ORDERS AND DIRECTIONS (Hansard, 2 March 1998)

§ Mr. Jenkin
I beg to move amendment No. 513, in page 67, line 6, leave out from 'applies' to end of line 27 and insert 'to all orders under this Act.'. The amendment is essentially probing; it is designed to give the Government the opportunity to explain the purpose of the clause. We have already heard that the Government are most unhappy that this Parliament should have any scrutiny over anything that has been devolved to the Welsh assembly. The clause says: No order … shall be made unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament. The clause then lists a large number of exceptions. By deleting the exceptions, the amendment would obviously act as a sledgehammer, but it is designed to elicit a response from the Minister. Will he illuminate the Committee on the mechanics and purpose of the clause?

§ Mr. Collins
The amendment deals with some extremely important matters. As the clause stands, Parliament would not debate, other than in special circumstances, matters relating to the date of the elections; payment under certain circumstances to Members of the Assembly; transfers of property; the role of the Auditor 822 General for Wales; the staff of the Development Board for Rural Wales; and the role of the Welsh Development Agency. Those are important matters. [Interruption.] The Secretary of State may say that that is devolution—

§ Mr. Ron Davies
It was not me.

§ Mr. Collins
Well, another hon. Member must have said—

The Second Deputy Chairman
Order. It would help very much if we did not have sedentary interventions, and also if hon. Members did not respond to them.

§ Mr. Collins
I shall make a point of not doing so, Mr. Lord.
It is important for the Government to put it on the record why they do not intend to permit Parliament to have proper scrutiny of such legislation. It is not good enough to say that it is all a matter of devolution, as if the United Kingdom Parliament no longer had any role. Such important matters need to be discussed in the future, as today.

§ Mr. Letwin
I have no hesitation in depriving the Secretary of State of his beauty sleep for a little longer to discuss amendment No. 513, which—if anything—my hon. Friend the Member for North Essex (Mr. Jenkin) undersold. His brilliance in drafting it exceeds his rhetoric. I hope that the Minister who responds to the debate will answer some serious questions about what clause 144, in the absence of the amendment, would achieve.
I wish to direct the Minister's attention to the powers that the Bill will give the Secretary of State to make orders, including those powers in clause 22, which the Secretary of State clearly believes—judging from a remark he made earlier—are qualified by the restrictions in clause 23. However, on Report, we may raise our doubts about whether that clause is sufficiently tightly drafted to have such restrictive effects.
10.45 pm
In the absence of amendment No. 513, would clause 144 have the effect that orders transferring additional powers to the Welsh assembly could be passed by the House of Commons by negative resolution, without even 90 minutes of debate? If so, that is a remarkable constitutional departure, which should have been included in the White Paper but was not and should have been described by the Secretary of State but has not been. Clause 144 is a case either of bad drafting—as we hve experienced frequently with the Bill—or of intent. I may have mistaken the purport of the clause, but it would be helpful if the Minister elucidated it for the Committee.
How will clause 144 operate in the absence of amendment No. 513? Is not the amendment necessary to force orders made under clause 22, as possibly restricted by clause 23, to be subject to the affirmative resolution procedure? That is the minimum that the House could demand of further transfers of its powers to the Welsh assembly. It is the most extraordinary feature of an ill-conceived Bill that the House should be asked to allow 823 the Secretary of State to transfer its powers to another body by order instead of by primary legislation. That is an aberration.
However, we have passed that point in the Bill and we are considering the effects of clause 144. The very least that any responsible House of Commons could demand of the Secretary of State is that further transfers of its powers should be by affirmative resolution. If I have misunderstood the purport of clause 144, the Minister should explain the situation. If I have correctly understood it, the Minister has not a leg to stand on unless he is willing to accept amendment No. 513.

§ Mr. Win Griffiths
Clause 144 seems to have exercised the minds of Conservative Members; they have tabled the Little Big Horn amendment in a desperate last stand, to prevent the whole purpose of the Bill from being achieved. The Bill is about the government of Wales and the devolution of powers to the national assembly. Clause 144 provides that all powers to make orders are to be exercisable by statutory instrument and sets out the required parliamentary procedures for the Secretary of State's order-making powers. Orders in Council are already required to be exercised by statutory instrument under the Statutory Instruments Act 1946.
Clause 144 sets out the parliamentary procedures that will apply to orders made under the Bill. More significant orders, especially those exercising the so-called Henry VIII powers, are to be subject to laying in draft and affirmative resolution. More technical matters are to be subject only to the negative resolution process. That approach is in accordance with long-standing practice under other statutes, and I am surprised that Conservative Members object in this instance.

§ Mr. Letwin
The Minister may implicitly have admitted what I was asking about, but will he clarify the matter? Is he therefore agreeing that, under clause 144 as it stands, in the absence of amendment No. 513, it would be possible to make orders under clause 22, by negative resolution?

§ Mr. Griffiths
Clause 22(4)(a) provides that the affirmative resolution procedure will apply to all Orders in Council under clause 22. If the hon. Gentleman looks at clause 22, he will see that all Orders in Council will go through the affirmative resolution procedure.

§ Mr. Letwin
That is the issue that led me to the conclusion that there must be a failure of drafting; will the Minister comment? Clause 22(4)(a) does not appear to have the effect that he described. It appears directly to contradict clause 144. Which will prevail, and why does he imagine that clause 22(4)(a) will prevail?

§ Mr. Griffiths
I do not believe that there is any contradiction, because this part of the Bill refers to an order made by the Secretary of State, to which clause 144 applies; and clause 22 refers to an Order in Council. The two are different. Given the time of the night, and as there are other things to do before we conclude our proceedings, perhaps we should conduct some correspondence to settle the matter if there is any need to do so.

§ Mr. Jenkin
May I clarify that the Minister is saying that there is a difference between "make an order" under clause 144(1), where it says, Any power of the Secretary of State or the Assembly under this Act to make an order", and an Order in Council, and that therefore he is satisfied that an Order in Council would not be covered by clause 144? I believe that that would answer the point made by my hon. Friend the Member for West Dorset (Mr. Letwin).

§ Mr. Griffiths
I am satisfied that the two are mutually exclusive and deal with separate issues, but as these are difficult and complex technical matters, I am fully prepared to look at the matter again and let hon. Members know well before Report, so that we may return to it if there is a problem. However, I am pretty confident that it is as I have said.
As amendment No. 513 is phrased, it would require us to debate in the House and approve the transfer to the assembly of specific property, rights or liabilities; the purposes for which the office of Her Majesty's chief inspector of schools in Wales is to be treated as a Government Department; and the transfer of staff to the new Welsh Development Agency. A load of technical things would be caught by the amendment, so I hope that the hon. Member for North Essex (Mr. Jenkin) will withdraw it.

§ Mr. Jenkin
I am grateful to my hon. Friend the Member for West Dorset (Mr. Letwin), who extended the debate in a most interesting and informative fashion, and I am grateful to the Minister for replying. I look forward to the correspondence to which the Minister refers, if there is a need for it.
I beg to ask leave to withdraw the amendment.