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Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I add my sincere condolences to the words already uttered regarding Lord Merlyn-Rees and Lord Stratford. I also congratulate the hon. Member for Chesham and Amersham (Mrs. Gillan) on taking over the brief for the Wales Office. However, it is not her golden hour. Like others, I find it strange that a reasoned amendment has been tabled, but she has made her case—unconvincingly, with respect.
For the most part, the Bill is welcome, but there are parts of it that need strengthening and amendment. If, as has become standard procedure, the Government introduce a raft of amendments before Report, it would undoubtedly ease the process if the same were made available to all in good time, with cogent explanatory notes.
There is a broad consensus in favour of the separation of the Executive from the legislature. That is to be welcomed. Less welcome is the assertion in the Bill that pursuant to such change, there is a need for change in the National Assembly standing orders and that those standing orders must be made by the Secretary of State for Wales. Why is that so, when the core point is to ensure that the National Assembly is able to take charge
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of new powers for itself? Given that we have a democratic institution that is up and running, surely the Assembly could be left to look after its own House and its own standing orders. I hope that that will be the case in due course, contrary to some of the suggestions made earlier.
Before examining specific aspects of the Bill, it is right to point out that the better governance of Wales could have been assured in a bolder, simpler and more transparent way had the Government followed the full proposals of the Richard commission. In that regard the Bill represents a missed opportunity. It is all the more disappointing because the lost opportunity came about because of internal wrangling in new Labour, so we have a Bill that is the progeny of a 13(2)(b) fudge adopted so conveniently by the First Minister. I make that overtly political point because it means that the better governance of Wales is to be put on hold for over a decade at the behest of a few selfish new Labour Back Benchers from Wales. Perhaps the more important point is that we are left with an unnecessarily complex and cumbersome procedure for legislating in the National Assembly. As a member of the Richard commission said, it is a system that will work only if there is an enormous amount of pulling in the same direction between Cardiff and Westminster.
Before examining the triple lock procedure for getting an Order in Council, let us consider the inordinate delays that already exist in introducing legislation by Order in Council. I shall give the House an example of a measure that has taken more than three years to come about in the National Assembly. It is entirely uncontentious and is entitled the Removal and Disposal of Vehicles (Amendment) (Wales) Regulations 2005. The Minister grins. I had a private discussion with him some time ago, in which I expressed my concern about the delays in the Orders-in-Council procedure. I said that sometimes it takes between 18 months and two years. The Minister shook his head and said that I had got the timing wrong.The real example that I gave started its journey on 10 April 2002 and finished in November 2005, so I might just have been right in my estimate. That is more than three years.
Chris Ruane : The hon. Gentleman said two.
Mr. Llwyd: Did I? As usual, I am being generous to the Government. However, it is a genuine concern and I hope the procedure can be streamlined. The Second Reading debate is not the time for such a discussion, but in Committee I hope to go through what happened during the passage of that order.
We need to find ways of streamlining the process if it is to be fit for purpose. The triple lock procedure is worrying. The National Assembly, the Executive, the Counsel General or a Member of the Assembly can present a request to the Secretary of State for Wales. The Secretary of State calls that "making a bid", which is a rather unfortunate choice of words, as it implies an element of lottery. In any event, if the Secretary of State declines, the legislation will not advance.
One can think of any number of reasons or excuses that a less sympathetic Secretary of State than the right hon. Gentleman might employ—for example, "I shall
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not accept the proposed measure because it is the UK Government's intention to legislate for England and Wales in a similar way in the future." That would be a perfectly reasonable response. It could also be a brake put on the National Assembly by Westminster for less benign reasons. As I said earlier in an intervention on the right hon. Gentleman, we should consider including in the Bill some form of review or appellate procedure.
Clause 94 gives the Secretary of State 60 days after receipt of the request for a measure to lay a draft or to give written notice to the First Minister of his refusal to do so and the reasons for that refusal. Crucially, it is not clear what would happen next. The White Paper suggested that the Secretary of State should not decline to lay an order for "trivial" reasons, which is hardly comforting because common sense dictates that that must be the case.
The big question concerns where an appeal will lie. I am not saying that the National Assembly will always be right, but the Bill contains sufficient safeguards on policy, other legislation and the supreme court. What will happen if the Secretary of State denies the National Assembly's settled will for whatever reason? Some commentators have said that the next stage would be judicial review. As I have said, far be it from me to steer work away from my fellow lawyers, many of whom are going hungry because of the Government's recent prevarications, but I view the prospect of multiple judicial reviews with absolute dismay, because it means that we are introducing a flawed system. The real issue is the need for an unambiguous review or appellate procedure to address unusual situations, and I hope that we examine that matter carefully in Committee and consider how best to address it. It is little short of a constitutional outrage for the decision to lie with the Secretary of State alone, which is no better than a decision by the Secretary of State in the old Wales Office before democratic devolution.
It is worth considering the possibility of referral by the Counsel General to the supreme court, which would be similar in essence to the referral powers in clauses 95 and 98—when I referred to clause 101 earlier, I meant clause 98. That suggestion is not unreasonable, because the basis of a referral for judicial review is whether a public body or a person acting as a public body—in this case, the Secretary of State—has acted reasonably in executing its function, and the same question could equally well be put to the supreme court under the powers in the Bill.
Mr. Grieve: The hon. Gentleman has made an important point. The difficulty is, however, that if anyone wanted to land the judiciary with the problem of its becoming politicised, they would ask it to resolve such a question. As it stands, the question is not a legal question because it involves the exercise of a political discretion by the Secretary of State, which is not a semi-judicial or administrative function.
Mr. Llwyd:
The core point would be whether the Secretary of State acted reasonably in the circumstances. It is clear that the supreme court should not examine a policy area, and I take the hon.
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Gentleman's point about the danger. I would have preferred the Bill to contain a more streamlined procedure and a normal reasonableness test.
Mr. Llwyd: The hon. Gentleman is about to kick me again.
Mr. Grieve: I am not seeking to kick the hon. Gentleman, and we must return to that important matter in Committee. He has rightly raised the question whether the Secretary of State should have the power to veto the procedure as opposed to Parliament.
Mr. Llwyd: I agree with the hon. Gentleman and have no doubt that the matter will be subject to considerable debate in Committee. Many believe that there must be a means of reviewing the decision. If the Bill is left as it stands, it will be an affront to the National Assembly. The potential blockage could—I believe that this will be inevitable—cause considerable friction between both legislatures and, potentially, both Executives, and an unambiguous and rigorous safeguard is therefore required.
Clause 100 continues the theme, which runs through the Bill, of the Secretary of State's influence and power, to which the hon. Member for Montgomeryshire (Lembit Öpik), who is a repetitious man, referred several times. From my reading of clause 100, a less worthy man than the present Secretary of State could scupper the Assembly's legislative plans on a whim, perhaps because of hostility towards the Assembly and irrespective of the subject matter of any proposed legislation. In particular, I direct hon. Members' attention to the powers in clause 101, which is very widely drawn. If such draconian powers were invoked, how would oversight take place? Again, the matter could form a constitutional time bomb that must be defused in due course.
On the Secretary of State for Wales approving a draft measure by laying an order, we still face the difficulty that the other place has taken a consistently critical view of Orders in Council, principally because Orders in Council are unamendable. I raised that point when the Secretary of State made his initial statement earlier this year, and he said that the Parliament Act would be invoked in that case. In my view, consideration from the very beginning of the use of the Parliament Act in the working of the Bill is evidence of a fundamental flaw, and the situation is a recipe for disaster and constitutional conflict.
Put simply, if it is envisaged that the Parliament Act must be invoked regularly, the system is surely wrong from the beginning. I expressed that view when the Secretary of State made his initial statement and have seen no evidence to the contrary. As Lord Richard said in his evidence to the Welsh Affairs Committee on 25 October 2005:
"I have got some major qualifications about it, particularly on the Orders in Council procedure where I think, frankly, the idea that that is going to get an easy ride going through Parliament in principle to start off with is doubtful."
Even if Lord Richard was being a tad pessimistic, and if even the other place gives the Bill a fair passage, we are still left with a procedure that is likely to be very
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unpopular with their lordships, regardless of which Government are in power down the Corridor. It would have been much better to have accepted the Richard commission proposals in full.
I repeat my earlier question: will the Salisbury convention apply to proposed measures from the National Assembly Executive?
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