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Orders under Clause 95 may, as subsection (1) makes clear, add, vary or remove any matter relating to one or more of the fields listed in Part 1 of Schedule 5. Orders may also add, vary or remove any field from Part 1 or make changes in Parts 2 and 3, which cover restrictions on Ministers and exceptions to those restrictions. The scope for order-making is, therefore, very extensive and fundamental in the area of legislative competence.
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It cannot be right that the Assembly and its Government alone decide the extent of their legislative competence without the approval of this Parliament, which is the ultimate source of their power. The absence of parliamentary consent to the Assembly’s exercise of legislative power in an area that properly belongs to this Parliament would be totally unconstitutional. I am not a constitutional lawyer, but I am sure that I am right on this point. The practical consequences do not bear thinking about.
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord, Lord Roberts, because he has largely made my case for me. The noble Lord, Lord Livsey, said that this amendment was radical. I know that “radical” is generally used in a positive way in politics in the 21st century, but the original meaning of the word is “tearing up by the root”, which is what this amendment does. It tears up the concept of devolution by the root, because it conveys to the Assembly something very close to sovereign power. The amendment allows the Assembly to accrue to itself, of its own decision, any additional powers that it wants.
When the noble Lord, Lord Livsey, sums up, can he provide an illustration of any sub-national assembly in the world, which is not sovereign, that has the right to increase its powers unilaterally, without any reference to the sovereign parliament from which it derives its original powers? If he could, I would be more than a little surprised. The amendment does not propose a concept of devolution, but an accession towards sovereignty. It would lead to a system of government entirely unrelated to the settlement that the Welsh people voted for in 1997; in fact, it would be outright independence rather than devolution.
Amendments Nos. 6 and 7 are much milder in scope and tighten the deadline. If they were accepted, the Secretary of State would have no choice whatever, and the deadline would apply to nothing more than the process of handing the draft Order in Council to the Clerk. We see merits in the Secretary of State being able to deliberate on these matters and having some time before taking action.
Those amendments are the minor part of this group, while Amendment No. 5 is the blockbuster, the radical reform. I know that noble Lords in the Liberal party are extraordinarily enthusiastic about devolution. I recognise the principle that they subscribe to; they have merit in doing that and they are joined by many other noble Lords, including some in my party. But the noble Lord is arguing for independence—that is a different matter.
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Lord Livsey of Talgarth: My Lords, I thank noble Lords for their responses. I note what they have said and understand why they see the amendment as provocative. That, however, does not mean that there are a lot of anachronisms. The noble Lord, Lord Roberts—and, I believe, the Minister—said that it excludes both Houses of Parliament. Well, shock horror; but it is possible for an unelected House—that is, this one—to block the legislation of an elected
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Some of the issues raised by the Minister reminded me of the problems of dominion status in times past in some countries, where sovereignty still lay in the UK but the parliaments did not have that power as the legislation was still sovereign. It is interesting to look at the New Zealand Parliament, where the second Chamber has been abolished. There is just a big void in its place and a unicameral system. The amendment probes these issues and I well understand the objections of both the government Front Bench and the Official Opposition.
Lord Davies of Oldham: My Lords, perhaps the noble Lord will allow me to intervene. If he is talking about the dominions and their frustrations, he will know that they solved their problems through independence.
Lord Livsey of Talgarth: My Lords, I understand that. I do not wish to have that debate here today, and I am sure that noble Lords will be grateful to me for that. I well understand the responses that I have received and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 and 7 not moved.]
Clause 103 [Referendum about commencement of Assembly Act provisions]:
Lord Livsey of Talgarth moved Amendment No. 8:
The noble Lord said: My Lords, this amendment also stands in the name of the noble Baroness, Lady Finlay of Llandaff. It comes from the body Tomorrow’s Wales, Cymru Yfory. It is very important in that it highlights a timetable for the legislation to come into being, as recommended in the Richard commission report. The amendment requires the Secretary of State to lay a draft order for a referendum by 30 June 2010. That should allow the referendum to be held in time for the Assembly, which is expected to be elected in May 2011, to assume the Part 4 powers of the Bill, which, as we know, give primary legislative powers to the Assembly.
I can certainly see why the present Government would feel partly hamstrung—perhaps more so—by the imposition of a date, but they would be wrong to think that they might be in power for ever. Perhaps a Government of a different political persuasion would act to hold a referendum at the moment when they were least likely to succeed in granting more powers to the Welsh Assembly. That would be possible. In fact, one could say that the present Secretary of State is looking for the opposite—that is, for an opportunity to hold a referendum at the most propitious time. We believe it would be desirable to take the power on when a referendum is held away from the politicians and to put it into statute, stating that it should occur
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Lord Crickhowell: My Lords, I never cease to marvel at the ability of the Liberal Democrats to contradict their own arguments. Even with that thought in mind, I was absolutely flabbergasted when I saw this amendment. I understand, and shall comment later on, the extraordinary complexity of the inter-relationship of Clauses 103 and 104, but the amendment would require the Secretary of State to trigger a referendum in four years’ time, whether or not the Welsh Assembly had requested or wanted it, whether or not any consultation by the Secretary of State had indicated that no one wanted it and whether or not there was likely to be a crushing defeat for further devolution if a referendum were held.
When I tried to lower the hurdles for a referendum at previous stages of the Bill, the Liberal Democrats rejected my proposal on the grounds that, if a referendum were held too early and in the wrong circumstances, it would be a catastrophic setback for the move to further devolution and it should be utterly resisted. Now, here they are, moving an amendment to force a referendum in four years’ time, whatever the results, even if the Welsh Assembly—which, reasonably, they say represents the views of the Welsh people—has not voted for it and does not want it. It is an astonishing amendment, even by the standards of the Liberal Democrats.
Lord Thomas of Gresford: My Lords, curiously enough, I was of the opinion that the noble Lord, Lord Crickhowell, wanted a referendum now, so it does not follow that he should oppose holding a referendum within a timescale. It seems to me that we should give these present provisions, which are temporary—I think that everyone recognises that they are just one step forward—time to prove themselves and, within a limited period, move to a referendum. If the people of Wales decide before 2010 that they do not like the step being taken under the Bill, so be it. But we think that we should move forward and not leave it to another Administration to sit on any further moves to add to devolution for all time. A positive time limit should be placed on it.
Lord Davies of Oldham: My Lords, it is not for me, from this Dispatch Box, to intrude on private grief. The noble Lord, Lord Crickhowell, has accurately identified some clear elements of contradiction in the Liberal Democrat position on the referendum. I am in a more congenial mood and shall therefore not spend a great deal of time on that point, but I shall deal with the main issue about which the noble Lord, Lord Livsey, spoke.
I accept that the Liberal Democrats’ position on devolution is a principled one. They want to see primary powers for the Assembly, and as soon as possible. I
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It must be a political judgment and it must be right that politicians take responsibility. The Liberal Democrats are at one with the Government in seeing the Welsh Assembly’s powers increased under the Bill over the next few years—earlier than the Richard commission recommended. It will be a gradual enhancement of, and increase in, powers, subject, of course, to the Orders in Council and to the authority of this Parliament. It is then suggested that there should be an arbitrary date on which that is put before the Welsh people.
Everyone knows that referendums can be conditioned by a range of issues in addition to the matter in hand. It seems to me a denial of devolution to suggest that politicians should abrogate any responsibility for deciding the date, to say to the National Assembly that it should have no say on the date, and that the date should be imposed on it and the Welsh people by the very Parliament from which the Assembly is seeking enhanced powers.
Lord Roberts of Llandudno: My Lords, I have listened to the Minister with great interest. Does he, therefore, say that one should wait for a favourable time to set the dates for local government elections so that the Government can be sure of winning them? Should the European elections, the Scottish parliamentary elections, the London Assembly elections and the Welsh Assembly elections, rather than having set dates, wait until the ruling party thinks it will win?
Lord Davies of Oldham: My Lords, the noble Lord seems to have left out general elections in Britain. Is the Liberal Democrat party in favour of fixed dates for general elections? That is an interesting point.
Lord Roberts of Llandudno: My Lords, yes.
Lord Davies of Oldham: My Lords, in that case, I am surprised that he did not bring that into his argument. Let me be absolutely clear: there is a massive difference between elections and the concept of a referendum on a specific question put before the people for the endorsement or rejection of powers for an assembly. That is what we are debating here, not elections. We are debating a referendum. To take away from the National Assembly any control over when the case should be put to the Welsh people seems to
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Lord Livsey of Talgarth: My Lords, I thank the Minister for his response. I hear what the noble Lord, Lord Crickhowell, says. My noble friend Lord Thomas has dealt with that. The Minister made a number of interesting points. First, he will know from previous amendments, which are not tabled today, that we are not great believers in referendums, which would affect some of the arguments that he has just deployed. The most powerful argument against his position is that the referendum date of 2011 is arbitrary. The situation is very interesting. He referred to a referendum in 1997. One does not have to be a brilliant mathematician to realise that he is saying that 14 years after the last referendum is not the time at which to have another one to decide whether the powers of the Welsh Assembly should be increased. That is a long time between one referendum and another and public opinion in Wales has changed.
In the most recent opinion polls, a majority of Welsh people wanted primary powers for the Welsh Assembly. They have been asked that question more than once in well organised opinion polls. There are two sides to this argument. Traditionally, Governments have had the power to decide when they wish a referendum to be held; this amendment would merely straighten out that situation and say that it would be reasonable to hold it in 2011 and that we should prepare for it now so that we have four years lead-in time. Those are very reasonable arguments. However, having listened to what both sides of the House have said about the amendment and, as a realist, having considered the chances of getting it through, I withdraw the amendment.
Amendment, by leave, withdrawn.
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Clause 104 [Proposal for referendum by Assembly]:
Lord Roberts of Conwy moved Amendment No. 9:
The noble Lord said: My Lords, Clause 104 deals with the situation where the National Assembly passes a resolution in favour of a referendum by the requisite two-thirds majority of seats—that is 40 out of the total of 60. The First Minister must give notice of the resolution to the Secretary of State and then, within 120 days, the Secretary of State must,
- “lay a draft of a statutory instrument containing an Order in Council ... before each House of Parliament”,
causing a referendum to be held throughout Wales about whether the provisions in Part 4 of the Act should come into force. That is a précis of the procedure and I know that my noble friend Lord Crickhowell will have some interesting comments to make on that process under the next set of amendments. For the moment, let us assume, “So far so good”. Precisely at this point I see the rub. Subsection (3)(a) says that the Secretary of State must do that or,
- “(b) give notice in writing to the First Minister of the Secretary of State’s refusal to do so and the reasons for that refusal”.
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The First Minister's duty then is to lay a copy of the notice before the Assembly and its duty is to see that it is published so that the people of Wales know why the Secretary of State is refusing a referendum on whether the Assembly should be granted greater powers as specified in Part 4.
As some of us have noted, particularly the Liberal Democrats under another set of amendments, the Secretary of State has truly astonishing interventionist powers under the Bill. He can slam on the brakes, bringing the Assembly to a grinding halt, and not only when it is calling for a referendum; he has a similar power to stop the Assembly in its tracks in Clause 95 relating to Orders in Council amending Schedule 5 to change the fields of Assembly measures. Clause 95(7) allows the Secretary of State 60 days to lay a draft before each House of Parliament or to give notice of his refusal to do so, giving the reasons why. Again, under Clause 101, the Secretary of State can, by order, prohibit the Clerk from submitting a proposed Assembly measure for approval by Her Majesty in Council.
Those almost autocratic powers to intervene might be justifiable in the context of the devilish complexities of Part 3, but surely not in connection with Part 4, which is much more straightforward. However, the powers are there, too. The Secretary of State can not only stop a referendum, but later, when the Assembly has fulsome legislative powers and is in full swing, under Clause 114(2) he can make an order prohibiting the Clerk from submitting a Bill for Royal Assent. As my noble friend Lord Kingsland said on our second day on Report:
“The real shift in power is from this Parliament to the Executive and the Secretary of State”.—[Official Report, 28/6/06; col. 1237.]
Never were truer words uttered.
Indeed, the more I think about it, the more extraordinary I find this interventionist role for the Secretary of State, and I know that others, including the noble Lord, Lord Thomas of Gresford, find this centralist thrust almost offensive. It certainly would be offensive to a genuine devolutionist. In fairness, I am bound to say that there is a similar power in Section 35 of the Scotland Act for the Secretary of State to prevent a Scottish Parliament Bill receiving Royal Assent, but the circumstances for intervention in that case are much more specific—they are where a Bill is incompatible with international obligations or has adverse effects on the law relating to reserved matters.
I shall concentrate the rest of my remarks, which I hope will be brief, on the Secretary of State’s right to refuse a referendum when two-thirds of the Assembly have voted for it. That is a special category of intervention. What could be the reasons for refusing such a request if the proposal was acceptable to the Assembly and the electors of Wales? When one has dismissed potential natural calamities of tsunami dimensions, such as the drowning of the Assembly in Cardiff bay, one returns to the possible political scenario that might induce the Secretary of State to refuse to lay an order requested by the Assembly before each House of this Parliament. The fact that
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The only credible reason for the Secretary of State’s refusal that I can imagine is that the Government of the day do not approve of the Assembly’s decision to go for a referendum and are determined to resist it at all costs. But is it really necessary to spell out the overriding interventionist power of the Secretary of State and central Government quite so blatantly in an allegedly devolutionary measure? I do not think so, which is why the amendment proposes the excision of the words. If the Government of the day oppose the Assembly’s will to hold a referendum, they can defeat the order in another place or even in your Lordships’ House. Surely Parliament is the proper body to overrule the Assembly on a matter such as this, rather than the Secretary of State. This Parliament continues to have an override power, as it does in Scotland, even when Part 4 comes into effect. I beg to move.
Lord Livsey of Talgarth: My Lords, we support this amendment, and it is a pleasant duty to do so, given the exchanges that took place earlier. There is clear agreement between us on the importance of this amendment, which addresses the ability of the Secretary of State to refuse to lay an Order in Council before Parliament if the Assembly has passed a resolution asking for a referendum to be held. On Report, we agreed that a two-thirds majority is appropriate, but others did not agree. Given that that is now in the Bill, it is nothing short of scandalous that the Secretary of State has the power to deny such a request.
Either there is a belief in democracy or there is not. The process in the Bill is clearly not democratic, as the Secretary of State can veto an Order in Council for a referendum to be held. The noble Lord, Lord Roberts of Conwy, has deployed all the arguments about why that is wrong, and I do not wish to delay the House further. I entirely agree with him that a referendum is a special category and that to deny a referendum is not appropriate. He is clearly also right to say that only Parliament should have the power to overrule the Assembly in such a situation. Therefore, we support the noble Lord’s amendment.
Lord Rowlands: My Lords, the noble Lord, Lord Roberts, quoted the view of the noble Lord, Lord Kingsland, that this is a centralising Bill that transfers powers to the Executive, not to democratic bodies. That is nonsense. The vast majority of the Bill gives enhanced legislative powers to a democratic Assembly in Wales. That is the burden and central thrust of the Bill. It is anything but centralising.
Lord Roberts of Conwy: My Lords, as the noble Lord referred to my noble friend, I shall repeat the quotation:
“The real shift in power is from this Parliament to the Executive and the Secretary of State”.—[Official Report, 28/6/06; col. 1237.]
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