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'No Order in Council under section 102 (1) (other than the first such Order in Council) may be made until four years have elapsed after the referendum held by virtue of the previous Order in Council under subsection (1).'.
David Mundell: During our debates on the preceding amendments, it was said that, if a referendum were held, it would be lost and that the Government therefore did not plan to hold one. However, the Bill places no time limit on holding such a referendum. Although the Secretary of State said that he intended the measure to settle the constitutional situation in Wales for a generation, it cannot be right that there is no end position about holding a referendum. Foresight in government and in legislation is always important, but we could be legislating for something that took place in 20 or 30 years, when it could not be described as depending on specific circumstances. That is inappropriate and it is why we have tabled the new clause.
The new clause clearly provides that if a referendum on giving the National Assembly full law-making powers such as those set out in part 4 had not been held after 10 years, fresh legislation would be required. There is good reason for that. We are legislating on the basis of a referendum that we are already told would be lost. There is no logic in requiring that to happen in 15, 20 or more years.
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The Secretary of State and the Under-Secretary conceded that a referendum would be lost. The Secretary of State said that he did not anticipate holding a referendum for the rest of the decade. We therefore propose 10 years as a reasonable period in which to allow a referendum to take place. It is not unreasonable to ask Parliament to reconsider the matter if a referendum has not happened in 10 years. If the Secretary of State and the Government are sincere about presenting the argument to persuade the people of Wales to take forward, through the Assembly, the powers in part 4, they could do that, by any reasonable reckoning, in 10 years.
Mark Tami (Alyn and Deeside) (Lab): If one provides for a specified periodwhether five or 10 yearsdoes not the hon. Gentleman believe that, when one approaches it, an impetus would be created that perhaps would not exist if the normal process were followed?
David Mundell: Unless I misunderstand the hon. Gentleman, his intervention is an argument for the new clause, which provides that a referendum should take place in a fixed time period to focus minds on the matter, rather than some nebulous, distant provision. As many speakers have said, there is a lack of clarity about the Government's intentions. Do they want to increase powers and put the Welsh Assembly on the same footing as the Scottish Parliament, or are they simply conducting a smoke-and-mirrors exercise? The fact that they do not have the confidence to hold a referendum now or in 10 years leads me to suspect that there is no will in the Government or the Labour party in Wales to campaign on the issues in part 4. Unless the Under-Secretary says something new and surprising, we are not minded to accept an open-ended provision and we shall press the new clause to a Division. He may surprise us with something that gives us comfort or hopewe shall wait and see.
New clause 13 is about the frequency of referendums and its purpose is clear. It would prevent a further referendum on part 4 powers from taking place for at least four years after the date of the first one. It would thus prevent the Assembly from simply holding repeat referendums at regular intervals until the desired result was achieved. We believe that if a referendum on part 4 powers is held and the vote is no, the result should trigger a period of reflection.
A minimum interval of four years means that only one referendum could be held during an Assembly term. Any further referendums would have to be endorsed by the people of Wales at an Assembly election. We have heard much during our proceedings about the importance of election results in ascertaining the views of the people of Wales. It is therefore appropriate that they should have a say about whether a further referendum should be conducted shortly after a previous one.
I am not fully au fait with the details of the repeat referendums in Quebec in the 1970s and 1980s, but asking the same question repeatedly until the public are ground down, through a war of attrition, either to vote
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in a particular way or to turn out in low numbers is unsatisfactory. It is possible to envisage repeat referendums being used for political purposes rather than for taking forward the constitutional arrangements for Wales or for the enhancement of the Welsh Assembly.
Both the new clauses are fair and reasonable in the context of the Bill, and in the context of the debate about the appropriateness of holding referendums. As has been stated in the debates on previous amendments, the logic remains that a referendum should be held under the part 4 arrangements as soon as the legislation is passed, so that the people of Wales can give their view straight away. The matter would then be settled for a significant period. However, the Government are clearly not minded to do that and, in those circumstances, we would want to establish a process to ensure that there was a cap on the period in which a referendum had to be held. For the reasons that I have set out, we suggest a period of 10 years. In addition, new clause 13 would prevent the possibility of holding repeat referendums.
Nick Ainger: The practical effect of new clause 2 would be to ensure that a referendum under the terms of the Bill could not be called by Order in Council more than 10 years after the Bill had received Royal Assent. It will come as no surprise to the hon. Member for Dumfriesshire, Clydesdale and Tweeddale (David Mundell) that I cannot accept that such an arbitrary time limit on the possibility of enacting the part 4 provisions is necessary. Those provisions do not have a use-by date.
Under the Bill, the timing of a referendum would have to be considered and agreed on by a two-thirds majority in the Assembly and by both Houses of Parliament. That consideration by democratically elected bodies, and not an arbitrary 10-year time limit in the Bill, will ensure that the referendum is held at an appropriate time. The Secretary of State has said that he cannot see a referendum happening before 2011, because it makes sense to see how the provisions enabling the Assembly to make measures bed down first. I cannot predict at this stage exactly when a referendum should be held, and it would be inappropriate for me to say that a referendum should be held within 10 years, or not at all.
New clause 13 is aimed directly at ensuring that there would have to be a gap of four years between any referendum and an Order in Council calling for a further referendum. The fact that a referendum can be held only with the agreement of two thirds of the Assembly, the Secretary of State and both Houses of Parliamentall of whom would be aware of the financial and political cost of frequent repeated referendumsis safeguard enough in this respect. I fully agree that frequent referendums under the Bill would be counter-productive. However, the process for approving a call for a referendum that is built into the Bill will ensure that referendums are not called repeatedly for no good reason. I therefore invite the hon. Gentleman to withdraw the new clause.
As we anticipated, the Minister's response contained no surprises. I hope that he is correct about the issues raised by new clause 13, and that fiscal prudence, if nothing else, will prevent the repeated use of referendums. However, given that referendums have
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been called repeatedly in other jurisdictions when the political climate has been ripe for them, I do not believe that the possibility can be ruled out. I would have preferred to see the new clause being accepted.
I am not in the least satisfied by the Minister's response to my arguments on new clause 2. I do not believe that 10 years is an arbitrary period. I had understood that the Government were now going to promote the concept of sunset clauses in legislation. A period must necessarily be determined in which to hold the referendum, and 10 years is a fair period to choose. Circumstances could change significantly in that time, and if the Government and the Welsh Assembly were not confident that they could secure a majority in a referendum 10 years after the passage of the Bill, it would be appropriate to revisit the legislation and examine the issues relating to the powers involved. One reason for a lack of confidence in the result of a referendum might be to do with the nature and structure of the proposed legislation. On that basis, I intend to press new clause 2 to a vote.
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