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Nick Ainger: The hon. Member for Beaconsfield still refuses to accept that the enhanced powers we are talking about mean giving further responsibility. It would be wrong if, having given the Assembly the responsibility to develop the detail of a Measure, it then has to come back to this place for us to say yea or nay to that detail. That is not devolution; that is not giving powers to the Assembly—that is holding power even tighter than we hold it now.

Mr. Llwyd: I touched on that point earlier, and the Minister is absolutely right. The flaw in the argument of the hon. Member for Beaconsfield (Mr. Grieve) is that if, as we should, we allow the Assembly to deal with all the detail, when the Measure comes back here we will not have all the detail to go through. Nor have we the time to go through all the detail. If, rightly, we have left the Assembly to deal with the detail, we are merely the machinery by which the Assembly makes that detail law.

Nick Ainger: Exactly. In effect, as my right hon. Friend the Secretary of State is saying to me now, all we could do would be to hold a veto. That is certainly not
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in line with our devolution position, but I thought that it was also the new devolution position of the Conservatives.

I come now to the contributions made by hon. Members. I say with the greatest of respect that the hon. Member for Beaconsfield misconceives what the Orders in Council do. They do not change the law, they merely give permission to the Assembly to develop, through the Assembly Measures method, its own law. He said that the Orders in Council changed the law—they do not; they merely give the Assembly permission to carry out those functions.

Mr. Grieve rose—

Nick Ainger: I will give way again, hopefully to a brief intervention.

Mr. Grieve: I shall seek to be as brief as possible. In the schedule that lays out the powers we are transferring—schedule 5, I think—it is quite clear that we are substantially giving primary law-making powers to the Assembly. It may be called an Order in Council, but the Assembly Measure is a primary law-making power that we are, without referendum, shedding to the Assembly, and disguising by calling it an Order in Council.

If the Minister wants to persuade me that I am wrong about that, I shall listen, but I shall take a lot of convincing. He is simply dressing up a primary legislative function as something else and saying that we need not worry about it because it is not a primary legislative function, when it plainly is.

Nick Ainger: The point that the hon. Gentleman does not seem able to accept is that Parliament will decide case by case the areas in which the Assembly can legislate. If Parliament decides that it does not want to give the Assembly powers to legislate in a clearly defined area, Parliament will not do that. We have to accept that the Order in Council will not change the law: it will be the Assembly Measure that will change the law.

5.45 pm

Mr. David Jones: The Minister has conceded that what is being handed over to the Assembly, on a case-by-case basis—as he puts it—is primary legislative competence. That being the case, can he tell the Committee why he does not have enough faith in the people of Wales to put these proposals before them in a referendum? I suggest that the answer is simple, and it is because he knows—as the Secretary of State has conceded—that the Government would lose such a referendum.

Nick Ainger: Well, we have a mandate for this—

Mr. Jones indicated dissent.

Nick Ainger: I am afraid that we do have a mandate. We made it clear in both the UK Labour manifesto and in the manifesto for Wales that we would give enhanced legislative powers to the National Assembly. The hon. Gentleman argues that we are giving primary powers by the back door, but if so, we are doing so very openly
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because Parliament will decide whether to give the Assembly those powers on each issue. It is not the carte blanche provided for in part 4—which will give the Assembly total discretion in the areas for which it has Executive responsibility—to bring in legislation. That is completely different from part 3.

Ian Lucas: Does my hon. Friend agree that the logic of the Opposition's position is that even if we passed primary legislation to give the Assembly powers, as we did in the case of the fire authorities, for example, we would need to have a referendum to enable us to do so?

Nick Ainger: That is the logical conclusion.

I have another example. In section 62 of the Education Act 2005, the Assembly was given framework powers over education inspection. I have checked the Hansard for the Committee stage of that Bill and there was not a peep from the Opposition. A power was given to the Assembly to carry out its own policy programme and develop its own regulations on    the inspection of schools and educational establishments in Wales, and it went straight through on the nod.

Mrs. Gillan: Does the hon. Gentleman think, therefore, that we were being supportive of the proposition that such a power should go to the Assembly and, therefore, supportive of the Assembly having those powers at that time?

Nick Ainger: I have listened to the hon. Member for Beaconsfield, but the hon. Lady does not appear to have done so. Powers were given straight to the Assembly to develop their own policies and legislation, and the Opposition accepted that. However, in this case, with powers to be given through the Assembly Measure and Order-in-Council process, they say that there should be a referendum. In 18 years in power, the Conservatives held not a single referendum. How serious are they on this issue?

Mr. Grieve: If the logic of the Minister's argument is correct, there is no need for the legislation. If the Minister were correct, it would be possible, under the existing arrangements, for the Assembly to do what he wants it to be able to do. The Minister knows that that is not the case, so perhaps he would concentrate on why it is that the Government have had to latch on to the mechanism of the Order in Council to provide the enhanced functions. That might then help him to understand why part 3 represents a major shedding of power by this House, without referendum, to the Welsh Assembly, under the tutelage of the Secretary of State in its implementation. As a democrat and because I was elected to this House to represent people, that is what I object to.

Nick Ainger: The hon. Gentleman cannot have read the White Paper. The main thrust behind the introduction of the part 3 powers is the delays and logjam that occur with the parliamentary process here. If the Assembly is to be totally dependent on primary legislation being passed here and then given framework powers for secondary legislation, it will have to wait a long time. It may be that there will be occasions when
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legislation will give the Assembly framework powers that it can convert into Assembly Measures, and I have quoted the Education Act 2005. However, the point of part 3 is to address the issue that was highlighted in the Richard report about the parliamentary legislative logjam that exists here. It prevents the Assembly from getting through the pieces of legislation that it wants.

I think that I have dealt with virtually all the points raised by the hon. Member for Beaconsfield. Clearly, I have not convinced him, but I did not expect to do so. However, I shall now turn to some of the points about draft legislation and scrutiny that were raised by my right hon. and hon. Friends. I notice that the hon. Member for Montgomeryshire (Lembit Öpik) is no longer in his place.My right hon. Friend the Member for Torfaen (Mr. Murphy) touched on the importance of pre-legislative scrutiny in this process. The problem that we face is that the Bill cannot fetter the procedures of the House. We cannot dictate to the House the procedures for pre-legislative scrutiny. I agree with everything that my right hon. Friend and my hon. Friend the Member for Wrexham (Ian Lucas) said about the importance of pre-legislative scrutiny. The Welsh Affairs Select Committee has done an excellent job in considering pieces of primary legislation and has changed them.

It is important for all Members to understand the process that will be involved. We envisage that, with the agreement of the House and the Select Committee, a preliminary draft order will be produced by the Assembly after it has been through whatever processes it wants to go through, and that may include considering a report produced by one of its Committees. The Secretary of State would then ask the House and, in particular, the Select Committee to scrutinise that draft legislation or Order in Council.

I hope that my right hon. Friend has seen the two documents that I have made available to the House, the first of which was a draft document relating to the Bill for a public services ombudsman. Instead of being a piece of primary legislation, the document shows how it would have followed the Order in Council and Welsh Assembly Measure system. The second relates to the Transport (Wales) Bill, which is completing its stages through the House. That would also have gone through the Order in Council process. Both documents clearly show the opportunities that exist for pre-legislative scrutiny.

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