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In practice, the sequence of events for approving a draft referendum Order in Council will be that the statutory consultation would take place first, and then the draft laid before the Assembly for approval because if it were not approved by a two-thirds majority, that would be the end of it. If it is approved, the Secretary of State would lay the draft before both Houses of Parliament for approval. That was the process we envisaged in the Bill until the recent amendment of the noble Lord, Lord Roberts. It is not necessary for Clause 104 to repeat the provisions of Clause 103. Clause 104(3)(a) refers to a draft referendum order under Clause 103(1). That reference attracts the rest of the provisions of Clause 103 and it is clear that all the provisions set out in that clause must be complied with in order to hold a referendum. Clause 103 governs the process. It is therefore not necessary to spell out that the Secretary of State must communicate the results of the consultation exercise to the Assembly. If the outcome of that consultation were to lead to the Secretary of State not laying a draft order before Parliament, that would be made clear in the reasons given to the Assembly under Clause 104.
What we do expect is for the Secretary of State to be in close contact with the Assembly First Minister on the most important issue that the Assembly is likely to consider. We naturally would expect the Secretary of State to inform the First Minister of when the consultation had been completed and its results simply as a matter of good governance and proper administration. The aim of the legislation as drafted is to set out a minimum of what must be done rather than to spell out in every detail the process which needs to be carried out administratively.
I hear what the noble Lord says and understand that he is seeking to be helpful and constructive here, but I think we have it right in these two clauses. We have described the essential process, but the nature of the administration is a matter for governance and administration, and therefore does not need to be spelt out in the Bill. I hope the noble Lord will see that we are of like minds on what should happen and is destined to happen, without the need for an additional amendment.
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Lord Crickhowell: My Lords, I observed earlier that one of the difficulties here is that we start with Clause 104 and then have to refer back to Clause 103, a point made by the noble Lord. It is one of those back-to-front arrangements of clauses that appears in the Bill not only on this occasion, which makes it quite difficult to interpret. The noble Lord has not said anything to sustain an argument for not including my helpful clarification. While I have not attempted in any way to alter the Bill, it would make the situation a bit clearer. I therefore regret that he does not eagerly accept my amendment, which would have been the simple thing to do and would have brought a little satisfaction to me. We could have finished the Third Reading in a welter of harmony and happiness, but since he will not do that, I hope that I have at least been able to clarify exactly what the arrangements and procedures are. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 150 [Power to make consequential provision]:
Lord Roberts of Conwy moved AmendmentNo. 12:
Page 82, line 29, at end insert “, provided that such an Order is not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”
On Question, amendment agreed to.
Clause 151 [Power to remedy ultra vires acts]:
Lord Roberts of Conwy moved AmendmentNo. 13:
Page 83, line 14, at end insert “, provided that such an Order is not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”
On Question, amendment agreed to.
Clause 152 [Intervention in case of functions relating to water etc.]:
Lord Livsey of Talgarth moved AmendmentNo. 14:
“(2) The Secretary of State shall make representations to the Assembly as to how the relevant function has the effect described in subsection (1).
(3) In considering whether or not to continue exercising that function, the Assembly shall have regard to-
The noble Lord said: My Lords, unfortunately this amendment was first considered at the very end of business late at night. It addresses the situation set out in Clause 152:
Subsection (1) of that clause states:
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“This section applies where it appears to the Secretary of State that the exercise of a relevant function (or the failure to exercise a relevant function) in any particular case might have a serious adverse impact on,
My aim in proposing the amendment is simple: we want to establish a principle to provide for equality between England and Wales so far as water is concerned. We believe that this is a very reasonable matter to be asking for. Subsection (3) of the amendment states:
“In considering whether or not to continue exercising that function, the Assembly shall have regard to—
- (b) any adverse impact that would be had on Welsh water by the discontinuation of the relevant function”.
In other words, precisely the same situation as that which applies to water that runs to England. Water is indivisible since it usually runs down into the same river system.
Surely it is right to achieve equality of the law, whether it is in England or Wales. River catchment areas flow from one country to another. Yet as the Bill is currently constituted, “adverse impact” is drafted only as it applies to England. As a Welshman I find the distinction rather extraordinary, so that if we can appeal to the English sense of fair play, we believe that equality must be the answer. In fact, the noble Lord, Lord Elystan-Morgan, tabled an amendment on Welsh water. I refer to one sentence from his contribution. He said very forcefully indeed that the power and scope of the Secretary of State’s jurisdiction in this matter is enormous. Without our amendment, this clause does not do justice to Wales.
If one looks at the Bill from the point of view held on these Benches, we see no primary legislative powers yet. We have had long debates about when we might possibly get them. We have government responses that appear to say, “But you might get some of these things”. We cannot say that the Government are actually denying us primary legislative powers because of the Bill’s ingenious process to pass at least Orders in Council, but it is not the type of legislative powers that we advocate. We believe that we do not have a fair voting system. We also believe that the Secretary of State has an over-burdening influence, as we have heard, on refusals, although we have just recently overcome that provision in a vote. There is also a veto on Assembly measures by either House of Parliament—an issue that we could debate for some time.
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Surely the Government must recognise that the issue of water in Wales, and the lack of equality with England, amounts to playing with fire. Water is one of the few remaining Welsh resources, but as far as one can see, as the Bill is drafted, even the Assembly will have no influence over it. An opinion poll was reported over the weekend that seemed to show that the people of England now favour, albeit marginally, the creation of an English Parliament. That is certainly not our policy, which is for regional parliaments in England, but if the percentage is creeping up over 50 per cent, as it seems to be, and if we have a new Government who are of a different persuasion, there could be an English Parliament with massive legislative powers. To slightly adopt a phrase used by a previous Member for Ebbw Vale: Wales could go naked into the Assembly Chamber without the necessary powers. And that could apply especially to water, a basic resource. That would leave Assembly Members with little or no power over basic resources in their own country. I find that totally unacceptable.
In this amendment we are simply making a plea: please can we have equality in the clause? Water in Wales and water in England should be treated in the same way. The water issue should not be excluded from the Bill. I beg to move.
Lord Roberts of Conwy: My Lords, very briefly, I have some sympathy with the amendment because I am antipathetic to the clause, which appears to be based on central Government’s most profound suspicions of the Assembly and its Ministers in matters relating to water. What wickedness do the Government think Welsh Ministers might perpetrate that could have such,
water resources supply and water quality in England as to warrant the brisk intervention and possible takeover of functions by the Secretary of State? The mind boggles.
I agree with the noble Lord, Lord Livsey, that the clause seems excessive in another way: it concentrates on England's water interests and ignores Welsh interests entirely. I therefore sympathise with the spirit of the amendment, and I shall await the Government’s justification of this rigorous clause.
2.15 pm
Lord Roberts of Llandudno: My Lords, those of us who live in Wales, or visit it, can still see the slogan after 40 years, “Cofia Tryweryn”—remember Tryweryn. That valley was drowned 40 years ago to provide a reservoir to serve the city of Liverpool. That act triggered great discontent and anger in Wales. Every Welsh Member of Parliament voted against the proposal, but their voices were not listened to. It was only last year that, under the guidance of the then leader of Liverpool City Council, Councillor Mike Storey, that Liverpool apologised for the insensitive way that its predecessor council had acted. To allow this Government of Wales Bill to have its Third Reading without this amendment is again most insensitive and needlessly provocative.
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All we ask is that the needs of water provision for Wales be treated equally with the needs of England. So many of the natural resources of Wales—its coal mining, its quarrying industry, the greatest iron and steel manufacturing base in the world, the once great ports of Cardiff and Swansea—belong to the past. Time and again Wales' confidence and dignity have been undermined. Sometimes we concern ourselves with the effect on people who have lost their sense of self-worth and value, but that can happen also to nations. I would suggest in supporting the amendment that to deny Wales a substantial voice in the provision of water within its own borders not only is insensitive but also once again undermines the dignity of the Welsh nation.
Lord Thomas of Gresford: My Lords, I support the amendment. It so happens that my daughter-in-law’s family farm was drowned in Tryweryn, to which the noble Lord referred a moment ago, and I am very conscious of the impact that that has had on the community there. Subsequently I appeared with my noble friend Lord Hooson on behalf of the objectors to the proposal to drown the Dulas Valley, south of Llanidloes. It was a hotly fought battle between the local community and the city of Birmingham, which wished to drown it. I am happy to say that the then Secretary of State for Wales upheld the inspector's recommendation that that valley should not be drowned and that no other valley in Wales would be drowned in this way ever again. It was a Labour Secretary of State who said it and we would hold this Government to the promise.
It is a highly emotive issue. When we see such a clause in the Bill, as the noble Lord, Lord Roberts, said a moment ago, we wonder what is going on. Why should there be a specific reference to what remains a large natural resource in Wales? I fully support the amendment.
Lord Evans of Temple Guiting: My Lords, when the noble Lord, Lord Livsey, rose to his feet he said that we had a debate on this very late at night. My memory is that it was a very full and interesting discussion even though it was late at night. All of the issues which have come up today were raised in that late-evening debate. As we heard, Amendment No. 14 would remove the Secretary of State's power to intervene in the exercise of functions by the Welsh Ministers or others where it appears to him or her that that might have a serious impact on water resources supply or quality in England. That power would be replaced by a duty to make representations to the Assembly in such circumstances.
As I highlighted on Report, the subject of this clause is executive functions. After the separation brought about by the Bill, the Assembly will cease to be a corporate body and the executive functions will become the preserve of Welsh Ministers, not the Assembly. Therefore, the Assembly cannot decide whether to continue exercising the function or have regard to the representations of the Secretary of State. The Assembly will not be exercising this function. That said, Welsh Ministers will in the exercise of their functions relating
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I heard what the noble Lord, Lord Roberts of Llandudno, said, but we are talking about something that happened 50 years ago—
Lord Roberts of Llandudno: Forty years ago.
Lord Evans of Temple Guiting: Forty years, my Lords; I beg the noble Lord’s pardon. It happened a mere 40 years ago. The noble Lord, Lord Livsey, quoted the noble Lord, Lord Elystan-Morgan, at Report stage. I will offer him another quotation which I think has a very precise bearing on the issue we are discussing.
Lord Prys-Davies: My Lords, reference has been made to my noble friend Lord Elystan-Morgan. He very much regrets that he is unable to be present today, but he is presiding over the degree-awarding ceremony at the University of Wales, Aberystwyth, which is a very important event in the university calendar.
Lord Evans of Temple Guiting: My Lords, I am grateful to my noble friend for drawing that to our attention.
The point that I was making was that the noble Lord, Lord Livsey, quoted the noble Lord, Lord Elystan-Morgan, who said something else on Report—that:
“If there ever was an attempt to aggrandise a Welsh valley in the way that Liverpool did almost 50 years ago, it would be the biggest boost to Welsh nationalism that has ever occurred”.—[Official Report, 28/6/06; col. 1289.]
The Government entirely agree. It is almost inconceivable that a future Secretary of State, from whatever party, would behave in such a recklessly provocative and incendiary fashion. I cannot imagine the circumstances that arose with the Liverpool example 40 years ago ever being repeated.
The Government’s expectation is that, if differences arose between the two Governments, every possible effort would be made to resolve them through discussion and dialogue, with both sides fully aware of the sensitivities involved. A number of noble Lords have raised the business of equality—that all that Wales wishes for is equality with England. It is important to remember that, if the relevant Secretary of State intervened, he or she would have to take into account the interests of England and Wales. Under the present settlement, that is the constitutional position. There is no reason for noble Lords, particularly those from Wales, to be as concerned as they are. It is still necessary for the Secretary of State to have the power to intervene as a last resort if agreement is not reached and he or she believes that the actions of Welsh Ministers will have a serious impact on water resources, supply or quality in England.
A crucial point made on Report—I think it was by the noble Lord, Lord Crickhowell—was that the geological nature of Wales was not linked to the political map, and the geological reality is that the great rivers of
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The intervention powers provide an important and effective safeguard for the interests of water users in England, but there is no reason to expect that the Assembly or Welsh Ministers would use their powers irresponsibly and that the intervention powers would need to be used other than as a very last resort. As we have had another interesting debate on the subject, I hope that there is an understanding of the position and that the noble Lord will feel able to withdraw the amendment.
Lord Livsey of Talgarth: My Lords, we have indeed had an interesting debate, and a number of assumptions have been made. I particularly thank the noble Lord, Lord Roberts of Conwy, for sympathising with our amendment. I am sure that he heard what the Minister said about it; the noble Lord said that he was going to wait for that. I thank my noble friends Lord Roberts of Llandudno and Lord Thomas of Gresford for their personal appeal on the issue and for underlining its importance in Wales. I reiterate that, in spite of what the Minister said about executive functions, if the Assembly expressed a substantial opinion about water it is unlikely that the Executive would disagree.
We do not understand the approach to the issue of equality. All that we ask for is equality. The Minister rightly quoted other comments that the noble Lord, Lord Elystan-Morgan, made during our recent debate. However, it looks to me as though we cannot even get equality; that is basically what we have been told. Of course the geological reality is that water flows into England, but the Bill protects England while Wales is ignored. I wish to test the opinion of the House on the issue, which is vital to those of us in Wales.
2.26 pm
On Question, Whether the said amendment(No. 14) shall be agreed to?
Their Lordships divided: Contents, 41; Not-Contents, 115.
Addington, L.
Bonham-Carter of Yarnbury, B.
Brookeborough, V.
Burnett, L.
Carnegy of Lour, B.
Cotter, L.
Dholakia, L.
Dykes, L.
Falkner of Margravine, B.
Garden, L.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B. [Teller]
Hooper, B.
Jones of Cheltenham, L.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
McNally, L.
Mar, C.
Masham of Ilton, B.
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Northover, B.
Oakeshott of Seagrove Bay, L.
Roberts of Llandudno, L. [Teller]
Roper, L.
Russell-Johnston, L.
Sandberg, L.
Sanderson of Bowden, L.
Sandwich, E.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Wallace of Saltaire, L.
Walpole, L.
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Amos, B. [Lord President.]
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Borrie, L.
Brennan, L.
Brookman, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Crawley, B.
Dahrendorf, L.
David, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
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