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Hywel Williams : It is estimated that approximately 15 per cent. of social smoking has been displaced to the home in Ireland. Overall, however, there is insufficient evidence to say categorically that social smokers transferred their habits to the home when the ban was imposed. That appears on page 10 of the briefing, so there is some, but insufficient, evidence to decide the matter.

Mr. Garnier: I make no claims as to any evidence about Ireland, as I have not personally studied it, but I am grateful to the hon. Gentleman for reminding me of what appears in the disinterested and dispassionate
 
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Library briefing. It was not prepared by me, by the hon. Member for Cardiff, North, by the tobacco industry, or still less by the Government of the Republic of Ireland.

Having spoken about passive smoking and my concerns about aspects and unintended, if foreseeable, consequences of the Bill, I now wish to talk about another aspect of passivity—passive devolution, which is what the Bill is about. The hon. Lady presented her Bill cogently and with sincerity and a great deal of Welsh political knowledge. She is, as my right hon. Friend the Member for Bromley and Chislehurst implied, the husband of the First Minister—

The Parliamentary Under-Secretary of State for Wales (Mr. Don Touhig): Wife, surely?

Mr. Garnier: I was just testing to see whether the hon. Lady was listening; the Minister obviously was. The hon. Lady is the wife of the First Minister, and I have no doubt that there is active and passive political discussion in the Morgan household not only on Welsh political issues, but on the Bill. I do not doubt it when she tells me that most Welsh AMs support the thrust of the Bill, but while that is interesting, it is not conclusive of the validity of the process.

It is for us in this House, for the Government and for this Parliament to reach the conclusions as to the framework within which devolution works within the UK. If we look at the Government of Wales Act 1998, it is clear what Parliament intended then. The Government drafted the Act and the hon. Lady, who was a Member of this House at the time, no doubt voted for it with great enthusiasm. But she cannot get away from the fact that the enthusiasm in Wales for devolution was muted. There was a turnout of 50.1 per cent. for the referendum, of whom just over 50 per cent. voted for devolution, as suggested by the Government in the draft Bill, while about 49.5 per cent. voted against. We had a smallish turnout, which led effectively to 25 per cent. of the voting population of Wales supporting devolution.

With that as a necessary background to the passage of the Government of Wales Act, it is important that this House does not allow the Bill to go behind that low turnout and the content of the Act in order to achieve what I have neither flippantly nor rudely described as passive devolution.

Mr. Forth: It is probably a coincidence, but the 25 per cent. of the people in Wales who expressed support for devolution may or may not be the same 25 per cent. who still smoke. We may never know. Was my hon. and learned Friend as unimpressed as I was by the claim that a majority of Members of the Assembly want more powers? Does he agree that most respectable political bodies at all levels want more powers for their members? That is not unusual; indeed, it is rather normal, but it does not make the case.

Mr. Garnier: On the contrary, it merely amounts to an assertion that politicians are greedy for power. My job is to hold the Government to account. One way I can do so is by preventing them from allowing the Bill to devolve more power from the people of the United Kingdom, as represented in this Chamber, to other
 
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bodies. It does not matter whether that is the Welsh Assembly, the Scottish Parliament, the Northern Ireland Assembly or the European Parliament. I am here as the guardian of the interests and rights of my constituents who live within the United Kingdom.

If the Government wish to propose further legislation to amend the 1998 Act and delegate more powers to the Welsh Assembly, that is a matter for them. They must make their case here. I have a suspicion that even this Government—even with a Wales Office Minister sitting on the Front Bench, who, no doubt, used all the powers of persuasion available to him to persuade people to vote in favour of the referendum in 1997 so that his Welsh constituents should give him less to do here and the Assembly Members more to do in Wales—would not want this House to devolve powers via the office of the Secretary of State for Wales to the Welsh Assembly without the UK Government having some say in the matter and having considered its overall consequences.

Hywel Williams: I am obliged to the hon. and learned Gentleman for giving way a second time, and I hope not to try your patience too much, Mr Deputy Speaker. Should the good people of Harborough return the hon. and learned Gentleman by a majority of one in the forthcoming election, would he be as delighted to return here as we would all be to see him?

Mr. Garnier: Yes, I would. Of course, in the general election there is no statutory requirement for a specific turnout. I hope that there will be a huge turnout in my constituency, which, by and large, provides a far higher average turnout than the country as a whole. I do not know what the turnout was in the hon. Gentleman's constituency at the last election—

Hywel Williams: High.

Mr. Garnier: "High" is a very wide word. In my constituency, the percentage turnout was in the high 70s at the last election, whereas the national average was in the low 60s, or perhaps the high 50s. It is a side point, and much as I would like to discuss the figures with the hon. Gentleman, I want to concentrate on the Bill.

I want to ask the House whether, before it is enthusiastic in its desire to suppress unhealthy smoking, it will allow itself to damage the constitution of the United Kingdom. I wish to highlight the powers in the Government of Wales Act that the Bill wishes to amend. Clause 4(4) states that certain paragraphs of schedule 3 to the 1998 Act should

I do not want to anticipate what the Minister will say, but I want to let him know my views on passive devolution. I voted against the referendum and against devolution, but I accept that it is the law of the land and that the Welsh Assembly as currently constituted is a legitimate creature of statute and a child of this Parliament. However, I have a suspicion that it would be wrong to alter the 1998 Act by means of the Bill. I say that as a matter of constitutional theory, but also as a matter of political opinion reflected by the people of Wales.
 
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In 2003, the Economic and Research Council research programme on devolution and constitutional change asked voters what their reaction would be to a hypothetical event, the abolition of devolution in Wales. Some 39.5 per cent. said that they would be sorry while 60.5 per cent. would be either pleased or indifferent. I immediately enter the caveat that I do not know what the base figures were on which these percentages are based, but in so far as opinion polls are useful at all, they tell us that devolution is not the hot issue, or even the lukewarm issue, that it was prior to the Act.

Let us be clear about what the Government of Wales Act allows and what the Bill intends. The Assembly functions are set out in sections 21 and 22 of that Act, and in the schedule. Section 21 says:

the words "by this Act" are important, as no other legislation is involved—or

The hon. Member for Cardiff, North might say, "I am not outside the thrust of the provisions of the Government of Wales Act, because my Bill comes within the definition 'any other Act'." However, I am reasonably confident that that was not in the contemplation of the Government, still less of the House of Commons or the other place, when that legislation was going through its legislative process in 1997 and 1998.

Only certain ministerial functions are transferred to the Assembly under the 1998 Act, and those are referred to in section 22:

What is the Secretary of State allowed to do under the Act? He is allowed to enter into discussions to listen to the representations of the Assembly about which secondary legislation it wants to have discussed and introduced through the Assembly, but he is not allowed, off his own bat, to provide for the Assembly the power to make primary legislation. That is essentially what the Bill is trying to do. It would provide to the Assembly primary legislative powers subsequently to make regulations as to where people may smoke and who would be subject to the criminal penalties that come with the new offences in the Bill.

If the hon. Member for Cardiff, North wishes to persuade me and, I hope, the Minister, who represents the Crown in these matters, that what she intends is a good idea, that must be done, it seems to me, through the machinery of the amendment of the Government of Wales Act, discussed as a Government amendment in Government time on the Floor of the House in a proper and considered way, not just by a few of us on a Friday.
 
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We know that 20 Members voted at 9.35 this morning. Even all those who are present in the Chamber and listening to the debate do not come anywhere near making a sufficient number to change the constitution of our country in the way that the hon. Lady would like.

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