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Lord Whitty moved Amendment No. 31:


Page 16, line 35, at end insert ("14 or").

On Question, amendment agreed to.

Clause 28 [Modifications for Wales]:

Lord Thomas of Gresford moved Amendment No. 32:


Page 17, line 1, after ("2(6),") insert ("15(4),").

The noble Lord said: My Lords, your Lordships may recall that during the Grand Committee's considerations of this Bill I expressed my concern about the obscure way in which the provisions relating to Wales were drafted in Clause 28. I was pleased to see in the Health Bill, which was debated today, that in Clause 59 progress had been made and a greater degree of clarification obtained. There is a long way to go, but the parliamentary draftsmen are working along the right lines.

Clause 28 excludes the National Assembly for Wales from exercising any powers under Clauses 15 and 16. Your Lordships will recall that those clauses give to the Secretary of State the power to amend primary legislation by order by means of secondary legislation, which is subject to the affirmative procedures in this Parliament. What is the purpose of giving these extensive powers to the Secretary of State? It is said to be flexibility. In an article written in Public Finance on 5th March, the Local Government Housing Minister, Miss Hilary Armstrong, stated:


I ask the Government to pause and consider that that flexibility, that legislative response, is one of the reasons that has caused this Government to introduce the Government of Wales Bill to set up the National Assembly for Wales. It is right for the National

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Assembly to consider these changes which are hardly the subject matter for primary legislation in the Westminster Parliament.

What is the reason for excluding the National Assembly from exercising these powers? I strongly suspect that it was because there was a fear that Ministers should not grant any primary legislative powers to Wales. The whole ethos of the National Assembly for Wales as opposed to that of Scotland is that its powers are limited to the passing of secondary legislation.

If we look at the National Assembly for Wales Transfer of Functions Order, which comes into force on 1st July, and with which I was concerned in its passage through this House, there are no less than 100 functions passed to the National Assembly for Wales to amend, repeal or modify primary legislation. It is already within the power of the National Assembly to modify primary legislation so why not within the circumstances of this Bill?

The Government have been asked this question and have given no reason. Miss Armstrong said, in Standing Committee B in another place on 11th February:


    "The power to make orders which have an effect in relation to Wales will be exercised by the Secretary of State for Wales. That is because we do not think it appropriate to confer these powers on the National Assembly for Wales. Of course, where the Secretary of State for Wales exercises his powers under Clause 15 there will be full consultation with the Assembly". The only reason that the Government have given for withholding these important and extensive powers from the National Assembly is, "We do not think it appropriate". I should like to know why it is not appropriate.

Let us pursue that a little further. Why is it that the Secretary of State for Wales alone is to exercise these powers? This was a matter I raised in Grand Committee. In a very courteous reply to me, the noble Lord, Lord Whitty, pointed out that the precise identity of the Secretary of State who operates powers under this legislation in practice will vary from case to case according to circumstances. As nobody envisages how this legislation is to be changed, I cannot see why the Secretary of State for Wales should be designated as the person to exercise powers under Clauses 15 and 16 as opposed to the many other ministers who may be concerned in the various points that arise from time to time.

There is confusion, a lack of clarity and, I suspect, simply a lack of thought as to the function of the National Assembly, as to why the powers are withheld and how they are to be operated.

I turn to the amendments. I shall speak also to Amendments Nos. 34 and 36. Amendment No. 34 gives the Assembly the powers of the Secretary of State in relation to Clauses 15 and 16. Amendment No. 32 removes the parliamentary procedures for Assembly orders under Clause 15. Amendment No. 36 sets out what is proposed as alternative assembly procedures, how the National Assembly for Wales would exercise these powers to amend legislation if the best value provisions are found to need that sort of amendment.

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I do not propose to seek a vote on this issue tonight but I ask the Government to consider carefully the points that I have made. I beg to move.

9.30 p.m.

Baroness Farrington of Ribbleton: My Lords, the noble Lord raises an important and complex issue, because of his breadth of knowledge of the subject. As a Whip, I am aware of the depth of detail he followed during the passage of the Bill establishing the National Assembly. Should I fail to answer any of the details he raised, I shall write to him and send copies to all noble Lords who have been present and taken part in the debate. I know it is unusual to start with that, but in the light of the depth of knowledge of the noble Lord, I felt safer doing so.

Clause 28 makes provision for the application of Part I of the Bill in Wales. It provides generally for powers in Part I of the Bill to be exercised by the National Assembly rather than the Secretary of State. However, the clause gives some powers to the Secretary of State rather than to the Assembly. These include the powers to modify primary legislation contained within Clauses 15 and 16 which are the subject of Amendments Nos. 32, 34 and 36. These amendments would give the order-making powers in Clauses 15 and 16 to the National Assembly rather than to the Secretary of State in relation to their application in Wales. They would also provide for these orders to be subject to the Assembly's procedures for making secondary legislation rather than to parliamentary procedures.

Clauses 15 and 16 provide for potentially wide-ranging powers to modify primary legislation and for orders made under these powers to be subject to rigorous scrutiny procedures. This Government feel strongly that the order-making powers in Clause 15 should be exercised by Ministers accountable to Parliament and that it would not be appropriate for these powers to be given to the National Assembly. We also consider that orders under Clause 15 should be subject to affirmative resolution by both Houses of Parliament in relation to their application in England and Wales. Clause 15 provides for this and we do not believe that these procedures, which are set out in Clause 16, should be different for Wales.

While we recognise that the Assembly's procedures for making secondary legislation are rigorous, the Government are strongly of the view that all orders made under Clause 15 should be subject to the stringent scrutiny provided for by Clause 16. However, the Bill builds in safeguards for the National Assembly. Clause 28 provides that the Secretary of State must consult the Welsh Assembly about using his powers under Clause 15 to modify primary legislation which has effect in relation to Wales. It also provides that the Secretary of State may not use his powers under Clause 15 to modify secondary legislation made by the Assembly itself without its explicit agreement.

The provisions in Clauses 15 and 16 are consistent with the principles of devolution in that the powers to modify primary legislation are retained by the Secretary of State and are subject to parliamentary procedures,

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while recognising and protecting the position of the National Assembly. I hope therefore that the noble Lord will not feel it necessary to press these amendments.

Lord Thomas of Gresford: My Lords, I have already indicated that it is not necessary to take this matter to a vote. But let me state this as a matter of principle. The National Assembly in relation to Welsh matters is a far better instrument for scrutiny provided by the Government of the day, with the grateful thanks of the Welsh nation, than the affirmative or negative resolutions of Westminster. Anybody who sits in this House knows just what sort of safeguard those procedures actually are in practice. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Ampthill): My Lords, if Amendment No. 33 is agreed to, I shall not be able to call Amendment No. 34; it will have been pre-empted.

Lord Whitty moved Amendment No. 33:


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