. In Committee, we should consider the possibilities where we have a different regime—a different Government in power with a majority in the Chamber, or possibly a minority Government. According to various exciting reports, the Secretary of State may be in the assembly and someone else may take his place at Westminster. What happens if another party attains a majority in the assembly? There will be real conflict. If one examines clauses 21 and 22 in the light of a hostile assembly driving against a weak Secretary of State in a minority Government in this Chamber, one can see that it will be fraught.
§ Mr. Wigley
The hon. Gentleman has made several passing comments in this direction. Is it not the case that what he fears is a hostile assembly that is totally out of kilter with a Conservative Government at Westminster? He is trying to organise an easy life for that Conservative Government. He is not concerned with the well-being of Wales.
§ Mr. Paterson
No, I had not considered the possibility. I am considering the possibility of a minority Labour Administration, with a strong nationalist element in the assembly. It will not work. Looking at clauses 21 and 22 under those circumstances, I see major conflict lying ahead. My hon. Friend the Member for New Forest, West (Mr. Swayne) gave us the example of America, where there is a carefully balanced system, yet there are continual problems with transfers of federal funds to make that arrangement work.
The Bill has not been thought through. It is a muddled compromise between trying to assuage the limited number of nationalists, who scored only about 10 per cent. of the poll in the general election—[Interruption.] they got far fewer votes than we did—and the vast majority of the Welsh population, who are not interested in the project 1086 and would prefer the money to be spent on hospitals, schools, roads and their farms, in the current crisis. The third group is the Welsh intelligentsia.
The Secretary of State has not produced a workable compromise. We are right to propose the amendments. The Bill is a woolly experiment disappearing into the future—we do not know where—whereas it should go forth on a firm basis, with clearly defined powers. Any further powers should be passed through a fresh Act, as suggested by the right hon. Member for Llanelli (Mr. Davies). [Interruption.]
§ Mrs. Betty Williams (Conwy)
I have sat patiently, waiting for something to happen, and it has happened with the arrogant statement of the hon. Member for North Shropshire (Mr. Paterson). You have used the word "woolly" twice. You have used the word "woolly" to describe your—
The Second Deputy Chairman
It would be helpful if the hon. Lady would use the correct parliamentary language. It is interesting that when we depart from that, the temperature starts to rise. I would be grateful if the temperature could go down a little and we could get back to the amendment in hand.
§ Mrs. Williams
I apologise to you, Mr. Lord, and to the Committee. I claim to be a fairly new Member, but I shall do my best to use parliamentary language from now on.
The hon. Member for North Shropshire used the word woolly twice. He described the view of his colleagues in the Welsh Affairs Select Committee as woolly. He used the word woolly to describe "this experiment", as he calls it. I take exception to that. I am sure that my hon. Friends also take exception to such language.
My predecessor in the constituency of Conwy was Sir Wyn Roberts, who sits in the other place. I shall quote what he said. Perhaps right hon. and hon. Members on the Opposition Benches would like to take a leaf from his book.
The Second Deputy Chairman
Order. This is an intervention, I take it, not a speech. Interventions should be reasonably brief.
§ Mrs. Williams
May I also ask the hon. Gentleman to correct one thing? He referred to assembly men. I would like him to apologise to the Committee.
§ Mr. Paterson
That was a splendid intervention. The hon. Lady has even managed to get her name on the Annunciator. That must be the intervention of the week award. Many congratulations to her.
Quite seriously, if the hon. Lady has taken exception to the expression woolly, I apologise. I had no intention of insulting any hon. Member or the Welsh Affairs Select Committee. I am one of a very small minority of two on the Welsh Affairs Select Committee who take a different view from the rest. There is an extraordinary consensus 1087 among the rest of the Select Committee who like what is being proposed. I do not and I like to express my views clearly, but if the hon. Lady has taken exception to the word woolly, I am quite happy to withdraw it.
§ Mr. Letwin
I shall not make a lengthy intervention. I ask my hon. Friend to withdraw his withdrawal. When the Secretary of State and a former Secretary of State are wholly at variance about the fundamental meaning of clauses 21 and 22, I see no opportunity to use any word other than woolly.
§ Mr. Paterson
I am pleased that my hon. Friend agrees with what I am trying to express. How about totally muddled? The goal is muddled. The mechanism is muddled. The Bill is muddled. Would that satisfy my hon. Friend?
§ Mr. Paterson
I urge the House to support the Conservative amendments. We must have the start of this venture clearly marked down in black and white, as we do not know where it will go. The examples that I have given show that we need a clear, firm start.
§ Mr. Dalyell
I did not intervene in the speech of the hon. Member for North Shropshire (Mr. Paterson) because I knew that my intervention would be too long, and that the same fate would befall me as befell my hon. Friend the Member for Conwy (Mrs. Williams).
It is often said in the House that an hon. Member will excuse another if he does not follow what was said by a previous hon. Member. The hon. Gentleman will excuse me if I follow him very precisely. It was some six years ago that the all-party heritage group from the House—it was not a freebie, I hasten to say, as we paid for it ourselves—went to Czechoslovakia, led by the hon. Member for South Staffordshire (Sir P. Cormack), who is now shadow deputy Leader of the House. We had the opportunity of a two-and-a-half-hour meeting—not long before he died—with the late Alexander Dubcek. He was just about to go off on one of the many visits that he had to make to Bratislava, but he explained in detail some of the problems of the Slovaks and the Czechs. If I were scratched very far, this is one of the things that I fear about the proposed legislation: that it will lead, eventually, to the same divorce—I think that that is the right word—as between the Czech Republic and Slovakia. It is a very serious matter.
We had a taste in the debate of things to come. I listened to my hon. Friend the Member for Cardiff, West (Mr. Morgan). If he were a Member of the Welsh assembly, do not think for a moment from the tone of what he was saying that he would surrender all sorts of things that he believes—genuinely and rightly from his point of view—are in the province of the Welsh assembly.
I come back to a point that was made on 13 January, at column 210 of the Official Report, by the hon. Member for New Forest, West (Mr. Swayne). A great deal depends on an assumption of friendliness and amity. I wish that that were true, because the truth of the matter is that we are back to 1977–79, when Enoch Powell coined the phrase that the whole debate had the smell of death about it. As my right hon. Friend the Member for Llanelli 1088 (Mr. Davies) said to me—rightly and sotto voce—there is, of course, a great difference on this occasion. The Treasury Bench has the votes, which it did not have last time. My right hon. Friend the Secretary of State for Wales is in a much stronger position than were John Smith and James Callaghan, so that makes a difference. We have just had a taste of all the difficulties that are exhumed by parliamentary debate.
§ Mr. Rhodri Morgan
I think that my hon. Friend is referring in part to me. I do not know how carefully he was listening to my remarks, or whether he was here, but in answer to the hon. Member for North Essex (Mr. Jenkin), who was making a rather noisy sedentary intervention, I specifically said that no measure of devolution could possibly work without an effective disputes resolution mechanism. My hon. Friend cannot possibly reconcile that with what he said about my remarks. He referred to me as believing that devolution was dependent on friendly relations between this Parliament and the Welsh assembly. I ask my hon. Friend to withdraw what he was implying in regard to what I said. I was anxious to ensure that there is an effective disputes resolution mechanism.
§ Mr. Dalyell
No offence was meant whatever. There really was not. All I was saying was that people in the assembly who are as vigorous as my hon. Friend will demand certain things. We have to leave it at that. In a sense, I was paying my hon. Friend a back-handed compliment about his vigour.
I must not intrude at any length. I ask one question of my right hon. Friend the Secretary of State. In the Official Report of 12 January, at column 66, there is a well-sculptured speech by the right hon. Member for Haltemprice and Howden (Mr. Davis), who is Chairman of the Public Accounts Committee. Frankly, after reading about three paragraphs into his speech—I speak as a member of the Public Accounts Committee long ago—I thought that it had the imprimatur of the Comptroller and Auditor General, or at least his acquiescence. After I had read and re-read it, I suspected that it was carefully considered and, as the Chairman of the Public Accounts Committee is certainly entitled to do, that it was cleared with the Comptroller and Auditor General.
Where is the authority of the Public Accounts Committee of the House of Commons in all this? If the House of Commons is to be responsible for raising the money for Scotland and Wales, surely the House of Commons has some capacity—indeed, duty—to be able to monitor it. I am not sure of the answer to that question, but I believe that the question is raised in these amendments. I shall be extremely interested in my right hon. Friend's answer, at his convenience, as to precisely what is the authority of the Public Accounts Committee in relation to expenditure that has been devolved to the Welsh assembly.
§ Mr. John Hayes (South Holland and The Deepings)
I know Wales quite well, and many of the people whom I know in Wales are at a loss to know why the Government have pursued this policy. The part of Wales that I know best is Clwyd, whose people voted against the assembly in quite heavy numbers. As I say, the people there are at a loss to understand the Government's driving motivation in pursuing the assembly.
1089 There could be one of three principal motives for the measure. First, the measure could be designed mainly to pacify those who want to pursue independence. It could be an electoral move; a politically motivated step. Secondly, it could be a genuine step; a deliberate step towards independence; part of a process—a notion to which I shall return. Thirdly, it could be a misguided attempt to strengthen the Union.
The first of those motives would exacerbate the problem rather than solve it. Hon. Members may say that the fire of independence has already been lit, but I am reminded that for most of the first part of its history Plaid Cymru was more concerned with eisteddfods than with assemblies. Its first leader was principally concerned with the cultural identity of Wales. [Interruption.] My hon. Friends will acknowledge that Welsh nationalism has always been a rather different animal from Scots nationalism. It has always been concerned largely—I will not say solely—with the cultural identity of Wales, not always with its political identity, in the same way as Scots nationalism has. But perhaps that is because the Welsh are a more lyrical, musical and literary people, although some Scots may disagree with that, including those on the Opposition Front Bench. If the motive is to pacify nationalism, it will fail, because once the flame is lit, it will burn like a torch, and the demand will be for more and more power for the assembly.
If the motive is to go along the road towards independence, let us have an honest acceptance of that now. Let us have a frank admission that this is part of a process. That precise term was used from the Labour Benches last Friday, when we debated an English Parliament. We were told that constitutional reform was evolutionary; that we were not debating an end product in the Welsh assembly and the Scottish Parliament; that they were part of a process. That was the exact phrase used. If that is so, let us know where the process is leading. Let us know the destination to which we are travelling, rather than obscure it in a cloud of deception.
§ Mr. Letwin
Does my hon. Friend agree that this is one of the tests of whether the second proposition that he is advancing in his most interesting speech applies? The test is whether the Secretary of State in his reply explains that the right hon. Member for Member for Llanelli (Mr. Davies), whom I mistakenly accused of having been a previous Secretary of State, is right in his interpretation of clause 21 and in relation to clause 22, or whether my right hon. Friend the Member for Devizes (Mr. Ancram), other hon. Friends and I are right.
§ Mr. Hayes
That is precisely the point. We are waiting for an explanation from the Secretary of State of where he stands between those two positions. People in Wales are not sure. They are confused and bewildered. They do not know whether the Government see this as an end in itself or as part of a process. This may well raise false expectations and hopes.
§ Mr. John Smith
Is the hon. Gentleman aware of what he and his hon. Friends are doing to the interests of the Conservative party in Wales this evening? They are destroying them. The hon. Gentleman is in danger of 1090 wiping the Conservative party off the political map. Why do not they concentrate constructively on the amendments?
§ Mr. Hayes
I suggest that the answer to that question is simple: the Conservative party in Wales, as in the United Kingdom, is driven not by expediency but by principle. If the price of that is unfortunate electoral consequences, so be it. If we were to stray from those honestly held principles, we would be abandoning those who voted for us in Wales for many years and who continue to do so.
§ Mr. Hayes
In a moment. I am in full flow.
When Plaid Cymru Members and the Welsh Liberal Democrat party talk to us about the extinction of the Welsh Conservative party, let them remember that in terms of votes cast, the Conservative party did rather better in Wales than some people would now like to suggest.
§ The Chairman of Ways and Means (Sir Alan Haselhurst)
Order. As long as the hon. Gentleman's full flow is down the centre of the river bed, that will be satisfactory, but it would be out of order if he departed too far from the scope of the amendments.
§ Mr. Hayes
I shall return to a Welsh tributary.
If the second of the propositions that I advanced applies, let us have an honest answer from the Secretary of State this evening. If it is the third, as has been suggested by Labour Members, which is to strengthen the Act of Union, why, if the devolution of power was the principal objective, were the existing structures of local democracy ignored? Why was it not considered appropriate to look sensibly at a devolution of power through the existing local authorities and, if necessary, to constitute—
§ The Chairman
Order. The hon. Gentleman must speak within the terms of the amendment. He cannot make a Second Reading speech. His last few sentences certainly struck me as being the material of Second Reading, not of the amendment.
§ Mr. Swayne
Does my hon. Friend agree that amendments Nos. 46 and 47 potentially arrest the process by providing an escape mechanism; a means by which powers can be taken back where necessary? The thrust of some remarks has been that this is a one-way process. The amendments that we have tabled are a solution to that.
§ Mr. Hayes
The thrust of the amendments is the issue of the ratchet, which was described earlier. If the Government are intent on a process that leads towards independence, clearly they will have considerable objection to the amendments. They will object to them because they will interrupt the process that I have described and provide an escape route. On the other hand, if they are more interested in pacifying nationalists, they 1091 may have a more liberal view of the amendments. If, on my third proposition, their aim is to strengthen the Union, how could they possibly object to the amendments?
§ Mr. Ron Davies
The hon. Gentleman's argument appears to be that devolution should not be a one-way process and that there should be a mechanism for powers to be transferred back from the assembly to the unitary Government. That, I understand, is his case. Does he think it reasonable that when that reverse flow takes place, it should happen with the consent of the assembly?
§ Mr. Hayes
I am sorry, Sir Alan.
I believe that the Secretary of State was asking whether I thought that the process by which powers were transferred between Parliament and the Welsh assembly should be subject to the further consent of the Welsh people. There is considerable doubt about how that could be expressed. There are four possible ways. It could be expressed through the action of this Parliament, which includes many Welsh Members. It could be put to the assembly. It could be the subject of further direct consultation, given the precedent that has been established by the referendum. Alternatively, it could be subject to proper democratic pressure from the current institutions of local democracy.
It is appropriate to consider why the Government chose not to empower districts, counties and parishes in Wales. By creating the Welsh assembly as an alternative and perhaps fixing its powers more rigidly than those of local government—the relationship between local government and central Government having always been fluid and pragmatic, with shifting balances—they may be disadvantaging the existing local structures, just as they are disadvantaging Parliament and the people of Wales.
§ Mr. Ron Davies
I thought that the hon. Gentleman's reply to my question was measured, sensible and considered. He said that the specific consent of the Welsh people would be needed to any proposal to transfer powers back from the assembly to the unitary Government. Why does he support an amendment that would not allow for any of that and would allow powers to be taken back from the assembly without the consent of the assembly or the people and on the basis of a one-and-a-half-hour debate and a vote in the House of Commons?
§ Mr. Letwin
Does my hon. Friend agree that the Secretary of State is espousing a remarkable doctrine? He is arguing that unlimited further transfers, beyond the scope of schedule 2, should be permitted without the 1092 consent of the Welsh people, but that transfers back should not be permitted without such explicit consent in some form that he has not described. Does not that suggest a deep asymmetry? His view seems to be that under no circumstances could the Welsh people democratically object to having further powers thrust on the assembly.
§ Mr. Hayes
Through his unwise interventions, the Secretary of State has revealed a prejudice towards a one-way transfer of power and a determination to frustrate the will of the people if it falls foul of his objectives.
It is possible that the three propositions that I advanced at the start of my speech do not explain why the Welsh assembly is to be established. Perhaps the Labour party fiercely opposes the amendments because its vision of the United Kingdom constitution and the political system in these islands is entirely different from the vision of the Conservative party and that of the vast majority of the people of Wales and the United Kingdom. Perhaps the Government want a Europe of the regions, with massive power centralised in the institutions of the European Union, supported by acquiescent regions. Perhaps the Labour party considers Wales and Scotland to be merely regions, like the east midlands or the west midlands. What does that say to the people of Wales and Scotland? They are to be made pawns in a bigger game about which, once again, the Government have dishonestly failed to reveal their true intentions.
§ Mr. Rowlands
I have been listening intently to the debate and trying to work out where we are and where we are going. Amendment No. 45 says:Functions in the fields specified in Schedule 2, so far as exercisable by the Secretary of State for Wales are hereby transferred to the Assembly.As I understand that amendment, it would transfer every function currently exercised by the Secretary of State to the assembly. That is interesting, because I thought—
§ Mr. Letwin
I should like to correct a point. The amendment refers to schedule 2, and, therefore, not to every function exercised by the Secretary of State but to every function in schedule 2.
§ Mr. Rowlands
I suggest that the hon. Gentleman looks at schedule 2, where he will find that the fields specified are extremely extensive. Pretty well every field is covered.
§ Mr. Rowlands
Yes, it is. Amendment No. 45 does not qualify the transfer of the Secretary of State's powers. It does not qualify, for example, the functions that he exercises along with other Ministers—although even I thought that my right hon. Friend and the Government were proposing that in certain aspects. Curiously, the Opposition are going further—at least on the surface—than even my right hon. Friend suggested on Second Reading.
I shall take this opportunity to ask my right hon. Friend the Secretary of State to clarify which of his powers will 1093 not be transferred. In the explanatory note on the draft order, paragraph 1.9 of the White Paper is repeated. It says:The Government does not propose to transfer to the Assembly responsibility for functions … These include foreign affairs, defence, taxation, macro-economic policy, policy on fiscal and common markets, social security and broadcasting.However, on Second Reading, in a series of interventions, my right hon. Friend the Secretary of State identified some other areas in which there would not necessarily be a transfer. I think that he will recall that, but, in case he does not, I shall remind him. He said thatit is likely that the draft order that we shall produce, certainly in good time for the Committee stage, when we can have something more than a wide-ranging discussion on these issues, will make it clear that matters relating to animal or human health are likely to be reserved. Currently, the sort of order referred to by my right hon. Friend is made jointly by the Minister of Agriculture and me, as Secretary of State for Wales. Such an order is likely to continue, without those powers being transferred to the Welsh Assembly."—[Official Report, 8 December 1997; Vol. 302, c. 755.]So there is a third category of responsibilities of the Secretary of State, other than those described in the White Paper, which relates to joint responsibilities of the Secretary of State and other Ministers, and which would not necessarily be transferred.
As far as I can see, amendment No. 45 does not make such a qualification. The third category of powers would be "hereby transferred", as the amendment says. That is very interesting. Is it a massive conversion by the Opposition? I notice that the hon. Member for West Dorset (Mr. Letwin) is hunting through the Bill.
§ Mr. Letwin
I am following the hon. Gentleman's remarks with the greatest possible interest. I cannot understand where he is going in the light of, for example, paragraph 5 of the draft order, which makes specific reference to education Acts, in line with schedule 2, where, of course, the Secretary of State for Wales works in conjunction with the Secretary of State for Education and Employment. By contrast, the amendment specifically refers only to the Secretary of State for Wales exercising the functions. At worst, the amendment is the same, and at best, it is more limited than the transfer of powers in the draft order.
§ Mr. Rowlands
No, the amendment refers to all the Secretary of State's powers, including those he may exercise jointly with others. The amendment does not qualify the powers.
§ Mr. Jenkin
I am sure that the hon. Gentleman is aware that we have not yet come to schedule 2. Obviously, if the House chose to amend the Bill as we propose, it would be appropriate to amend schedule 2—possibly quite substantially. It is important to establish exactly what will be transferred, and what is transferable, and to limit it so that there is what they call in constitutional jargon "a settlement" between the Welsh assembly and Parliament, and not a constantly moving feast which can be interpreted by one party or another differently and inevitably result in a dispute.
§ Mr. Rowlands
Amendments to schedule 2 are not before us. If the Opposition amendments were accepted, the Opposition would be handing over to the assembly every single responsibility that the Secretary of State for Wales can currently use.
The debate offers an opportunity to ask my right hon. Friend the Secretary of State to clarify the areas of responsibility which he says he shares with other Ministers, and which may be reserved and not transferred.
My right hon. Friend made a reference that is recorded at column 755 of the Official Report for 8 December, and there was a further elaboration of that policy on 9 December, which is recorded at columns 831–833. My right hon. Friend may remember the exchanges that we had then.
In another intervention, a whole interesting area of reserved functions was mentioned, and my right hon. Friend said:Such an order is likely to continue, without those powers being transferred to the Welsh Assembly."—[Official Report, 8 December 1997; Vol. 320, c. 755.]He also said that there would be a statement to that effect in the draft order. I cannot find it, so will he tell us when he comes to reply—or even sooner; perhaps he would like to tell us now—what the areas are in which he, acting jointly with other Ministers, intends to reserve the powers rather than handing them over to the Welsh assembly? That is not clear from the draft transfer order.
I know that my right hon. Friend will probably reply, "Everything that I am not transferring." That might be his immediate answer, but in his comments recorded at column 755 he specifically said that he would identify the powers for us. I hope that he will seek to do so, because that would clarify the role and position of the remaining powers of the Secretary of State.
I am slightly puzzled, because one of the examples cited in those exchanges, especially on 9 December, was the power that the Secretary of State might or might not hold in respect of dealing with, say, meat hygiene and meat safety. I had given an illustration involving section 16 of the Food Safety Act 1990, and my right hon. Friend intervened to say that that was a classic example of a power that would not be transferred, but would be reserved for Ministers. It would be held by the Secretary of State and not transferred to the assembly.
If that is the case, what puzzles me is the fact that the Food Safety Act 1990 is listed in the draft of the Transfer of Functions (National Assembly for Wales) Order as being transferred to the assembly. Are we are to reserve such a power? Will my right hon. Friend look into that question? I was surprised to see the Food Safety Act—the very legislation under which the meat safety provisions and the powers over meat on the bone were, as I thought, reserved—listed in the draft order with matters to be transferred to the assembly.
Putting aside the nonsense that we have heard from the Conservatives, it would be useful if my right hon. Friend would give us more information. He has already kindly given us a long list for the transfer of functions. It would now be useful if he could identify clearly not so much the macro-economic aspects that, rightly, will be reserved for Westminster, but the important grey area for which 1095 Ministers will have joint responsibility—health charges, for example, and human and animal welfare, which may stay on a United Kingdom basis.
§ Mr. Ron Davies
I am grateful to my hon. Friend for allowing me to intervene, and I apologise in advance if I cannot give him the answers to his questions in full detail before the end of the debate. I suspect that time will not allow me to do so. However, I shall give him a three-part answer now, and if what I say later fails to satisfy him, I shall write giving him as much of the information that he has requested as I can.
I refer my hon. Friend to the draft Transfer of Functions (National Assembly for Wales) Order, which I made available yesterday. It is very much a draft order. I acknowledge that, and, as my hon. Friend will see in the explanatory note, it will be subject to amendment. Perhaps additional Acts will be referred; perhaps some of the provisions will be removed. It is a draft order, and is there to be discussed.
As I said earlier, the final draft will not be made available until the autumn. There will be a further process. We have about 15 months to trawl through the Acts and ensure that we have a clear compendium of precisely what will be transferred. Then that will be subject to debate in the House.
I must tell my hon. Friend that I am currently discussing such matters with my ministerial colleagues. He will understand that there are many responsibilities that are discharged jointly, and we are now working through them. I assure him that before a final decision is taken there will be a complete and comprehensive list. In the meantime, I shall endeavour to ensure that he has all the information that he seeks.
§ Mr. Rowlands
I am very grateful to my right hon. Friend. I hope that none of my comments appears to constitute a criticism of, or a complaint about, the nature of the draft order; I merely want to ensure that we understand what we are seeking to transfer and what will be in reserve, and I think that there is a third category.
I was rather puzzled by one point. Does my right hon. Friend, like me, consider that amendment No. 45 would convey a much wider, more sweeping power? It appears to me that the Opposition want us to hand over all the powers to the assembly. If my interpretation of the amendment is correct, Welsh nationalists ought to support it, but I have doubts.
On Second Reading, a specific illustration was given to enable us to work out the relationship between assembly powers and the Secretary of State's powers, held jointly by Ministers. The Food Safety Act 1990 suddenly made an appearance. It is possible that other order-making powers in the Act could be legitimately transferred to the assembly, but the power involved was a key power: it was on the basis of section 16 that we banned beef on the bone. When we speculated whether it would have been within the power of the assembly not to proceed with such action, we were told clearly by my right hon. Friend that that would not be the case—that this was a reserved power. Yet I find the same legislation popping up in the transfer order.
I accept that this is very much a first shot and that, as my right hon. Friend has said, there will be plenty of revisions; but we have certainly heard some rubbish from 1096 Opposition Members during our debates. I have tried to follow their speeches closely, but I do not think that they have developed their case, and have not "worried" the legislation through to ensure that we get it right. I hope that, from now on, we can expect a much more constructive kind of worrying than we have heard during most of today's debate.
§ Mr. Evans
As my right hon. Friend the Member for Devizes (Mr. Ancram) said, we want devolution to strengthen the United Kingdom. That was what was said at the time of the referendum. The Secretary of State said himself in the foreword to the White Paper "A Voice for Wales":The Government's programme of constitutional change gives the people of Wales a new opportunity. An opportunity to have our own democratically-elected Assembly within a strong United Kingdom.We do not want the Bill—and clause 21 in particular—to weaken the integrity of the Union, but we believe that, if the Bill is not amended, that is exactly what will happen.
I am grateful to the Secretary of State for assuring us, after issuing the draft transfer order—and it is a draft—that he will consult before the final version appears in, perhaps, 12 or 15 months' time, as is stated in the press release accompanying the draft, and as he has just told us. That is just as well, in view of what my hon. Friend the Member for West Dorset (Mr. Letwin) said about the order. I assume that the questions that he raised will be clarified, and that amendments will be made during the consultation period.
We did not table our amendments with the aim of presenting obstacles to a process that is taking place in the House, and which will lead—all else being equal—to the establishment of a Welsh assembly. I think that the hon. Member for Cardiff, West (Mr. Morgan) and the right hon. Member for Caernarfon (Mr. Wigley) would like us to wave the Bill through without giving it the close scrutiny that it deserves.
Amendments that give further powers to the assembly are only ever seen as pro-devolution. Our amendments are aimed at improving the Bill. Anyone who tables such amendments will have examined the Bill carefully, and listened to what the people of Wales said during the referendum campaign. We are still of a mind that the people of Wales spoke clearly on 18 September, when only one in four supported the Bill.
As the Prime Minister said on the steps of 10 Downing street, we must pay careful attention to what the people said. We must also look at the Bill, and decide whether it marries up to what the Welsh people really want.
If our amendments are not made, the voice of Wales will be thwarted. They would allow us to avoid what even Labour Members know is a road to certain conflict. We had a taster yesterday, with calls from the nationalists for greater legislative power to go to the assembly, even before it has a site or the first brick is laid.
Does anyone in Westminster really believe that, when the assembly first meets, there will not be a call—perhaps on the first day, in one of the opening speeches—for it to have greater power than the Secretary of State has granted? We have tabled the amendments to ensure that there will be proper scrutiny and that power does not flow only one way. We must have a proper regard to what the people of Wales really want.
§ 9 pm
§ Mr. Wigley
The hon. Gentleman says that there should be proper regard to what the people of Wales want. The hon. Member for South Holland and The Deepings (Mr. Hayes) listed four ways in which there could be a legitimisation of taking powers from the assembly. What is the official Conservative line on the way in which the people of Wales ought to give their blessing on any handing back of powers?
§ Mr. Evans
I am grateful to the right hon. Gentleman, but he has not paid due regard to what the people of Wales have already said. Yesterday, he called for more powers to be given to the assembly than were ever stated in the White Paper or argued for in the referendum campaign. In the light of the closeness of the vote, had we gone down the route that he advocates we would not be having this debate, because there would have been a majority against devolution in Wales.
We must be careful about what we do. If we follow the route laid out in the amendments, we will have a device in place to ensure that there is not a one-way ratchet effect, although I am sure that the right hon. Gentleman would much prefer that.
§ Mr. Evans
The Minister surely appreciates that there could be occasions on which the House might need to take back certain powers—as with emergency powers—even by order, because there could be conflict, especially in a proportional representation system. One cannot properly envisage the conflicts that might arise, because we do not operate under that system here; but if occasions arose on which we thought that we needed those powers, and we did not have them, there could be drastic effects for the people of Wales.
We have been accused of being Jeremiahs because we have taken account of the worst case scenario. Surely that is what we must do, to ensure for the benefit of the Welsh people that we have a suitable device available. It may not be used on a daily basis under the legislation.
We cannot know whether a future Government of whatever complexion may consider that what we have decided today is not the flavour of the day, and we cannot handcuff future Governments, but we can put those powers in place, to be used if necessary. If the amendments are not made, we will have no opportunity whatever to effect the changes that may be necessary.
§ Mr. Evans
Some conflict might arise within the assembly so that it could not exercise its powers over the functioning of, for example, the health service. Conflicts might arise between the various political parties that may be represented in the assembly under the proposed system of proportional representation, and the assembly could be 1098 blocked or reach a stalemate. We have only to look at New Zealand. After the election there, it took two months to sort out the composition of the Government because of the system of proportional representation. Who knows how long it might take after elections for the assembly for the wheeling and dealing to reach a conclusion? After all, proportional representation gives disproportionate power to small groups. At least under first past the post, we know what we have got after an election, although wheeling and dealing may go on beforehand.
The assembly could have severe problems deciding who would be the First Secretary. We know that the Secretary of State for Wales is clear in his mind about who will be the First Secretary after the elections, but the assembly may have other ideas. That is the sort of problem that might arise.
§ Mr. Wigley
I have followed the hon. Gentleman's argument with considerable interest. He said that circumstances could arise in which a Conservative Government, if we have the misfortune to have one in future, might wish to use orders to intervene. He said a few moments ago that such an intervention would be in line with the wishes of the Welsh people. Would he determine the wishes of the Welsh people by holding another referendum; on the basis of opinion expressed in the assembly; or by consulting a small handful of Conservative Members in Westminster, who might form a minority of representatives from Wales in this House but would be used to give legitimacy to overruling the decision of the referendum?
§ Mr. Evans
The right hon. Gentleman should know all about minorities, as he represents only 9 per cent. of the people who voted in the general election. At least the Conservatives got twice that support. I can assure the House that that is not an admission that the Conservatives have been converted to proportional representation, because we will fight that tooth and nail. We all know why the right hon. Gentleman wishes to pursue that line of argument, but it deviates from the subject of our amendments and I shall not join him. However, he must concede that circumstances could arise, such as public health scares or epidemics—[Interruption.] I am describing a worst case scenario, but that could happen.
I can understand why pro-devolution Members would prefer that the route to independence allowed only one-way traffic, along the M4 from London to Cardiff—if that is where the assembly will be—without any red lights. I remember, on Second Reading, that it was said that that journey would be a magical mystery tour. Conservative Members said that it would not, because we knew exactly where we would end up and we did not wish to go there. That is why we have tabled these amendments.
1099 The right hon. Member for Llanelli (Mr. Davies) and the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) have referred to clause 21 which is, some would argue, contradictory to certain provisions in clause 22. It is doubtful whether it would take primary legislation to achieve further transfers of power to Cardiff or whether that could be done through Orders in Council.
Both those options are possible. The Secretary of State may wish to give certain powers to the assembly, which would require primary legislation. However, he may have other powers that he will not immediately pass to the assembly, and he may decide at a future date that it is appropriate to give those powers to the assembly. That would be done by Orders in Council, so both systems could work side by side.
We tabled the amendments to ensure that there is two-way traffic in the future. We want to prevent the assembly blocking the possibility of Westminster taking back, by orders, powers previously transferred to the assembly. Earlier in the debate, the Secretary of State asked one of my hon. Friends how he would consult if those powers had to be taken back. It was almost an admission that the assembly could stop Westminster taking back, by orders, powers transferred by orders. I hope that the Secretary of State will clarify that when he replies to the debate.
Will there be only one-way traffic in terms of powers transferred via Orders in Council? Will we always have to use primary legislation to take back powers transferred to the assembly, either in Committee or through votes on the Floor of the House without debate?
§ Mr. Rowlands
I am sorry to interrupt the hon. Gentleman's flow. Amendment No. 45 asks that all the Secretary of State's responsibilities and functions be transferred in accordance with schedule 2. As the Opposition have not tabled a single amendment to schedule 2, may we assume that they now wish to transfer all the functions contained in schedule 2 from the Secretary of State to the assembly?
§ Mr. Evans
As my hon. Friend the Member for North Essex (Mr. Jenkin) said earlier, we have not yet come to schedule 2 and the Bill has not completed its passage through both Houses of Parliament. If our amendments are passed today, we shall have an opportunity to ensure that we look carefully at the powers contained in schedule 2. It is important to place a limit on the powers that are being transferred in the Bill so there is not a drip, drip, drip, a constant ratchet and a one-way passage of powers from this House to the Welsh assembly.
We tabled the amendments in a constructive manner and we ask the Secretary of State to look carefully at our reasons for doing so. I hope that he will clarify some of the questions that have been raised on both sides of the House. We do not aim to wreck the Bill, but the only way to improve it is to ensure that there is two-way traffic.
§ Mr. Ron Davies
One thing that the hon. Member for Ribble Valley (Mr. Evans) certainly does not want is a stable arrangement between the unitary Government and the Cardiff assembly. He seeks to insert into the Bill a mechanism that will always give a whip hand to the unitary Government to take back powers from the Welsh assembly by means of a one-and-a-half hour debate on an 1100 order, without the agreement of the Welsh assembly. That is behind the amendment. I assure the hon. Gentleman that I understand his motives very well. This is a last-ditch attempt to frustrate devolution and I shall reject the amendment.
§ Mr. Davies
If the right hon. Gentleman will restrain himself for a moment, I shall deal with some of his comments in due course. Time is pressing and I have many comments to make. I want to reply to all the points that have been made in the debate. However, I give way.
§ Mr. Ancram
I am grateful to the right hon. Gentleman and I shall be as brief as possible. I am sure he would admit that I gave way to him on every occasion he asked me to do so. He says that we are trying to ensure that the return of any powers is achieved by a procedure that would allow for no amendments and only a one-and-a-half-hour debate. Does he agree that, under the Bill as it stands, that is the procedure for the transfer of powers from himself and from the House to the Welsh assembly? How does he justify it in that context?
§ Mr. Davies
That procedure is used by this sovereign Parliament. The right hon. Gentleman proposes to take powers away from the assembly, without consulting and without the consent of the assembly. That is the point between us and I shall return to it later.
I wish to express my gratitude to my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands), who is taking a close interest in our proceedings. I am mightily relieved when I hear him speak in unreserved support of the Government's position—it makes a pleasant and refreshing change and is therefore welcome. He will be pleased to learn that my understanding of the intent and effect of the Opposition amendments is exactly the same as his.
My hon. Friend the Member for Linlithgow (Mr. Dalyell) asked a specific question about provisions relating to the Public Accounts Committee. The Bill makes substantial provision for the PAC to have a role in monitoring the finances of the assembly. I refer my hon. Friend to clause 101 and notify him of the fact that that clause provides for the Comptroller and Auditor General to carry out an examination of the assembly's finances and, if appropriate, to report back to the PAC. His point about taxes being raised by Parliament, and Parliament having the opportunity to scrutinise expenditure, is perfectly correct and we have reflected that in the legislation.
At the start of the debate, my right hon. Friend the Member for Llanelli (Mr. Davies) caused a great deal of excitement among Opposition Members when he asked a question about the respective purposes of clauses 21 and 22. It might be helpful if I told the Committee that clauses 21 and 22 provide the process whereby powers will be handed to the assembly and that that process can take one of two forms. It can take the form in clause 21, whereby an Act of Parliament establishes particular powers which are given to the assembly and whereby the powers are specified in the Act of Parliament. That is a free-standing provision. Clause 22 provides a different mechanism, 1101 whereby other powers can be transferred to the assembly by means of an order. Those powers will be specified either in the transfer order—a draft of which is available to hon. Members—or in any future order, which will specify the nature of those powers. Clauses 21 and 22 provide the process, and the description of the powers to be transferred to the assembly will be found either on the face of the primary legislation, or in the transfer order under clause 22. I hope that that answers my right hon. Friend's question.
§ Mr. Denzil Davies
I think that it does, and I am grateful. May I give an example which, although it relates to a later amendment, we may be able to clear up now? Let us assume, as is the case, that the Secretary of State for Home Affairs has functions and powers relating to prisons that can be described as "relating to Wales", in that he has those functions in respect of Wales. If that is the case, is my right hon. Friend saying that the functions and powers of the Secretary of State for Home Affairs in relation to prisons in respect of Wales can be transferred to the Welsh assembly by order?
§ Mr. Ron Davies
Yes, my right hon. Friend is absolutely correct. That is the purpose of clause 22(1)(a).
§ Mr. Davies
I was about to come to the right hon. Gentleman's points, but I shall give way. He made a lengthy speech, he has had his colleague, the hon. Member for Ribble Valley make a second speech from the Opposition Front Bench and I understand that his other colleague, the hon. Member for North Essex (Mr. Jenkin), wants to make a further speech from the Opposition Front Bench. There is limited time available and I want to reply to all the many questions that have been asked. I hope that if I give way to the right hon. Gentleman, as I shall, I shall not be berated if there is insufficient time left for me to answer all the questions asked.
§ Mr. Ancram
I am grateful to the right hon. Gentleman for giving way, but he himself has said that this is a matter of some concern and dispute. It is a matter of interpretation. I want to be clear on the procedure. Just now the right hon. Gentleman referred to two powers, one in clause 21 and one in clause 22. Is it not the case that the power under clause 22 stems from the power given under clause 21? Clause 21 refers to functions that are transferredby virtue of this Act".The order power is givenby virtue of this Actand, therefore, without clause 21, that order power would not exist. Clause 21 also stipulates that there can be other Acts that transfer power, so there are two forms of Act under clause 21 which can transfer power, but the powers under clause 22, and those relating to further orders under clause 23, stem ultimately from the power given under clause 21 by the wordsby virtue of this Act".
§ Mr. Davies
That is not what I said. I made it clear that clause 21 is a free-standing provision which allows 1102 powers to be transferred to the assembly by definition at some point in the future. [Interruption.] The right hon. Gentleman has asked a question, but now he is badgering me from a sedentary position. I am perfectly happy to give him an answer. If he thinks that this is the most important matter before us—we have been debating it for the best part of three hours—I shall concentrate on it. The answer is quite clear. Clause 21 specifies that the assembly may acquire powers by means of primary legislation. Those powers will be specified in that legislation. Clause 22 provides for a different mechanism—
§ Mr. Davies
The position is quite clear and I have repeated it time after time to the right hon. Gentleman. If he wants to have a further discussion later, I shall make him an offer. I will meet him downstairs in the Strangers Bar at about five past 10 o'clock. I will buy him a pint and spend at least 10 minutes taking him through the details. I am afraid that that is the best offer I can make this evening, but some of my hon. Friends are muttering that it is too generous.
§ Mr. Ron Davies
I will give way to my right hon. Friend, but I also want to deal with the points raised by the right hon. Member for Devizes (Mr. Ancram) and by the hon. Member for West Dorset (Mr. Letwin). I am sure, however, that my right hon. Friend has an even more interesting question for me.
§ Mr. Denzil Davies
It is the same question. Let me try to get it absolutely right. What my right hon. Friend is saying is different from what is said in the Bill. He is saying that the assembly shall have the functions that are, in effect, transferred to it either by an Act of Parliament or by an order. That is not what the two clauses state. Clause 21 says that the assemblyshall have the functions which are … transferred … by virtue of this Act".It does not say that it shall have functions that are transferred one way or another, but that is what my right hon. Friend is saying. If he tells me that the draftsman has obviously thought otherwise, I will accept that for now, but perhaps he could at least assure me that that draftsman will have another look at the clauses.
§ Mr. Ron Davies
I am satisfied that the clauses are perfectly clear, but let me try to explain them yet again to my right hon. Friend. Clause 21—I hope you will not rule me out of order for commenting on it, Sir Alan, because, technically, clause 21 already stands part of the Bill—refers to powers that are being transferred to the assembly by the legislation. That is what clause 21(1)(a) means. Clause 21(1)(b) refers to the fact that Acts in the future can also transfer powers to the assembly. Those powers will be specified in that future legislation.
1103 Clause 22 deals with an entirely different mechanism, but it has caused much excitement on the Conservative Benches. It contains the provision that allows for powers that are currently or in the future vested in Ministers of the Crown to be transferred by order to the assembly. I hope that we have now got the matter absolutely right.
§ Mr. Davies
I have spoken for just 10 minutes, but all I have done is take interventions. I will not fall for the hon. Gentleman's intervention. I will try to be as courteous and helpful as possible when I deal with the points raised by the hon. Gentleman, but many questions have been asked and I do not want to be berated for failing to answer them. The hon. Gentleman had a long time to make his own case. There are answers to the questions that he raised and I want to get those answers on the record. If time allows, I shall certainly give way to him.
The right hon. Member for Devizes spoke about three tests of devolution—the test of flexibility, whether devolution would secure the Union and whether devolution would ensure stability in the arrangements between the unitary Government and the devolved government. I believe that the Bill meets perfectly all three tests. I recommend the Committee to reject the amendments because I believe that they fundamentally weaken the proposals that are set out in the Bill.
We had an interesting exchange earlier, with the right hon. Member for Devizes berating me and hoping, perhaps, that I would throw up my hands in horror and confess. I accept, however, that what we are proposing represents a substantial change. I acknowledge that it will change the relationship and the way in which the British Government have operated for a long time. The unitary nature of the British Government will be changed because we are devolving powers to Cardiff.
§ Mr. Davies
Yes, or Swansea. I referred to Cardiff metaphorically. The same would apply to Abercynon or Llandudno. I apologise to everyone in Wales.
We are talking about the transfer of powers to Cardiff. There is a question before us, and that is that the intention behind the amendments is to give authority to the British Government to take powers at any time in future by means of a one-and-half-hour debate, without recourse to the people of Wales, Welsh representatives or the assembly. Powers would be taken back on the basis of a short debate by order without the consent of the assembly. That is the intention behind the amendments. I am opposed to that. We shall resist the amendments because we realise that there is a new settlement.
We have heard a great deal about the supremacy of Parliament. Let me again assure the Committee that we are not for one moment questioning the sovereignty 1104 of this Parliament. I acknowledged yesterday, as did the Committee when it defeated one of the amendments tabled by the right hon. Member for Devizes, that it will always be open to the House of Commons to abolish the assembly, if it so wishes, or to remove powers from it. If that is to be done, it should be done by means of primary legislation, not on the basis of a oneand-a-half-hour debate and a Division on the Floor of the House at 11.30 pm. That is the difference between us.
The right hon. Member for Devizes was talking earlier with a sense of outrage about a stand-off that would exist between Parliament and the assembly, which would be devastating to the Union. He argued that it would create tension and frustration if the British Parliament were not able to take powers back from the assembly.
§ Mr. Davies
Of course it is.
How does the right hon. Gentleman think that a provision of the sort that he is suggesting, whereby powers could be taken unilaterally on the basis of a one-and-a-half-hour debate, would add to the stability of the assembly? How does he think that that would resolve conflict and build confidence, trust and a mutually respectful relationship between the assembly and Parliament? That would not be the outcome. That is the essential flaw in the right hon. Gentleman's argument.
I move on to the question of a one-way street. No one is suggesting that powers should not be transferred from the assembly. My hon. Friend the Member for Merthyr Tydfil and Rhymney raised some interesting questions about the nature of some of the powers that may be devolved to the assembly. It may be in the light of circumstances that I cannot foresee and do not want to speculate on at the moment that at some stage in future, there will be perfectly good reasons for some powers being repatriated or handed back to the unitary Government.
If there are good arguments, they will be accepted by the assembly. It may be for the better government of Wales and the better discharge of functions that the assembly will want to transfer powers back to the unitary Government. If that is the position, that is fine. That will be done by agreement. It will be done with respect being given to the assembly through the Bill and to the sovereignty of Parliament, always acknowledging that Parliament can exercise its sovereignty. However, the right hon. Member for Devizes is seeking to introduce a process whereby Parliament alone can take back powers without reference to the assembly, and I propose to resist that.
§ Mr. Ancram
The right hon. Gentleman is making another speech of the sort that I have heard him make before, where he talks about the sovereignty of Parliament and its power to take things back if it wants to, and where he says that this is not a one-way street because Parliament can exercise that sovereignty. If he is so certain in his assertions, why will he not accept the amendments?
§ Mr. Davies
I resist the right hon. Gentleman's amendments because they would allow powers to be taken away from the assembly, without its having the opportunity to express a view. I stand on that principle. This may be a fundamental difference between us. Let us acknowledge it. The right hon. Gentleman and the Conservative Opposition want to emasculate the assembly at the outset. They want unilateral powers—whenever it suits their convenience, whenever there is a policy decision and whenever the people of Wales venture to take a decision to suit their circumstances—to deny the assembly the opportunity to make such a judgment. That is the difference between us.
§ Mr. Ancram
Has a Scot ever offered a Welshman a pint?
I will make the right hon. Gentleman an offer. He is worried about the assembly not being consulted. That relates to amendment No. 47. If it were withdrawn, his objection would have to be withdrawn. Will he therefore accept the other two amendments?
§ Mr. Davies
I accept the right hon. Gentleman's offer in this sense. If he wishes to withdraw the amendment, to reflect on the debate and to accept the objections of hon. Members on both sides of the Committee, and if he understands that it is not acceptable either to the Government or to Welsh Members to weaken the Bill fundamentally at the outset, I will have further discussions, perhaps over the second of our drinks downstairs, to find out how to accommodate his concerns. I hope that he will have the good grace even at this late hour to realise that it is not in the interests of the Committee or of his party to pursue the amendment.
The hon. Member for West Dorset made an entertaining speech. It is the first time that I have had the pleasure of listening to him and I thoroughly enjoyed it. I congratulate him on the force and clarity of his arguments and on the entertainment value of his speech. I make those comments genuinely. However, he did have a little mischief in mind. He did not strictly stick to the indisputable facts, which are clear.
The hon. Gentleman made great play of the transfer order and said that it could not be taken seriously because it contained deficiencies. Of course it does. In the statement that I published with the transfer order, I said:The Transfer of Functions (National Assembly for Wales) Order is the first stage in a trawl through the more than three hundred Acts of Parliament that are relevant.The Transfer Order is an important document. Much work remains to be done on the detail over the next twelve months and there will be wide-ranging consultation before the final draft of the order is drawn up.The Transfer Order will inform the debates and committee stages of the Government of Wales Bill as it progresses through Parliament, and I judged it important to get a working draft into the public domain as soon as possible.That is a fair statement of the Government's position. I wanted to ensure that there was a first trawl and that right hon. and hon. Members who had raised fundamental 1106 questions about the nature of the transfer order had the opportunity to see the draft order, get a feel of it and understand the process that we were undertaking.
I acknowledge that I do not have any difficulty in producing a draft and that it has imperfections. I have produced the draft order because it is a complicated and detailed process and we want the order to be examined in public debate.
It may be a new feature of Government that we have a public and open debate and an admission that not everything can be got right initially, particularly when we deal with the huge transfer of power to a new democratic institution. Given the experience that we have had in politics—given certainly my experience in the House in the past 15 years—a little humility and recognition by Ministers that they do not always get everything right on the first occasion would be welcome.
The hon. Member for West Dorset then spoke about the assembly and suggested that a wide range of powers would be vested in it to allow it to repeal or amend primary legislation.
§ Mr. Davies
That was certainly the message that the hon. Member for West Dorset gave in his speech, but what he said is not the case. I acknowledge that some powers transferred to the assembly will allow it to amend primary legislation, but the hon. Gentleman suggested that there would be a range of powers that would allow the assembly to repeal existing primary legislation. He used that word several times in his speech and I am sure that a look at Hansard tomorrow will clarify that.
I have only one power of which I am aware. There may be others, but I am advised that I have one power only—the power given to Ministers by the previous Government when they passed the Deregulation and Contracting Out Act 1994. They gave Ministers substantial powers to repeal existing primary legislation. I happen to be the beneficiary of those powers at the moment. In theory, I could transfer to the assembly the power to repeal primary legislation, but I know that the hon. Member for West Dorset has studied the transfer order closely, and he must realise that, as that document shows, it is not the Government's policy to transfer to the assembly those powers to repeal primary legislation.
§ Mr. Letwin
Will the right hon. Gentleman clarify two points? First, does he accept that he has transferred in the draft transfer order—if we are to take the document seriously, notwithstanding the imperfections that he has admitted—the Local Government Finance Act 1988 provisions to which I referred and which specifically also give him the power to repeal and amend?
§ Mr. Davies
Yes, that is the case, but the hon. Gentleman made great play of section 157—[Interruption.] I am sorry; section 147. As I understand it, those powers are exhausted because they were the specific powers that were necessary to deal with the repeal of the poll tax. That is the advice that I have been given and I am happy to enter into correspondence with the hon. Gentleman.
§ Mr. Davies
I am afraid that there will be a queue of people at the Bar downstairs if I have to buy a pint for 1107 everyone who intervenes on me tonight, and if I continue to give way, I shall not finish my speech. I shall try to accommodate any genuine anxieties that the hon. Gentleman has.
As is clear, amendment No. 45 limits the ministerial functions that are transferred to the assembly to the fields specified in schedule 2, in so far as they are exercisable by the Secretary of State for Wales. The purpose of the amendment is to make the point that only an Act of Parliament should confer functions on the assembly—in other words, the fast track will not be allowed.
Amazingly, amendment No. 46 converts the power that is currently in clause 22 to transfer functions from Ministers to the assembly to a power to transfer functions from the assembly to Ministers—
§ Mr. Davies
It is anti-devolution. It is a reversal of the process that the Bill seeks to achieve.
Amendment No. 47 removes the requirement for the assembly to agree to an order under clause 22 which amends or revokes a previous order. Under amendments Nos. 46 and 47, functions could be removed from the assembly by secondary legislation without the assembly having a direct say in the matter. The right hon. Member for Devizes says that is right; I know that it is not right, and that is the difference between us.
The amendment means that the transfer of functions will lack precision. If its purpose is to ensure that the Committee and the wider world know what the functions of the assembly are to be, it will fail. The transfer order—the working draft of which I have published—will list precisely which functions, under which Acts, are transferred to the assembly. The Government's approach gives clarity. The Opposition amendment is a recipe for confusion and disputes, for years to come, about the powers that are currently vested in the Secretary of State.
The amendment would transfer all my functions in the field specified in schedule 2, but that is not what the Government propose. The White Paper made it plain that almost all my functions would be transferred to the assembly, but that some functions—my hon. Friend the Member for Merthyr Tydfil and Rhymney explored that earlier—would not be so transferred.
An example that might interest the right hon. Member for Devizes is my function in advising Her Majesty the Queen on some appointments. That is why the draft transfer order says that we are considering not transferring to the assembly functions to do with the appointment of the chief inspector of schools in Wales under the School Inspections Act 1996, and of the Local Government Commissioner for Wales under the Local Government Act 1988.
It is also true that the Government are considering transferring to the assembly some functions that are not exercised by me. That was the point that my right hon. Friend the Member for Llanelli explored with me earlier. A further example concerns joint powers. At present, the legislation requires that I act jointly with my colleagues in other Departments. The general policy that the Government are adopting is to eliminate the requirement for joint action whenever that is practical, so that the assembly would be free to exercise such powers on its own for Wales. When we decide that that is the 1108 right course to follow, the transfer order will need to transfer to the assembly not just my functions, but those of my ministerial colleagues with respect to Wales.
§ Mr. Cynog Dafis (Ceredigion)
Why does the Secretary of State want to retain the power to choose the chief inspector of schools for Wales? Why on earth should not the assembly have that power?
§ Mr. Davies
Because as I said, that matter is the responsibility of Her Majesty the Queen, and it would require changes of another kind. I know that the hon. Gentleman shares my view of these matters—[Laughter.]—at least I hope he does.
The Committee should also note that not all the functions that I exercise fall neatly into one or other of the categories in schedule 2. By way of example, I offer certain functions that I exercise with respect to civil defence and to local authorities, under the Civil Defence Act 1948. There is no reason why the assembly should not inherit such powers, but the amendment might have the effect of preventing that.
The Government are unwilling to rule out the possibility of future transfers of ministerial functions to the assembly. At the moment, the Government have no plans to make further orders. I have repeatedly stressed that devolution is a process, not an event. Clause 22 affords Parliament ample opportunity for debate, although the affirmative resolution procedure would apply, if any future Government proposed the transfer to the assembly of functions other than those currently vested in my office. It is true that there will be a debate of one and a half hours, but the power will still rest with the House to approve—
§ Mr. Davies
Thousands of pieces of secondary legislation go through Parliament every year without debate or amendment. The right hon. Gentleman should stop harping on about how the world will come crashing down if the powers exercised by Ministers in respect of Wales are handed over to a democratic authority in Wales following proper debate and a vote in the House of Commons. That does not undermine our democracy; it certainly changes our constitutional arrangements. But the people of this country voted in large measure on 1 May for constitutional change.
§ Mr. Rowlands
It appears that there will be two options—Acts of Parliament and orders. The notes on clauses say that some modest functions in future may be appropriately devolved by order. That implies that some modesty will attend the order-making power, and that substantial transfers of power will be effected by Acts of Parliament. The transfer of prisons from the Home Office involves a fairly substantial power. Would that be done by order or by primary legislation?
§ Mr. Davies
I cannot answer that question; we are not proposing it anyway. Some future Government might decide that it was necessary to transfer substantial additional powers to the Welsh assembly—
§ Mr. Ron Davies
That is not what I am proposing, but a future Government might consider it. If so, I am sure 1109 that the Government of the day and Parliament would say, "Hang on, you cannot do that by order: it is a substantial shift."
§ Mr. Ron Davies
Of course it is, but legislation must be acted on in the light of political common sense. Meanwhile, the Bill contains a mechanism for a transfer order dealing with law-and-order issues and other non-controversial matters that a Government of the future might believe could be transferred by order after a one-and-a-half hour debate. Other, larger areas of responsibility may need primary legislation, however.
We are trying to be reasonable and flexible. The Government want a stable constitutional settlement. Amendment No. 46, with its sister amendment No. 47, provides for instability. Functions could be removed from the assembly almost at the behest of the Government of the day. That is why clause 22(4)(b) provides some level of security for the assembly—a lock, as it were. Amendment No. 47 would remove that lock. That is why I was not prepared to accept the earlier suggestion by the right hon. Member for Devizes.
The hon. Member for North Essex seemed to agree with the Government's approach to authority and stability when he told the Committee yesterday,We do not want the relationship between Westminster and the … assembly … to be one in which Westminster is constantly interfering and reasserting its supremacy."—[Official Report, 20 January 1998; Vol. 304, c. 875.]How can he reconcile that statement with the Opposition's present argument that, on the basis of a one-and-a-half hour debate and a vote in the House of Commons, any function can be stripped away from the Welsh assembly? The hon. Gentleman is being entirely inconsistent in this matter.
I agree with the hon. Gentleman, however, that if there were to be any future reduction in the assembly's powers, it should be an infrequent occurrence. The Opposition amendments leave the door open to the Westminster Government to reduce the assembly's functions by means of secondary legislation at any time.
The Leader of the Opposition has gone on record as saying that a Government led by him would not seek to abolish the assembly without the consent of the Welsh people. The amendments allow for the possibility of virtual abolition, but by the back door, making the removal of the assembly's functions by secondary legislation much easier. I ask the right hon. Member for Devizes to reflect on whether that is consistent with his party's policy, as set out by his right hon. Friend.
If the Opposition press amendments Nos. 45, 46 and 47 to a Division, I urge the Committee to join me in voting against them.
§ Mr. Jenkin
I did indeed utter the words that the Secretary of State so kindly quoted. It must have been a good speech for him to take the trouble to quote me at such length. I am delighted that he did so.
1110 The amendments have exposed what we most feared about the Bill—that we do not have a proposed settlement between the Westminster Parliament and the Welsh assembly. We have a constantly movable feast, which will provoke the misunderstandings and discords—
§ Mr. Jenkin
It is not what we want. We want a clean and clear settlement. That is what amendment No. 45 proposes. It proposes that we transfer defined and definable powers to the assembly, as set out in schedule 2. It may take amendments to schedule 2 to shape that into what the Government intend to devolve.
As the Bill stands, we will never know from week to week what powers the Secretary of State wants to devolve. He keeps telling us that devolution is a process, not an event. The Bill makes that clear. However, it is like trying to reassure Charles I, when Parliament was seeking powers to control taxes, that the matter of parliamentary supremacy was a process, not an event. Little did he know—or perhaps he did know—that it would conclude with the chopping off of his head. We are dealing in the Bill with a rolling programme.
We shall press amendment No. 45 to a Division because, through the draft transfer order, which I am grateful to the Secretary of State for providing, the Bill provides for an initial major transfer of powers, but it goes on to explain that those powers are not exhaustive, and furthermore that the powers can be transferred only one way at the behest of Parliament, and cannot be transferred the other way without the consent of the assembly. We have the prospect of unlimited transfers.
I do not know whether the Secretary of State realised what he was saying in his winding-up speech. He implied that tax-raising powers could be transferred by order. [Interruption.] Yes, that is what he said. If he reads Hansard, he will realise that that is what he implied.
§ Mr. Ron Davies
The hon. Gentleman cannot get away with that. I did not imply that for one moment. In reply to a question raised by my right hon. Friend the Member for Llanelli (Mr. Davies) about whether tax-raising powers could be transferred by order, I said that that was exactly the type of big issue which any future Government would have to consider dealing with by means of primary legislation.
§ Mr. Jenkin
The fact is that the Bill contains the authority to transfer those powers by order. That is what we find so unsatisfactory. We want a settled arrangement between the Welsh assembly and the Westminster Parliament, and the Bill simply does not provide that.
There is another matter which we have settled by provoking debate through the amendments. The great advertisement for the Welsh assembly—that it could have stopped the poll tax—is a fraudulent claim. The Secretary of State has been going around saying that which is not, because the order-making powers in the Local Government Finance Act 1988, as my hon. Friend the Member for West Dorset (Mr. Letwin) so ably demonstrated, are extremely limited and relate to very limited issues. Hypothetically, even if such powers had been transferred to a Welsh assembly, they would not have stopped Parliament imposing the poll tax.
1111 We are left with an important question: are we setting up a contract between the Welsh assembly elected by the Welsh people and the Westminster Parliament, a contract which both sides will understand and comprehend, so that, when we come to the disputes that are inevitable between two layers of government, at least the parameters will be understood, and as the disputes are resolved the terms of that resolution will be accepted? Or are we creating a situation where the expectations being raised for the Welsh assembly are far beyond what the Westminster Parliament can practically deliver, aided and abetted by the political opportunism of the Secretary of State and his party, resulting inevitably in disappointment, disillusion and further disputes and playing into the hands of the nationalists, who are, of course, the smiling figures on the sidelines waiting to pick up the pieces of the Secretary of State's scheme?
The Secretary of State's main objection to our amendments was with amendment No. 47. It is interesting that the drafting of clause 21 is curiously elliptical and led the right hon. Member for Llanelli (Mr. Davies) to a different understanding of what it means. If the interpretation that the Secretary of State places on clause 21 as it relates to clause 22 is accepted, a certain amount of wording in clause 21(b) is superfluous. Clause 21 states:The Assembly shall have the functions which are—(a) transferred to, or made exercisable by, the Assembly by virtue of this Act",when in fact the Bill transfers no such powers. That is a shortcoming in the proposed legislation, possibly created in the rush to get the Bill drafted.
§ Mr. Ron Davies
In which case, why did the hon. Gentleman not table an amendment to improve the Bill?
§ Mr. Jenkin
We have. We wish to transfer powers by virtue of the Bill. We are seeking to fulfil what the clause appears to promise but in fact does not, because no powers are transferred by virtue of the Act, except by the order-making power that the Secretary of State will use. As my right hon. Friend the Member for Devizes (Mr. Ancram) said, if we accept a fresh structure for the Bill, we do not need amendment No. 47.
If this hotch-potch of powers is to be transferred by order, and there is the rather absurd notion that somehow the Welsh assembly in the midst of a dispute about its powers would willingly give up powers that had already been granted to it by order, we need a simple mechanism to reflect that what is sauce for the goose is sauce for the gander. If it is right to transfer powers to the assembly by order, it is right to transfer powers back by order.
None of the new powers that would be transferred by order has necessarily been agreed by the assembly or by referendum. Why, then, should not those powers be transferred back without the agreement of a referendum or the assembly? As the Secretary of State rightly keeps reminding the Committee, the House of Commons remains sovereign. Allowing powers that can be given to be taken away in the same fashion merely creates symmetry in the Bill.
I suspect that the reason for the Secretary of State's deep love for the clause is the same as the motivation for the Bill. It is about appeasing nationalism. Just as he has framed a devolution policy to try to capture nationalist 1112 votes by running before the wind, the clause is necessary to stop the nationalists being driven up the wall with frustration.
§ Mr. Ieuan Wyn Jones
If the hon. Gentleman is given the undertaking that there will be no frustration among Plaid Cymru Members, will he withdraw the amendment?
§ Mr. Jenkin
We will withdraw the amendment if we can be certain that the Bill will confer a defined and clear structure of devolved power on the Welsh assembly. Unfortunately, that is not the case. The Government's opposition to amendment No. 45 sets up a structure which allows for a state of flux to exist between Westminster and the assembly. We need a power to balance the order-making power to transfer powers to the assembly. We therefore stand by the amendments and we shall vote on amendment No. 45.
§ Question put, That the amendment be made:—
§ The Committee divided: Ayes 147, Noes 370.1116
|Division No.137]||[9.57 pm|
|Ainsworth, Peter (E Surrey)||Gale, Roger|
|Amess, David||Garnier, Edward|
|Ancram, Rt Hon Michael||Gibb, Nick|
|Arbuthnot, James||Gill, Christopher|
|Atkinson, David (Bour'mth E)||Gillan, Mrs Cheryl|
|Atkinson, Peter (Hexham)||Goodlad, Rt Hon Sir Alastair|
|Baldry, Tony||Gorman, Mrs Teresa|
|Bercow, John||Green, Damian|
|Beresford, Sir Paul||Greenway, John|
|Blunt, Crispin||Grieve, Dominic|
|Body, Sir Richard||Hague, Rt Hon William|
|Boswell, Tim||Hamilton, Rt Hon Sir Archie|
|Bottomley, Peter (Worthing W)||Hammond, Philip|
|Bottomley, Rt Hon Mrs Virginia||Hawkins, Nick|
|Brady, Graham||Hayes, John|
|Brazier, Julian||Heathcoat-Amory, Rt Hon David|
|Brooke, Rt Hon Peter||Heseltine, Rt Hon Michael|
|Browning, Mrs Angela||Hogg, Rt Hon Douglas|
|Bruce, Ian (S Dorset)||Horam, John|
|Burns, Simon||Howard, Rt Hon Michael|
|Butterfill, John||Howarth, Gerald (Aldershot)|
|Cash, William||Hunter, Andrew|
|Chapman, Sir Sydney (Chipping Barnet)||Jack, Rt Hon Michael|
|Jackson, Robert (Wantage)|
|Chope, Christopher||Jenkin, Bernard|
|Clappison, James||Johnson Smith, Rt Hon Sir Geoffrey|
|Clark, Rt Hon Alan (Kensington)|
|Clarke, Rt Hon Kenneth (Rushcliffe)||Key, Robert|
|King, Rt Hon Tom (Bridgwater)|
|Collins, Tim||Kirkbride, Miss Julie|
|Colvin, Michael||Laing, Mrs Eleanor|
|Cran, James||Lait, Mrs Jacqui|
|Curry, Rt Hon David||Lansley, Andrew|
|Davies, Quentin (Grantham)||Leigh, Edward|
|Davis, Rt Hon David (Haltemprice)||Letwin, Oliver|
|Day, Stephen||Lewis, Dr Julian (New Forest E)|
|Duncan, Alan||Lidington, David|
|Duncan Smith, Iain||Lilley, Rt Hon Peter|
|Emery, Rt Hon Sir Peter||Lloyd, Rt Hon Sir Peter (Fareham)|
|Evans, Nigel||Loughton, Tim|
|Faber, David||Luff, Peter|
|Fabricant, Michael||Lyell, Rt Hon Sir Nicholas|
|Fallon, Michael||MacGregor, Rt Hon John|
|Flight, Howard||McIntosh, Miss Anne|
|Forth, Rt Hon Eric||MacKay, Andrew|
|Fowler, Rt Hon Sir Norman||Maclean, Rt Hon David|
|Fox, Dr Liam||McLoughlin, Patrick|
|Fraser, Christopher||Madel, Sir David|
|Major, Rt Hon John||Spring, Richard|
|Malins, Humfrey||Stanley, Rt Hon Sir John|
|Maples, John||Steen, Anthony|
|Mates, Michael||Streeter, Gary|
|Maude, Rt Hon Francis||Swayne, Desmond|
|May, Mrs Theresa||Syms, Robert|
|Moss, Malcolm||Tapsell, Sir Peter|
|Nicholls, Patrick||Taylor, Ian (Esher & Walton)|
|Norman, Archie||Taylor, John M (Solihull)|
|Ottaway, Richard||Taylor, Sir Teddy|
|Page, Richard||Townend, John|
|Paice, James||Tredinnick, David|
|Paterson, Owen||Trend, Michael|
|Pickles, Eric||Tyrie, Andrew|
|Prior, David||Walter, Robert|
|Randall, John||Wardle, Charles|
|Redwood, Rt Hon John||Whittngdale, John|
|Widdecombe, Rt Hon Miss Ann|
|Robathan, Andrew||Wilkinson, John|
|Robertson, Laurence (Tewk'b'ry)||Willetts David|
|Roe, Mrs Marion (Broxbourne)||Wilshire David|
|Ruffley, David||Winterton, Mrs Ann (Congleton)|
|St Aubyn, Nick||Winterton, Nicholas (Macclesfield)|
|Sayeed, Jonathan||Woodward, Shaun|
|Shephard, Rt Hon Mrs Gillian||Yeo, Tim|
|Shepherd, Richard||Young, Rt Hon Sir George|
|Simpson, Keith (Mid-Norfolk)|
|Soames, Nicholas||Tellers for the Ayes:|
|Spelman, Mrs Caroline||Mr. Oliver Heald and|
|Spicer, Sir Michael||Mr. Nigel Waterson.|
|Abbott, Ms Diane||Caborn, Richard|
|Ainger, Nick||Campbell, Alan (Tynemouth)|
|Ainsworth, Robert (Cov'try NE)||Campbell, Mrs Anne (C'bridge)|
|Alexander, Douglas||Campbell, Menzies (NE Fife)|
|Allan, Richard||Campbell, Ronnie (Blyth V)|
|Anderson, Donald (Swansea E)||Campbell-Savours, Dale|
|Armstrong, Ms Hilary||Canavan, Dennis|
|Ashdown, Rt Hon Paddy||Caplin, Ivor|
|Ashton, Joe||Casale, Roger|
|Atherton, Ms Candy||Chapman, Ben (Wirral S)|
|Atkins, Charlotte||Chaytor, David|
|Ballard, Mrs Jackie||Chidgey, David|
|Banks, Tony||Chisholm, Malcolm|
|Barnes, Harry||Church, Ms Judith|
|Barron, Kevin||Clapham, Michael|
|Battle, John||Clark, Rt Hon Dr David (S Shields)|
|Bayley, Hugh||Clark, Dr Lynda (Edinburgh Pentlands)|
|Begg, Miss Anne||Clarke, Eric (Midlothian)|
|Beith, Rt Hon A J||Clarke, Tony (Northampton S)|
|Bell, Martin (Tatton)||Clwyd, Ann|
|Benn, Rt Hon Tony||Coaker, Vernon|
|Bennett, Andrew F||Coffey, Ms Ann|
|Bermingham, Gerald||Coleman, Iain|
|Berry, Roger||Colman, Tony|
|Best, Harold||Cook, Frank (Stockton N)|
|Betts, Clive||Cooper, Yvette|
|Blackman, Liz||Corston, Ms Jean|
|Blears, Ms Hazel||Cousins, Jim|
|Borrow, David||Cranston, Ross|
|Bradley, Peter (The Wrekin)||Crausby, David|
|Bradshaw, Ben||Cryer, Mrs Ann (Keighley)|
|Brand, Dr Peter||Cummings, John|
|Breed, Colin||Cunliffe, Lawrence|
|Brinton, Mrs Helen||Cunningham, Jim (Cov'try S)|
|Brown, Rt Hon Nick (Newcastle E)||Dafis, Cynog|
|Brown, Russell (Dumfries)||Dalyell, Tam|
|Browne, Desmond||Davey, Edward (Kingston)|
|Bruce, Malcolm (Gordon)||Davey, Valerie (Bristol W)|
|Buck, Ms Karen||Davidson, Ian|
|Burden, Richard||Davies, Rt Hon Denzil (Llanelli)|
|Burgon, Colin||Davies, Rt Hon Ron (Caerphilly)|
|Burstow, Paul||Davis, Terry (B'ham Hodge H)|
|Butler, Mrs Christine||Dawson, Hilton|
|Dean, Mrs Janet||Hurst, Alan|
|Denham, John||Hutton, John|
|Dewar, Rt Hon Donald||Iddon, Dr Brian|
|Dismore, Andrew||Jackson, Ms Glenda (Hampstead)|
|Dobbin, Jim||Jamieson, David|
|Dobson, Rt Hon Frank||Jenkins, Brian|
|Donohoe, Brian H||Johnson, Alan (Hull W & Hessle)|
|Doran, Frank||Johnson, Miss Melanie (Welwyn Hatfield)|
|Eagle, Angela (Wallasey)||Jones, Mrs Fiona (Newark)|
|Eagle, Maria (L'pool Garston)||Jones, Helen (Warrington N)|
|Edwards, Huw||Jones, leuan Wyn (Ynys Môn)|
|Efford, Clive||Jones, Ms Jenny (Wolverh'ton SW)|
|Ellman, Mrs Louise|
|Ennis, Jeff||Jones, Jon Owen (Cardiff C)|
|Etherington, Bill||Jones, Dr Lynne (Selly Oak)|
|Feam, Ronnie||Jones, Martyn (Clwyd S)|
|Field, Rt Hon Frank||Jones, Nigel (Cheltenham)|
|Fitzpatrick, Jim||Jowell, Ms Tessa|
|Fitzsimons, Lorna||Kaufman, Rt Hon Gerald|
|Flint, Caroline||Keeble, Ms Sally|
|Flynn, Paul||Keen, Alan (Feltham & Heston)|
|Follett, Barbara||Keen, Ann (Brentford & Isleworth)|
|Foster, Rt Hon Derek||Keetch, Paul|
|Foster, Don (Bath)||Kelly, Ms Ruth|
|Foster, Michael Jabez (Hastings)||Kemp, Fraser|
|Foster, Michael J (Worcester)||Kennedy, Jane (Wavertree)|
|Fyfe, Maria||Khabra, Piara S|
|Galloway, George||Kidney, David|
|Gapes, Mike||King, Andy (Rugby & Kenilworth)|
|Gardiner, Barry||King, Ms Oona (Bethnal Green)|
|George, Andrew (St Ives)||Kirkwood, Archy|
|George, Bruce (Walsall S)||Kumar, Dr Ashok|
|Gibson, Dr Ian||Ladyman, Dr Stephen|
|Gilroy, Mrs Linda||Lawrence, Ms Jackie|
|Godman, Norman A||Laxton, Bob|
|Godsiff, Roger||Leslie, Christopher|
|Goggins, Paul||Levitt, Tom|
|Golding, Mrs Llin||Lewis, Ivan (Bury S)|
|Gordon, Mrs Eileen||Lewis, Terry (Worsley)|
|Gorrie, Donald||Linton, Martin|
|Grant, Bernie||Livingstone, Ken|
|Griffiths, Win (Bridgend)||Livsey, Richard|
|Grocott, Bruce||Llwyd, Elfyn|
|Grogan, John||Lock, David|
|Hain, Peter||Love, Andrew|
|Hall, Mike (Weaver Vale)||McAllion, John|
|Hall, Patrick (Bedford)||McAvoy, Thomas|
|Hamilton, Fabian (Leeds NE)||McCafferty, Ms Chris|
|Hanson, David||McCartney, Ian (Makerfield)|
|Harman, Rt Hon Ms Harriet||McDonagh, Siobhain|
|Harris, Dr Evan||McDonnell, John|
|Harvey, Nick||McFall, John|
|Heal, Mrs Sylvia||McGuire, Mrs Anne|
|Healey, John||McIsaac, Shona|
|Heath, David (Somerton & Frome)||McKenna, Mrs Rosemary|
|Henderson, Ivan (Harwich)||Mackinlay, Andrew|
|Hepburn, Stephen||McLeish, Henry|
|Heppell, John||McNulty, Tony|
|Hesford, Stephen||MacShane, Denis|
|Hill, Keith||Mactaggart, Fiona|
|Hinchliffe, David||McWilliam, John|
|Hodge, Ms Margaret||Mahon, Mrs Alice|
|Hoey, Kate||Mallaber, Judy|
|Home Robertson, John||Mandelson, Peter|
|Hoon, Geoffrey||Marsden, Gordon (Blackpool S)|
|Hope, Phil||Marsden, Paul (Shrewsbury)|
|Hopkins, Kelvin||Marshall, David (Shettleston)|
|Howarth, Alan (Newport E)||Marshall, Jim (Leicester S)|
|Howarth, George (Knowsley N)||Marshall-Andrews, Robert|
|Howells, Dr Kim||Maxton, John|
|Hoyle, Lindsay||Meale, Alan|
|Hughes, Ms Beverley (Stretford)||Michael, Alun|
|Hughes, Kevin (Doncaster N)||Michie, Bill (Shefld Heeley)|
|Hughes, Simon (Southwark N)||Michie, Mrs Ray (Argyll & Bute)|
|Humble, Mrs Joan||Milburn, Alan|
|Miller, Andrew||Roche, Mrs Barbara|
|Mitchell, Austin||Rogers, Allan|
|Moffatt, Laura||Rooker, Jeff|
|Moonie, Dr Lewis||Rooney, Terry|
|Moore, Michael||Ross, Ernie (Dundee W)|
|Moran, Ms Margaret||Ross, William (E Lond'y)|
|Morgan, Alasdair (Galloway)||Rowlands, Ted|
|Morgan, Ms Julie (Cardiff N)||Roy, Frank|
|Morgan, Rhodri (Cardiff W)||Ruane, Chris|
|Morris, Ms Estelle (B'ham Yardley)||Ruddock, Ms Joan|
|Mowlam, Rt Hon Marjorie||Russell, Bob (Colchester)|
|Mudie, George||Russell, Ms Christine (Chester)|
|Mullin, Chris||Ryan, Ms Joan|
|Murphy, Denis (Wansbeck)||Sanders, Adrian|
|Murphy, Jim (Eastwood)||Savidge, Malcolm|
|Naysmith, Dr Doug||Sawford, Phil|
|Oaten, Mark||Sheerman, Barry|
|Olner, Bill||Sheldon, Rt Hon Robert|
|Organ, Mrs Diana||Shipley, Ms Debra|
|Osborne, Ms Sandra||Short, Rt Hon Clare|
|Palmer, Dr Nick||Simpson, Alan (Nottingham S)|
|Pearson, Ian||Skinner, Dennis|
|Pendry, Tom||Smith, Rt Hon Andrew (Oxford E)|
|Perham, Ms Linda||Smith, Angela (Basildon)|
|Pickthall, Colin||Smith, Rt Hon Chris (Islington S)|
|Pike, Peter L||Smith, Miss Geraldine (Morecambe & Lunesdale)|
|Pollard, Kerry||Smith, John (Glamorgan)|
|Pond, Chris||Smith, Llew (Blaenau Gwent)|
|Pope, Greg||Smith, Sir Robert (W Ab'd'ns)|
|Pound, Stephen||Smyth, Rev Martin (Belfast S)|
|Powell, Sir Raymond||Snape, Peter|
|Prentice, Ms Bridget (Lewisham E)||Soley, Clive|
|Prentice, Gordon (Pendle)||Southworth, Ms Helen|
|Prescott, Rt Hon John||Spellar, John|
|Primarolo, Dawn||Squire, Ms Rachel|
|Prosser, Gwyn||Starkey, Dr Phyllis|
|Purchase, Ken||Stewart, David (Inverness E)|
|Quin, Ms Joyce||Stewart, Ian (Eccles)|
|Quinn, Lawrie||Stinchcombe, Paul|
|Radice, Giles||Stoate, Dr Howard|
|Rammell, Bill||Strang, Rt Hon Dr Gavin|
|Rapson, Syd||Stringer, Graham|
|Reed, Andrew (Loughborough)||Stuart, Ms Gisela|
|Rendel, David||Stunell, Andrew|
|Robertson, Rt Hon George (Hamilton S)||Sutcliffe, Gerry|
|Taylor, Rt Hon Mrs Ann (Dewsbury)||Watts, David|
|Taylor, Ms Dari (Stockton S)||Welsh, Andrew|
|Taylor, David (NW Leics)||White, Brian|
|Taylor, Matthew (Truro)||Wicks, Malcolm|
|Temple-Morris, Peter||Wigley, Rt Hon Dafydd|
|Thomas, Gareth (Clwyd W)||Williams Rt Hon Alan (Swansea W)|
|Timms, Stephen||Williams, Alan W (E Carmarthen)|
|Tipping, Paddy||Williams, Mrs Betty (Conwy)|
|Todd, Mark||Willis, Phil|
|Tonge, Dr Jenny||Winnick, David|
|Touhig, Don||Winterton, Ms Rosie (Doncaster C)|
|Turner, Dennis (Wolverh'ton SE)||Wise, Audrey|
|Turner, Dr Desmond (Kemptown)||Woolas, Phil|
|Turner, Dr George (NW Norfolk)||Worthington, Tony|
|Twigg, Derek (Halton)||Wright, Anthony D (Gt Yarmouth)|
|Tyler, Paul||Wright, Dr Tony (Cannock)|
|Vis, Dr Rudi||Wyatt, Derek|
|Walley, Ms Joan||Tellers for the Noes:|
|Ward, Ms Claire||Janet Anderson and|
|Wareing, Robert N||Mr. Jim Dowd.|
§ Question accordingly negatived.
§ It being after Ten o'clock, THE CHAIRMAN left the Chair to report progress and ask leave to sit again.
§ To report progress and ask leave to sit again.—[Mr. Betts.]
§ Committee report progress; to sit again tomorrow.