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I supposed until last week that the possibility of a rainbow coalition of Plaid Cymru, the Conservatives and the Liberal Democrats governing in place of the minority Labour Government who now control the Assembly had suddenly brought nearer the possibility of a referendum and concentrated the minds of the United Kingdom Government on the need to safeguard what are commonly called reserved areas against infringement by poacher legislators. Well, how wrong I was. It was not the possibility of a rainbow coalition that had brought the referendum nearer, but the agreement between Labour and Plaid Cymru that Plaid Cymru would support a minority Labour government on condition that Labour would give a joint commitment,

as the press account of the coalition document reports. So there we have it: the price exacted by Plaid Cymru for its support is clearly a referendum on full legislative powers. I cannot but wonder what the Secretary of State, Mr Peter Hain, thinks of that agreement. After all, he has spoken about his doubts about, and almost antipathy to, such a referendum. Of course, he has a powerful say in whether the referendum goes ahead.

However, the story continues. Both political parties, the Welsh Labour Party and Plaid Cymru, have to approve the coalition document over the coming weekend. We shall therefore watch that space carefully.

All the articles in the SI deal with what are described as “exceptions” to the areas where the Assembly may legislate. Articles 7 and 8 do not, but they, too, trim and curtail the permitted legislative area: Article 7 defines housing finance more narrowly and Article 8, under the heading “Public administration” defines inquiries more narrowly. I have no criticism of the tighter definitions inserted by the SI; indeed, I welcome them. The SI makes it clear time and again that the Assembly’s legislative power is confined to the areas where it has functional duties and responsibilities and that it is excluded from areas that are the prime responsibility of other departments of state.

Nevertheless, the public would be surprised at some of the subjects that are excluded from the Assembly’s legislative remit, particularly nuclear energy and nuclear installations, of which Wales has substantial experience through the nuclear power stations at Trawsfynydd and Wylfa. The latter is a candidate for an extended life and possible renewal. Local people and their representatives will wish to have their say, and there will be a great deal of discontent if the matter is completely out of their

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hands. This is a fresh addition to the exceptions listed under “Economic development” and will undoubtedly be controversial in Wales. Arguably, some aspects of nuclear developments are covered by subject 6, the environment, in Part 1 of the schedule, which covers environmental protection, pollution, nuisances and hazardous substances. The Assembly has legislative competence in those areas. There are obviously nuclear aspects to those matters. What happens in the event of a conflict of views on whether it is permissible for the Assembly to legislate? I presume that it becomes a matter for the Counsel General or the Supreme Court.

It is also surprising to note that the registration of local bus services and traffic regulation conditions related to those services are beyond the legislative reach of the Assembly, as is transport security generally, as opposed to rail transport. The Assembly Government surely decides matters relating to bus service subsidies and, with its responsibility for the building and maintenance of roads in Wales, must have concern for security on those matters. I would be grateful if the Minister could enlighten us further on these points.

I am not surprised by the exclusion of occupational and personal pensions, social security payments and various benefits from the scope of Assembly legislation. These matters require parity of treatment and a uniform UK approach. The rewriting of the section on water and flood defence is a welcome improvement and clarification.

There are no fewer than seven references to fish—fish products, fish feedstuffs or fish health—in this SI. All are intended to ensure verbal consistency with various other references in legislation which clearly distinguish between fish and other animals. It is a pity that the original draftsman was not familiar with the late Bing Crosby’s rendering of “Swinging on a Star”, which clearly defines a fish:

He can’t write his name or read a book”.

However, I have no objection to the amendments, or to the SI as a whole.

It is interesting that this is the only occasion when the schedule can be amended by order by this Parliament on its own. If the schedule is to be changed again by order, it must be done, as the Minister explained, by resolution of the National Assembly, as laid down in Section 109. We are grateful to the Minister for his comments on this unique aspect of the SI, and trust that the Government have included all the necessary amendments to the schedule.

This may well be my last speech as a Conservative Front-Bencher since I have asked to be retired from that position and my request has been granted. However, I have also agreed to carry on until my successor is appointed, and I do not know when that will be. I have enjoyed my decade on the Front Bench, and I thank colleagues of all parties for their kindness, which has helped to make these 10 years so eximious a part of my life. I particularly thank the Minister on this occasion. We have always had a very

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amiable, amicable working relationship. As far as I am concerned, he certainly well deserved to survive into the new Government.

5.15 pm

Lord Livsey of Talgarth: I am pleased to see the Minister still in his place. As the noble Lord, Lord Roberts, said, he has served the requirements of Wales extremely well, particularly in a legislative sense. I am particularly sad to think that we are to lose the expertise of the noble Lord, Lord Roberts of Conwy, who has made a massive contribution to Wales and to legislative matters affecting it, not least those surrounding the Welsh Language Act. That was quite a long time ago now, and an epoch-making piece of legislation. In his typically lyrical way, he has made most of the speech that I was about to make. I do not think that it is my duty to repeat the points in my contribution for my party, so, by way of illustration, I shall build on some of the points that the Minister and the noble Lord, Lord Roberts, made.

The Minister said that the order makes amendments to Schedule 7 to the Government of Wales Act and sets out the subjects in relation to which the National Assembly for Wales would be able to legislate if it were given the power to pass Acts of the Assembly. As the noble Lord, Lord Roberts, said, that is subject to a referendum under Part 4 of the Government of Wales Act 2006, and he is right to refer to the agreement that the Labour Party in the Assembly and Plaid Cymru appear to be coming to about the importance of a referendum. That is particularly topical in relation to this order.

Some aspects of the order have already been referred to, but I shall bring out some points that have not already been covered in detail. I agree with Article 3, which looks at the health of fish, fish products and fish feedstuffs. There is a lot of disease around in fish, particularly in freshwater fish, and it is important that we have secure and detailed legislation to protect them from some of the diseases that are rife in other countries.

I understand why there is an exception for pensions. However, nuclear energy and nuclear installations are of particular interest. I feel very strongly that, in the longer term, the Assembly should have the ability to legislate on energy. When one looks at the massive opportunities in Wales for alternative energy production, whether tidal, wind or solar, even with the kind of weather that we have had recently, there is massive capacity to produce a surplus of renewable energy, yet it appears from the order that the Assembly will not be able to legislate on energy. I find that extraordinary. However, the sensibility is in nuclear energy. It is highly controversial. My interpretation of the order is that, if the Assembly were to declare itself a nuclear-free zone—and one can envisage that in certain circumstances—it could not do that so far as concerns energy production from nuclear sources. That limits the competence of the Assembly to legislate. I am not surprised that the order has been produced at this point in the legislative cycle and that the Assembly cannot approve it, because it can be approved only here in both Houses of Parliament.



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There are other matters of particular interest. The noble Lord, Lord Roberts, mentioned most of them, and I shall not repeat what he said. I agree with a great deal of his analysis but Article 8 of the order, for example, states:

In respect of inquiries, the gas pipeline which goes across Wales from Milford Haven to Gloucester carries gas which gets the energy gap down with imported gas. It is not possible to have a public inquiry. Most of us have seen that pipeline and its devastating effect on the environment in parts of rural Wales, but the Assembly will not be able to have an inquiry. It will be a continuous situation. Not only that but, so far as I can see, we cannot have an inquiry into nuclear waste disposal. Perhaps the Minister will correct me on that, but that could be a very live and controversial topic in the future. There are a number of issues of that kind.

Finally, Article 11 states:

a number of things. It continues:

That means that the Assembly will not be able to legislate, for example, for anything within the Severn Trent Water area, which affects large tracts of mid-Wales where the reservoirs collect water for the second, I believe, most profitable water company in the United Kingdom. There are other issues as well concerning the lease of the Elan Valley water resources to that company.

There are quite controversial matters in the order. We are not here to oppose them, but I hope that the points that I make expose some of them. I do not expect the Minister to be able to answer all my points but these issues need to be exposed. When the Assembly looks at these matters, it will see that this order will have restricted its room for manoeuvre, albeit after a referendum, and restrict when the Assembly may get legislative competence to do so.

Lord Jones: We are in the Moses Room and heavenly thunder fills this biblical room. The Minister gave a felicitous introduction and I, too, congratulate him on his reappointment. I am very glad to follow the informed comments of my noble friend Lord Livsey of Talgarth and to see in his place the noble Lord, Lord Roberts of Conwy, who I calculate has spoken on Welsh affairs for more than a generation. He and I entered the mother of Parliaments together. He always put the interests of Wales first and today he was on his best and well known biblical form when he alluded to the apples hidden by the leaves, followed by a crooning reference to Bing Crosby. That was 5,000 years beautifully encapsulated. I remember his serious contributions to the establishment of the Welsh Language Act and of Channel 4, which was quite an important development in the history of Wales.



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The relevance and topicality of this statutory instrument could not be greater because the Welsh general election was in the first week of May. Even now, the First Minister, Rhodri Morgan, is still negotiating with other political parties for an agreement that would safeguard the existence of his Cabinet and its measures and proposals. So the words “legislative competence” are the very issue for the Wales Assembly. The words “law-making powers” and “referendum” are at the heart of the political drama being played out at Cardiff Bay more or less at this very moment.

Noble Lords have referred to the referendum. When it comes, as it surely will, it will be won, whether for good or bad—of that I am certain.

I acknowledge the success of the Welsh Assembly, which is not yet 10 years old. The miracle was how powers were transferred from Westminster to Cardiff Bay and how legislative competence was planned for, and how the changes were administratively seamless, without any major dysfunctions. On establishment, the public services continued miraculously as before and were delivered, literally overnight, most efficiently by the new Assembly. It said a lot for the Whitehall mandarinate and even more for the old Welsh Office Civil Service, which served my noble friend Lord Rowlands and myself in the Wilson and Callaghan Administrations in the 1970s and late 1960s.

The statutory instrument is an indirect compliment to the Welsh Assembly Government, their First Minister and their Cabinet—a compliment that they truly deserve. It is an important proposal, concerning the future governance of Wales. Can my noble friend the Minister state that it has been prepared carefully in conjunction with the Prime Minister’s Statement in another place today? Does the Prime Minister’s Statement in any way enhance or diminish the impact of this statutory instrument on the governance of Wales? Has my noble friend the Minister, in the process of reading himself in, had access to, seen, looked at or truly contemplated that before introducing this statutory instrument? I hope that he has—surely he has—for the relevance of the SI is then much greater.

Very briefly, Article 4 proposes pension matters under the heading,

That enables me to ask, as the Liberal Democrats asked, what connection if any is there with the recent merging of the Welsh Development Agency into the machinery of the Welsh Assembly Government? Were the pensions of the excellent WDA employees safeguarded? Does the proposed amendment in any way safeguard or enhance the position of those excellent employees? The agency was a great success and delivered the goods on inward investment, expansion and rejuvenation across Wales, and for regeneration. It enabled Wales to cope with the loss of her manufacturing industries, specifically in the late 1970s and early 1980s. What assurances can the Minister give on that?

Similarly, I want to refer to nuclear energy. At Article 4(c), after the 15th exception, a reference is

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proposed to nuclear energy and nuclear installations. This leads me to pose a question which has already been put from a different angle. What effect does this have on the future of the Trawsfynydd plant, which is now dormant and unused? Also, what is the future of the Anglesey plant at Wylfa? It currently has massive economic and employment implications for the whole island and the sub-region. Can the Minister throw any light on plans to build a new plant at Wylfa?

My last point of detail concerns Article 11, referring to the heading “Water and flood defence”. Can the Minister list the water undertakings that are, as it were, half in and half out, as was referred to in relation to Severn Trent? I think that the Committee would be pleased to have a response on those matters.

5.30 pm

Lord Thomas of Gresford: The Minister will be relieved to know that I do not propose to ask him further questions, but I cannot allow this opportunity to pass without paying my own personal tribute to the noble Lord, Lord Roberts of Conwy.

For seven or eight of the 10 years that he was the spokesman on Welsh affairs for the Conservative Party, I fulfilled the same role for the Liberal Democrats. Throughout that whole period, we worked together very closely and very rarely disagreed. Having regard to the way in which the Conservative Party opposed a referendum for a Welsh Assembly, I was particularly impressed by the way in which the noble Lord steered his party along lines which I am sure he deeply supported in the direction of a positive and constructive attitude towards setting up a Welsh Assembly and its Government. He referred to a rainbow alliance. Unfortunately, at the moment the sun is not shining on a part of our rainbow and therefore it is not complete, but with regard to the rainbow that existed between the noble Lord and me over the years, I can say only that, at one end of it, there was certainly a pot of gold.

Lord Rowlands: First, I, too, congratulate my noble friend on his return to office. Last year, I immensely admired the way in which he piloted the Government of Wales Bill through this House, and he has always been open and approachable towards Back-Benchers.

Secondly, in one sense, I was saddened to hear the noble Lord, Lord Roberts, say that he is to leave the Front Bench. His parliamentary life and mine have almost paralleled each other, and we both go back a very long way. I give him one word of comfort, although I do not think that he needs it. There is life on the Back Benches. Indeed, I have found it rather enjoyable in some respects and I am sure that he will enjoy it too.

I want to ask one or two brief questions about the order. In the Explanatory Memorandum, which has been laid before Parliament alongside the order, we are helpfully taken through the legislative background and told the distinction between orders under Schedule 5 and those under Schedule 7 to the Government of Wales Act. Naturally, we have not yet had any orders under Schedule 5 because the powers have only just been brought into being. However, that

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means that the Assembly has not been gaining legislative competences. I draw the Committee’s attention to the fact that two Bills which have been before this House—the Further Education and Training Bill and the Local Government and Public Involvement in Health Bill—carry various clauses with a substantial transfer of legislative competences which I should have thought in future should be brought before us in the form of orders.

I raise this with my noble friend because I wish to register concern. As we laid down very clearly how orders of this kind—either under Schedule 5 or, now, Schedule 7 of the Government of Wales Act—were going to be the subject of considerable pre-legislative scrutiny, neither of those sections have been subject to that scrutiny. Although we are told that we can amend them in this House and the other place, that is not a substitute for the proper kind of pre-legislative scrutiny that we established was going to be the norm for future Orders in Council. In future, if legislative competence is brought forward in the form of clauses in Bills, they should be subject to the same kind of pre-legislative scrutiny as we expect of orders.

Briefly, on this schedule, my noble friend mentioned that the Welsh Assembly Government had been consulted. Was the National Assembly consulted? Did this order at least go before one of its appropriate committees for clearance and approval? Perhaps I am now a natural Back-Bencher, but I see it not through the eyes of a government these days, but the eyes of a parliament or assembly. Has the Assembly had the opportunity to comment or make observations on this order?

Finally, I turn to the fact that, oddly, all those who have spoken have fastened on to one aspect—I shall go a slightly different way: the maintenance of the exception of any formal legislative competence in the area of energy. I think that the noble Lord, Lord Livsey, said energy; I am not sure that it is energy, but it is certainly electricity and nuclear installations. You cannot possibly have a different health and safety regime on nuclear in England from Wales or anywhere else. That has to be a UK responsibility, but it is now totally accepted that the Assembly will have legislative competence over electricity. The way in which electricity is going to be commissioned and developed is changing dramatically and rapidly. There are very small schemes, combined heat and power schemes, the wind farm issues and all the rest of it. I cannot see that somewhere, somehow, that total exception is going to hold. I ask my noble friend whether we are right in saying that the Assembly Government do not have any formal legislative competence at all, even around the fringes of electricity generation.

How does that lack of competence compare with the planning powers it has in certain respects? As the noble Lord, Lord Livsey, pointed out, the strategic decision to commission a power station is often involved in planning. He made a reference to the LNG pipeline. I do not share his view. I live near where that pipeline is going, and can see what he called “devastation”. I have North Sea gas in my house. A generation ago, people on the northern

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coasts of the country suffered whatever they had to suffer for the generation of, and advantages we have from, supplies. We cannot be so curmudgeonly on these issues as that. I suggest to my noble friend that the issue of electricity generation and the legislative competence that the Assembly does not have but may need at some time in the future is one that we will return to.

Lord Evans of Temple Guiting: I pay tribute to my friend, the noble Lord, Lord Roberts. When I started in this job about three or four years ago, he was incredibly kind to me, supportive and generous with his time. It was not until I read his excellent autobiography that I realised that I was dealing with somebody who had been the longest serving Minister in a government department—the Welsh Office—since the beginning of the 19th century, and who knew more about Wales than I would ever hope to. He has been very kind to me over the years I have been doing this job. It is a strange thing to say, given that he comes from a different political party, but he has almost been like a mentor figure. I am really grateful to you, Wyn, and wish you every possible happiness and success on the Back Benches. Thank you very much.

An enormous number of questions have been asked in what has been a long and fascinating debate, and I shall try to answer as many of them as I can. If I miss out some of them, we will of course write to noble Lords.

The noble Lord, Lord Roberts of Conwy, requested clarification on a number of points. He asked why the order is before Parliament now and read some slightly unworthy motivations into the timing which are simply not based on fact. As I indicated earlier, the Government gave a commitment to Parliament to ensure that Schedule 7 is complete and accurate. As I am sure noble Lords are aware, since the Government of Wales Act received Royal Assent, the Government have undertaken a substantial programme of secondary legislation, comprising 11 orders, properly to settle matters of technical detail which flowed from the Act. This order is part of that process.

This programme has included, for example, the staff transfer order, the property rights and liabilities order and the transitional provisions (finance) order.

The Deputy Chairman of Committees (Baroness Fookes): I am sorry to interrupt the Minister, but there is a Division in the Chamber, which takes precedence. I shall return in 10 minutes.

[The Sitting was suspended for a Division in the House from 5.41 to 5.51 pm.]

The Deputy Chairman of Committees: The Committee is reconvened.


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