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Mr. Dafydd Wigley (Caernarfon): The hon. Gentleman will, of course, accept that the Welsh Assembly will have the power to change primary legislation with regard to the Welsh Development Agency Act 1997 and some other Acts associated with that.

Mr. Letwin: I regret to say that, not surprisingly, the right hon. Gentleman is right. I and various of my hon. Friends lamented that at an earlier stage, but you will tell me, Mr. Deputy Speaker, that that is not an appropriate matter for us to consider tonight.

There is no doubt that precedents are already established, but they are strictly limited. The new clause would greatly extend the scope of those precedents and carry them into legislation other than the Government of Wales Act 1998. There is no doubt what that programme is--I would say "game", but it is in deadly earnest; it is a serious constitutional programme.

The Welsh nationalists are attempting to use the new clause as the basis for getting to the point where the Welsh Assembly becomes de facto a primary legislative body. Unless Ministers were willing, as we would be if the motion were pressed to a Division, to state clearly that that is unacceptable, they would be driving a coach and horses through the structure of their own Government of Wales Act.

There is a third point. This is a question not merely about the form of what is being done, but about the scope. In new clause 1, it is suggested that the Welsh Assembly should have the power to consider, first, whether the provisions of an English and Welsh Act should apply, and secondly, whether to substitute different provisions. The substitution of different provisions carries us a stage beyond what I have described--not simply into a matter of form, but into a matter of substance.

The new clause, surprisingly, is a new constitution for Wales in the making. It gives the Welsh Assembly directly, in UK law, the ability to make law. At that point, the distinction between primary and secondary legislation disappears. It is a remarkably cunningly drafted clause. It has been drafted in such a way that as the ratchet effect occurs and as such a provision is introduced for Bill after Bill, a new constitution will have been made without ever having been discussed or declared. Quite apart from whether the Welsh people want a primary legislative body in Wales--they were never asked--that is no way for a constitution to be made. That is my third point.

Even if it were right that the Welsh Assembly should have the power to consider and decide on the provisions of the Act, and even if it were right that it should, in general, have the power to substitute for Acts new

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de facto primary legislation, it would not be right that that should be introduced in this manner. It should be introduced only after mature consideration, possibly with a referendum and certainly with a White Paper and a great deal of debate and discussion.

The third reason that Ministers would be acting wrongly if they had the slightest inclination to go into the Lobby with the hon. Member for Ceredigion and his colleagues is that they would be admitting that it was proper to introduce such constitutional change on the sly.

Mr. James Gray (North Wiltshire): My hon. Friend makes a powerful constitutional point. Has he considered the practical question of what would happen if Welsh Water, by this means, charged or applied regulations differently in Wales and in the large area around Bristol that it supplies? For example, Welsh Water could use the council tax in Wales, but would still have to use the rateable values in Bristol and elsewhere.

Mr. Letwin: My hon. Friend is right. That brings us to the question of the borders. I treat the subject with some hesitation because there are hon. Members present who remember that it was not my most glorious moment when I mistook the location of certain schools. That was due to a postal address confusion. That episode, shameful as it was in my case, illustrated all too clearly the very problems to which my hon. Friend refers.

There are issues of great complexity that relate to the borders, and problems might arise in practice if the new clause were enacted and if, as a result of its enactment, the Welsh Assembly decided to take steps that led to Welsh Water behaving quite differently from the English undertakings.

There is nothing in the new clause--this is what is so remarkable about it--that substantively causes that problem. The clause is drafted in a constitutional spirit. It says nothing about the outcome or about what the Welsh Assembly should or would decide. The hon. Member for Ceredigion made that clear. It is, so to speak, a permissive clause. It is, in other words, a transfer of powers.

The new clause is a constitutional clause. It is intended to be that and has been drafted well. Unfortunately, it has none of the surroundings that would make it legitimate. If the House has any purpose--especially at 8.26 on an evening when it is hardly full--it is to bring to light the fact that something is being done that has consequences far beyond the apparently modest intent of the clause.

I apologise to the House for having laboured the point. I know that some hon. Members present would have wished me to be more concise or to say nothing. However, it is of the utmost importance that these matters be put on record. I hope that we will hear from Labour Members who share the constitutional concerns that I have expressed--I see some of them in their places. I hope that it will be established that those concerns are not merely the concerns of the Opposition, but are widely shared in the House.

I hope that when subsequent Bills are considered, and similar clauses are moved, people will be able to point back to the debate tonight as proof that we were awake and alive to the problems, and that we understood the implications, rejected them and set no such precedent.

I look forward to hearing from the Minister how much he agrees with everything that I have said and how strongly he will move his colleagues into the No Lobby

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if there is a Division. If that occurs, we can let the Government off the hook of any complicity in this gunpowder plot, little and delightful as it may appear to be.

Mr. Richard Livsey (Brecon and Radnorshire): I shall be brief, but I shall make some fundamental points. We Liberal Democrats support new clause 1, which would restrict sections 1 to 11 and 16 and 17 to England, and determine that such a decision should be in the ambit of the Welsh Assembly.

Mr. Letwin rose--

Mr. Livsey: I have just started my speech. I will give way at an appropriate moment. The hon. Member for West Dorset (Mr. Letwin) said that this would occur in Bill after Bill. We are considering the Water Industry Bill. He said that arrangements in England and Wales had to be virtually the same, but we have our own water company--Dwr Cymru or Welsh Water--which already behaves differently. It prefers to run a charging policy based on rateable value. As the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) said, we want such flexibility because it might, as the hon. Member for Ceredigion (Mr. Dafis) said, be based on council tax banding, for example. In short, it might be more appropriate.

8.30 pm

That brings me to the subject of metering. Welsh Water would prefer to stick with the rateable value. I believe that it is open-minded about the council tax banding issue. But because Wales requires a huge water pipe infrastructure, because the sparsity of population in many places requires miles and miles of piping, different circumstances obtain in Wales.

New clause 1 says that the Welsh Assembly should have an input into how the matter is proceeded with. I am a keen fisherman, and the issues of compensatory flow, for example, in Welsh rivers, and the abstraction of water from rivers in different places, are important. I have asked many questions in the past about whether compensatory flow is adequate in certain circumstances to sustain the ecology, the fish population and many other matters. Sometimes we must look carefully to see whether rules exist.

As the hon. Member for West Dorset knows full well, there is a precedent. The Government of Wales Act 1998 acknowledges, for example, that if reservoirs are constructed in Wales the Welsh Assembly should be consulted as to their acceptability.

Mr. Letwin: I fear that the hon. Gentleman may be embarking on a speech even more profoundly inclined to make people sleep than mine, but will he keep the House awake an instant further and tell us whether it is Liberal Democrat policy that a precedent should be set in this case permitting the constitutional transfer of powers--legislative powers--from this House to the Welsh Assembly; or is he merely making the point about this Bill, and is willing to state that it is not his party's policy to allow such a precedent to be set?

Mr. Livsey: The hon. Gentleman will realise that the Liberal Democrats are federalists and believe that decision

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making should occur at the appropriate level in the Government of the United Kingdom. Perhaps even the hon. Gentleman will admit that water, Wales's greatest natural resource, is an important issue to the Members of the Welsh Assembly. They will want to contribute to and influence policy on, for example, water regulations. Water is a politically sensitive issue in Wales, of which the House is surely aware. New clause 1 is a way of satisfying the needs and circumstances of Wales where they differ from those of England.

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