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Mr. Roger Williams: It is my understanding that Orders in Council refer only to matters that are already devolved to the Assembly, so in effect they are limited.
Mr. Jones: That is not correct at all. The Order-in-Council procedure will add extra matters to fields in which devolution already exists, so the devolutionary powers will be extended. The purpose of the Order in Council procedure is clear: to devolve quasi-primary legislative powers to the Assembly without the need for a referendum.
That was recognised by Lord Richard when he gave evidence to the Welsh Affairs Committee. He said:
"Let's be frank about it, it is a device to avoid having to come to Westminster and ask for primary powers to be formally devolved. It is quite an interesting device . . . Westminster can say they have not devolved primary legislative powers, but depending on the way in which the Order in Council procedure is used, it could in effect be a concealed grant of almost a direct legislative competence down to Cardiff."
What the proposals amount to is a kind of devolutionary creep. They are a stealthy means of extending more and more powers to the Assembly—considerably beyond what was envisaged in 1997 and what the Welsh people voted for in that year— through a tortuous and opaque route of Orders in Council. Worryingly enough, the Orders in Council might be made with the minimum of debate in Parliament. We might be talking about one and a half hours of discussion in Standing Committee.
Mrs. Gillan: Is it not a fact that the Secretary of State is aware of the sleight of hand that he is pulling off? On 8 December, the date on which the Bill was published without any pre-legislative scrutiny, he said that the Bill would
If that is not increasing the competency of the Assembly, I do not know what is.
Mr. Jones: My hon. Friend is entirely right. The Presiding Officer of the Assembly, Lord Elis-Thomas, recently said that the obtaining of Orders in Council will be nothing more than a formality. Of course, he is right. It is inconceivable so long as there are Labour Administrations in Westminster and in Cardiff that a request for an Order in Council would be refused. When there are Governments of different colours in Westminster and Cardiff, as will certainly happen one day, it would be virtually impossible for Westminster—for the Secretary of State for Wales—to refuse a request without triggering a constitutional crisis.
It is extraordinary that any responsible Government should seek to promote a piece of legislation that has the seeds of constitutional strife built into it. If the Government consider that further devolved power should be given to the Assembly, they should confer those powers in a more honest and open manner: through primary legislation preceded by a referendum of the Welsh people. The Government have recognised, rightly, that the Welsh people probably have no stomach for more devolution. However, that might not be the case, so why not ask them now? The Secretary of State should show sufficient respect for the constitutional conventions of this country and for the people of Wales to ask them whether they want the Assembly to have more powers. The Orders-in-Council procedure is devious and dishonest. That is why the reasoned amendment is absolutely right.
Similarly, the proposals for a referendum at some undetermined stage in the future are wholly bizarre. It seems extraordinary that the Government should place in a Bill provisions that may never be triggered. No doubt the Government hope that the presence in the Bill of arrangements for a future referendum will engender a feeling of inevitability—a feeling that primary powers will be transferred come what may, and that it is a case of when, not whether.
The proposals on electoral arrangements deserve particular condemnation. The Government have suggested that the present arrangement, whereby defeated constituency candidates can obtain a seat in the Assembly via the regional list,
"devalues the integrity of the electoral system in the eyes of the public and acts as a disincentive to voting in constituency elections."—[Official Report, 15 June 2005; Vol. 435, c. 264.]
No evidence of that sort was put before the Welsh Affairs Committee—in fact, quite the contrary. The Electoral Commission said that that was not the case and so did the academics. The only evidence presented was hearsay evidence offered by the First Minister and the Secretary of State for Wales.
The case constantly cited in support of their contention is that of my constituency, Clwyd, West, where in 2003 four of the five candidates were elected to the Assembly, three through the regional list. Several points may be made about that contention. It was always a foreseeable consequence of the original devolution settlement that more than one candidate for a constituency would be elected, some through the regional list. That was inherent in the devolution settlement. The case of Clwyd, West was extreme, but it
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should not have been unanticipated—it was always perfectly obvious that something of the sort would happen. Dr. Roger Scully of Aberystwyth university said in his evidence to the Select Committee:
"Frankly, if the Government did not realise when it brought in this White Paper that that would happen, they should have done, they were negligent in not realising that."
The reason why the Government wish to amend the arrangements is fairly obvious: Labour has no regional list Members at the moment. It is clear that the presence of regional Members vying for constituency work must be something of a nuisance to the sitting constituency Members. Clearly, they are concerned that an effective and energetic regional Member will overshadow or cast in a poor light an ineffective constituency Member. However, that, too, was always perfectly foreseeable, and even if the proposals in the Bill were adopted, the position would remain the same: regional Members would continue to be able to vie with constituency Members in terms of constituency activity.
I suspect that, in due course, the standing orders that we have heard about will be used to attenuate still further the role of regional Members. I think that regional Members will find that certain types of work are out of bounds. It is even possible that, as my hon. Friend the Member for Monmouth (David T.C. Davies) suggested, allowances will be attenuated. It is clear that the Bill is intended to bolster Labour's position in the constituencies at the expense of regional Members. That is a reprehensible measure.
Mr. David: Does the hon. Gentleman accept the simple point that it is morally unjustifiable for losers to become winners? It is a simple as that.
Mr. Jones: That was always a perfectly foreseeable consequence of the devolutionary settlement. It is extraordinary that, only a few years down the line, the Labour party is crying foul, when it was obvious that it would run into that sort of difficulty.
I move on to the question of the north Wales regional committee. The Bill makes no special provision for such a committee. The Government, who are highly south Wales centric, clearly do not appreciate the extent to which Cardiff is both geographically and spiritually distant from the rest of Wales, particularly north Wales. The provision for a north Wales regional committee was sensible and I suggest that it should be perpetuated. It is a matter of great regret that the Bill contains no such provision.
The only part of the Bill that is highly desirable is the separation of the Executive from the legislature. Since its inception, the Assembly's corporate structure has encouraged too cosy a relationship between Ministers and Committee members. I know—I speak from experience—that it is much more difficult to hold the Government to account if the relevant Minister is also a member of the same Committee. The provision set out in the Bill is entirely welcome—I support it in full—and it should have been incorporated from the outset. The corporate model was a failure.
The one welcome portion of the legislation does not compensate for the general unacceptability of the Bill. This is an exercise in the underhand extension of powers to the Assembly without the authority and legitimacy
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conferred by a referendum of the Welsh people. The proposed electoral arrangements constitute a disgraceful device aimed at bolstering Labour's position in the Assembly. All in all, the Bill in its present form is unwelcome and I wholeheartedly support the reasoned amendment.
8.41 pm
Jessica Morden (Newport, East) (Lab): Given that we are running out of time, I shall make only one specific point that has not been mentioned so far.
I support the Bill, and I support what it will keep. It will keep the foundation of the partnership that the Assembly has been able to build with people and organisations. For example, there are statutory duties to establish and maintain a partnership council with local government, to publish a "voluntary sector scheme" and to work with business organisations.
I want to raise a concern concerning our trade union colleagues and the requirement to consult business, which does not extend to organisations that represent employees. This cannot be right. The Welsh Assembly Government consult trade unions and it would be incumbent on their successors to do the same. I further argue that the imbalance between the requirements for the local government voluntary sector and business organisations must be addressed in our consideration of the proposed legislation. Unions and business play a key role in this development in Wales, and the Bill does not take enough account of the need for strong working relations and consultative mechanisms between employee and employer organisations.
The Bill contains a requirement for a schemes to be published for local government and for the voluntary sector, but not for business and trade unions. That should be rectified. I should be grateful if my right hon. Friend the Secretary of State would consider sympathetically an amendment on that issue.
8.43 pm
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