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Through this new, streamlined procedure, the Assembly will be able to achieve its legislative priorities more quickly and easily, without getting caught up in
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the inevitable Westminster logjam. The Bill does that by building on the current devolution settlement, and this is the key point. Westminster will still be in charge, deciding on the principle of granting new powers to the Assembly, but the detailed work on policies affecting Wales will increasingly be carried out in Wales.
To achieve this, the Bill establishes a new Order-in-Council procedure that will enable Parliament to grant the Assembly the power to make its own laws over the specific matter set out in the Order in Council. The order will not be long and will not set out the detail of the policy that the Assembly wishes to implement, although that will be explained in an explanatory memorandum, because that will be a matter for the Assembly to determine. The order will simply define the scope of the powers being conferred on the Assembly and Parliament will vote on the principle of the Assembly acquiring those powers.
First, a preliminary draft Order in Council would be prepared following discussion between the Welsh Assembly Government, relevant Whitehall Departments, and the Wales Office. Secondly, the preliminary draft would be submitted to pre-legislative scrutiny by Parliament and the Assembly. The precise nature of pre-legislative scrutiny would be a matter for the House and for the Assembly to determine. The processes are therefore not laid down in the Bill, but I hope that the successful model of the Welsh Affairs Committee scrutinising Wales-only Bills, such as the Transport (Wales) Bill, in tandem with the relevant Assembly Committee could be applied to Orders in Council, as my hon. Friend the Member for Wrexham (Ian Lucas) suggested.
That process of pre-scrutiny will give all Members of this House an opportunity to become involved if they wish in examining requests from the Assembly at an early stage, with the Secretary of State and the Assembly making modifications as appropriate in response to parliamentary recommendations. Parliament will therefore be an active player in shaping the future powers of the Assembly.
After pre-scrutiny has been completed, there would be a formal statutory process for agreeing the final text. Once the final text of a draft order had been approved by the Assembly, it would be sent to the Secretary of State who must, by the end of 60 sitting days, either have laid the draft Order in Council before both Houses of Parliament or have given the First Minister written reasons for not being prepared to do so. The 60-day deadline is needed principally to cover those occasions, which I believe will be infrequent, where there has not been consensual co-operation between the Welsh Assembly Government and the Wales Office in the development of the proposal.Once the order has been
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laid by the Secretary of State, it would then have to be approved by both Houses of Parliament on an affirmative resolution.
Mr. Grieve: I want to understand a little more about the pre-legislative scrutiny. If I understand the Secretary of State's position, the scrutiny will be on not the details of the legislation, but the principles of the area that will be delegated for the Assembly to legislate on. Does that not require a considerable abdication of the responsibility of Members of this House, without the people of Wales endorsing that and saying that they would prefer the Assembly to do something, rather than hon. Members? How can the Secretary of State justify such a major constitutional shift without going to the people of Wales and asking them to endorse it by referendum?
Mr. Hain: Because, quite simplyI have dealt with this point beforeit is not a major constitutional shift. Parliament will still be in charge. I am surprised that the hon. Gentleman is not opposing the NHS Redress Bill, which includes a framework clause to give the Assembly full powers to determine a ban on smoking in enclosed public spaces. I am surprised that he is not up in arms about that, although perhaps he will be now that I have suggested it.
Since 1999, legislation that has gone through the House has provided for the Assembly to take through regulations by secondary legislation to determine detailed policies. There is no difference in principle between that and a procedure through which the Assembly draws up Assembly measures by Orders in Council rather than primary legislation, because Parliament is still in charge. Each Order in Council will be accompanied by an explanatory memorandum that will explain the provision's purpose fully to all hon. Memberswhether they are Welsh or notso that they will be able to take a view on the matter.
Mr. Roger Williams: If Orders in Council are such a good idea, why did neither the Government nor the Labour party in Wales make that suggestion in evidence to the Richard commission so that it could give a verdict on it?
We have taken careful account of the Richard commission report and the debate that has taken place since its publication. The nub of the issue is this: the Liberal Democratsthe hon. Gentleman is not a bad fellow, so I am sorry that he has joined in this bad habithave said that they want primary powers. I respect that and, in fact, agree with it as a matter of principle. However, they want those powers without a referendum. They want to jump straight to primary powers through the Bill, but it would not be acceptable to make such a fundamental change to the devolution settlement without a referendum, which is what it would be because Parliament would be no longer in charge, although it is of course sovereign in every respect in the United Kingdom in a theoretical and actual fashion. We will make more progress to overcome some of the problems that the Assembly has had in recent years by giving it greater discretion while Parliament remains in
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charge. That is the point of the Bill and the new first stage involving Orders in Council, which I would have thought that the hon. Gentleman would welcome.
Philip Davies: Given the narrow result of the referendum that set up the National Assembly for Wales in the first place, and the low turnout, what evidence does the Secretary of State have that people in Wales want the Assembly to have more powers?
Mr. Hain: I do not know the hon. Gentleman's majority, but a victory is a victory under our democracy. If one wins the vote, one wins. The Welsh people voted, although, admittedly, the result was uncomfortably narrow, as I remember well. These repeated attacksthe hon. Member for Monmouth (David T.C. Davies) made one in his best Rottweiler fashionon the verdict of the Welsh people show that the Welsh Conservatives have never accepted the devolution settlement.
If Parliament agrees that enhanced powers on a particular matter should be conferred on the Assembly, and once the Order in Council has been made, the Assembly can deliver new made-in-Wales legislation in relation to that matter. The new laws will be called Assembly measures, and the Assembly's arrangements for scrutinising and approving measures will closely follow the procedures used in this House for considering primary legislation. Although the detail will be a matter for the Assembly itself to determine, the Bill requires that the Assembly provides for three stages of consideration on the principle, detail and the final text of proposed measures, which are analogous to Second Reading, Committee and Third Reading. That reflects an important principle underlying the Order-in-Council procedure. The proposed powers to be conferred would be bestowed by Parliament not on individual Ministersnot on the Executivebut on an elected legislature, with its own rigorous procedures for scrutiny both of the Executive and of legislative measures.
I have discussed this matter with the Chairs of both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee of the House of Lords. They agree that there is an important distinction to be made between powers conferred on an elected legislature and those delegated to a Secretary of State. There should therefore not be the same concerns expressed over powers conferred on an elected, accountable law-making body such as the Assembly, with its own scrutiny processes, as have been expressed over powers delegated to Ministers.
The Government believe that this new procedure will be of immense benefit to the Assembly Government in enabling them to carry out their functions in the devolved fields of responsibilities. Of the bids for legislation that the Assembly has made over the past six years, the vast majority have been on matters that have excited little or no parliamentary controversy, such as the Public Services Ombudsman (Wales) Bill and the Public Audit (Wales) Bill, and all but two of them could
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have been accommodated under the new streamlined process provided for in this Bill. The exceptions are the demands for the Assembly to have the power to ban hunting and to have control over shop opening times. An additional one may be the request for St. David's day to be a bank holiday. Those could not be delivered under the Order-in-Council process, as they lie outside the existing devolved settlement.
The procedure will give the Assembly much wider flexibility and discretion, while preserving the key pillar of the existing devolution settlement: it is Parliament that will determine the new powers that the Assembly will acquire. Parliament, as ever, remains sovereign. The procedure will also relieve pressures on parliamentary business managers from Assembly bids for Bills.
As we have heard, the Opposition suggest that the new Order-in-Council procedure might be used to give the Assembly primary powers through the back door. That is simply not the case, as clause 94 makes abundantly clear. If the Assembly ever attempted to acquire such powers by the back door, I as Secretary of State would block it, so would this House and so would the Lords. It is inconceivable because there is a triple lock to prevent it. Parliament remains in charge.
The additional powers offering a more streamlined route for Assembly decision making fall within the settlement endorsed in the 1997 referendum. However, it may prove at some time that even they are still insufficient to address the needs of the people of Wales. The Bill therefore makes provision to confer full primary powers on the Assembly, subject to a referendum. I am proud to be the first Secretary of State for Wales to seek to place primary powers on the statute book. But, as I have explained, it is essential that such a fundamental change to the devolution settlement should first be approved by the people of Wales through a referendum, and it would be hugely damaging to the cause of devolution to move to that stage before there was widespread agreement in Wales. For that reason, the Bill includes a number of safeguards to ensure that there is no premature move towards primary powers.
First, the Bill ensures that a referendum would be triggered only if supported by two thirds of all Assembly Members. Secondly, the Bill places a responsibility on the Secretary of State to ensure that a referendum could take place only after adequate public consultation. Finally, a referendum order would require the approval of both Houses of Parliament by affirmative motion and two thirds of all Assembly Members before it could proceed. Taken together, these safeguards will ensure that a strong, multi-party consensus must exist before a referendum can be calledsomething that is not likely to happen in the near future.
These provisions are vital to settle the constitutional debate in Wales. By legislating for primary powers now, we avoid the need for a further Government of Wales Bill. Instead of the constant distraction of endless constitutional argument, this Bill puts primary powers on the statute book awaiting the verdict of the electorate. Instead of being the domain of political and constitutional anoraks, the question of the Assembly's powers will be in the hands of the Welsh people. Instead of sniping from the sidelines, proponents of primary powers will have to win the argument.
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Those leading the calls for an early referendum are doing a disservice to the cause of devolution in Wales. To call a referendum on primary powers now, when we know that it would fail, would not only destroy the chance of enhancing the Assembly's powers, but do terrible damage to devolution itself. Just look at the aftermath of the no vote in 1979, when the prospect of devolution was taken off the agenda for nearly 20 yearsa generation. I know that some will say that certain opinion polls show a majority in favour of a Scottish-style Parliament, but I caution them to remember the opinion polls prior to the referendum in 1997, which predicted an overwhelming victory for the yes campaign. The votes did not reflect the headlines in the end, and I believe that the same would be true today.
Let me now deal with our proposals to reform the electoral system for the Assembly. In 1998, the Labour Government established the additional member system for elections to the Assembly. Broadly speaking, that electoral system has been a success: it has preserved the strong tradition of individual constituency representation that is fundamental to our democracy while delivering a system of fair votes that has improved democratic accountability in Wales. It has even thrown a life belt to the Welsh Conservative party, although that is not something that I would celebrate. However, although it has worked well in ensuring fair representation in the Assembly, I, as one of the Ministers who took the Bill through the Commons, never imagined the abuses that have resulted.
The system as it has operated in Wales has a major weakness. A widespread practice since the Assembly was established has been that candidates who are rejected by a particular constituency have secured backdoor election as Assembly Members through the regional list and so have been able to claim to represent the constituency that rejected them. In Clwyd, West in 2003, three of the four defeated candidates were subsequently elected to the Assembly through the regional list. That practice clouds political accountability and denies the voters their right to reject a particular candidate at the ballot box. The change made by the Billrequiring candidates to choose whether to stand for a constituency or a regional listwill put the voters in charge.
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