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The Parliamentary Under-Secretary of State for Wales (Mr. Jon Owen Jones): Cardiff, Central.
Mr. Dafis: That is right. I should like to hear the hon. Gentleman and other Ministers say that they recognise that future legislation should be universally drafted so that the secondary powers of the National Assembly give it the latitude that it needs if it is to put in place the strategies to enable us to build the new Wales. I look forward to the Government's response.
Mr. Oliver Letwin (West Dorset): When I first arrived in the House, I was instructed that, among the many people whom I would come across, bizarrely, the nicest would be Welsh nationalists. The hon. Member for Ceredigion (Mr. Dafis) is no exception to that rule, and he has treated us to the delightful--and apparently charming--prospect of a slight technical amendment to the Bill to achieve what he described as an efficiency.
As a matter of fact, the Conservative party in Wales strongly disapproves of the hon. Gentleman's views. [Laughter.] Yes, it is a matter of amusement to us that the Government's actions in these matters will have substantially recreated the Conservative party in Wales and its representation, as Ministers were good enough to admit--perhaps more than the Government originally reckoned on. However, the Conservative party in Wales differs from the hon. Member for Ceredigion on the matter of substance, in that its position is that if this is a good Bill for England, it cannot see why it would be a bad Bill for Wales.
The Minister for the Environment has waxed eloquent on the Bill's virtues, and my hon. Friend the Member for West Chelmsford (Mr. Burns) and I have never opposed the general principles underlying it, as Ministers know. Therefore we have argued that it is--taken by and large, and with some defects--good for England, and so good also for Wales.
However, it is not on that matter of substance that I want to argue very strongly against the new clause. The hon. Member for Ceredigion raised, in a short speech, just about every major constitutional mistake that could be made in taking forward the relationship between the House and the National Assembly, and his new clause, alas, accurately reflects that programme.
Water, as the Minister will very well know, is included as item 17 in schedule 2 to the Government of Wales Act 1998. Hence it is appropriate that it also appears as a subject in the remarkable set of documents that the Transfer of Functions (National Assembly for Wales) Order 1999 and its appendices have become. I do not think that the Minister was present for the entirety of our discussion on the order during the proceedings on the Government of Wales Bill. However, he may recall that there was a great deal of discussion of just what that order would do. No one doubted that its sole intent--the structure of what became the Government of Wales Act ensured that it would have as its sole intent--was to allow Ministers through the order, under the aegis of the House and Parliament, to transfer authorities that now reside with a Minister at Westminster to the Welsh Assembly.
It is a critical component of the architecture of the Government of Wales Act that there was no suggestion that there would be under that transfer of functions any transfer of powers that resided elsewhere than with the Minister, and certainly no transfer of powers that resided with this Parliament under that order. That would have carried the Henry VIII principles far further than even Ministers in their most daring moments were willing to take them under that transfer of functions order.
There is a large range of powers relating to water residing with Ministers. They are well covered, if not completely, in the descriptions of all the powers that are to be transferred under the order in relation to the Water Industry Act 1991 and its sequels and accompaniments. Every one of those powers is, as it should be, a power currently with the Minister. There is no suggestion anywhere of the transfer of anything other than a power that resides with the Minister.
Unfortunately, the power that is the subject of the new clause--this takes us back to section 61 of the Water Industry Act 1991--is not the main power; it is not a power of the Minister--it is the power of the water undertakings to disconnect. The new clause would do something wholly outwith the spirit of the Government of Wales Act. It would arrange things so that the Welsh Assembly was able to legislate on a power that belongs to a third party. It would achieve that effect in another piece of legislation taken through this Parliament and not in the transfer of functions order.
There are three reasons why that is of the greatest possible constitutional significance. First, there is what we can properly describe only as the ratchet effect. I am sure that the hon. Member for Ceredigion will not disagree with this part of my analysis, though he will certainly disagree with my conclusion. It is fair to say that although this is hardly a packed Chamber, even some Labour Members present would have been extremely disheartened if anyone had suggested that the Bill and the new clause would be used as a method of doing the opposite of what the hon. Gentleman is seeking to do--that is to diminish rather than augment the powers of the Welsh Assembly. Had that been proposed by myself or my hon. Friends this evening, the hon. Gentleman would rapidly have left his place and shot off to the nearest porthole of the BBC or its Welsh equivalent to start broadcasting vehemently about the appalling attack on everything that matters in the world being perpetrated by Members who were suggesting a diminution of the powers of the Welsh Assembly.
However, not many days--certainly not many weeks or months--after the passage of the Government of Wales Act, we find the hon. Member for Ceredigion and his entire parliamentary party coming forward with a new clause that significantly augments the powers of the Welsh Assembly. I prophesy--I am sure that the hon. Gentleman and his hon. Friends will not mind my so doing--that this will not be the last such attempt. I rather think that for as long as they, with their eloquence and persistence, hold their seats in this place, and for as long as the Government bring forward legislation that includes the words "England and Wales", we shall see on almost every occasion amendments brought forward to augment the powers of the Welsh Assembly in respect of a wide range of legislation.
That is not anything that the hon. Gentleman and his hon. Friends would be ashamed of doing. On the contrary, it is part of their programme. I fully accept that. However, it is important that the House recognises how radical a proposal that is, and that tonight it sets a precedent--I hope very much that my remarks will have the support of Ministers--by refusing to be a party to that sort of ratchet.
If the new clause is pressed to a Division, and if, by any strange mischance, Ministers should find themselves and their colleagues in the same Lobby as the hon. Member for Ceredigion and his colleagues, Ministers will have fulfilled in the most unfortunate fashion that dreadful phrase that the former Secretary of State for Wales used when we discussed these matters on Second Reading and in Committee on the Bill that became the Government of Wales Act. The right hon. Member for Caerphilly (Mr. Davies) used to say that devolution was not an end point but a process. In the circumstances that I have described, it will become a process--[Interruption.] I rather thought that the hon. Member for Ceredigion and his hon. Friends would not object to that. It will become a process that will lead us ineluctably to the very point that the hon. Gentleman lightly animadverted to when he said--I think that I paraphrase him accurately enough--that in due course, almost inevitably, there will be legislative powers to transfer legislative powers to the Welsh Assembly.
Apart from the ratchet effect, the second reason why I think that it is of the greatest importance that the House pays serious attention to the new clause, and why I think that it is of the greatest importance that the House rejects it, is that the new clause, if it were accepted, would drive a coach and horses through the very mechanism which the Government of Wales Act sets up and which the Government believe that they have had established in order to get a grip from Westminster over affairs in Wales.
There is a reason why the transfer of functions order is as it is. There is a reason why it is not cast in a way that mirrors the new clause. The text of the new clause says nothing about transferring functions. Instead, it states:
"The National Assembly for Wales shall . . . consider the provisions of this Act and make decisions".
What relationship does that set up between the House and the National Assembly for Wales? It is a relationship of advice on the part of the House and consideration and decision on the part of the Welsh Assembly. By contrast, the transfer of functions order allows the House to allow a Minister to transfer some Executive authority from himself to another body. These are wholly different constitutional relationships.
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