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(4)   No recommendation is to be made to Her Majesty in Council to make an Order in Council under subsection (1) unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament and the Assembly.

(5)   But subsection (4) is not satisfied unless the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats.

(6)   A draft of a statutory instrument containing an Order in Council under subsection (1) may not be laid before either House of Parliament, or the Assembly, until the Secretary of State has undertaken such consultation as the Secretary of State considers appropriate.

(7)   For further provision about referendums held by virtue of subsection (1) see Schedule 6.

(8)   In this Act, "the Assembly Measure provisions" means sections 92 to 101.'.

New clause 3—Scrutiny of proposed Orders in Council by Joint Scrutiny Committee—

'(1)   There shall be a Joint Scrutiny Committee (in this section, "the Committee") that shall scrutinise every Order in Council made pursuant to section 94 of this Act and report on its expediency to the House of Commons and to the National Assembly for Wales.

 
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(2)   The Committee shall consist of ten Members of the House of Commons and ten Members of the National Assembly of Wales.

(3)   The Committee may choose its own Chairman and determine its own procedure.'.

5.45 pm

Mr. Grieve: Clauses 92 to 101 make up part 3 of the Bill, which deals with Assembly measures. We debated these provisions in detail and at length in Committee, but I was left entirely unpersuaded by the Government's arguments about the proposals' necessity or desirability.

The House must bear it in mind that these clauses would mean that primary legislation would cease to be the responsibility of this House—or any Assembly or Parliament—and be replaced by a system of government through Order in Council. It would be difficult to imagine a more fundamental shift from the normal convention and practice in our country's constitution, although the Legislative and Regulatory Reform Bill tries to extend the same principles to the entirety of the governance of this country, including England.

It became clear in the course of our Committee debates that the Government simply did not grasp the extent of the change that these proposals would introduce. We were told that the measures were perfectly reasonable, and that Orders in Council are commonly used. I accept the latter point, but they are not used for enacting measures that are normally the preserve of primary legislation. However, that is precisely the system that we will be introducing if we allow these clauses to go through.

Parliament gives power to the Executive. The Government have argued that they want to devolve power so that it is brought closer to the people, but where will that power be exercised? That is the important question, as clauses 92 to 101 make it glaringly apparent that the exercise of the power supposedly to be transferred to the Assembly will remain entirely at the discretion of the Secretary of State.

For example, clause 94(7) allows the Secretary of State the right to refuse to enact a draft order proposed by the Assembly. Parliament will have an opportunity to vote on such a draft order, but will be able to see it only in draft form. We will not be able to see the order in its final form.

Nick Ainger indicated dissent.

Mr. Grieve: The Minister shakes his head. Perhaps I have chosen my words badly, but in Committee we established that Parliament will be presented with a draft Order in Council and asked to decide whether it should go ahead. However, it will not be able to determine whether the order in its final form, as put together by the Welsh Assembly, should be approved. That is because, at that stage, the Secretary of State is the only person with the power to intervene and prevent a measure from being enacted. If I have got any of that wrong, I shall be pleased to give way to the Minister so that he can correct me.

Nick Ainger: I shall try to help the hon. Gentleman with how the system will work. The Welsh Assembly will
 
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propose an Order in Council, which will then be subjected to pre-legislative scrutiny, when it can be amended. After that, the Assembly will consider any changes and introduce a draft Order in Council. That draft order will then be laid before the House by my right hon. Friend the Secretary of State, and the normal affirmative procedure, both here and in the House of Lords, will apply. It is not the measures that will come before Parliament in any form, but the policy statement justifying why the Order in Council is required. There will be a substantial amount of information attached to that, and it will be subject to pre-legislative scrutiny. I hope that that clarifies the matter for the hon. Gentleman.

Mr. Grieve: It certainly clarifies the matter up to a point, and it sounds even worse than I originally thought. In Committee I understood that although the House would vote on the draft Order in Council, there would be an opportunity for the House to scrutinise the actual draft measure. The Minister shakes his head and says that that is not the case, but I have to express some surprise. That is not at all what I remember.

Mr. John Gummer (Suffolk, Coastal) (Con): Does my hon. Friend agree that what is being removed from Parliament are precisely the rights that were not afforded to it by dictatorial monarchs down the ages? This activity is at the heart of what Parliament does, and either the Welsh Assembly should do it or this place should. It is unacceptable for no one to do it.

Mr. Grieve: I agree with my right hon. Friend; that is the matter that was of such concern to us in Committee. We tabled amendments to try to beef up the procedures, but they were all rejected. That is why I shall invite the House to take out the entirety of this part of the Bill. In my view, it has no place in the architecture of the legislation—and indeed, it is completely unnecessary.

If the Government were honest and true to their principles they would have no hesitation in putting the idea of Acts of the Assembly to a referendum, getting the necessary powers and handing those powers to the Welsh Assembly. There are arguments both in favour of and against further devolution, but at least that would have some intellectual honesty about it, whereas what is now proposed is a hybrid system that will grossly undermine this House's ability to scrutinise legislation, but will not give the Welsh Assembly any measure of sovereign control over its own legislation.

The matters in schedule 5, part 1—all important areas of legislation for the people of Wales—will be determined by a sort of minuet danced between the Secretary of State and the Assembly, in which the Secretary of State ultimately exercises all the control. A measure more calculated to undermine the principles of parliamentary democracy would be difficult to find. However, having seen the Legislative and Regulatory Reform Bill, and what the Government seek to impose on the country more generally in that measure, we should not be surprised by what they are doing to the people of Wales, who are being treated as guinea pigs for their proposals elsewhere.

The longer we debated this issue in Committee, the less persuaded I was that these measures were necessary. If the Government had the courage to bring devolution
 
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a further notch forward, they would accept the need for a referendum and Assembly Acts. Moreover, there are so many downsides to the proposals, which risk producing an environment in which the ability to scrutinise legislation and determine it properly will be seriously undermined.

Adam Price: Does the shadow Attorney-General see any contradiction between his proposal to delete part 1 of schedule 5 and the position taken by the leader of his party in the Assembly, who has voted, and called, for extending schedule 5 to include new areas such as energy?

Mr. Grieve: Not at all; this highlights the nub of the issue. It is possible to have a perfectly reasoned debate about whether the Welsh Assembly should be granted more powers. I am aware that within Wales, and outside it, there will be people with different opinions on that subject. There are perfectly valid arguments that Wales should follow the pattern of Scotland and have primary legislative powers, and that the Welsh Assembly should acquire sovereign authority over areas of legislative competence, if that is what is desired. That, in a sense, is what the Government propose in part 4.

I shall make something clear again, both to the hon. Member for Carmarthen, East and Dinefwr (Adam Price) and to the Minister—and, indeed, to anybody else. We have said all along that if that is what the Government seek to do, it is right that they should put it to the people of Wales, and if the people of Wales want it, they should have it. That is why we shall certainly not oppose the measures in part 4.

My colleagues in the Welsh Assembly have views on that subject, and are perfectly entitled to argue that greater powers should be devolved to Wales. That is what an evolving democracy is about—just as people are also entitled to argue that that should not happen. My objection is not to the principle that there might be further devolution to Wales, but to the hybrid system that the Government seek to set up to avoid having to ask the Welsh people a referendum question, because they know that would be embarrassing within their own party.

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