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Lord Prys-Davies: Is that agreed? Where an order is made jointly by the assembly and Westminster, will the assembly not be asked to approve the order?

Lord Mackay of Ardbrecknish: Thanks to the vigilance of the noble and learned Lord, Lord Simon of Glaisdale, we considered Clause 59. The noble Lord will see that Clause 59(6)(c) refers to any subordinate legislation which is,

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and so on. I understand that such measures will not go to the assembly. It is part of the discussion we had earlier.

Lord Prys-Davies: I recall that discussion. It was my understanding--I may well be wrong--that we were awaiting clarification or confirmation of the position.

Lord Mackay of Ardbrecknish: That is what I was saying. We had teased out an unusual situation, thanks to the noble and learned Lord, Lord Simon. In the circumstances of Clause 59, the assembly would not be playing a part in the secondary legislation. There is a reasonable debate to be had about the role of the assembly and of its place in secondary legislation.

The new clause acknowledges the role of Welsh Members of Parliament in the creation of legislation for Wales. Those Members of Parliament will be involved in the primary legislation. If that piece of primary legislation is very Welsh in nature then, as is the nature of the House of Commons, those Members will be pretty well on their own when they consider the Welsh parts of a Bill. They will be involved in primary legislation. That will be retained here. That will be their responsibility. However, as is increasingly the case, where primary legislation calls for secondary legislation, the limitations placed by government Ministers from the Dispatch Box in another place and here should be taken into account when considering the framing of the assembly's secondary legislation.

One of my concerns is that secondary legislation is very much the creature of primary legislation. Noble Lords are particularly vigilant as regards secondary legislation or delegated powers. As I mentioned previously, I have been both gamekeeper and poacher. I was a founder member of the Delegated Powers Scrutiny Committee. As a Minister, I was the recipient of some pretty crisp reports from it, upon which I acted in almost every case. In the one case when I did not act on it, the Bill was changed sufficiently to allow me to claim that I never actually refused to take cognisance of what the committee said.

Some noble Lords are particularly keen to probe what Ministers mean when they ask for powers of secondary legislation. The noble Earl, Lord Russell, is particularly vigilant on this. The noble and learned Lord, Lord Simon of Glaisdale, and, in the case of the portfolio I held, the noble Baroness, Lady Hollis, were all particularly keen to get on the record what was in my mind when I asked for powers to make orders. The noble Earl, Lord Russell, had a clever way of asking whether such and such was in the Bill. I would say, "No". Before one knew where one was, one was narrowing down what could be dealt with in the orders.

Undoubtedly, Members of Parliament and your Lordships in the primary legislation will tie in the boundaries of that secondary legislation. Therefore, the relationship between the primary legislation and the secondary legislation is considerable. In my view, if the Government and Parliament wish to tie down the Welsh assembly on secondary legislation, it will be easy for them to do so either directly on the face of the Bill

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or by ministerial explanations from the Dispatch Box, which these days carry considerable weight thanks to Pepper v. Hart and the like.

The Welsh assembly may find that the powers we are giving to it on secondary legislation can be tightly constrained by the primary legislation of this House. Therefore, although I understand it, there is a certain amount of illogicality in the position where responsibilities are split. I do not want to see a Welsh assembly create an entirely separate Welsh legal system with primary legislative powers. I do not think anyone does except, perhaps, the noble Lord, Lord Elis-Thomas. Nor do I want the Government to go back on their referendum case that the Welsh assembly should deal with the secondary legislation. That has passed and I accept it entirely. However, I am suggesting that some people who had all the say in the creation of the primary legislation should have a little say in the creation of the secondary legislation. Therefore, there should be provision for scrutiny if necessary, including, if they wish, Welsh Members of another place, of secondary legislation.

My argument has been slightly strengthened by the exploration of Clause 59(6)(c). It is clear that in certain joint aspects only this place will scrutinise. In some ways, I am not happy about that and I shall think about it. However, as regards the proposed new clause, I wonder whether there is a case for sharing the scrutiny so that the assembly can perhaps undertake more than the Bill envisages--that is a matter we should consider on Report--but, more importantly, that Welsh Members of the other place can share the responsibility for the secondary legislation whose primary parent they helped to create.

I have made my point clear and I look forward to hearing the Minister's view of the new clause which would bring into play the Welsh Members of another place. I beg to move.

9.15 p.m.

Lord Hooson: I hope that the Government will reject the proposed new clause out of hand. I suspect that its object and its effect is to undermine the whole process of devolution. The new clause proposes a supervisory body made up of Members of Parliament in the other place. Imagine what would happen if Members of the House of Commons approved a draft of the subordinate legislation and then the assembly took a different view. There would be an immediate clash between the assembly and the elected Members of the House of Commons in Wales. We have had this debate time and again on the Bill. The Opposition are trying by every means to ensure that the true process of devolution is not realised.

Lord Prys-Davies: In view of the earlier debate today and out of respect for the Opposition, I draw a distinction between the subordinate legislation power, which has been split, and the power which still remains to be jointly exercised.

As regards the power that has been split, surely the Conservative Front Bench cannot be saying that it has to be subject to the approval of the Members of

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Parliament from Welsh constituencies in another place. I ask the noble Lord, Lord Mackay, who, in the circumstances of a Welsh order, will answer for the order in the Commons? Who will defend the order against its critics in the Commons?

Lord Mackay of Ardbrecknish: I am grateful to the noble Lord for giving way. I imagine that as the Secretary of State will still have a role to play, he will have to explain the orders. I can see that the noble Lord does not approve of that, but there it is.

Lord Stanley of Alderley: Perhaps I am naive, but I do not take the same view as the noble Lord, Lord Hooson. I see as a real problem primary legislation being put through this Parliament and secondary legislation being undertaken in Cardiff. I have one simple question to ask the Minister. Will remarks made by a Minister at the Dispatch Box carry the same weight in the assembly as they do in England, or is the assembly subject to sovereignty? As my noble friend pointed out, unfortunately, a remark made by the Minister carries considerable weight. I am sure that he would prefer that not to be the case, but I wish to know whether it will carry the same weight in the assembly.

Lord Elis-Thomas: Unless the Minister wishes to respond immediately to the noble Lord's question, perhaps I may speak briefly to Amendment No. 196, and also to Amendment No. 196A which is tabled in my name. As Members of the Committee will be aware, these are a part of a series of amendments which seek to protect the rights of all assembly members to have full participation in the work of the assembly. My amendment is aimed to ensure that draft statutory instruments produced within the assembly may be laid by any member or any committee. In other words, we are referring back to the theme that we developed previously: it is not just the executive that should be initiating delegated legislation; indeed, it should be open to initiation by other members or by the committee structure.

There is a general concern which I have, and it is one to which we may need to return, about the relationship among the body corporate of the Welsh Assembly, its new cabinet structure and the rest of the membership. There is also my strong desire that we do not create an artificial Crown in parliament within what is already a body corporate, so that there is an executive which somehow has overreaching power and there is no opportunity for the general membership of the assembly to participate in the delegated legislation process which will exist within the assembly.

Lord Williams of Mostyn: This group includes Amendments Nos. 194, 196, 196A, 199 and 201. Perhaps I may deal immediately with the question put to me by the noble Lord, Lord Stanley of Alderley. Pepper v. Hart is sometimes a misconstrued and perhaps over-weighted doctrine. It is not everything that Ministers say at the Dispatch Box which necessarily binds Her Majesty's judges. That is perhaps just as well for both parties concerned. There are special

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circumstances involved. The rule in Pepper v. Hart, with which I shall not trouble the Committee at too great tedium, is to do with the construction of legislation passed in this Parliament. Therefore, it is not a question of what I say on these occasions which might or might not fall within that doctrine. Indeed, that would not be relevant if a court had to construe subordinate legislation passed by the assembly. As the noble Lord, Lord Elis-Thomas, has said that he will be a candidate, I feel that I should confirm that I shall not be. Therefore, there is no prospect in any circumstance of anything I say being held against someone, not least myself, if the judges have to construe secondary legislation passed by the assembly.

However, perhaps I may turn to this clutch of amendments. I am rather surprised by Amendment No. 194. As the noble Lord, Lord Hooson, said, it would impose a new procedure for Welsh subordinate legislation which would apply to no other part of the UK. The vast bulk of subordinate legislation is made without the need for preliminary consideration by any parliamentary committee. Further, upon this occasion of devolution--glad, confident devolution I had thought it to be--subordinate legislation passed by the Welsh assembly would have to be submitted to the equivalent of the Welsh Grand Committee in the other place. That does not really sound like devolution to me; indeed, it sounds like the failed attempt of a double-glazing salesman on a rather poor Wednesday afternoon, or perhaps Thursday afternoon, if the noble Lord, Lord Mackay, objects.

Such a suggestion is really not consistent. It would mean that every draft order proposed by the assembly, regardless of whether the assembly had decided that it did not merit detailed scrutiny, would have to go to the Welsh Grand Committee. That would be quite an extraordinary procedure. Many of the orders would be highly technical. If they are not highly technical, the assembly's own procedures will ensure full public scrutiny. There is a rather odd assumption behind all this--and I put this quite gently--that when one is devolving powers one is, at the same time, saying to the assembly, "You can't be trusted to make your own orders without the supervision of Members of the other place". We reject that; indeed, levity apart, it represents a fundamental difference of approach. The assembly will be a democratically accountable elected body and will exercise its order-making powers in the full view of the public eye. I hope therefore that the noble Lord will not persist with his amendment.

Amendment No. 196A in the name of the noble Lord, Lord Elis-Thomas, would allow assembly members or any committee to put forward draft statutory instruments. This is a question of legislative initiative. Who should be able to initiate the process whereby the assembly decides to make an order? The answer given in this amendment is that any member or committee should be able to lay draft orders before the assembly. An analogy might be drawn with the ability of Members of Parliament to promote Private Members' Bills. We do not want to prevent individual assembly members from coming forward with proposals for orders.

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At the end of the day we are back at the same hymn sheet. It is, and must be, fundamentally a matter for the assembly to decide. I suggest once more that it is not a provision that should be included on the face of the Bill. This matter concerns the working arrangements for the management of the assembly's day-to-day affairs. Amendments Nos. 196, 199 and 201 standing in my name are not controversial. They are drafting amendments to secure consistency throughout the Bill in the terminology used.

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