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Mr. Grieve: The hon. Gentleman may know my views. I am not sure how many Orders in Council there were, but in 1966 there were 35 statutory instruments passed as subordinate legislation; only a tiny handful. Now, we constantly pass legislation that gives wide discretion to Secretaries of State to enact secondary legislation, which the House has grossly insufficient opportunity to scrutinise adequately. That is a constitutional reform that I would very much like to see.
However, it remains the case that the House has a responsibility for primary legislation. I am sure the hon. Gentleman will recognise that what the Government are doing in the Bill is turning what is normally primary legislation into secondary legislation, so issues of even greater importance will not be properly scrutinised here, on the promise that they may get better scrutiny elsewhere, but without our having any opportunity to see the final product and pronounce on it.
I am most grateful to the hon. Gentleman for that intervention, because it takes us to the heart of the Conservative position. What he has ignored throughout all his comments so far in the debate is that
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the National Assembly for Wales is a democratically elected institution. The point of devolution was to introduce a more democratic element to the process of dealing with the huge number of distinct regulations that the Secretary of State for Wales dealt with in the past. The central weakness of the Conservative position is that it does not recognise that the Assembly has any democratic validity at all.
Mr. David Jones: The hon. Gentleman is right; the National Assembly is a democratically constituted institution. But does he agree that it is constituted on the basis of a referendum that was held in 1997, in which the powers of the proposed Assembly were carefully defined? Does he agree also that the explanatory material that preceded that referendum made it clear that the powers to be devolved were secondary legislative powers, and that what is being proposed in part 3 is the piecemeal conference of primary powers on a step by step basis? That is quite different from what the people of Wales voted for in 1997.
Ian Lucas: I hear what the hon. Gentleman says. I do not regard the measure as the introduction of primary legislative powers by the back door. I do not support primary legislative powers for the Assembly. There has been an incremental process since the establishment of the National Assembly for Wales; for example, the introduction of Joint Committees, to which I referred. The Opposition did not at that stage call for a referendum. With respect to them, it is not possible for us to call for a referendum at each stage when procedures change. The correct time for a referendum to take place is when primary legislative powers are passed, if ever, to the Assembly. The present position is that the ultimate decisions will remain in this place. As long as that remains so, there is no need for a referendum.
David T.C. Davies: First, the hon. Gentleman says there is no need for a referendum until primary legislative powers are given to the Assembly, but surely the point of the Bill is that primary legislative powers will be given to the Assembly, albeit in a slightly restricted fashion. Secondly, the point behind what he is saying is surely that there should be a referendum if significant extra powers are going to the Assembly. The Secretary of State for Wales and his colleague have already said that this is a significant Bill. Thirdly, the scrutiny process that can take place in the Assembly necessarily will be far more restricted because there are at most only 60 people whose input can go into that scrutiny, whereas in the House and the other place, as the hon. Gentleman knows, there are more than 1,000 people.
Ian Lucas: The point about scrutiny is a valid one. That is the reason that I am so strongly in favour of Joint Committees of this place and the Assembly. That is a way of dealing with the relatively low number of Members in the Assembly. This is why I asked for some assurance from the Front Bench about the continued role of Members of Parliament in this regard.
To return to the issue of a referendum, this place will continue to have a role to play in legislation that is passed for Wales, but if there were a proposal to take away that role, there would need to be a referendum.
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However, the process that exists here means that I will continue to have a role as a Member of Parliament in proposals that are outside the Assembly's present legislative competence, and I am content that no referendum will be required as long as that role remains.
I would like more reassurance on the early stages of the procedure that is to be introduced, but the Conservative party needs to wake up to the fact that there has been incremental improvement of the process through the development of the Joint Committees and the work of the Welsh Affairs Committee. That process has already happened; we did not need a referendum for it to begin, and we do not need one now.
We seem to have debated this group of amendments and the next one by proxy, in that this group does not really deal with referendums. We shall come to the next group shortly, so I shall limit my comments to amendment No. 161 and the associated amendments. There seems to be a contradiction between what the leader of the Conservatives has said and what the amendments seek to do. Both positions are legitimate but they do not fit together. I have a strong sense that the right hon. Member for Witney (Mr. Cameron) has expressed his support for devolution, yet this group of amendments seems to roll back the latitude that the Welsh Assembly has in regard even to its existing powers. The two positions do not fit together. If I have misunderstood the import of the amendments, I hope that the hon. Member for Beaconsfield (Mr. Grieve) will intervene on me to clarify the matter.
Mr. Grieve: The amendments have absolutely no bearing on the present powers of the Assembly, which involve the right to enact statutory instruments in the same manner as the Secretary of State previously had the power to do by virtue of legislation enacted by this House. That is its remit
Mr. Grieve: Indeed. The amendments propose to extend that provision so that measures that currently require primary legislation here would be dealt with by virtue of an Order in Council's sleight of hand and be converted into secondary legislation, so that the Assembly could also deal with them. Previously, it would have been unable to consider them because they required primary legislative consideration here. I can therefore reassure the hon. Gentleman that the amendments have no bearing on the Assembly's present powers. I have to say that I am slightly troubled if he cannot see the distinction between primary and secondary legislation, because that is precisely the piece of wool that the Government are trying to pull over everyone's eyes.
I have been wearing that particular woolly hat for about nine years, because I was here when we created the original legislation. I look forward to hearing what the Minister has to say about this. I understand that the hon. Member for Beaconsfield has perhaps not been involved in Welsh stuff for quite as
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long as some of us, and I also accept that I might be wrong, but my understanding is that, as an unintended consequence, the amendments would impact on what the Assembly is already able to do. As I have said, however, I could be wrong about that.
Mr. David: The hon. Gentleman has a point. As my hon. Friend the Member for Wrexham (Ian Lucas) said earlier, enabling powers are in widespread use at the moment, whereby the National Assembly for Wales is given permissive authority to draft specific clauses in primary legislation. The official Opposition's proposals would clearly undermine the spirit of that arrangement, if nothing else.
Lembit Öpik: I am grateful for the hon. Gentleman's intervention, because the amendments seem to have missed something. As he rightly says, if the amendments are passed, the Assembly will no longer be able to do certain aspects of its work in the same way. If we were debating solely amendments Nos. 161, 162 and 177 to 179, the Assembly would, if those amendments were passed, feel the pinch in terms of its current powers. That might not have been the intention, but I am pretty sure that it is the outcome.
Mr. David Jones: Does the hon. Gentleman agree that the Conservative amendments relate only to Assembly Measures, which are not passed by the Assembly at the moment? How can the amendments therefore affect the Assembly's current workings in any way?
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