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Nick Ainger: Well, we have gone over the same old ground as we did in Committee. Let me put on the record what is, in fact, proposed in part 3, and not the fantasy outlined by Conservative Members. The purpose of part 3 is to provide the Assembly with a streamlined procedure to achieve its legislative priorities. It builds on the existing devolution settlement, giving the Assembly greater scope to determine the detail of Welsh legislation, but with Parliament remaining in overall control through the Order in Council process. It will enable the Assembly to break free from the Westminster logjam without fundamentally altering the devolution settlement. That was approved by the referendum in 1997.
Mr. Grieve: The Minister repeats what he said on Second Reading—that there is a legislative logjam—but we established in Committee that there is no legislative logjam. Why should we take seriously what he has to say when, in fact, he is merely repeating verbatim what he said on Second Reading and not engaging in debate at all.
Nick Ainger: It is not surprising that I repeat what I said verbatim: the hon. Gentleman made the same points on Second Reading and I am merely responding to them.
The hon. Gentleman claims that there is no legislative logjam, but of course there is. The Welsh Assembly cannot get legislation on the statute book as quickly as it would like to. The Bill proposes a way to deal with that problem.
Everyone agrees that the split between the legislature and the Executive needs to be established, but if amendment No. 4 were passed, it would result in the absurdity of a legislature without any legislative powers. The Assembly might have to wait many years to acquire primary powers in a referendum; in the meantime, Wales would be wholly dependent on primary legislation passed at Westminster, which would have to compete for time with UK Government priorities.
Mr. David Jones: The Minister suggests that there would be a delay of years, but why should there be any delay at all? Why do the Government not simply proceed immediately to a referendum under part 4? Is it because they know that they would lose it?
Nick Ainger:
As we have debated on many occasions and as my right hon. Friend the Secretary of State has
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explained several times, the Labour party's view is that if a referendum on any particular issue were held now, there would be no guarantee that it would be won. That would deal a fundamental blow to the confidence and reputation of the Assembly. We have put part 4 in the Bill so that, in the future, when a two-thirds majority in the Assembly deem that the time is right for a referendum and that there is a consensus in Wales in favour of moving forward to full primary powers, a referendum will be held. At present, the judgment is that now is not the time.
David T.C. Davies: The Minister said that the Government would not hold a referendum because there is no guarantee that they will win it. Does not that underline the point that we have been trying to make, which is that the Government have got into the habit of holding referendums only when they feel that they can win them, whereas we believe in holding referendums to allow people to have their say?
Nick Ainger: I am trying to remember how many referendums were held in 18 years of Tory rule. The answer is: not one. I will take no lectures from the hon. Gentleman about referendums. His argument is bizarre. The purpose of referendums is to establish people's view on a change.
It is pointless to hold a referendum if one knows that one is not going to achieve the change that is its purpose. [Interruption.] I am not going to take any lectures from the right hon. Member for Suffolk, Coastal (Mr. Gummer), who was a member of the Cabinet for many of the 18 years in which the Conservatives were in government. During that period, not one referendum was held.
7 pm
The procedure set out in part 3 will enable the Assembly to deal in a more timely way with legislation to deliver manifesto commitments made by Welsh Ministers, and will prevent the need to secure slots for Wales-only Bills or to rely on suitable England and Wales Bills being introduced at the right time.
Turning to Conservative new clause 1, which is the same as new clause 6, which was debated and rejected in Committee, the proposal to hold a referendum before the relevant part of the Bill can come into effect is unnecessary. There was a clear commitment in the Labour manifesto at the general election in May 2005 to
The Government were elected on that manifesto. It is argued that the proposals were not set out in detail for the electorate, but the electorate knows that once a Government are formed their job is to introduce detailed proposals, and that is what we did in the White Paper published in June last year. There was not a single response among the 81 responses received to suggest that a referendum was required before the Assembly could be granted power to make Assembly Measures on matters on which Parliament had given it legislative competence. Those powers are an adaptation of the current settlement, not a fundamental change, and they are not the same as giving the Assembly primary powers.
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Part 3 does not give the Assembly any new powers to legislate on devolved subjects, but it provides a new procedure for Parliament to grant such powers. It is extraordinary that the Opposition should want Parliament to hold an expensive referendum to seek permission to change our own procedures. Parliament will be able to scrutinise and control on a case-by-case basis the draft Orders in Council that confer those legislative powers on the Assembly. It will rightly be for the Assembly to scrutinise the way in which its legislative competence is used to enact Assembly Measures that address the needs of Wales. Since 1999, Parliament has passed legislation that gives the Assembly powers to make its own provisions for Wales. Increasingly, Parliament has been willing to give the Assembly broad powers to legislate in Wales-only clauses in England and Wales Bills. The proposed system develops that approach. Parliament still has control of the process, as legislative competence cannot be conferred on the Assembly unless both Houses of Parliament have agreed to do so. It is essential that part 3 should be in place from the outset. It is essential, too, that the Assembly should have the ability to seek legislative competence on its own initiative.
Mr. Grieve: The Minister says that it is essential that part 3 should be in place, yet only a few moments ago, he acknowledged that part 4 probably could not be implemented because the people of Wales did not want it. Why does he think that part 3 is desired by the people of Wales?
Nick Ainger: Because they voted for a Labour Government and a Labour manifesto.
Amendment No. 5, which was tabled by the Conservatives, deals with Assembly resolutions to ask Parliament to pass legislation on devolved matters, but it would not change the legal effect of the Bill. There is nothing in the Bill to prevent the Assembly from making such a resolution. While Parliament passes legislation, it is for Government to introduce it, so the Government's role could not be circumvented and the amendment is not required. In addition, I remind Members of the provision in clause 33 whereby the Secretary of State is required to consult the Assembly about the Government's legislative programme. The Assembly can use the consultation to ensure that the Secretary of State is aware of matters that it wishes to be dealt with in primary legislation affecting Wales, whether or not the Assembly has competence to make Assembly Measures on those matters. There is therefore no need for the amendment.
Turning to new clause 3, I have made it clear throughout the progress of the Bill that pre-legislative scrutiny of proposed Orders in Council under clause 94 should be at the discretion of Members of Parliament and of Assembly Members. It is worth maintaining flexibility, rather than specifying requirements for joint scrutiny in the Bill. It is worth noting, too, that the House of Commons already makes provision for the Welsh Affairs Committee to undertake joint inquiries with Assembly Committees under Standing Orders Nos. 137A(1)(a) and 137A(3). That arrangement has led to successful pre-legislative scrutiny of a number of Wales-only Bills, so we do not require any further legislation. The right way forward is to allow Parliament to work
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with the Assembly to develop that successful model further, rather than establish over-prescriptive requirements in legislation. The way in which pre-legislative scrutiny is carried out is usually left to Parliament to decide, rather than being specified in legislation. Standing Orders, not legislation, are the appropriate means of dealing with that.
Amendment No. 7, which was tabled by the Conservatives, would prevent Orders in Council that amend schedule 5 from being made before the Assembly election in 2007. The Bill provides for the early commencement of clauses 94 and 95 so that clarifying amendments can be made to schedule 5 before general commencement, should that prove necessary. For example, if one of the descriptions of fields or matters in schedule 5 is found to be insufficiently clear, an Order in Council under clause 94 could be proposed to clarify the extent of the field or matter. I am quite happy to place on record the fact that it is not intended that such Orders in Council should be used to confer wholly new legislative competence on the Assembly in advance of general commencement of the Bill following the 2007 election. Although the Bill provides that sections 94 and 95 will come into force on the day on which it is enacted, in fact, we would not carry out any functions under those sections for a period of two months following Royal Assent.
Under amendments Nos. 59 to 61, which were tabled by the hon. Member for Cardiff, Central (Jenny Willott), Parliament cannot be written out of the process of approving draft Orders in Council. The hon. Member for Beaconsfield (Mr. Grieve) was quite right—the amendments would mean that there would be no parliamentary scrutiny of Orders in Council. It is not acceptable for the Assembly to vote itself additional powers. It is for Parliament to decide whether it is appropriate to confer legislative competence on the Assembly. Parliament has the right to legislate in relation to Wales, so it has the right to decide whether to allow another legislature to do so.
Amendments Nos. 60 and 61 would leave the Secretary of State with a vestigial role in the process. He or she would receive notice of a draft Order in Council approved by the Assembly, but he or she could do no more than sit on it for up to 30 days before having to return it to the Clerk of the Assembly, who would submit the draft Order for approval by Her Majesty in Council. There would not be any scrutiny by Parliament. The amendments illustrate the dangers of starting to unpick the Bill's provisions. If the Assembly could give itself legislative competence, what opportunity would there be to challenge it? I assume that the 30 day-provision is designed to cater for that, but it is a most unsatisfactory way of tackling the issue. I therefore urge hon. Members who have tabled amendments in this group not to press them any further.
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