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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.
1 pm
Lord
Livsey of Talgarth: 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
13 July 2006 : Column 848
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.
Lord Davies of Oldham: 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.
Lord Livsey of Talgarth: 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Amendment, by leave, withdrawn.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]:
Lord Livsey of Talgarth moved Amendment No. 8:
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
13 July 2006 : Column 849
Lord Crickhowell: My Lords, I never cease to marvel at the ability of the Liberal Democrats to contradict its 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 I understand that 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.
Lord Thomas of Gresford: 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.
Lord Davies of Oldham: 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
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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.
Lord Roberts of Llandudno: 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?
Lord Davies of Oldham: 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.
Lord Roberts of Llandudno: My Lords, yes.
Lord
Davies of Oldham: 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
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Lord Livsey of Talgarth: 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.
1.15 pm
Clause 104 [Proposal for referendum by Assembly]:
Lord Roberts of Conwy moved Amendment No. 9:
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”,
- “(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”.
13 July 2006 : Column 852
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.]
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 from 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
13 July 2006 : Column 853
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.
Lord Livsey of Talgarth: 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.
Lord Rowlands: 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.
Lord Roberts of Conwy: 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.]
13 July 2006 : Column 854
Lord Rowlands: 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.
Lord Thomas of Gresford: 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.
Lord
Rowlands: 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
13 July 2006 : Column 855
1.30 pm
Lord Crickhowell: 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.
Lord Davies of Oldham: 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
13 July 2006 : Column 856
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.
Lord Roberts of Conwy: My Lords, I must point out that the 120 days is actually the Government’s proposal in Clause 104.
Lord Davies of Oldham: 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.
Lord
Thomas of Gresford: 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
13 July 2006 : Column 857
Lord Davies of Oldham: 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.
Lord Thomas of Gresford: 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.
Lord Davies of Oldham: 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.
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