|Previous Section||Index||Home Page|
If an order is to be laid before Parliament, that is properly a matter for a Minister of the Crown. It would not be constitutionally appropriate for the Assembly to be able to force the Secretary of State to lay a draft
order before Parliament, regardless of whether the Secretary of State was even ready to do so. The Secretary of State, as a member of Her Majestys Government, cannot be accountable both to Parliament and to the Assembly. The Secretary of Statefor that matter, any Minister of the Crownis accountable to this House and to Parliament. He cannot at the same time be accountable to an Assembly. That is the clear issue at stake. However, the intention of this provision is not to create a new roadblock. As I have said, the Secretary of State would be likely to face irresistible pressure to lay the Order in Council. Nonetheless, the Government believe that it is important to maintain proper lines of constitutional accountability.
There are also genuine practical reasons why the Secretary of State should not be constrained to lay a draft order within 120 days. He or she would still have to comply with the requirements of clause 102 before doing so, including the preparation of the draft order itself and a statutory consultationa point made very persuasively by my right hon. Friend the Member for Torfaen (Mr. Murphy). The draft order would have to be laid before the Assembly before it was laid before Parliament. The amendment would leave no scope whatsoever to alter that time scale, should it not prove possible to complete all those steps within 120 days. The amendment does not take account of those practical considerations, of the requirements of clause 102 or of the obvious point about parliamentary sovereignty and accountability. I repeat that the Secretary of State is accountable to Parliament, not to the Assembly, although I would certainly want to act in keeping with the wishes of a two-thirds majority of the Assembly.
Lembit Öpik: I have listened to the Secretary of States comments with great interest and I acknowledge that he is genuinely attempting to acknowledge the concerns as highlighted by my Liberal Democrat colleagues in the other place and others. To an extent, his remarks have been reassuring and helpful. However, he has not answered the underlying question. Why not give the full authority to call and plan a referendum to the Welsh Assembly? Why does the Secretary of State need to have any role in that procedure? I understand that this Secretary of State thinks that that is necessary, but I would be interested to know his rationale.
Mr. Hain: I am grateful to the hon. Gentleman for his intervention and I appreciate the open-minded and constructive way in which he has sought a resolution to this and other outstanding points in a way that will allow the Bill to receive Royal Assent by the end of next Tuesday. If primary powers were to be granted, it would be by decision of this Parliament. The Assembly cannot grab the initiative. It is for Parliament to decide whether it is right for the Assembly to have primary powers. I hope that all parties will help the Bill to receive Royal Assent through their response in the House of Lords next Monday and that they accept the principle that Parliament cannot accept the decision on calling a referendum to trigger the primary powersa fundamental stepbeing taken by anyone other than this House and the House of Lords.
I am trying to be as helpful as I can be to the hon. Gentleman, because he has sought to improve the Bill,
not to block it or wreck it, in great distinction from the behaviour of the Conservative party throughout its progress.
Frankly, it would be an act of utter folly for anyone in the Secretary of States position to attempt to obstruct the will of the people of Wales. Welsh voters simply would not tolerate it. Even a sceptical Secretary of Statewe had plenty of those before 1997would find it impossible to ignore such a request from the Assembly. The Government of the day would have to give the request the most sympathetic and serious consideration and ultimately, in my view, support. But it cannot be a rubber-stamp decision, for the constitutional reasons that I have explained.
Mr. Touhig: I am following my right hon. Friends argument. Will he confirm that, under our constitutional arrangements, the Assembly cannot require this House to pass legislation? The Assembly may request that, but, at the end of the day, this Parliament of the United Kingdom holds the ultimate responsibility for law making in this land and only this Parliament can grant full powers to the Assembly.
I want to make a secondary point. Let us also remember that it will still be for the Secretary of State to consult on the draft order before the Assembly can vote on it. That is the sequence in which things happen. After an Assembly request, a draft order would be drawn up, and then the Assembly would consider the draft order and vote on it. It could be highly significant if it turns out that the Assembly itself is not happy with the content of the order. It will have started the clock ticking under the amendment120 daysand be unable to stop it, even if there was a process of interaction between the Assembly and Westminster on the detail of the order. The way in which we have framed things at least offers a sensible consultation process that could prove crucial in the final forming of the referendum, its wording and the process of the vote.
Lembit Öpik: The Secretary of State is right to say that, throughout, the Liberal Democrats have sought to improve the Bill rather than to block it, and it is in that context that we have had the dialogue. In the context of what he is saying now, will he accept and register the fact that we still feel unease because we cannot be guaranteed that any future Secretary of States for Wales will necessarily be sympathetic to the referendum? How can he feel confident that the arrangement that he has constructively laid out will nevertheless not offer an opportunity for, for example, an anti-devolutionary Conservative Secretary of State for Wales to prevent the referendum from taking place, given that he is not giving us a time-limited period by which the Secretary of State must necessarily have laid the referendum before the House?
The resolution of that problem does not lie in the Lords amendment, because even if the Lords amendment were carried, the Assembly could not compel Parliament to do anything. In the event of, as
the hon. Gentleman puts it, an anti-devolution Conservative Secretary of StateI suppose that there might be one of those creatures around in the futurewanting to do that, there would be an almighty constitutional bust-up. It would not be in Westminsters interests, and I do not even think that it would be in the interests of an anti-devolution Conservative Secretary of State, to behave in that way. It would cause a real conflict. If a Conservative Government were determined not to grant primary powers despite the Bill, and not to call a referendum, that would be a political battle that had to be had. That relates to the point made by my right hon. Friend the Member for Torfaen. Despite the clear route map that the Bill lays out towards primary powers via a referendumwhen it gets Royal Assent, that will be on the statute bookif a hostile Conservative Government, who were never going to give Wales or the Welsh Assembly what they wanted in those circumstances, were determined to stop that, Parliament would be sovereign. However, that would create not just the constitutional crisis that I described, but a political crisis for the Conservative party that would be extremely damaging to its future prospects in Wales.
Mrs. Gillan: I grateful to the Secretary of State for giving way, because he is having his love-in and his little backroom deal with those on the Liberal Democrat Front Bench [ Interruption. ] I am certainly not jealous; I do not want to be catching the Secretary of States germs by getting that close to him [Hon. Members: Oh!] Well, I feel sorry for him. He is not feeling well, you know. Notwithstanding all those silver-tongued words and the ridiculous picture that is being painted of an anti-devolution Conservative Secretary of State for WalesI am glad that he acknowledges that there is going to be a Conservative Secretary of State for Walesthe issue with the amendment is all about his having proconsular powers so that he can control the timing of any referendum that is given to the people of Wales. Is that not the fact of the matter? If we do not allow the Lords amendment to go through, it means that he can act as the lord and master of Wales, calling the referendum whenever he wishes. That is the truth of the matter, because, of course, he and the First Minister and the Welsh Labour party are not in the business of calling a referendum that they may lose.
I find that the most extraordinary of the contributions that the hon. Lady has made during the debate. She is somehow setting herself up as the defender of the Assembly against a reactionary Secretary of Stateif we were talking about a Conservative Secretary of State for Wales, we would have a reactionary Secretary of State by definition. To set herself up somehow as a champion of the Assembly against the rights and necessities of parliamentary sovereignty defies reason. I will not even attempt to respond any more, because she is smiling awayshe does not really believe what she said, any more than anybody else does. The way that she has behaved, which I regret, right the way through the course of the Bill is to seek to frustrate it at every point and to seek
to oppose the greater devolution of power to the Welsh Assembly. I am proud of what the Bill does in relation to the greater devolution of power. I am also proud that it offers the prospect of primary powers for the Welsh Assembly if a referendum triggers them. If a referendum does that, there will be primary powers.
Mr. Paul Murphy: The Secretary of State has made the constitutional points extremely well and I agree with him. But does he agree that there is a political element to this matter, too? Any decision to go ahead with the referendum to seek primary powers for the Assembly would have to be the result of political consensus between the Government, Parliament, and the Welsh Assembly Government. That is important, as is any vote in the Assembly. The Assembly on its own does not reflect completely the views of the people of Wales, because we have a role in that as well as Members of the House of Commons. The political reality would be that there would have to be an agreement and a consensus between Parliament, Government and the Assembly.
Mr. Hain: Again, I could not agree with my right hon. Friend more. He is absolutely spot on. The proposal in the Billbut certainly not the amendmentwould require active partnership between the Assembly Government and the United Kingdom Government. In a sense, it requires thatrather than an Assembly elected at a different stage in the electoral cycle ending up, as it were, being able to instruct this Parliament, which is elected at another stage in the electoral cycle.
I think that we are seeing much fuss about nothing. Given the clear assurances that I have given to the hon. Member for Montgomeryshire, I hope that the House will not divide on this matter and will accept the principles of the Bill and see it as a tremendous advance for Wales that will settle the whole issue for generations to come. Then, instead of constitutional matters, we can get on with debating better housing, better jobs, better health services, better education and all the other things that concern the people of Wales in their daily lives.
Mrs. Gillan: If there is a commitment to devolution, it is necessary to ask why the Secretary of State would want to exert a power of refusal that would put him on a collision course with the Assembly of the day about the very powers that his Government have brought forward. The Governments spokesman in the Lords, Lord Davies of Oldham, said that this was not an issue of seeking to aggrandise the Secretary of State, but that is the effect of the power and everyone in the House knows it.
The power allows the Secretary of State both to delay and to obstruct the Assemblys wishes and process and to remove or delay the ability of both Houses of Parliament to have a say in the matter. After two thirds of the democratically elected Assembly had voted in favour of holding a referendum on part 4 powers, why would the Secretary of State wish to act as a road block to such a provision receiving consideration in the House?
The whole process is fairly tortuous, but as I understand it, if the requisite two thirds of Assembly Members voted to pass a resolution in favour of a
referendum, the First Minister would have to give notice of the resolution to the Secretary of State. Within 120 days of that, the Secretary of State must
lay a draft of a statutory instrument containing an Order in Council...before each House of Parliament.
If the order was passed, a referendum would be held to decide whether the part 4 provisions would come into force. However, if the Lords amendment is not allowed to stand, the Secretary of State will be able unilaterally to give notice in writing to the First Minister that he refuses to lay an order and merely give his reasons. The order simply would not have to be laid and the Secretary of State could block the process from reaching Parliament.
The real shift in power is from this Parliament to the Executive and the Secretary of State. [ Official Report, House of Lords, 28 June 2006; Vol. 683, c. 1237.]
And a shift of power it is. The provision places the Secretary of State in a proconsular position over Walesas the lord and master. It interposes a single member of the Executive between the Assemblys decision and the order resulting from that decision reaching Parliament for a vote. The process certainly does not square with the Governments response to the House of Lords Select Committee on the constitution, in which they said:
The Government agrees that this is a matter for Parliament to decide,
The Bill has been characterised by the ingenuity that has enabled the Secretary of State to say one thing in Cardiff and another in Westminster. The provision, like the part 3 powers, gives the Secretary of State the opportunity to say pompously in Cardiff that he is proudly enshrining in legislation for the very first time the possibility of full law-making powers, while saying here that he has put a provision in the Bill to stop a referendum from being held if that does not suit him, or if he does not like the timing. In other words, he is saying here that he will not let the Assembly dictate to him.
Rhodri Morganthe First Ministerthe Secretary of State and Welsh Labour are not in the business of calling a referendum that they are going to lose, so the Secretary of State has taken a power that will allow him to block that. The Conservative party has made the decision to support a Welsh Assembly that works for the people of Wales. We will do that in a straightforward manner, not with weasel-like
|Next Section||Index||Home Page|