TRANSFER OF MINISTERIAL FUNCTIONS (Hansard, 26 January 1998)

§ Mr. Denzil Davies (Llanelli)
I beg to move amendment No. 152, page 12, line 41, after 'Wales', insert 'or'.

§ The Second Deputy Chairman of Ways and Means (Mr. Michael Lord)
With this, it will be convenient to discuss the following amendments: No. 145, page 13, line 2, leave out from 'Crown' to end of line 6.

§ Mr. Davies
The amendment is being discussed with a number of other amendments, two of which, like amendment No. 152, stand in my name and that of my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands). I hasten to say to my right hon. and hon. Friends on the Treasury Bench that these are probing amendments and that I am not wedded absolutely to the word "or". On the other hand, I want it to be clear that, although Ministers have to keep their eye on the big picture, Back Benchers have to try to scrutinise legislation and we on the Back Benches should be delighted if my right hon. Friend the Secretary of State were to accept the amendment.

§ The Secretary of State for Wales (Mr. Ron Davies)
Before my right hon. Friend puts his case, I should tell him at the outset that if I am minded to reject the amendment, it will not be on the basis of its defective wording.

§ Mr. Davies
I am not sure whether that gives me encouragement. A piece of paper is floating around—I do not know whether it is the special notes for Ministers or whether the notes are available to all Back Benchers or only to certain Government Back Benchers. I see the parliamentary private secretary, my hon. Friend the Member for West Carmarthen and South Pembrokeshire (Mr. Ainger), nodding, but I am not sure which assertion he is nodding in response to. "Resist" is written large against the little word "or"; I suspect that I shall be told that it is not necessary and I shall not spend too much time on it. Whether or not the "or" appears, I should like 33 some clarification from Ministers about what clause 22(1)(a) means and what circumstances will be dealt with by the concurrent functions described in it.
As there is an "or" between paragraphs (b) and (c), I thought that perhaps there should be an "or" between paragraphs (a) and (b). Perhaps my right hon. Friend the Secretary of State will tell me that (b) and (c) are slightly different from (a) because (a) mentions "provide", whereas (b) and (c) start with the word "direct", so it is not necessary to have an "or". Subsection (1) is clearly complicated.
Amendment No. 145 seeks to leave out paragraph (c). I notice that my right hon. Friend has also tabled some amendments to paragraph (c). I do not know whether they tend to ameliorate the rather harsh effect on Ministers of paragraph (c), but clearly people have had second thoughts about the heavy-handedness of the paragraph as drafted.
May we be given some examples of the functions that will apparently be exercisable now only by Ministers and, if and when the Bill becomes law, with the concurrence or—if my right hon. Friend's amendment is accepted—with the agreement of the assembly? Before we consider the subsection may we be told what sort of functions are we talking about?
The next question that I have for my right hon. Friend involves a subject that may come up again under the next set of amendments. Paragraph (c) contains the words "in relation to Wales"; those words cause me—and perhaps nobody else—some difficulty. I do not do crosswords, but people who do tell me that they often have a certain empathy with the person who has drawn them up; after a certain time, the person drawing up the crossword for a particular newspaper is changed and the empathy disappears. I do not know whether it is recovered.
I do not say this as a criticism of the draftsman, but I find it difficult to empathise with him. Clearly, I was wrong about clause 21. My right hon. Friend made it clear that clause 21 was a sort of declaratory clause. I now find myself having difficulty with the words "in relation to Wales". I should have thought that, with the exception of a few subsidiary matters, the only Minister of the Crown who carries out functions exercisable in relation to Wales is the Secretary of State for Wales. Perhaps that proposition is wrong. I thought that the Bill related mainly to the powers of the Secretary of State for Wales, which will be transferred to the assembly; there will also be a block grant.

§ Mr. Dafydd Wigley (Caernarfon)
Might not Ministers of the Crown such as Ministers in the Home Office exercise powers in relation to Wales? Would that not answer the point that the right hon. Gentleman is making?

§ Mr. Davies
They might well or might well not, but our amendment stands, so let us not pursue that too far. I should not have thought that United Kingdom Ministers exercised functions in general—although there may be aspects in which they do so—in relation to Wales, just as they do not exercise functions in relation to England and Scotland. Indeed, there is no such thing as Wales, really. Before the right hon. Member for Caernarfon (Mr. Wigley) jumps up, I shall say, to keep him happy, that there is no such thing as England either, because there is only the United Kingdom, and Ministers exercise functions in relation to the United Kingdom.
34 It may be that the parts make up the whole and that, if one exercises functions in relation to the whole, one must exercise functions in relation to the parts. I do not go along with that—but then I do not have the empathy with the draftsman that my right hon. Friend the Secretary of State obviously does. He will tell me that I am wrong—that the Secretary of State for Foreign and Commonwealth Affairs exercises functions in relation to Wales, as does the Chancellor of the Exchequer. Well maybe, but perhaps as we develop these arguments we can return to the strange phrase that has been used. Why is the phrase necessary? Why not just say, functions exercisable by a Minister of the Crown and drop the words "in relation to Wales"? I am sure that I am wrong because I do not have the empathy with the draftsman that the right hon. Member for Caernarfon obviously has, in view of the empathy that he has with my right hon. Friend the Secretary of State. Therefore, I should be grateful to my right hon. Friend if he would try to explain that phrase to me.
Amendment No. 147 relates to clause 23, which is entitled, "Transfers: supplementary". I find clause 23(1)(b) incomprehensible—I am sure that it is my fault. It reads: if an Order in Council under that section directs that the function shall be exercisable by the Assembly concurrently with the Minister of the Crown by whom it is exercisable"— so it will be exercisable concurrently—
the Order in Council may provide that it shall be exercisable by the Assembly free from that requirement. Are we therefore envisaging two orders—one that says that it shall be exercised concurrently and a subsequent one that says that it shall be exercised free from that requirement? I am sure that there is a clear, precise explanation and I ask my right hon. Friend the Secretary of State if he will kindly provide me with examples.
Amendment No. 152 is a probing amendment. The first amendment in the group leads to the others. I should be grateful if my right hon. Friend the Secretary of State would clear up some of my difficulties.

§ Mr. Wigley
I shall speak to amendment No. 244, which was tabled by me and my hon. Friends. I was surprised that the right hon. Member for Llanelli (Mr. Davies) did not get involved with that amendment, for the simple reason that it deals with European aspects of the assembly—a subject which is very close to the right hon. Gentleman's heart.
The amendment refers to clause 23(4)(b): dealing with matters arising out of or related to any such obligation or rights or the operation of section 2(1) of the European Communities Act 1972. The amendment is a probing amendment to ascertain what rights the Government have in mind and whether in some areas there might be a clash between the wishes of the assembly and those of the Minister who is responsible for the implementation of section 2(1) of the 1972 Act.
Obviously, there will be areas of common interest. In a host of areas, such as agriculture, some treaty obligations and other obligations will be exercised in Wales by the assembly. If the Minister has a reserved power regarding implementation of the 1972 Act, might conflict arise in such areas? Amendment No. 244 is merely a probing amendment to obtain clarification.

§ Mr. Bernard Jenkin (North Essex)
As I understand it, the amendments tabled by the right hon. Member for Llanelli (Mr. Davies) would prevent the Minister by Order in Council granting the assembly a veto over powers for which he might have responsibility. That seems to be the nub of it. The complication arises from the danger of confusion about the meaning of clause 23, because of the problem that the right hon. Gentleman highlighted: apart from the rather vague limitation "in relation to Wales" to which he referred, there is little constraint on the functions that can be handed over by Order in Council.
Our most fundamental concern about the Bill is that, apart from the preliminary order that grants powers to the assembly before the first ordinary election, as set out in subsection (2), schedule 2 applies no restraints on the functions that can be handed over.
In principle, we are sympathetic to the objective of the three amendments, and to the right hon. Gentleman sticking his oar into the Bill, which he does with great dexterity. Our concern is that clause 23 is too wide in its potential. Deleting the first part of the clause would considerably reduce the scope for Ministers to transfer powers over which they might subsequently require independent jurisdiction.
The most interesting question that the right hon. Gentleman asked was about the functions. Anyone reading the Bill is struck by the fact that the word "any" regularly appears before the word "function". The unlimited and undefined nature of the transfer of functions is the primary concern. I should be grateful if the Secretary of State could give examples of the functions he envisages, which he is incapable of defining in the Bill. If those functions were defined in the Bill, it would considerably reduce the scope for misunderstanding and dispute between Westminster and the Welsh assembly later.
I am happy to comment on amendment No. 244 tabled by Plaid Cymru—[Laughter.]—which underlines the longer-term agenda of the Welsh nationalists. They envisage the Welsh assembly becoming increasingly involved with the exercise of responsibilities that are necessarily the responsibility of the United Kingdom Government, because the UK Government, not the Welsh assembly, are the signatory to the European treaties.

§ Mr. Tam Dalyell (Linlithgow)
If the hon. Gentleman is planning to speak on the Scotland Bill, may I warn him about the correct pronunciation of the name of the Dundee football ground—Tannadice?

§ Mr. Jenkin
I promise not to tease hon. Members about their Welsh or Scottish accents, if I am not teased for my English accent. That would be a sensible United Kingdom truce.

§ Mr. Ted Rowlands (Merthyr Tydfil and Rhymney)
It is proposed to delete paragraph (c) of clause 22(1). The subsection takes up the relationship between Ministers and the assembly in future. I remind my right hon. Friend the Secretary of State that the paragraph reads that by Order in Council Her Majesty may direct that any function so far as exercisable by a Minister of the Crown in relation to Wales shall be exercisable by the Minister only with the concurrence of or subject to the consent or approval of, or after consultation with, the assembly. 36 That is what all the concordats were supposed to illuminate. Will they illuminate the way in which the relationship will work? It seems that there will be a relationship between Ministers of the Crown and the assembly, but we do not quite know on what basis that relationship will be founded. I shall be grateful if my right hon. Friend the Secretary of State will advise us further.

§ Mr. Ron Davies
My hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) asked about the meaning of clause (22)(1)(c), and raised an interesting question about concordats. We are talking about the powers that will be transferred to the assembly by order of the House of Commons. They will be powers that are given to the assembly. The concordats will differ from Department to Department, but they will set out in great detail how the assembly and the Whitehall Department will act on matters where they have a joint statutory responsibility, and on other matters where it will be necessary to have a working relationship.
The hon. Member for North Essex (Mr. Jenkin) asked about the use of "any". I shall take up the hon. Gentleman's questions before dealing with the matters raised by my right hon. Friend the Member for Llanelli (Mr. Davies). The problem is that the hon. Gentleman is opposed to devolution, and does not like the way in which the Bill has been constructed. Of course the Bill provides for a substantial devolution of power to the Welsh assembly. I do not want—it is not the Government's intention at this stage—to try to circumscribe the extent to which powers may be transferred by orders from Ministers to the assembly. The hon. Gentleman may not like that, but that is the answer to his question.
The hon. Gentleman claims that the Government are incapable of defining the powers that we are considering. That is not the position. As I have said, the hon. Gentleman does not like the way in which the Bill is constructed. He knows that there will be a transfer order, which will spell out in full detail, in about 12 or 15 months' time, the powers that will be transferred by means of the main transfer order. It is the Government's intention—I have argued this ever since I became responsible for the Bill—that there will be an opportunity in future, if the Government wish, to use such powers to transfer further functions to the assembly.
That is the purpose behind the Bill. We are constructing a new democratic settlement, and the Welsh assembly will have considerable powers devolved to it. I understand that the hon. Gentleman does not like that, but that is the explanation that is relevant to his questions.
I move on to amendments Nos. 152 and 145, which stand in the name of my right hon. Friend the Member for Llanelli. The purpose behind them is to prevent a transfer order under clause 22 that provides for Ministers to exercise functions in respect of Wales, subject to the agreement of, or following consultation with, the assembly.
My right hon. Friend asked what is meant by the expression "in relation to Wales". As the right hon. Member for Caernarfon (Mr. Wigley) said, the words mean what they say. I am not the only Minister who exercises functions "in relation to Wales". My right hon. Friend the Home Secretary exercises functions with respect, for example, to the police, the fire service and the 37 Prison Service. My right hon. and learned Friend the Lord Chancellor exercises functions with respect to the court system in Wales. My right hon. Friend the Secretary of State for Social Security is responsible for the operation of the social security system throughout the United Kingdom, including Wales. Those are a few examples.
Clause 23(6) provides that certain functions that extend beyond Wales may nevertheless be regarded as exercisable "in relation to Wales". We shall debate that provision more fully when we come to amendment No. 233 on clause 23.
Government amendments Nos. 136 to 139 are technical, and are designed to improve the clarity of the Bill. I am grateful to my right hon. Friend the Member for Llanelli for his observations about the clarity of the Bill, and the obvious empathy that I have with the parliamentary draftsmen. The amendments clarify the purpose of the Bill, and bring it into line with drafting in the Scotland Bill.
Clauses 22 and 23 use four times the expression "concurrence, consent or approval", which are three ways of saying the same thing. That is why the amendments substitute the word "agreement", which is the term used in clause 59 of the Scotland Bill.
The other benefit of the Government amendments is that, by replacing the word "concurrence" with "agreement" in clause 22(1)(c), we avoid any possibility of confusion with the word "concurrently", which has an entirely different meaning, in clause 22(1)(b).
For the benefit of the Committee, I should explain that a concurrent function is one that two or more people may exercise. An example that we have identified in the draft transfer order—a question that my right hon. Friend the Member for Llanelli raised—is section 5 of the Science and Technology Act 1965, which is a power to fund scientific research. Such a power needs to remain concurrent, because, as now, the United Kingdom Government would fund scientific research projects that affect all parts of the United Kingdom. The assembly needs to be able to use that power, too, so far as it relates to Wales, which is why we are considering making it a function that is exercisable concurrently.
A function that is exercised subject to a person's concurrence is very different, because that person has to give his agreement before the function can be exercised either generally or in a particular way.
On amendments No. 152 and the other amendments tabled by my right hon. Friend the Member for Llanelli, I am grateful to him and to my hon. Friend the Member for Merthyr Tydfil and Rhymney for seeking to explore this matter by means of a gently probing amendment. I will, of course, try to give an explanation that is acceptable to them of clause 22(1)(c) and clause 23(1).

§ Mr. Dalyell
Both my right hon. Friend and I have an interest in agricultural research and agricultural matters. Will he clarify—I genuinely do not know the answer to this—who makes a decision in this concurrence in relation to research if there is a disagreement between Wales and the rest of the United Kingdom?

§ Mr. Davies
It depends on whether the power is being exercised concurrently—in other words, jointly between the assembly and the Minister of Agriculture—or the powers have been devolved in full to the assembly or 38 retained by the Ministry of Agriculture. If the powers have been retained by the Minister of Agriculture, there will be no need to seek agreement. If the powers have been devolved to the assembly, there will be no need to seek agreement, because the powers are split.
It is the Government's desire to ensure as far as possible that power, and therefore accountability, rests one or the other. If, however, powers are exercised concurrently, agreement will have to be sought between the Minister and the assembly, and that is the purpose of the concordats, which will then be necessary, to decide precisely how those powers can be exercised jointly. It is preferable, and therefore it is the Government's desire, to avoid as far as possible the concurrent exercise of powers.
On amendments Nos. 152 and 145, I regret that, in one respect, my right hon. and hon. Friends have introduced this debate a little too early. I say that because the Government's discussions on the transfer order have not reached a point where I can give a concrete example—although I shall try to give illustrations—of how the power in clause 22(1)(c) would be used. I expect, however, that the final version transfer order will identify a number of examples where Ministers will continue to exercise functions with respect to Wales but under a requirement to obtain first the agreement of, or to consult, the assembly.
Clause 23(1) was promised in part by paragraph D.16 of the White Paper, on which we all fought such a hard campaign to get the consent of people of Wales, which says: Various Acts of Parliament require the Secretary of State … to obtain the Treasury's consent before he may take certain actions. The Bill will make provision to remove most legal requirements for the assembly itself to obtain the Treasury's consent. Subsection (1) gives effect to that White Paper commitment, although it casts the net wider and covers any ministerial consent or consultation mechanism. However, it gives flexibility to the transfer order to preserve requirements for consent or consultation where appropriate.
My right hon. Friend the Member for Llanelli, the right hon. Member for Caernarfon and the hon. Member for North Essex pressed me to give examples. I stress that the fine detail of the provision can be given only once we have the final draft of the transfer order.
May I give the following example? The assembly will appoint and fund the Welsh National Board for Nursing, Midwifery and Health Visiting under the Nurses, Midwives and Health Visitors Act 1997. Section 5(6) provides for me to determine board members' travel and other allowances with the Treasury's approval. We intend that that power should pass to the assembly, as the cost of those decisions would in future fall to the assembly. There is therefore no case for a Department in Whitehall to have a right of veto. The assembly should take that decision, because it will face the consequences.
Conversely, section 18(1)(b) provides for me to direct the form of the board's accounts with the Treasury's approval. To ensure consistency of approach to the accounts of public bodies, the Government are considering retaining the requirement for the assembly to obtain the Treasury's approval of accounts, if it so wishes. I hope that that explanation will persuade my right hon. and hon. Friends not to press their amendment to a vote.
39 Amendment No. 24, tabled by Plaid Cymru, requires a Minister of the Crown to consult the assembly before using any of the concurrent powers to implement Community obligations in Wales. Where the assembly has the power to implement such obligations, I expect that the normal position would be for it to take the necessary action. In that sense, the amendment is perfectly reasonable. Clause 106 confirms that A Community obligation of the United Kingdom is also an obligation of the Assembly … to the extent that the obligation could be implemented … by the Assembly". Some of those matters will be the assembly's responsibility, while others, perhaps concurrently, will be the UK Department's responsibility.

§ Mr. Dominic Grieve (Beaconsfield)
The Secretary of State gave an interesting example concerning midwives' allowances, and said that previously the responsibility was shared concurrently between the Welsh Office and the Treasury. He said that, in future, it would be the sole responsibility of the assembly, because the cost would fall to it. Is that correct? Would there not be a knock-on effect, because expenditure granted by the assembly in that context would ultimately fall to UK taxpayers generally? Why should the Treasury's approval no longer be needed? I may have misunderstood the position, but I should be grateful for clarification.

§ Mr. Davies
I say as gently as I can that the hon. Gentleman is quite wrong. The position is as I stated: the expenditure will come from the block grant, and it will be for the assembly to decide its spending priorities. If it wishes to increase allowances in a particular area, it must find the resources from the funds allocated to it. I have consistently made that position clear.

§ Mr. Jenkin
Will the Secretary of State give way?

§ Mr. Davies
I have already dealt with that point. May I finish dealing with amendment No. 244 and the points raised by the right hon. Member for Caernarfon? If the hon. Gentleman wishes to intervene subsequently, that would be a more orderly way of proceeding. I try to accommodate the hon. Gentleman as far as possible.
As I was saying, amendment No. 244 is reasonable. I accept that, to ensure that the assembly knows whether it is to act or whether a Minister of the Crown is to do so in its place, the Minister should at least inform the assembly of that. The question we must decide—the question that the amendment teases out—is whether it should be a statutory requirement or should be a matter of good administrative practice. That takes us back to the point raised by my hon. Friend the Member for Merthyr Tydfil and Rhymney. I am sure that Ministers would want to consult before using such powers on behalf of the assembly.

§ Mr. Wigley
I accept that the wording of amendment No. 244 may be a little too wide, as it would apply not only to matters over which the assembly has powers but to matters over which the Minister alone has powers. We 40 would need to curtail the wording of the amendment if it is to apply solely to matters over which the assembly has powers.
Does the Secretary of State accept that, in dealing with relevant matters, such as agriculture, which arise from areas where the assembly has powers and where a Minister may implement Community obligations under subsection (4)(a), consultation should take place by statutory requirement? For example, if a Conservative Government were in power in Westminster and a non-Conservative Government were in power in Cardiff, the Minister in London might proceed without carrying the assembly with him or her, which could lead to a clash.

§ Mr. Davies
I concede that there will have to be a mechanism whereby the Minister responsible discusses the matter with the assembly, so that it knows whether it will be dealt with by the assembly or by the Minister. The question is whether it should be a statutory obligation. I have looked closely at the wording of the amendment, and I see a lot of merit in the idea behind it. However, I wish to reflect further on the matter, because it raises an interesting point. It is relevant to the Scotland Bill, so I must discuss it with my ministerial colleagues.
I cannot give an undertaking to the right hon. Gentleman that the Government will table an amendment on this matter, but I hope that my response shows that we agree on the outcome, if not on the best way of achieving that outcome.

§ Mr. Jenkin
Further to the Secretary of State's example about nursing and midwifery, will he tell us whether, on the same basis, the Welsh assembly will be responsible for deciding what allowances and expenses local authority councillors should have? Would that be separate from any reference to Treasury Ministers?

§ Mr. Davies
The hon. Gentleman will know, because he has researched this matter carefully, that it is not my responsibility to act by means of secondary legislation. At least no scheme is currently in place. It is for local authorities to decide on that matter. I understand, however, that there is a residual power, which has never been used by Secretaries of State.
I remember pressing one of my predecessors, the right hon. Member for Wokingham (Mr. Redwood), who is a friend of the hon. Gentleman, on this matter. Anecdotal evidence showed that the schemes were being abused, and I asked him to exercise his power to ensure that there was no abuse. I assert uncharitably that he decided, for party political purposes, to allow the abuses to continue, so that he could use them as a stick with which to beat the Labour party.
It is a residual power. If the transfer order transfers responsibility to the assembly, it will then be for the assembly to decide whether to use that power. If it decides to impose a scheme, the cost of that scheme will be met by local authorities, as happens now. If the assembly decides that, further to an all-embracing national scheme, it will lay down certain limits, it may decide of its own volition to give local authorities additional resources. It will then have to find those resources from within the block.
It is clearly a matter of principle that, if the assembly takes any decision on expenditure, it will have to accept the consequences. There is no question, and there never 41 has been, of the assembly taking decisions on matters with which it is empowered to deal, and then handing on the bill to another Department or to the Exchequer, without prior agreement. I hope that that satisfies the right hon. Gentleman.

§ Mr. Grieve
rose—

§ Mr. Davies
We are now going wide of the amendment. It is a pity that the hon. Member for Beaconsfield (Mr. Grieve) was not present at previous debates. The Opposition did not table any amendments that would have enabled us to have the interesting debate that the hon. Gentleman is trying to snare me into, and we had no time to discuss this matter.
I hope that I have given an adequate explanation of the issues. When pressed by my right hon. Friend the Member for Llanelli, I gave the example of midwifery.

§ Mr. Denzil Davies
Perhaps I missed it, because it is a small word, but I am not sure whether my right hon. Friend dealt with the "or" in subsection (1). He did not tell me why he will not accept my amendment.

§ Mr. Davies
I think I did, so my right hon. Friend must have missed it. Amendments Nos. 152 and 145 would prevent the transfer order under clause 22, which provides for Ministers to exercise functions with respect to Wales subject to the agreement of, or following consultation with, the assembly. For the reasons that I have outlined, I shall resist that amendment. Some functions will continue to be exercisable by Ministers.
I can give my right hon. Friend another example that will make the matter even clearer. I have to say that, until the transfer order is written, these examples are hypothetical. However, let me see whether I can help. My right hon. Friend should look at section 29 of the National Lottery etc. Act 1993.

§ Mr. Jenkin
I do not have it with me.

§ Mr. Davies
The hon. Gentleman has time to rush out and get a copy if he feels desperately deprived.
Section 29 of the 1993 Act gives the Secretary of State for Culture, Media and Sport the power to alter the shares of the national lottery distribution fund paid to the Arts Council of Wales and the Sports Council for Wales. That power will not be transferred to the assembly, as it does not currently rest with the Secretary of State for Wales. However, the assembly will be responsible for those two bodies, so it will have a direct interest in the exercise of the ministerial functions under section 29. It is perfectly sensible for those powers to be exercised by the Whitehall Minister following consultation with the assembly.

§ Mr. Denzil Davies
I thank my right hon. Friend for his explanation. The legislation is not easy to explain, and I fully understand that he must cater for many eventualities. The right hon. Member for Caernarfon (Mr. Wigley) has done better than I have, which is not surprising. I am pleased that the concurrence between the Treasury and Plaid Cymru is still holding, even in this post-referendum period. I congratulate him on getting at least half a promise from the Secretary of State.

§ Mr. Ron Davies
The important concurrence is that which existed between my right hon. Friend and me when 42 we fought the general election on a clear manifesto. We produced a White Paper in pursuance of our manifesto commitment, and we fought the referendum on our party's policy. The right hon. Member for Caernarfon gave us passing assistance during the referendum, but he fought against us tooth and nail in the general election, whereas my right hon. Friend and I stood side by side and shoulder to shoulder to ensure that this matter was included in our manifesto and that a Labour Government pledged to implement that commitment was elected.

§ Mr. Denzil Davies
I did not intend to ruffle my right hon. Friend, so I shall not pursue this matter.
I understand why my right hon. Friend was unable to give examples in relation to clause 23(1)(b). He said that the Government will eventually decide what areas are to be covered by clause 22(1)(c), and I accept that. Parliamentary draftsmen must have been given certain examples: otherwise, despite their brilliance, they would not have been able to come up with subsection (1)(c). Instructions to parliamentary counsel must have specified the areas being considered: a general subsection was then drafted. Of course I accept what my right hon. Friend said.
I am not happy with the words "in relation to Wales" in clause 22(1)(c). My right hon. Friend said that the Home Secretary has functions in relation to Wales because he looks after prisons and there are prisons in Wales: perhaps I am expanding what he said a little. I shall let that go for the time being. He also said that the Lord Chancellor has powers and functions in relation to Wales because there are courts in Wales. The Lord Chancellor is responsible for the administration of justice in England and in Wales in general. Does it follow that he exercises those functions in relation to Wales separately?
My right hon. Friend was on more difficult ground when he referred to social security. He shifted his language.

§ Mr. Ron Davies
The Lord Chancellor is responsible for justice—my right hon. Friend knows that better than I—but he is also responsible for the administration of the law, such as the distribution of courts. Those administrative matters are separate from the broader responsibility that the Lord Chancellor has for justice.

§ Mr. Denzil Davies
All right, let us leave justice out of it for the time being: it is a difficult concept at the best of times.
My right hon. Friend did not say that the Secretary of State for Social Security is responsible for social security offices in Wales. He said that her functions include Wales, which is not what he said previously. Leaving aside the Secretary of State's responsibility for offices, buildings and gutterings, does she exercise functions in relation to Wales or in relation to Britain? I am not sure what the position is in relation to Northern Ireland. Merely because Wales is part of Britain, does it follow that the Secretary of State exercises functions in relation to Wales?

§ Mr. Wigley
It is logical.

§ Mr. Denzil Davies
I have been in the House a long time, and I have not always been impressed by Plaid 43 Cymru's logic, so perhaps we should leave logic out of it. Does the Secretary of State for Social Security exercise functions in relation to Wales or in relation to England?

§ Mr. Ron Davies
I have a note of my comments, which may help me to reach agreement with my right hon. Friend on what I actually said. I said that my right hon. Friend the Secretary of State for Social Security is responsible for the operation of the social security system throughout the United Kingdom, including Wales. The Secretary of State is responsible for the devolved administration within the social security system, and for the wider responsibilities throughout the United Kingdom.

§ Mr. Denzil Davies
My right hon. Friend said "throughout the United Kingdom, including Wales", which is not the same as "in relation to Wales." I do not want to pursue this point, but that does not seem the same: otherwise, he would have said that the Secretary of State for Social Security exercises functions in relation to Wales.

§ Mr. Wigley
Surely there are functions that may be undertaken by United Kingdom Ministers—the Secretary of State for Culture, Media and Sport, for instance, has responsibility for broadcasting—involving specific responsibilities that relate to Wales, although the Minister concerned has a United Kingdom brief. Responsibility for S4C is an example. Similarly, in other subject areas the United Kingdom can decide that the United Kingdom Minister's powers may be exercised in Wales, in a slightly different manner.

§ Mr. Denzil Davies
There may be specific functions as well as general functions, but I am concerned with the general functions. I understand that specific functions may be transferred to the assembly, but I understand the argument to be that the general functions of the Secretary of State for Social Security can be transferred to the Welsh assembly because the Secretary of State for Social Security exercises general functions in relation to Wales, and therefore falls within the legislation. I find it difficult to empathise with the draftsmen; I shall leave it at that.
Let me return to the word "or". My right hon. Friend the Secretary of State bracketed amendment No. 152 with amendment No. 147, and said that, if the two were put together, terrible problems would be caused; but I will allow amendment No. 152 to stand on its own. I cannot imagine that inserting the word "or" at the end of line 41 will destroy the whole basis of the Welsh assembly. There is an "or" between paragraphs (b) and (c); why should there not be one between paragraphs (a) and (b)? I did not follow what my right hon. Friend was saying, but no doubt we shall have a chance to read what was said in Hansard, and I am grateful to him for trying to clarify what are difficult issues.
I said at the outset that mine was a probing amendment. On that basis, I beg to ask leave to withdraw the amendment.

§ Mr. Rowlands
I beg to move amendment No. 144, in page 12, line 41, at end insert 'save and except for any functions in the field of social security or home affairs'.

The Second Deputy Chairman
With this, it will be convenient to discuss the following amendments: No. 162, in schedule 2, page 73, line 17, at end insert— 'A1. Administration of justice and the courts system.'. No. 165, in page 73, line 19, at end insert— '2A. Children's issues and rights.'. No. 157, in page 73, line 20, at end insert— '3A. Disablement policy.'. No. 163, in page 73, line 23, at end insert— '6A. Fire service.'. No. 161, in page 73, line 28, at end insert— '11 A. Policing, prisons and probation services.'.

§ Mr. Rowlands
Amendment No. 144 seeks to clarify and develop the argument that began on Wednesday about the way in which functions are transferred to the assembly, particularly functions that lie with certain Ministers. The amendment does not suggest that functions should not be transferred; it seeks to ensure that home affairs and social security functions are transferred only by means of an Act of Parliament. It does not concern itself with the merits of future transfers in relation to specific Departments and ministerial responsibilities, but suggests that a one-and-a-half hour debate on an order providing for the transfer of the functions exercised by the Secretaries of State for Social Security and for the Home Department is not sufficient.
Other amendments deal with the respective merits of the transfer of various functions, and no doubt we shall discuss those merits later. The simple but important point of our amendments is that responsibility for key areas of major policy involving two major Departments should not be transferred by means of a transfer order.
Commenting on the previous debate, my right hon. Friend the Secretary of State rightly drew our attention to the White Paper commitments. Those commitments, made to the electorate during the referendum campaign, scrupulously and fairly described the powers for whose transfer the Government sought the Welsh people's consent. It is right and proper that those functions and responsibilities should be transferred by means of an order of the kind envisaged in clause 22.
I am not saying—I hope that hon. Members on both sides of the Committee agree with me—that there should not be argument and discussion about some aspects of the proposal. I hope that Ministers will not try to stifle every debate on every aspect of the transfer of powers by saying, "This was in the White Paper, and it therefore cannot be questioned." I am preparing the ground for later amendments tabled by my right hon. Friend the Member for Llanelli (Mr. Davies) and myself in relation to one or two functions which, I admit, were included in the White Paper, but about whose transfer we have doubts or reservations.
Even opponents of devolution should not argue that certain functions cannot be sensibly devolved to the assembly once it is up and running although they were 45 not included in the White Paper. It seems perfectly reasonable to me for us to have a legislative route for further transfers of existing ministerial responsibilities—legislative responsibilities—at some future date. The bone of contention is which route should be taken in relation to the transfer of certain powers and responsibilities. We became involved in a serious discussion about that on Wednesday, and, inevitably, I want to return to it.

§ Mr. Allan Rogers (Rhondda)
I understand the logic of my hon. Friend's argument about the two Departments that he has specified, which can be seen in a more British context than those with, in many senses, narrower responsibilities; but why did he not include defence and foreign affairs?

§ Mr. Rowlands
The White Paper was very explicit about defence and foreign affairs. It said that the Government did not seek in any way to transfer those functions. I understand from our debate on Wednesday, however, that—although we have identified those two areas of domestic social policy—if the Bill remains unamended, it will be possible to transfer by order even the areas of policy to which my hon. Friend has referred. The amendment—which, incidentally, was tabled before Wednesday's debate—identifies areas of policy about whose possible transfer there is likely to be a certain amount of discussion. The amendment is of a selective nature, but my hon. Friend has raised an interesting issue which needs to be probed.

§ Mr. Rogers
Again, I understand my hon. Friend's logic. Surely, however, in relation to such tremendously important matters as defence, foreign affairs and home affairs, it would have been much better to include a clause excluding certain functions—as limited, or de-limited, in the White Paper—than to amend the nature of the Orders in Council that may be made.

§ Mr. Rowlands
That is an interesting suggestion, which my hon. Friend may wish to pursue by tabling an amendment.
Our amendments suggest that the two specific functions involved should be transferred not by order, but by legislation. The argument is not necessarily that some areas should not be transferred; the aim is to provide a safeguard, and to ensure that the transfer process is subject to more scrutiny and debate than is possible in a one-and-a-half hour debate on an unamendable statutory instrument.
My hon. Friend might make a valuable contribution to our discussion after I have drawn his attention to the exchanges in Committee on Wednesday. We are trying to define the routes by which some functional transfers should take place. I suggest that the transfer of major functions from at least two major Departments should be effected by Acts of Parliament rather than by orders.

§ Mr. Ron Davies
I am trying to follow my hon. Friend's argument. May I ask—not in a pejorative way—whether he is trying to rework the argument in terms of exploring the alternatives in clause 21 or is he saying that matters relating to areas such as social security are unsuitable for any form of devolution? Is he concerned about the process or the policy?

§ Mr. Rowlands
I have made it clear that I am speaking about the process. Hon. Members have described clause 46 21 as declaratory in that it states that future Acts will transfer functions to the assembly. Clause 22 states that functions—the clause does not limit them—can be transferred by any Minister by a transfer of function order. As I said in an intervention to which I shall shortly refer, some major functions ought to be subject to more than a one-and-a-half-hour debate on a transfer order. If my amendment is accepted, a future Government would have to transfer such functions by an Act, and that is the route that I prefer.

§ Mr. Rhodri Morgan (Cardiff, West)
I am interested in my hon. Friend's last sentence because it made me unsure of his argument. I thought he said that any home affairs or social security function should be transferred to the assembly not by an Order in Council, but by primary legislation. He seemed to rephrase that by saying that if all social security and home affairs functions for Wales were to be transferred to the assembly, as in the Scottish case, that would have to be done by primary legislation. I agree with that, but surely the issue is how restrictive we should be. There are many borderline, minor social security issues, such as who commissions continuing care for the elderly and whether it should be the Department of Social Security as in the past or the social services departments of local authorities. We are debating minor changes. The same could be true of the probation service, which is also a joint funded, co-responsibility area involving local government. I am not sure that I agree with my hon. Friend about being so restrictive.

§ Mr. Rowlands
My hon. Friend's intervention, which I followed closely, is useful and important. We are trying to find and define a route for the transfer of functions. I suggest that it should be partly dictated by the importance of the function. My hon. Friend is right. I suspect that some minor Department of Social Security and Home Office responsibilities of the kind that my hon. Friend describes could sensibly be transferred by order. An example is the transfer of responsibility for prisons from the Home Secretary to the assembly. I think that that is suggested in an amendment. Should that be done by a one-and-a-half-hour debate on an order or should we use major legislation?
It might be suggested that responsibility for social security benefits and payments should be transferred. That issue has been discussed in some areas. Should that be done by a transfer of functions order or should the Government of the day do it by primary legislation? I accept the critique of my hon. Friend the Member for Cardiff, West (Mr. Morgan) of my amendment and my explanation. Under the clause and on my reading of the Secretary of State's clarification of the matter on Wednesday, some functions from the Home Office and the Department of Social Security should not be transferred by a simple order. The absence of a definition of the functions that should be transferred and the choice of route is causing us concern.
I remind the Committee of an exchange on Wednesday. I said: 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? 47 Those issues were at the heart of what my right hon. Friend the Secretary of State had been saying. He replied:
I cannot answer that question; we are not proposing it anyway. 5.15 pm
I did not suggest that my right hon. Friend was proposing the transfer of prisons. I was talking not only about the present Government, but about a future Government being given power through the Bill. My right hon. Friend continued: a future Government might consider it. If so, I am sure that the Government of the day and Parliament would say, 'Hang on, you cannot do that by order: it is a substantial shift.' But hang on! The clause does allow a future Government to make such a transfer by order. It does not say that an Act of Parliament is required, and that is the fundamental point of my amendment. We are saying that some responsibilities and functions of two major Departments should be transferred only by an Act of Parliament.
My right hon. Friend the Member for Llanelli said that such a transfer was provided for in the Bill and the Secretary of State replied: Of course it is, but legislation must be acted on in the light of political common sense."—[Official Report, 21 January 1998; Vol. 304, c. 1106–07.] I would like to believe that, but such common sense does not always fully determine Government decisions. We are asking, "What does the legislation say and do we agree with it?" My fundamental point—I hope that I am not making a meal of it—is that some functions should be transferred by order while others should require Acts of Parliament. Major responsibilities relating to prisons and to social security should be transferred not by order, but by primary legislation.
Let us look at the way in which the Welsh Office has evolved. I went through all the orders transferring functions to the Welsh Office over the past 34 years. It was interesting to study the sensible, pragmatic and progressive transfer of power to a developing Department. One of the reasons for the success of the Welsh Office is that is grew progressively, absorbing each function and making it work before collecting the next one. That procedure was followed between 1964 and 1978. After a transfer order in April 1978, there was not another one until 29 January 1991. That is a huge gap and I was curious to discover the reason for it. The answer—[Interruption.] My hon. Friend the Member for Cardiff, West takes a conspiratorial view.
Between 1978 and the solitary order on radioactive substances in 1991, the powers to be delegated to the Secretary of State for Wales were written into successive Acts. The Secretary of State collected responsibilities from other Departments over time. As new legislation was introduced, his responsibilities were written into it. I have not had an opportunity to look through the legislation from 1978 to 1991, but, during that time, the Secretary of State's responsibilities grew with each Act.
Until now, it has not been the wish of Parliament or Government to delegate serious additional major functions to the Secretary of State for Wales from other 48 Departments. Therefore, if the assembly is to grow and if it is to be given responsibility for those functions, that must be done through primary legislation, not by order.

§ Mr. Wigley
The hon. Gentleman is raising an important question and I am following his argument. Is it not the case that the Acts that came into force between 1978 and 1991 used the term, "the Secretary of State", which can be interpreted in different ways in different parts of the United Kingdom? During the debates on those Acts, virtually no time—if any time at all—was spent on discussing the question of which Secretary of State would undertake the various responsibilities.

§ Mr. Rowlands
I am sure that in those debates, it would have been made very clear that any functions relating to Wales would be the responsibility of the Secretary of State for Wales. Of course, we all understand that "Secretary of State" is an all-embracing term.
As I was saying, after 1978, the Secretary of State's responsibilities were written into each and every Act. Surely that is what will happen with the assembly. When new legislation is introduced, the Government of the day will state whether the responsibilities are to be exercised by the Secretary of State or by the assembly. I am concerned about functions and powers that already exist in other Departments and may be transferred to the assembly. We identified two such Departments in our amendment. After 34 years, there must be some powerful reasons why the functions have not been transferred previously. I do not want to go too far into the argument as I am sure that the right hon. Member for Caernarfon (Mr. Wigley) will want to develop it when he speaks to his amendments.
Let us take, as an example, the transfer of prison functions to the Welsh Office. Any hon. Member with constituents who, sadly, have gone to prison knows how important an integrated Prison Service across Britain is to the welfare of prisoners. To be honest, I would not want my constituents to go to Welsh prisons because the best prisons are outside Wales. There has been a common-sense view that the Home Office should have responsibility for prisons and that it should run an integrated service across boundaries.
There is a strong case for the Home Office maintaining and retaining various home affairs functions, especially the management and operation of the Prison Service. It should remain an integrated service and its functions should not be transferred to the assembly. If a future Government wished to transfer those functions, it would be a major change in policy and should not be dealt with through a simple one-and-a-half-hour, unamendable order which could not be scrutinised and debated with the seriousness it deserved.

§ Mr. Ieuan Wyn Jones (Ynys Môn)
I want to speak to amendments Nos. 162, 163 and 161. My right hon. Friend the Member for Caernarfon (Mr. Wigley) will deal with the other Plaid Cymru amendments.
I want briefly to pick up the arguments made by the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) about the Prison Service. My experience, both as a solicitor before I was elected to the House and as a Member of Parliament, is the opposite of the hon. Gentleman's. He suggested that his constituents would be 49 better off in prisons outside Wales. I have received many letters from constituents and others in prison expressing regret about the fact that there is no prison in north Wales. That has often led to arguments with prison officers and others about the use of Welsh language material within the Prison Service.
I profoundly disagree with the hon. Gentleman's analysis. I see no reason why the assembly should not have responsibility for the Prison Service, as referred to in amendment No. 161. The functions of the Prison Service have already been devolved to Scotland, so what is the problem with their being devolved to Wales? Indeed, other home affairs services have also been transferred to the Scottish Office and will become the responsibility of the Scottish Parliament. There is no reason why those services should not similarly be transferred to the assembly. The hon. Gentleman took the whole argument about social security, especially the social security budget, to an interesting level and we may need to discuss that. However, I see no reason why prison and fire services should not be transferred to the assembly.
I want to raise an issue about the magistrates courts service in Wales. I have always been mystified by the processes of the magistrates courts committee. It puts forward plans to rationalise—which means to close—local magistrates courts, but the county council or the unitary authority can ask for those plans to be referred to the Lord Chancellor's Department. The unitary authorities in Wales have some locus in these matters—in particular, they can lodge objections to the plans—but the Welsh Office has no responsibility at all. It would be logical—a word used by the right hon. Member for Llanelli (Mr. Davies)—therefore for the Secretary of State and, ultimately, the assembly to determine such appeals. In the era of closures of magistrates courts, especially in rural areas where many responsibilities are covered by magistrates' clerks—where justice requires people to travel long distances to attend court either as witnesses or as defendants—the assembly should determine such issues. If the assembly has responsibility for those matters, the people of Wales will have the opportunity of deciding on the structure that we want for magistrates courts, for example, in Wales.
Let us widen the scope of the debate and include civil courts, county courts and high court offices in Wales. Plans are constantly proposed to rationalise, to close and to reduce the funding of those services. However, the national assembly should be responsible for examining proposals affecting those services. Furthermore, historically, those services were among the first to embrace the use of the Welsh language. One of the first pieces of legislation dealing with the Welsh language was the Welsh Courts Act 1942. It has always seemed rather odd to me that responsibility for court services has remained within the remit of the Home Secretary or the Lord Chancellor; there is no reason why they should not be transferred to the national assembly.
5.30 pm
The hon. Member for Cardiff, West (Mr. Morgan) mentioned the probation service. That service, too, should properly be transferred to the national assembly. The hon. Member for Merthyr Tydfil and Rhymney hinted that transferring it to the assembly should be considered. Although I realise that we shall not be able to take him or other Labour Members with us all the way on all the 50 issues, he did say that the probation service might appropriately be dealt with by order rather than by primary legislation.
The Secretary of State will know that there has been considerable concern in Wales about fire service reorganisation and funding. Moreover, people working in the fire service are particularly concerned about the way in which those matters are being dealt with. The fire service is another matter which should be within the assembly's remit.
I suggest to Labour Members that those matters could be transferred by order. If that is accepted, the Bill could provide for that transfer, rather than waiting for future legislation. I appreciate that the Secretary of State might feel that proposals for such transfers were not in the White Paper, which was the basis on which the Government fought the referendum. However, I ask him to realise that those matters could be transferred to the Welsh assembly without too much difficulty and that, in a Welsh context, they would be better dealt with in Wales. I believe that he will be seriously thinking about those matters in this debate.

§ Mr. Rogers
Part of the problem is that many hon. Members agree with my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) that, on some important legislative issues, Orders in Council are not the appropriate vehicle, but that primary legislation should be used to deal with them. I must confess—my hon. Friend knows my position on devolution—that I do not think that the Bill or the White Paper proposals go far enough. So many other functions should go to the assembly, but doing so was never envisaged. Unfortunately, the Secretary of State is now in the difficult position of seeming to have to break faith with the people of Wales, who—on the basis of the White Paper proposals—gave him a majority.

§ Mr. Ron Davies
May I assure my hon. Friend that I am not breaking faith with anyone?

§ Mr. Rogers
I never said that the Secretary of State was breaking faith.

§ Mr. Davies
I am sorry, but that is what I understood my hon. Friend to say. We have a very clear party policy to which he and I subscribe. That policy was reflected in the White Paper proposals—which are faithfully reflected in the Bill.

§ Mr. Rogers
The Secretary of State is not listening very carefully. If he were, he would have heard me say that the Secretary of State would not want to break faith with the people of Wales by altering the White Paper proposals. If he checks the record, I am sure that he will find that that is what I said.
In considering the specific issues, I have much sympathy for the argument that the assembly should deal with certain functions—although not perhaps with defence and foreign affairs. Although there might come a time when, for some particular reason, the assembly wanted to send a gunboat to Blaenau Gwent—perhaps to discipline the people in the hills—I cannot imagine that the people of Wales would want a separate defence force. However, I strongly believe in local policing. 51 Hon. Members who participated actively in the miners' strike, for example, and who actively supported our Welsh colleagues on the picket lines will remember the invasion of police from England and from other areas against—

§ Mr. Rhodri Morgan
No, not in Wales.

§ Mr. Rogers
My hon. Friend the Member for Cardiff, West (Mr. Morgan) probably never went on a picket line, so I must forgive him.

§ Mr. Morgan
My hon. Friend is wrong.

§ Mr. Rogers
If my hon. Friend will not be rude and will allow me to finish my point, I shall graphically illustrate it for him. Perhaps he had some inside knowledge about what the police were doing. It is a pity that he did not pass that knowledge on to the National Union of Mineworkers; we would have found it very useful.

§ Mr. Morgan
What is my hon. Friend talking about?

§ Mr. Rogers
If my hon. Friend had information that English police were not used on Welsh picket lines—

§ The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)
Order. The hon. Gentleman must speak to the amendment. We cannot have a conversation on the Back Benches.

§ Mr. Rogers
Through you, Mr. Martin, I was attempting to argue that perhaps it would be a good thing if the amendments were to transfer the functions of policing and of control of the police to the Welsh assembly—in contrast to what was said by my hon. Friend the Member for Merthyr Tydfil and Rhymney. In attempting to pursue my argument—

§ Mr. Rhodri Morgan
Will my hon. Friend give way?

§ Mr. Rogers
I will in a minute.
In pursuing my argument, I mentioned that, in the miners' strike, English police were used on the picket lines. My hon. Friend the Member for Cardiff, West wants to contradict me. Let him do so. If he wants to look silly, it is up to him.

§ Mr. Morgan
No, I was not on any picket lines. However, I remember reading in the press that the chief constable of the South Wales police took a view that was very different from that of the chief constable of the Yorkshire police. He took the view that it would not be appropriate to bring in police from England to assist in whatever duties the police had to undertake in the South Wales police area. The situation might have been different in Gwent or in north Wales, but that was the policy of the South Wales police.

§ Mr. Rogers
As I said, perhaps my hon. Friend has an inside line on those matters. I remember very well—it is the example that I wanted to give—the Bedwas coking ovens picket line, which occurred in the Secretary of 52 State's constituency. My hon. Friend the Member for Cynon Valley (Ann Clwyd)—who was standing next to me—and I were told, in a very broad home counties accent, "We know about you Welsh bastard MPs". I did not mind, as I suppose that, back at the beginning of the century, my ancestors were called a lot of things by the Cardies who came in to join the then Glamorgan constabulary. However, the miners very much resented the intrusion of police who were brought in. Part of the reason for that resentment was that members of their own families were policemen who resented having to go on the picket line against the Welsh miners.
My hon. Friend the Member for Merthyr Tydfil and Rhymney will remember what happened in Merthyr vale. If there were not English police—and perhaps others—on those picket lines, I will eat my constable's helmet.
Some issues are peculiarly important to people in certain communities. Policing, for example, can be done effectively only with the consent of the community. The idea of a national police force is abhorrent to all hon. Members, and we should like the police to be under the control of effective police committees. As the hon. Member for Ynys Môn (Mr. Jones) asked, why not give the Welsh assembly the power to organise police forces in Wales?
I realise that transferring many functions would entail a problem in transferring moneys, and that it would make a mess of the Barnett formula in determining the proportion of finance to be added to deal with different functions. I do not suppose that it would have been possible to prepare a Bill in this time which would have encompassed all the problems and difficulties involved in the transfer of powers. If we are to have devolution in Wales, it must be meaningful. That is why I have argued that the acts of transfer should be done positively by primary legislation. The whole idea that that will be done in a one-and-a-half-hour, unamendable debate by Order in Council is strange.
Something needs to be said about defence and foreign affairs because if this clause encompasses all Departments, there ought to be some limitation. We ought to be asking whether we believe in a British state per se—or even a state on a federal basis—or whether we believe in complete independence. That decision will have to be made as we progress. However, if changes are to be made, they should be made by primary legislation and not by Order in Council.

§ Mr. Wigley
I shall follow some of the points raised by the hon. Member for Rhondda (Mr. Rogers). I agree with him about the importance of community in matters such as the police force. The community is what gives the police force its strength, and the absence of that dimension undermines what they are doing. There are areas where important co-ordination is necessary between the police force, local government and other functions—such as highways—which are to come under the assembly. There is a lot of sense in looking at that issue.
The hon. Member for Rhondda mentioned the Barnett formula, which refers to the increase, year-on-year, in available money. Provided that the money for the police is built into the basic block, there is no reason why the Barnett formula should not continue if we feel it to be appropriate in the generality.

§ Mr. Rogers
How would the right hon. Gentleman build that into the basic block? We had a problem with 53 policing in south Wales at one time, and hon. Members representing that area went to see Lord Ferrers—the Minister responsible for the police at the time—who said that the South Wales constabulary was a rural police force. He did not realise that the area contained a string of urban communities—it just happened that there were some bleak moorlands in between. Obviously, he had looked at a map but had not visited the area to study the problem.

§ Mr. Wigley
I well remember that incident, which makes the hon. Gentleman's point.
Amendment No. 165, which deals with children, and amendment No. 157, which deals with disability, may be probing amendments. Whereas the Home Office functions—which we are talking about transferring—clearly relate to other Departments, there is an overlap between a number of Departments of state with regard to children and to disability. We want to make it clear that responsibility lies with the assembly in a way that allows a specific approach—perhaps within a committee or sub-committee of the assembly—to deal with those matters.

§ Mr. Ron Davies
I am grateful to the right hon. Gentleman for giving way early in his remarks. He has referred to a fundamental point that we need to explore. The listing of the subjects that must be considered for transfer has no implication for the way in which that service area will be delivered by the assembly. The presence, or otherwise, of a description of "children's issues" would not require the assembly to have a committee to deal with it. The point to which he is referring is a substantive one—that those matters which, together, add up to children's issues will be transferred.
My hon. Friend the Member for Bridgend (Mr. Griffiths) is the Minister responsible for co-ordinating children's issues in the Welsh Office, and he pulls together matters relating to local government, health and social services, which are to be devolved. Those powers, which are currently vested with Welsh Office Ministers, will be transferred.

§ Mr. Wigley
I thank the Secretary of State for that clarification, which is helpful. Perhaps I can press the argument a little further to try to see the context within which the powers can be exercised by or within the assembly.
By way of background, it is worth mentioning the Welsh Office's successes over the years—under successive Administrations—with certain initiatives dealing with particular groups with special needs within Wales. One thinks of the initiative concerning people with learning difficulties, which was undertaken in the 1980s and 1990s. It carried with it people from all political parties, and it did a considerable amount of good in developing policies at a time when Wales probably had a more advanced set of policies on the needs of those with learning difficulties than not only the other parts of these islands, but the whole of Europe. I attended conferences where that was discussed.
Likewise, there have been initiatives with regard to those with mental illness and the elderly. There is a need for such an approach with regard to children. We should like to see within the assembly the development of a children's commissioner for Wales. I do not know 54 whether the terms of the assembly will allow that, but I imagine that they would—provided that the individual functions to come together within the assembly already exist, as has been suggested by the Secretary of State.
5.45 pm
If there were a children's and young person's commissioner for Wales to monitor the effectiveness of all services for children and young persons in Wales, to investigate specific complaints about those services and to report annually to the assembly, children's policies could be developed coherently. Likewise, in exercising the functions of the commissioner, it would be possible to specify the need to ensure that the rights and interests of children and young people were at all times taken into proper account by the service providers. We need co-ordination to make sure that this is focused on.
We must have regard to the principles laid down in the UN convention on the rights of the child; the need to ensure co-ordination between the voluntary and independent sectors—for example, in providing services for children—and statutory bodies; and the need to consult from time to time children and those seeking to promote their interests. That would bring together a package which—if the Secretary of State's response was correct—can be dealt with by the assembly, which has competence within those areas. That is useful, and it is worth putting that on the record as part of the Committee's debates.
The Secretary of State will be aware of my interest in disability legislation. I have looked carefully at some of the transfer orders that he has made with regard to disability legislation. It is proposed that some measures are to be transferred and some are not. I take it grievously to heart that the Disabled Persons Act 1981—of which I was lucky enough to be the sponsor—is not being transferred. That Act concerns the physical environment in Wales, town and country planning, building regulations and other matters that I thought would automatically have come within the remit of the assembly. The argument goes beyond the question whether the net has taken in all the legislation that is needed to deal with disabled people within the general functions of the assembly, and I take it that social security is outwith that.
There is also the question of the approach to disability. For example, one of the vexed questions facing the world of disability—hon. Members from all parties have followed this—is the rights of disabled people, and the need to ensure that we have legislation that allows those rights to be pursued in the same way that the rights of women to equal opportunities and the rights of individuals in regard to racial discrimination can be pursued. The Secretary of State will know that that was a major argument during the last Parliament, and it has continued in this one. There was to be a measure on that matter, and perhaps the Department for Education and Employment is working on a change in the legislation.
A commission in Wales to look after the needs of disabled people, which disabled people could themselves drive, and to make sure that the rights that they should—and, to some extent, do—have in law are implemented would be a major power. I am not certain that it is within the ability of the assembly, as it is proposed, to pursue the rights of disabled people in that way. I have no doubt that organisations of and for disabled people in Wales are 55 committed to encouraging the assembly to move the agenda forward. If it were not possible to do so, they would be extremely disappointed. I hope that the Secretary of State will put our minds at rest and reassure us that those powers will rest with the assembly.

§ Ms Julie Morgan (Cardiff, North)
I welcome the fact that the right hon. Member for Caernarfon (Mr. Wigley) tabled amendments Nos. 165 and 157, because they highlight important issues. We should take into account the effect on children and on disabled people of policies in every area that is covered by the assembly, as listed in schedule 2.
Children are affected by decisions not only in the traditional areas that we associate with them, such as health, social services and education, but in all the other policy areas that are listed for transfer, such as culture, economic development, sport, and town and country planning.
For example, we rarely take into account the needs of children—places to play, shopping developments with creches, and so forth—when planning towns. We know also that economic development, as it affects patterns of employment and flexible working hours, is important to parents and children.
The key point is to have a child care strategy to cover all the policy areas: whenever a policy is discussed in the assembly, the question of how it would affect children should automatically be asked. I welcome the thinking behind the amendments, and I hope that children's voices may also be heard directly in the assembly. For example, the abuse that has occurred in north Wales and the inquiries into children's homes in south Wales show how important it is for children to have that direct access, and be able to voice their concerns, to the assembly.
I welcome the attention that the right hon. Member for Caernarfon drew to policies on disability. Disabled people in Wales have fewer opportunities, are less likely to be employed and earn only about 67 per cent. of the average earnings of non-disabled people in the United Kingdom. They must have a clear voice and their needs must be high on the assembly's agenda. As with children, they should be a part of every policy area.
We shall need a strategy for disabled people, with targets for higher employment rates and better access to buildings, and a policy to ensure that they are employed in the assembly itself. I welcome the mention of strategies that have been successful in Wales and have captured people's imagination because they have directly involved disabled people and their carers, such as the strategy for people with learning disabilities.
A week ago, along with my hon. Friend the Member for Vale of Glamorgan (Mr. Smith), I attended the launch of the independent living scheme for Cardiff and the Vale. That was the first scheme in Wales in which community care grants were given to disabled people in the community to spend as and when they wanted on carers in their own homes. We want to develop such policies, giving disabled people direct control of the services that they need.
56 I welcome the spirit behind amendments Nos. 165 and 157, and I hope that children and disabled people will have a strong voice in the assembly and that all its policies will take their needs into account.

§ Mr. Jenkin
It is a mistake to suggest that if the assembly does not have responsibility for disability policy or children's issues, it will be pathologically determined to ride roughshod over them. Of course we hope that it will have regard to special interests, such as the disabled and children, as Parliament and local authorities do, but that does not require that the specific responsibilities be transferred to it.
We need a sensible cohesion between what happens at Westminster and Whitehall and what happens at national level in Wales. The proposals in the amendments could lead to nothing but disagreement and discord, which we want to avoid.
I want to talk mainly about the exchanges provoked by the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands), who has done the Committee a great service, especially in his exchanges with the hon. Member for Cardiff, West (Mr. Morgan). We heard not an intemperate denunciation of the Bill but a level-headed discussion about why its powers should be drawn so wide and whether that is good for the assembly's prospects.
In response to what the Secretary of State said on the previous group of amendments, I must emphasise that many criticisms are made not simply to oppose the assembly but to consider whether the Bill can be improved. The Welsh people voted for the proposals in the White Paper, paragraph 1.7 of which said: The Assembly will take over the responsibilities that the Secretary of State exercises in Wales. Those responsibilities include home affairs, social security, defence and foreign affairs, as mentioned by the hon. Member for Rhondda (Mr. Rogers); but those policy areas are not mentioned in the White Paper that was presented to the people of Wales.
Paragraph 1.9 of the White Paper says: The Government does not propose to transfer to the Assembly responsibility for functions which currently operate on a common basis throughout the United Kingdom. One could split hairs and say that home affairs are not run on a UK basis, but the intention, about the transfer of specific responsibilities, is clear.
Whether the Secretary of State was in a terrible rush and could not decide which functions he wanted to transfer, or whether there is an ulterior motive, we shall probably never know; we shall certainly never be able to tell from any of the utterances of which he is likely to give the Committee the benefit.
What we are left with is not a conspiracy or a betrayal of the Welsh people but an unholy mess. The Bill is sloppy, and people who read it will have no firm understanding of what it is intended to transfer or to leave on a UK basis. We are handing huge discretionary power to the Secretary of State to transfer responsibilities by order.

§ Mr. Ron Davies
indicated dissent.

§ Mr. Jenkin
The Secretary of State cannot deny it, because he has said as much himself.

§ Mr. Davies
rose—

§ Mr. Jenkin
Let me finish this point.
57 The real question is whether the Committee wants to give so much discretionary power to the Secretary of State. The current incumbent may be entirely determined to stick with the undertakings set out in the White Paper, but even he must have the humility to recognise that he will not be Secretary of State for ever and that someone much less wise and charming might one day occupy his shoes and sit behind his desk. Such a person may well seek to use a majority in Parliament to transfer powers whose transfer was never intended. Perhaps that is why the Secretary of State describes the devolution project as a process rather than a settlement. It is not a settlement; we are creating lot of uncertainty about what the Welsh assembly should do. That is evident from the amendments tabled by the Welsh nationalists.

§ Mr. Ron Davies
I am grateful to the hon. Gentleman for giving way at last. I sought to intervene on his statement that discretion to transfer such functions would rest with the Secretary of State. It will not; such discretion will always rest with the House of Commons. Ministers will have discretion to put proposals before the House, but, as I have often said, this House is sovereign and will decide whether powers are transferred.

§ Mr. Jenkin
The Secretary of State's vision of the United Kingdom Parliament in years to come is that we shall be treated like the French senate. We shall debate unamendable general principles that hand the Executive huge power on the basis, in this case, of 90 minutes' debate. As Labour Members have said, primary legislation should be used if major functions are to be transferred, but there is no limit on the number and scope of functions that could be transferred by order.

§ Mr. Ieuan Wyn Jones
What provision did the Conservative Government use to run Northern Ireland after Stormont was abolished? Was it not done by order?

§ Mr. Jenkin
Of course it was by order, and a highly unsatisfactory situation it is. I cannot remember even the Welsh nationalists arguing for the restoration of normal democratic legislative processes in Northern Ireland because of the exceptional circumstances there. I have always been told that the Welsh people do not like having parallels drawn with Northern Ireland, but the hon. Gentleman is putting Wales in the same position as Northern Ireland by doing all transfers by order without limit on their scope and nature.

§ Mr. Jones
I intervened because the hon. Gentleman was arguing that functions should not be transferred by order. I was merely pointing out that Tory Governments used such powers for nearly a quarter of a century. How can he say that that should have been the case in Northern Ireland but should not be in Wales?

§ Mr. Jenkin
The fact that the hon. Gentleman does not have the dexterity to understand that the situation in Northern Ireland has been exceptional for the past 25 years—all Opposition Members urgently want normality to resume in Northern Ireland so that we can restore proper democratic processes—explains why the nationalists are destined to remain a small party. Long may they remain so.

§ Mr. Lembit Öpik (Montgomeryshire)
Leaving Northern Ireland aside, can the hon. Gentleman cite an 58 example of where a Secretary of State has persistently over-devolved power to a constitutionally established regional or national body and can he say whether it has been unsuccessful?

§ Mr. Jenkin
The Stormont Parliament might be a good example.
We should ask ourselves when the House has given powers to Ministers to move functions by order and they have recoiled from the use of that route and preferred primary legislation. That is what the Secretary of State is asking us to believe. We are being told not to worry, to trust that if an issue were of sufficient importance, the Secretary of State would use primary legislation rather than the order-making power. That is to put trust in the Executive and in politicians, which we, as politicians, should know better than to do.

§ Mr. Richard Livsey (Brecon and Radnorshire)
I apologise for the state of my voice. I shall endeavour to make a short contribution. Amendment No. 144 deals with social security and home affairs. Social security is particularly difficult, while some home affairs issues, especially the siting of magistrates courts, should be administered within Wales. The closure of magistrates courts in my constituency has made access to the justice system difficult for many constituents.
We wish to support Plaid Cymru's amendments No. 165 on children's issues and No. 157 on disabilities. I declare an interest as president of Brecon and District dial-a-ride, which has 650 members and operates a service that covers some 84,000 miles a year. I have experienced at first hand how difficult it is to get sufficient back-up for support for disabilities. There are many advantages in transferring more aspects of disability policy to the assembly.
The fire service powers, which amendment No. 163 gives to the assembly, are clearly needed. Policing, and especially probation, powers should be transferred to the assembly, as proposed by amendment No. 161. The question of prisons is complex, but the issue of young persons in prison, particularly in Wales, has been campaigned on for a long time. There have been many injustices with young people going away from home into prison in England. That needs further sorting out. I support the amendments.

§ Mr. Rhodri Morgan
I shall try to sum up the debate, in which there has not been great disagreement. We agree that we need three grades of legislative change that require three different responses. I think that we agree that if it is clearly stated in the White Paper that something should be transferred, it is permissible that it should be done by Order in Council. At the far extreme, if a transfer is clearly negated by the White Paper, no future Government should be able to do it without another referendum. Taxation, or other principles that stretch the word "devolution" to its extreme, would require that. There is an area in the middle, with matters that might be described as having been hinted at in the White Paper or not clearly ruled out. The question is whether such matters could be transferred only by primary legislation. That is the grey area.
Is it possible to specify now the matters whose transfer would not require another referendum—because they are not negated by the White Paper—but could reasonably be 59 done by a future Parliament by Order in Council or primary legislation? Such transfers could be done later in this Parliament, but are more likely to be done by a future one. Such matters may not necessarily be much thought about now and may not have been much discussed in the referendum. That is the controversy. Should it be written into the Bill or left to the political judgment of the Government and Parliament of the day? Without a written constitution, we normally leave certain matters to the political judgment of the day. The general principle that has always guided the House is that we try never to commitment future Parliaments because it is a waste of time. It is a difficult issue.
For instance, we might say that a referendum would be required if one were to transfer to the National Assembly powers relating to taxation or, as mentioned by my hon. Friend the Member for Rhondda (Mr. Rogers), to defence or foreign policy. Should home affairs or social security matters be dealt with by Order in Council or through primary legislation? If one proposed to transfer all general responsibilities relating to home affairs or the Lord Chancellor's Department, it would be easy to see that such a decision would require primary legislation. That possibility is bound to come up for discussion in the future simply because it is the only major difference between the transfer of powers to Wales and to Scotland—as far as I know, it is the only difference relating to administrative devolution practice and the contents of the respective White Papers.
It is natural that people will compare the practice in Wales and that in Scotland. They may argue that the next natural step after the devolution exercise is to give the Welsh assembly equal powers to those available to the Scottish Parliament in relation to home affairs, prisons, the probation service and the Lord Chancellor's Department. That discussion is bound to take place simply because of the administrative contrast between Wales and Scotland, which exists for good historic reasons.
Should such a transfer of powers be a matter for primary legislation? I am sure that we would agree that the transfer of all functions relating to home affairs and the Lord Chancellor's Department requires primary legislation. However, it is necessary to ask whether certain areas of responsibility in relation to them or social security are so intimately connected with those functions that were discussed in the White Paper that to specify that any transfer would require primary legislation would impose an unreasonable restriction on a future Parliament. There are quite a few such areas because of cost shunting. I am not sure whether it is reasonable to deny a future Secretary of State the right to transfer such powers by Order in Council.

§ Mr. Rogers
My hon. Friend is quite an expert on most matters so perhaps he can tell us what is the position in relation to the revocation of Orders in Council. Perhaps that is why Conservative Members are looking so smug. Perhaps a future Conservative Secretary of State could revoke an Order in Council. I presume that that is possible, but I am not quite sure. Such an order would not be as binding as primary legislation.

§ Mr. Morgan
I am sorry, but I cannot possibly comment on that. My hon. Friend will have to make his 60 own speech about that during clause stand part, when he can come back and have another bite at that interesting and juicy cherry.
Police funding and funding of the fire service are covered by the rate support grant, and are therefore the responsibility of local government, but matters relating to training, standard setting and monitoring are the responsibility of the Home Office. Given that the funding is part of local government administration, it is difficult not to consider such a responsibility as a natural extension of the powers that were subject to a decision at the referendum. The transfer of powers relating to prisons would be an entirely different matter, because such a transfer was never discussed or hinted at during the referendum.
Perhaps it would be possible to transfer powers according to a three-way classification of functions. One could then decide that the transfer of relevant powers would require a referendum, primary legislation or an Order in Council. That would be a good move, provided that such a classification fitted with an unwritten constitution and the way in which we normally approach such decisions. After all, we never seek to bind a future Parliament. Such an attempt would be meaningless.

§ Mr. Oliver Letwin (West Dorset)
Perhaps I can help the hon. Gentleman reply to the hon. Member for Rhondda (Mr. Rogers). In the absence of the Conservative amendments that were voted down in our earlier proceedings, it is abundantly clear that, once an Order in Council is made, it can be reversed only by primary legislation.

§ Mr. Ron Davies
Or with the agreement of the assembly.

§ Mr. Letwin
Indeed. Such is the asymmetry that the legislation builds in.

§ Mr. Morgan
It is certainly true that the Bill will become an act of devolution. If Conservative Members are only just discovering that, it is a pity that they did not wake up to it earlier—if they had, they could have then played a greater role in the referendum. The purpose of an act of devolution is to devolve powers democratically to an elected body. I do not believe that the hon. Gentleman should express great surprise that the purpose of it is to effect a transfer of powers in an orderly manner that provides for the most stable administrative system possible.

§ Mr. John Hayes (South Holland and The Deepings)
When we debated the matter earlier in our proceedings, one issue under discussion was not just the devolution of power from this place to the assembly, but the transfer of existing local government functions. The hon. Gentleman has spoken about the funding of the fire service and the police, but local government has far more responsibilities for those matters than just their funding. Is he suggesting a massive transfer of power from local government to the assembly?

§ Mr. Morgan
Not at all. Functions relating to the police and fire service are the responsibility of two Secretaries of State, one because funding is provided by 61 him to local authorities through the rate support grant and the other because general responsibilities remain with the Home Secretary. Given that the Secretary of State for Wales already has some responsibility for the police and the fire service because he provides for their funding by local authorities through the rate support grant—those authorities are then precepted by the police and the fire service—it is clear that a further transfer of responsibilities relating to the fire service and the police could be regarded as an extension of a responsibility already discussed in the White Paper. I accept that any transfer of powers relating to prisons would be new.
We must search for a stable but flexible system in which three possible outcomes could be considered. A proposed transfer of powers could be regarded as a matter that required another referendum to be held; other categories of transfer might require primary legislation or merely an Order in Council. That classification would be clear to the people of Wales and to hon. Members on both sides of the House. The guidance offered by the House to successor bodies would be clear, even though we could not bind those bodies.
If a proposed transfer merely represented an extension of the transfers proposed in the White Paper or the Bill, the use of an Order in Council would be appropriate. If that transfer represented a complete change, there is no reason why it should not be covered by primary legislation, even though it is difficult to take into account the fact that the political environment may change over five to 10 years.
I am sure that we are all clear about the three classifications that could govern the possible extent of any future suggested transfer of functions compared with the transfers that have already been suggested in the White Paper and were discussed and fought over during the referendum campaign.

§ Mr. Wigley
The hon. Gentleman has rightly said that things can change in five years. He said that the use of a referendum is one of the options when deciding the transfer of powers. As far as the House is concerned, referendums are consultative. Does he accept that the political scene will be different once the assembly is established, because it will articulate some of the wishes of the people of Wales? Surely its role should also be part of the equation.

§ Mr. Morgan
I do not seek to anticipate the political future that we may face in five or 10 years, once the Welsh assembly and the Scottish Parliament have been in operation. That is the problem with an unwritten constitution—one cannot anticipate how political judgments might change. Perhaps, in five or 10 years, there will be a general consensus among the four political parties of Britain that responsibility for prisons should be transferred to the Welsh assembly. People may say, "That transfer does not matter a damn. Do it tomorrow by Order in Council, because everyone agrees with it." Without a written constitution, that could happen. It is a matter of theory, but one must take into account that the political mood can change.
Cost shunting is the most important issue not yet discussed. We must put on record now that it will sometimes be possible for major changes made by Parliament in primary legislation of a UK-wide type to 62 have massive consequences for the Welsh assembly. I am thinking about the care of the elderly or long-term care for those with disabilities. Let us imagine a scenario where the Department of Social Security lays additional burdens on local authorities by transferring to them all responsibility for funding long-term care for the elderly or for those with disabilities. What was previously done by the DSS will now have to be done by social services departments of local authorities, which will need a massive uplift in their rate support grant. If the responsibility were transferred, but there were no such uplift in the rate support grant, one can imagine the problems that would face the Welsh assembly.
That is not the only possible example—the police and fire services come to mind. Whereas prisons are clearly a Home Office responsibility, many of the alternatives to prison—crime prevention policies, alternative places and so on—which might form part of a policy to reduce the prison population, are the responsibility of local authorities. Somewhere, there has to be some sort of concordat covering such grey areas in respect of the possibility of cost shunting. The Welsh assembly will have responsibility for funding local authorities, which might have additional responsibilities laid on them by future Acts of Parliament.
There must be some way of handling situations in which there is no proposal to shift policy making from here to the Welsh assembly, but there is the likelihood of funding responsibilities being shifted to the Welsh assembly as the funding body for local authorities. We have to be clear about the implications of the various ways in which costs can be shunted either side of the devolved boundary, so we have to be sympathetic to the need sometimes to transfer functions in cases where we have, in effect, already transferred the costs of the responsibility for certain matters.

§ Mr. Ron Davies
I hope that my hon. Friend the Member for Cardiff, West (Mr. Morgan) will forgive me if I do not join him in speculating about what might happen in future. Instead, I shall concentrate on amendment No. 144, which was moved some time ago by my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands).
Clause 22 provides for any ministerial function, in so far as it relates to Wales, to be transferred by order. I hope that there is clarity on that point. That could, of course, include any statutory functions to do with prisons or social security.

§ Mr. Jenkin
So there it is.

§ Mr. Davies
Yes, but I want to make the point absolutely clear. There would be nothing to prevent a Government from transferring such functions by primary legislation, rather than by a clause 22 order, if they so wished. It is for that purpose that clause 21, which now stands on the face of the Bill, provides for either of those options. My hon. Friend the Member for Cardiff, West said that those alternative mechanisms exist and could be used, but it would not be productive for us to explore the 63 circumstances in which either provision would be used, because that would be a matter for the Government of the day.

§ Mr. Jenkin
Trust the Government.

§ Mr. Davies
I want to come to that point. It is a matter for the Government of the day to decide whether they wish to transfer powers to the assembly. The hon. Member for North Essex (Mr. Jenkin) has argued on several occasions that Parliament is sovereign, and I hope that he acknowledges the theoretical possibility, if not the wisdom, of any future Government deciding that further powers should be devolved to the assembly. He must acknowledge that possibility, because he argues the case for the sovereignty of Parliament.
If that is the case, a Government who command a majority in the House could decide, as a matter of policy, that they wished to devolve further functions to the assembly, and they could seek to do that either by primary legislation, which, as we have made clear in clause 21, would require the assent of the House, or by using the mechanism in clause 22 and tabling an order, in which case the consent of the House would again be required. In either case, the Government of the day decide what their policy is, and then have to seek the necessary authority from the House. In clause 22, we have merely indicated the second of the options available to the Government.
There is little profit in our speculating now about which functions should be transferred and which process should be used to achieve that transfer at some point in the future. We do not know how policy will develop or how the pace of decentralisation will develop. We do not know what pressures will prevail in five or 10 years' time or what the policy imperatives or the demands of the people will be. There is no point in our spending time now trying to forecast what will happen in future; nor is there much point in the hon. Member for North Essex trying to curtail the process of devolution, which is what he is trying to achieve. He is trying to prevent the Government from embarking on this policy.
Let me make it clear, as I did when speaking to the previous group of amendments, that it is the Government's policy to have a substantial act of devolution. We want to devolve the powers that will be set down and made absolutely clear in the transfer order, but we want to have a mechanism that will allow the process of devolution to continue, and that is the purpose of clause 22. The hon. Member for North Essex should not jump up and down as though it is some great revelation that clause 22 allows for devolution to take place in future. I have made that absolutely clear for as long as I have been talking about devolution. I made it clear on Second Reading, and I have freely acknowledged in every debate in Committee so far, that devolution is a process, and that clause 22 provides a mechanism whereby, if they have the consent of the House, future Governments will be able to devolve to the assembly further powers that they consider would be best discharged by the assembly.

§ Mr. Jenkin
To argue that there should be limits on what the Secretary of State can recommend to be 64 transferred by order is not to argue against the devolution as set out in schedule 2. That is not the point at issue and we are not arguing against that devolution at this point; we are simply saying that there is no limit to what can be transferred.
The Secretary of State has not been able to reassure the Committee by saying that for the Government to choose the route of primary legislation is an option; the mere fact that it is only an option underlines the huge discretion that Ministers will have to recommend fast-track devolution to the House and force it through with their majority after only a one-and-a-half-hour debate. That is not an anti-devolution statement; it is simply to underline the massive discretion that we are transferring to Ministers to pursue further devolution by the fast-track process.

§ Mr. Davies
There is no need for the hon. Gentleman to underline it, because I do not disguise the fact. I have said time and again that we are debating what will become a substantial act of devolution. The hon. Gentleman seeks to ensure that if at any time in the future the Government wish to devolve further powers to the assembly, they will have to come to the House with a piece of primary legislation. I am saying that there are many areas where it may well not be sensible or practical do to that—there may be no desire for certain matters to be brought before the House in a substantial piece of primary legislation. I have no doubt that there will be instances where the Government of the day and Parliament as a whole decide that it is perfectly sensible to devolve matters by means of order. If Parliament does not agree, the orders will not be passed. All Parliament has to do is say, "No, we do not approve it." The hon. Gentleman cannot get away from the inescapable fact that there is a mechanism whereby Parliament can assert its right and prevent powers from being devolved.
Amendment No. 144 would exclude social security and home affairs functions from transfer to the assembly. At the moment, I have no social security functions, and the White Paper made it clear that such UK-wide functions would continue to be delivered on the current basis, by the unitary Government. The Government have no plans to transfer such functions to the assembly, so the amendment is unnecessary. [Laughter.] There is no point in the hon. Member for North Essex laughing. It is not the Government's intention, so the amendment is unnecessary.

§ Mr. Nick Hawkins (Surrey Heath)
Will the right hon. Gentleman give way?

§ Mr. Davies
I shall give way in a moment. The hon. Gentleman has not participated in the debate, although I know that he has listened carefully. We are concluding a lengthy debate and I want to answer the points raised so far, rather than engage in new matters.

§ Mr. Hawkins
The right hon. Gentleman has just been saying to my hon. Friend the Member for North Essex (Mr. Jenkin) that there is a substantial act of devolution and that future Governments may wish to devolve further matters by order. Therefore, it is not an answer to earlier arguments to say, "The current Government have no plans to do so at present" in relation to social security matters. The right hon. Gentleman has just said that a future Government might decide on wholly new acts of 65 devolution by way of order. Does that not reiterate the point made in amendment No. 144, which was tabled by the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands), that certain categories such as social security and home affairs should be excluded? The Secretary of State's first answer does not fit with his second.

§ Mr. Davies
Yes, of course it does. I have made it clear that any ministerial function can be transferred. My hon. Friend the Member for Merthyr Tydfil and Rhymney is trying to choose two of the functions. If we were to do so, we would be on our way to saying that this Parliament should try to restrict the rights of a future Government or future Parliament to devolve a series of policy areas and functions. Any future Parliament could set aside that provision, so amendment No. 144 is unnecessary and would be troublesome.
A number of other amendments have been debated, some of which add to, and some of which detract from, the list in schedule 2. It may be helpful background when considering the amendments if I explain the purpose of the schedule—what it does and, more particularly, what it does not do. At least some of the amendments—this was the point that I was making to the right hon. Member for Caernarfon (Mr. Wigley)—appear to be based on a misunderstanding of schedule 2.
The White Paper "A Voice for Wales" sets out the policy that the assembly should take over the responsibilities that I exercise in Wales. Paragraph 1.7 listed them briefly and stated that they would be listed in the Bill—that is the purpose of schedule 2. Annexe A of the White Paper sets out a more detailed version of that list. That part of the White Paper is put into effect in part II of the Bill, notably in clause 22, which provides the power for Her Majesty to transfer ministerial functions to the assembly by Order in Council.
Clause 22(2) places a duty on me to consider including in the initial transfer order appropriate functions that fall in each of the fields listed in schedule 2—it is only a duty to consider. I listened carefully to the arguments of the hon. Member for Brecon and Radnorshire (Mr. Livsey) and I know that he wants to make similar arguments in subsequent debates. I can tell him that all that schedule 2 does is to place on me a responsibility to consider. The amendments that he will move will not do what he is trying to do, which is to place a duty on me or a power on the assembly; they would merely require me to consider those matters.

§ Mr. Wigley
The Secretary of State referred to annexe A of the White Paper. He will be aware that, under the social services heading, the annexe refers to policies for particularly vulnerable groups, including people with learning disability". The question of disability has appeared in the White Paper, but, as far as I can see, it does not appear in the Bill.

§ Mr. Davies
The right hon. Gentleman referred to specific points relating to the Disabled Persons Act 1981 which I want to deal with slightly later.
I first wish to deal with the general point about the effect of schedule 2. I made it clear that the White Paper is put into effect in part II of the Bill, particularly in clause 66 22, which provides power for Her Majesty to transfer ministerial functions to the assembly by Order in Council. Clause 22(2) places a duty on me to consider including in the initial transfer order appropriate functions that fall in each of the fields listed in schedule 2—nothing more. Without a provision such as clause 22(2), there would be nothing in the Bill to show the extent of the initial powers to be transferred to the assembly. In that sense, clause 22 and schedule 2 provide a mechanism which we have used to show the Committee the broad policy areas that we propose to devolve.
Clause 22 and schedule 2 taken together implement the policy that it is those functions now exercised by the Secretary of State for Wales—or virtually all of them—that should be included in the initial transfer order. At the same time, clauses 21 and 22 allow for subsequent transfer orders to be made—the point that I was discussing earlier with the hon. Member for North Essex—transferring additional functions to the assembly, which is part of our policy. They also allow the flexibility for the initial transfer order to exclude some functions within the fields listed in schedule 2 if it is concluded that they should not be transferred at present—the point that my hon. Friend the Member for Merthyr Tydfil and Rhymney raised with me on, I think, Second Reading. He has suggested that he intends to return to the subject tonight. Adding new fields to the list in schedule 2—the effect of some of the amendments that have been tabled—would require me to consider transferring such functions to the assembly; it would not require me to transfer some or all of them. If the additions were simply matters already included in one of the broad fields already in schedule 2, the amendment would have no effect at all. Removing a field from schedule 2 would not prevent the transfer order from including it; it would only remove the duty to consider including it.
I shall now return to the point about the Disabled Persons Act 1981 raised by the right hon. Member for Caernarfon. The 1981 Act is not mentioned in the draft transfer order because it, itself, amends various other Acts that are mentioned in the draft order, including the Highways Act 1980 and the Chronically Sick and Disabled Persons Act 1972. The right hon. Gentleman was seeking to ensure that the assembly will have the power to consider those matters. I can only give him the answer by reference to the transfer order: the matters that are subsequently defined in the transfer order will be those that are devolved to the assembly. It is at that point that the right hon. Gentleman will have to seek to press the Government on the nature of the orders that are defined in the other pieces of legislation, the Highways Act or the Disabled Persons Act.

§ Mr. Wigley
I am grateful to the Secretary of State for that clarification, but some parts of the 1981 Act do not relate specifically to any other Act. May we take it that he would be prepared to look again at that question or any similar representations made in the context of the transfer orders to ensure that those powers that should be there are clearly there?

§ Mr. Davies
I shall certainly look—or perhaps I shall get someone else to look on my behalf—very closely at the 1981 Act to ensure that those functions, if any, that I currently discharge will be included in the transfer order. That is as far as I can go in giving the right hon. Gentleman the assurance that he seeks.
67 Schedule 2's other role relates to part III of the Bill. Clause 56 requires the assembly to set up subject committees. Each of them must have responsibilities in a field listed in schedule 2, but there is nothing to prevent its having responsibilities in more than one of the fields, or even all of them.
I listened carefully to the arguments advanced by my hon. Friend the Member for Cardiff, North (Ms Morgan), who made a powerful case for the assembly having a discrete responsibility for particular issues. The assembly—its internal architecture and policies—will decide how it wishes to handle those matters. What I am concerned with, and what the Bill is now concerned with, is the extent to which the powers that will be necessary for the assembly to discharge those responsibilities in the way that my hon. Friend suggests are contained in the Bill. I can give her the assurance that I think that she was seeking: I am content that adequate powers will be contained in the Bill and the subsequent transfer order to allow the assembly to discharge its functions in the way that she was suggesting.
Taken together, the subject committees must have responsibilities in all the fields listed in schedule 2, but they would not necessarily be defined in accordance with the particular fields that we have identified in schedule 2. Adding or subtracting a field in the schedule would not necessarily change the number of subject committees. That issue lies behind some of the amendments that I said we would consider later, so I hope that when we reach them the Committee will forgive me if my replies to those debates are brief.
There is no requirement that there should be a committee for each area. The assembly can set up committees for any subject that it wishes. If it wanted to have a committee for children's issues and rights—on which a number of hon. Members have spoken—it would be able to set one up. There is nothing that we can do—other than to make it explicit on the face of the Bill—that would require that to happen. I hope that the Committee will bear those points in mind when we consider amendments relating to schedule 2, particularly amendment No. 160 on the Council of the Isles, No. 157 on disablement policy, No. 159 on European affairs, No. 185 on sustainable development, No. 158 on rural affairs and No. 165 on children's issues and rights.

§ Mr. Rogers
I well understand that, within the transfer-of-function arrangements, financial arrangements would need to be made to carry out the transferred functions. However, in the event that, as my right hon. Friend just outlined, the assembly wanted to take to itself certain functions, by what mechanisms would it obtain money to carry them out—especially if it was in conflict with the Secretary of State?
Conflict between assembly and Secretary of State will be possible. Later clauses give the Secretary of State the right to allocate moneys to the assembly—the assembly has no immediate call on money, which can come only through the Secretary of State. Therefore, if the Secretary of State does not agree with the assembly on any power that it wishes to take to itself, or any committee that it 68 wishes to set up, or any function that it wishes to carry out, how can the assembly do that without tax-raising powers?

§ Mr. Davies
My hon. Friend raises two points.
First, it will be entirely for the assembly to decide how it wishes to organise and deliver in those policy areas for which it has responsibility, either as a result of the clause or the accompanying schedule. Matters that have been devolved to the assembly will be entirely a matter for the assembly, and its Members must make their judgments according to the available block grant—they must decide their priorities. There is no question of their doing anything else.
However, the importance of the intervention by my hon. Friend the Member for Rhondda (Mr. Rogers) lay in the second question that he asked, about what would happen if the assembly wished to have additional powers. It would have those additional powers only if it were agreed by the Government of the day and Parliament. It would be perfectly feasible for additional powers to be given to the assembly, but the assembly and the Government of the day would then have to negotiate what additional resources would follow the granting of additional powers. That would be a discussion process, with the assembly getting the agreement of the Government of the day. I hope that that answers the point that my hon. Friend raised.
I return to amendment No. 144. My right hon. Friend the Home Secretary has a range of functions with respect to police, fire, prisons, and so on in Wales. As I shall explain, I have some functions with respect to the funding of police and fire authorities, but they are the only functions in that field that the Government are considering for transfer to the assembly. I know that the right hon. Member for Caernarfon will understand my argument. Therefore, that aspect of amendment No. 144 is inappropriate, because it might prevent the transfer of my responsibilities relating to the funding of the fire service or of the police.
The remaining amendments in the group all seek to insert a field in schedule 2. Amendment No. 162 refers to Administration of justice and the courts system. Those are the responsibility of my right hon. and learned Friend the Lord Chancellor—not me—and the Government have no plans to change that responsibility.
Amendment No. 161 refers to "Policing, prisons and probation", and amendment No. 163 refers to the fire service. I have very limited responsibilities with respect to the police and fire services in Wales, but police authorities in Wales are funded jointly by my right hon. Friend the Home Secretary and me—about 51 per cent. of revenue comes from the Home Secretary in the form of police grant and the remainder from me through revenue support grant and redistributed non-domestic rates. Prisons and probation services are the responsibility of the Home Secretary, and the Government have no plans to change that.
If I may say so, my hon. Friend the Member for Cardiff, West was speculating about which of the processes in clause 21 might be appropriate. I cannot give him an 69 answer to that because the Government are not proposing it, but it seems to me that if the Government of the day were proposing—

§ Mr. Jenkin
That is a cop-out.

§ Mr. Davies
It is not a cop-out. I do not know whether that remark was made by the right hon. Member for Devizes (Mr. Ancram) or his side-kick of today.

§ Mr. Jenkin
His side-kick.

§ Mr. Davies
It is not a cop-out; it is a rational explanation of the position that might arise in five or 10 years' time. I know that the hon. Gentleman does not want devolution to proceed, but I want it to succeed and I want it to work, and the answer—

§ Mr. Jenkin
That has nothing to do with it.

§ Mr. Davies
It has everything to do with it.
The answer that I am trying to give my hon. Friend the Member for Cardiff, West is that if the Government of the day were to envisage a substantial transfer of powers—those that have not hitherto been devolved to me—from a Whitehall Department, obviously they would have to consider the option of primary legislation.
However, I cannot say what will happen in five or 10 years' time. I merely acknowledge the strength of my hon. Friend's argument. The Parliament of the day would have to acknowledge the strength of the argument. I should have thought that, in the case of a substantial transfer of powers, the Government of the day would be wise to ensure that consent had been obtained by means of a general election manifesto—or, conceivably, by a referendum—and then agreement by the House of Commons. That seems to me the process that a sensible Government, or any sensible participant in a political process, would want to adopt.

§ Mr. Michael Ancram (Devizes)
Disgraceful.

§ Mr. Davies
If the right hon. Gentleman wants to intervene—

The First Deputy Chairman
Order. The right hon. Gentleman knows how to behave, and it is not the way to behave, sitting there interrupting the speeches.

§ Mr. Jenkin
My right hon. Friend was talking to me.

The First Deputy Chairman
Order. Well, he should not be talking to anyone. He should be listening to the debate.

§ Mr. Davies
Had I more time, Mr. Martin, I might want to argue with your ruling that the right hon. Gentleman knows how to behave.
My sole responsibility with respect to the fire service is that of funding fire authorities in Wales as part of the funding provided to county and county borough councils under the local government finance settlement. The function there falls within the local government field in schedule 2.
70 6.45 pm
Amendment No. 157, on disablement policy—I have explained the case to the right hon. Member for Caernarfon; I hope to his satisfaction—and amendment No. 165, on children's issues and rights, raise different issues. Disablement policy cuts across almost all the functions of the assembly: it is not a field in itself. As I have explained in general terms already, such an amendment to schedule 2 is not the appropriate vehicle to ensure that the assembly establishes specific subject committees. That will have to be addressed through the assembly's standing orders. The same comments apply to children's issues and rights, which touch on many functions in such fields as health, education and social services.
I hope that the responses that I have given to hon. Members who have spoken to amendments are sufficient for them to realise that we have built in a sensible mechanism for the transfer of those powers that are currently devolved and a process that will allow the Government of the day, with the consent of Parliament, to ensure that the system of government in this country is carried on effectively with a commitment to the principle of devolution.
I am very grateful to my hon. Friend the Member for Merthyr Tydfil and Rhymney for initiating this interesting brief debate, but I hope that I have persuaded him not to press amendment No. 144 to a Division.

§ Mr. Rowlands
My right hon. Friend said that amendment No. 144 was unnecessary because the present Government had no intention of transferring such powers. I think, with modest respect, that the intentions of the present Government are irrelevant to the nature of the legislation that we are drafting. The issue that should concern anyone who scrutinises the Bill is not the present Government's intentions, but the powers that we are bestowing on a future Executive.
I was suggesting that I could see that it would be very convenient for a future Government to have at its discretion the ability to use a simple order-making power instead of the process of primary legislation. We, as Back Benchers in this Parliament, should feel queasy about giving future Governments such powers—very wide powers, in clause 22(1), to transfer functions by simple order.
The debate has also drawn attention to something that the interesting contribution by my hon. Friend the Member for Cardiff, West (Mr. Morgan) illustrated very well: the fact that we have not sat down and written a constitution. We do not have a written constitution and we are not producing one, so the problems of trying to use a piece of typical traditional process called a Bill to create a different set of constitutional arrangements lies at the heart of many of the dilemmas and difficulties that confront us. We do not have a constitutional settlement, so we do not have a written constitution and we do not have the means by which we would amend that constitution by changing the respective powers, so we are obliged to proceed using this traditional process.
I suggest to my right hon. Friend the Secretary of State that, because we are not going down the radical new route of writing constitutions, but, instead, are using the traditional, pragmatic Bill process, we should feel especially queasy about bestowing on a future Executive powers of the type suggested in clause 22(1).
71 Arguments have been made from both sides of the Committee. The debate was essentially about the process—not about the merits of the respective transfers of future responsibilities and functions. I have listened carefully. I believe that it is arguable that aspects of home affairs in particular should possibly be devolved at some time.
I shall not press the amendment to a Division, but I suggest to my right hon. and hon. Friends that the argument and the dilemmas that we have tried to grapple with are endemic in the process. We are not sitting down with a blank piece of paper and writing a new constitution that would lay down how all those matters should be dealt with. By undertaking the process as we are doing, we shall hit the same dilemmas time and again. We should not ignore them or pretend that they do not exist. As Members of Parliament legislating for the future, it is right that we should feel queasy about them. Nevertheless, I beg to ask leave to withdraw the amendment.

§ Mr. Denzil Davies
I beg to move amendment No. 208, in page 13, line 21, at end insert— '(5) No recommendation shall be made to Her Majesty in Council to make an Order in Council under this section for the transfer of taxation powers unless and until the proposals for such a transfer have been approved by the Welsh people in a referendum vote.'.

The First Deputy Chairman
With this, it will be convenient to discuss amendment No. 207, in clause 23, page 14, line 41, after 'Minister', add 'but do not include the Chancellor of the Exchequer'.

§ Mr. Davies
Amendment No. 208 would insert new subsection (5) into clause 22, which would restrict the order-making powers of Her Majesty in Council on the recommendation of Ministers in the case of the transfer of taxation powers to the National Assembly. The amendment would limit that power through a referendum of the Welsh people.
Amendment No. 207 is slightly different. It would restrict the order-making power by amending the Bill to exclude the functions of the Chancellor of the Exchequer from the order-making powers. It would do so by adding to subsection (10) of clause 23, which states that the words "Minister of the Crown" shall include a Scottish Minister. The amendment would add, but do not include the Chancellor of the Exchequer". Unless there is some defect in the drafting, that would ensure that taxation powers could not be transferred to the assembly by the order-making powers in clause 22.
It is always open to the House to do anything by Act of Parliament, including transferring taxation powers from the Chancellor of the Exchequer to the Welsh assembly. My right hon. Friend the Secretary of State said that that was the reason for clause 21(b), but we do not need it. 72 We do not need to be told that the House can do that. I do not want to pursue the argument, but why on earth do we need clause 21(b)?
Having listened to my right hon. Friend addressing the previous amendment and to my hon. Friend the Member for Cardiff, West (Mr. Morgan), who made an extremely interesting contribution, I think that I am pushing at a fairly open door. My right hon. Friend accepted that the White Paper had made it clear, and the referendum was fought on the basis, that there was no intention of transferring functions that operate on a UK basis.
Leaving aside the council tax and local taxes, with which the provision does not deal, the taxation functions of the Chancellor of the Exchequer operate on a UK basis. I tried to argue previously that they were not functions in relation to Wales, and I shall not pursue that argument. It is interesting that the White Paper referred to functions that operate on a UK basis. Those are therefore not functions that relate just to Wales.
In his winding-up speech on the previous amendment, my right hon. Friend referred to UK-wide functions, so I should have thought that he and I were on all fours. When the referendum was fought, it was made clear that there was no intention to transfer to a Welsh assembly functions that operate on a UK-wide basis or on a UK basis.
I can see some difficulties with home affairs. There are certain functions that would be carried out on a Welsh basis, not on a UK basis. There might be some minor problems in relation to social security. However, as far as I am aware, the Secretary of State for Wales has no taxation functions in relation to Wales.
When we suggest in amendment No. 208 that there should be a referendum, or in amendment No. 207 that there should be an Act of Parliament, before the Order in Council, I do not see how my right hon. Friend could object. The argument is entirely consistent with his position.
I am not arguing for or against the transfer of powers of taxation. This is not a debate about whether a Welsh assembly should have taxation powers. In a single economic unit such as Britain, with a single currency and unrestricted freedom of movement of capital, persons and labour, it is daft to suggest that there should be different rates of income tax in that single economic unit, or different rates of capital gains tax, of VAT, if that was allowed under the European treaties, or of corporation tax. That is not the issue. The argument underlying the amendment is that we should not transfer powers of taxation, which are clearly UK-based powers, without an Act of Parliament or, better still, a referendum.
The amendments were tabled as a result of what my right hon. Friend clearly said during the Committee's previous sitting. When I shouted from a sedentary position, for which I apologise, "Taxation," my right hon. Friend readily and enthusiastically said yes. He seemed delighted that I had suggested that taxation could be transferred as well. I was rather surprised. Perhaps I am the only member of the Committee who is surprised that under the Bill it is possible to transfer taxation powers by order—an affirmative resolution is provided for in the Bill. Within one and a half hours, taxation powers can be transferred from the UK unitary state, the British Government or the Chancellor of the Exchequer to the Welsh assembly.
73 I tried my best to give my right hon. Friend an escape route. I argued first that, under clause 22, the functions had to be transferred by Act of Parliament, but he would have none of that. I am sure the draftsmen advised him about that. Then I argued that taxation powers were not powers in relation to Wales, but he would have none of that, either. I have done my best to stop him getting himself into a corner and telling the people of Wales that, despite having said in the White Paper and during the referendum that functions that operate on a UK basis would not be transferred, here we are—that can be done, not even by an Act of Parliament, but by Order in Council.
My hon. Friend the Member for Linlithgow (Mr. Dalyell) is more aware than I am of the Scottish referendum. I know that the example is not exactly the same, but in Scotland we deemed that there should be a separate question on whether the people of Scotland should have powers of taxation. I need not labour the point. My hon. Friend the Member for Cardiff, West—from a sedentary position or in his speech, I forget which—suggested that such powers are so fundamental that a referendum would be required.

§ Mr. Ancram
I support the amendment of the right hon. Member for Llanelli (Mr. Davies), especially in the light of his closing remarks. Indeed, we are looking for a safeguard, which should take the form of an undertaking 74 in the Bill that primary legislation would be required for significant transfers of power, or, alternatively, a mechanism for triggering a referendum so that the people of Wales would not have foisted on them something for which they had not voted in a democratic vote.
The amendment reflects the lack of success that we have had in trying to pierce the Secretary of State's intransigence and in endeavouring to get it through to him that we are not trying to destroy his Bill. We are not trying to dilute devolution. We are merely trying to provide some safeguards that will give people confidence that we are engaged in devolution within the United Kingdom, but not in a process that will lead inevitably to the break-up of the United Kingdom.
The Secretary of State says over and over again that the sovereignty of Parliament will ensure that the break-up of the United Kingdom cannot happen. The more I have listened to the right hon. Gentleman, the more I have come to the conclusion that he is talking not about the sovereignty of Parliament but about that of government. The right hon. Gentleman is saying that Parliament can always turn down an Order in Council at the end of the day if it is put before it. He argues that Parliament does not need to approve it, and that, in that event, Parliament has exercised its supremacy and sovereignty.
The Secretary of State then says, however, that it is up to the Government of the day to decide whether these matters will be heard by primary legislation or by an Order in Council. The right hon. Gentleman is saying—there may be some terrible element of constitutional truth in this—that we have a system where the Government can decide and deliver, through whipping their majority, anything that they may want to introduce.
If that is the position—I hope that the Secretary of State will respond when he replies to the debate—what is the distinction he sees between an Order in Council and an Act of primary legislation? Why do we have primary legislation? The answer is to give the House of Commons the chance to scrutinise, debate, amend and, if necessary, change proposed legislation that is put before it.
Let us consider the amount of detail that will be in the draft order and contemplate that, at some stage in future, another Order in Council may be introduced containing an enormous amount of detail, not one item of which will be changeable. The House of Commons would be asked to take it or leave it. If the Government put such an order before the House of Commons with a whipped majority behind them, it will be agreed to. In terms of creating confidence in devolution and in what is being transferred, that surely cannot be the right approach.
We return to what the Secretary of State said last Wednesday evening. When the hon. Member for Merthyr Tydfil and Rhymney asked about the transfer of substantial power from the Home Office, he asked whether that would be done by order or by primary legislation. The Secretary of State said: 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. The right hon. Member for Llanelli interjected: Like taxation? The Secretary of State said: That is not what I am proposing, but a future Government might consider it. If so, I am sure that the Government of the day and Parliament would say, 'Hang on, you cannot do that by order: it is a substantial shift'. 75 What is a "substantial shift"? What is significant in terms of the powers that might be transferred?
The Secretary of State went on to say that, of course, the necessary provision was included in the Bill. In answer to the question that he had been asked, he added that legislation must be acted on in the light of political common sense.
I think it was the hon. Member for Merthyr Tydfil and Rhymney who warned us not to put too much store by common sense. He reminded us that we know that politically that is not always the safest way in which to proceed. I think that that was the tenor of his remarks. I hope that I have not misquoted him.
The Secretary of State said, however, that legislation would be acted on in the light of political common sense. He added: 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. Again, he uses "non-controversial" as an adjective. We have no definition of non-controversial. For added measure, the Secretary of State finishes by saying: Other, larger areas of responsibility may need primary legislation, however."—[Official Report, 21 January 1998; Vol. 304, c. 1106–07.]
We have a "substantial shift" that has not been defined. Similarly, "common sense" has not been defined, along with "non-controversial" and "larger". Yet we are being asked to accept an act of faith to the effect that, when any of these adjectives come into play, there will be primary legislation of the sort that we were seeking last week, or there will be a referendum of the sort that right hon. Friend the Member for Llanelli is seeking, but when these adjectives are not applicable there will be a simple order that will be debated for one and a half hours and then passed.
It is not being anti-devolution or anti-assembly to say that that is selling the House of Commons a pig in a poke. We do not know what we are being asked to accept or support. When the Secretary of State is asked what he means by "significant" and he is given examples, he says that he cannot answer the question because he is not proposing such a thing. However, I understand that this is a constitutional Bill. That is why consideration of it in Committee is being taken on the Floor of the House.
It is a constitutional measure which is not just for today, because it is supposed to create a long-term assembly; yet, at the most important or crucial part of the Bill—the power to transfer functions now and in future—we have what can be described only as a foggy mass, without one definition or distinction that allows the House of Commons to know how things will be done.
The hon. Member for Ynys Môn (Mr. Jones) referred to Northern Ireland. I know what it is like to govern by Order in Council, and I stood at the Government Dispatch Box on a number of occasions when we renewed the order 76 that allowed us to do so. I said over and over, "I hope this is the last year that we have to do this, because it is not a fully democratic way of making decisions in the House."

§ Mr. Öpik
Surely the right hon. Gentleman accepts, as the hon. Member for North Essex (Mr. Jenkin) did, that comparisons between Northern Ireland and Wales are wholly inappropriate in this debate.

§ Mr. Ancram
I do not make that comparison. I was taking a point that was raised by the hon. Member for Ynys Môn, who did make that comparison, which he pushed. I saw what Orders in Council did, and hon. Members from Northern Ireland asked over and over for primary legislation in the House to take through their legislation.
If we leave these two amendments as they stand, they will build into the Bill something that will cause enormous confrontation. In relation to taxation powers and the powers of the Chancellor of the Exchequer, it is difficult to understand under the order- making power what is possible. Perhaps the Secretary of State will explain.
Clause 22(1)(a) allows the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales. We know from his comments on Wednesday that that includes taxation, because he did not say that it did not.
Clause 22(1)(b) includes the power to direct that any function so far as so exercisable shall be exercisable by the Assembly concurrently with the Minister of the Crown. Does that mean that the Chancellor of the Exchequer and the Assembly can exercise some tax-raising powers?
The third power that the Bill gives, in clause 22(1)(c), is even more strange. It is to direct that any function so far as exercisable by a Minister of the Crown in relation to Wales shall be exercisable by the Minister only with the concurrence of or subject to the consent or approval of, or after consultation with, the Assembly.
In terms of taxation as it relates to Wales, in the manner that was described last Wednesday, and not denied by the Secretary of State, does that mean that the assembly could be given the right of veto over taxation matters?

§ Mr. Ron Davies
indicated dissent.

§ Mr. Ancram
The right hon. Gentleman shakes his head. It is his Bill—

§ Mr. Davies
We have dealt with it.

§ Mr. Ancram
If the Secretary of State had dealt with it, I would not be raising these matters again now. We have not had a single answer from him except to say, "It does not matter, because we are not proposing that today." The fact that he is not proposing it today does not mean that we do not have the right to raise these serious matters, which are germane to the way in which the legislation will work in future.
The right hon. Member for Llanelli was right to table the amendment, because no guarantee or assurance has been given to the people of Wales or to the House. If the Secretary of State is prepared to listen to these arguments—which were made, if I may say so, 77 with a great deal of charm by the right hon. Member for Llanelli, in an effort to sway his right hon. Friend—I will believe that he is serious about wanting such devolution to work within the United Kingdom. If he brushes them aside, as he has brushed aside every amendment that has so far been moved, on the basis that the Bill is perfect, the worst fears that we on the Opposition Benches have about what he is trying to achieve will be realised.

§ Mr. Rogers
I do not know why we have got into this position, because a White Paper was published and the people of Wales, in a referendum, gave their approval for an assembly with the powers as outlined.
The Secretary of State—rather touchily—thought that I was accusing him of breaking faith. What I said was that I am sure that he would not want to do that. I am quite sure that he wants for the assembly only the powers that were outlined in the White Paper—powers for which the people of Wales gave their mandate. It is as simple as that, so why are we having this unnecessary argument? All the Bill needs to contain is that which is in the White Paper and what was put before the people of Wales in the referendum. Nobody else, no matter who they are, has a mandate beyond what the people of Wales decided in September.
If someone wants nationalism by the back door, that is up to them. I am never quite sure what the Liberal Democrats want, but I am pretty sure what Plaid Cymru Members want, as they are pretty honest about their position. I will give them that, but that is about the only thing that I would give them. We also know what the Labour party wants, and I presume that that is what the Government are attempting to implement.
My right hon. Friend the Member for Llanelli (Mr. Davies) outlined the problem of the transfer of powers. I do not think that the present Government or Secretary of State want to break faith with the people of Wales, but, quite frankly, I do not trust politicians. Having been in the House for almost 17 years with that lot opposite in government, I have no faith in future Governments. We saw government by Order in Council when the Conservatives were in power. We saw how Mrs. Thatcher used Orders in Council time and again so that issues such as trade union law and other matters were not discussed on the Floor of the House. It was government by fiat. I do not trust future Governments.
That is why I appeal to the Secretary of State to take on the fears about social security and home affairs, as raised by my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands), about defence and foreign affairs, which I raised, and about taxation, which my right hon. Friend the Member for Llanelli raised.
It is easy enough. Just as schedule 2 states the responsibilities of the assembly, another schedule or whatever—however the draftsman wishes to draw it up—should say what the assembly cannot do; or we should not include a clause that will allow the transfer of functions by a Government who, for instance, might have to rely on the Liberal Democrats for a majority, or who might have to buy off Welsh nationalists to get their votes to stay in power. One never knows what will happen in future. I have great faith in the Labour party being honourable and straightforward, but I certainly do not trust those on the Opposition Benches, and never have.
78 I appeal to the Secretary of State to take us out of this unnecessary argument, to prevent our political opponents from making points—we know why they want to make their points—and adhere to the principles of the White Paper and the policy on which we fought the election.

§ Mr. Öpik
I have listened carefully to the debate, and the right hon. Member for Devizes (Mr. Ancram) has not convinced the Liberal Democrats that tax-varying powers should not be transferred, and he did not convince us when we had the referendum. It is a matter of speculation now, and not one on which I shall dwell, but perhaps, had we had a constitutional convention in Wales, as there was in Scotland, tax-varying powers would be included at the outset of the creation of a Welsh assembly.
We must face the fact that tax-varying powers were not included in the initial set-up. The best evidence for the benefits of tax-varying powers will be in the operation of the Scottish Parliament, which has those powers. Moreover, as people begin to trust the Welsh assembly more, they will realise that it is not such a big risk to trust it also with financial decision making of that type.

§ Mr. Desmond Swayne (New Forest, West)
While it may be entirely appropriate to trust the assembly, will the hon. Gentleman trust the Welsh people by at least allowing them a further referendum to discuss what he evidently believes was missed out in the last referendum?

§ Mr. Öpik
It is always a pleasure to take interventions from the hon. Gentleman. He asks a perfectly valid question. Let me explain simply that we do not support the idea of a referendum because if the Welsh assembly is to have real teeth, it must have tax-varying powers at the outset. Having voted for a limited degree of autonomy, especially in the financial context, for the Welsh assembly, the last thing that the Liberal Democrats want to do is add further obstacles to right a small wrong.

Several hon. Members
rose—

§ Mr. Öpik
I am spoilt for choice. I shall give way first to the hon. Member for Beaconsfield (Mr. Grieve).

§ Mr. Grieve
I do not understand why the hon. Gentleman identifies only tax-varying powers, because those are the product of primary legislation, which the Welsh assembly has no power to implement.

§ Mr. Öpik
That takes us back to the somewhat pedantic debate on the transfer of powers. We have already spent three hours today discussing a legitimate issue under the previous amendment, so I do not propose to reopen that debate. I simply reiterate that the Liberal Democrats would have liked tax-varying powers to be included in the first referendum. Contrary to the belief of some hon. Members, had we spent a number of years acclimatising the Welsh people to the concept of an assembly, that would not have been a problem—it could even have been a bonus. Indeed, it may have strengthened the yes vote.

§ Mr. Hayes
There seems to be a contradiction in the hon. Gentleman's comments. He says on one hand, that tax-raising powers are a minor issue which does not require the further consent of the Welsh people and on the other, that the Liberal Democrats are passionately 79 committed to tax-raising powers, which are fundamentally important. The ability to raise tax is usually regarded as a fundamental part of a democratic body. Does the hon. Gentleman think that the issue is important or not?

§ Mr. Öpik
It is clearly an important issue; otherwise, I would not have based my speech on it. If Conservative Members have any faith in the competence of individuals who are elected to the House of Commons to make decisions of that nature, they should not be afraid of the democratic process within which we find ourselves this evening. Furthermore, they should not be afraid of allowing those who are employed to represent their constituents to make such decisions on their behalf.
I do not want to enter the sort of debate that I had during my philosophy degree at Bristol university.

Hon. Members
Do, do.

§ Mr. Livsey
Do not be tempted.

§ Mr. Öpik
I am guided by the leader of the Welsh Liberal Democrats. I am sure that hon. Members will be pleased if I do not enter a deep discussion on the merits of political systems.
The Liberal Democrats believe that it would have been right to have tax-varying powers in the first place. More to the point, the simpler that we can make the method of introducing them, when doing so seems appropriate to others in the House, the better. A referendum would simply hold things up. We now have the fundamental principle of a Welsh assembly and we should make progress by improving the assembly's autonomy and influence as fast as we can, with minimum fuss and disruption.

§ Mr. Nigel Evans (Ribble Valley)
I agree with the hon. Gentleman. that a referendum would hold things up because it is extremely unlikely that the Welsh people would vote yes to tax-varying powers. Does he accept that, even in the Scottish referendum, there was a yes vote for the Parliament, but 10 per cent. fewer people wanted tax-varying powers? In Wales, 50.3 per cent. voted yes; 10 per cent. fewer people would take the vote to 40 per cent. Is the hon. Gentleman saying that he would not allow his constituents the opportunity to say whether they wanted tax-varying powers for a future assembly?

§ Mr. Öpik
I welcome the hon. Gentleman's input. Although sense is not all that common in politics, surely there is enough common sense in this Committee to recognise when the Welsh people would be prepared to accept an extension of powers, without the need for a referendum. I shall state the obvious and put an end to this spurious debate—[Interruption.] These questions are not black and white. It is perfectly legitimate for others to argue that we could have a referendum; the Liberal Democrats simply say that we have always wanted the assembly to have tax-varying powers. We said so during the referendum debate and we continue to say so now.

Several hon. Members
rose—

§ Mr. Öpik
Hon. Members are flooding in to support the case that I am making on behalf of the Liberal Democrats.

§ Mr. Rogers
On a point of order, Mr. Martin. Is it appropriate for leaders of political parties to come to the rescue of their members?

The First Deputy Chairman
That is not a matter for the Chair. Before I call the hon. Member for Montgomeryshire (Mr. Öpik) back to the Floor, may I say that there is an awful lot of background noise in the Chamber. It is unfair to those addressing the Committee.

§ Mr. Öpik
Thank you, Mr. Martin. May I say that it is a delight to be in a political party whose leader is sufficiently interested in the subject of Wales to come and listen to, and perhaps participate in, the debate? I do not blame the hon. Member for Rhondda (Mr. Rogers) for being jealous; obviously, he would wish that to happen in his party.

§ Mr. Hayes
Will the hon. Gentleman give way?

§ Mr. Öpik
No. The hon. Gentleman can make his own speech if he wants to comment on what I have said.
Tax-varying powers are a central requirement of a Welsh assembly if it is to enjoy sufficient financial autonomy to make the Welsh economy shine. It is a matter of legitimate debate whether we need a referendum, but the Liberal Democrats believe that, now that we have had a yes vote, we must make the assembly work. The Scottish precedent shows that it could be a foolish waste of money to hold a referendum because eventually it will be obvious to everyone, even the doubting Thomases in this Committee, not simply that tax-varying powers for Wales would be nice to have, but that ultimately, they are necessary if the Welsh assembly is to maximise its potential.

§ Mr. Dalyell
I hear interesting whispers in my ear that discourteous speeches from Scots would be less than well received, so I shall ask just two questions. First, have I got the wrong end of the stick in thinking that, under these proposals, Westminster will be stripped of sovereignty? That fact emerged in the perceptive speech by my right hon. Friend the Member for Llanelli (Mr. Davies). We can talk about sovereignty remaining in Westminster for as long as we like, but given the political reality of setting up an assembly in Cardiff, is not Westminster stripped of sovereignty?
Secondly, I would be fascinated to hear an explanation from the Secretary of State. I thought that I was immersed in what has been written on this subject, but I have honestly never really understood why it was considered right that an assembly at Holyrood should have taxation powers and that an assembly in Cardiff should not. It would be nice if that were explained.

§ Mr. Swayne
It would have been better if the hon. Member for Montgomeryshire (Mr. Öpik) had regaled us with the philosophy that he learned at university, rather than such sophistry. It is extraordinary that the process of recent government—the previous Administration were as 81 guilty as any other—has been such that we are increasingly becoming a bureaucracy. Orders in Council and other legislative instruments, which defy the House's ability to scrutinise legislation properly, give power to the Executive.
The referendum specifically excluded the possibility of tax-raising powers, so it is absurd that the Bill contains the means by which a future Government—or, indeed, this Government—can choose to give the assembly such powers. I do not doubt that, had the debate that we have had in the past 45 minutes been rehearsed before the referendum, we would have had a different result; I understand that the actual result is in some doubt.
After the result of the referendum, the Prime Minister said that the Government would act with some sensitivity. The amendments strike me as the very basis of such sensitivity. If the Government cannot be sensitive enough to accept them, I cannot conceive of what such sensitivity consists.

§ Mr. Grieve
I am grateful to the hon. Member for Montgomeryshire (Mr. Öpik) for contributing to the debate, because his speech was astonishing in the light of the assurances that were given when this matter came up on Second Reading. The fear and anxiety of Conservative Members is that, far from government getting closer to the people, the more accountability that is removed, so that politicians are not accountable and the House does not discuss matters, the more the system resembles bureaucratic government. The Government are being offered sweeping powers to transfer other powers by Orders in Council.
At the moment, taxation requires primary legislation. However, we can foresee a time when that will cease to be so, and it, too, could be rafted off without the House being consulted. It would be consistent with the Secretary of State's approach to the Bill for any future transfer of power to be determined by the House with the consent of the people of Wales, so it would be wrong for the clause to stand unamended.

§ Mr. Edward Leigh (Gainsborough)
This is an interesting amendment, because it underlines an important constitutional problem. I am sure that the Government will claim that they cannot legislate for something that will not happen. They will argue that when a certain proposition was put to the people of Wales, they were not given the opportunity to vote for tax-raising powers. They will say that they have no intention of giving the assembly such powers, so the amendment is unnecessary, and that Acts of Parliament would be unbelievably long if we had to legislate for what may never happen.
That point is all right as far as it goes, but the amendment shows that there is a problem with referendums. We are moving into an era when more and more important issues will be decided by referendum, and they will become increasingly common. Hitherto, we have had an unwritten constitution and Parliament has been supreme. Under a written constitution, decisions are often made by way of referendums; how they should be prescribed and circumscribed is carefully set down in the constitution.
In our case, we have no way of knowing what a referendum decides. Logically, if there is a substantial change in Government policy after a referendum has been put to the people, another referendum should be held. 82 That is what caused the angst and difficulty during the previous Parliament in debates on Europe. It was considered that the people had decided our place in Europe on the basis of certain propositions contained in the treaty of Rome, and although more and more powers were added or were given away, the people were not given the opportunity to vote on any such changes in a referendum. That is what caused the upset, and why the then Government and the present Government finally accepted that there should be a referendum if there were a significant change and we were to join a single currency.
If we are to use the device of a referendum more often, we must establish at an early stage in our deliberations that if the Government put a certain proposition to the people and subsequently want to give significantly greater powers to the Welsh assembly or to the Scottish Parliament, they should hold another referendum.
The amendment is important because the democratic rights that have been given to the people of Scotland to decide these issues should not be denied to the people of Wales. There should be some similarity of treatment between Scotland and Wales.
The hon. Member for Montgomeryshire (Mr. Öpik) made a very weak speech which lacked any intellectual rigour. He seemed to be saying that there should be a creeping increase in the Welsh assembly's powers, and that he did not know what all the fuss was about. He did not deal with any of the points made by the right hon. Member for Llanelli (Mr. Davies), or with any of our serious arguments. I thought that the Liberal Democrats were committed to the principle of a referendum. They now seem to be committed to the principle that people can decide what they like by referendum, but that that can be overturned by subsequent Orders in Council.

§ Mr. Öpik
Will the hon. Gentleman explain the contradiction between his comments and those of the hon. Member for New Forest, West (Mr. Swayne)? Furthermore, does he not understand the simple point that we made? The Liberal Democrats have always supported the idea of tax-raising powers and continue to do so, and believe that in the fulness of time, they will be the logical consequence of a successful Welsh assembly.

§ Mr. Leigh
There is no contradiction between what I am saying and what my hon. Friend the Member for New Forest, West (Mr. Swayne) said. If the Liberal Democrats are committed to the principle of tax-raising powers for the Welsh assembly, they should have confidence in the Welsh people, who will want to vote on that in a referendum. A future Government should not be entitled to introduce such major and sweeping powers by the back door through Orders in Council. I am disappointed in the Liberal Democrats, because I thought that they were democrats and wanted to give more power to ordinary people, but clearly they do not.

§ Mr. Öpik
rose—

§ Mr. Leigh
The hon. Gentleman has had his chance, and he cannot go on intervening. He is doing his argument no good.
In conclusion, I hope that the Government will give this important amendment serious consideration.

§ Mr. Peter Brooke (Cities of London and Westminster)
It is a particular pleasure to make my "maiden speech" in 83 the deliberations on the Bill in support of the amendments tabled by the right hon. Member for Llanelli (Mr. Davies). I was present for most of the Second Reading debate, but was not here for last week's Committee debate, as I was in Northern Ireland with the Northern Ireland Select Committee.
I am only half a Welshman, but more of my blood comes from Wales than from any other part of the kingdom. I do not recall the exact slogan that was used in the Welsh referendum campaign, but I believe that it was to the effect that Wales should not allow Scotland to leave it behind. My personal impression had been that, in the proposals for Wales—not least in view of the absence of any reference to taxation—Wales had already been left behind. As half a Welshman—whatever my views on devolution—I resented the fact that Wales was being short-changed. I sensed that what was being offered was cynically regarded as the minimum that Wales could be relied to vote for.
The right hon. Member for Llanelli spoke eloquently. He will not remember the occasion when, during the run-up to the 1979 general election, we were conducting an economic debate in the House and had reached one of those tundras of mid-evening when the Chamber is more or less empty. It is possible that the Whips were present, but I suspect that they had been sent out to scour the highways and byways for anyone who might be able to contribute at least a half-economic idea. I recall that those present were my noble Friend Lord Stewartby—then Member of Parliament for Hitchin—the right hon. Member for Llanelli and me.
In my speech, I made a prediction. I said that the Labour party faced another tundra—the prospect of being in the wilderness for many years. I also quoted lines that I had learnt at my mother's knee about the children of Israel:

"Joshua the Son of Nun

And Caleb the Son of Jephunneh

Were the only two

Who ever got through

To the land of milk and honey."

Because my noble Friend—as he is now—and I were both members of the Standing Committee considering the Finance Bill and knew the right hon. Member for Llanelli to be a distinguished Treasury Minister, I then expressed the hope that the role of either Caleb or Joshua would fall to him when Labour came back from the wilderness. I must say now, on the basis of the thoughtful contributions that the right hon. Gentleman is making to our deliberations, that in my view, the Government would be significantly stronger if he were a member of it.
As I have said, the right hon. Gentleman spoke to his amendments very eloquently, and I do not propose to dwell on them. Let me emulate the 18th-century Member of Parliament who, after a long speech by Edmund Burke, simply rose and said, "Ditto", and say that I am in the right hon. Gentleman's camp. If the Secretary of State—who has temporarily gone to seek advice—resists the right hon. Gentleman's case, I for one will regard that as a contradiction of his argument in favour of the Bill that 84 central Government cannot be relied on, or trusted, to make decisions for Wales if the people of Wales are opposed to those views.

§ Mr. Letwin
I should like clarification of one point. Amendment No. 207—with which, in common with most of my right hon. and hon. Friends, I entirely sympathise—relies on a particular interpretation, and brings to light a particular problem. To a layman reading clause 22(1)(a), it appears clear that the powers that can be transferred by order are those that are already exercisable—I admit that the clause does not actually say this—by order, and that is, by parenthesis, by a Minister of the Crown in relation to Wales". I take it that that paragraph does not intend to enable by order the transfer of powers where those powers can currently be exercised through primary legislation.
It so happens that, under the Finance Acts—I admit that I did not check all of them, but I checked the last eight or nine—there has been no instance, at least recently, of a major taxation power being given to the Chancellor of the Exchequer for him to exercise by order. For example, under local government finance legislation, income tax rates might have been devolved to the Secretary of State for him to exercise by order, but in the case of Finance Acts, they are not so devolved; the rates themselves appear in the Acts. I assume that amendment No. 207 would not be needed in the case of a Finance Act to prevent a transfer by order of taxation powers—as things currently stand in constitutional precedent, and as that precedent relates to the Finance Act.
That point brings me to the reason why I support the amendment so strongly. We can replay exactly what I have just said the other way round. As the Bill stands, it gives a dreadful incentive to the Government—this, perhaps, illustrates in just one more way how constitutional measures such as this affect not just the parts of the kingdom to which they ostensibly refer, but the whole kingdom—to change current practice in relation to the Finance Act, and to give the Chancellor of the Exchequer powers by order, for example, to change income tax rates, which I understand is entirely legitimate but unprecedented. Furthermore, in the absence of amendment No. 207, clause 22(1)(a) would make it possible by order to transfer powers of taxation to the Welsh Assembly.
There is a dreadful possibility that something that is fundamental to the liberties of people in the United Kingdom as a whole, and England in particular, could be changed under the pressure of an incentive created by a constitutional laxity in the Bill. For that reason if for no other, it seems to me extraordinarily important that English Members should seek a change in the Bill in line with the amendment.

§ Mr. Hayes
I am delighted to be able to speak in the debate, particularly—if I may say so without flattering you, Mr. Jones—with you in the Chair. I shall resist the temptation to tease you about the result of the referendum vote in Hawarden or in any other part of Flintshire. In that part of Wales that we both know so well, the vote was heavily against devolution.

§ Mr. David Hanson (Delyn)
Will the hon. Gentleman give way?

§ Mr. Hayes
In a moment; I have hardly got going.
85 Much of the debate has focused on the definition of powers. It is important to point out—particularly for the benefit of the hon. Member for Montgomeryshire (Mr. Öpik)—that the debate is about not the powers themselves, but the ability to change and vary them: the ability to transfer powers from one body to another. The hon. Gentleman's speech was based entirely on the historical debate about whether the assembly should have had tax-raising powers initially.
It is appropriate for us to consider the transfer and the varying of powers, particularly in respect of tax. The Government deemed that so important in Scotland that they decided to place it on the Scottish referendum ballot paper, and I think that they were right to do so. Clearly, the ability to raise tax, the nature of the relationship between representation and taxation and the tenet of democratic power represented by tax-varying powers are fundamentally important. Yet we hear, in respect of the Welsh assembly, that this fundamentally important tenet of a democratic institution—that fundamental part of the exercise of political power—is not to be subject to the further consent of the Welsh people. It is not to be subject to their consent at all, given its exclusion from the initial referendum. The Welsh people will therefore be peculiarly disadvantaged in that respect. The Scottish people were deemed competent to make the judgment, but we know not whence the authority will originate in respect of the Welsh.
I must comment further on the speech of the hon. Member for Montgomeryshire. He claimed that this was a mere matter of detail that did not require further democratic consultation, but—as I pointed out in an intervention—simultaneously claimed that it was so fundamentally important that it was a core part of the Liberal Democrats' campaign during the referendum debate.

§ Mr. Letwin
I have been puzzling for some time about the logic of the speech of the hon. Member for Montgomeryshire (Mr. Öpik). Does my hon. Friend agree that it could be reduced to the following proposition? At the time of the referendum, the Liberal Democrats took the view that there should be tax-raising powers; the people of Wales did not. The Liberal Democrats therefore provide a constitutional basis for assuming that the referendum should have had a result that it did not have, and, accordingly, no further democratic legitimisation is necessary.

§ Mr. Hayes
The situation is even more stark and extraordinary than my hon. Friend suggests. The Liberal Democrat view in respect of Europe is that a referendum is not only desirable but necessary. However, they take a rather less generous view about the will of the Welsh people. That is an inherent contradiction.

§ Mr. Öpik
Will the hon. Gentleman give way?

§ Mr. Hayes
No. I must make progress.
As I have said, the nub of the debate is the ability to transfer and move powers: it is not about the powers themselves. On various occasions, my right hon. Friend the Member for Devizes (Mr. Ancram) has described the legislation as a dog's dinner, a pig in a poke and, I think, a fog. That is an interesting and colourful use of 86 metaphors. One might say that we have been left with a pig's breakfast or perhaps a dog in a poke—at least a confused relationship between the bodies that exercise political power. Later in Committee, we shall debate cross-border authority and that may lead to further discussion about the confused relationship.
For the purpose of clarity, the Secretary of State must give an authoritative answer about the precise relationship between the bodies that exercise political power in Wales and the way that political sovereignty and authority are transferred between them.

§ Mr. Ron Davies
I express my deep gratitude to, and my undying admiration for, my right hon. Friend the Member for Llanelli (Mr. Davies). Without his considered and helpful amendment, we should have been denied a fascinating debate over the past hour. He used his considerable expertise in putting his case and he is invariably helpful when he tables such amendments. I must decline my right hon. Friend's offer. He suggested that I might want to accept the amendments to get myself out of what he perceived to be a difficulty, but I do not perceive myself to be in any difficulty. Let us see whether we can agree on a starting point.
The White Paper made it plain that the assembly would not inherit functions that operate on a common UK basis, and they include taxation and macro-economic policy. It also made it clear that my functions on local taxation, which are operated separately in Wales, would be transferred to the assembly, although the Government will not take a decision on capping powers, for example, until the outcome of the current review of local government finance is known. I do not think that my right hon. Friend the Member for Llanelli and other hon. Members who have expressed an interest in the matter intended to imply through amendment No. 208 that the assembly would not have responsibilities for local taxation in Wales unless there were a referendum on the matter. That is the essence of my right hon. Friend's amendment. I do not want to use that as a means of rejecting the principle of what he said because he said that he was pressing at an open door.
The Government believe in holding a referendum if there is an important matter before Parliament. Perhaps, in the future, this Government, or any other, would want to do that if they were minded to go down the road of conveying tax-raising powers to the assembly. That proposal is not before the Committee, although I do not want to take refuge in that technical argument by using it to reject my right hon. Friend's two amendments.
Powers for the assembly on personal and corporate taxation formed no part of the proposals that the Government put to the Welsh people in September's referendum. I listened carefully to the considered speech by the hon. Member for Montgomeryshire (Mr. Ôpik), although I disagree with its central thrust that the assembly should have tax-raising powers.
My hon. Friend the Member for Linlithgow (Mr. Dalyell) asked whether the assembly would have the same powers as the Scottish Parliament. We could have a fascinating argument on that, but, if I went down that road, I should be called to order. Therefore, I am afraid that I cannot answer that question. He also asked whether, in the absence of the amendments, Parliament would be stripped of its sovereignty because powers would be passed to the Welsh assembly. The simple answer to 87 that is no. All the powers that we propose to transfer, whether by primary or secondary legislation, will ultimately have to be approved by Parliament. As we have said time and again, sovereignty rests in this Parliament, and no powers, whether they be for tax raising or for anything else, can pass to the assembly without the consent of Parliament.
As I have said, powers for the assembly on personal and corporate taxation form no part of the proposals. I do not think that any future Government who propose a tax-varying power for the assembly will present legislation without the express consent of the Welsh people. It is inconceivable that that could happen. [Interruption.] Hon. Members who wish to intervene should refer themselves to me and not use passing references in my speech to make ill-considered and unprovoked attacks on other hon. Members.
It is difficult to think of any circumstance in which the express consent of the people would not be sought. It is unnecessary to provide for that in the Bill because Ministers do not have powers to vary taxation. If powers existed to transfer taxation powers by means of secondary legislation, there might be a case for such a provision, although I do not think that there is.

§ Mr. Ancram
Will the Minister give way?

§ Mr. Davies
I shall shortly give way to the right hon. Gentleman, but first I should like to respond to his speech.
If such transfer powers existed, it might be fair to say that safeguards should be placed in the Bill. There is no such power.

§ Mr. Ancram
rose—

§ Mr. Letwin
rose—

§ Mr. Davies
There is nothing like talk of referendums and the attendant question of Europe to get the Conservative party into a frenzy. I hope that right hon. and hon. Members will contribute to the debate in an ordered and considered way.

§ Mr. Ancram
On Wednesday, the Minister gave a clear sign that he thought that taxation powers could be transferred by order, but went on to say that, of course, he would say, "Hang on, we should not do it that way." Is he withdrawing that remark and saying that they cannot be transferred by order? That is salient to the debate.

§ Mr. Davies
No, I am not saying that at all, and if the right hon. Gentleman asked me to say it, I would have to decline his invitation. Wednesday's debate was in an entirely different context and he was asking theoretical questions. [Interruption.] The right hon. Gentleman's habit of pouting and gesticulating when he does not like answers is not one of his most endearing. If he persists in asking self-evident questions, he must expect self-evident answers. Wednesday's debate was quite different from this one.
In theory, a range of matters could be transferred to the assembly, but, as I said to my right hon. Friend the Member for Llanelli, if the transfer of such powers were 88 proposed, it is likely that a future Parliament would say, "Hold on a minute." Any sensible Government with a practical, commonsense approach would say, "Those hugely significant powers cannot be transferred except by primary legislation." That was the case that I put on Wednesday and I am putting it again now.
It is unnecessary to provide in the Bill the safeguards that have been suggested because Ministers themselves do not have powers to vary taxation. Changes in tax rates are set out in the annual Finance Bill. Amendment No. 207 would prevent the transfer of any functions from my right hon. Friend the Chancellor of the Exchequer to the assembly.
Acts do not usually confer functions—this is an important point for my right hon. Friend, who is a former Treasury Minister—on the Chancellor of the Exchequer. The modern practice is that Acts confer functions on the Treasury, although some older Acts are different. The Government's policy is plain—we shall not be transferring to the assembly functions to do with macro-economic policy and United Kingdom taxation. The amendment is unnecessary to achieve that outcome. I remind the House that all orders under clause 22 are subject to affirmative resolution. Therefore, if any future Government wished to transfer significant Treasury functions to the assembly, they could do so only through primary legislation conveying those powers to a Treasury Minister, and then seeking further consent, by means of approval of an order, to transfer those powers from the Minister to the assembly.

§ Mr. Letwin
The right hon. Gentleman has now begun to clarify the matter. Does he accept that the consequence of what he is saying is that if, in some Finance Bill, the Chancellor of the Exchequer were given powers to make by order whatever rates of income tax that he so wished, those powers subsequently could be transferred by order to the Welsh assembly?

§ Mr. Davies
I shall not be drawn into hypothetical constructions. The hon. Gentleman could equally say that, if it were the Government's policy to make rockets to fly to the moon, the power to build those rockets could be transferred to the Welsh assembly. [Interruption.] I thought that that would get a ready response from the right hon. Member for Caernarfon (Mr. Wigley). However, I do not intend to become involved in hypothetical discussions about propositions that this Government have no intention of putting before the people.
Functions connected with the collection of national taxation are vested in the Commissioners of the Inland Revenue and of Customs and Excise. None of those functions can be transferred to the assembly under clause 89 22 because the two sets of commissioners have not been included in the definition of "Minister of the Crown" in clause 145.
I want to deal with the points raised by the right hon. Member for Devizes (Mr. Ancram). I have heard the speech that he made this evening at least half a dozen times before. There are genuine matters that need to be debated, but such tedious repetition time after time does not do his case any good and does not help the Committee explore the real issues. Our debate last week was an interesting precursor of what was to come today. [Interruption.] I am replying to the points that the right hon. Gentleman raised—[Interruption.] He has two ears and should apply them both to this serious debate; we might then be excused yet another repetition of his speech later this evening.
The right hon. Gentleman will remember our debate last week and the amendments tabled in his name. He said that power should be transferred to the assembly only through primary legislation, but then suggested that the Bill should provide for the unilateral removal of powers from the assembly through secondary legislation. We have had a re-run of his argument. He says that no transfer of powers to the assembly should be done through secondary legislation, but only last week he was arguing that it would be a suitable mechanism for taking powers back from the assembly.
As I said, we have serious issues to debate, but the right hon. Gentleman has not done his case any good. He and his colleagues have indulged in time wasting. We have seen synthetic indignation from his hon. Friends who have come into the Chamber only because there is a debate about a referendum. They do not have the slightest interest in Welsh devolution or in the Bill—they just want to rehearse spurious arguments about the holding of a referendum.
The statements that we have had from Conservative Members are wholly bogus. The argument for a referendum is clear when there is a specific proposition before a political party, before the country, or before a Government. None of those circumstances applies at the moment. My party is not proposing to convey powers to the assembly to raise taxation and the Government are not proposing to do so. There is no proposal to put that before the people at the next election or for the Government to introduce any such legislation.
When referendums have been held, there has always been a specific matter before a political party which it needs to resolve. The Conservative party understands the need sometimes to use a referendum to get it out of a difficult position. My party certainly recognised that, on the devolution question, there was a strong strategic argument in favour of a referendum to obtain the specific consent of the people for constitutional change. The Government recognise that if the status of sterling were to be changed, there would have to be a referendum or the consent of the people obtained at a general election. My party and this Government do not have any proposition before them to alter the status of the assembly by conveying to it the power to raise taxation. Therefore, the arguments that we have heard are entirely irrelevant.
As the right hon. Member for Devizes waxes so indignantly about the matter, why did he not table any amendments to clause 22? All the arguments from the right hon. Gentleman and his hon. Friends have been in 90 support of an amendment tabled by my right hon. Friend the Member for Llanelli. If the Opposition had any commitment or determination to pursue the matter, they would have tabled their own amendments.

§ Mr. Ancram
The right hon. Gentleman referred to amendments we had tabled for last Wednesday's debate. If he looks at them, he will find that they were to clause 22. They were tabled to allow us to make the points that we did. We are supporting the right hon. Member for Llanelli (Mr. Davies) tonight because the Secretary of State failed to take any account of our amendments. I hope that he will take account of those tabled by his right hon. Friend.

§ Mr. Davies
I clearly acknowledged that amendments had been tabled last week—specifically, amendments Nos. 45, 46 and 47. I reminded the House that the purpose of those amendments was not to provide for a referendum or to provide any safeguards. Amendment No. 45 would convey powers to the assembly exclusively through primary legislation. There was no reference to either a referendum or to taxation powers. Amendments Nos. 46 and 47 would take powers away from the assembly through secondary legislation, not primary legislation. They have nothing to do with the amendments that we are discussing, which is why this evening we heard a repetition of the right hon. Gentleman's boring, tedious old speech.

§ Mr. Denzil Davies
I thank my right hon. Friend the Secretary of State for valiantly working his way—this is no criticism—through the taxation powers of the Chancellor of the Exchequer, the Inland Revenue and the Treasury. It is not a simple matter, as taxation covers all sorts of different areas.
I was as surprised as the hon. Member for West Dorset (Mr. Letwin) and others when, during our last debate, my right hon. Friend said that it was possible to transfer taxation powers by order. I always thought that that needed primary legislation somewhere along the way. I think that, in his reply this evening, my right hon. Friend is now saying that, but intertwined with statements such as "theoretically possible". [Interruption.] My right hon. Friend must not despair when I say that, because it is what he said. He said that it could not be done without primary legislation. He also said that, anyway, the Government had no intention of doing that. I am sure that that is the case, but he was mixing up those matters.
If my right hon. Friend were simply to say, "No, there are no powers in the Bill to transfer taxation by order to the Welsh assembly", we would understand that, and go away happy because that was always our understanding of the constitutional position. He did not quite say that, although he came fairly close. Perhaps he will say it now.

§ Mr. Ron Davies
If my right hon. Friend had asked me that question, I would have given him an answer. However, he did not ask me that question. I was asked whether it would be possible to do it. The answer to that question must be, in a theoretical sense: yes, of course it is. As I made it clear in this debate, however, that can be done only if primary legislation initially conveyed the 91 powers to a Treasury Minister. The House's specific approval would then be necessary to transfer the powers to the assembly. It is a theoretical possibility.

§ Mr. Davies
I am grateful for that reply. I think, Mr. Jones, that perhaps we should draw this debate to a close. There was considerable meat in my right hon. Friend's speech, and we should perhaps re-examine the matter. It may be possible—in another place, if not in the House—to table a more precise amendment.
On that basis—and on the basis that we have had a very good debate, for which I thank my right hon. Friend—I beg to ask leave to withdraw the amendment.