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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

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

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

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out Part 4 of the Bill entirely. If they were set upon that course, nothing would prevent them so doing, provided they could command a majority in both Houses. The amendment cannot stand as the essential defence against such action and should not be supported as such, because it will not provide that defence.

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

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

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

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

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thought that Parliament was sovereign. I really do not follow why he says that the Secretary of State cannot be told to do something.

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.

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

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

1.44 pm

On Question, Whether the said amendment (No. 9) shall be agreed to?

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Their Lordships divided: Contents, 142; Not-Contents, 105.

Division No. 2


Addington, L.
Alderdice, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Biffen, L.
Blaker, L.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Chadlington, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
Dahrendorf, L.
De Mauley, L.
Dean of Harptree, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkner of Margravine, B.
Ferrers, E.
Fookes, B.
Fowler, L.
Freeman, L.
Garden, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Hamilton of Epsom, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hooper, B.
Howe, E.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Inglewood, L.
James of Holland Park, B.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kalms, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Lawson of Blaby, L.
Lindsay, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
McNally, L.
Mar, C.
Marlesford, L.
Marsh, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Hendon, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
O'Cathain, B.
Oppenheim-Barnes, B.
Patten, L.
Perry of Southwark, B.
Platt of Writtle, B.
Plummer of St. Marylebone, L.
Rawlings, B.
Reay, L.
Redesdale, L.
Rees, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L. [Teller]
Sandberg, L.
Sanderson of Bowden, L.
Sandwich, E.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Steel of Aikwood, L.
Swinfen, L.
Tebbit, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Trefgarne, L.
Trumpington, B.
Ullswater, V.
Verma, B.
Waddington, L.
Wade of Chorlton, L.

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Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Walpole, L.
Weatherill, L.
Wilcox, B.


Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Amos, B. [Lord President.]
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Blackstone, B.
Borrie, L.
Brennan, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Crawley, B.
David, B.
Davidson of Glen Clova, L.
Davies of Oldham, L.
Dixon, L.
D'Souza, B.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L. [Teller]
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
McDonagh, B.
Macdonald of Tradeston, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Murphy, B.
Patel of Blackburn, L.
Pitkeathley, B.
Plant of Highfield, L.
Quin, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Hornsey, B.

Resolved in the affirmative, and amendment agreed to accordingly.

1.54 pm

Lord Crickhowell moved Amendment No. 10:

The noble Lord said: My Lords, in moving Amendment No. 10 and speaking to AmendmentNo. 11, I shall not reopen any of the arguments that we had at an earlier stage of the Bill. These are drafting amendments, which are appropriate for

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Part 3 and which attempt to introduce a tiny additional element of clarity into two subsections that are extremely complex and difficult to understand. They might be clearer if they were in reverse order, but it is worth going over the procedures that must be followed to trigger a referendum, if only to show just how complicated the matter is and because, even after re-reading the subsections a dozen times, I may still have got them wrong.

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

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

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

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

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

I had not recognised before I read the two subsections a dozen times and attempted to understand them that the Assembly has to give its approval twice by a two-thirds majority before we can get to the Assembly stage. I would not change the

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Government’s intentions in this respect; I am simply asking that a requirement is written into the Bill that the Secretary of State informs the Assembly that he is laying the order before both Houses of Parliament and asks that it should do the same in the Assembly so that we can complete the whole process. I beg to move.

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

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