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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 rightit 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 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
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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.
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.
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
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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:
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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