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7 pm
That is all we are asking. We are not asking for anything terrible. We are not saying that the Welsh Assembly should not be able to function properly. Those of us who raised these matters during an earlier devolution debate were immediately castigated as anti-devolution, but that is not the position. Previous debate has shown how difficult it is to handle these matters without a constitutional settlement.
In an earlier debate, my hon. Friend the Member for Cardiff, West mentioned a dispute resolution system, and mentioned words such as "resource allocation system". He argued that all devolution systems should have such provisions within them. Well, the mechanism before us does not. I have referred to some of the matters that some of us tried to raise during the referendum campaign, which are seen by others as antipathetic to devolution.
We have heard this evening about defence and foreign affairs. Those matters are not the subject of the amendment, but, by analogy, there is no reason why the powers of the Secretary of State for Defence and those of the Secretary of State for Foreign and Commonwealth Affairs should not be transferred. Apparently, such powers are related to Wales and are thus able to be transferred by Order in Council in an hour and a half.
My right hon. Friend the Secretary of State says that there is no intention of pursuing that course. The White Paper did not refer to such transfers, but surely these matters are so fundamental that it should have done so. I invite my right hon. Friend to accept, or to consider constructively, one or other of the amendments--in other words, either a referendum or an Act of Parliament. There is a choice between one or the other, but a fundamental limitation should be placed on the transfer of fundamental taxation powers merely by Order in Council.
Mr. Ancram:
I support the amendment of the right hon. Member for Llanelli (Mr. Davies), especially in the light of his closing remarks. Indeed, we are looking for a safeguard, which should take the form of an undertaking
The amendment reflects the lack of success that we have had in trying to pierce the Secretary of State's intransigence and in endeavouring to get it through to him that we are not trying to destroy his Bill. We are not trying to dilute devolution. We are merely trying to provide some safeguards that will give people confidence that we are engaged in devolution within the United Kingdom, but not in a process that will lead inevitably to the break-up of the United Kingdom.
The Secretary of State says over and over again that the sovereignty of Parliament will ensure that the break-up of the United Kingdom cannot happen. The more I have listened to the right hon. Gentleman, the more I have come to the conclusion that he is talking not about the sovereignty of Parliament but about that of government. The right hon. Gentleman is saying that Parliament can always turn down an Order in Council at the end of the day if it is put before it. He argues that Parliament does not need to approve it, and that, in that event, Parliament has exercised its supremacy and sovereignty.
The Secretary of State then says, however, that it is up to the Government of the day to decide whether these matters will be heard by primary legislation or by an Order in Council. The right hon. Gentleman is saying--there may be some terrible element of constitutional truth in this--that we have a system where the Government can decide and deliver, through whipping their majority, anything that they may want to introduce.
If that is the position--I hope that the Secretary of State will respond when he replies to the debate--what is the distinction he sees between an Order in Council and an Act of primary legislation? Why do we have primary legislation? The answer is to give the House of Commons the chance to scrutinise, debate, amend and, if necessary, change proposed legislation that is put before it.
Let us consider the amount of detail that will be in the draft order and contemplate that, at some stage in future, another Order in Council may be introduced containing an enormous amount of detail, not one item of which will be changeable. The House of Commons would be asked to take it or leave it. If the Government put such an order before the House of Commons with a whipped majority behind them, it will be agreed to. In terms of creating confidence in devolution and in what is being transferred, that surely cannot be the right approach.
We return to what the Secretary of State said last Wednesday evening. When the hon. Member for Merthyr Tydfil and Rhymney asked about the transfer of substantial power from the Home Office, he asked whether that would be done by order or by primary legislation. The Secretary of State said:
The Secretary of State said, however, that legislation would
It is not being anti-devolution or anti-assembly to say that that is selling the House of Commons a pig in a poke. We do not know what we are being asked to accept or support. When the Secretary of State is asked what he means by "significant" and he is given examples, he says that he cannot answer the question because he is not proposing such a thing. However, I understand that this is a constitutional Bill. That is why consideration of it in Committee is being taken on the Floor of the House.
It is a constitutional measure which is not just for today, because it is supposed to create a long-term assembly; yet, at the most important or crucial part of the Bill--the power to transfer functions now and in future--we have what can be described only as a foggy mass, without one definition or distinction that allows the House of Commons to know how things will be done.
The hon. Member for Ynys Mon (Mr. Jones) referred to Northern Ireland. I know what it is like to govern by Order in Council, and I stood at the Government Dispatch Box on a number of occasions when we renewed the order
that allowed us to do so. I said over and over, "I hope this is the last year that we have to do this, because it is not a fully democratic way of making decisions in the House."
Mr. Öpik:
Surely the right hon. Gentleman accepts, as the hon. Member for North Essex (Mr. Jenkin) did, that comparisons between Northern Ireland and Wales are wholly inappropriate in this debate.
Mr. Ancram:
I do not make that comparison. I was taking a point that was raised by the hon. Member for Ynys Mon, who did make that comparison, which he pushed. I saw what Orders in Council did, and hon. Members from Northern Ireland asked over and over for primary legislation in the House to take through their legislation.
If we leave these two amendments as they stand, they will build into the Bill something that will cause enormous confrontation. In relation to taxation powers and the powers of the Chancellor of the Exchequer, it is difficult to understand under the order- making power what is possible. Perhaps the Secretary of State will explain.
Clause 22(1)(a) allows
Clause 22(1)(b) includes the power to
The third power that the Bill gives, in clause 22(1)(c), is even more strange. It is to
"I cannot answer that question; we are not proposing it anyway. Some future Government might decide that it was necessary to transfer substantial additional powers to the Welsh assembly."
The right hon. Member for Llanelli interjected:
"Like taxation?"
The Secretary of State said:
"That is not what I am proposing, but a future Government might consider it. If so, I am sure that the Government of the day and Parliament would say, 'Hang on, you cannot do that by order: it is a substantial shift'."
26 Jan 1998 : Column 75
What is a "substantial shift"? What is significant in terms of the powers that might be transferred?
The Secretary of State went on to say that, of course, the necessary provision was included in the Bill. In answer to the question that he had been asked, he added that
"legislation must be acted on in the light of political common sense."
I think it was the hon. Member for Merthyr Tydfil and Rhymney who warned us not to put too much store by common sense. He reminded us that we know that politically that is not always the safest way in which to proceed. I think that that was the tenor of his remarks. I hope that I have not misquoted him.
"be acted on in the light of political common sense."
He added:
"Meanwhile, the Bill contains a mechanism for a transfer order dealing with law-and-order issues and other non-controversial matters that a Government of the future might believe could be transferred by order after a one-and-a-half hour debate."
Again, he uses "non-controversial" as an adjective. We have no definition of non-controversial. For added measure, the Secretary of State finishes by saying:
"Other, larger areas of responsibility may need primary legislation, however."--[Official Report, 21 January 1998; Vol. 304, c. 1106-07.]
We have a "substantial shift" that has not been defined. Similarly, "common sense" has not been defined, along with "non-controversial" and "larger". Yet we are being asked to accept an act of faith to the effect that, when any of these adjectives come into play, there will be primary legislation of the sort that we were seeking last week, or there will be a referendum of the sort that right hon. Friend the Member for Llanelli is seeking, but when these adjectives are not applicable there will be a simple order that will be debated for one and a half hours and then passed.
"the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales."
We know from his comments on Wednesday that that includes taxation, because he did not say that it did not.
"direct that any function so far as so exercisable shall be exercisable by the Assembly concurrently with the Minister of the Crown."
Does that mean that the Chancellor of the Exchequer and the Assembly can exercise some tax-raising powers?
"direct that any function so far as exercisable by a Minister of the Crown in relation to Wales shall be exercisable by the Minister only with the concurrence of or subject to the consent or approval of, or after consultation with, the Assembly."
In terms of taxation as it relates to Wales, in the manner that was described last Wednesday, and not denied by the Secretary of State, does that mean that the assembly could be given the right of veto over taxation matters?
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