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Mr. Dominic Grieve (Beaconsfield) (Con): Who would be doing the amending, and in what setting?

Nick Ainger: Let me continue to go through the process.

The Secretary of State would forward the proposed Order in Council to the appropriate parliamentary body—for example, the Welsh Affairs Committee—in the same way as is the case when draft Bills receive pre-legislative scrutiny. It would be open for any other Select Committee to scrutinise the proposal. When draft Bills receive pre-legislative scrutiny, the Wales Office announces that the public may give their views and, if they wish, contact their Member of Parliament, who may wish to contribute to the process. Pre-legislative scrutiny would thus not be restricted to Members of the House because members of the public could contribute their views.

The practice of joint scrutiny between the Welsh Affairs Committee and Assembly Committees has worked well in the past. Depending on the type of Order in Council, the Welsh Affairs Committee could choose to continue with that arrangement, or decide to examine the proposal separately. That would be a matter for the Committee, but such a process would assist in gathering the widest possible input into the consideration of the proposal.

I did not mention this in my letter, but as part of the pre-legislative scrutiny of draft Bills, reports of the Welsh Affairs Committee have regularly been debated in the Welsh Grand Committee. I have noted the thoughts of my right hon. Friend the Member for Torfaen about that. We would encourage such debates on proposed Orders in Council. If it were felt that such
 
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a debate in the Welsh Grand Committee would help the process, we certainly would not put any obstacles in the way of that. I also agree that it is important that all hon. Members have the opportunity to comment on a proposed draft Order in Council, to ask questions about its scope and to propose ways in which amendments could be made.

Mr. Roger Williams (Brecon and Radnorshire) (LD): Has the Minister made any assessment of how many Orders in Council might have been brought forward in any specific year, such as during the previous year? We must consider not only Wales-only legislation, but the Welsh elements of England and Wales Bills. The Childcare Bill is going through the House at the moment. Would that require a separate Order in Council? If so, how many times would the Welsh Grand   Committee need to meet to consider all the Orders in Council?

Nick Ainger: It is difficult to give a totally accurate prediction of how many Orders in Council will come through. Orders in Council would not be required for primary legislation because the arrangements under which primary legislation gives secondary legislative powers to the Assembly would continue. It would be for Parliament to decide whether it was happy for such powers to be passed on, as is the case at the moment. I do not envisage that the number of proposals for Assembly Measures would be much greater than the number of requests for primary legislation that come through at present. However, the First Minister said that he would be surprised if there were more than five or six a year. I hope that that is helpful.

On the scrutiny and involvement of all hon. Members, my right hon. Friend the Member for Torfaen asked whether it was possible for those who are not members of the Welsh Grand Committee to attend its debates. Again, we cannot dictate to the House what should happen. That is for the House to decide under its Standing Orders. However, I am sure that if a good case were made for an amendment to the Standing Orders—perhaps to consider a particular Order in Council or Orders in Council in general—the House could change its Standing Orders to widen the membership.

Mr. Alan Williams (Swansea, West) (Lab): Would the Minister support such an application?

Nick Ainger: I would have no problem with that. In addition, there is nothing to prevent a report by the Welsh Affairs Committee on a particular Order in Council from being debated in Westminster Hall. Again, hon. Members could make a contribution in that way, which would be open to everyone. That is an alternative to the Welsh Grand Committee.

The hon. Member for Beaconsfield asked how Orders in Council would be amended. Once pre-legislative scrutiny is complete, reports will have been produced by the Welsh Affairs Committee. The Welsh Assembly might also have produced a report, and there may well be minutes of the Welsh Affairs Committee or, perhaps, the debate in Westminster Hall. Those will be taken into account, along with changes or problems highlighted in
 
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the pre-legislative scrutiny. Once that has been put together, the Secretary of State will liaise with the Welsh Assembly Government to produce a finalised draft Order in Council. Then, and only then, would the Secretary of State lay the draft Order in Council in an unamendable form for the 90-minute debates in both Houses of Parliament, inviting their approval. I would expect those debates to take place on the Floor of the House, certainly in the early days of the process. That process follows the successful model, developed over a number of years, for the pre-legislative scrutiny of draft Bills, which has helped to improve those Bills and ease their passage through the House. It represents a good model to apply to the Orders in Council.

The Government welcome and encourage pre-legislative scrutiny of proposals for enhanced legislative competence. At the same time, there should be flexibility in the system. I would not wish either the Welsh Affairs Committee or the Welsh Grand Committee to have their business dictated by statute, which is the implication of amendments Nos. 187 and 212.

Amendment No. 187 would also set fixed time scales for the draft Orders in Council. I am not talking about proposed draft Orders in Council; it clearly refers to draft Orders in Council that have been finalised by the Assembly after pre-legislative scrutiny. The amendment would require those to be laid before Parliament for 60 days—the so-called super-affirmative procedure. As I said, there will have been ample opportunity for hon. Members to have taken part in the pre-legislative scrutiny, so there is no need for a fixed period.

The hon. Gentleman did not put much emphasis on draft Measures that are attached to the draft Order in Council. I remind Members that, by their nature, the Orders in Council do not change the substance of the law. Substantive changes of law would be made by the Assembly Measures themselves. Assembly Measures will be subject to detailed scrutiny by the Assembly. That is what we term the enhanced legislative process, which part 3 is all about.

5 pm

Mr. Grieve: I suspect that I may not have spent as much time on this as I should have, in the hope that we would make some progress after yesterday's quite slow progress. There is an important issue, because it is far from clear—the Minister will appreciate this—to what extent the Order in Council will give an indication to Members of this House of what in reality will be in the Measure. I appreciate that there is a difficulty. The Measure has to be fleshed out by the Assembly and that cannot be done here, but how will reassurance be provided to Members of this House that they are not writing a blank cheque?

Nick Ainger: I am not sure whether the hon. Member for Chesham and Amersham gave the hon. Gentleman a copy of my letter of 17 January and the attachments thereto, but there will be a clear indication in the attached memorandums of what such Measures will cover, the reasons behind them, the policy development and so on. I am pretty certain that pre-legislative scrutiny will be able to tease out any other issues that
 
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may not have been fully explained in the explanatory memorandum. I am also pretty certain that the Welsh Affairs Committee, the Welsh Grand Committee or any other Committee of this House would be able to establish whether they were getting a pig in a poke. I hope that the hon. Gentleman is reassured on that point.

Amendments Nos. 122, 123, 181, 53 and 54 relate to the role of the Secretary of State. Much has been made of the fact that the Secretary of State has discretion whether to lay a draft legislative competence order—or an Order in Council—before both Houses, but that position is perfectly reasonable and rational. As I explained earlier, these proposals will not come out of the blue. Normally, the preliminary draft Orders in Council and the explanatory material that will accompany the draft would reflect the outcome of discussions between the Welsh Assembly Government and the UK Government, so that issues of scope, clarity and vires would have been thoroughly thought through before even the preliminary draft was laid before Parliament for pre-legislative scrutiny.

The Secretary of State should be cast not in the role of Napoleon, as the right hon. Member for Suffolk, Coastal (Mr. Gummer) implied, but genuinely as an honest broker. It would in any event be unreasonable to force the Secretary of State to lay before the House a draft order that he or she felt was defective, unworkable or premature. The provisions will ensure not only that the proposals that are put before Parliament are properly prepared but that the Government's view on them is clear.

In new clause 4, the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) proposes that the Assembly or Counsel General should be able to refer to the Supreme Court any decision by the Secretary of State to refuse to lay a draft Order in Council before each House of Parliament, so that the Supreme Court could decide whether such a decision was reasonable and intra vires. I do not believe that such a provision is necessary. The Bill already provides for the Secretary of State to give notice of his reasons for refusing to lay the draft Order in Council. That, in itself, is a powerful incentive to any Secretary of State to ensure that he or she has good reasons for any refusal to lay such a draft. The Assembly and the public at large would know the Secretary of State's reasons for refusing.

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