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Lord Thomas of Gresford: My Lords, I regret that we are unable to support these amendments. The noble Lord referred to my contribution on the second day of Committee and to some of the things that I said, which bore repetition because the noble Lord, Lord Crickhowell, also set out in extenso my views on Part 3. The noble Lord, Lord Crickhowell, referred to the fact that I had said that this was an ingenious and tortuous device to bring in legislation without having a referendum. We accept that that is the position. We also accept, however, that the proposals of the Government, which are not very satisfactory and certainly do not match the aspirations of the Liberal Democrats in Wales or in the United Kingdom, are, nevertheless, a step in the right direction.
This amendment proposes to introduce a further complication by requiring that the measures which the Welsh Assembly has passed, within the powers granted to it by an earlier Order in Council, should require a resolution of each House of Parliament before they can be put into effect. It would also require that each House of Parliament should have a further chance to block the measures that are passed by a democratically elected Welsh Assembly through Clause 101. I repeat that I am not happy with the way in which these proposals have been put forward, and neither was the noble Lord, Lord Richard. I do not know whether the noble Lord, Lord Rowlands, supports them. He was a member of the Richard commission which came forward with a solution that was perfectly satisfactory to us; namely, that the Welsh Assembly should move towards having primary powers and that it should be reconstituted in such a way as to give to the Assembly a mandate for carrying out its policies. I repeat that this is not a satisfactory solution, but the amendments put forward at this stage by the noble Lord, Lord Kingsland, make it even worse. I regret to say that we cannot support it.
Before I leave this subject, I am grateful to the noble Lord, Lord Evans, for handing to us a press release issued today by the Secretary of State for Wales, Peter Hain. He regards our attempts to improve this Bill as "petty mischief-making"that is the expression he usesand says that the Lords,
I think he has lost his marbles. I do not know what concept he has of the constitution of this country or the powers of this House. If we are not here to try to improve this Bill and to bring in amendments to it, we may as well all go home. Mr Peter Hain has no idea of what he is talking about, and if there is any mischief-making going on it is his, presumably to gain some sort of electoral advantage to the Labour Party. It is him who is making allegations which certainly attack the dignity and powers of this House.
Lord Anderson of Swansea: My Lords, it is not for me to interpret the words of the Secretary of State in terms of petty mischief-making, but I think a number of us shared a certain irritation yesterday when there was a playing with words. The word "audit", for example, was excised from the Bill and replaced with another word, which causes a whole series of repercussive changesconsequential changesthroughout the Bill. If I can divine the meaning, in a very humble way, of what the Secretary of State was saying in that press release, perhaps he was referring not to some of the other measures that this House passed but to "audit", which seemed to be a rather arbitrary and, in my judgment, very wrong use of the power of this place.
In respect of this amendment and the general question, I think I am with the Government on it, but the Government should give a reply to the concerns raised in the other place by the Father of the House, the right honourable Member for Swansea West. Essentially, he argues that by this device and by not having the additional safeguard of parliamentary endorsement, which is part of this amendment, the Government are moving towards a primary legislative position step by step. To move totally to a primary legislative power for the Welsh Assembly on the lines of the Scottish Parliament would be a major change in the rules of the game and a major change from what the people of Wales only just agreed in the referendum. Only 50 per cent of the electorate in Wales bothered to vote in spite of the Government, after a major election victory, campaigning strongly for it. The result was 25 per cent "for", 25 per cent "against". That was not part of the package put before the people of Wales in the referendum. Nevertheless, one could conceive of a position where the Government, or a future Government, would by a series of small steps avoid the "big bang" of a referendum. That danger has been expressed very eloquently in the other place by the Father of the House and I think it deserves a considered reply. Although I am minded to support the Government, I would be grateful to know how the Government seek to respond to that very genuine concern.
Lord Elystan-Morgan: My Lords, I wish to concentrate on what I regard as the basic postulate of the case put forward with such charm and lucidity by the noble Lord, Lord Kingsland. His caseI hope that I do justice to itis that this is essentially primary
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legislation that Parliament is not entitled to deal with in the normal way. If he is correct in that, it is a serious charge that deserves to be answered by some change in the whole structure or in some other way. However, with very great respect, I believe that he is wrong. That is not only my personal viewI shall quote from page 65 of the Explanatory Notes. As I understand it, these notes are drawn up in a neutral way by people of considerable expertise and experience who try as best they possibly can to set out an accurate legal position. If they are wrong it would be contrary to the experience of Parliament in relation to the standard of Explanatory Notes. Paragraph 320 states: "This clause"that is, Clause 92
I quoted that previously in Committee and I went on to quote further the statement later in the same paragraph to the effect that of course the Westminster Parliament still has a parallel right to legislate. I was chided mildly but politely and firmly by the noble Lord, Lord Norton, in an intervention lasting seconds rather than minutes. I do not know whether it was my unnatural shyness or the onset of early arthritis but I did not manage to get my feet in time to intervene. He was entirely wrong to say that that was a flawed argument. I was not at all arguing the point about Westminster's right to legislate; I was relying on the considered, objective, competent opinion of the compilers of the Explanatory Notes. If I am right about that, the case put forward so attractively by the noble Lord, Lord Kingsland, falls.
Lord Crickhowell: My Lords, I had not intended to intervene in the debate on this amendment, particularly after this formidable exchange of legal opinion. However, if we are going to have authoritative statements quoted from outside, we should attach some significance to the views of the noble Lord, Lord Richard, who, with the noble Lord, Lord Rowlands, and others studied this matter in great detail. I remind the House that he said of "this device"that is what he called itthat,
"Westminster can say they have not devolved primary legislative powers, but depending on the way in which the Order in Council procedure is used, it could in effect be a concealed grant of almost a direct legislative competence down to Cardiff".
I make two other observations. The first is that I agree with the statements of the noble Lord, Lord Thomas of Gresford, about the press handout. It seems likely that its primary purpose in being issued today was to seek to avoid the Labour Party getting another bloody nose in the Blaenau Gwent by-election. If we are really going to have this House insulted for no other purpose than that, we have got into a pretty shocking state of political play. Secondly, I say to the noble LordI shall enlarge on this when we come to later amendmentsthat I still find his position very hard to understand. Having said that all of this part of the Bill is highly unsatisfactory and that
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he would much prefer Part 4, he is reluctant to allow a referendum to be held that would allow the people of Wales to say, "Yes, we want to go on" with what the noble Lord, Lord Elystan-Morgan, called in an earlier debate Gladstonian home rule. He wants it, but he is not prepared to ask the people of Wales whether they want it too. However, we shall return to that subject with later amendments.
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