Lords amendments considered.
Candidates at general elections
Lords amendment: No. 3.
I beg to move, That this House disagrees with the Lords in the said amendment.
I believe that the package of amendments that we present today forms the basis of a cross-party consensus to achieve Royal Assent before the summer. The Government have listened to debates in this House and particularly in the House of Lords, where some major amendments were tabled. We have sought agreement and I believe that we now have that on the composition of Assembly Committees. The d’Hondt formula is now, instead of being up front, very much a fall-back option and on the back burner. It is there if needed, but we hope that it will not be needed. We have also made concessions on the name of the audit committee and, importantly for all Opposition parties and—frankly speaking—for ourselves, on the membership of the Assembly commission.
The debate on the details of the Bill has been had, and I hope that the Conservatives will now join the other parties in Wales to make the new powers work, and not pursue old arguments. I thought that it was very apt of the former Plaid Cymru leader, Dafydd Wigley, to have told the Western Mail yesterday:
“I hope both sides can give and take. To prepare for what happens after next May, it is extremely important that the Bill gets through before the recess.”
That is indeed important. There are important preparations to be made for the election and many orders to be laid in respect of the new internal architecture of the Assembly. The Assembly officials and others want to get on with that and, therefore, Royal Assent by next Tuesday is very important.
After that brief introduction, I shall now address the amendments specifically. I realise that the ban on dual candidacy is contentious with all Opposition parties, but it is a manifesto commitment. Our 2005 general election manifesto stated that we would
“prevent candidates from standing on both the list and in a constituency in order to make all candidates genuinely accountable to the electorate and to end Assembly Members being elected via the backdoor even when they have already been rejected by voters.”
That is a clear commitment from a manifesto that we took to the country in May last year and on the basis of which we won a resounding victory, certainly in Wales and also in the rest of the country. It is a measure that this House considered at length and supported by a considerable majority earlier this year.
The proposals in clause 7 of the Bill, as originally drafted, will strengthen the integrity of the Assembly’s electoral system and the legitimacy of regional Assembly Members. They will put the voters in charge by enabling them to reject a candidate who can currently get in through the back door despite being rejected by the voters in a constituency.
I appreciate that this issue has aroused strong feelings on both sides of the House and concerns have been expressed, but I wish to draw the attention of the House to the views of Lord Elis-Thomas the Presiding Officer of the Assembly since its establishment in 1999 and Plaid Cymru’s former parliamentary leader. When asked recently by the BBC about his views on the dual candidacy ban, he said:
“every party has selected under the system which is in the Bill and that, to me, signals a bit of an hypocrisy to carry on fighting old battles, I find that quite boring. So my main battle now is to try and get the structure of the National Assembly under the new constitution and new bill in place for 2007 because I don’t want people wasting time, whoever the Government is after 2007, by not being able to get things done.”
He added that
“the debate and the arguments have been lost.”
That is a significant statement. He continued:
“The politics has been lost. What I’m saying is that the big picture now is to get the Assembly established, and a new constitution, because what we have to do is to make it clear to the people of Wales that we have a new democratic opportunity. That is the most important way to challenge the Labour Party or any other party.”
I would be the first to admit that I have not always agreed with the views of Lord Elis-Thomas in the past—and I do not necessarily agree with every word of that quotation— but I believe that on this occasion he was speaking with the best interests of the National Assembly and of Wales at heart. He was speaking in a non-partisan way. I know that he was not a supporter of the ban on dual candidacy, but he has moved on and it is important that the House also moves on.
I agree entirely with what the Secretary of State said about the manifesto commitment and the fact that we are talking about something that the House of Commons has passed on numerous occasions. Does he agree that Lord Elis-Thomas is, of course, a member of the House of Lords and that he accepts, and his party accepts, in the House of Lords, that the supremacy remains in this Chamber and in the House of Commons?
Indeed, although I am not seeking to deny that there have been real improvements to the Bill as a result of debates and arguments in the Lords and the amendments that have been moved there. There has been a constructive exchange, which has partly resulted in some of the important compromises that we have offered—not on dual candidacy, because that is a manifesto commitment. In line with the Salisbury convention, I hope that the House of Lords will respect that, because it is fundamental to the Bill and to the integrity of a new electoral system for the Assembly.
Lord Elis-Thomas knows better than many the work and the preparation that needs to be done to enable the Assembly to make a smooth transition next May to the new arrangements, with a separate Executive and legislature. He does not want that essential work to be delayed by arguments over what his fellow Assembly Member, the Liberal Democrat Peter Black, has described as a
“distraction from the real issues in the Bill.”
The real issues in the Bill are, of course, primarily concerned with giving extra powers to the Assembly and also with making sure that it acts as a proper legislature with an Executive who are accountable to that legislature—rather than a rather amorphous corporate body that has not really stood the test of time.
Royal Assent before the recess is vital and I am grateful that the hon. Member for Chesham and Amersham (Mrs. Gillan) and the hon. Member for Montgomeryshire (Lembit Öpik) have recognised the importance of that. The key immovable deadline that we face is the Assembly elections next May. Considerable consequential work is needed following Royal Assent and before the purdah period before the elections. That includes elections and disqualification orders, which need to be made in good time to set out clearly the basis on which all parties and candidates need to organise themselves and to allow adequate time for proper consultation with the Electoral Commission. The Bill includes a power for the Assembly to promote participation in and awareness of the elections—meeting an Electoral Commission recommendation. Clearly, there has got to be sufficient time for that.
Schedule 7 outlines the Assembly’s ability to make primary legislation if there were to be a successful referendum. A key commitment is to fine-tune that and to bring forward an amendment order to ensure that it is complete and accurate before the elections next May so that everybody is clear about the new footing on which the Assembly will start. A considerable number of further orders are required—about 14—many of which are fundamental to the separation and include provisions for financing and staffing arrangements. They are critical when it comes to delivering the policy in the Bill, and have to be completed in good time before the next elections.
I hope that I have not taken too many liberties in explaining to the House the importance of getting Royal Assent by next Tuesday. If devolution is to continue to be a success, and the Assembly to help to improve the quality of people’s lives in Wales, we need to move on—to go forward, not back. I urge Members to reject the Lords amendment and to disagree with the Lords on this matter.
First, may I welcome the Secretary of State to the Dispatch Box? It may be the hottest day of the year both here and in Wales, but he always looks as though he has been out in the sun rather a lot when he comes to the House to grace us with his presence, so it is obviously weather that he enjoys.
The Secretary of State took the words out of my mouth. He appears to be suffering. I am sorry that he is having so much aggravation with his legislation, both here and in another place. Of course, it is not just this Bill that he is having a little local difficulty with. I understand that there are negotiations on the Northern Ireland legislation, which must be preoccupying him a great deal. We all sympathised with him earlier in the year when he had to pull the Northern Ireland (Offences) Bill. It must always cause a great deal of difficulty in the office of the Secretary of State when legislation has to be withdrawn. [Interruption.] It was a pleasure to withdraw that piece of legislation—good, I am glad to hear that. We might be able to agree on that, but there is no doubt that we are not going to reach an agreement on dual candidacy. Notwithstanding any backroom deals that might have been done with other parties, we will continue to register our objections by opposing the provisions in principle. I think neither that the matter is boring, nor that it is something that we can just ignore.
It was always apparent from the way in which this aspect of the Bill was approached that a deal had been done—it was a deal between Cardiff and Whitehall—to keep Labour Assembly Members happy and dilute what they perceived to be real competition. In truth, it is competition that Labour Assembly Members cannot stand. The Secretary of State is quite right that various justificatory arguments for changing the electoral arrangements in Wales have been laid out by him, the Under-Secretary and Lord Davies of Oldham. However, it is worth having a look at them because I would not want to admit for one moment that the argument is lost. I think rather that the argument has been won, but that the Government have rolled on regardless.
First, we were told that the provision was a manifesto commitment. A manifesto commitment is a statement of intent, or even a wish. A party that was faced with the need to cling on to power by forming an alliance with another party—the Liberal Democrats, for example—would need to compromise on its manifesto commitments. Indeed, I believe that that has happened in Scotland.
The Labour party in Wales does not even need to enter into a coalition to give up on its manifesto commitments. Page 5 of its 2003 manifesto, “Working together for Wales”, said that in the next Welsh Assembly term Labour would
“Scrap Home Care charges for disabled people”.
However, on 15 February 2006, Dr. Gibbons, the Labour Minister for Health and Social Services, said:
“in view of all that we now know, it is clear that we cannot put in place our original plans equitably and affordably.”
There we have a manifesto commitment that was easily put aside.
That was not even a one-off. “Ambitions for Wales”, the Labour party’s 2001 manifesto document, said:
“We will not introduce ‘top-up’ fees and have legislated to prevent them.”
Of course, Labour broke that manifesto promise. It was only the Conservatives who forced the Labour party to remove those charges from Welsh students attending Welsh universities. The claim that manifesto pledges cannot be broken really does not hold water as a cohesive argument. Such pledges can be broken when it suits the Labour party.
Secondly, we are told that the system is confusing to the electorate and that we do not want losers to become winners. What nonsense is that? If the Labour party does not want losers to become winners, why has it admitted Baroness Jones of Whitchurch to the House of Lords today? If I remember correctly, she was the losing candidate in the Blaenau Gwent constituency in the general election. Labour Members say that they want losers to be losers and not to become winners, but I am afraid that that rings pretty hollow today. If the Labour party did not want losers to become winners, why did it introduce a list system at all? On the death or resignation of a sitting Member, the next person on the list—most arguably a loser—automatically moves into an elected position. The claim is paramount nonsense.
The electorate are confused not about dual candidacy provisions, but about the multiplicity of the voting systems that the Labour Government have introduced since 1997. We have the supplementary vote system for the London mayoral election, the proportional representation list system for European elections—except in Northern Ireland, where there is a different system—and indeed the single transferable vote system in Northern Ireland. I do not think that I need to go on. The multiplicity of the systems is confusing voters who have been used to first past the post. However, another change is proposed for Wales after only a short time.
What is the basis for the change? If it were based on fact, investigation, consultation or popular demand, I could understand it, but that is not the case. The only research that has been prayed in aid of the change is that of the Bevan Foundation. Despite the foundation’s excellent credentials, that work was hardly its finest piece of research. Such a small, isolated, Labour-purchased report should hardly form the basis for electoral change. I have to tell the Secretary of State that I have received no letters from people demanding a change. I have heard no public outcry and have received no letters supporting the changes that he wants to make.
I was not casting aspersions on the Bevan Foundation—I was just saying that I doubt that it is happy, either with that small, imperfect piece of research or for it to be cited as the sole support for electoral change in Wales. The foundation has some excellent credentials, but that research is slightly lacking in my view and, I believe, in the hon. Gentleman’s view, given his admission.
To justify the changes, the Secretary of State said that there is widespread, systematic abuse by regional Assembly Members. I have challenged him to produce evidence, as has Nick Bourne, the leader of the Conservative group in the Assembly. In a debate on this subject on 27 February, I asked the Secretary of State whether he had replied to letters that Nick Bourne had sent him on 4 November and 27 January. Since then, another letter was sent on 20 March. Of course, there is no evidence of abuse, which is why, I assume, the Secretary of State has not had the courtesy to respond to those letters. I am happy to give way to him if he would like to explain why he has not done so. Those letters are perfectly polite—if he would like to look at them, I have copies with me. It appears, however, that the allegations of abuse are another fabrication to try to justify the self-serving provision in the Bill.
There is a great deal of opinion against the introduction of such a system, which operates successfully only in Ukraine. The Electoral Commission was not convinced of the need for change. In its submission to the Welsh Affairs Committee, it concluded:
“In light of the need to encourage voter participation at the Assembly election in 2007, we would caution against any change that is perceived to be partisan and could add to a prevailing distrust of politicians.
On the evidence available to the Commission…we do not believe that the case for change has been made out.”
The Electoral Society Reform said:
“We urge the Government to reconsider their proposal to ban dual candidacy, a controversial and divisive argument for which the case has not been adequately made.”
During the Bill’s passage through the House, we heard from the Arbuthnott Commission which, after 18 months of deliberation and discussion, following the submission of evidence, including verbal evidence, from a range of bodies and elected representatives at all levels, concluded that there was no evidence that dual candidacy was problematic for voters. Professor Sir John Arbuthnott said:
“Banning dual candidacy would, if you think about it, actually restrict voter choice and potentially diminish the quality of constituency contests.”
The commission concluded that there was no case for change in Scotland, and there are no plans to introduce the system there. If it is not good enough for Scotland, why is it good enough for Wales? The Government have neither consulted on, nor examined, the changes in a responsible or thorough fashion. Indeed, in the 2006 annual report by the Wales Office, the Secretary of State said:
“The third commitment was to prevent candidates from standing on both the list and in a constituency in order to make all candidates genuinely accountable to the electorate. The Government believes that following two Assembly elections and experience of the Additional Members System there was a need to modify the system to prevent candidates from standing simultaneously in a constituency and on the regional list.”
I assume that the reference to making “all candidates genuinely accountable” means that serving Assembly Members are not genuinely accountable. It means, too, that none of the list Members in Scotland, either before or after the next election for the Scottish Parliament, are genuinely accountable.
The Secretary of State is suggesting that there are two classes of Assembly Member. That is absolute rubbish, and it is not worth the paper it is written on. As I said, the Government have not consulted or examined the changes to the electoral system, or sought consensus. They have not respected the principles of the original devolution settlement in Wales but, as usual, they do things in Wales that suit Labour party politics. I will not support that course of action, so I urge my hon. Friends to agree with the Lords amendment and oppose the Government motion in the Lobby.
I apologise for being a little late for our debate.
The Assembly elections will be held in about 10 months’ time. The Assembly has done many good things for the people of Wales, but I believe that turnout will be low, which is unfortunate for Wales and for democracy. One problem is that voting in elections is affected by the enormous publicity created by the media. Even at the general election, turnout was reduced. The great bulk of the Bill that we have discussed in recent months will not excite the people of Wales to increase turnout. People vote when their lives are directly affected by an issue, whether it is the health service, schools or local government. Constitutional issues are interesting for politicians, but I am not convinced that the people who elected me are as excited about them as we are in the Chamber.
I do not understand for one second the reasoning of the hon. Member for Chesham and Amersham (Mrs. Gillan) on our manifesto commitment. She cited an Assembly manifesto commitment, but it was not an Assembly commitment, but a manifesto commitment made by Welsh Members who stood for parliamentary election to the House of Commons. She said that we should not break our manifesto commitments, and reeled off a list of accusations, but she went on to suggest that we should break that commitment. That is nonsense.
The right hon. Gentleman is far wiser and has more experience of the House than I, but according to that argument, during the 18 years in which the Conservatives held sway, he would not have dared to question anything that we included in our manifesto. If we did not question things in manifestos there would not be much point in our coming to the House.
I do not question the fact that Opposition parties should debate the manifesto of the winning party, but there comes a time when the upper House has to acknowledge that manifesto. My right hon. Friend the Secretary of State referred to the Salisbury convention, and our manifesto could not have made the position clearer. We wanted to change the rules on the Assembly, and people voted on that change. The hon. Member for Chesham and Amersham raised the issue of consultation—of course, those matters were discussed at the general election, and were extremely prominent in the run-up to that election. There was a party conference in Wales and those matters were discussed by newspapers and television companies—whatever their views on them.
The hon. Lady represents an English constituency, so she would not know about these things. However, when we travelled around our constituencies, we talked about those commitments, one of which was on the need to prevent the daft nonsense of dual candidacy. I would have gone much further than the Secretary of State in changing the electoral system in Wales, but that is an issue for another day. The hon. Lady is entirely right that the daft system for electing people to the European Parliament ought to be changed. The link between a Member of Parliament and the constituents whom they represent in the House of Commons is a jewel in the crown of our democracy. The added list needs to be looked at, but for all sorts of reasons we are not in a position to do that yet. At present we are abiding by that significant, obvious manifesto commitment to change the rules on dual candidacy.
The right hon. Gentleman cites as the core element of his argument the rule that a manifesto commitment must not be broken. Can he confirm that he thinks it was utterly unacceptable for the Government to break their highly publicised manifesto commitment in 2001 not to introduce tuition top-up fees? The question is relevant, because there is no consistency in what the right hon. Gentleman claims his Government should do, and what the Government have done with regard to manifesto commitments.
I agree with what the manifesto stated about these issues. The hon. Gentleman and I argued about this some months ago in this place. It is not relevant to what we are discussing. What is relevant is that the House of Lords debated the matter, made the arguments clear and voted accordingly. The matter has come back to the House of Commons and it is now up to Labour Members to honour those manifesto commitments and to ensure that what the people of Wales clearly voted for is honoured by the Government.
The right hon. Gentleman protests too much about the Salisbury convention. Although the Liberal Democrats voted with us in the other place to produce the amendment that is presented for the House’s scrutiny, and the vote was won by 133 to 114, I understand that a deal has been done with the Liberal Democrats whereby they will not challenge the House’s decision in the other place, so they will not stand alongside us on a point of principle. Quoting the Salisbury convention is therefore almost pointless. Once a deal like that has been done, if the Liberal Democrats cannot stick to their guns, the Government will get their business.
I am delighted to hear that both the Conservatives and the Labour party do not want to make winners out of losers. In the case that neither party gets an absolute majority at the next general election, I presume that they will not seek to impose their minority manifesto upon the country. In that context I was more than a little surprised to hear—[Interruption.] I think I hear the laughter of agreement from the hon. Member for Chesham and Amersham (Mrs. Gillan).
The irony is lost on the hon. Member for Monmouth (David T.C. Davies), as usual. It is somewhat dog-in-the-manger to hear the bleating of democratic concern from Conservatives—[Interruption.] I am about to say something about the Conservatives, not about Labour. The hon. Member for Vale of Clwyd (Chris Ruane) should not provoke me. He would not like me when I am angry.
I was momentarily distracted, Madam Deputy Speaker, by the sheep noises from the hon. Member for Vale of Clwyd. Hopefully, his support for rural policies will follow from that.
There is a degree of schizophrenia in the way that the Conservatives approach issues of democratic mandate, but perhaps that is a matter for another day. I am frustrated by the apparent about-turn made by the right hon. Member for Torfaen (Mr. Murphy), who has my considerable admiration and respect, but not when he picks and chooses the manifesto commitments that he thinks his Government should see through. He is quite willing to see the utter abandonment—the U-turn—on other manifesto commitments, such as on student top-up fees, when that suits him. Let us remember that the Government could not have been any clearer in 2001 about their opposition to introducing student top-up fees, and went on blatantly to break that commitment. When the right hon. Gentleman comes to use his manifesto promises on this occasion, he will understand why some of us are rather cynical about when and where Labour right hon. and hon. Members choose to support their Government.
The second point, which I make to the Secretary of State, is that the Government did not win the last general election. They got roughly a third of the vote. [Hon. Members: “Oh!”] Hon. Members seem surprised by the mathematics of my claim. I think they will understand when I say that 35 per cent. support suggests to me that 65 per cent. of people voted against their proposition. Even in Wales, a majority of voters voted against the Government’s manifesto, so they cannot realistically cite in defence of their proposal—any proposal—the claim that a majority of people in Wales voted for their manifesto commitment.
The amendment tabled by the Conservatives and ourselves reversed the Government’s attempt to ban dual candidacy, for the reasons that we have discussed many times, some of which have been repeated by the Conservative spokesperson this afternoon. The amendment maintains the electoral status quo, with Assembly Members able to stand simultaneously for a constituency seat and on the list.
The Liberal Democrats have always maintained that the dual candidacy debate, which has attracted the most attention in the media of all the issues relating to the Bill, is not the single most important issue. It is, in a sense, a secondary procedural issue which has attracted a disproportionate amount of attention. The Bill is fundamentally about devolution and the extent and quality of the powers handed down to the Assembly. Nevertheless, since we are debating it and the Secretary of State is inviting us to rehearse the arguments again, let us recall briefly why there has been opposition to what he and the Labour Government seek to do.
The Clwyd, West problem is something of a red herring. The Government White Paper stated that the current arrangement for dual candidacy
“devalues the integrity of the electoral system in the eyes of the public and acts as a disincentive to vote in constituency elections”,
presumably because candidates who lose constituency elections can become Assembly Members via the list. However, the Electoral Reform Society commented:
“It has been almost universally agreed that there is little evidence”
to back up the Government’s claims.
In her submission to the Welsh Affairs Committee, Kay Jenkins, Head of Office at the Electoral Commission, said:
“There is no evidence that the Clwyd West so-called problem has had any impact on voter participation. . . We have got a very extensive body of research on what makes people vote and not vote across Britain and particularly specifically in Wales, and it is on that basis that we say it is not an issue we could say has ever been raised with us.”
In their evidence to the Committee, Dr. Roger Scully and Dr. Richard Wyn Jones from the university of Aberystwyth cited a study that they had done. They said:
“The total number of people who mentioned anything at all as a reason for not voting in 2003 in our sample was 2; that is out of more than 500 who said they did not vote.”
Let us remember that the Welsh Affairs Committee was split strongly along party lines on the matter and voted 5 to 4 to back the Government’s stance. My hon. Friend the Member for Ceredigion (Mark Williams) voted against the Bill’s proposals, as did the three Conservative members. There are no points for guessing the party affiliation of those who voted for it.
Faced with all that powerful evidence to suggest that the Government are pursuing their proposal for party interest rather than democratic interest—
The hon. Gentleman says there is massive evidence and cited two people out of 500 who did not vote. What evidence does he have for the assertion that he keeps making—on Second Reading and subsequently—that the Labour party will benefit in Wales? He has none, so why does he keep repeating that it is acting for party political interests? He quotes evidence to back one argument, but he keeps asserting another for which he has no evidence.
The reason is fairly obvious to all of us on the Opposition Benches and, I suspect, to a number of members of the Labour party. The reason is that the present electoral mathematics would make it, as far as we can see, attractive to Labour Members to try and separate the list from the constituencies. [Interruption.] Members just saying from a sedentary position that that is not the case does not alter my perception that it is the case. [Interruption.] Well, it is a perception; that is what I believe is going on.
And I am a very perceptive individual, as my hon. Friend perceptively points out.
Having said that, let me respond to the plea for information by the hon. Member for Ynys Môn (Albert Owen) by citing the one piece of research that we have discussed in defence of the change. It comes from the hon. Member for Caerphilly. His research has been discredited as hardly scientific, but it is laudable that he still clings to the morsels of hope that it provides for his conscience in respect of seeing that this change needs to be made.
If the hon. Gentleman had reread a debate that we had in the past it would save me a lot of time in highlighting why we think that his research is desperately flawed. Indeed, I have little doubt that that research will go on to prove that he is the greatest politician who ever stood—in Caerphilly—and that Labour is the greatest party ever to represent Wales. [Interruption.] The sheeplike noises from Labour Members back up that assumption. My point is that that was the only research that we heard in defence of the change.
The final defence for the change, which we heard from the Secretary of State, is that the current electoral arrangements have been subject to, in his words,
“systematic abuse for party advantage by Opposition parties”.
He must acknowledge that the Electoral Reform Society—which does not have a party interest in supporting one system or another—said that
“a ban on dual candidacy will not provide a solution to this dilemma—whether or not they are permitted to stand as constituency candidates, there is nothing to stop list candidates from targeting particular constituencies on behalf of their parties.”
The ERS concludes:
“We urge the Government to reconsider their plan to ban dual candidacy, a controversial and divisive argument for which the case has not adequately been made.”
Would the hon. Gentleman also like to acknowledge that even if the Secretary of State could not reply to the letters from Nick Bourne, the leader of the Conservatives in the Welsh Assembly, he did reply to Rhodri Morgan, under the Freedom of Information Act 2000, in respect of producing any evidence of the alleged abuse of positions by regional Members of the National Assembly for Wales? On 25 April, the reply came that the Government had not been able to uncover any such information. No evidence whatever of any abuse has been brought forward. Therefore, they are basing these electoral changes on a false premise.
I have to admit that I agree with the hon. Lady. That serves to underline the reason behind my response to the hon. Member for Caerphilly and others: they have failed to provide a plausible intellectual or objective defence of the change that they wish to make.
I ask the Secretary of State one last time to reconsider. Trying to make this change has not been the Government’s finest hour. Whether or not they admit that, they must accept that the perception is that this is being done out of party political interest, and it is beyond us why they continue to pretend that it will go the slightest way towards preventing targeting by one party of a constituency held by another.
My hon. Friend is completely right.
There is a final piece of good news. If the Government’s intentions are sincere, they will ensure that Labour Members who represent one constituency will not be actively involved in trying to win constituencies around their own. But of course we know that that will not happen; we know that in the competition of British politics, parties will attempt to gain seats from each other, because that is how politics in this country works. When the Secretary of State used in defence of the change the argument that it would make it more difficult to do that, he was ignoring one political reality above another. The argument on this entire matter has not been persuasively made, and I hope that, even at this late stage, the Government might think again.
I apologise to you, Madam Deputy Speaker, and to my right hon. Friend the Secretary of State for missing his opening remarks; it took me a little while to arrive in the Chamber once I saw that our business had started.
Devolution is still a confusing and divisive issue in Wales. Although the National Assembly for Wales has been in place for more than seven years, much work still needs to be done to convince people of its worth. My right hon. Friend the Member for Torfaen (Mr. Murphy) said on Second Reading on 24 January that when scrutinising any legislation before this House we must make full use of the Splott market test: how will that legislation affect the person shopping in Splott market on a Sunday? I apply the Blackwood high street test in much the same way. Seven years on, it is my belief that if we were to ask people their views on the Assembly’s electoral system, a great many of them would say, “confused.” They are confused by it. Why is it, they ask, that people who are soundly beaten in a straightforward first-past-the-post election can then guarantee themselves a place in the top-up on the party list system?
We have heard much wailing and gnashing of teeth from Opposition parties about winners and losers; looking around this Chamber, it is clear that we have a record of winning and they have a record of losing. For all the Opposition parties’ arguments, it is surely unfair that a person—such as the leader of the Tories or the Liberal Democrats in the Assembly—who has been rejected by the electorate in a constituency in the direct election can then gain a place at the top of the top-up list and find themselves in the National Assembly. Indeed, I understand that they can then call themselves alternative AMs for the constituency that they represent. That is a bizarre practice, which I am told has the support of the Presiding Officer.
The hon. Gentleman has a point, but although that is a bizarre practice it is a fault of the proportional representation system itself. Why does he not have the courage to come out and say that PR is a bad electoral system, instead of making subtle changes that will not prevent the situation he has described?
The hon. Gentleman and I might find ourselves in some agreement about PR, but that is perhaps a matter for another day.
People ask why it is that the party with the largest share of the vote in the top-up—the Labour party got 36.6 per cent. of the vote in the top-up at the last Assembly elections—is denied any seats as a result of that. My own view, for what it is worth, is that we should separate the first-past-the-post system from the top-up system so that the results truly reflect the wishes of the electorate.
It is a matter of some regret to me that the Bill does not do that. However, I accept that my Front-Bench colleagues have to gain the broadest possible consensus on a constitutional Bill of this nature, and although I believe that my proposals are right, they certainly would not produce a consensus—but then I have never been a consensus politician. The fundamental issue is how we can make this system more effective and more just. I believe that the amendment that my right hon. Friend the Secretary of State has tabled to overturn the Lords amendment is right, and it has my full support.
I am one of the people who the hon. Member for Montgomeryshire (Lembit Öpik) referred to earlier: I voted and campaigned against the Welsh Assembly and I make absolutely no apologies for doing so. [Interruption.] In response to more noises from Labour Back Benchers, let me say that—as with members of Plaid Cymru, who are sitting in a Parliament whose location is perhaps not of their choosing, and members of the Liberal Democrat party, who have fought many elections under a voting system that they do not necessarily agree with—it is right that Conservatives who had opposed the Welsh Assembly were more than happy to accept it as a reality on the ground and to work constructively to try to ensure that it delivered stability for Wales. Seven years down the line however, it comes as something of a surprise to all of us that, instead of looking at why the voting turnout is not what it should be, the Government have decided to push through a subtle, but very sneaky, change to the electoral system.
In a very worthy speech, the hon. Member for Islwyn (Mr. Touhig) decried the overall system of proportional representation and pointed out that it means that people who have not gained the confidence of the majority of an electorate in a given constituency can nevertheless sit as Members of this institution. The right hon. Member for Torfaen (Mr. Murphy) made a similar point, and I have to say that I have a great deal of sympathy with that view. I do not believe in the PR system. I happen to agree with him that a Member’s representing first and foremost the people who vote for him, rather than the political party that put him there, is indeed the jewel in the crown of our electoral system. But I then have to ask Labour Members why, if they believe that, they propose a subtle change to an electoral system that will allow the overall principle to continue, instead of having the political courage to come out and say, “We don’t believe in proportional representation. We are going to scrap it completely and have either one or two Members elected to each constituency in Wales.”
That would be an intellectually honest approach for Members who do not like the PR system to take. [Interruption.] I am quite happy to take interventions. But instead, those Members propose a change so subtle that very few people will understand it. This is where I begin to diverge from the right hon. Member for Torfaen, because the reality is that virtually nobody will complain that they wanted not this PR system, but another one. We are used to receiving hundreds of letters from our constituents about a variety of things—from the situation in the middle east to whether bears should be used in circuses—but I can honestly say that in my one year as a Member of this place, and in seven as a Member of the Welsh Assembly, I have not received a single letter suggesting that the current PR system is wrong and should be amended. Nobody has ever come up to me in the street and suggested that the system should be changed. I have heard many people, some from my own association, say, “Scrap PR altogether,” but I have never heard anyone suggest that this subtle change to the system will make any difference to voter turnout or anything else.
So one has to ask why the Government are going ahead with this proposal, and the answer is that, yes, they are going to derive a straightforward political advantage from doing so. They know perfectly well that the minority parties benefit from the PR top-up system, so it is those parties—the Liberal Democrats, Plaid Cymru and the Conservative party—that will be most disadvantaged by the change that the Government are pushing through, and which they know very few people will understand. I am afraid that some of the reasons that they have come up with for the change—I tried to make a note of some of them—are absolutely pathetic. I have heard it said that AMs do not like regional Assembly Members competing with them in their constituencies, but those who say that seem not to have grasped the simple fact that, even if this change is made, regional Assembly Members will still be able to open an office in, and put up a sign in, the constituencies of existing Labour AMs, and some will still do so. If Labour AMs are doing their job properly, they will have absolutely nothing to fear from regional AMs.
The regional AM for South Wales East—the leader of the Liberal Democrats in the Welsh Assembly, no less—has often tried to portray himself as the AM for Monmouth. That never bothered me in the slightest, and do you know why, Madam Deputy Speaker? Because everyone would scratch their heads on reading his leaflets and wonder who the hell this bloke was who was pretending to be the AM for Monmouth, when they all thought that it was me. Such behaviour reflected rather badly on those people. If directly elected AMs are doing their job properly, they have nothing to fear from regional AMs who would like to think that they represent a constituency.
We have heard it said that it is unfair that a directly elected AM should have to contest an election against somebody who has already been doing the job for a couple of years, and who has been pretending to be the AM for the area. What this amounts to is that the Labour party, which has enjoyed a political monopoly in Wales for decades, is just a little upset at the fact that it is losing the advantage of incumbency. Instead of fighting against candidates who do not have all the advantages of sitting AMs or MPs, they are fighting against those who, to some extent, have the same opportunities and the same access to offices and leaflets, and they do not like it. They do not like competition on an equal basis.
The Government are pushing through a change that they know will mean that regional AMs will be in direct competition with members of their own party who are standing for the constituency seat. That is why this change will undermine the minority parties. The Government know the game and they do not want us to explain it, but we all know that the reality is that a regional AM will suddenly find themselves in direct competition with a colleague from their own party who is standing for the constituency in question. That is why the Government are pushing through this change. They can smile and laugh, because they know that most people will be lost when the change is explained to them. They know that the man on the Pontypool omnibus—if there are such things any more; that is perhaps a debate for another time, but thanks to the cuts, many such services are disappearing—[Interruption.]
Thank you, Madam Deputy Speaker. I am not going to talk about the No. 73 omnibus that runs between Chepstow and Cwmbran, because that one is disappearing as well. But the fact is that nobody on any of the few omnibuses that are left in Wales is talking about the need to change the PR system in the way that this Government propose. Tonight, they want to use their majority to push through a profoundly undemocratic change to the electoral system. I urge those decent members of the Labour party to forget about their party Whips, for once, to think about what is good for democracy in Wales, to reject what their Government are trying to do, and to support the Lords amendments tonight.
It is always a pleasure to follow the hon. Member for Monmouth (David T.C. Davies), with whom I agreed on a couple of points. However, there is no party political advantage to this proposal. The Opposition parties have had opportunities on Second and Third Reading, on Report and in the Lords to come up with evidence that this proposal will lead to a party advantage for Labour, but they have failed to do so.
The hon. Gentleman sat through, and read the evidence sessions of, the Welsh Affairs Committee, and he will have heard the Electoral Commission say that, regardless of whether this change will lead to a measurable party advantage, the mere perception of a partisan advantage is enough to undermine faith and trust in the democratic process. We have heard a lot of talk this evening about trying to achieve cross-party consensus, but through this proposal the Government have set their face against consensus.
I hate to correct the hon. Gentleman on facts and detail, but I was not a member of the Welsh Affairs Committee and I did not participate in that evidence session. I did read the report of that session, but I did not agree with it. Reference was made to perceptions, but what we need to talk about is facts and how we are going to move the Bill forward.
If the hon. Gentleman wants to talk about facts, he has only to look at the vote that took place in the Assembly. The casting vote by the presiding officer, who had to vote in the way that he did, was the only reason why the motion was carried—it was all the Labour party AMs against the rest. What more evidence could there be of a partisan Labour position?
I am grateful to the hon. Lady for that intervention and I am very glad that my Labour colleagues in the Assembly agree with the Labour party in Wales. We stood on a very firm manifesto commitment. My Front-Bench colleagues will be very happy to know that I carry my copy of the manifesto with me and read it in great detail. This is a very serious issue, and on page 108 of the manifesto, there are three very clear statements about our intention to introduce the Government of Wales Bill.
We have had very unclear statements from the Opposition, so it is right that I read out those statements before giving way. The first says:
“In a third term we will legislate for a stronger Assembly with enhanced legislative powers.”
Some Opposition Members disagreed with that idea during our debates and that is fine, but that is what our manifesto states. The second statement is:
“We will improve the accountability of Ministers by ending the confusing corporate status of the Assembly”.
So it is very clear that that is what we are going to do, and we have the support of this House. These days, I am far more diplomatic than the Secretary of State on such issues. I understand that we have these debates, and I am not really worried about this legislation, but I am proud that we are standing by our manifesto commitments. One cannot get much clearer than the third statement:
“Alongside the changes we will prevent candidates from standing on both the list and in a constituency in order to make all candidates genuinely accountable to the electorate and to end Assembly Members being elected via the backdoor even when they have already been rejected by voters.”
That is a very clear commitment and I stand by it. When I discussed the Assembly on the doorsteps of Ynys Môn, that very issue did arise, and I intend to vote with the Government.
Does the hon. Gentleman therefore oppose the appointment to another place of candidates who obviously lost in the elections in Wales? Secondly, and perhaps even more importantly, is the hon. Gentleman really expecting us to believe that the Labour party voted for the proposed change, while all the other parties voted against, because it wanted to help all the other parties and thought of no particular benefit whatsoever for the Labour party?
Those two points do not relate to the clause. I think that the hon. Gentleman leads with his chin. I do not agree with the House of Lords per se. It is an unelected Chamber and I hope that I have the opportunity in this Parliament to vote for a democratic Chamber in the other place. That is where I stand on the House of Lords. As I have said, the hon. Gentleman leads with his chin because one of his colleagues is sitting in the Gallery, someone who has been rejected on several occasions by the electorate of north Wales. I do not think that that person or any others should be in the House of Lords. That is my answer to the hon. Gentleman.
Does my hon. Friend agree that if the Liberal Democrats did not have a host of rejected parliamentary candidates, they would not have anybody in the House of Lords?
I shall keep with the amendment that is before us. However, I agree with my hon. Friend.
Our manifesto stated clearly what we were going to do and I am proud that we have adhered to that. However, my right hon. Friend the Secretary of State is perhaps too diplomatic with regard to the status of the House of Lords. We know the position. We have had great debates on Second Reading and Third Reading, and we have carried the measure through with a huge majority. Now, the House of Lords—no one has elected its members—feels that it can overturn our decisions. This is a constitutional issue. I believe that the Salisbury convention should be adhered to and that Opposition Members should not support the other place. Instead, they should vote for democracy. They should vote in accordance with the Labour party manifesto, Labour being the largest party in this place. We are entitled to govern on our manifesto.
The right hon. Member for Torfaen (Mr. Murphy) did not on this occasion pray in aid the piece of research from Splott market. We had an exchange on that during previous proceedings. The right hon. Gentleman said that he had discussed the matter in a few pubs in his constituency. He was asked questions about time and so on, but we will not go into that now. Suffice it to say that, on any objective view, I do not believe that there is any evidence upon which the change can seriously be put to us. Opposition Members know that, despite the sterling efforts of the hon. Member for Caerphilly (Mr. David) and the fantastic ground-breaking piece of research that he commissioned—it was not persuasive, but ground-breaking nevertheless—we have not been presented with very much.
The right hon. Member for Torfaen said that he never did deals. For someone who has been in high office in the north of Ireland, that is difficult to understand. However, I am sure that, as always, he is telling the truth. However, a deal was struck for the proposal to go through between the anti-devolution Labour party and the pro-devolutionists. That is what it is all about. It is a piece of red meat to keep those who are against further devolution happy. That may or may not be relevant to the debate.
We had a sterling speech, if a little ex-cathedra, from the hon. Member for Islwyn (Mr. Touhig). It was interesting in that he showed that he does not want to see anybody else getting elected in Wales other than Labour candidates. I believe that that is his true position. At least he is honest enough to say it, and I respect that.
I will not go through the evidence again because time is short and there are other important issues that we must discuss. However, I will touch briefly on one or two matters now. When the Secretary of State opened the debate he said that the Queen must give Royal Assent to the Bill at some time between now and Tuesday. The right hon. Gentleman detailed why that must be so, and I am sure that everything he said was right. He said that over the coming weeks and months there will need to be several references to the Electoral Commission for discussions and, if necessary, to vary regulations. On two occasions during his opening speech he prayed in aid the Electoral Commission. Why then was the electoral commissioner, Glyn Mathias, roundly ignored when he said that he thought that the proposal would be a partisan move and that there was no evidence to support it? Glyn Mathias commented on the research that the commission had undertaken. He said:
“This issue did not figure in that research. We asked a whole series of questions and sought unprompted replies and this issue did not arise…what concerns us is that there is no evidence whatever in the White Paper to back up this proposal…therefore, we came to the conclusion that we think that the case for change has not been made.”
This is the same Electoral Commission that will be busy in the coming weeks and months when the Bill is enacted. In this instance it was roundly ignored on an important part of the Bill.
I am sure that the hon. Gentleman will recognise the booklet that is in my hand—the Arbuthnott report. It reached the same conclusion and found that there was no evidence to suggest that this was an issue for the public. In fact, Arbuthnott went further and suggested that dual candidacy was anti-democratic. Perhaps the difference between Arbuthnott and the Richard commission was that Arbuthnott was a cross-party document and was consensual, whereas the Richard commission was a Labour party inspiration which was there only to serve the Labour party.
I differ slightly from what the hon. Gentleman says about Lord Richard. I think that Lord Richard did a sterling piece of work and I would not level a charge of partisanship at him. However, I take the hon. Gentleman’s point. The Arbuthnott conclusions were quite different.
I will not refer to the various academics who have been referred to at length in previous discussions, including Dr. Richard Wyn Jones and readers from the Napier university. As far as is known, the only other system that embodies the system that we are talking about introducing in Wales was in pre-revolution Ukraine. If we want to adhere to standards such as that, all well and good, but I ask must ask again where one might find the evidence for this change in the law? I cannot see it. Other hon. Members have referred to the Electoral Reform Society. There is a welter of evidence against the proposed change. The only thing in favour of it is the rather scant piece of research commissioned by the hon. Member for Caerphilly. The Government have brought the proposal before the House and have found that the only evidence to support it was commissioned by a Back-Bench Member of Parliament halfway through the proceedings. That is not persuasive.
In the document before me, it says that
“the Electoral Commission is an independent body established by the UK Parliament in 2000 by the Political Parties, Elections and Referendums Act. We are independent of the UK Government and political parties, and are directly accountable to Parliament.”
This will go down as probably the most partisan change in the law in the last five years. Hon. Members may laugh because they are content with it; they know that it will assist them, so why should they not laugh about it? But others in different parties, others of no political affiliation and other academics throughout Britain and beyond have looked at this and come to the same conclusion. It is a partisan way of proceeding, and that is what we are arguing about. I do not say that it would necessarily benefit my party unduly, or indeed anybody else’s, but it will benefit the Labour party, and that is why I am concerned about it. It is all very well referring to the Salisbury convention, but this is a bad piece of law that we are debating. It is partisan. I shall not refer to the other quotations.
That has already been explained fully. [Interruption.] How many times do hon. Members want to hear it? We have heard it from both sides of the House. Suffice it to say that my belief is that it will benefit the Labour party. It is not me saying so, but Dr. Scully, Dr. Wyn Jones and Dr. Weinstrob. I could go on—Sir John Arbuthnot. There are plenty of people to whom we could refer. Those people are entirely without political connection, and they have reached that conclusion.
This matter will be put to a vote, I believe on a matter of principle. I do not want to see the rest of the Bill being delayed, but this is a bad clause and the Lords are right in their conclusion on this part of the Bill at least.
I was gently rebuked by my hon. Friend the Member for Ynys Môn (Albert Owen) for being too diplomatic in my introduction, but I reassure him that I have been severely provoked this evening by the Opposition’s contributions. The hon. Member for Chesham and Amersham (Mrs. Gillan) seems to question the Salisbury convention. She seems to pay no attention to that convention, under which, for generations, the unelected House of Lords defers to a manifesto commitment of the governing party in the elected House of Commons—a point ably made by my right hon. Friend the Member for Torfaen (Mr. Murphy). She seems to dismiss this. I do not know whether it is a new Conservative party policy—a party that had just 30 per cent. of the vote—that the House of Lords should be able to trample over all the manifesto commitments of the governing party, elected by the people to form the Government of this country. I disagree with her, because therein lies a recipe for constitutional confusion.
I would have been happy to do a deal with the hon. Lady, if she had shown the same support for the principle of devolution in the Bill as the Liberal Democrats, who in particular have the interests of Wales at heart, rather than the interests of narrow party concerns. I am surprised that she refers to us dumping manifesto commitments. The Leader of the Opposition almost daily dumps commitments from the election manifesto on which he and the hon. Lady were elected just over a year ago.
Mention has been made of Ukraine. The truth is that this issue has become controversial right across the globe, from Canada to New Zealand, not simply Ukraine. That evidence has been given at length in earlier debates in the House. I am asked for evidence. In the interests of brevity, I did not quote the evidence because it has all been quoted before, but I have a fistful of quotes and evidence, from Lord Carlile of Berriew, the former leader of the Welsh Liberal Democrats, speaking in the House of Lords on 15 June, and from Lord Richard, the chair of the Richard commission, in testimony to the Welsh Affairs Committee on 25 October. This is about Wales, but mention has been made of Scotland, so let us look at Scotland. The former Liberal Democrat Presiding Officer of the Scottish Assembly castigated the abuse of the system, saying that it had been thoroughly abused, and that was despite the code of conduct in Scotland, which we do not have in Wales. I could carry on providing all the evidence: there is the evidence of the chief of staff of the Scottish Liberal Democrats andof the leader of the Assembly Conservative group, on 14 June and again on 15 June. I could also quote some academic evidence.
I just want to carry on with this point. A fistful of evidence has been presented during the debates in both Houses, but particularly in this House. I do not want to detain the House by repeating it all, although I am happy to do so if provoked. I do not know whether the hon. Lady wants to provoke me.
I am certainly not trying to promote the Secretary of State, who is clearly struggling. [Hon. Members: “Promote?”] No, provoke. I certainly would not want to promote him, although I think that he would like to promote himself. The right hon. Gentleman made some obtuse remarks about what is happening in other countries. In Italy and Denmark, and in some regions of Germany, double candidacy is expressly required, and candidates have been permitted to run both in constituencies and in lists in Germany, New Zealand, Japan, Hungary and Russia, all of which have had mixed Member systems running since the 1990s. Therefore the throwaway line that the system is not used in other countries is not entirely accurate, and that is from the Electoral Commission’s report.
The hon. Lady obviously did not listen to what I was saying. I said that the issue had arisen and that great concern had been expressed right across the globe.
Then the hon. Lady asks where in Wales the concern has arisen. I will tell her. I, and my hon. Friend the Under-Secretary, and my right hon. and hon. Friends, have had meetings up and down the country. At those meetings there was more burning anger among the public on this issue than on anything else. There was strong feeling about the need to put the voters in charge. That is the fundamental democratic principle at stake here.
I will give way in a moment.
The voters should be in charge. If the voters kick somebody out in the constituency, why should that person pop up on the list and be elected? That is not the voters in charge; that is the party manipulating the system. In almost every case, those whom voters rejected in the constituencies in 1999 and 2003 popped up on the regional lists. That is why we are asserting the basic principle of parliamentary democracy that the voters are boss. If the voters reject somebody, they should not be elected by the back door. People do not understand how on earth that can happen and that is why we are correcting this widespread abuse. I say abuse, because it is not just a matter of principle, it is the fact that time and again we have seen regional list Members abusing the system by coming into constituencies claiming to be the elected Members for those constituencies when they are not. A Plaid Cymru Assembly Member has presented a dossier on how to manipulate the situation in the interests of her party, and that has been referred to at length in the House. I could go on and on, so I will allow the hon. Member for Monmouth (David T.C. Davies) to intervene to provoke me further.
Many of us here are astounded that at these many meetings that the Secretary of State attended there was so much anger about a proportional representation voting system, yet nobody mentioned the health service, the council tax or the lack of dentists. He said that there was more anger about this matter than anything else. Is he living on the same planet as the rest of us?
The hon. Gentleman is a vocal but junior Member of the House. I was talking about consultation on the devolution Bill, on what should go into it, on the policy that should fulfil our party commitments following the Richard commission’s report. At those meetings, people wanted to discuss the detail of what might transpire in a Bill to follow the recommendation of the Richard commission, which would command support across the House. That issue was one of the most strongly felt—indeed, there was bitter anger up and down Wales. Look at the situation in Clwyd, West, where the sitting Labour Member defeated all the other candidates, who all got elected nevertheless.
As my hon. Friend the Member for Ynys Môn has said, the Labour party will be equally hit by the provision, which will not benefit any party in particular. When we asked for evidence of how it could possibly benefit the Labour party, the hon. Member for Monmouth and others changed their tune and began to talk about perception. We want evidence: where is the evidence that the Labour party could benefit by putting the voters in charge?
I am grateful for the support of my hon. Friend the Member for Islwyn (Mr. Touhig), despite the fact that he has never pretended to be an enthusiast for more and more powers for the Assembly. He has worked with me honourably and with great influence in framing the Bill, for which I am grateful. I secretly sympathise with his advocacy of a first-past-the-post system, but if we were to introduce one in this Bill, we would hear even louder complaints of abuse.
If the Secretary of State and the Government are so concerned about giving voters a choice, will they consider creating open lists? That would allow the electorate to vote for an individual rather than a party that then appoints an individual. Without being party political, that would be a rational and reasonable step forward, although I accept that it is not included in the legislation that we are discussing today.
No; I do not agree with the hon. Gentleman and do not propose to introduce such a provision at this late stage, especially given the consultation across Wales.
In conclusion, the basic point of the Government’s position is that the voters should be in charge, not the parties, and that losers should not become winners. Why are the Opposition parties so scared of having to make a choice between standing in a constituency or standing on a regional list? The voters expect candidates to make that choice, and the integrity of the system will be increased by it, especially because at least six sitting Labour Members will be “penalised”—if that is the word—along with other party members. In my view, however, no one will be penalised; indeed, I think that the voters will win.
I welcome the point made by Lord Elis-Thomas, the Presiding Officer of the Assembly, who has said that the argument has been won—he has recognised the reality—and both former leaders of Plaid Cymru have made the same point. We need Royal Assent for the Bill before the end of the Session, and I hope that nobody will seek to frustrate that ambition and that the Government’s position will be carried tonight.
Question put, That this House disagrees with the Lords in the said amendment:—
Lords amendment disagreed to.
Legislative competence: supplementary
Lords amendment: No. 17.
I beg to move, That this House disagrees with the Lords in the said amendment.
The amendments would limit the effect of the powers to make retrospective provision in Orders in Council under clauses 94 and 150, or in an order under clause 149.
The power in clause 94 is necessary to correct legislative competence retrospectively when that would give proper effect to the intention of Parliament and the Assembly, when not to do so could leave the law in an unclear state, or when it could be detrimental to third parties if that was not done. If the provision is used, it is likely to be to correct a technical defect.
Clause 150(4) follows the model of sections 107 and 114 of the Scotland Act 1998. As Lord Evans of Temple Guiting pointed out on Third Reading in another place, it was necessary to make provision under those sections of the Scotland Act when it transpired that a provision of the Regulation of Care (Scotland) Act 2001 was considered to be beyond the legislative competence of the Scottish Parliament.
The Bill provides that any provision of a measure that is outside the legislative competence of the Assembly is not law. If another Act made provision referring to that measure, it might be necessary to amend that other Act as if it had never referred to the ultra vires provision of the Assembly measure. As the Scottish example shows, that will happen rarely, but the provision may well be needed.
The relevant provision in clause 149 relates purely to consequential amendments. For example, the Secretary of State might need to amend a corresponding reference in Northern Ireland legislation, which the Assembly could not do.
The Lords amendments intend to ensure that such provision can be made only if it is not to the detriment of those who have either benefited from or acted in reliance on the law before such an order was made. The Opposition case for that is based on an argument that the power could be used to reverse the effect of court decisions and infringe individuals’ rights. That concern is clearly important—no one in the House wants the rights of individuals to be arbitrarily abridged. However, I cannot envisage circumstances in which that would be allowed to happen. The safeguards that the Bill already includes would prevent it.
First, the Secretary of State would have to act consistently with the Human Rights Act 1998. Secondly, such provision cannot be made at the whim of the Executive. If any attempt were ever made to abuse such a provision and use it in a way that was detrimental to the rights of individuals, Parliament could block it. All Orders in Council under clauses 94 and 150 and orders under clause 149 that amend primary legislation will be subject to full parliamentary oversight.
The power to make retrospective provision exists primarily to allow technical points to be tackled. Let me make it clear that the Government would not make an order that retrospectively altered a court’s decision. If a future Government were to try to do that, Parliament would block it.
What the Under-Secretary said is not the same as the comments of Lord Evans of Temple Guiting in his letter to Lord Kingsland. The letter stated that he would not move goalposts by seeking to change retrospectively the law on which a case was based while it was before the court and without the leave of the court. That is not what the Under-Secretary said. He went much further a moment ago. He said that if a court decision were to go against the Assembly or the Government, there would be no question of changing it retrospectively. Those are two different things. It is important for hon. Members to understand which we mean.
Let me continue with my argument. Such a provision would never be used retrospectively to amend a court order, although it could be used, depending on the circumstances, to deal with the results flowing from a court’s decision. I hope that that deals with the hon. Gentleman’s point.
The Government do not envisage the power to make retrospective provision being exercised except in very rare cases. While I understand the thrust of the amendments, there are sound reasons why the Government cannot accept them. There could be public interest considerations in favour of making retrospective provision. It is not right that the Government should be prevented from taking the public interest into account in making legislation. Furthermore, the amendments are technically defective and would render the provisions that relate to retrospective provisions inoperable.
As a Minister, I always found that when civil servants said, “Minister, you have to do this because there is a public interest requirement,” it was usually because they could not think of anything else. Will the Under-Secretary give us a practical example of when the public interest was so important that it necessitated what appears to many of us to be an unacceptable change?
Yes, I can give an example. Let us imagine that both Houses of Parliament agreed a measure that related to a position following a public inquiry into the construction of a bypass. If, after compulsory purchase orders and payments had been made, a defect was found in the legislative competence, it would be in the public interest retrospectively to set the record straight in legal terms to allow the payments that had already been made to be retained, and no claims to be made against the individuals who had received the money from the compulsory purchase. That would enable the bypass to go ahead in the public interest, and not to the detriment of the individual who had received funds from the Government in exchange for the land. That is an example of the public good benefiting from retrospective legislation such as that for which clauses 94 and 150 provide.
It is impossible to identify with certainty all persons who could be in any way detrimentally affected as a consequence of such an order before it was made. It would therefore never be clear whether an order could lawfully be made, even if there were an overwhelming public interest in making it. I therefore invite hon. Members to reject the amendments.
I am grateful that the Under-Secretary acknowledged that the clause, which was amended in the other place, raises serious problems. It is not common practice for the House to pass measures that can apply retrospectively. Retrospective powers enable the Government to interfere with private rights in a way that is contrary to the principles of the rule of law in this country. For the Under-Secretary to claim that the provision is simply a balancing exercise under the Human Rights Act 1998 is an inadequate response.
The Human Rights Act might be a basic safety net to deal with certain Governments who do not have democratic practices or who have had them only for a short period and do not enjoy the principles of the rule of law, but it does not replace the rule of law. Private legal rights operate because the rule of law says that they do, and because the judges say that they do. Sometimes, we have had to face the fact that the people who benefit from those rights appear to be remarkably undeserving of them. We have, for example, had debates about lords of the manor who have enforced a form of blackmail in respect of rights of way over common land until a court judgment removed them. However, no one in their right mind ever suggested that that entitled Members of Parliament to remove those people’s rights retrospectively, thereby depriving them of a financial advantage.
The Government are contemplating a measure that is being introduced with a desire to rectify technical omissions—I fully accept that that is their intention—but that could have the unintended consequence of depriving someone of a private legal advantage, because it will be applied retrospectively. There is no suggestion in the proposals that any compensation would be made to a person who was thus adversely affected.
This matter was raised in the other place, and Lord Kingsland, who was speaking for the official Opposition, suggested that these clauses should be removed altogether. However, he was mindful of what the Government were trying to achieve. The amendments that were eventually passed therefore sought not to remove the retrospective power but to limit it by saying that such an order could be made, provided that it was
“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”.
As an issue of principle, the Minister cannot possibly contend that that is an unfair provision. He might, however, say that the proposal would have the consequence of making it impossible to pass such a retrospective order. I can see his point. If that is his problem, however, he is going to have to find a way of solving it, either by specifying that anyone adversely affected would be entitled to full compensation or by some other method. It is not good enough simply to say that there will be a balancing exercise and that the measure would be used only in cases where the public benefit appeared overwhelmingly to outweigh the private advantage.
Private law and people’s rights under the law are not about the balancing of public rights with private advantage. Private advantage has complete supremacy. The principle under which we operate in this country in maintaining the rule of law is that if we interfere with someone’s private rights, as specified in the Human Rights Act and the European convention on human rights, we must pay them compensation for doing so.
I am really troubled to read the Government’s approach to this matter. In the letter that Lord Evans of Temple Guiting wrote to my noble Friend Lord Kingsland, he said, with reference to the point at which the provision would kick in:
“The Secretary of State would have to consider any action carefully for its compatibility with human rights. He would not move the goalposts by seeking to change retrospectively the law on which a case was based while that case was before the court and without the leave of the court.”
That is why I picked up the Minister’s comment that the Government would not seek retrospectively to alter a court judgment. When I challenged the Minister on that, he started to back off a little. He left me with the distinct impression that the Government might choose to act retrospectively, before a case came to court, to prevent a person from exercising his legal rights and to challenge an order that had been made. He also left me with the distinct impression that there might be circumstances in which, notwithstanding a court judgment, the Government would still seek to apply the provision retrospectively.
Did not my hon. Friend hear the explanation that the Minister gave as an example of when it would be suitable to use this power? When he gave that example, he showed that the Government would be judge and jury in their own case. It would be for the Government to decide whether the use of the power would interfere with a person’s private rights, and they would make that decision on the basis of their own convenience. The Minister tried to dignify the measure by talking about public value, but what he meant was the convenience of the Executive.
My right hon. Friend is exactly right. This is what troubles me so much about the measure. Lord Evans of Temple Guiting’s officials had clearly advised him very carefully when he wrote that letter. He expressed himself in terms so precise that, when Lord Kingsland looked at it, he said that he was wholly dissatisfied with the answer. The Minister has gone slightly further, but my right hon. Friend is correct. What the Minister is actually saying is that the Government will decide, when balancing the considerations involved, whether a private right would be interfered with. That must raise the possibility that, as long as the Government did not think that the private right interfered with was too serious a matter—so it might slip outside the ambit of the European convention on human rights—they would still feel justified in going ahead and applying the provision retrospectively. I am very happy with the ECHR, but it is simply a safety net in this context. Our practice in this country is not to allow such things to happen. Indeed, it would be quite contrary to every legal principle to let this occur.
I am fairly unsympathetic to the principle behind all this. I have to be honest about that. I believe that government by statutory instrument is riddled with problems such as these, and an Order in Council is no different from a statutory instrument; it just involves different wording. The reality is that Wales is going to be governed by Order in Council—a practice that I regard as absolutely abominable and an offence to every principle that we have in the House.
If the Government go ahead with this measure, I foresee that they might need to address certain problems. May I suggest to the Secretary of State and the Minister, both of whom are in the Chamber, that if they want to get this provision on the statute book but do not like the form of words that the Lords have come up with, they should make a clarifying statement to make it absolutely clear that if it is established that private legal rights are affected retrospectively in any way, the person affected will be entitled to redress. Without that assurance, I will remain profoundly unhappy about this proposal.
This is a classic example of administrative convenience triumphing over private rights, all dressed up, in good new Labour style, in the assertion that it is for the public benefit. I do not accept that. What is more, the Government know that they are on pretty shaky ground here. I urge the Minister to go away and think again.
In the other place, the Liberal Democrats appeared to support us on this issue, and I hope that that will remain the case. It was unclear, however, when the vote was called, whether they were really going to provide proper support in that important Division. Some of them said they would support us but did not. I have no idea why that happened. I hope that it is not part of the Lib-Lab pact on this issue, by which the Liberal Democrats have demeaned themselves in the course of the discussions on this important constitutional measure.
We will certainly resist the motion to disagree with the Lords amendment, although I have no doubt that the Government will carry the day. If the Secretary of State and the Minister do not like the form of words that the Lords have used, they should go back and provide proper reassurance when the Bill returns to the other place that the provision will not be left in the form to which they now wish to return it.
I am interested to hear talk of a Lib-Lab pact. I presume that the hon. Member for Beaconsfield (Mr. Grieve) is referring to two parties working together in the common interest, just as the Conservatives and the Labour party did when they voted together to take us to war in Iraq. What is going on here, however, is a genuine commitment to furthering democracy and devolution in Wales. I almost said Northern Ireland then, because I saw the Secretary of State leaving the Chamber, no doubt to deal with other important matters.
Our concern is, to an extent, the same as that described by the hon. Member for Beaconsfield, namely, that retrospective legislation is open to attack on the basis that it can be abused. Something achieved by an individual or an organisation acting in good faith, on the assumption that the law is there to protect them, can be modified by the institutions of Government to favour themselves. That point was made by Lord Thomas of Gresford in the upper House. He said:
“A person may engage in litigation and say, ‘I’ve won.’ Then the Assembly may pass a measure that says, ‘No, you haven’t, you’ve lost”, because they have retrospectively changed the provision on which his claim rested.”
That has been my concern, too, and it may be why the hon. Member for Beaconsfield could see an uneasiness among Liberal Democrat peers during that debate.
No doubt the hon. Gentleman will also have read the further debate in the upper House on this matter and the dialogue between Lord Thomas of Gresford and Lord Evans of Temple Guiting, in which Lord Thomas challenged the Government to clarify two things. I hope that the Minister, by way of intervention or in his concluding comments, will respond explicitly to these points. Lord Thomas’s concern was that it had to be underlined that the power would be used only to correct situations in which a measure had been made that was ultra vires through no fault of people acting in good faith and, presumably, within the law. I note that Lord Evans responded that that was correct.
I would like the Minister explicitly and for the record—we know that the record can be used in a court of law—to underline that that is his understanding of the Government’s intention, and that it would be utterly unacceptable for the legislation to be used for any self-seeking purposes by an Administration—not Labour, Conservative or Liberal Democrat, but any Administration in the Welsh Assembly.
The second specific concern expressed by Lord Thomas of Gresford related to the question whether the Assembly could use the legislation to remove from a litigant a victory achieved in litigation. Once again, Lord Evans of Temple Guiting underlined the point that it would not be acceptable under any circumstances for the Welsh Assembly Government to reverse successful actions by litigants by using the Bill as a blocking mechanism to change legislation retrospectively. I seek the Minister’s assurance—once again, for the sake of the record—that that is explicitly the Bill’s intention.
I recognise that however hard we try to close these loopholes, there is a danger of abuse of any legislation. Despite the assurances given to Lord Thomas of Gresford on those two points in the upper House, and in anticipation of the Minister underlining them today, I acknowledge that we are still vulnerable to the abuse of power by individuals in government or whole Governments, should they be so minded. We are talking about a limited insurance policy here, but it is probably the most that we can ever expect when we are discussing legislation.
The hon. Member for Beaconsfield usefully requested that the Minister put on the record some form of words to encapsulate the assurances that we seek. I suggest that one of the best forms of words is offered by Lord Kingsland, who tabled an amendment debated in great detail in another place. It would have inserted the words:
“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”.—[Official Report, House of Lords, 13 July 2006; Vol. 684, c. 840.]
It strikes me that a small modification to that amendment, expressed by the Minister, could be helpful without in any way being detrimental to what the Government are seeking to do.
It would be helpful if the Minister confirmed that the Government want to modify the legislation as they have set out, but also explicitly to require such an order not to be to the detriment of those who have benefited from, or acted in reliance upon, the state of the law before the retrospective order was made. That would be a very helpful clarification. I can see no contradiction between the Bill as it has been put forward by the Government and the intentions as they have been reasonably expressed by the hon. Member for Beaconsfield.
May I point out—the hon. Gentleman may already be aware of this—that that is exactly what the amendments passed in the House of Lords say? They do not seek to knock out the power to make the retrospective legislation; they seek to insert that very form of words. The Minister says that that presents difficulties. The hon. Member for Montgomeryshire (Lembit Öpik) may agree with me that in those circumstances the solution is for the Minister to find a form of words that meets the spirit of what has been said, but does not have those difficulties attached to it.
I said a few moments ago that I was reading the amendment tabled by Lord Kingsland, so the hon. Gentleman and I violently agree that that is the source of my recommendation.
Although I see the force of the hon. Gentleman’s argument about the amendment, I have, on reflection, accepted the Government’s point that this retrospective latitude is probably, in limited circumstances, desirable and that it could be compromised were the Lord Kingsland amendment included in the Bill. However, I believe that its wording, as a statement of clarification, would be both helpful and consistent with the intent of the amendment. It would not in any way detract from the applicability of the retrospective facility in those areas where it could legitimately be used.
I ask the Minister those three questions—including the two from Lord Thomas’s inquiry in another place, which I have recited—and ask whether he is willing to reiterate the words in Lord Kingsland’s amendment by way of clarification and reassurance on this reasonable and very specific point, to protect the interests of those who might otherwise be concerned that they would be harmed unfairly by the application of this retrospective facility.
The whole House should be grateful to the hon. Member for Montgomeryshire (Lembit Öpik) for explaining to the world the Liberal Democrat approach to a complicated matter. It is to discuss it in as many ways as possible and to give no hint whatsoever as to how one should proceed thereafter.
There is a real problem in debating whether to disagree with the Lords amendment in that we are debating a virtual Bill. Many of us, although perhaps not all Members on the opposition side of the House, believe that an extension of the powers of the Welsh Assembly is a good thing, but we would wish it to be presented to the people of Wales so that they could make up their minds. All this is a mechanism for trying to avoid asking the people of Wales whether they want what is in the Bill, in case they say that they do not want it. We get to this point and that becomes even clearer, because the Government have now discovered that directing the affairs of a nation by Orders in Council has a number of disadvantages, and there may be occasions when overlapping jurisdictions and particular facts mean that a bit of tidying up is necessary.
I am always worried when Governments present their proposals as modest. I am always worried when they seek to suggest that there really is not very much in the measure—it is a matter of convenience that may be for the national good and those of us who are concerned about the principle of retrospection really should not worry about it.
There seem to me to be three reasons why we should worry very much. First, there is the Government’s historic attitude towards retrospection. In two successive Finance Bills, they have introduced retrospection while pretending that it was not retrospection. That leads me to be suspicious when the word “retrospection” comes from this Government’s mouth. Secondly, when the Government explained what they meant by the occasions on which they might use the provision, they produced an argument that seemed to nullify their own case. Let me turn to what the Minister said about the road that might have been built and the compensation that might have been paid. It seems to me that the Minister would decide not according to what was in the public interest, but according to what was convenient for the Government. It would be very inconvenient for the Government to have to go through the whole process again, but it might be very good for them because it might stop them getting into that kind of mess again. That is what legislation is about—setting the rules. If one breaks the rules, one should not have a nice little back-door mechanism of letting off the Government. The Government should have to fight their end, like anyone else, and in the course of doing so find that there were matters that were detrimental to private interest, and issues that ought to be taken up. All that would be hidden by this nice little trick, which is used by Government to make their life easier.
Thirdly, if the words of my noble Friend Lord Kingsland are not accepted, that means that the Government will not stand by the content of that amendment. The Government are therefore saying that they might use retrospection when it overpassed the private rights of an individual, as defined in the Kingsland amendment. The Government must deal with that problem. On the one hand, the Government say that they would use such powers only on occasions when that would not affect individuals who would otherwise have been in a different position had the law as they thought it was continued. On the other, they are not prepared to include that provision in the Bill, as that is what refusing to accept the amendment means.
With cunning ingenuity, the Liberal Democrat spokesman has discovered a way through. If the Government say that they believe that the amendment is right, he says that he will be happy. Well, if the Government can say that the amendment is right while at the same time advising the House to vote against it, that seems a peculiar position. I would not advise the Minister to take that line. Only a Liberal Democrat could get himself into that position. Only the party that on one doorstep tells people that it believes in one thing, and on the next doorstep that—
I stand corrected.
I return to the nature of the amendment and repeat that on this occasion the Liberal Democrat advice is that the Government should ask the House to vote against something that the Government say they believe in. That is a remarkable achievement and ought to be emphasised.
I recognise the intellectual genius of the right hon. Gentleman. He and I usually agree in the Chamber. Did he not hear my point about the difference of opinion between us? I suggested that I was persuaded that the amendment, were it adopted, would make the legislation difficult to apply. Therefore, while I am enjoying his contribution—and were we on “Just a Minute” I would give him a point—does he accept that it is a judgment about what works as legislation that causes me to make this suggestion to the Minister? I have no difference of view with the right hon. Gentleman in the intent of his speech and the concerns of the hon. Member for Beaconsfield.
I am still bemused because the hon. Gentleman is now saying that were the amendment carried, the clause would be difficult to use. He therefore wants the Minister to say on the record that he accepts the amendment, so that, in his language, it could be used in court, but he does not want the Minister to include it in the Bill. If including it in the Bill would make the legislation difficult to use, how would such a statement by the Minister make it any easier to use—or have I missed his point?
Yes, the right hon. Gentleman has missed it. There is no point in pursuing a dialogue with him any further, as it is for the Minister to explain. In my judgment, however, while Kingsland’s amendment was a good descriptor of the intent of the legislation, it was not a well-phrased amendment.
I would therefore advise the hon. Gentleman to suggest something different. I suggest that he says to the Minister that he will vote against the Government upholding the amendment unless the Minister comes forward with a promise that he will find another form of words that enables the sense of my noble Friend Lord Kingsland’s proposition to be maintained, but without the disadvantages that he asserts are there, about which the hon. Gentleman happens to agree. That would be a convenient way forward.
I have one further comment to make. I do not believe that we should have any possibility of retrospective legislation. Certainly, retrospective legislation by Order in Council and Government fiat is never acceptable, even if it might be convenient. I wish the Government to consider the history of this House and our constitutional arrangements, and I point out that the strength of our defence against retrospective legislation distinguishes us from other countries. For that precise reason, we can say that the rule of law is more firmly rooted here than anywhere else.
The Minister may think that this is a small matter, but it is in fact a most important principle. It would help him and us if he were to promise to produce a better form of Lord Kingsland’s proposal so that this issue does not hold up the Bill. I am sorry that the Government produced the Bill and that they did not offer the choices publicly to the people of Wales. Instead, he and others have had furtive back-of-the-room discussions. He promised to do it in that way, however, and I would prefer to have the Bill in those circumstances than not to have it at all. In my view, however, he cannot have the Bill if he wants retrospectivity without protections, as he does at this moment.
I note that the right hon. Member for Suffolk, Coastal (Mr. Gummer) is fundamentally opposed to any retrospection in legislation. He also said, however, that the use of Orders in Council was a back-door method, a trick and so on. Let us consider how the process would work in principle.
Were a measure identified as defective, or being used in a way that was ultra vires, the Assembly would have to propose an order that would come to this place for pre-legislative scrutiny. Once the measure had been scrutinised—I am sure that at that stage any individuals who might be affected by it would make their views known—it would have to return to the Assembly with any suggested amendments. The Assembly would have to abide by the European convention on human rights; it could then send the House of Commons a draft measure which would be debated in both Houses.
Given all those checks and balances, I can assure the right hon. Gentleman that the proposal is intended only to correct any technical defects and deal with any issues that are ultra vires. I can also assure him, as did my noble Friend Lord Evans, that the Orders in Council and the ultimate Assembly measure could not overturn a court decision. I hope he appreciates that.
What concerns everyone—I understand the concern—is the possibility that, in principle, an individual’s rights could be affected. Let us consider what has happened in Scotland. Since 1998 this provision has been used once to deal with an ultra vires issue, a technical defect in legislation passed in the Scottish Parliament. That is why we want the clauses to remain as they are.
I hope I have been able to reassure the hon. Member for Montgomeryshire (Lembit Öpik) that the proposal is intended to deal with technical defects and issues that may turn out to be ultra vires, that there is no intention of using the procedure to overturn any court decision, and that the rights of the individual will be protected.
I am grateful for the Minister’s reassurance. To save a bit of time, I ask him to confirm that as far as the Government are concerned, the measure must never be used
“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”.
I cannot use those terms, because it is not possible to use them. I can only tell the hon. Gentleman that the rights of the individual, about which everyone is concerned, will be protected by the very process of the Orders in Council. People are rightly concerned, but as I have said, the provision has been used only once in Scotland since 1998, and it is intended to deal with technical defects.
I think that we have got hung up on the example given by Lord Kingsland. I do not know whether it is such a good example. I have responded to what he said about a bypass and compulsory purchase. There is no way in which an individual’s rights would be overturned, and a demand be made that he pay back the money. The Government and the Assembly will certainly take the individual’s rights into account, although there may well be rare occasions on which action must be taken for the sake of the wider public good.
I suffered the most appalling attack from the right hon. Member for Suffolk, Coastal (Mr. Gummer), an accidental defence of the Government. I sought no greater reward than a simple clarification using the words of Lord Kingsland. I hope that the Minister will not make me regret my experience of the slings and arrows from the Conservative Benches. I ask him what is so difficult about agreeing to what appears to be a common-sense form of words—the amendment proposed by Lord Kingsland—to reassure us all that the legislation will never be used
“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”.
That is not a difficult question.
Lords amendment disagreed to.
Lords amendments Nos. 21 and 22 disagreed to.
Proposal for referendum by Assembly
Lords amendment: No. 18.
I beg to move, That this House disagrees with the Lords in the said amendment.
This amendment removes the Secretary of State’s discretion over how and when to lay a draft referendum Order in Council before Parliament if the Assembly passed such a request on a two-thirds vote. The purpose of clause 103 is to ensure that the Secretary of State responds to a request from the Assembly within a proper time scale. It is right that such a request cannot simply be sat upon.
The effect of this amendment, however, would be to compel the Secretary of State to lay a draft order before Parliament within 120 days. I recognise the concern that the Secretary of State—perhaps one less charitable towards devolution than I—should not be able to obstruct the will of the democratically elected Assembly and that for the Liberal Democrats, that is a particular point of principle. I understand that fully. The commitment of the Liberal Democrats to devolution and to primary powers for Wales is long established, and I fully understand the concern that a move to primary powers should not be frustrated by a hostile Secretary of State. I would not support that myself, but of course I am sympathetic to primary powers and always have been. However, if any Government were bent on frustrating the will of the Assembly, this amendment would not be enough to stop them.
A hostile UK Government could always resort to primary legislation. After all, Parliament is sovereign. The real safeguard—I know that the hon. Member for Montgomeryshire (Lembit Öpik) has real concerns about this point—is political. Any governing party in London that sought, arbitrarily or on some point of dogma, to block a decision by two thirds of Assembly Members in Cardiff would pay a heavy political penalty. They would be run out of town, just as the Conservatives were in 1997 for similar behaviour.
I respect the intentions of the Liberal Democrats and others who proposed the change, but I do not believe that this amendment will achieve the desired outcome as effectively as the Bill as it currently stands does. If a Secretary of State were wilfully to attempt to thwart the clear will of the elected representatives of the people of Wales, after a referendum request had been given full and detailed consideration by the Assembly, and approved by at least two thirds of Assembly Members, the consequences would be grave, both politically and constitutionally. There would be a real crisis and the Secretary of State would clearly be in the wrong.
The Government’s objection to this amendment is not because we wish to aggrandise the role of the Secretary of State. Nor do we wish to put in place some kind of mechanism for thwarting a two-thirds majority of the National Assembly. Indeed, I do not see a real difference of principle between the concerns expressed in the House of Lords and by the hon. Gentleman and other Liberal Democrats, and the Government’s position. It is a question of how to achieve the same end, and we do not think that the amendment is constitutionally appropriate. I shall explain why.
If an order is to be laid before Parliament, that is properly a matter for a Minister of the Crown. It would not be constitutionally appropriate for the Assembly to be able to force the Secretary of State to lay a draft order before Parliament, regardless of whether the Secretary of State was even ready to do so. The Secretary of State, as a member of Her Majesty’s Government, cannot be accountable both to Parliament and to the Assembly. The Secretary of State—for that matter, any Minister of the Crown—is accountable to this House and to Parliament. He cannot at the same time be accountable to an Assembly. That is the clear issue at stake. However, the intention of this provision is not to create a new roadblock. As I have said, the Secretary of State would be likely to face irresistible pressure to lay the Order in Council. Nonetheless, the Government believe that it is important to maintain proper lines of constitutional accountability.
There are also genuine practical reasons why the Secretary of State should not be constrained to lay a draft order within 120 days. He or she would still have to comply with the requirements of clause 102 before doing so, including the preparation of the draft order itself and a statutory consultation—a point made very persuasively by my right hon. Friend the Member for Torfaen (Mr. Murphy). The draft order would have to be laid before the Assembly before it was laid before Parliament. The amendment would leave no scope whatsoever to alter that time scale, should it not prove possible to complete all those steps within 120 days. The amendment does not take account of those practical considerations, of the requirements of clause 102 or of the obvious point about parliamentary sovereignty and accountability. I repeat that the Secretary of State is accountable to Parliament, not to the Assembly, although I would certainly want to act in keeping with the wishes of a two-thirds majority of the Assembly.
I have listened to the Secretary of State’s comments with great interest and I acknowledge that he is genuinely attempting to acknowledge the concerns as highlighted by my Liberal Democrat colleagues in the other place and others. To an extent, his remarks have been reassuring and helpful. However, he has not answered the underlying question. Why not give the full authority to call and plan a referendum to the Welsh Assembly? Why does the Secretary of State need to have any role in that procedure? I understand that this Secretary of State thinks that that is necessary, but I would be interested to know his rationale.
I am grateful to the hon. Gentleman for his intervention and I appreciate the open-minded and constructive way in which he has sought a resolution to this and other outstanding points in a way that will allow the Bill to receive Royal Assent by the end of next Tuesday. If primary powers were to be granted, it would be by decision of this Parliament. The Assembly cannot grab the initiative. It is for Parliament to decide whether it is right for the Assembly to have primary powers. I hope that all parties will help the Bill to receive Royal Assent through their response in the House of Lords next Monday and that they accept the principle that Parliament cannot accept the decision on calling a referendum to trigger the primary powers—a fundamental step—being taken by anyone other than this House and the House of Lords.
I am trying to be as helpful as I can be to the hon. Gentleman, because he has sought to improve the Bill, not to block it or wreck it, in great distinction from the behaviour of the Conservative party throughout its progress.
Frankly, it would be an act of utter folly for anyone in the Secretary of State’s position to attempt to obstruct the will of the people of Wales. Welsh voters simply would not tolerate it. Even a sceptical Secretary of State—we had plenty of those before 1997—would find it impossible to ignore such a request from the Assembly. The Government of the day would have to give the request the most sympathetic and serious consideration and ultimately, in my view, support. But it cannot be a rubber-stamp decision, for the constitutional reasons that I have explained.
I am following my right hon. Friend’s argument. Will he confirm that, under our constitutional arrangements, the Assembly cannot require this House to pass legislation? The Assembly may request that, but, at the end of the day, this Parliament of the United Kingdom holds the ultimate responsibility for law making in this land and only this Parliament can grant full powers to the Assembly.
That is absolutely the case. I agree with my hon. Friend. I could not have put that better myself. That is the point that I have been seeking to make.
I want to make a secondary point. Let us also remember that it will still be for the Secretary of State to consult on the draft order before the Assembly can vote on it. That is the sequence in which things happen. After an Assembly request, a draft order would be drawn up, and then the Assembly would consider the draft order and vote on it. It could be highly significant if it turns out that the Assembly itself is not happy with the content of the order. It will have started the clock ticking under the amendment—120 days—and be unable to stop it, even if there was a process of interaction between the Assembly and Westminster on the detail of the order. The way in which we have framed things at least offers a sensible consultation process that could prove crucial in the final forming of the referendum, its wording and the process of the vote.
The Secretary of State is right to say that, throughout, the Liberal Democrats have sought to improve the Bill rather than to block it, and it is in that context that we have had the dialogue. In the context of what he is saying now, will he accept and register the fact that we still feel unease because we cannot be guaranteed that any future Secretary of States for Wales will necessarily be sympathetic to the referendum? How can he feel confident that the arrangement that he has constructively laid out will nevertheless not offer an opportunity for, for example, an anti-devolutionary Conservative Secretary of State for Wales to prevent the referendum from taking place, given that he is not giving us a time-limited period by which the Secretary of State must necessarily have laid the referendum before the House?
The resolution of that problem does not lie in the Lords amendment, because even if the Lords amendment were carried, the Assembly could not compel Parliament to do anything. In the event of, as the hon. Gentleman puts it, an anti-devolution Conservative Secretary of State—I suppose that there might be one of those creatures around in the future—wanting to do that, there would be an almighty constitutional bust-up. It would not be in Westminster’s interests, and I do not even think that it would be in the interests of an anti-devolution Conservative Secretary of State, to behave in that way. It would cause a real conflict. If a Conservative Government were determined not to grant primary powers despite the Bill, and not to call a referendum, that would be a political battle that had to be had. That relates to the point made by my right hon. Friend the Member for Torfaen. Despite the clear route map that the Bill lays out towards primary powers via a referendum—when it gets Royal Assent, that will be on the statute book—if a hostile Conservative Government, who were never going to give Wales or the Welsh Assembly what they wanted in those circumstances, were determined to stop that, Parliament would be sovereign. However, that would create not just the constitutional crisis that I described, but a political crisis for the Conservative party that would be extremely damaging to its future prospects in Wales.
I grateful to the Secretary of State for giving way, because he is having his love-in and his little backroom deal with those on the Liberal Democrat Front Bench—[Interruption.] I am certainly not jealous; I do not want to be catching the Secretary of State’s germs by getting that close to him— [Hon. Members: “Oh!”] Well, I feel sorry for him. He is not feeling well, you know. Notwithstanding all those silver-tongued words and the ridiculous picture that is being painted of an anti-devolution Conservative Secretary of State for Wales—I am glad that he acknowledges that there is going to be a Conservative Secretary of State for Wales—the issue with the amendment is all about his having proconsular powers so that he can control the timing of any referendum that is given to the people of Wales. Is that not the fact of the matter? If we do not allow the Lords amendment to go through, it means that he can act as the lord and master of Wales, calling the referendum whenever he wishes. That is the truth of the matter, because, of course, he and the First Minister and the Welsh Labour party are not in the business of calling a referendum that they may lose.
I find that the most extraordinary of the contributions that the hon. Lady has made during the debate. She is somehow setting herself up as the defender of the Assembly against a reactionary Secretary of State—if we were talking about a Conservative Secretary of State for Wales, we would have a reactionary Secretary of State by definition. To set herself up somehow as a champion of the Assembly against the rights and necessities of parliamentary sovereignty defies reason. I will not even attempt to respond any more, because she is smiling away—she does not really believe what she said, any more than anybody else does. The way that she has behaved, which I regret, right the way through the course of the Bill is to seek to frustrate it at every point and to seek to oppose the greater devolution of power to the Welsh Assembly. I am proud of what the Bill does in relation to the greater devolution of power. I am also proud that it offers the prospect of primary powers for the Welsh Assembly if a referendum triggers them. If a referendum does that, there will be primary powers.
The Secretary of State has made the constitutional points extremely well and I agree with him. But does he agree that there is a political element to this matter, too? Any decision to go ahead with the referendum to seek primary powers for the Assembly would have to be the result of political consensus between the Government, Parliament, and the Welsh Assembly Government. That is important, as is any vote in the Assembly. The Assembly on its own does not reflect completely the views of the people of Wales, because we have a role in that as well as Members of the House of Commons. The political reality would be that there would have to be an agreement and a consensus between Parliament, Government and the Assembly.
Again, I could not agree with my right hon. Friend more. He is absolutely spot on. The proposal in the Bill—but certainly not the amendment—would require active partnership between the Assembly Government and the United Kingdom Government. In a sense, it requires that—rather than an Assembly elected at a different stage in the electoral cycle ending up, as it were, being able to instruct this Parliament, which is elected at another stage in the electoral cycle.
I think that we are seeing much fuss about nothing. Given the clear assurances that I have given to the hon. Member for Montgomeryshire, I hope that the House will not divide on this matter and will accept the principles of the Bill and see it as a tremendous advance for Wales that will settle the whole issue for generations to come. Then, instead of constitutional matters, we can get on with debating better housing, better jobs, better health services, better education and all the other things that concern the people of Wales in their daily lives.
If there is a commitment to devolution, it is necessary to ask why the Secretary of State would want to exert a power of refusal that would put him on a collision course with the Assembly of the day about the very powers that his Government have brought forward. The Government’s spokesman in the Lords, Lord Davies of Oldham, said that this was not an issue of seeking to aggrandise the Secretary of State, but that is the effect of the power and everyone in the House knows it.
The power allows the Secretary of State both to delay and to obstruct the Assembly’s wishes and process and to remove or delay the ability of both Houses of Parliament to have a say in the matter. After two thirds of the democratically elected Assembly had voted in favour of holding a referendum on part 4 powers, why would the Secretary of State wish to act as a road block to such a provision receiving consideration in the House?
The whole process is fairly tortuous, but as I understand it, if the requisite two thirds of Assembly Members voted to pass a resolution in favour of a referendum, the First Minister would have to give notice of the resolution to the Secretary of State. Within 120 days of that, the Secretary of State must
“lay a draft of a statutory instrument containing an Order in Council…before each House of Parliament”.
If the order was passed, a referendum would be held to decide whether the part 4 provisions would come into force. However, if the Lords amendment is not allowed to stand, the Secretary of State will be able unilaterally to give notice in writing to the First Minister that he refuses to lay an order and merely give his reasons. The order simply would not have to be laid and the Secretary of State could block the process from reaching Parliament.
During the debate in another place, Lord Kingsland—[Interruption.] Hon. Members should listen to this. Lord Kingsland said:
“The real shift in power is from this Parliament to the Executive and the Secretary of State.”— [Official Report, House of Lords, 28 June 2006; Vol. 683, c. 1237.]
And a shift of power it is. The provision places the Secretary of State in a proconsular position over Wales—as the lord and master. It interposes a single member of the Executive between the Assembly’s decision and the order resulting from that decision reaching Parliament for a vote. The process certainly does not square with the Government’s response to the House of Lords Select Committee on the constitution, in which they said:
“The Government agrees that this is a matter for Parliament to decide”,
because the Secretary of State is placing himself in the dominant position.
The Bill has been characterised by the ingenuity that has enabled the Secretary of State to say one thing in Cardiff and another in Westminster. The provision, like the part 3 powers, gives the Secretary of State the opportunity to say pompously in Cardiff that he is proudly enshrining in legislation for the very first time the possibility of full law-making powers, while saying here that he has put a provision in the Bill to stop a referendum from being held if that does not suit him, or if he does not like the timing. In other words, he is saying here that he will not let the Assembly dictate to him.
Rhodri Morgan—the First Minister—the Secretary of State and Welsh Labour are not in the business of calling a referendum that they are going to lose, so the Secretary of State has taken a power that will allow him to block that. The Conservative party has made the decision to support a Welsh Assembly that works for the people of Wales. We will do that in a straightforward manner, not with weasel-like—
It being three hours after the commencement of proceedings, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [this day].
Question put, That this House disagrees with the Lords in the said amendment:—
Lords amendment disagreed to.
Mr. Deputy Speaker then proceeded to put the remaining Questions required to be put at that hour.
Lords amendment No. 4 disagreed to.
Government amendment (a) in lieu thereof agreed to.
Lords amendment No. 5 disagreed to.
Government amendments (a) to (d) in lieu thereof agreed to.
Lords amendments Nos. 6 to 9 disagreed to.
Lords amendments Nos. 19 and 20 disagreed to.
Government amendment (a) in lieu of Lords amendments Nos. 6 to 9, 19 and 20 agreed to.
Remaining Lords amendments agreed to.
Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to certain of their amendments to the Bill: Nick Ainger, Mrs. Cheryl Gillan, Huw Irranca-Davies, Lembit Öpik and Chris Ruane; Nick Ainger to be the Chairman of the Committee; Three to be the quorum of the Committee.—[Huw Irranca-Davies.]
To withdraw immediately.
Reasons for disagreeing to certain Lords amendments reported, and agreed to; to be communicated to the Lords.