SUBORDINATE LEGISLATION (Hansard, 25 March 1998)

HC Deb 25 March 1998 vol 309 cc596-604 596

§ '(1) The subordinate legislation procedures must include provision for ensuring that, before a draft of a statutory instrument containing Assembly general subordinate legislation is laid before the Assembly, the draft is—

(a) submitted to a committee consisting of all Members of the House of Commons representing constituencies in Wales; and
(b) approved by that committee.

§ (2) When any draft is submitted to the committee under this section, the committee shall report within a reasonable period as to whether it approves the draft.'.[Mr. Evans.]

§ Brought up, and read the First time.

§ Mr. Evans
I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker
With this, it will be convenient to discuss the following: New clause 6—Reports prepared under Part IV— 597 'The Secretary of State, Comptroller and Auditor General, Auditor General for Wales and the Assembly shall lay before both Houses of Parliament any statement prepared under Part IV of this Act.'.

§ New clause 15—Relations with House of Commons

'.—(1) The standing orders of the Assembly may make provision for the agreement by the Assembly and publication by it of proposed amendments to any bill to which this subsection applies.
(2) Subsection (1) applies to any public bill affecting Wales in any of the fields referred to in Schedule 2 which has received a second reading in the House of Commons.
(3) The standing orders of the Assembly may make provision for the publication of draft public bills affecting Wales in any of the fields referred to in Schedule 2.
(4) Proposed amendments and proposed bills published under subsections (1) or (3) shall be laid before the House of Commons by the Secretary of State, and that House shall make provision for such amendments and bills to be considered.
(5) Nothing in subsection (4) shall require the House of Commons to consider amendments or bills published by the Assembly if those amendments or bills do not conform with any rule of the House.'.

§ Mr. Evans
I am grateful for the opportunity to discuss new clause 2 and new clause 6 even if we did not have the opportunity to discuss new clause 31—a clause that we never debated and did not have the opportunity to amend. I think that that demonstrates clearly the need for the extra day that we requested.
The proposed new clauses present another opportunity to improve the Bill. Although they are relatively short, they are none the less important, because they refer to the relationship between the assembly and Westminster. We must recognise that such a relationship must exist, even though powers are being devolved through the Secretary of State to the new body. While recognising the supremacy of Westminster, we must ensure that there is a real partnership between the assembly and this Parliament. The hon. Member for Vale of Glamorgan (Mr. Smith) referred to partnership time and again.
Consideration of the new clauses provides another opportunity to examination the checks and balances that will be necessary within the new assembly. There is an on-going debate in this place about what should happen to the other place. Despite that debate, no one disputes the fact that there should be a second Chamber—we all believe that another body should revise the legislation that passes through this place, and hopefully improve it. Perhaps the other place will improve the legislation that we are considering today.
In new clause 2, we have attempted to introduce a check and balance within the assembly while trying to ensure that the partnership between Westminster and the assembly continues. It appears that most Labour Members of Parliament at Westminster will remain here—there may be one exception—and not go to the new assembly. Therefore, we must ensure that they have a proper role. We are not sure what will happen to the Welsh Grand Committee; we do not know whether it will continue and whether it will have any real role.

§ Mr. Ron Davies
Not for you.

§ Mr. Evans
We already know that. The Conservative party, which received 317,000 votes in Wales, has no voice on the Welsh Grand Committee.
598 New clause 2 does not refer to the Welsh Grand Committee as such because we know that, in the past, hon. Members representing constituencies outside Wales have served on the Committee. We have said that all 40 Members of Parliament who represent Welsh constituencies at Westminster and who have a real stake and a real interest in what occurs in Wales will also have more than a passing interest in what happens in the Welsh assembly. Some hon. Members may have a dual mandate—we do not know. However, the vast majority of Labour Members representing Welsh constituencies will remain in Westminster.
New clause 2 provides a real opportunity for secondary or subordinate legislation in the assembly to come to a Committee of the House consisting solely of Welsh Members of Parliament. They may then scrutinise the legislation and approve or not approve it within a reasonable time. As far as we are concerned, it is a very reasonable new clause. We do not propose that the body should delay subordinate legislation needlessly for months on end. We want to ensure that such legislation is passed as quickly as possible.

§ Mr. Dalyell
What would happen if Welsh Members in Westminster disapproved of such legislation?

§ Mr. Evans
Because of the supremacy of Parliament, the Welsh assembly would have to reconsider its decisions and change its mind. In the final instance, Westminster would be supreme. [Interruption.] I hear what the hon. Member for West Carmarthen and South Pembrokeshire (Mr. Ainger) says from a sedentary position. The Secretary of State for Wales admits that Westminster will remain the supreme body, even after devolution. We are simply formalising the arrangement to ensure that the hon. Member for West Carmarthen and South Pembrokeshire has something to do other than sit behind the Secretary of State—whether it is the present Secretary of State or a new one—and offer advice from a sedentary position.

§ Mr. Dalyell
I wish to record that, judging by his expression, the right hon. Member for Caernarfon (Mr. Wigley) does not agree.

§ Mr. Evans
That comes as no surprise to me. The journey on devolved Government that I am making is completely different from that of the right hon. Gentleman. He is following a route to independence that has no exit lanes. Therefore, I am not surprised by his reaction—in fact, I would be surprised if he had done anything other than look rather concerned about this suggestion.
New clause 6 concerns the relationship between Westminster and the new assembly. Part IV deals with financial matters, including grants and loans to the assembly, expenditure, remuneration expenses, accounts, examinations into the use of resources and Audit Committee reports. It goes from the famous clause 80, under which the Secretary of State will, from time to time, give money to the assembly, down to clause 104. The new clause would ensure that statements are laid before Parliament for scrutiny. Parliament remains the sovereign political body in the United Kingdom, and should have access to the details of public expenditure for scrutiny, particularly as they originate from this Parliament and are devolved to the assembly.
599 The Treasury is responsible for allocating the budget to the assembly and should be accountable to Parliament for such matters. It is a basic democratic demand that information on the assembly's expenditure should be available for debate in Parliament. Our two new clauses would ensure that the assembly will be a greater success, and that the partnership between Westminster and the assembly will be assured into the future.

§ Mr. Ron Davies
New clause 2 would place new procedural burdens on the assembly in respect of its order-making powers. Under the new clause, no order could be made by the assembly without its first having secured the approval of a Committee of Members of Parliament from Welsh constituencies.
Since we first debated the subordinate legislation procedures, my right hon. Friend the President of the Council has submitted a lengthy and detailed memorandum to the Joint Committee on Statutory Instruments, on both the Scottish Parliament's and the Welsh assembly's order-making powers. It summarises the provisions in the Government of Wales Bill related to the making of assembly orders. It also explains that my advisory group will consult widely in Wales after Easter about the detailed Standing Orders that the assembly should have for the exercise of its order-making powers.
The group is anxious that there should be greater public involvement in the making of subordinate legislation in Wales, and wants the Standing Orders to reflect that approach. I am minded to accept the group's advice on these matters. I hope that hon. Members present will find the Joint Committee report interesting, and I trust that the Joint Committee will find the memorandum helpful.
Unfortunately, I do not find new clause 2 at all helpful. I see no case for requiring the assembly's draft orders to be submitted to a special Committee of the House for approval. That proposition is entirely inconsistent with the most basic assumptions behind devolution: that the assembly will be a responsible, democratic body and will be well able to exercise its powers sensibly without constant supervision from the centre. Given the number of orders that the assembly will have to make, the proposal is wholly impractical. I hope that the hon. Member for Ribble Valley (Mr. Evans) will withdraw the new clause.
New clause 6 provides that any statement under part IV must be laid before both Houses of Parliament. Its effect is not altogether certain, because the term "statement" may not include accounts and reports, although I assume that that was the intention. It is unnecessary in most circumstances. Clauses 83 and 88 already provide for the Secretary of State's accounts to be laid before each House of Parliament by the Comptroller and Auditor General. I appreciate that they may not have been the main target of the proposal.
The Secretary of State will be accountable to the House for the grant that he or she pays to the assembly each year under clause 80. He or she will seek approval for that grant through a supply estimate, in the same way as at present. Those accounts will continue to be audited by the Comptroller and Auditor General and laid before Parliament.
We must recognise that the role of the House in approving public expenditure for Wales will change as a result of devolution, and the same holds true for Scotland. The House will no longer approve detailed financial 600 allocations for the Secretary of State for Wales, because the grant to the assembly will be a single, unhypothecated sum.
The way in which the assembly decides to use the money that it receives from the Secretary of State will be a matter for it alone. It will be accountable to the electorate in Wales for its decisions. Its accounts will be audited by the independent Auditor General for Wales, laid before the assembly and published. Providing for the assembly's accounts to be laid at Westminster would tend to undermine the change in responsibilities, and would blur accountability.
Although only the Auditor General for Wales will have responsibility for auditing the accounts of the assembly and its public bodies, the Bill provides for the Comptroller and Auditor General to have access for the purposes of value-for-money examinations and financial investigations. That is dealt with in clauses 100 and 101.
The Bill acknowledges that the Public Accounts Committee will also have a role. Clause 98 provides for the assembly's accounting officer to have responsibilities to the Public Accounts Committee. Similar responsibilities will be placed on accounting officers of other public bodies in Wales by Government amendments Nos. 109, 177 and 180, which we shall debate later.
Part IV provides appropriate mechanisms for accountability to Parliament that nevertheless reflect the fundamental changes in democratic accountability inherent in the process of devolution.
I appreciate that new clause 15 may be an attempt to draw out the Government's thinking on how the assembly could influence the content of legislation at Westminster.

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

§ Mr. Davies
I hope to finish shortly so that the right hon. Gentleman can make his speech on new clause 15.

§ Mr. Wigley
I was going to invite the Secretary of State to leave his speech at this point, so that I can explain the reasons for new clause 15 before he puts the arguments against it.

§ Mr. Davies
rose

Mr. Deputy Speaker
Order. Perhaps the Secretary of State was premature in seeking to catch my eye and perhaps I was premature in calling him. I apologise to the right hon. Gentleman for that. I am sure that the Secretary of State is keen to hear the right hon. Gentleman on this matter. Perhaps the Secretary of State could finish this part of his speech and seek to catch my eye again.

§ Mr. Davies
I appreciate that new clause 15 may be an attempt to draw out the Government's thinking on how the assembly would influence the content of legislation at Westminster. It would be inappropriate for me to speculate any further until I have heard the right hon. Gentleman.

8.45 pm

§ Mr. Wigley
I am grateful to the Secretary of State for interrupting his speech. I dare say that his notes will be just as relevant when he has heard what I have to say because I realise that responses are written before speeches are made.
601 I am glad of the opportunity to speak to new clause 15 because it addresses a material question. The hon. Member for Ribble Valley (Mr. Evans) was concerned about the role of Welsh Members at Westminster on matters arising from the assembly. The new clause sets out an excellent work load that can be passed on constructively. It deals with Bills that have had their Second Reading at Westminster and which affect matters that have been devolved to the assembly for executive and secondary legislative purposes. The assembly may take a view on the impact of legislation that is going through this place and, from its experience of executive responsibilities, especially for Welsh local government, for the Welsh language and for education in Wales, on all of which we have our own agenda, it may want to table amendments to the primary legislation. However, it does not have a vehicle to do that directly, because it cannot undertake primary legislation.
The new clause contains a mechanism by which, after Second Reading of a Bill, it will be possible for the assembly to present draft amendments for consideration here. They can be debated by Welsh Members and by Members from elsewhere. Unless the Bill contains such a provision, there will be great frustration, because members of the assembly will deal daily with such matters and with the implications of legislation in a different way from Welsh Members at Westminster. The absence of a mechanism to allow amendments or to close a loophole in primary legislation affecting Wales would cause difficulties.
The Secretary of State has almost accepted the principle. In an earlier debate, I was glad to be able to thank him for the way in which he is to enable private legislation to be brought from the assembly to Westminster. Private legislation may affect only a few square miles of Wales, and it is much more important for legislation affecting the whole of Wales on local government, education or the Welsh language to be treated in the same way. The wording of the new clause may not be appropriate, but I urge the Secretary of State to consider between now and the Bill reaching the other place whether there should be some formal mechanism to enable the assembly to have its wishes brought here.
We should bear in mind that the political colour of an administration in the assembly may be different from the colour of the Government at Westminster. The assembly may want action that the Government do not want to facilitate, and there should at least be an opportunity for the assembly's voice to be heard, although it would finally have to accept Parliament's determination on the primary legislation. The proposal is modest, and I shall be interested to hear the Secretary of State's considered response.

§ Mr. Tam Dalyell (Linlithgow)
As a United Kingdom MP, I can contain myself no longer from intruding on Welsh affairs. Having listened to the debate, I am certain that this arrangement cannot endure into the next Parliament or the one after that. In view of the Government's majority, it will probably endure quite easily in this Parliament. It is quite clear to an outsider that both sides are saying, "Get your tanks off my lawn." What was equally clear in that good-tempered exchange 602 of bonhomie was that the Opposition Front-Bench team has a completely different interpretation of what we are discussing from the Government Front-Bench team and indeed from the right hon. Member for Caernarfon (Mr. Wigley). They cannot all be right.
It was clear from the passionate intervention sotto voce by my hon. Friend the Member for West Carmarthen and South Pembrokeshire (Mr. Ainger) that he thought that there was absolutely no question of Westminster telling the Welsh assembly what to do in matters that pertain to it, but there is a little problem of pipers and tunes and who pays the money for all this. The time will come, sooner rather than later, when Westminster will say, "Hey, we're a bit strapped for cash," and look hard at the aspirations of the Welsh assembly. Therein lies a source of considerable trouble.
I do not want to intrude any further, but I say here and now that it is fanciful to believe that this situation can endure in a Parliament where the political arithmetic is different, especially when the votes of Welsh and Scottish Members could determine the shape, colour and policies of a Government of England.

§ Mr. Richard Livsey (Brecon and Radnorshire)
I will not follow the hon. Member for Linlithgow (Mr. Dalyell) down the path of tanks and so on, which is rather emotive. I understand why he uses those similes, but I do not think that things will go that way. New clause 2 sabotages the assembly's ability to have a proper say even in the few legislative powers that it has in relation to draft statutory instruments. As we know, the new clause says: before a draft of a statutory instrument containing Assembly general subordinate legislation is laid before the Assembly, the draft is— (a) submitted to a committee consisting of all Members of the House of Commons representing constituencies in Wales". It also says: the committee shall report within a reasonable period as to whether it approves the draft. Being a reasonable man, the hon. Member for Ribble Valley (Mr. Evans) used sweet reason in trying to persuade us that all would be well, but the interpretation of what is a reasonable period is as long as my arm and his combined. It could be any period. The new clause could be used as a delaying mechanism to frustrate the Welsh assembly. We do not see the point of going down that path.
On new clause 6 and scrutiny, as has been said, in any case, those accounts are laid before both the assembly and the House. Indeed, if it so wished, the Public Accounts Committee could probably examine the Welsh assembly's accounts as audited at any particular moment. We therefore feel that the safeguards are already there and that there is no need to accept new clause 6.
We agree that new clause 15 is useful. It allows the Welsh assembly to propose draft amendments to Bills. Obviously, if it so wishes, the House could reject those drafts; it could exercise that power. In any case, the new clause proposes draft amendments to Bills that directly affect only Wales. We support the new clause.

§ Mr. Grieve
I should like to address my remarks to new clause 2 and new clause 15—the latter is the reverse of the former. The debate—and particularly the speech by 603 the hon. Member for Linlithgow (Mr. Dalyell)—has been interesting. It appears to me that we have been labouring under a delusion that subordinate legislation is in some way different from primary legislation in terms of its impact on people. It is not. It creates criminal offences and, if it is not properly drafted, it can create enormous problems. There is ample evidence to suggest that it is often not properly drafted.
The new clauses are about the desire of Westminster to retain some measure of control over the way in which subordinate legislation goes through. Not surprisingly, new clause 15 expresses the desire of the Welsh nationalists that, when the assembly is set up, they should have some input into the primary legislation from which the subordinate legislation will be derived.
The Secretary of State mentioned the report produced by the President of the Council to the Joint Committee on Statutory Instruments. It is abundantly clear that, unless some mechanism is set up—admittedly, it would not go as far as new clause 2—to allow some input into the way in which the statutory instruments are drafted in Wales, we will be in a difficult position.
Last week there was a meeting between the Joint Committee on Statutory Instruments and representatives of the European Parliament to discuss the problem of subordinate legislation. It is quite apparent that, at the European level, there is no control over subordinate legislation, and that is a cause for concern. It was a topic that we discussed at some length. It emerged powerfully from the representations by Speaker's Counsel on the issue that, although the Joint Committee has no power to alter statutory instruments, its ability to report on them at least ensures a measure of conformity and that, on the whole, Government Departments listen to what we have to say.
The Secretary of State said that the Welsh assembly would have its own Speaker's Counsel and Department and that there was no reason why it should not do the job just as well as we do it here, although I have always thought that the job that we do here is thoroughly imperfect because we are not given the proper tools with which to do it. However, the fact remains that we live in a United Kingdom, and Wales and England share a common legal system. Although some statutory instruments are exclusive to Wales, a large number will be common to both.
In those circumstances, will statutory instruments be drafted differently as a result of exercises in semantics which may have profound implications if they are every challenged in the courts? What will we do when people in Wales tell their Members of Parliament that they are having regulations foisted upon them through statutory instruments which are imperfect compared with those that were passed for the same purpose here? The Secretary of State has never answered that question, and on the last occasion on which it was raised, he simply dismissed it.
I am taking the opportunity offered by new clause 2—perhaps slightly tendentiously—to ask him to reconsider it even in that most narrow ambit. I accept that new clause 2 goes far further, but it points up the enormous difficulty that results from splitting subordinate from primary legislation. We are not dealing with executive matters. The extent and range of subordinate legislation is so great that in many ways it affects people far more than the primary legislation. Unless that difficulty is resolved, we 604 shall continue to have problems. To some extent I sympathise with the right hon. Member for Caernarfon (Mr. Wigley), because I am concerned that the matter must be addressed.

§ Mr. Ron Davies
The hon. Member for Brecon and Radnorshire (Mr. Livsey) is having difficulty in coming to terms with the principle of devolution, and I am afraid that he has completely overstated his case.
I want to talk briefly about new clause 15. The right hon. Member for Caernarfon (Mr. Wigley) said that we had accepted that the assembly could be involved in the promotion of private legislation, therefore that could be extended to public legislation. I do not accept that because there is such a fundamental difference between the two.
Paragraph 3.38 of the White Paper states: The Bill would place a duty on the Secretary of State to consult the Assembly about the Government's programme for legislation after it has been announced in the Queen's Speech. Clause 32 delivers on that commitment. The consultation under it is one way in which the assembly can influence the content of primary legislation. I can assure the right hon. Gentleman, however, that, relying on the powers in clause 34, the assembly could make appropriate representations to whomever it chose about any Bill before Parliament that affected Wales, whether or not that Bill related to the areas covered in schedule 2. Those representations might include suggested amendments; they could be published or sent to the appropriate Minister, or to any Member of this House or of the House of Lords. Obviously, it will be for the Government or Parliament, as the case may be, to decide what, if anything, they want to do in the light of the assembly's representations. I am sure that the right hon. Gentleman will recognise that point.
It would not be right for the Bill to require the Secretary of State to table the proposed amendments and to require this House to provide for them to be considered. The only restriction in new clause 15 is that the amendments would have to conform with the rules of the House—the new clause is somewhat impractical in that respect.
Let us assume that the assembly wished to propose an amendment to a Government Bill which directly contradicted the policy— It being Nine o'clock, MR. DEPUTY SPEAKER, pursuant to the Order [15 January] and the Resolution [this day], put forthwith the Question already proposed from the Chair.

§ Question negatived.