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I wish to draw the attention of those who have put forward the amendments to the fact that the proposals for the transfer of functions are clearly subject to the approval of this House and the other place. Under Clause 22(2), the draft of the first Order in Council has to be placed before each House of Parliament. The subsection does not spell out what functions are to be handed over but says that the order will,
I see nothing wrong with the parliamentary scrutiny and the timetable for consideration of these detailed proposals. I emphasise again that, although some 350-odd statutes from the past have been looked at in the draft transfer order, they had already been looked at when the functions were handed over to the Welsh Office by way of administrative devolution.
It seems to me that the purpose of some of the amendments is to snatch back functions from the new Welsh assembly without the consent of that assembly. The noble Lord, Lord Stanley, said that subsection (4)(b) gives the assembly the right of veto over the actions of Westminster in snatching back powers from Wales. I should like to put it a different way.
Lord Simon of Glaisdale: Before the noble Lord continues, I do not believe that the noble Lord, Lord Stanley, said quite that. What he said was important. He said that any attempt to take back powers would be disputed in the assembly. That is a fact we must bear in mind.
Lord Thomas of Gresford: I fully understand that, and I am grateful to the noble and learned Lord, Lord Simon, for his intervention. I am saying that, rather than the assembly exercising a right of veto, under Clause 22(4)(b) it has a right to be consulted if Westminster seeks to take back powers and functions already granted to that assembly. Is it proposed that the Welsh assembly should not be able to debate the removal from it of functions granted to it by Parliament?
Lord Stanley of Alderley: Will the noble Lord give way? He has raised a very important point, on which I should like clarification. As I read the clause, if further powers are granted to the Welsh assembly, or are to be taken away from it, that assembly has a right to be consulted, but it also has a right of veto over proposals to take powers away. It would help me enormously if the Minister could clarify that point when he responds.
Lord Thomas of Gresford: I am grateful to the noble Lord. As I understand the difference between his amendment and that put forward by the Conservative Front Bench, the latter provides that there would be no right for the Welsh assembly to be consulted, whereas the noble Lord, Lord Stanley, being a good Welshman, has at least suggested that someone should ask the Welsh assembly if it has a view to express. I see that the noble Earl, Lord Courtown, agrees with that. There is a vital distinction between the two amendments.
When we come to Amendment No. 67 proposed by the Conservative Front Bench, matters are even worse. If the proposed new clause were to be added to the Bill after Clause 22, it would be entirely within the discretion of the Secretary of State to snatch back the powers and functions of the assembly at his own whim. The proposed new clause states:
That amendment would give complete control to the Secretary of State, at his own whim, at his own political motivation--perhaps "whim" is the wrong word--because he takes a different political view from that of the Welsh assembly, to snatch back those powers and functions without consultation.
If a Welsh assembly is to have any meaning, if devolution, which is being granted by a bold and courageous step by the Government, is to take place, let the assembly be strong and retain power and control over its own functions and powers. These amendments should go no further.
Lord Rees: Before the noble Lord sits down, does he not recognise that the Secretary of State is subject to review by both this House and the other place? The idea that he personally, on a whim, can snatch back powers seems to me to be very wide of the mark. Has the noble
Lord Thomas of Gresford: I am grateful to the noble Lord, Lord Rees, for what he said. I did rather withdraw from the word "whim", because perhaps it does not assist my argument. It is better to consider a more realistic situation in which, with a government at Westminster of a different political colour from that of the Welsh assembly, the Secretary of State, with the support of the Cabinet and of the majority in the Houses of Parliament, could operate in such a way as to nullify the powers of the assembly. That would be against the spirit of the Bill.
Lord Simon of Glaisdale: On the last occasion your Lordships considered the Bill, I ventured to suggest that it had no traditional electoral legitimacy. After the Armed Forces and expatriates had been disfranchised, there was a very narrow majority in favour, in spite of all the resources of the Government being put into the campaign. However, although the Bill has no electoral legitimacy, it has a different, unusual--I think, unique--and very interesting legitimacy. The vote having taken place, all parties, including those who took a negative view and those who thought the proposals did not go far enough, seem to agree that in the circumstances the Bill should be made to work.
That demands an unusual attitude both from the Government and from Members of the Committee. From the Government it demands a much more reflective and flexible response than anything we have had up to now. From Parliament it demands the good will to make this scheme work, bearing in mind--if I may repeat--the very wise pronouncement of Clement Attlee. It was a statement with a profound constitutional sense that democracy is not just government by the majority but government by a majority with deference to the interests of the minority.
The second important matter in the Committee's approach is to eliminate so far as possible areas of conflict. The first thing is to make the proposals for devolution as clear-cut as possible and as indisputable as possible in a forensic sense. The second is to eliminate areas of conflict such as an attempt to take back powers which have once been transferred. Of course, things may go wrong. But if there is an attempt to draw back powers which have once been transferred, things are bound to go wrong. The noble Lord, Lord Stanley of Alderley, was quite right that, if there is any attempt to withdraw powers once granted to the Welsh assembly, that is bound to be hotly resisted by the assembly. It would be irresponsible if we allowed such a situation to be permissible.
It seems to me therefore that, although the noble Lord, Lord Roberts, moved the amendment in his habitual clear, cogent and considerate way, on the whole it runs counter to the attitude that we ought now, in these unusual circumstances, to adopt towards the Bill. I have not yet seen the draft order and perhaps anything I have
Lord Mackay of Ardbrecknish: Perhaps at this stage I may say a few words about Amendment No. 67, as my noble friend Lord Roberts of Conwy suggested I would. At the risk of annoying the noble Lord, Lord Thomas of Gresford, this is not a new clause put forward in any spirit of wanting to grab back some of the powers that have been given to the Welsh assembly; it is a recognition that there will be a continuing relationship between the Government of the United Kingdom and the Welsh assembly. Issues will arise when the Government of the United Kingdom, for wider reasons, will have some responsibility for the decisions made by the assembly. For example, those wider reasons may be to do with our membership of the European Union; they may be to do with matters relating to GATT or other worldwide obligations into which the United Kingdom has entered but into which the Welsh assembly will not have entered because it will not have responsibility for those issues.
In those circumstances, or indeed some others--perhaps some of the difficult cross-border issues that take up so many pages on the Marshalled List today--
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