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Mrs. Gillan: The Secretary of State appears to have a crystal ball that is not available to the rest of us. He has already said that the provision will probably not come anywhere near us until 2011 plus plus. He has just said, however, that it will be a controversial matter when it does come before us. I contend that it might not be. What does he know that we do not know, and how can he be sure, looking so far into the future, that he knows what will happen? I think that that is slightly arrogant.
Mr. Hain: I will not rise to that accusation. All I am saying is that the issue before the people of Wales should be the question on the ballot paper—do they wish to proceed to primary powers for the Assembly or not? That will undoubtedly be controversial—I would be surprised if it were unanimous. That is the point.
In respect of amendment No. 194 tabled by the hon. Member for Chesham and Amersham, the problem with the procedure that she suggests is that it could be a recipe for endless ping-pong if the House of Lords amended an Order in Council, which would be an unusual procedure—half of the argument of the hon. Member for Beaconsfield (Mr. Grieve) was, quite properly, that Orders in Council are not amendable—or if the House of Commons amended it and then the Assembly amended it. The truth is that we can all agree with the procedure laid down in the 2000 Act, and that is exactly what the Bill does. I ask the hon. Member for Carmarthen, East and Dinefwr to withdraw the amendment.
Adam Price: I am sorry that the Secretary of State believes that Parliament is in charge and not the Welsh people, because it was on the latter basis that we worked together to win the referendum in 1997. Nevertheless, I do not want to detain the Committee further. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Adam Price: I beg to move amendment No. 156, in page 56, line 28, after 'Council', insert '(a)'.
The First Deputy Chairman of Ways and Means (Sylvia Heal): With this it will be convenient to discuss the following amendments: No. 157, in clause 102, page 56, line 29, at end insert
'or
(b) has been laid before each House of Parliament and the Assembly, has been approved by a resolution of the House of Commons and of the Assembly, but has been rejected by the House of Lords.
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(4A) If subsection (4)(b) applies, the referendum shall not be held until one year has elapsed since the date on which the House of Commons came to the resolution.'.
No. 186, in clause 102, page 56, line 33, leave out subsection (6).
No. 195, in clause 102, page 56, line 36, at end insert—
'(6A) The draft of any statutory instrument containing an Order in Council under subsection (1) laid before each House of Parliament shall be amendable by either House during its consideration and approval.'.
Adam Price: Amendments Nos. 156 and 157 would remove the absolute veto enjoyed by the other place over the Order in Council setting up the referendum and replace it with a suspensory veto, similar to that which it enjoys over primary legislation under the Parliament Act 1949. There is an important point of principle involved for our party. It would be entirely wrong for an unelected institution to frustrate the will of the Welsh people, as expressed through their directly elected National Assembly, to hold a referendum on the matters contained in the Bill. I hope that some Labour Members agree with that basic principle and will support the idea of democratic sovereignty in that regard.
The royal commission on reform of the House of Lords proposed replacing the absolute veto over statutory instruments, which is what we are discussing in this instance, with the suspensory veto. It is important to remember that the other place has used its power to reject statutory instruments on a number of occasions. The Secretary of State will remember the famous case involving sanctions against southern Rhodesia in 1968. The House of Lords struck down that order because it supported the white minority Administration in southern Rhodesia. That caused something of a constitutional crisis at the time. However, it has used the power more recently too, during the passage of the Greater London Authority (Election Expenses) Order 2000, on the issue of freepost. The other place has shown that it is willing to use its power to strike down statutory instruments in the case of elections. Our fear is that, unless the amendment is accepted, the other place, which is not representative of anything in particular—it is certainly not representative of Wales—will use its power in the Bill to frustrate the aspirations of the Welsh people and their representatives to move on to the next phase of democratic devolution. That cannot be right.
9.15 pm
The Under-Secretary said in the Second Reading debate that the Parliament Act would not apply to the legislation, so that cannot be used to protect us against the House of Lords striking down an Order in Council in this context. The Salisbury convention will not apply. All we are left with is the First Minister saying in his evidence that new conventions will develop over time, as is the practice in the British constitution. That provides us with no crumb of comfort as we face the possibility that, having achieved the two thirds bar in the National Assembly that has been set down in the Bill, having achieved the political consensus that the Secretary of State refers to constantly, and having achieved an affirmative vote in this House of directly elected Members, we will be frustrated by the unelected Chamber down the corridor. That would be entirely unacceptable and against every honourable radical tradition in Welsh politics.
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We appeal to the Government and to hon. Members to think again about giving the House of Lords an absolute veto in this regard. If a suspensory veto is good enough as regards every other piece of primary legislation, surely it is good enough when we are talking about the historic decision and proposal emanating from elected representatives of the people of Wales to move on to the next phase of democratic devolution.
The First Minister in his speech in the National Assembly for Wales said that he did not believe that there would be any circumstances where the Order in Council procedure, whether in relation to the referendum or to other aspects of the Bill, would be used to frustrate the will of the Assembly, because to do that would be to
That argument may apply to the Secretary of State and to the Commons, but it expressly does not apply to the unelected, unaccountable and often unpredictable House of Lords. We cannot expect the House of Lords simply to accede to the demands of this place and the National Assembly in that regard. As Lord Morgan pointed out in his evidence to the National Assembly Committee on Better Governance for Wales White Paper, the House of Lords came very close to throwing out, purely adventitiously, the Health (Wales) Bill. Heeding the clarion call—the bugle call—all the Tory peers appeared just before the vote on the hunting ban was taken. They were there and they came very close to striking down the Wales legislation. Surely everything in our political traditions in Wales should tell us that we cannot trust the other place to have the final say on whether we can move on to the next phase in democratic devolution.
In closing, I shall quote the Secretary of State. This is what he called the House of Lords, which in this Bill he is giving the final say over democratic devolution:
"a rather fey survivor from the pre-democracy days; it is a constitutional dinosaur . . . Unelected peers reflect an elitist state, which is one of the most unaccountable and secretive in the democratic world. It wields power by a combination of the royal prerogative, massive patronage and centralisation, with only a nod towards democracy".—[Official Report, 31 March 1993; Vol. 222, c. 357–59.]
The right hon. Gentleman must have had better speech writers in those days, but surely the principles that he enunciated in that speech are the same today. The House of Lords should not have a veto over whether Wales moves forward to democratic devolution.
Dr. Francis: Amendment No. 186, in my name and that of my hon. Friend the Member for Clwyd, South (Mr. Jones), would limit the role of the Secretary of State to laying a draft order for a referendum, which reflects the recommendation in the Welsh Affairs Committee's report on the White Paper. As things stand, the Secretary of State could refuse to lay the draft order for a referendum even if the National Assembly had voted by a two-thirds majority in favour of holding the referendum. I believe that Parliament alone, not the Government of the day, should accept or reject a request for a referendum.
I was impressed by what the Secretary of State said in response to earlier amendments about the importance of the sovereignty and primacy of Parliament—and that
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certainly applies to my amendment. His response to our recent report argued that removing his power of refusal would "bypass" the Government of the day, but that argument does not stand up. The Government of the day would be able to put forward their position in the debate on the order, and could control the timing of that debate. They would also hold a majority in the House of Commons, which would provide them with the numbers necessary to win a vote. Their views could not and would not be bypassed.
Ministers also argue that the Government would be
I do not understand what form such an additional test would take. Would the Government hold focus groups or phone-ins, or an informal pre-referendum referendum? The necessary test for the referendum trigger is whether two thirds of the Members of the National Assembly for Wales are in favour of a referendum. As the Secretary of State said in another context, such a high threshold would necessitate cross-party support, and would therefore reflect the clear policy view of those parties—and also, surely, the view of those who voted for them.
Once that test has been satisfied and a request has been made, it should be for Parliament to decide. The Secretary of State is right to say that a move to full legislative competency at the National Assembly would represent "a significant constitutional development", but that makes it more important that Parliament—the sovereign seat of the United Kingdom Government—rather than the Government of the day, should decide on the merits of the request.
The Secretary of State knows as well as I do that the Government of the day will decide the fate of a request for a referendum—but the Government should have the confidence to make that decision in Parliament, not in Whitehall. For that reason, I ask hon. Members to support my amendment. I am sure that, as a democrat and a supporter of democratic devolution, the Secretary of State will respond positively and wisely to this sensible and modest request. I shall end by quoting the Secretary of State's hero and mine, Aneurin Bevan, on these matters—and I notice that the right hon. Gentleman is listening carefully. Aneurin Bevan said:
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