3: Clause 7, page 4, line 32, leave out subsections (5) and (6) and insert-
“(5) The list must not include a person-
(a) who is included on any other list submitted for the Assembly electoral region or any list submitted for another Assembly electoral region,(b) who is an individual candidate to be an Assembly member for the Assembly electoral region or another Assembly electoral region,(c) who is a candidate to be the Assembly member for an Assembly constituency which is not included in the Assembly electoral region, or (d) who is a candidate to be the Assembly member for an Assembly constituency included in the Assembly electoral region but is not a candidate of the party.(6) A person may not be an individual candidate to be an Assembly member for the Assembly electoral region if he is-
(a) included on a list submitted by a registered political party for the Assembly electoral region or another Assembly electoral region,(b) an individual candidate to be an Assembly member for another Assembly electoral region,(c) a candidate to be the Assembly member for an Assembly constituency which is not included in the Assembly electoral region, or(d) a candidate of any registered political party to be the Assembly member for an Assembly constituency included in the Assembly electoral region.”
The Commons disagree to this amendment for the following reason-
3A: Because it is not desirable that, at any election of Assembly members, a person should be both a candidate to be an Assembly constituency member and a candidate to be an Assembly regional member
My Lords, I beg to move that the House do not insist on its Amendment No. 3, to which the Commons have disagreed for their reason 3A.
Since your Lordships’ House last debated this Bill, the Government have come forward with a package of amendments that I hope will form the basis of a cross-party consensus to achieve Royal Assent before the Recess. The package of amendments addresses a number of concerns quite properly raised by noble Lords during previous debates on the Bill. The arrangements for the composition of committees have been changed to make it clearer that the d’Hondt formula will be used only as a fallback if cross-party agreement cannot be reached. Concessions have also been agreed on the membership of the Assembly commission and the name of the Audit Committee. The debates on the details of the Bill have now been had. I hope that we can all join together to make the new powers work, rather than continuing to pursue old arguments.
The Bill’s passage and the success of the Assembly’s new powers rest in your Lordships’ hands today. If the Bill is delayed until the autumn, it will have to compete for scarce parliamentary time with other major legislation in the spillover. A delay would also condense into a dangerously short timescale a number of interdependent preparations that need to be made to implement the Bill; for example, the preparation of the new standing orders and a number of major pieces of secondary legislation, including the elections order, the disqualifications order, and the Schedule 7 amendment order. Unless the Assembly is able to start these preparations now, the success of the Assembly’s transition to the new powers could well be put in jeopardy. That is a view held not only by the Government but by the Assembly’s Presiding Officer, the noble Lord, Lord Elis-Thomas, and a former leader of Plaid Cymru, Dafydd Wigley. I am delighted to see the noble Lord, Lord Elis-Thomas, in his place as—I hope—we complete this Bill.
It is in that context that we consider the proposal in the Bill to put the voters back in charge by banning dual candidacy. The dual candidacy ban was an explicit manifesto commitment. Our 2005 general election manifesto stated that we would prevent candidates standing both on 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 back door even when they have already been rejected by voters. That is a clear commitment from a manifesto that we took to the country last May and on the basis of which we won a resounding victory, both in Wales and in the rest of the country. Both Houses have considered the matter at length and the proposal was supported by considerable majorities in the other place.
There can be no question at all of the Government giving way on this issue. The ban on dual candidacy will strengthen the integrity of the Assembly’s electoral system and the legitimacy of regional Assembly Members. It will put 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. I appreciate that the issue has aroused strong feelings, but we have a convention in this House that we do not stand in the way of a manifesto commitment of a democratically elected Government. To insist on this amendment would not only be a clear breach of that convention; it would put at risk everything else that the Bill seeks to achieve.
As the Liberal Democrat Assembly Member Peter Black has said, opposition to the proposed ban on dual candidacy is a,
“distraction from the real issues in the Bill”.
Mr Black is no fan of the proposed ban, but on that point I believe that he is entirely correct.
The Government have accepted a number of improvements proposed by noble Lords, and are seeking to move forward on the basis of consensus. The ban on dual candidacy is a manifesto commitment, and I hope that noble Lords will recognise that so that we can all join together in the interests of Wales.
Moved, That the House do not insist on its Amendment No 3, to which the Commons have disagreed for their reason numbered 3A.—(Lord Evans of Temple Guiting.)
My Lords, I begin by thanking the Government for accepting the thrust of our amendments on the composition and membership of the Assembly commission, Assembly committees and the title of the Audit Committee. These amendments were supported in the Division Lobby by substantial majorities of your Lordships and were clearly worthy of further consideration by the Government. We also had a new Welsh language clause, thanks mainly to the noble Lord, Lord Prys-Davies.
I am happy to acknowledge the Secretary of State’s rather negative but nevertheless welcome appreciation of our efforts when he said in the other place last Tuesday that he was,
“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”.—[Official Report, Commons, 18/7/06; col. 192.]
That is in contrast to the very tetchy, almost hysterical remarks about the Bill’s prospects by the Secretary of State, which were surprisingly rather echoed in the Minister’s opening speech.
We can safely claim to have thrown some light on a few of the darker corners of the Bill and to have properly done our job of scrutinising it. Of course, we regret that the Government did not accept more of the amendments that your Lordships supported. One of them, which the noble Lord mentioned, preserved the dual candidacy system introduced by the Government in the Government of Wales Act 1998. That system has served Wales reasonably well in two Assembly elections. The prohibition of such candidacies under the present Bill has been roundly criticised by a string of authoritative bodies from the Electoral Commission to the Arbuthnott commission. Robert Hazell, the authoritative director of the constitution unit of University College, London, described it as,
“nasty, parochial and seemingly driven by partisan motives”.
The change is undoubtedly partisan in that it is an attempt to protect the interests of the sitting constituency Members against the rivalry of regional list members. It is not irrelevant that all Labour members of the Assembly are constituency members and none are regional list members. Whether the prohibition will succeed in improperly protecting sitting constituency Members remains to be seen. What it will do, as Arbuthnott pointed out, is,
“restrict voter choice and potentially diminish the quality of constituency contests”.
Political parties will have to find more candidates and this increase may affect quality.
Nevertheless, the fact has to be faced that the political parties in Wales have already reconciled themselves to the requirements of this legislation even before its passage into law and are already appointing candidates to contest the Assembly election next May. There is therefore not much practical point in pursuing our amendment. However, we remain of the view that the Government were wrong to make the change that they have done for the reasons that they made it. It was not justified, except in terms of very dubious party political advantage. I do not propose to suggest to my colleagues on these Benches that we support the Government; I suggest that they abstain.
My Lords, I apologise for not being here when the debate started, but it started 25 minutes early, which is very good. At this moment, I should be a steward in the Royal Welsh Show, taking around overseas judges to judge educational stands—20 in all—but government business managers have decided that I must be here today. Of course, this is very important legislation for Wales, and I could not possibly be anywhere else on this occasion.
Motion A, resisting Amendment No. 3, is one of the key issues that we have debated in the Bill. We find the system of election banning dual candidacies very unsatisfactory indeed. There are only three countries where this practice takes place: Ukraine, Palestine and Thailand. They are the only ones, and Britain, by selecting this particular method of banning dual candidacies, has by association put Britain into the same locker. Although the Government may argue the case for banning dual candidacies—and we all know about the Clwyd West situation, a one-off situation that is quoted ad nauseam—the perception is that it is a rather dodgy system that favours one party. That may not be the fact, but it is the perception, and that is particularly unfortunate.
As the noble Lord, Lord Roberts of Conwy, said, the Electoral Commission is among those who have criticised this most vociferously. In its submission to the Welsh Affairs Committee, which was looking at this system, it was not convinced at all of the need for a change. Also, the Electoral Reform Society has condemned it as not appropriate for the situation in Wales. None the less, the clock is ticking, and there are matters in the Bill, particularly the possibility of getting primary legislative powers in due course, that are too important to ignore. We have to look at this overall, but we can say that we are most unsatisfied with the electoral system. In the other place, our Members voted against it, and that is the elected House. Here, we must come to some kind of agreement.
It is with a heavy heart that I look at this modification. The Minister will know that we proposed the single transferable vote as our preferred system, which was also the recommended, preferred system of the Richard commission. The Government will not accept that, one might suggest, because there are divisions of opinion in the Labour Party about one or two of the aspects. I do not want to go on for a long time about that; we have had that debate. We will look at this as a final act that may come back to haunt the Labour Party in due course.
My Lords, I declare an interest as the Presiding Officer of the National Assembly for Wales. I apologise for my absences, which were in pursuit of that function, at a time when the political situation in the Assembly is of some interest to noble Lords. I apologise that I was not able to take part in the early debates. I thank all noble Lords who have participated, especially those who kindly referred to some of my remarks in my absence. I have been very well represented on earth by my friend, the noble Lord, Lord Livsey. I, too, should have been at the Royal Welsh, but we look forward to being there tomorrow.
I also thank the Government for the way in which they have compromised on the package of issues. I may say something later, on Motion C, about committee structure. However, as regards this issue, I am still of the view philosophically that it is wrong. I have concerns about its implications, but I am prepared to vote for it because it is more important that we get on with the Bill, for the reasons that the Minister indicated.
My Lords, I shall make a few brief points; if it is of any comfort to the Minister, I do not intend to say anything on the later Motions.
In another place, the Government provided two reasons for us giving way on this issue, and the Minister repeated them this afternoon. His first reason was that the timetable made it essential that the measure go forward this afternoon, so that Royal Assent could be obtained before we rose. Ministers should never advance that argument, because they establish the timetable by which Bills are brought before Parliament; if it were so vital that the legislation should receive Royal Assent, they should have arranged for the Bill to come before both Houses in enough time for the debate to be carried through to its proper conclusion. There seem to be only two possible alternative reasons for their having got us into this situation: that it was intentional, so that they could blackmail the House and say, “You simply have to agree or we won’t get Royal Assent”; or that it was the result of incompetence. I will leave it to noble Lords to decide which, but I do not think it worthy of Ministers to treat Parliament in this way.
The second main argument advanced in another place, and again by the Minister this afternoon, was about the manifesto commitment and the Salisbury convention. I have spoken on the future of the Salisbury convention not just in debates on the Bill, but when we considered procedural matters and in a separate debate. The whole issue has been well set out in a major paper, which is in the Library. It is clear that we will have to give further consideration to the Salisbury convention, which, after all, had its origins in a wholly different situation. I am particularly concerned about its application when we are dealing with manifesto commitments on electoral matters. Manifestos are usually lengthy documents not read by the electorate, except sixth formers under instruction on how the constitution works, and it seems a dangerous principle to advance that we are bound in Parliament to observe the will of the elected Government because they mentioned a matter in a manifesto. That would enable a political party to change the electoral system to its advantage and prevent Parliament blocking the proposal.
The change proposed on this occasion may not be felt to be of such significance that Parliament and this House should stand and fight, but one can imagine circumstances in which a proposal to change the electoral system should be resisted by this House. I want to record that I do not think that this occasion establishes a precedent. We should not accept that the Salisbury convention and manifesto commitments always bind this House to accept any proposal by Government to change electoral arrangements. That would be wholly improper.
As my noble friend said, it was also argued that all the political parties in the Assembly had already acted on the basis that the Bill would pass therefore there was no point in going back on it at present, or at least that it would cause a good deal of inconvenience to do so. But the political parties have noted that the Government were determined to get their way on this matter—as the Minister said, there was no question of the Government giving way. Again, that is not a powerful argument. The political parties were merely facing the reality of the situation in the House.
I was fascinated to hear the speech of the noble Lord, Lord Livsey, because, having read the debates in another place, my understanding was that the Liberal Democrats and the Government had reached a deal on the Bill: because of the need to get it through without further delay, and the concessions mentioned by the Minister, the Liberal Democrats would not stand and fight on this issue. However, the noble Lord, Lord Livsey, said that the Bill was very unsatisfactory and repeated many of the arguments advanced by his party in earlier debates. After all, his party, along with all the opposition parties, voted against the measure in the Welsh Assembly—as they did earlier in our proceedings.
I find it bizarre that the Liberal Democrats decided not to stand and fight on this issue. It makes it impossible for the rest of us to do so, because we all know that, without their support, there would be no chance of winning the vote and sending the amended legislation back to another place. The Liberal Democrats have sold a pass on it; that is a great pity.
Having made those points, I accept that we must now agree to this highly unsatisfactory measure. I do not withdraw a single word of the criticisms that I uttered against it on previous occasions; they have been well summed up by my noble friend on the Front Bench.
I shall make only two further comments. First, as I do not intend to speak again this afternoon, I take this opportunity to thank both noble Lords who have spoken for the Government on this matter for the patience and courtesy with which they have responded to our thorough examination of this Bill. I do not apologise for that thorough examination; that is the job of this House, and we have obtained some notable improvements.
I wish the Assembly every good fortune in the period ahead and hope that it serves the people of Wales well. I hope that we do not come to regret any part of this Bill, and that we can feel that at least we have taken a step forward for the benefit of the Welsh people.
My Lords, I agreed with so much of what the noble Lord, Lord Crickhowell, said that I was sorry that towards the end of his contribution he chose to attack the Liberal Democrats for inconsistency. We have been consistent on devolution since the first part of the 20th century and we have done everything in our power to advance that cause. When one considers the noble Lord’s approach to devolution, given that he opposed it when he was Secretary of State, if the right reverend Prelate will forgive me, Damascus and conversion come to mind.
My Lords, it was almost as notable as the contribution of the noble Lord, Lord Crickhowell, to this debate.
We do not like the concept of the abolition of dual candidacy. When the Government of Wales Bill first came before this House—I was the main spokesman for my party on it—we of course proposed proportional representation by the single transferable vote method, which the Richard commission said was the way forward, but we accepted the regional list as a measure that was heading in the right direction. At that time—I am sure that the noble Lord, Lord Elis-Thomas, will recall this—we were all of the view that Members of the Welsh Assembly would be indistinguishable whether they were regional list members or constituency members: they would all be regarded as Members of the Welsh Assembly who were doing their best for Wales.
It is unhappily the case that the electoral arithmetic has worked out so that Labour Members are constituency members and members of other parties—very many but by no means all of them—are regional members. They all started on a level playing field when the Assembly came into being and each of them had a reputation to make. One feels that behind the abolition of dual candidacy is the fear of Welsh Labour constituency members of the Assembly—certainly the weaker ones—that those regional list members who have made their reputation will oust them from their seats. As the noble Lords, Lord Roberts and Lord Crickhowell, and my noble friend Lord Livsey said, the Welsh Labour Party has played purely a political game with the electoral arrangements. It is not right that we should have this presented to us, as the noble Lord, Lord Crickhowell, said a moment ago, as something that we must accept because it was tucked into the Welsh part of the Labour manifesto during the previous election.
The noble Lord, Lord Crickhowell, has now been converted to speak against the Salisbury convention. He may recall, as other noble Lords will do, that the very first act of the leader of my party in this House in the Queen’s Speech debate following the election was to say that we did not regard ourselves as ever having been bound by the Salisbury convention. We were not party to it in 1946; the conditions had completely changed and we would not accept it for a moment as an argument. The noble Lord, Lord Crickhowell, made the very important point that the danger lies in electoral politics. Although this deals with the Welsh Assembly, it is a very short step to interfering with how Westminster representatives are elected by tucking a similar proposal somewhere in the small print of a manifesto and relying on it at a later stage in relation to this House.
This party will abstain on this Motion because we want the Bill to be enacted but that does not for a moment minimise our hostility to the concept of the amendment—that is, the concept that dual candidacy is to be abolished—and it does not mean that we accept for a moment the validity of the Salisbury convention.
My Lords, the noble Lord, Lord Thomas of Gresford, spoke about the Government’s motivation having a somewhat partisan spirit. I should like to correct him on at least one matter: not, I hope, in a partisan spirit but in the spirit of historical accuracy. He said that his party was from the beginning of the previous century in favour of devolution. That clearly prompts the question why, when his party had the ability to do something about this—that is, when it was in power before the First World War—it did nothing.
I am pleased that the noble Lord, Lord Crickhowell, paid tribute to the generosity of the Government’s response to the debate. There clearly has been a remarkable debate and very valuable changes have been made in the course of it. I am also pleased that the noble Lord, Lord Elis-Thomas, is at last here: he speaks far better in his own right than when others purport to speak on his behalf. We should always listen with great respect to what is said by the Assembly.
On dual candidacy, the assumption is that we have so much political talent in Wales that it does not matter if those who lose out in marginal seats are out of power for at least four years. But our pool of talent is not so great that we can afford to dispense with their talent, and I guess that there will be a danger of unintended consequences in that people will be reluctant to take on marginal seats on the constituency basis.
I follow the Government for a number of reasons. First, this was a manifesto commitment—not to be followed slavishly but to be followed in cases such as this. Secondly, this House should be reluctant to interpose its view on election matters in relation to the elected Chamber. Thirdly, we have gone over this course so often that I think it gives democracy a bad name when losers become winners. Therefore, I shall support the Government today without hesitation.
My Lords, the noble Lord, Lord Anderson, asked why, at the beginning of the last century, the Liberal Party did not move ahead with Welsh home rule. He may remember the great dispute regarding Irish home rule, which took precedence. The first measure was proposed in 1913 by ET John, a Liberal MP who later joined the Labour Party. But then we had the First World War and, after that, the Liberal Party was not in any position to move forward. However, I should like to know when the Conservative Party has ever proposed a devolution measure for a Parliament or Assembly for Wales. I do not recall that happening. I can go through manifestos and candidates’ election addresses but there will be no mention of it at all.
Does the Salisbury convention tie the Government and the Conservative Party to supporting not only measures in the UK-wide manifesto but also those in Welsh or Scottish manifestos? As we are talking about an election to a United Kingdom Parliament, I suggest that the only commitments to which any party is bound are those in a UK manifesto, not those in a Welsh or Scottish manifesto. Perhaps I may read what the Labour Party’s UK manifesto said at the last election:
“In Wales we will develop democratic devolution by creating a stronger Assembly with enhanced legislative powers and a reformed structure and electoral system to make the exercise of Assembly responsibilities clearer and more accountable to the public”.
That is what this Government were elected on. They were elected not on a Welsh but on a United Kingdom manifesto, and I suggest that the Government look again at that particular proposal. They and we are totally committed to accepting the specific point that was only in the Welsh manifesto. For the future, I think that we should ask whom the convention does and does not bind.
My Lords, I know that my noble friend on the Front Bench is getting restive—I detect that from the back of his neck. He obviously wants to get on with the debate, but perhaps he will allow me to say two or three words as I have been involved in this exercise for a considerable time.
I think that, however one looks at it, on the whole one should support the structure proposed in the Bill. It gives increased legislative competence to the Assembly and that is the object of the exercise. The whole thrust of the report of the commission which I had the honour to chair was that more power needed to be devolved to Cardiff and that it should have the power to legislate directly in certain areas.
The Government have come up with a set of proposals which, I am bound to say, I find complicated and complex. But if they can do what the Government claim they can, that will go a very long way towards implementing exactly what the commission recommended and was in favour of. The danger in the proposed procedures is that the relationship between the request by the Assembly and its consideration by Westminster is still unclear. I do not know what that relationship will be. How will it work? One has to hope that, although the devil is in the detail, perhaps there is a bit of virtue as well, and that once it has bedded down and been given the opportunity to work, one will achieve the Government’s objective of greater legislative competence in Cardiff.
I would not claim that this is a good Bill; I could not do that because it does not do what we are recommending. When the White Paper first came out, I said that in all the circumstances I would give the Government a B+; I would not give them an A. That is still my position. It is a respectable B+; in university terms, it is a respectable 2:1. It is not quite a first, but it steps in the right direction, so for that reason we should support it.
My Lords, I am grateful to all noble Lords who have contributed to this 35-minute debate—or 30 minutes, taking off my introduction. I do not plan to answer the points made. However, I must say to the noble Lord, Lord Roberts of Llandudno, that the Labour Party does not have a UK manifesto. We have one for England, Wales and Scotland. The commitment to reform the electoral system was in all three. There are strong principles and views on the matter that we have been discussing.
I am extremely grateful to the noble Lord, Lord Crickhowell, for his generous remarks, but not so grateful to him for introducing the debate on the Salisbury convention, which looked as though it would dominate the discussion. It was good to hear from my noble friend Lord Richard, the chairman of the committee that produced the Richard report. With my academic record, a B+ would have been a brilliant result. I beg to move.
On Question, Motion agreed to.
4: Clause 27, page 17, line 12, at end insert “not belonging to the same political group”
The Commons disagree to Lords Amendment No. 4, but propose Amendment No. 4A in lieu-
4A: Page 17, line 14, at end insert-
“(3A) The provision included in the standing orders in compliance with subsection (3) must (so far as it is reasonably practicable to do so) secure that not more than one of the members of the Assembly Commission (other than the Presiding Officer) belongs to any one political group.”
My Lords, I beg to move Motion B standing in the name of my noble friend Lord Evans of Temple Guiting that this House do not insist on its Amendment No. 4, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 4A in lieu. I shall also speak to Motion C.
The amendments concern the composition of the Assembly Commission and Assembly committees in general. As a Government, we have always recognised that having a proper political balance is critical to the future working of the Assembly, as evidenced by the provisions in Clause 29, which I shall come to shortly. We do not contest the principle that the Assembly Commission should be made up of members from different political groups. Therefore, I am pleased to be able to respond to the call to enshrine this in the Bill by offering our amendment in lieu of Amendment No. 4.
It provides that standing orders should require that, as far as is reasonably practicable, no two members of the commission should be drawn from the same political group. This does not include the presiding officer who will chair the Assembly Commission. The amendment simply clarifies the intended effect of your Lordships’ amendment and provides for situations that may arise in the future when in theory there may be fewer than four political groups in the Assembly.
Amendment No. 5 seeks to replace Clause 29 with a new requirement to ensure that Assembly committees have regard to party balance. The amendment shows that all sides of the House are in agreement on the key issue that committees of the new Assembly should be politically balanced. That has always been the Governmment’s intention.
As I stressed on Report, the amendment does not address the situation where agreement is not reached on the composition of committees. The aim is for the Assembly to reach agreement on the size and make-up of committees. The composition of committees should not be a matter of party-political contention, but should be the product of cross-party agreement. That is clearly the most desirable situation, and it is the one that obtains here and in the other place as a matter of course. We are familiar with that process. But the reality of the electoral system for the Assembly is such that there is a risk that that may not happen.
That said, the Government recognise the concern that has been expressed in your Lordships’ House and in the other place during the passage of the Bill; namely, that the provision in the Bill relating to the use of the d’Hondt formula should be explicitly worded as a fallback provision. One or two speeches were made against the entire concept, but I wish to emphasis again that the d’Hondt formula is merely a mathematical formula for resolving difficulties on the allocation of places.
The noble Lord, Lord Thomas of Gresford, said:
“If using the d'Hondt system is a fall-back, why do not the Government set out primarily that the numbers of a committee and its make up are to be determined by agreement, and that in the event of disagreement the formula is to apply? ”.—[Official Report, 19/4/06; col. 1136.]
The noble Lord, Lord Henley, speaking for the Official Opposition, expressed concern that Clause 29 as drafted required the Assembly to contract out rather than contract in to d’Hondt. He wanted greater emphasis on the use of the formula as a fallback. That is what this amendment delivers, and I believe that with this amendment, noble Lords will be reassured that that is expressly the intention.
The other concern expressed during debates on this clause was that it disadvantages smaller parties and independent Members. In response, I point out that this amendment reinstates the provisions to ensure that independent Members and those belonging to smaller parties—I want to give that assurance to the noble Lord, Lord Elis-Thomas, who is in his place—are entitled to a place on a committee, subject to there being enough committee places to make that possible. We believe that that is crucial to safeguard the interests of independent Members and those who represent smaller political parties.
I hope that in listening to both your Lordships’ House and the other place, we have satisfied the concerns expressed while ensuring that the Bill gives direction as to what should happen in the event that parties within the Assembly fail to reach a consensus.
There were two concerns. The first is what to do about smaller parties and how to recognise that with four main parties, very small committees raise problems. The d’Hondt formula works perfectly with a committee of 10 and the present composition of the Assembly. It provides exactly the right proportions between the parties. The difficulty would be if the Assembly set up smaller committees. However, the Assembly will be mindful that, like all parliamentary assemblies, it wants to guarantee that its committees properly and fairly reflect its composition.
Secondly, there was rather more suspicion about the d’Hondt formula than was justified. It is merely a mathematical formula very widely used across the known democratic world to resolve the technical problem of how to produce fractions of a member and round them up into proper representation on a committee. The concern expressed was that the Government appeared to put such store by the d’Hondt formula that it was elevated to a significant principle in the Bill rather than being a mechanism for resolving difficulties. It is not a principle. I emphasise again that it is a fall-back position when agreement cannot be reached.
I hope that noble Lords will recognise that our amendments resolve that position and meet the two main objections raised at previous stages.
Moved, That this House do not insist on its Amendment No. 4 to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 4A in lieu.—(Lord Davies of Oldham.)
My Lords, I thank the Minister in particular for the conclusion in the amendment about fair representation on the Assembly Commission. We put forward the amendment and there was a lot of support for it throughout Wales. The Conservative Party supported it, too. Common sense has very much come to the fore. It is important with a committee of four and the presiding officer, which affects the whole of the Assembly, that it is fairly representative with one Member from each political party. So I would like to thank the Ministers and their teams for listening and accepting the amendment. Amendment No. 5A has replaced Amendment No. 5. We were greatly exercised by the d’Hondt formula on the original amendment—more exercised than the Minister is by this. I will not go into the difficulties of the calculations involved. As the Minister has pointed out, there is no doubt that minority parties are excluded from smaller committees. We want an inclusive Assembly that can consider all the matters brought before it.
We believe that Amendment No. 5A is a compromise. As the Minister said, it is a last resort to use the d'Hondt formula. This has been considered and although we are not entirely satisfied with the outcome, we can be satisfied that the Government have listened and come forward with a new amendment that meets nearly all our concerns.
My Lords, we are very glad that the Government have taken note of Lords Amendment No. 4, which we supported, and that they have proposed their own amendment which should ensure a better party political balance in the membership of the commission. It is of course a very important Assembly body and should represent the interests of the Assembly as a whole. It should certainly not be the tool of the governing party.
The Minister drifted on to Clause 29 and Amendments Nos. 5 and 5A. I propose to do the same in order to abbreviate our proceedings. Again we are glad the Government have taken note of our amendment. If my memory serves me right, we led on this amendment and the Liberal Democrats put their names to it. The Government have brought forward their own amendment whose emphasis is clearly on the duty of the Assembly to secure party political balance on its committees and sub-committees. I think that that emphasis is right. But, at the same time, one has to acknowledge that the Government may well be right in that it will not be easy to secure agreement and the support of two-thirds of the Assembly membership every time. At least we can say that the Assembly Members will have had their chance to resolve their difficulties before the d'Hondt formula comes into play. We believe that the Government's amendment is an improvement on the original proposal.
My Lords, I make one brief point. I appreciate the Minister’s comment that the amendment to Clause 29 is not a matter for party-political contention, and that this is now a fall-back position. I am glad to see that an Assembly Member who does not belong to a political group is entitled to be a member of at least one committee.
I have a small concern on Amendment No. 5A. New subsection (1A)(b) requires two-thirds of Assembly Members to vote in support of a Motion. I put on record my hope, although it may not be achievable, that that is a two-thirds majority on a free vote. The reason is that a committee may need to ask questions that are uncomfortable for the Government of the day. If it was a two-thirds majority on a whipped vote, the Government of the day could effectively veto the proposed constitution of such a committee; whereas, if it was two-thirds of the Members on a free vote, each Assembly Member could vote according to their conscience. I hope that such a position never arises, but I should like to have that concern flagged up on record at this stage. Otherwise, like other noble Lords, I greatly appreciate that the d'Hondt formula has now become a fallback position; I hope that it will remain as such.
My Lords, I support Motions B and C and inform the House—I know that many noble Lords and Members in another place follow events in the Assembly in detail—that, by using the device for electing Assembly committees, we have established the shadow commission which has met formally on at least three occasions. It indeed includes a member of each political group. Therefore, I very much welcome the amendment. I hope that, when the commission becomes statutory under the Bill, it will be able to pursue its activities in a non-party-political, non-partisan way. Having representation from each political group will help us to do that.
On Motion C, I also welcome the reference to independent Members. We seem to have more and more independent Members in the present Assembly. In the post-2007 Assembly, there may be even more. I hope that no such Member represents Dwyfor Meirionnydd, otherwise I am in difficulty. However, that proposal is very welcome—as, indeed, is the whole compromise on this matter.
I have been particularly concerned about the establishment, selection or election of committees and their size and function. I was especially concerned when d'Hondt appeared rather late in the day. D'Hondt did not appear in the White Paper or in early versions of the provisions; d'Hondt suddenly appeared in the Bill. I publicly admit to having carried on a bit of a campaign on this matter because d'Hondt would not have been an appropriate way to establish committees in the first instance. I accept the compromise that it is a backstop, but to set down in the Bill that all committees, with a few exceptions, would have to be constituted in that way would have meant that all committees would have had to have 10 members. Already, half of the Assembly would be committed to being members of committees. There is clearly inflexibility in that approach.
Now, we will have three stages: I hope a negotiated agreement for committee structures; if not, a two-thirds majority approving them by resolution. My noble friend Lady Finlay said that she is concerned that committees should ask critical questions of government. I hope that all Assembly committees will be willing and able to ask much more critical questions of government than they have done so far. She referred to a free vote in the establishment of committees. That is a very important principle. I am sure that she has already read the detail of Sir Jeremy Beecham's report. She will find a section there on scrutiny that advocates that very principle: that scrutiny committees in local government should be elected without a party whip and on a free vote. I hope that we can pursue that matter. I am especially anxious to encourage the scrutiny of government policy by its own supporters, those who are part of its vote, in any parliamentary institution. We have not perhaps seen as much of that in the Assembly as we might.
I had better not go on in this vein because I might be accused of being negative, which I would never want to be. I warmly welcome the willingness of the Government to compromise and the way in which Ministers have sorted this out. I pay tribute to the Liberal Democrats and all Members who have helped to bring this about.
My Lords, I am grateful to noble Lords who have spoken in this debate, particularly for the support from the two Front Benches and their recognition of the move that we have made in response to their arguments. However, I must insist again that d’Hondt was there as an aid, support and mechanism. It was never a principle for which this Government would die at the stake on these issues. The basis on which we expect to work is that the Assembly should be responsible for creating its own committees and composition by consensus.
I am grateful to the noble Baroness, Lady Finlay, for her comments. She will know that we appreciated her contribution that d’Hondt should be only a fallback position. It is an odd concept to say, “I am so much in favour of a free vote that I will establish in legislation what parties should do”. That is to misunderstand how parties organise themselves in Parliament. I cannot think how such legislation could ever be enforced on a political party, which is why we did not contemplate it. There are enough difficulties about free votes within a legislature without the law seeking to intrude and bring in an element of compulsion. Therefore, I do not accept that.
I am grateful to the noble Lord, Lord Elis-Thomas, for indicating that progress has already been made on the commission on the basis of representation, and for his understanding that we should bear in mind the need for a fallback position on the composition of committees. I am less enthusiastic about his concept of the independent Member, but I hear what he says about expecting more in Wales: we will just have to ensure that any seats are held by Labour.
On Question, Motion agreed to.
5: Clause 29, page 18, line 9, leave out subsections (2) to (9) and insert-
“( ) The standing orders shall include provision for ensuring that in apportioning members to committees and sub-committees regard is had to the balance of political parties represented in the Assembly.”
The Commons disagree to Lords Amendment No. 5, but propose Amendments Nos. 5A, 5B, 5C and 5D in lieu-
5A: Page 18, line 9, leave out from beginning to first “the” in line 12 and insert-
“(1A) The provision must secure that the appointments to the places on each committee are (if possible) determined by a resolution of the Assembly-
(a) which secures that its membership reflects (so far as is reasonably practicable) the balance of the political groups to which Assembly members belong, and(b) which (if the motion for it is passed on a vote) has no effect unless at least two-thirds of the Assembly members voting support it.(2) The provision must secure that, if the membership of a committee is not so determined-
(a) the person appointed to the first place on the committee is an Assembly member belonging to the largest political group, and(b) ”
5B: Page 18, line 38, after “of” insert “the provision made in compliance with”
5C: Page 19, line 1, leave out from “provision” to “the” in line 12 and insert “must modify the operation of the provision made in compliance with subsections (1A) to (7) with a view to securing that (so far as is reasonably practicable having regard to the total number of places on committees)-
(a) every Assembly member who does not belong to a political group is entitled to be a member of at least one committee, and(b) ”
5D: Page 19, line 16, after “under” insert “the”
6: Clause 30, page 19, line 18, leave out “Audit Committee or Pwyllgor Archwilio” and insert “Accounts Committee (or Pwyllgor Cyfrifon) or any other name that the Assembly chooses to allow through its standing orders”
7: Page 19, line 20, leave out “Audit” and insert “Accounts”
8: Page 19, line 22, leave out “Audit” and insert “Accounts”
9: Page 19, line 29, leave out “Audit” and insert “Accounts”
19: Clause 142, page 78, line 13, leave out “Audit” and insert “Accounts”
20: Page 78, line 19, leave out “Audit” and insert “Accounts”
The Commons disagree to Lords Amendments Nos. 6, 7, 8, 9, 19 and 20 but propose Amendment No. 20A in lieu-
20A: Page 19, line 19, at end insert “or by such other name as the Assembly may determine; and, if the Assembly makes such a determination, references to the committee in-
(a) any enactment (including any enactment comprised in or made under this Act) or prerogative instrument, or(b) any other instrument or document,have effect accordingly.”
My Lords, I beg to move that this House do not insist on its Amendments Nos. 6, 7, 8, 9, 19 and 20, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 20A in lieu.
Your Lordships’ amendments, tabled by the Conservatives, seek to re-name the Assembly’s Audit Committee as the Accounts Committee. The Government do not agree with the Conservatives’ wish to dictate a name to the Assembly, particularly one that the Assembly has expressed a preference for avoiding so that the committee is not confused with the House of Commons Public Accounts Committee.
However, the Government recognise that the Assembly should be able to decide for itself what this committee should be called, as the Liberal Democrats stressed during consideration of the Bill. We therefore propose an amendment in lieu which explicitly gives the power to the Assembly to change the name of this committee if it so desires, while avoiding the technical defects of the amendments from Report stage. I hope we can all agree that it is appropriate for the Assembly to decide on its committee names and I therefore ask the House to support the amendments.
Moved, That the House do not insist on its Amendments Nos. 6, 7, 8, 9, 19 and 20, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 20A in lieu.—(Lord Evans of Temple Guiting.)
My Lords, the Government are right to leave the door open to the Assembly to change the name of the Audit Committee. There is a strong case for calling it an accounts committee, as my noble friend Lady Noakes pointed out in earlier debates, because its work will approximate in character the kind of work done by the Public Accounts Committee in this Parliament. At the same time, I realise that considerable consequential changes would be necessary if the name of the committee were changed now. The Government are right to leave the Assembly to assess the situation.
My Lords, we too think that this is a very satisfactory outcome. The amendment is a combination of amendments originally tabled in Committee by both the Conservatives and the Liberal Democrats to allow for a wider choice in the name of the committee and we are pleased that the Government have now brought forward Amendment 20A. It will allow the Assembly to decide on the name, which takes us to the place we wanted to reach. We should like to thank Ministers for that.
17: Clause 94, page 51, line 42, 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”
21: Clause 149, page 82, 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”
22: Clause 150, page 82, line 40, 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 Commons disagree to these amendments for the following reason-
22A: Because it is desirable that an Order in Council under Clause 150 should be able to include any provision having retrospective effect which appears appropriate
My Lords, I beg to move that the House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A.
I appreciate very much the acuity with which the noble Lord, Lord Kingsland, has scrutinised these and other provisions of the Bill. Our debates in this House and in another place have quite properly required the Government to explain and justify their proposals in detail. I note that Lords amendments recognise the principle that retrospective provision may be necessary in certain circumstances. I note also that the shadow Attorney-General in another place said on 20 July at col. 220 that he fully accepted that this provision was intended to rectify technical omissions. We are talking about provisions that would be used only on rare occasions. Concerns were expressed in another place that if any individual’s rights should be affected, they should be guaranteed redress. These concerns are important and I recognise that noble Lords opposite have quite properly pressed further and further on a point on which they wanted reassurance; I hope that I can give that reassurance.
These constrained powers to make retrospective provision will enable technical points to be dealt with which protect the position of a person who acted in good faith on Assembly legislation only to find that there was some doubt over whether that legislation was within the Assembly’s legislative competence. The power in Clause 94 would allow the Assembly’s legislative competence to be corrected retrospectively should that prove necessary to give proper effect to the intention of Parliament in granting that competence in the first place, and when not to do so would leave the law unclear or could be detrimental to third parties.
Noble Lords rightly asked about cases where it might be to the detriment rather than the benefit of third parties to correct the law retrospectively. What if a court had already decided in their favour? I have confirmed in a letter now available in the Library, in response to points raised on Report by the noble Lord, Lord Kingsland, that the Government would not seek to use these powers to undermine court proceedings where the vires of an Assembly measure was at issue. I am happy to add that the Government would not make an order that retrospectively altered a court’s decision and that if any future Government should seek to do so, clearly Parliament could be expected to block it. The Government could not alter the fact that the court had taken a particular view on the vires of an Assembly measure but they might need to take action in consequence of a court’s decision. It is not possible to predict what that action would be, but one cannot rule out the need to include retrospective provision.
In another place, the shadow Attorney-General asked for,
“a clarifying statement to make it absolutely clear that if it is established that private legal rights are effective retrospectively in any way, the person affected will be entitled to redress”.—[Official Report, Commons, 18/7/06; col. 221.]
That has to be right in principle. I find it hard, though, to imagine circumstances where that might become an issue given that the purpose of these provisions is, as I have said, to deal with technical points and to ensure that persons who acted in good faith on the basis of Assembly legislation are not disadvantaged if it is subsequently found to be ultra vires.
However, I can offer reassurance in this sense: any Assembly measure would have to treat private legal rights fairly in the first place. If it did not, and therefore was not compatible with the European Convention on Human Rights, it would not be law and no amount of retrospective provision under the Bill could make it law. If, however, the measure treated those rights fairly and it was only a technicality which meant that some provision in it was ultra vires, then to remedy the technicality would simply restore what was intended to be the status quo. Any persons affected by provisions in the measure would continue, therefore, to be entitled to the compensation or other redress provided for in the measure itself.
I would expect any Government to weigh these issues very carefully and to satisfy themselves that no person’s rights would be affected without proper redress if retrospective provision was made. If they did not, of course, Parliament could block the proposal, as I have said before. Ultimately it would be for the courts to establish whether an individual was legally entitled to redress or greater redress than already offered, and it is proper that the court should be the ultimate arbiter in those circumstances.
In the light of the reasons I have given, I hope noble Lords opposite will accept the Government’s view that these amendments should not stand. I beg to move.
Moved, That this House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A.—(Lord Evans of Temple Guiting.)
rose to move, as an amendment to the Motion, leave out from “House” to end and insert “do insist on its Amendments 17, 21 and 22”.
The noble Lord said: My Lords, the charm and diplomacy of the Minister is greatly appreciated; but, I fear, as far as I am concerned, to no avail. I do not find his reassurances sufficiently reassuring. It may be intended that the clause should deal with technical points; but the consequence for the private individual of dealing with those technical points continues to worry the Opposition.
Our constitution abhors retrospection. When a citizen’s private rights are breached and he is damaged as a result, he is invariably entitled to redress. Retrospective powers enable the Government to abandon that principle. That is why we challenged Clause 94(4) on Committee and Report.
At Third Reading we offered the Government an olive branch. We suggested that retrospective powers would be acceptable as long as such powers were not exercised,
“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, 13/7/06; col. 840.]
To this proposal we have received an ominously evasive response—first from Ministers in this House and then from the honourable Member Mr Ainger in another place, who said:
“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”.—[Official Report, Commons, 18/7/07; cols. 218-19.]
I cannot decide whether that is a profoundly ingenuous or profoundly disingenuous remark. In either case, such a proposition should never be allowed to justify retrospection. Of course the public interest should play a part in deciding what the law should be in the future; but it has no part to play in determining the application of existing private rights. That kind of thinking engendered the Acts of indemnity so beloved of Tudor and Stuart monarchs.
Mr Ainger claimed that there remained the protections of the Human Rights Act and of our own parliamentary procedures. However, in continental jurisprudence, the rule against retrospection is much less well entrenched than in our own common law. Despite the Human Rights Act, for example, the Government were perfectly happy to claim the other day that the Compensation Bill conformed with the convention even though it contained a clause that is plainly retrospective. That is an example of the Human Rights Act undermining the traditional protections of common law.
As to the protection of Parliament, at least the Burma Oil legislation in 1965 had to go through the full legislative procedures of both Houses. In this case, there would be a single vote on an unamendable draft order after derisory debate.
From the evasiveness of the Government responses, I can only conclude that they do indeed intend on occasions to alter existing private rights retrospectively and in circumstances where those who lose out as a result will suffer. I remain astonished that they should subscribe to something so meretricious. I beg to move.
Moved, as an amendment to the Motion, leave out from “House” to end and insert “do insist on its Amendments 17, 21 and 22”.—(Lord Kingsland.)
My Lords, at Third Reading, I expressed the concern felt on these Benches about the introduction of retrospective legislation in any form. I received assurances from the Minister at that time and those assurances were expanded on by Mr Ainger in another place, when he made the Government’s policy abundantly clear. Although our reservations remain, we are of the view that it would be extraordinarily difficult for this Government, or indeed any Government, to attempt to introduce legislation that altered the rights of individuals in the way that we discussed at Third Reading. Therefore, we are content for the Government to have their way without giving them any support if there is a vote.
My Lords, I am afraid that the noble Lord, Lord Kingsland, and I are not going to agree on this. We have been over this ground a number of times, but I have a few things to say for the record.
The concerns expressed about retrospective provision affecting the rights of individuals, and the Government’s assurances on that point, are now very clearly on the record in both Houses. The Government would not seek to make retrospective provision while a court case was proceeding, without the knowledge and leave of the court. They would not seek to change a court’s order retrospectively although they might need to take action subsequently in the light of that decision.
The noble Lord, Lord Kingsland, asked what redress an individual had in relation to retrospective provision made in such subordinate legislation. The individual could take a claim to the courts. An Order in Council under Clause 94 that breached human rights would be struck down by the courts or declared incompatible with those human rights depending on the circumstances.
In considering whether to make retrospective provision, the Government would take into account how private interests might be affected. If they foresaw that there might be some unjustifiable detriment to individuals for which the Assembly legislation did not already provide redress it is inconceivable that they would seek to make retrospective provision.
Finally, Parliament would be able to reject any proposal which it felt was an inappropriate use of the power to make retrospective provision. For those reasons I invite the House to reject the amendments.
My Lords, I am most grateful to the Minister for responding in his characteristically generous way. He demonstrated the difference between us in a very short phrase, when he referred to “unjustifiable detriment”.
We believe that the key to making retrospectivity acceptable in this case is that there should be no detriment. Yet the Government, themselves, in forming the order, would take a view about whether the detriment would be justifiable and whether, therefore, an existing private right could justifiably stand. In my submission, that is totally against the rule of law and therefore to us wholly unacceptable.
I listened with care to what the noble Lord, Lord Thomas of Gresford, said. He and I have worked together on many occasions and, although we represent different political parties, I think that we can say that we are good colleagues. When the noble Lord stood up at Third Reading, he said in the first sentence of his observations, “We support this amendment”. Indeed, it is fair to say that we discussed its terms before I finally decided on the text. He has now indicated that he will not support it in the Lobby, although he also said that he would not vote against it.
When he was in full flight at Third Reading, he checked and swerved. He was perfectly entitled to do that; but, in doing so, again he undermines any chance that we have of winning a vote on the amendment now. So, despite the fact that we believe very strongly in the principles that the Government are now undermining, we shall not press the amendment to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.
18: Clause 103, page 57, line 37, leave out from “Parliament” to end of line 44
The Commons disagree to this amendment for the following reason-
18A: Because it is important that the Secretary of State should have discretion to refuse to lay before Parliament an Order in Council for a referendum about the commencement of the Assembly Act provisions which has been requested by the National Assembly for Wales
My Lords, I beg to move Motion F standing in the name of my noble friend Lord Evans of Temple Guiting, that the House do not insist on its Amendment No. 18, to which the Commons have disagreed for their reason numbered 18A.
The House will appreciate that the amendment seeks to remove the Secretary of State’s discretion over whether 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 timescale. It is right that such a request cannot simply be sat upon, but the amendment would compel the Secretary of State to lay a draft order before Parliament within 120 days.
We had intensive debate on this matter at Third Reading, and I recognise the concerns that have been expressed by noble Lords—principally that a hostile Secretary of State should not be able to frustrate or obstruct the will of the democratically elected Assembly, particularly when it had passed the measure on a two-thirds majority. This concern was expressed by the noble Lords, Lord Livsey and Lord Thomas of Gresford, in that debate. I recognise that this is a point of principle for the Liberal Democrats. However, I genuinely believe that the Bill as originally drafted meets their concerns and serves the cause of the Assembly better than the amendment proposed by the Official Opposition.
I repeat what I said at Third Reading. Any governing party in London that sought to block a decision by two-thirds of Assembly Members in Cardiff would pay a heavy political penalty. 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 two-thirds or more of Assembly Members, the consequences would be grave, both politically and constitutionally.
In the event of a hostile Secretary of State being foolish enough to block a referendum—that was the concept envisaged by noble Lords when expressing anxiety about this—the amendment, as I said, would do nothing to restrain him. In such circumstances, he would simply have the referendum order thrown out in a whipped vote in the House of Commons. The referendum could not be a defence against a Secretary of State determined to pursue such a wilful cause.
The most effective check on such recklessness is not constitutional but political. A referendum request approved by two-thirds of Assembly Members would have the momentum to carry it forward. It cannot be conceived that a Secretary of State would risk political annihilation in Wales in the face of such a broad consensus. I know noble Lords on the Liberal Democrat Benches said that it might not always be a Secretary of State from my party, with its broad sympathy for the ambitions of the people of Wales, and that a Conservative Secretary of State might think differently, but I do not think political reality could envisage such a cause.
I shall respond to the points raised in the debate we had at Third Reading, and in the other place, when we considered this issue. The Order in Council process is a mechanism to bring about the referendum. If an order is to be laid before Parliament, that is properly for a Minister of the Crown. The Assembly cannot lay the order; neither would it be constitutionally appropriate for the Assembly to be able to force the Secretary of State to lay the order before Parliament. The clear line of constitutional accountability that we are seeking to preserve in this Bill is that the Secretary of State, as a member of Her Majesty’s Government, is accountable to Parliament, not to the Assembly. It is just not appropriate, as I think is being sought on the Opposition Benches, for a Minister who is accountable to one legislature to be instructed to do something by another.
I repeat what I said for the Government at Third Reading: our objection to this amendment is not that we wish to aggrandise the role of the Secretary of State. Indeed, I do not see a real difference of principle between the concerns expressed by the Liberal Democrats and our position. The Government’s objection to the amendment is that we do not think it is constitutionally appropriate. I ask noble Lords opposite to consider the significance of that.
There are also, at a much lower order of consideration, practical reasons why the Secretary of State should not be constrained to lay a draft order within 120 days. In the event of there being an unsympathetic UK Government, the order would certainly not at that stage have been agreed. What if the Assembly were not happy with the content of the draft order that was produced? The clock would start ticking, and there would be no way of stopping it to allow further time for negotiations before the draft itself had been laid.
In summary, the Government reject the amendment because we have a clear constitutional process to follow, which the amendment would distort. There are, in addition, practical considerations to take account of, and, fundamentally, if the collision were such that the Government in the United Kingdom objected to the referendum of the people of Wales passed by two-thirds of the Assembly, there would be high politics at play, with serious consequences for a Government that pursued such a course. Any attempt to obstruct the process, after a referendum request had been approved by the Assembly, would provoke a constitutional storm. It is not possible to envisage a Secretary of State opting to act in such circumstances. If he were bent upon such a course, he could take other action to frustrate the will of the National Assembly. This amendment would not be beneficial, which is why I hope that the House will support the Government’s position. I beg to move.
Moved, That the House do not insist on its Amendment No. 18, to which the Commons have disagreed for their reason numbered 18A.—(Lord Davies of Oldham.)
My Lords, given all the circumstances that the Minister has outlined, one is tempted simply to ask him why on earth the Secretary of State hangs on to this power. I listened very carefully to the Secretary of State’s rejection of the amendment in the other place last week, and I have listened to the noble Lord’s remarks today. Frankly, I am not convinced that the Secretary of State’s alternative role of blocking an Assembly resolution asking for a referendum, backed by a two-thirds majority of the seats, instead of laying an order before Parliament to authorise the holding of a referendum is remotely justifiable.
The Government’s view is that the Secretary of State cannot be compelled in this regard. The Secretary of State has said that and we have heard it again today. The relevant remarks of the Secretary of State are recorded at col. 232 of Commons Hansard of 18 July. He argued that he could not be compelled to act by the Assembly. However, he is not being compelled to act by the Assembly but by this legislation, passed by this Parliament. Clause 103(3) states that the “Secretary of State must”—I emphasise the word “must”— “within … 120 days” of being told of the resolution by the First Minister,
“(a) lay a draft of a statutory instrument containing an Order … or
(b) give notice in writing to the First Minister of [his] refusal to do so”.
We have heard Ministers argue that the Secretary of State must have time to prepare the statutory instrument and to consult, but time is provided by the clause, which was drawn up by Ministers. They specified 120 days.
As I made clear at Third Reading, the purpose of our amendment was to eliminate the Secretary of State’s right of refusal to lay an order—a refusal that would also deprive Parliament of the opportunity to express its wishes in response to the Assembly’s call for a referendum. Again, I ask why on earth he needs this power. I am still convinced that it is wholly wrong to allow the Secretary of State to thwart the Assembly’s will and as a result to deprive Parliament of its rightful opportunity to express its wishes regarding a referendum. The Government have failed to justify this power, but we have to view it in context, and that context is probably one in which a referendum is a very remote possibility indeed.
The fact that the referendum to bring in Part 4 is currently out of political range means that the Bill is heavily dependent on the complex, gradualist mechanism of Part 3, which even the noble Lord, Lord Richard, finds complex. We have made clear that we believe that Part 3 is seriously flawed. It is one of the reasons why I believe that the Bill will not provide a lasting settlement.
I hope that those who attend the Secretary of State’s reception in Cardiff tomorrow to celebrate a “new dawn of devolution”, as he describes the Bill, are not befogged by the hype and remember the Explanatory Notes’ modest description at paragraph 309 on page 62 that,
“with minor exceptions … the Bill does not itself confer additional legislative powers on the Assembly; rather, it provides a mechanism whereby such powers can be conferred on a case by case basis as appropriate, with Parliamentary consent”.
That is what the Government’s own Explanatory Notes say. That is the true extent of the enhanced powers granted to the Assembly. The real enhancement is in the power of Ministers, including the Secretary of State.
I thank the Ministers who have dealt with our debates, over seven days in all on the Floor of the House. I also thank the Bill team who have supported them, and all who have participated in shaping this legislation. I shall not be pressing my colleagues to vote against the Government on the Motion.
My Lords, I believe that contained in Motion F is the recipe for some conflict in the future. Those of us who soldiered on, for example in the 1979 referendum on whether there should be a Welsh Assembly, can conceive of any kind of outcome that could occur. Although the Minister pleads sweet reason to us—and I accept what he said, because he said it in good faith—there is no doubt that a whole series of circumstances could come along to dog Wales yet again on getting the kind of powers that it needs to rule the country with resolution and intelligence and to release the energies of the Welsh people.
Even though the Assembly has voted by two-thirds in favour of an Order in Council to hold a referendum, the Secretary of State can intervene. As the Minister said, there may be a hostile Secretary of State who might be inclined to deny the opportunity in spite of a two-thirds vote. We must ask, certainly in constitutional affairs and constitutional reform: which Secretary of State? Who is to say that the shelf life of a Secretary of State for Wales will be very long? Given that more powers are being transferred to Wales—I hope not until there are full primary legislative powers for Wales—there could be a situation where “the Secretary of State” would not be the Secretary of State for Wales but would be the Secretary of State for Constitutional Affairs. The Bill is so phrased that a Secretary of State for Constitutional Affairs might have a radically different view of whether the referendum should go through an Order in Council and be accepted. The Bill says that he or she has the right to refuse it; you only have to look at Clause 104(3)(b) to see that staring you in the face.
We have made quite a lot of progress with the Bill in the way that Wales is eventually creeping to democracy. We have a long way to go, but this is undoubtedly some progress. There are a lot of convoluted problems with the Bill, which is why, as the noble Lord, Lord Richard, said, it is only worthy of a B-plus. I sincerely hope that we will end up with a proper constitutional settlement for the whole of the United Kingdom; a federal constitution where the powers lie where they should do. The Richard commission report had a good go at that by saying where the powers should lie in what would be a Welsh Parliament or Welsh Assembly with primary legislative powers. The issue about where the appropriate powers should lie has to be sorted out one day. We should not really have this long march around all these bends, corners and obstacles to get there.
There is no doubt that there has been good will on all sides. I thank the Conservative Front Bench, whom we worked with closely on many of the amendments. Some of the things that we wanted have been achieved. I thank the Minister for that, and the Bill team who have worked extremely hard. I also thank the Presiding Officer of the National Assembly—the noble Lord, Lord Elis-Thomas—who put his case today far more eloquently than I did, although I attempted to do it despite what the noble Lord, Lord Anderson, said earlier. There has been lot of co-operation.
The Bill will do as a constructive stop-gap to give more power to Wales. Let us hope that Wales will get the proper legislation that it deserves not too long in the future.
My Lords, I hate to disagree with my spokesperson in this House over the past few months, but this is much more than a legislative stop-gap. I do not want to excite the noble Lord, Lord Roberts of Conwy, but the Bill lays on the statute book all that is necessary for the proper governance of Wales in the 21st century. That is a significant step forward.
There has been a lot of imaginative constitutional talk in this debate. Could we ever conceive of a situation in which a Secretary of State of the United Kingdom Government would take a certain view about a potential referendum in Wales without there having been full consultation, even before the Assembly adopted a resolution requesting a debate? Surely we will not have a political party in power in the United Kingdom Government that is not represented in the National Assembly. Unless some English nationalist party appears, I cannot imagine such a thing; some would argue that we have one already on the Benches opposite, but I shall not go into that contentious area.
This is a constitutional convention. Any resistance by a Secretary of State would be more likely to bring about the demise of the great historic office held with such distinction by the noble Lord, Lord Crickhowell, and others in this House. The Secretary of State is a constitutional invention in terms of the Bill. We are in the conventions of the quasi-federalism that we are struggling towards within the United Kingdom, on which I agree with my noble friend Lord Livsey. Therefore, I welcome the Bill and the Motion.
I join in the congratulations to officials, who are mainly officials of the National Assembly—or the Welsh Assembly Government, as we will have to learn to say—and the Wales Office. They have served us well in drafting the legislation. I am especially grateful to the noble Lord, Lord Crickhowell, for his kind expression of good wishes for the future of the Assembly and for what it may or may not do. In fairness, I am sure that his party has played a great role in the development of the Assembly. We have had consensus about important areas, especially the separation of powers which are not covered by the amendments, so I shall not go into them. To me as Presiding Officer through a difficult period in the first two Assemblies, the separation between the Executive and legislature is the clearest signal that what we have here is proper parliamentary democracy.
My Lords, I am grateful to the three noble Lords who have spoken. Once again I marvel at the ability of all Members of the House to be able to translate relatively minor amendments into significant constitutional principles. As the noble Lord indicated, that has kept us on our feet for seven days during the passage of the Bill. I had hoped for a little rest on the seventh day, but we do not seem to be getting any due to the scrutiny of Members on the other side of the House.
This is a fairly minor amendment. It is about laying the order within 120 days. I emphasise that it does not make any material difference. If the United Kingdom Government of the day did not support the order passed by the Assembly with a two-thirds majority, they would be into high politics. If we passed this amendment, a Government would find other processes to thwart a referendum called, because they would clearly be taking a position of substantial opposition to the declared will of the majority of the people of Wales.
The Bill as drafted tries to take the point into account by quite properly forcing the Secretary of State, who is answerable to the United Kingdom Parliament, to face up to the demand for a referendum. In the unlikely event of a Secretary of State refusing to lay the referendum order, he would have to explain his reasons for doing so and would be publicly accountable for those reasons. That would be the basis of the political decision-taking that would result from such a crisis—because it would be a crisis. In such circumstances, this amendment would be immaterial to the decisions of Government.
I am grateful for noble Lords’ constructive work on the Bill. We have laboured long and hard in the vineyard and it is good to see the results. I am grateful to the noble Lord, Lord Roberts, who said that the Bill had its merits—although in a rather minor key. He did, however, express a broad commitment to the development of devolution, which we welcome in the main opposition party. He has had rather more enthusiastic support from some of his Back Benches, and we have noted that, too. That augurs well for further progress.
I also recognise that the Liberal Democrat Party is committed to devolution and regrets that the Bill does not go far enough. However, the noble Lord, Lord Elis-Thomas, with his responsible role as Presiding Officer of the Assembly, accurately expressed the position—namely, that the Bill opens up the process of enhanced powers for the National Assembly, of which it can avail itself through judicious consideration of Orders in Council.
The Bill marks a significant step in the eventual transition of the National Assembly from its present role to that of a much more enhanced Assembly with fuller devolution powers. The Bill deserves support in those terms. It certainly does not deserve to be frustrated by this rather minor amendment at this stage. I therefore hope that the House will support the government Motion.
On Question, Motion agreed to.