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Government of Wales Bill

Volume 684: debated on Thursday 13 July 2006

Read a third time.

Clause 37 [Power to call]:

Page 22, line 34, at end insert-

“( ) Subsection (3) does not apply to any matter under section 85(1).”

The noble Lord said: My Lords, I would like, in the context of the amendment, to thank the noble Lord, Lord Davies of Oldham, very much indeed for writing to me about what he considers to be the true interpretation of Clauses 37 and 84. The noble Lord will be relieved to know that I do not intend to take this matter any further. The noble Lord, Lord Davies of Oldham, is now on record, as a result of writing that letter, as stating, unequivocally, that the joint effect of Clauses 37 and 84 is that there will be no circumstances in which any Welsh Minister can assert that he is not bound to appear before a committee of the Assembly, or the Assembly itself when asked. That seems to me to be a satisfactory conclusion to the matter and I am sure that his letter will be reposing in the Library. I beg to move.

My Lords, I, too, thank the Minister for the letter that he wrote to the noble Lord about matters that were raised on Report. In particular, he will remember that I raised the points about Ministers of the Crown who had subsequently become First Ministers or Deputy Ministers of the National Assembly. It is quite clear from what he has written in his letter—and I thank him for its clarity—that this is not a complication, and I accept that assurance.

My Lords, I can confirm that the letter is already in the Library. Perhaps I would have been wiser to have copied it to all Members who participated in the debate in Committee but I addressed it to the noble Lord, Lord Kingsland. I am grateful for the noble Lord’s response. It justifies the wet towel technique after midnight after all, and I am very pleased by his response.

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 [The First Minister]:

Page 27, line 27, at end insert-

“( ) The First Minister shall tender his resignation to Her Majesty if the Assembly resolves that the First Minister or the Welsh Ministers no longer enjoy the confidence of the Assembly.”

The noble Lord said: My Lords, we return to the amendment that we tabled on Report. The Minister will remember that this matter has been drawn to our attention by the organisation Tomorrow’s Wales, which is chaired by the Archbishop of Wales.

It is a serious amendment because there appears to be no real ability within the Bill for the First Minister to be dismissed in circumstances where there might be a vote of no confidence in him or her in the Assembly. The amendment states:

“The First Minister shall tender his resignation to Her Majesty if the Assembly resolves that the First Minister or the Welsh Ministers no longer enjoy the confidence of the Assembly”.

This would ensure that the First Minister can be removed from office by a vote of no confidence. However, at present—and in contrast to the position under the Scotland Act 1998—the First Minister is not obliged to stand down immediately if he loses a vote of confidence but only when a new First Minister is appointed. A First Minister can therefore only be removed by also electing his successor at the same time. It is a rather strange situation which corresponds with the practice in Germany, where it is known as the “constructive vote of no confidence”. Consequently, it has the effect of significantly weakening the control of the Executive by the Assembly.

I know that in Committee the Minister said, in particular, that the First Minister will remain in office, as it states in the Bill, until a successor is elected. We do not think that that is a desirable state of affairs if there is a loss of confidence in the First Minister.

As to the appointment of a new First Minister, the argument is that there surely must be someone in government in between times from whom the civil servants who are the staff of the Welsh Assembly Government can derive their authority to act. It should not be too difficult to find a person within a ministerial competence of the Assembly Government to take over the role of First Minister temporarily in the interim period. We do not see why it should be that, in spite of there being a vote of no confidence, the First Minister should continue. Clearly a vote of no confidence means that the First Minister has lost the confidence of the Assembly and someone else, who might be equally able, should take the First Minister’s place in the interim to ensure that the Assembly is run properly, which should sustain the confidence of the Members of the Assembly. I beg to move.

My Lords, I do not think there is a great deal of difference between us, nor is there a major issue at stake. I recognise that the noble Lord, Lord Livsey, pressed this issue at Report stage and he has brought it back at Third Reading. At Report stage I had hoped to indicate—I obviously did not succeed—that the provisions of the Bill are absolutely clear: when a First Minister loses a vote of confidence, that immediately triggers the process for his replacement. The question is, what happens in the interim? The noble Lord and I are in agreement that a vacancy could not just be declared. Like nature, Government abhor a vacuum, and if there is no elected Member in charge, one has to have confidence that a civil servant should occupy that role but that runs counter to every constitutional principle that we follow as a nation in any of our elected bodies.

The noble Lord says that another Minister could take that position. But another Minister might be a competitor for the role. How on earth could we guarantee that there would be an easy judgment about who should fulfil this role and how would that be arrived at?

We are saying that the First Minister, having lost a vote of confidence, is a standby Minister until his or her successor is elected. The moment that election has taken place, he or she goes. It is similar to the removal van being at No. 10, when things move with considerable dispatch. Things might take slightly longer in this respect, but the principle is clear. The Prime Minister is in office until his successor takes up the new position and has kissed hands. For the Assembly, it is clear that the outgoing First Minister carries on for a very short time until the election of his successor. I hope that the noble Lord recognises that that is a reasonable provision. The Bill makes it quite clear that that is exactly what happens.

My Lords, I hope the Minister will not mind my saying this, but his comments brought to mind something that happened during the 1970s. I went to Downing Street; the crowd were shouting “Out” to the Prime Minister, while his successor was already in No. 10. I remember thinking that that was rather amusing. Of course, one cannot just wander up to the door of No. 10 these days.

I gleaned from what the Minister said that this was not a problem. Some people might not want to be First Minister—in fact, I suspect that there could be quite a number. I am sure it is not beyond the wit of the Presiding Officer to establish who is in that position and perhaps a successor could be found.

I understand what the Minister is saying about the process. That is one way of doing it. I can imagine the tabloid headlines saying “Crisis” for a few weeks, and there might be a crisis of confidence in the Assembly. However, without more ado, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 78 [Sustainable development]:

[Amendment No. 3 not moved.]

Clause 95 [Scrutiny of proposed Orders in Council]:

Page 52, line 22, at end insert “, provided that such an Order is not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”

The noble Lord said: My Lords, the amendment refers to the issue raised in Part 3 about retrospectivity. As your Lordships will recall, both in Committee and at Report, we tabled an amendment seeking to remove from the Act the principle of retrospectivity. This arises because of Clause 95(4) which states:

“An Order in Council under this section may make provision having retrospective effect”—

—that is to say, an Order in Council made as a consequence of the Parliament in Westminster deciding to expand a field, as defined in Schedule 5 to the Bill, or a matter under that field.

At Committee and Report, we sought to have that provision removed altogether. Now that we are at Third Reading, we are in characteristically conciliatory mood and propose a less dramatic solution to the problem—to leave the existing text in, but add the expression,

“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”.

As a consequence of our debate at Report, the Minister kindly sent me a letter on the topic. I have read it a number of times. On each occasion, I reached a different conclusion about what it meant. I hasten to add that that is an observation on my powers of concentration rather than on the intellectual coherence of the Minister who drafted it. However, I am certain about one thing: the letter does not answer the question that I posed at both Committee and Report. The Minister will recall that that was, quite simply: can an order change, retrospectively, the decision of a court and the consequences that flow from that decision?

The letter only goes as far as to say that a retrospective order, directed at a matter of interpretation raised during a trial, cannot be made while the trial is in progress. Plainly, that does not go far enough. In those circumstances, I intend to press my amendment. In doing so, I invite the Minister to agree that the matters and concerns that he raised at Committee and Report will not in any way be adversely affected by our particular choice of words. I beg to move.

My Lords, I rise, first, to support my noble friend’s amendment and, secondly, to say that the noble Baroness, Lady Finlay of Llandaff, spoke to me last night expressing her regret that she was not able to be with us today having put her name to the amendment and that she is still in entire agreement with its object.

My Lords, we support the amendment. A simple point has been made by the noble Lord, Lord Kingsland. 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.

I have read the last paragraph of the noble Lord’s letter, which says:

“In summary these provisions exist to enable the law to be clarified and to enable those who have acted in good faith not to be disadvantaged if legislation made by the Assembly or the Welsh Ministers is found subsequently to be ultra vires”.

That answers one problem, but it certainly does not answer the problem raised by the noble Lord, Lord Kingsland. People may act in good faith on a measure that has been passed and then find that the Welsh Government take a contrary view and annul its effect. It has nothing to do with it being found ultra vires. So far as the noble Lord’s amendment protects a person in those circumstances, we support it.

My Lords, on Report the noble Lord, Lord Kingsland, said:

“I am partially satisfied by what the Minister said, but only partially”.—[Official Report, 28/6/06; col. 1276.]

We wrote a long letter, which I am afraid has still not satisfied the noble Lord, so I hope that in the next few minutes I shall be able to convince him that nothing is happening with this clause that should be of concern.

Amendments Nos. 4, 12 and 13 would all limit the retrospective effect of the respective orders under Clauses 95, 150 and 151 so that the order applies only if it is,

“not to the detriment of those who have either benefited from or acted in reliance upon … the law”,

before the order was made. We discussed the issue of retrospective effect at length in Committee and on Report. It is an important issue, and many noble Lords have expressed measured and cogent concerns about these provisions. To offer further reassurance, I wrote the letter that has been mentioned, and I am glad that we have an opportunity to return to the matter at Third Reading.

As I stated previously, the retrospective power exists primarily to allow technical defects to be corrected. The merits of using it would need to be decided on a case-by-case basis by weighing up the rights of individuals, the public interest and the scale of the change involved. Of course, the Welsh Ministers and the Secretary of State would have to take into account whether making retrospective provision would be to the detriment of any person. However, we cannot accept the amendments, as that is not the only consideration that they would have to take into account. There may be considerations in the public interest that greatly outweighed an arguable detriment to an individual. That is why the existing human rights legislation, which requires Ministers to consider these issues in the round, remains the best constraint on ministerial discretion. I also stress once again that these powers are primarily intended to enable technical defects to be remedied and minor and consequential amendments to be made.

As I stated on Report, the Government do not envisage the power to make retrospective provision being exercised except in very rare cases. The purpose of the provision is to protect those who have acted in good faith as a result of provisions in an Assembly measure that have subsequently been ruled to be ultra vires. It is not intended arbitrarily to abridge the rights of individuals, and there are safeguards in place to ensure that the power could not be used in such a way.

I emphasise strongly to the noble Lord that, if there were ever any attempt to abuse this provision and to use it in a way that was detrimental to the rights of individuals, Parliament would block it. All orders under Clauses 95, 150 and 151 will be subject to full parliamentary oversight. Parliament will therefore act as a constant check on the use of these powers, and will be able to ensure that any retrospective provision made under those clauses is proportionate and appropriate.

I understand and have considerable sympathy with the intention behind the amendments. However, I point out to noble Lords that the amendments are technically defective and would render the provisions related to retrospective effect inoperable. It is impossible with any certainty to identify all persons who could be detrimentally affected as a consequence of the order in advance of the order being made. It would never be clear, therefore, whether any order could lawfully be made, even if there was an overwhelming public interest in making it. For that reason, the Government believe that the safeguards that I have outlined, of human rights legislation and parliamentary oversight, are the appropriate way of dealing with this issue, rather than the approach adopted by the amendments.

It is also worth reiterating that this provision follows the model of the provisions in Sections 107 and 114 of the Scotland Act 1998. Your Lordships may also be aware that it was necessary for provision to be made under Sections 107 and 114 of the Scotland Act 1998 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.

This power is needed because, if it were considered that an Assembly measure was outside its legislative competence, another provision of another enactment might also need to be amended to reflect that. The Bill provides that any provision of a measure that is outside the legislative competence of the Assembly is not law. If it were to arise that another enactment had made provision referring to that measure, then it may be necessary to amend that other enactment as if it had never referred to the ultra vires provision of the Assembly measure. As the Scottish example shows, this will certainly be a very rare event, but the provision may well be needed.

In all cases, the Welsh Ministers and the Secretary of State, who would be engaged in considering whether to propose a draft Order in Council with retrospective effect, would have to consider the circumstances of the particular proposal. The Assembly and both Houses of Parliament would judge whether the draft Order in Council properly balanced those considerations. Such provision cannot, therefore, be made at the whim of the Executive.

I hope that finally I have convinced the noble Lord, and with this assurance I hope that he will feel able to withdraw the amendment.

My Lords, I have two questions for the Minister. First, is he saying that this provision is to deal with a situation that might arise because a measure had been made that was ultra vires, and the provision is being used to put that right?

My Lords, do I also understand the Minister to say that there would be no question of the Welsh Assembly Government seeking to take away the fruits of victory in litigation from the litigant and, if they attempted to do so, this Government would block them by using the blocking mechanism of a measure that is set out in the legislation? Is that right?

My Lords, first I must say how much I have enjoyed working with the Minister throughout this Bill. He has always set out, in the speeches that he has made, a spirited defence of the Government’s position. However, in this case, far from reassuring me, he has confirmed my worst suspicions. He has done so by explaining the process that would lead to an order.

Perhaps I should say at this point that the order is not one made by the Welsh Assembly but one made by the Westminster Parliament. I am talking not about the second range of orders but about the first range.

The Minister described the process of determining whether your Lordships' House and another place should make an order as one of balancing the public interest against the rights of the individual. From that, I conclude that, even after a court has decided that a certain individual has certain rights in law as a consequence of the trial process, those rights may be retrospectively taken away from that individual if Westminster considers it in the public interest to do so. That is my understanding of what the noble Lord said. I derive no reassurance whatever from the fact that there may be similar provisions in the Scottish legislation. Those provisions may well turn out to have the same defects as, I believe, I have identified in the definitions in this Bill.

Indeed, the situation arises all the time in our own law. Where you have a piece of delegated legislation that is passed by your Lordships’ House and another place and on which people rely, and then subsequent litigation establishes that that legislation is ultra vires the primary legislation, there is no power in our constitution to retrospectively change the rights that flow from that court decision. Of course, Parliament can then change the law for the future, but not for the past.

I believe that our case here is unassailable and I should like to test the opinion of the House.

Page 52, line 28, leave out paragraph (b).

The noble Lord said: My Lords, I shall speak to Amendments Nos. 6 and 7. The noble Baroness,Lady Finlay of Llandaff, is unable to be here; she is on Assembly business. She wishes to support the amendment and, like the noble Lord, Lord Crickhowell, sends her apologies for not being here.

The amendment would delete paragraph (b) of subsection (7), which refers to giving,

“notice in writing to the First Minister of the Secretary of State’s refusal to do so and reasons for that refusal”.

In Clause 95, entitled “Legislative competence: supplementary”, subsection (7) states:

“The Secretary of State must, before the end of the period of 60 days beginning immediately after the day on which notice of the Assembly’s resolution is received”.

Amendment No. 6 takes out another part of the clause, and reduces the length of time to,

“30 days beginning immediately after the day on which notice of the Assembly’s resolution is received, submit the draft to the Clerk”.

It would add a new subsection to provide:

“The Clerk shall submit the draft Orders in Council for approval by Her Majesty in Council”.

Amendment No. 7 reduces the period of 60 days to 30 days.

The amendments relate to the process for Orders in Council and were tabled in Committee and on Report. They provide that a draft Order in Council cannot be either submitted to Parliament or rejected by the Secretary of State. They can be sent only to the Queen for approval. They were designed to liberate the Assembly from the grip of Westminster by making the process automatic, whereby the Assembly’s will can prevail.

I acknowledge that this is a radical amendment to devolve more power to the Assembly, which is, after all, a democratic body, and to take that power from the Secretary of State. Everyone committed to true democracy should support the amendment, because the Assembly has been elected by the people of Wales and it is its will to put forward draft Orders in Council. There should be confidence in that elected body’s ability to do that and to be responsible. Therefore I have much pleasure in moving the amendment. I beg to move.

My Lords, the main feature of these amendments is that they exclude both Houses of this Parliament from the procedure for securing approval for an Order in Council amending the important Schedule 5, which lists the fields where the Assembly has legislative competence. In other words, the amendment would ensure that approval by only the Assembly was required for the statutory instrument containing the order before it was approved by Her Majesty in Council.

Orders under Clause 95 may, as subsection (1) makes clear, add, vary or remove any matter relating to one or more of the fields listed in Part 1 of Schedule 5. Orders may also add, vary or remove any field from Part 1 or make changes in Parts 2 and 3, which cover restrictions on Ministers and exceptions to those restrictions. The scope for order-making is, therefore, very extensive and fundamental in the area of legislative competence.

It cannot be right that the Assembly and its Government alone decide the extent of their legislative competence without the approval of this Parliament, which is the ultimate source of their power. The absence of parliamentary consent to the Assembly’s exercise of legislative power in an area that properly belongs to this Parliament would be totally unconstitutional. I am not a constitutional lawyer, but I am sure that I am right on this point. The practical consequences do not bear thinking about.

My Lords, I am grateful to the noble Lord, Lord Roberts, because he has largely made my case for me. The noble Lord, Lord Livsey, said that this amendment was radical. I know that “radical” is generally used in a positive way in politics in the 21st century, but the original meaning of the word is “tearing up by the root”, which is what this amendment does. It tears up the concept of devolution by the root, because it conveys to the Assembly something very close to sovereign power. The amendment allows the Assembly to accrue to itself, of its own decision, any additional powers that it wants.

When the noble Lord, Lord Livsey, sums up, can he provide an illustration of any sub-national assembly in the world, which is not sovereign, that has the right to increase its powers unilaterally, without any reference to the sovereign parliament from which it derives its original powers? If he could, I would be more than a little surprised. The amendment does not propose a concept of devolution, but an accession towards sovereignty. It would lead to a system of government entirely unrelated to the settlement that the Welsh people voted for in 1997; in fact, it would be outright independence rather than devolution.

Amendments Nos. 6 and 7 are much milder in scope and tighten the deadline. If they were accepted, the Secretary of State would have no choice whatever, and the deadline would apply to nothing more than the process of handing the draft Order in Council to the Clerk. We see merits in the Secretary of State being able to deliberate on these matters and having some time before taking action.

Those amendments are the minor part of this group, while Amendment No. 5 is the blockbuster, the radical reform. I know that noble Lords in the Liberal party are extraordinarily enthusiastic about devolution. I recognise the principle that they subscribe to; they have merit in doing that and they are joined by many other noble Lords, including some in my party. But the noble Lord is arguing for independence—that is a different matter.

My Lords, I thank noble Lords for their responses. I note what they have said and understand why they see the amendment as provocative. That, however, does not mean that there are a lot of anachronisms. The noble Lord, Lord Roberts—and, I believe, the Minister—said that it excludes both Houses of Parliament. Well, shock horror; but it is possible for an unelected House—that is, this one—to block the legislation of an elected House in Wales and to say that that is sovereign. I leave the public to decide on the justice of that argument. The noble Lord asked for an illustration; I think that that is quite a good one.

Some of the issues raised by the Minister reminded me of the problems of dominion status in times past in some countries, where sovereignty still lay in the UK but the parliaments did not have that power as the legislation was still sovereign. It is interesting to look at the New Zealand Parliament, where the second Chamber has been abolished. There is just a big void in its place and a unicameral system. The amendment probes these issues and I well understand the objections of both the government Front Bench and the Official Opposition.

My Lords, perhaps the noble Lord will allow me to intervene. If he is talking about the dominions and their frustrations, he will know that they solved their problems through independence.

My Lords, I understand that. I do not wish to have that debate here today, and I am sure that noble Lords will be grateful to me for that. I well understand the responses that I have received and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 6 and 7 not moved.]

Clause 103 [Referendum about commencement of Assembly Act provisions]:

Page 57, line 36, at end insert-

“( ) The Secretary of State shall lay an order under subsection (6) not later than 30th June 2010.”

The noble Lord said: My Lords, this amendment also stands in the name of the noble Baroness, Lady Finlay of Llandaff. It comes from the body Tomorrow’s Wales, Cymru Yfory. It is very important in that it highlights a timetable for the legislation to come into being, as recommended in the Richard commission report. The amendment requires the Secretary of State to lay a draft order for a referendum by 30 June 2010. That should allow the referendum to be held in time for the Assembly, which is expected to be elected in May 2011, to assume the Part 4 powers of the Bill, which, as we know, give primary legislative powers to the Assembly.

I can certainly see why the present Government would feel partly hamstrung—perhaps more so—by the imposition of a date, but they would be wrong to think that they might be in power for ever. Perhaps a Government of a different political persuasion would act to hold a referendum at the moment when they were least likely to succeed in granting more powers to the Welsh Assembly. That would be possible. In fact, one could say that the present Secretary of State is looking for the opposite—that is, for an opportunity to hold a referendum at the most propitious time. We believe it would be desirable to take the power on when a referendum is held away from the politicians and to put it into statute, stating that it should occur by 30 June 2010. It was considered in the Richard commission report, and the timescale seems sensible. It would give certainty to when it might be possible to bring the powers in Part 4 of the Bill into being, for that to be voted on in a referendum and then to ensure the smooth transition to primary legislative powers for the Welsh Assembly. I beg to move.

My Lords, I never cease to marvel at the ability of the Liberal Democrats to contradict their own arguments. Even with that thought in mind, I was absolutely flabbergasted when I saw this amendment. I understand, and shall comment later on, the extraordinary complexity of the inter-relationship of Clauses 103 and 104, but the amendment would require the Secretary of State to trigger a referendum in four years’ time, whether or not the Welsh Assembly had requested or wanted it, whether or not any consultation by the Secretary of State had indicated that no one wanted it and whether or not there was likely to be a crushing defeat for further devolution if a referendum were held.

When I tried to lower the hurdles for a referendum at previous stages of the Bill, the Liberal Democrats rejected my proposal on the grounds that, if a referendum were held too early and in the wrong circumstances, it would be a catastrophic setback for the move to further devolution and it should be utterly resisted. Now, here they are, moving an amendment to force a referendum in four years’ time, whatever the results, even if the Welsh Assembly—which, reasonably, they say represents the views of the Welsh people—has not voted for it and does not want it. It is an astonishing amendment, even by the standards of the Liberal Democrats.

My Lords, curiously enough, I was of the opinion that the noble Lord, Lord Crickhowell, wanted a referendum now, so it does not follow that he should oppose holding a referendum within a timescale. It seems to me that we should give these present provisions, which are temporary—I think that everyone recognises that they are just one step forward—time to prove themselves and, within a limited period, move to a referendum. If the people of Wales decide before 2010 that they do not like the step being taken under the Bill, so be it. But we think that we should move forward and not leave it to another Administration to sit on any further moves to add to devolution for all time. A positive time limit should be placed on it.

My Lords, it is not for me, from this Dispatch Box, to intrude on private grief. The noble Lord, Lord Crickhowell, has accurately identified some clear elements of contradiction in the Liberal Democrat position on the referendum. I am in a more congenial mood and shall therefore not spend a great deal of time on that point, but I shall deal with the main issue about which the noble Lord, Lord Livsey, spoke.

I accept that the Liberal Democrats’ position on devolution is a principled one. They want to see primary powers for the Assembly, and as soon as possible. I respect that position but it is not what the Welsh people voted for in 1997; they voted for the Government's view that primary powers for the Assembly represent a fundamental change to the devolution settlement. A further referendum is required, but it must, and can, take place only when there is a broad cross-party consensus in Wales in favour of such a move. It is an easy populist line for the Liberal Democrats to set a date and to say that it should be taken out of the hands of politicians, and I have no doubt that that will win a few cheers in certain quarters. However, the political responsibility is straightforward. The referendum would be on whether the National Assembly should have increased powers, and if it were lost it would severely damage the Assembly and present considerable difficulties for its subsequent work.

It must be a political judgment and it must be right that politicians take responsibility. The Liberal Democrats are at one with the Government in seeing the Welsh Assembly’s powers increased under the Bill over the next few years—earlier than the Richard commission recommended. It will be a gradual enhancement of, and increase in, powers, subject, of course, to the Orders in Council and to the authority of this Parliament. It is then suggested that there should be an arbitrary date on which that is put before the Welsh people.

Everyone knows that referendums can be conditioned by a range of issues in addition to the matter in hand. It seems to me a denial of devolution to suggest that politicians should abrogate any responsibility for deciding the date, to say to the National Assembly that it should have no say on the date, and that the date should be imposed on it and the Welsh people by the very Parliament from which the Assembly is seeking enhanced powers.

My Lords, I have listened to the Minister with great interest. Does he, therefore, say that one should wait for a favourable time to set the dates for local government elections so that the Government can be sure of winning them? Should the European elections, the Scottish parliamentary elections, the London Assembly elections and the Welsh Assembly elections, rather than having set dates, wait until the ruling party thinks it will win?

My Lords, the noble Lord seems to have left out general elections in Britain. Is the Liberal Democrat party in favour of fixed dates for general elections? That is an interesting point.

My Lords, in that case, I am surprised that he did not bring that into his argument. Let me be absolutely clear: there is a massive difference between elections and the concept of a referendum on a specific question put before the people for the endorsement or rejection of powers for an assembly. That is what we are debating here, not elections. We are debating a referendum. To take away from the National Assembly any control over when the case should be put to the Welsh people seems to be a denial of devolution. I hope that the noble Lord will recognise the weakness of his case and withdraw his amendment.

My Lords, I thank the Minister for his response. I hear what the noble Lord, Lord Crickhowell, says. My noble friend Lord Thomas has dealt with that. The Minister made a number of interesting points. First, he will know from previous amendments, which are not tabled today, that we are not great believers in referendums, which would affect some of the arguments that he has just deployed. The most powerful argument against his position is that the referendum date of 2011 is arbitrary. The situation is very interesting. He referred to a referendum in 1997. One does not have to be a brilliant mathematician to realise that he is saying that 14 years after the last referendum is not the time at which to have another one to decide whether the powers of the Welsh Assembly should be increased. That is a long time between one referendum and another and public opinion in Wales has changed.

In the most recent opinion polls, a majority of Welsh people wanted primary powers for the Welsh Assembly. They have been asked that question more than once in well organised opinion polls. There are two sides to this argument. Traditionally, Governments have had the power to decide when they wish a referendum to be held; this amendment would merely straighten out that situation and say that it would be reasonable to hold it in 2011 and that we should prepare for it now so that we have four years lead-in time. Those are very reasonable arguments. However, having listened to what both sides of the House have said about the amendment and, as a realist, having considered the chances of getting it through, I withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 [Proposal for referendum by Assembly]:

Page 58, line 16, leave out from “Parliament” to end ofline 23.

The noble Lord said: My Lords, Clause 104 deals with the situation where the National Assembly passes a resolution in favour of a referendum by the requisite two-thirds majority of seats—that is 40 out of the total of 60. The First Minister must give notice of the resolution to the Secretary of State and then, within 120 days, the Secretary of State must,

“lay a draft of a statutory instrument containing an Order in Council … before each House of Parliament”,

causing a referendum to be held throughout Wales about whether the provisions in Part 4 of the Act should come into force. That is a précis of the procedure and I know that my noble friend Lord Crickhowell will have some interesting comments to make on that process under the next set of amendments. For the moment, let us assume, “So far so good”. Precisely at this point I see the rub. Subsection (3)(a) says that the Secretary of State must do that or,

“(b) give notice in writing to the First Minister of the Secretary of State’s refusal to do so and the reasons for that refusal”.

The First Minister's duty then is to lay a copy of the notice before the Assembly and its duty is to see that it is published so that the people of Wales know why the Secretary of State is refusing a referendum on whether the Assembly should be granted greater powers as specified in Part 4.

As some of us have noted, particularly the Liberal Democrats under another set of amendments, the Secretary of State has truly astonishing interventionist powers under the Bill. He can slam on the brakes, bringing the Assembly to a grinding halt, and not only when it is calling for a referendum; he has a similar power to stop the Assembly in its tracks in Clause 95 relating to Orders in Council amending Schedule 5 to change the fields of Assembly measures. Clause 95(7) allows the Secretary of State 60 days to lay a draft before each House of Parliament or to give notice of his refusal to do so, giving the reasons why. Again, under Clause 101, the Secretary of State can, by order, prohibit the Clerk from submitting a proposed Assembly measure for approval by Her Majesty in Council.

Those almost autocratic powers to intervene might be justifiable in the context of the devilish complexities of Part 3, but surely not in connection with Part 4, which is much more straightforward. However, the powers are there, too. The Secretary of State can not only stop a referendum, but later, when the Assembly has fulsome legislative powers and is in full swing, under Clause 114(2) he can make an order prohibiting the Clerk from submitting a Bill for Royal Assent. As my noble friend Lord Kingsland said on our second day on Report:

“The real shift in power is from this Parliament to the Executive and the Secretary of State”.—[Official Report, 28/6/06; col. 1237.]

Never were truer words uttered.

Indeed, the more I think about it, the more extraordinary I find this interventionist role for the Secretary of State, and I know that others, including the noble Lord, Lord Thomas of Gresford, find this centralist thrust almost offensive. It certainly would be offensive to a genuine devolutionist. In fairness, I am bound to say that there is a similar power in Section 35 of the Scotland Act for the Secretary of State to prevent a Scottish Parliament Bill receiving Royal Assent, but the circumstances for intervention in that case are much more specific—they are where a Bill is incompatible with international obligations or has adverse effects on the law relating to reserved matters.

I shall concentrate the rest of my remarks, which I hope will be brief, on the Secretary of State’s right to refuse a referendum when two-thirds of the Assembly have voted for it. That is a special category of intervention. What could be the reasons for refusing such a request if the proposal was acceptable to the Assembly and the electors of Wales? When one has dismissed potential natural calamities of tsunami dimensions, such as the drowning of the Assembly in Cardiff bay, one returns to the possible political scenario that might induce the Secretary of State to refuse to lay an order requested by the Assembly before each House of this Parliament. The fact that such an order might be voted down in either House would not, in my view, be a sufficient reason to refuse to lay it.

The only credible reason for the Secretary of State’s refusal that I can imagine is that the Government of the day do not approve of the Assembly’s decision to go for a referendum and are determined to resist it at all costs. But is it really necessary to spell out the overriding interventionist power of the Secretary of State and central Government quite so blatantly in an allegedly devolutionary measure? I do not think so, which is why the amendment proposes the excision of the words. If the Government of the day oppose the Assembly’s will to hold a referendum, they can defeat the order in another place or even in your Lordships’ House. Surely Parliament is the proper body to overrule the Assembly on a matter such as this, rather than the Secretary of State. This Parliament continues to have an override power, as it does in Scotland, even when Part 4 comes into effect. I beg to move.

My Lords, we support this amendment, and it is a pleasant duty to do so, given the exchanges that took place earlier. There is clear agreement between us on the importance of this amendment, which addresses the ability of the Secretary of State to refuse to lay an Order in Council before Parliament if the Assembly has passed a resolution asking for a referendum to be held. On Report, we agreed that a two-thirds majority is appropriate, but others did not agree. Given that that is now in the Bill, it is nothing short of scandalous that the Secretary of State has the power to deny such a request.

Either there is a belief in democracy or there is not. The process in the Bill is clearly not democratic, as the Secretary of State can veto an Order in Council for a referendum to be held. The noble Lord, Lord Roberts of Conwy, has deployed all the arguments about why that is wrong, and I do not wish to delay the House further. I entirely agree with him that a referendum is a special category and that to deny a referendum is not appropriate. He is clearly also right to say that only Parliament should have the power to overrule the Assembly in such a situation. Therefore, we support the noble Lord’s amendment.

My Lords, the noble Lord, Lord Roberts, quoted the view of the noble Lord, Lord Kingsland, that this is a centralising Bill that transfers powers to the Executive, not to democratic bodies. That is nonsense. The vast majority of the Bill gives enhanced legislative powers to a democratic Assembly in Wales. That is the burden and central thrust of the Bill. It is anything but centralising.

My Lords, as the noble Lord referred to my noble friend, I shall repeat the quotation:

“The real shift in power is from this Parliament to the Executive and the Secretary of State”.—[Official Report, 28/6/06; col. 1237.]

My Lords, that begs the question. The Executive to which these powers are being transferred are the same as the Executive here at Westminster: they are answerable and accountable to an elected Assembly. They have to get measures through using procedure that is almost identical to that used here for primary legislation. We are handing powers to an Executive in the Welsh Assembly and that Executive are directly accountable and answerable to that elected Assembly. That is not a shift of power to an Executive; it is a shift of power from this Parliament to the Welsh Assembly, from this Executive to the Executive in Cardiff. That is not centralising; it is genuine devolution. This is a devolution Bill and should not be portrayed in any other way.

The Secretary of State’s power was portrayed in speeches from the opposition Benches as an autocratic decision made by one person. If a Secretary of State made a decision not to put an order before Parliament, he or she would be reflecting not a personal view, but the view of the Government of the United Kingdom, which would presumably hold a majority in this Parliament. Therefore, it does not seem unreasonable that the Secretary of State of the day should be made to give reasons for doing that.

We all accept that the situation would be extraordinary, but this amendment would remove the provision requiring the Secretary of State who took such an extraordinary decision—presumably with the full authority of the United Kingdom Cabinet and Government at Westminster—to explain why he or she would not bring an order before both Houses. It seems reasonable to have a provision requiring the Secretary of State to give reasons for doing that, because I agree that it would be an extraordinary situation and something of a constitutional crisis, given that the United Kingdom Government would be overriding the request and the clear wish of the Welsh Assembly.

There are two rights here. There are two democracies. There are occasions when we talk almost as if the only democrats who exist are in the Welsh Assembly. There are democrats here who are elected and have a right to express their views. If the United Kingdom Government of the day, for the most extraordinary reasons, which I find difficult to envisage, decided that they could not support the call for a referendum at that time, it is perfectly reasonable that provision should be made requiring the Secretary of State, on behalf of the United Kingdom, to give his reasons and to explain them clearly.

My Lords, does the noble Lord agree with the point made by the noble Lord, Lord Roberts of Conwy, that it would be for Parliament to block the referendum, not a Secretary of State expressing the UK Government’s point of view? As the noble Lord says, one would envisage that the UK Government would be supported with a majority in Parliament. The matter would therefore be subject to debate, but they would have their way.

My Lords, I understand the point that the noble Lord is making, but let us talk real politics. If the Secretary of State, representing the United Kingdom Government of the day, said, “We will oppose this order if it is brought before the House”, and if that Government had a majority in the House, the inevitable consequence would be a defeat of the order. We should be more realistic about party politics. If one could not persuade the Secretary of State and the United Kingdom Government of the day, it would be almost a nonsense to bring an order before the House unless one thought that there was going to be genuine rebellion of one kind or another that could overturn the Government. I see the validity theoretically, but not in real politics.

My Lords, in rising to support my noble friend’s amendment, I want to take up the exchange that has just taken place and the arguments advanced at an earlier stage of our proceedings by the Minister, who basically said that the role of the Secretary of State is to find out what the rest of the United Kingdom thinks and then express those views—really, therefore, to decide whether there should be an English veto over the request advanced by the Welsh Assembly.

The noble Lord, Lord Rowlands, was suggesting that it was perfectly reasonable that the Secretary of State should have the opportunity to argue the case to Parliament, but that is not what the Bill provides for. It says that the Secretary of State can refuse to lay the order in the first place and therefore cut off any chance of its proceeding. My response to the Minister is that of course the Secretary of State can consult and report to Parliament what in his and the Government’s judgment are the views and opinions in England. Surely it is then for Parliament, in this House and in another place, to listen to those arguments and to decide on their validity; it is for Parliament to weigh up whether it should take more account of the views of the rest of the United Kingdom put to them by the Secretary of State than of the views of the Welsh Assembly, which would have requested that the referendum be held. It would be open to Parliament to say no to the Welsh Assembly, although in my judgment it would be unwise to veto the proposal at that stage if the request had been made.

I believe that my noble friend is right in seeking to delete the power of the Secretary of State to say no. Of course the Secretary of State can express his opinion and report on the outcome of his consultations, but surely it is then for Parliament—the other place in particular, in this case—to decide on the merits of the order. That is a perfectly adequate defence.

My Lords, we have had an interesting debate on this important amendment. As far as the Government are concerned, this is not an issue of seeking to aggrandise the Secretary of State, but we think there is an issue of constitutional principle here, and that is what I want to defend.

I also want to disabuse the House of the notion that the amendment would be an essential defence against a Government who were hostile to a referendum being conducted in Wales, and so should be put in the Bill. The simple fact is that if a Government were hostile to a referendum and potential progress on devolution, they would just produce primary legislation to take out Part 4 of the Bill entirely. If they were set upon that course, nothing would prevent them so doing, provided they could command a majority in both Houses. The amendment cannot stand as the essential defence against such action and should not be supported as such, because it will not provide that defence.

I agree with all noble Lords who have spoken that it would be a somewhat unwise Secretary of State who sought to block a referendum when the National Assembly had expressed itself in these terms by a two-thirds majority. Nevertheless, we think that the Secretary of State should have some discretion in this matter and be able to take account of the views expressed in consultation. If the order is to be laid before Parliament, that is the proper responsibility of the Minister of the Crown. It is not constitutionally defensible for the Assembly to be able to demand that the Secretary of State does this regardless of whether he has the will to do so. That is an important constitutional point.

I am not opposing the amendment on the grounds that the Bill needs a new roadblock against devolution. I cannot foresee the circumstances in which a Secretary of State would take such action when faced, as I have indicated, with a majority decision of the Assembly, but there are proper lines of constitutional accountability, which is why the Secretary of State’s position needs to be defined in these terms.

There are also genuine practical reasons why the Secretary of State should not be constrained to lay a draft order within 120 days, as the amendment requires. He or she would still have to comply with the requirements of Clause 103 before doing so, including possibly the preparation of the draft order itself and statutory consultation. It would also be the case that the draft order would be laid before the Assembly before it was laid before Parliament. The amendment would leave no scope for altering that timescale should it not be possible to complete all those steps within 120 days.

Of course it is, my Lords, but I am indicating that within this framework we need discretion for the Secretary of State. If the120 days were not long enough in practice, it would be perfectly possible for the Secretary of State to say to the First Minister that the draft order could not be laid at that moment. The amendment does not take any account of difficulties of that kind.

We cannot foresee the circumstances in which the Assembly might have arrived at its two-thirds majority. There are practical issues. We properly require some discretion for the Secretary of State because constitutionally it is he, at the end of the day, who is responsible to Parliament for actions that are taken. The amendment takes that power from the Secretary of State.

My Lords, do I understand the Minister to be introducing a new constitutional principle—he says that it is a matter of principle—that the Executive are now sovereign? I thought that Parliament was sovereign. I really do not follow why he says that the Secretary of State cannot be told to do something.

My Lords, of course I am not gainsaying the sovereignty of Parliament. In fact, as the noble Lord will recognise, in my opening remarks I said that the obligation is on the Secretary of State to lay the order before Parliament—the sovereign body—and not to be dictated to by the National Assembly, which would be the effect of the amendment. Under the amendment, the Secretary of State would be obliged to deliver the order within the timescale specified with no discretion.

My Lords, surely if Parliament has laid down that mechanism in the Act, there is no question of the Welsh Assembly dictating to the Secretary of State, it is just fulfilling the mechanism that Parliament has given to it.

But, my Lords, within the Bill, which I and, I hope, the noble Lord, want to be enacted in the fairly near future, we seek to preserve the proper constitutional responsibility of the Secretary of State for tabling of orders to the sovereign Parliament, because he is answerable to it in a way that the National Assembly clearly is not. The amendment will not achieve what it appears to be intended to do—to guarantee that no government could interfere with the process if it were hostile to what the National Assembly sought. The Government would have other powers by which to carry out their will if, misguidedly, they decided so to do.

It is essential that the constitutional requirements and role of the Secretary of State are preserved. On that basis, I ask the noble Lord to withdraw his amendment.

My Lords, I am grateful to all those who have participated in this debate, especially to those who have supported the amendment, which I am convinced is absolutely right for the simple reason that the Bill spells out the proper procedure. It is not an easy procedure to follow, as we have already established. The two-thirds majority hurdle must be overcome in the Assembly. It is not just two-thirds of those who vote, it is two-thirds of the seats. That means that 40 out of 60 Members must vote for the Motion. Then, to abbreviate the procedure, the resolution must be approved by both Houses of this Parliament. It seems to me that the role of the Secretary of State in interfering in that process—the cut-off power that has been referred to, the power to say no and to veto the Assembly’s wish—deprives these Houses of Parliament of their right to say no. For that reason, I seek to test the opinion of the House.

Page 58, line 16, after “Parliament” insert “and give notice in writing to the First Minister that he has completed the consultation required under section 103(6),”

The noble Lord said: My Lords, in moving Amendment No. 10 and speaking to AmendmentNo. 11, I shall not reopen any of the arguments that we had at an earlier stage of the Bill. These are drafting amendments, which are appropriate for Part 3 and which attempt to introduce a tiny additional element of clarity into two subsections that are extremely complex and difficult to understand. They might be clearer if they were in reverse order, but it is worth going over the procedures that must be followed to trigger a referendum, if only to show just how complicated the matter is and because, even after re-reading the subsections a dozen times, I may still have got them wrong.

As I understand it, the first step is that the Assembly passes a resolution, moved by a Minister, with a two-thirds majority and recommending an Order in Council. The second step is that the First Minister must give notice of that fact to the Secretary of State. That triggers two actions. First, under Clause 103(6), the Secretary of State undertakes,

“such consultation as the Secretary of State considers appropriate”.

Until he has done so, no draft statutory instrument can be laid before Parliament or the Assembly. Then, as we heard in the previous debate, he must lay a draft statutory instrument before each House of Parliament within 120 days. Until a moment or two ago, I would have had to add, “or give notice of his refusal to do so”, but that position has altered in the light of the amendment that has just been carried.

Then we get to a rather curious position; it is worth going over this ground, if only because I suspect the Government may attempt in another place to go back to the position that we have just amended and return these amendments to us. If the Secretary of State refuses to lay a draft statutory instrument before both Houses of Parliament, he must inform the Assembly of his refusal and of his reasons for it. Curiously, however, he is not required to tell the Assembly that he has approved a draft statutory instrument and has laid it before both Houses of Parliament.

The Assembly must now approve the draft order and, for the second time, achieve a two-thirds majority. The first was at the start of the resolution process; the second is to approve the draft order. Assuming that it does so and that both Houses of Parliament do likewise, we go back to Clause 103(1), in which,

“Her Majesty may by Order in Council cause a referendum to be held”.

My amendment would merely introduce a little clarity into at least part of the procedure. It suggests that the Secretary of State should actually inform the Assembly that he has laid orders before both Houses of Parliament, and presumably should give it the details of those orders so that the order laid before the Assembly is the same order, and should request it to lay the order. It is odd that the refusal to lay the order is in the clause, but there is no requirement that the Secretary of State should tell the Assembly in effect, “Okay, we have got to the next step. You must now lay the order and have the opportunity to vote on it for the second time”.

I had not recognised before I read the two subsections a dozen times and attempted to understand them that the Assembly has to give its approval twice by a two-thirds majority before we can get to the Assembly stage. I would not change the Government’s intentions in this respect; I am simply asking that a requirement is written into the Bill that the Secretary of State informs the Assembly that he is laying the order before both Houses of Parliament and asks that it should do the same in the Assembly so that we can complete the whole process. I beg to move.

My Lords, I am grateful to the noble Lord for raising this issue and I do not think there is any difference in intention between the Government and what the noble Lord has expressed in terms of the process that should be conducted. We think that we have described in the Bill a process which ought to assuage his anxieties about these issues, although I recognise that with his amendment he is seeking to be more specific.

In practice, the sequence of events for approving a draft referendum Order in Council will be that the statutory consultation would take place first, and then the draft laid before the Assembly for approval because if it were not approved by a two-thirds majority, that would be the end of it. If it is approved, the Secretary of State would lay the draft before both Houses of Parliament for approval. That was the process we envisaged in the Bill until the recent amendment of the noble Lord, Lord Roberts. It is not necessary for Clause 104 to repeat the provisions of Clause 103. Clause 104(3)(a) refers to a draft referendum order under Clause 103(1). That reference attracts the rest of the provisions of Clause 103 and it is clear that all the provisions set out in that clause must be complied with in order to hold a referendum. Clause 103 governs the process. It is therefore not necessary to spell out that the Secretary of State must communicate the results of the consultation exercise to the Assembly. If the outcome of that consultation were to lead to the Secretary of State not laying a draft order before Parliament, that would be made clear in the reasons given to the Assembly under Clause 104.

What we do expect is for the Secretary of State to be in close contact with the Assembly First Minister on the most important issue that the Assembly is likely to consider. We naturally would expect the Secretary of State to inform the First Minister of when the consultation had been completed and its results simply as a matter of good governance and proper administration. The aim of the legislation as drafted is to set out a minimum of what must be done rather than to spell out in every detail the process which needs to be carried out administratively.

I hear what the noble Lord says and understand that he is seeking to be helpful and constructive here, but I think we have it right in these two clauses. We have described the essential process, but the nature of the administration is a matter for governance and administration, and therefore does not need to be spelt out in the Bill. I hope the noble Lord will see that we are of like minds on what should happen and is destined to happen, without the need for an additional amendment.

My Lords, I observed earlier that one of the difficulties here is that we start with Clause 104 and then have to refer back to Clause 103, a point made by the noble Lord. It is one of those back-to-front arrangements of clauses that appears in the Bill not only on this occasion, which makes it quite difficult to interpret. The noble Lord has not said anything to sustain an argument for not including my helpful clarification. While I have not attempted in any way to alter the Bill, it would make the situation a bit clearer. I therefore regret that he does not eagerly accept my amendment, which would have been the simple thing to do and would have brought a little satisfaction to me. We could have finished the Third Reading in a welter of harmony and happiness, but since he will not do that, I hope that I have at least been able to clarify exactly what the arrangements and procedures are. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Clause 150 [Power to make consequential provision]:

Page 82, line 29, at end insert “, provided that such an Order is not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”

On Question, amendment agreed to.

Clause 151 [Power to remedy ultra vires acts]:

Page 83, line 14, at end insert “, provided that such an Order is not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”

On Question, amendment agreed to.

Clause 152 [Intervention in case of functions relating to water etc.]:

Page 83, line 31, leave out subsections (2) to (6) and insert-

“(2) The Secretary of State shall make representations to the Assembly as to how the relevant function has the effect described in subsection (1).

(3) In considering whether or not to continue exercising that function, the Assembly shall have regard to-

(a) the representations made by the Secretary of State under subsection (2); and (b) any adverse impact that would be had on Welsh water by the discontinuation of the relevant function.”

The noble Lord said: My Lords, unfortunately this amendment was first considered at the very end of business late at night. It addresses the situation set out in Clause 152:

“Intervention in case of functions relating to water etc.”.

Subsection (1) of that clause states:

“This section applies where it appears to the Secretary of State that the exercise of a relevant function (or the failure to exercise a relevant function) in any particular case might have a serious adverse impact on,

“(a) water resources in England,

(b) water supply in England, or

(c) the quality of water in England”.

My aim in proposing the amendment is simple: we want to establish a principle to provide for equality between England and Wales so far as water is concerned. We believe that this is a very reasonable matter to be asking for. Subsection (3) of the amendment states:

“In considering whether or not to continue exercising that function, the Assembly shall have regard to—

(a) the representations made by the Secretary of State under subsection (2); and

(b) any adverse impact that would be had on Welsh water by the discontinuation of the relevant function”.

In other words, precisely the same situation as that which applies to water that runs to England. Water is indivisible since it usually runs down into the same river system.

Surely it is right to achieve equality of the law, whether it is in England or Wales. River catchment areas flow from one country to another. Yet as the Bill is currently constituted, “adverse impact” is drafted only as it applies to England. As a Welshman I find the distinction rather extraordinary, so that if we can appeal to the English sense of fair play, we believe that equality must be the answer. In fact, the noble Lord, Lord Elystan-Morgan, tabled an amendment on Welsh water. I refer to one sentence from his contribution. He said very forcefully indeed that the power and scope of the Secretary of State’s jurisdiction in this matter is enormous. Without our amendment, this clause does not do justice to Wales.

If one looks at the Bill from the point of view held on these Benches, we see no primary legislative powers yet. We have had long debates about when we might possibly get them. We have government responses that appear to say, “But you might get some of these things”. We cannot say that the Government are actually denying us primary legislative powers because of the Bill’s ingenious process to pass at least Orders in Council, but it is not the type of legislative powers that we advocate. We believe that we do not have a fair voting system. We also believe that the Secretary of State has an over-burdening influence, as we have heard, on refusals, although we have just recently overcome that provision in a vote. There is also a veto on Assembly measures by either House of Parliament—an issue that we could debate for some time.

Surely the Government must recognise that the issue of water in Wales, and the lack of equality with England, amounts to playing with fire. Water is one of the few remaining Welsh resources, but as far as one can see, as the Bill is drafted, even the Assembly will have no influence over it. An opinion poll was reported over the weekend that seemed to show that the people of England now favour, albeit marginally, the creation of an English Parliament. That is certainly not our policy, which is for regional parliaments in England, but if the percentage is creeping up over 50 per cent, as it seems to be, and if we have a new Government who are of a different persuasion, there could be an English Parliament with massive legislative powers. To slightly adopt a phrase used by a previous Member for Ebbw Vale: Wales could go naked into the Assembly Chamber without the necessary powers. And that could apply especially to water, a basic resource. That would leave Assembly Members with little or no power over basic resources in their own country. I find that totally unacceptable.

In this amendment we are simply making a plea: please can we have equality in the clause? Water in Wales and water in England should be treated in the same way. The water issue should not be excluded from the Bill. I beg to move.

My Lords, very briefly, I have some sympathy with the amendment because I am antipathetic to the clause, which appears to be based on central Government’s most profound suspicions of the Assembly and its Ministers in matters relating to water. What wickedness do the Government think Welsh Ministers might perpetrate that could have such,

“a serious adverse impact on”,

water resources supply and water quality in England as to warrant the brisk intervention and possible takeover of functions by the Secretary of State? The mind boggles.

I agree with the noble Lord, Lord Livsey, that the clause seems excessive in another way: it concentrates on England's water interests and ignores Welsh interests entirely. I therefore sympathise with the spirit of the amendment, and I shall await the Government’s justification of this rigorous clause.

My Lords, those of us who live in Wales, or visit it, can still see the slogan after 40 years, “Cofia Tryweryn”—remember Tryweryn. That valley was drowned 40 years ago to provide a reservoir to serve the city of Liverpool. That act triggered great discontent and anger in Wales. Every Welsh Member of Parliament voted against the proposal, but their voices were not listened to. It was only last year that, under the guidance of the then leader of Liverpool City Council, Councillor Mike Storey, that Liverpool apologised for the insensitive way that its predecessor council had acted. To allow this Government of Wales Bill to have its Third Reading without this amendment is again most insensitive and needlessly provocative.

All we ask is that the needs of water provision for Wales be treated equally with the needs of England. So many of the natural resources of Wales—its coal mining, its quarrying industry, the greatest iron and steel manufacturing base in the world, the once great ports of Cardiff and Swansea—belong to the past. Time and again Wales' confidence and dignity have been undermined. Sometimes we concern ourselves with the effect on people who have lost their sense of self-worth and value, but that can happen also to nations. I would suggest in supporting the amendment that to deny Wales a substantial voice in the provision of water within its own borders not only is insensitive but also once again undermines the dignity of the Welsh nation.

My Lords, I support the amendment. It so happens that my daughter-in-law’s family farm was drowned in Tryweryn, to which the noble Lord referred a moment ago, and I am very conscious of the impact that that has had on the community there. Subsequently I appeared with my noble friend Lord Hooson on behalf of the objectors to the proposal to drown the Dulas Valley, south of Llanidloes. It was a hotly fought battle between the local community and the city of Birmingham, which wished to drown it. I am happy to say that the then Secretary of State for Wales upheld the inspector's recommendation that that valley should not be drowned and that no other valley in Wales would be drowned in this way ever again. It was a Labour Secretary of State who said it and we would hold this Government to the promise.

It is a highly emotive issue. When we see such a clause in the Bill, as the noble Lord, Lord Roberts, said a moment ago, we wonder what is going on. Why should there be a specific reference to what remains a large natural resource in Wales? I fully support the amendment.

My Lords, when the noble Lord, Lord Livsey, rose to his feet he said that we had a debate on this very late at night. My memory is that it was a very full and interesting discussion even though it was late at night. All of the issues which have come up today were raised in that late-evening debate. As we heard, Amendment No. 14 would remove the Secretary of State's power to intervene in the exercise of functions by the Welsh Ministers or others where it appears to him or her that that might have a serious impact on water resources supply or quality in England. That power would be replaced by a duty to make representations to the Assembly in such circumstances.

As I highlighted on Report, the subject of this clause is executive functions. After the separation brought about by the Bill, the Assembly will cease to be a corporate body and the executive functions will become the preserve of Welsh Ministers, not the Assembly. Therefore, the Assembly cannot decide whether to continue exercising the function or have regard to the representations of the Secretary of State. The Assembly will not be exercising this function. That said, Welsh Ministers will in the exercise of their functions relating to water have to have regard to the impact on Welsh water. Of course the Secretary of State will make representations to the Welsh Ministers on a government-to-government basis if they are considering an action that could have an adverse effect on English water.

I heard what the noble Lord, Lord Roberts of Llandudno, said, but we are talking about something that happened 50 years ago—

Forty years, my Lords; I beg the noble Lord’s pardon. It happened a mere 40 years ago. The noble Lord, Lord Livsey, quoted the noble Lord, Lord Elystan-Morgan, at Report stage. I will offer him another quotation which I think has a very precise bearing on the issue we are discussing.

My Lords, reference has been made to my noble friend Lord Elystan-Morgan. He very much regrets that he is unable to be present today, but he is presiding over the degree-awarding ceremony at the University of Wales, Aberystwyth, which is a very important event in the university calendar.

My Lords, I am grateful to my noble friend for drawing that to our attention.

The point that I was making was that the noble Lord, Lord Livsey, quoted the noble Lord, Lord Elystan-Morgan, who said something else on Report—that:

“If there ever was an attempt to aggrandise a Welsh valley in the way that Liverpool did almost 50 years ago, it would be the biggest boost to Welsh nationalism that has ever occurred”.—[Official Report, 28/6/06; col. 1289.]

The Government entirely agree. It is almost inconceivable that a future Secretary of State, from whatever party, would behave in such a recklessly provocative and incendiary fashion. I cannot imagine the circumstances that arose with the Liverpool example 40 years ago ever being repeated.

The Government’s expectation is that, if differences arose between the two Governments, every possible effort would be made to resolve them through discussion and dialogue, with both sides fully aware of the sensitivities involved. A number of noble Lords have raised the business of equality—that all that Wales wishes for is equality with England. It is important to remember that, if the relevant Secretary of State intervened, he or she would have to take into account the interests of England and Wales. Under the present settlement, that is the constitutional position. There is no reason for noble Lords, particularly those from Wales, to be as concerned as they are. It is still necessary for the Secretary of State to have the power to intervene as a last resort if agreement is not reached and he or she believes that the actions of Welsh Ministers will have a serious impact on water resources, supply or quality in England.

A crucial point made on Report—I think it was by the noble Lord, Lord Crickhowell—was that the geological nature of Wales was not linked to the political map, and the geological reality is that the great rivers of Wales flow into England and not the other way round. Equally, a large part of the water supply to England comes from Wales, but Wales does not rely for a large part of its water supply on England, if any part at all. The provision reflects the way in which most of the water flows—out of Wales and into England, and not the other way round. The Bill has to provide for the intervention powers because of that reality. Matters such as the approval of significant new development by Welsh Ministers could have a serious adverse effect on water resources, supply or quality in England.

The intervention powers provide an important and effective safeguard for the interests of water users in England, but there is no reason to expect that the Assembly or Welsh Ministers would use their powers irresponsibly and that the intervention powers would need to be used other than as a very last resort. As we have had another interesting debate on the subject, I hope that there is an understanding of the position and that the noble Lord will feel able to withdraw the amendment.

My Lords, we have indeed had an interesting debate, and a number of assumptions have been made. I particularly thank the noble Lord, Lord Roberts of Conwy, for sympathising with our amendment. I am sure that he heard what the Minister said about it; the noble Lord said that he was going to wait for that. I thank my noble friends Lord Roberts of Llandudno and Lord Thomas of Gresford for their personal appeal on the issue and for underlining its importance in Wales. I reiterate that, in spite of what the Minister said about executive functions, if the Assembly expressed a substantial opinion about water it is unlikely that the Executive would disagree.

We do not understand the approach to the issue of equality. All that we ask for is equality. The Minister rightly quoted other comments that the noble Lord, Lord Elystan-Morgan, made during our recent debate. However, it looks to me as though we cannot even get equality; that is basically what we have been told. Of course the geological reality is that water flows into England, but the Bill protects England while Wales is ignored. I wish to test the opinion of the House on the issue, which is vital to those of us in Wales.

Clause 156 [English and Welsh text of legislation]:

Page 86, line 3, after “made” insert “under an Assembly Measure or Act of the Assembly or”

The noble Lord said: In moving AmendmentNo. 15, I shall speak also to Amendments Nos. 16 to 25, which are minor, technical amendments. Amendments Nos. 15 and 16 ensure that an order made under Clause 156 applies to the interpretation of any word in the Welsh language in subordinate legislation made by Welsh Ministers or made under an Assembly measure or Act. As drafted, it would only apply to subordinate legislation made by Welsh Ministers.

Amendment No. 17 clarifies an uncertainty about the timing of the transfer of functions from the old Assembly to Welsh Ministers. It makes it clear that, in general, the provisions of the Bill come into force, including relevant amendments to and repeals of other enactments, when functions of the old Assembly transfer to Welsh Ministers.

Amendment No. 18 amends the Statutory Instruments Act 1946 to provide a procedure for the revocation of a statutory instrument made jointly by Welsh Ministers and a Minister of the Crown which is annulled by the Assembly. Her Majesty, by Order in Council, would revoke such an instrument. Amendment No. 19 amends the Copyright, Designs and Patents Act 1988 to give Assembly Members the same protection as MPs and MSPs in relation to breach of copyright during proceedings. Amendment No. 20 replaces references to the Assembly with references to Welsh Ministers in the Official Secrets Act 1989.

Amendments Nos. 21 and 26 repeal Section 154(3)(a) of the Government of Wales Act 1998 to reflect the fact that it will cease to have effect after this Bill comes into force. Amendment No. 22 removes a potential lacuna to ensure that any functions vested in the old Assembly during the gap between the May 2007 election and the appointment of the First Minister can be exercised by the former Ministers. Although unlikely, this might be necessary in an emergency.

Amendment No. 23 clarifies the provisions which ensure that the effect of Orders in Council under Section 22 of the Government of Wales Act 1998 will be preserved when the Welsh Ministers assume the Executive functions of the current Assembly. Amendments Nos. 24 and 25 remove any doubt about the procedure governing subordinate legislation made by Welsh Ministers to implement Community law. It is the procedure set out in Clause 59 and not the procedure in Schedule 11. I beg to move.

My Lords, we are very grateful to the noble Lord for having given us prior notice of these technical amendments. We have been able to study them and we are very happy to approve them. I take this opportunity to thank both Ministers who have helped us all during the passage of the Bill. I also say a special thank you to those who have helped me on the Opposition Front Bench, namely my noble friends Lord Henley, Lord Hunt of Wirral, Lord Kingsland and Lady Noakes. There was also a notable contribution from the Back Benches from my noble friend Lord Crickhowell.

My Lords, we on these Benches would like add to what has been said. I thank my noble friends Lord Thomas of Gresford and Lord Roberts of Llandudno for their strong support in conducting the Bill through the House. I would particularly like to thank the Ministers, the noble Lords, Lord Davies and Lord Evans, and also the noble Baroness who, I remember, participated at one stage earlier in the Bill, for the patient way in which they have dealt with the Bill and the tolerance they have shown towards a number of things that have been said during proceedings on the Bill.

I also thank the Bill team. We have just seen the amendments that the Minister has just brought forward. From what I can see, all of them are essential in terms of drafting, and that means that a great deal of thorough work has been carried out by the Bill team, which we very much appreciate.

On Question, amendment agreed to.

Page 86, line 10, after “made” insert “under an Assembly Measure or Act of the Assembly or”

The noble Lord said: My Lords, before moving Amendments Nos. 16 to 25, I should like to thank everyone for their great co-operation. In spite of the fact that we lost a number of votes, the whole exercise was conducted in a very good spirit. As I did at the end of Report, I again thank everyone, particularly those in the Box, for the great support they have given to my noble friend Lord Davies and me. I beg to move.

On Question, amendment agreed to.

Clause 161 [Commencement]:

Page 91, line 12, leave out from “Act” to end of line 23 and insert “so far as relating to functions of the Welsh Ministers, the First Minister, the Counsel General or the Assembly Commission,

(b) any provision of this Act so far as relating to the Auditor General or the Comptroller and Auditor General, (c) any other provision consisting of an amendment made in the Government of Wales Act 1998 by Schedule 10, and (d) the repeal by Schedule 12 of provisions falling to be repealed in consequence of any provision within paragraph (a), (b) or (c).”

On Question, amendment agreed to.

Schedule 10 [Minor and consequential amendments]:

Page 144, line 30, after “Ministers” insert “alone”

Page 150, line 16, leave out paragraph 29 and insert-

“29 (1) Section 178 (minor definitions) is amended as follows.

(2) In the definition of “the Crown”, after “the Scottish Administration” insert “, of the Welsh Assembly Government”.

(3) In the definition of “parliamentary proceedings”, after “European Parliament” insert “and Assembly proceedings within the meaning of section 1(5) of the Government of WalesAct 2006”.”

Page 151, line 3, after “(2),” insert “in paragraph (a), after “(a)” insert “, (ab)” and”

Page 154, line 38, leave out from beginning to “, and” and insert “omit paragraph (a)”

On Question, amendments agreed to.

Schedule 11 [Transitional provisions]:

Page 170, line 29, leave out from “functions” to “held” in line 32 and insert “of the Assembly constituted by the Government of Wales Act 1998, other than functions to which paragraph 24 applies, are exercisable-

(a) by the person who immediately before the beginning of the initial period”

Page 172, line 15, leave out “, subject to sub-paragraph (3), any other enactment” and insert “any other enactment apart from section 155(2) of that Act”

Page 178, line 33, at end insert-

“(9) This paragraph does not apply if the Welsh function was transferred as a result of the operation of paragraph 30(2)(b) (see paragraph 28 and section 59).”

Page 186, line 5, at end insert-

“(6) This paragraph does not apply if the function was transferred as a result of the operation of paragraph 30(2)(b) (see paragraph 28 and section 59).”

On Question, amendments agreed to.

Schedule 12 [Repeals and revocations]:

Page 201, line 3, column 2, leave out from “(3),” to “(b)” in line 5 and insert “paragraph (a) and, in paragraph”

On Question, amendment agreed to.

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Evans of Temple Guiting.)

On Question, Bill passed, and returned to the Commons with amendments.