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Lord Thomas of Gwydir: I would like to support the amendment. It cannot be described as unnecessary; it is really necessary, for this reason. The Minister knows as well as anyone that the vast majority of the people in Wales believe in being part of a United Kingdom. The sovereignty of Parliament exists and is accepted by the

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Government. Indeed, it has even been said that the unity of Wales in the United Kingdom will be strengthened by this Bill.

There is no doubt at all that there are people in Wales who are concerned about the process of this Bill. They can see that as time goes on demands will be made for changes and that the assembly will become nearer to a parliament for Wales. Indeed, people are already advocating that. There are many in Wales who are concerned about the unity of Wales and the United Kingdom. They would like to be reassured that, as this Bill is currently worded, there is no question of the sovereignty of Parliament not remaining. For that reason a simple amendment such as this can give that reassurance and I commend it to the Committee.

The Earl of Northesk: I support these two amendments. Members of the Committee will recall that at Second Reading I suggested that the Bill as it stands lacks constitutional glue. The amendments have the great virtue of providing some glue in stating the constitutional position in a clear, concise and unequivocal way. Many Members of the Committee have intimated that the amendments are otiose, and the Government agree with that position. At one level that may be true, but there is something more to it than that. The Committee will also recall my suggestion at Second Reading that it will be the interaction of this Bill with other measures of primary legislation in this Parliament which will determine the actual day-to-day legislative competence of the assembly.

This gives rise to two quite distinct concerns. Like my noble friend Lord Roberts, I cite the School Standards and Framework Bill as an example. As my noble friend has already said, this measure is loaded to the gills with order-making powers. Some are relatively mundane, falling well within the scope of what we would normally expect of subordinate legislation; others are more disturbing in terms of the way that they confer wide powers of detailed policy determination upon the Secretary of State; yet others are mechanisms by which manifesto commitments are intended to be delivered. It is reasonable to assume that legislative competence for these, in so far as they are currently intended to be exercised by the Secretary of State for Wales, will in due course be transferred to the assembly. That intention is writ large in Clause 127(6) of the School Standards and Framework Bill. Some may say that there is nothing wrong with that and that that is the whole point of devolution, but it is a little more complicated.

It is perhaps bad enough that the Welsh assembly will be empowered to fly in the face of the UK Government's manifesto commitments by virtue of its competence over subordinate legislation; for example, as the School Standards and Framework Bill currently stands, there is nothing to prevent the Welsh assembly, once established and once the relevant order-making powers are transferred, from adopting an entirely different class size limit--say, 35 or 36--from that which will apply in England. Whether or not it would do so is conjecture but, as matters stand, the reality is that it could.

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While acknowledging that the noble Baroness, Lady Blackstone, gave some indication of the possibility that the Government may be prepared to state this manifesto commitment clearly on the face of the School Standards and Framework Bill, this nonetheless demonstrates the inevitable tension that is being built into the system. Unlike this House, the assembly will not be constrained by the Salisbury-Addison convention. Not only does this confer a superior legislative competence upon the assembly than that enjoyed by this House, but it also empowers the assembly to contest the UK-wide mandate of this Parliament. I do not wish to over-play it because it is an inevitable--some would argue desirable--consequence of devolution, but this is the first concern, which is in essence a purely political one. At the same time, this demonstrates the fiction of the assembly being confined solely to competence over subordinate legislation. That is necessarily a function of how order-making powers are framed in Bills considered by this Parliament. In this context it is worth noting the Henry VIII clauses on the face of the School Standards and Framework Bill, of which I detect three. As currently drafted, they are unconstrained and apply equally to both Wales and England. It is reasonable to assume that these powers will in due course be transferred to the assembly. In effect, such a transfer would confer primary legislative power upon the assembly. More importantly, there is an implicit and attendant risk that that transfer could--I do not say would--inadvertently give the assembly legislative competence over England as well as Wales.

I am aware that Clause 22 constrains the assembly so that it is bound to exercise transferred powers "in relation to Wales", but that constraint is not as effective as it may at first appear. We should not draw too much comfort from it. The Bill before us today does not change one particular aspect of our existing constitutional arrangement: its evolutionary character. As, when, and if, competence for Henry VIII clauses is transferred in future, it will be a matter of interpretation as to the scope of the available power. As these matters evolve the question will inevitably be asked as to where the primary source of statutory authority lies. In the example I have cited, will it be with the Government of Wales Bill or the School Standards and Framework Bill? We can quite legitimately worry that the assembly may well be drawn down the road of interpreting that it lies with the latter. It will, after all, have its own democratic mandate. That being so, the assembly could grant itself legislative competence over England. This therefore is the second concern: the constitutional one.

The government line with respect to the issue of sovereignty has been consistently one of saying that these amendments are otiose. No doubt the noble Lord, Lord Williams of Mostyn, will follow this line when he responds. If it were simply a matter of where sovereignty resides, I could be swayed to accept that argument. In all kinds of ways, as the Government argue, that is self-evident, but I suggest that the real issue before us is where the primary source of legislative authority is located. In stating the constitutional position

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on this, the amendments, far from being otiose, and for avoidance of any doubt, are both important and necessary.

Lord Cledwyn of Penrhos: If we proceed at this rate, the Committee will take a very long time. The point is a simple one. I do not accept it. I draw the attention of the Committee to the words of Clause 1(3) at the very beginning of the Bill:


    "The exercise by the Assembly of its functions is to be regarded as done on behalf of the Crown".

I would have thought that everyone should be satisfied by that.

Lord Hooson: I had not intended to speak to this amendment. I believe that it would be a political error to insert this phrase into the Bill. There has been devolution of powers to administrative boards and local government from Parliament for centuries, yet it has never been necessary to state in any Bill that Parliament is sovereign. The noble and learned Lord, Lord Simon, is undoubtedly right that this is unnecessary. To include this phrase is to invite trouble. Every Member of this House, every Welsh Member of Parliament and every council in Wales knows that Parliament is sovereign. If there is anyone who requires reassurance about whether there are sovereign Welsh dragons in the garden, breathing fire and slaughter, it can only be because those fears have been created by politicians. I believe that it would be a political error to insert this phrase. It suggests trouble and a means of division. As it is totally unnecessary and otiose, why on earth should we consider it?

Lord Dixon-Smith: I hesitate to rise, particularly in view of what has just be said. However, I should like to make just one point. With the exception of my noble friend Lord Northesk, this issue has been discussed as if it is simply a Welsh matter. Perhaps the dog of the noble Lord, Lord Crickhowell, that did not bark at Second Reading may be permitted a small growl. It must be made clear that this is a United Kingdom Bill to devolve powers from the United Kingdom Parliament to a Welsh national assembly. For the life of me, I have the greatest difficulty in seeing what problem there can be in stating that on the face of the Bill. The fact of the matter is that, as the noble Lord, Lord Thomas of Gresford, said, today we do not have to consider solely the views of the members of Wrexham Rugby Club or the Gresford Rugby Club. We have to consider what those views may be in five or 10 years' time or--heaven help us--50 or 100 years' time.

We have heard that there are already some strange views being propagated in Wales. Whatever we may believe about the sovereignty of Parliament, increasingly in today's society there are those who call into question the sovereignty of Parliament in various parts of the United Kingdom, and not exclusively in Wales. As a mere Englishman--I believe that the English can claim some responsibility for the integrity of the totality of the United Kingdom, and certainly for a very large part of it--I am enormously concerned that this matter could ever be called into question. In view

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of the fact that our constitution generally is not written but is understood, and also in view of the fact that lawyers have a great deal of fun with "understandings" as opposed to what is written, I must say that I would support having this written very clearly in this Bill now.

4.30 p.m.

Lord Ellenborough: I, too, hesitate to intervene in this debate amid so many distinguished former Secretaries of State for Wales. I should have thought that the Government would be well advised to accept these amendment because they clarify the position and they confirm the supremacy of the Parliament of the United Kingdom. I would have thought there must be a danger of visibly increasing support for the SNP in Scotland, and future pressure there for independence must have some effect in Wales.

If I may say so, one feature of the various devolution debates in both Houses--and here I agree with my noble friend Lord Dixon-Smith--has been the scant regard shown for the English, who are, after all, pretty generous towards the Scots and the Welsh both as regards finances and representation at Westminster. In his otherwise admirable winding-up speech on Second Reading, the noble Lord, Lord Falconer of Thoroton, did not, so far as I can recollect, even mention the words "England" or "English", despite the intervention in that debate of several of my noble friend Lord Crickhowell's "English dogs", of which I was one, although I only barked very quietly. This amendment should go some considerable way to satisfying not only English doubts and susceptibilities but also, and most importantly, the majority of the Welsh people, who are, after all, pretty unenthusiastic about devolution at the present time. If this assembly is to work as a secure part of the United Kingdom constitution it must have the support of the majority of the Welsh people and the acceptance of the English.

I would say to the Government that they really should not be too ostrich-like in this matter. They will bitterly rue the day if, once this legislation is enacted and the Welsh assembly and the Scottish parliament are under way, they are faced with a war on two fronts, with growing Welsh and Scottish nationalism on the one hand and increasing resentment by the English on the other. There are, as has already been said this afternoon, a fair number of Welsh nationalists and other closet nationalists who make it all too clear that they would deny the sovereignty of the Westminster Parliament and they regard devolution as a springboard leading to further separation. So, for my part, I strongly support this amendment. It helps to clarify the position and provide some reassurance.


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