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Lord Hunt of Wirral: My Lords, I thank the noble Lord, Lord Newby, for his support. I agree that the Government have not got this right—it is certainly not wholly right. I very much agree with the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Lea, in wanting to make sure that as many jobs as possible can be saved in a simple and effective way. I am rather disappointed with the Minister, as he would probably anticipate I would be disappointed. He said, "Well, it is going to be uncertain. It is a matter for the courts and tribunals". I do not know whether the Minister has read the advice of the Insolvency Service. It says that it is uncertain. I am sorry, but it is. The Insolvency Service says in its letter:
I do not think that it is good to pass legislation which requires courts and tribunals to interpret it so that it can be put into effect.
I must say to the noble Lord, Lord Lea, that our three correspondents were not slow off the mark. On 7 June 2005, they submitted a greatly detailed response that stressed that the drafting was unsatisfactory. On 23 November, when they had heard very little from the department, they telephoned the department, spoke to the lead official and asked whether they could come in to explain why they were so concerned. The official said no; the department did not want a
3 May 2006 : Column 546
meeting. Declining that offer of a meeting probably lies at the heart of all this; we would get this right if only the Government listened a little more. I really think I should test the opinion of the House.
8.44 pm
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 77; Not-Contents, 79.
Anelay of St Johns, B.
Barker, B.
Blaker, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Carnegy of Lour, B.
Cope of Berkeley, L.
Craigavon, V.
Crickhowell, L.
De Mauley, L.
Dean of Harptree, L.
Dixon-Smith, L.
Dundee, E.
Eden of Winton, L.
Elles, B.
Elton, L.
Ferrers, E.
Forsyth of Drumlean, L.
Fraser of Carmyllie, L.
Garden, L.
Geddes, L.
Hanham, B.
Harris of Richmond, B.
Higgins, L.
Hodgson of Astley Abbotts, L.
Home, E.
Howard of Rising, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Inglewood, L.
Jenkin of Roding, L.
Jopling, L.
Kalms, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Luke, L.
McColl of Dulwich, L.
Mar and Kellie, E.
Mawhinney, L.
Miller of Hendon, B.
Monro of Langholm, L.
Montrose, D.
Morris of Bolton, B.
Newby, L.
Noakes, B.
Norton of Louth, L.
Patten, L.
Rawlings, B.
Reay, L.
Roberts of Conwy, L.
Roberts of Llandudno, L. [Teller]
Saatchi, L.
Seccombe, B. [Teller]
Sharples, B.
Shephard of Northwold, B.
Shutt of Greetland, L.
Skelmersdale, L.
Strathclyde, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Ullswater, V.
Waddington, L.
Wakeham, L.
Walmsley, B.
Walpole, L.
Wilcox, B.
Williams of Crosby, B.
Windlesham, L.
Adonis, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bilston, L.
Blood, B.
Brooke of Alverthorpe, L.
Carter, L.
Chandos, V.
Clark of Windermere, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Brookwood, L.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hughes of Woodside, L.
Janner of Braunstone, L.
Jones, L.
Judd, L.
Kilclooney, L.
Kirkhill, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Morgan of Huyton, B.
Pitkeathley, B.
Prosser, B.
Prys-Davies, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sewel, L.
Simon, V.
Snape, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Triesman, L.
Tunnicliffe, L.
Turner of Camden, B.
Whitaker, B.
Whitty, L.
Resolved in the negative, and Motion disagreed to accordingly.
3 May 2006 : Column 547
Lord McKenzie of Luton: My Lords, I beg to move that the House do now adjourn during pleasure until nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.55 to 9 pm.]
Government of Wales Bill
House again in Committee on Clause 92.
Lord Kingsland moved Amendment No. 54A:
The noble Lord said: Now that we have covered most of the issues in a general way during the debate on the previous amendment, my submissions on the detailed points can be relatively succinct. First, we come to Amendment No. 54A to Clause 92(2), which is a good illustration of the point that I was trying to make about the way that the Bill is drafted when speaking to the previous amendment.
We are having to deal with stage two before we go on to stage one. My point is simple. Clause 92(2) states:
"A proposed Assembly measure is enacted by being passed by the Assembly and approved by Her Majesty in Council".
There is no mention of the order being tabled in your Lordships' House and in another place before being taken to the council for approval. Why? I cannot think of any precedent of that being so in this country. There are precedents for the overseas territories, but, as far as I am aware, there is no precedent for an Order in Council going in front of Her Majesty before it has been treated by either the negative resolution procedure or the affirmative procedure.
One can only speculate on why that is so. There are two answers. One is that the Secretary of State has no discretion whatever. Once he or she receives evidence that an Assembly measure has gone through all its
3 May 2006 : Column 548
stages, the Secretary of State has no alternative but to table it. The other is that the Secretary of State does have discretion whether to say yes or no. If that is so, surely the case for the order being tabled before both Houses of Parliament is overwhelmingly strong. I beg to move.
Lord Rowlands: I am puzzled by this amendment because, by this time, the measure would have gone through the Assembly. It would have evolved. It would have been debated at great length and scrutinised following an Order in Council approving that competence. Therefore, what would this House be expected to do when that measure is complete? The House would not have been party to any stage of the Assembly measure's preparation and development because, quite rightly, that has been devolved to the Assembly itself. It would be a completed Assembly measure. Therefore, there would eventually have to be an Order in Council to finalise it. What in the name of heaven would we be voting on? Would we say that we did not believe the measure to be a good one, when this House had not been party to its development other than the original Order in Council? Surely we would not say that it was outside the devolution competence, because all sorts of provisions prevent that happening in other clauses. When the noble Lord develops this case, I would like to know what we would be expected to vote on.
Lord Kingsland: I will attempt to answer the noble Lord's question. I suggest there are two possibilities. One is that, at the end of the day, the Secretary of State can refuse to table the order, even though it has been passed by the Welsh Assembly. If the noble Lord reads Clause 92 he will see that it states:
"A proposed Assembly Measure is enacted by being passed by the Assembly and approved by Her Majesty in Council".
So the legislative process has two stages. First, it has to be passed by the Assembly as an Assembly measure and, secondly, it has to be tabled in the Privy Council. The question I am probing is whether or not the Secretary of State for Wales has the discretion to say no to the Welsh Assembly, for one reason or another. The noble Lord is shaking his head but that is not clear. If the Secretary of State does not have any discretion, this is plainly primary legislation. If he does have discretion, and if it really is subordinate legislation, why is Parliament not engaged, as it always is when a Secretary of State has the discretion following the tabling of an Order in Council?
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