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Mr. Andrew Hunter (Basingstoke) (DUP): I make it clear at the outset that I have no financial interest to declare in the subject of the debate but, as an enthusiastic member of the Lords and Commons pipe and cigar smokers club, I take a keen personal interest in the matter.
The Bill is intriguing. Ostensibly, it is about its titlesmoking in public places in Wales. The hon. Member for Cardiff, North (Julie Morgan), who came third or fourth in the ballot for a private Member's Bill, has made an interesting decision in choosing to run with the Bill, because there was no need for her to do it. We can say that with some confidence because, in November last year, the Secretary of State for Health announced Government policy and legislative intentions on smoking in the workplace in the White Paper, "Choosing Health". The Department of Health has made it known that it intends to publish draft regulations for consultation to give effect to that policy later this year. The Secretary of State for Wales has confirmed on many occasions, and as recently as 3 March in the House, that
In other words, there was no need for the hon. Lady to devote to the measure the time that she so fortuitously won in the ballot. The Government had already committed themselves to introducing before long broadly the same legislation as the Bill.
Mr. Win Griffiths: Surely the point has already been made that the White Paper falls short of the proposals in the Bill, and that it is therefore important to raise the wider issues and not be content with the halfway house that the White Paper proposes.
Mr. Hunter: The hon. Gentleman knows that the Leader of the House, who is also Secretary of State for Wales, gave assurances only the other day that the legislation that the Government introduced in due course would satisfy the hon. Lady and her supporters.
Sir George Young: Does my hon. Friend recall that the Government promised at the previous election to introduce a more democratic and accountable House of Lords, but that does not appear to have happened? Is he therefore confident that the assurances to which he referred will be honoured?
Mr. Hunter: The thrust of my argument today is not about the Bill's contents as they affect smoking or non-smoking but about its constitutional implications. If the hon. Lady bears with me, she will understand that that is the line that I am pursuing.
"We are not able to support my hon. Friend's Bill for various reasons, but in terms of the thrust of the policy that it contains she will find that we are with her in spirit."[Official Report, 3 March 2005; Vol. 431, co. 1109.]
The Government are therefore committed to introducing a Bill that will be broadly similar to the measure that we are considering, which they cannot support for "various reasons." I wonder what those "various reasons" might be.
I do not for a moment doubt the sincerity of the views on smoking held by the hon. Member for Cardiff, North or by the right hon. and hon. Members who have given her Bill their support. However, I speculate that, while the Bill is ostensibly about restricting smoking, there is actually another dimension to it. It is also about extending the perimeters of devolved government in Wales beyond those prescribed in the Government of Wales Act 1998.
I now represent a party that takes a close interest in devolved government, and the proposition that so weighty an item of legislation as the Government of Wales Act 1998or the Northern Ireland Act 1998 or the Scotland Act 1998could be amended effectively by private Members' Bills gives me cause for concern.
Mr. Forth: Does my hon. Friend agree that it is important, for precisely that reason, that we establish the degree of support that exists for a Bill of this kind? Were there to be any suggestion that a private Member's Bill of this kind should enter the constitutional arena, it would be important to demonstrate that the maximum number of colleagues supported it, and that it should not somehow slip through unnoticed, given its constitutional implications.
Mr. Hunter: My right hon. Friend emphasises the point that I was trying to make. The extension of the perimeters of devolved government is such a weighty matter that it should be subject to the consideration of the whole House and, I would suggest, in Government time.
As hon. Members will know, the Government of Wales Act 1998 created the Welsh Assembly, to which substantial areas of executive competence were transferred, including certain powers of secondary law-making in those same areas of competence. However, the important point to bear in mind in this context is that the 1998 Act did not provide powers to make primary legislation. Under the Act, the National Assembly for Wales can introduce only secondary legislation, and it can do so only in areas in which the Secretary of State for Wales has competence to make such legislation for Wales. We should also remember that the Secretary of State has not yet devolved all the powers listed in schedule 2 of the Act. As there is no primary legislation in place prohibiting or regulating smoking in public places in Wales, the Secretary of State cannot, under the 1998 Act, devolve to the Assembly the power to introduce legislation on smoking.
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I would be very surprised indeed if the hon. Member for Cardiff, North was not fully aware of this issue. It formed an integral part of the debate on the Health (Wales) Bill in 2003 as it went through the House. Hon. Members will recall that the draft Bill was examined by the Welsh Affairs Committee, whose recommendations were considered by the Assembly's Health and Social Services Committee and then by the Assembly in plenary. There was considerable support for inserting three additional provisions into the Bill. Two are irrelevant to our proceedings today; one is not.
It would have required the agreement of the Government to incorporate that provision in the Bill. However, the Government did not agree to it, because the provision was incompatible with the Government of Wales Act 1998. Because there was no primary legislation about smoking in public places in Wales, the Secretary of State could not devolve secondary powers to the Assembly. When the Bill was enacted in April 2003, it contained no provisions on smoking in public places. My right hon. Friend the Member for North-West Hampshire (Sir George Young) and the hon. Member for Cardiff, North have both mentioned the Assembly's 39 to 10 vote in favour of a cross-party motion to press Westminster to devolve the powers necessary to enable smoking in public places to be banned in Wales.
No progress was made on that before Baroness Finlay introduced her Bill in the Lords in December 2003. Prior to the Second Reading of her Bill, in January 2004, the Delegated Powers and Regulatory Reform Committee reported on the Bill. Its third report, published on 8 January, contained three main findings. The first was:
"It is for the House as a whole to decide whether to agree to delegate powers, for Wales to the National Assembly (which the Committee would advise were not appropriate to be delegated), for England, to a Minister."
Precisely the same criticism can be made of the present Bill, and I suspect that that criticism will be reflected in the Government's comments on it. The Delegated Powers and Regulatory Reform Committee made the point even more strongly in its fifth report, published on 16 January 2004, which stated:
"The Committee remains of the view that the delegation of powers that the Bill proposes is not appropriate . . . None the less it is possible for the House to decide that in this case it is appropriate . . . That is a constitutional matter which remains for decision by the House."
The central thrust of my argument against this Bill is that the perimeters of the powers of devolved government are matters for Government policy and should be decided in Government time by the House as a whole. They should not be revised through the back door by private Members' Bills.
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The new clause 4 in the current Bill appears to be a misguided means of trying to force the delegation of power, which the Welsh Secretary does not have in primary legislation, to regulate smoking in public places in Wales. It relies on transferring ministerial functions by way of an Order in Council, subject to the Order being approved by both Houses of Parliament. Even if that were a correct interpretation of the appropriate provisions, it does not appear to be consistent with the Government's intentions with regard to the devolution of powers to the National Assembly for Wales, hence the Secretary of State's various reasons for the Government not supporting the Bill.
It would be entirely possible to argue against this Bill on a number of grounds. It can be argued that there is no need for intolerant anti-smoking legislation, and that a voluntary code restricting smoking to properly ventilated, segregated areas is perfectly feasible. It can also be argued that one of the more odious features of modern society is the increasing tendency for people to demand that activities that they do not like should be criminalised or otherwise banned. In the case of this Bill, none of those arguments need be deployed. The Bill stands self-condemned. The perimeters of devolved government should be debated as Government business, and it is inappropriate to try to extend them through a private Member's Bill.
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