Government of Wales Bill — [2nd Allotted Day]

House of Commons, 24 January 2006.

[Sir Alan Haselhurst in the Chair]

Clause 94 — Amendment of Schedule 5

Alan Haselhurst (Deputy Speaker, Saffron Walden)

I remind the Committee that with this we are discussing the following: Amendment No. 154, in page 51, line 28, after 'approved', insert '(i)'.

Amendment No. 155, in page 51, line 29, at end insert

'or

(ii) has been laid before each House of Parliament and has been approved by a resolution of the House of Commons, but has been rejected by the House of Lords.

(5A) If subsection (5)(b)(ii) applies, the Order in Council shall not take affect until one year has elapsed since the date on which the House of Commons came to the resolution.'.

Amendment No. 27, in page 51, line 29, at end insert—

'(5A) In the event of approval of a draft statutory instrument by the Assembly, as specified in subsection (5)(a), but there not being within 60 days of that approval, an approval by a resolution of each House of Parliament as specified in subsection (5)(b), subsection (5) shall cease to have effect in the case of that draft statutory instrument, and the procedure specified in subsection (5B) will then apply to that draft statutory instrument.

(5B) The procedure which will apply in cases specified in subsection (5A) will be that no recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council—

(a) has been laid before, and approved by a resolution of, the Assembly, and

(b) the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats.'.

Amendment No. 187, in page 51, line 29, at end insert—

'(5A) Any draft of an Order in Council laid before Parliament under this section must be accompanied by—

(a) a detailed memorandum setting out the scope of the proposal, its practical effects on Wales and the legislative authority that would pass to the National Assembly, and

(b) a draft of the proposed Assembly Measure.

(5B) Before an Order in Council is subject to a resolution of both Houses of Parliament, the Secretary of State must make a motion to refer the draft of the Order in Council, along with the draft Assembly Measure, to the Welsh Grand Committee for consideration.

(5C) A report of the debate in the Welsh Grand Committee on the draft Order in Council and Assembly Measure must have been available to both Houses of Parliament for a period of not less than 60 days before any Order in Council is made under this section.'.

Amendment No. 211, in page 51, line 29, at end insert—

'(5A) But subsection (5) is not satisfied unless the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats.'.

Amendment No. 212, in page 51, line 29, at end insert—

'(5A) But subsection (5) is not satisfied unless, before the draft of the statutory instrument containing the Order in Council has been approved by a resolution of the House of Commons

(a) the Welsh Grand Committee has debated the draft, and

(b) the Welsh Affairs Committee has reported to the effect that it approves the draft.'.

Amendment No. 122, in page 51, line 38, leave out 'either'.

Amendment No. 123, in page 51, line 39, leave out from 'Parliament' to end of line 1 on page 52.

Amendment No. 181, in page 51, line 39, leave out from 'Parliament' to end of line 41.

Amendment No. 53, in page 51, line 40, at beginning insert 'if subsection (7A) applies,'.

Amendment No. 54, in page 51, line 41, at end insert—

'(7A) This subsection applies only if the Secretary of State has reason to believe that the Assembly Measure made under the order—

(a) would have an adverse effect no any matter which is not specified in Part 1 of Schedule 5,

(b) might have a serious adverse impact on water resources in England, water supply in England or the quality of water in England,

(c) would have an adverse impact on the law as it applies in England, or

(d) would be incompatible with any international obligation or the interests of defence or national security.'.

New clause 4—Refusal to lay draft statutory instrument—

'In the event of approval of a draft statutory instrument by the Assembly, as specified in section 94 (5) (a), followed by a refusal to lay that draft statutory instrument before each House of Parliament, as specified in section 94 (7) (b), the Counsel General or the Assembly may refer to the Supreme Court for decision the question whether the Secretary of State's decision to refuse to lay the draft statutory instrument was made reasonably in the circumstances and intra vires.'.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Sir Alan, as I was saying only at 10 o'clock last night—

Chris Ruane (Labour, Vale of Clwyd)

It seems like only yesterday.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Indeed it does. We were discussing the group of amendments beginning with No. 180, and I was talking about the proposal in the amendment that would require a two-thirds majority before any Order in Council process could begin. I was saying that the Order in Council process is one that is completely different from the Order in Council that would introduce a referendum on primary powers for the Assembly. It is a completely and utterly different order. An Order in Council, for example, that would have brought in the legislation that would have enabled the Assembly to consider the legislation on the public administration ombudsman or transport in Wales would be very different.

I wish to remind the hon. Member for Beaconsfield (Mr. Grieve) of the situation when parties present their manifestos at election time. If the Welsh Assembly Government that is formed in 2007 is elected on the basis of a manifesto commitment and if that commitment needs new legislation to be delivered, it would be a clear basis for a proposed Order in Council to enable the Assembly to legislate on that matter. With the electoral arrangements that we have for the National Assembly for Wales, it is unlikely that the ruling group or party would have a two-thirds majority. The hon. Gentleman's proposal would mean that a party or group of parties, having fought an election on a proposal, would not be able to legislate for that proposal.

Even when no specific manifesto commitment is involved, such a request will not come out of the blue. To take the transport example that I mentioned earlier, I placed in the Library the Order in Council example with its explanatory memorandum. Before the draft Bill came before the House, we had a full report by the relevant Assembly subject Committee, which led to the conclusion that the Assembly needed further powers to enable it to play a more effective strategic role in transport in Wales. Opposition Members should recognise the fact that the Assembly, as a democratic institution, has an open process for debating and developing policy, as does the Welsh Assembly Government. The requirement for a two-thirds majority before an Order in Council could be introduced is wholly disproportionate.

Amendments Nos. 187 and 212 address an important issue that has been mentioned by right hon. and hon. Members, especially my right hon. Friend the Member for Torfaen (Mr. Murphy). On Second Reading and on several other occasions, he raised the issue of pre-legislative scrutiny and how it will be carried out. I recognise the importance of pre-legislative scrutiny in the proposal for Orders in Council. Several interventions have been made on that point and I am grateful for the many suggestions that have been made as to how that process could be conducted, including the proposals in amendment No. 187.

I should say immediately that I do not think that it is right that the Government should prescribe in the Bill how such scrutiny must be conducted, but that is what amendment No. 187 suggests. That would not allow parliamentarians the proper discretion to determine the most appropriate arrangements. However, in my letter to the hon. Member for Chesham and Amersham (Mrs. Gillan) of 17 January, which was circulated and placed in the Library, and which covered the illustrative examples of Orders in Council, I outlined the normal procedure that I envisaged for scrutiny of such proposals. It may be helpful if I run through them again for the benefit of the Committee.

When the Assembly has a proposal, it will discuss it with the UK Government. If broad agreement were reached, the Assembly would produce a proposed draft Order in Council—this is the difference between what is set out in amendment No. 187 and what I propose in my letter. The proposed draft Order in Council would be accompanied by an explanatory memorandum, as is shown in the examples attached to the letter. It is worth pointing out that the proposed draft Order in Council could be amended, which would mean that more weight would be given to pre-legislative scrutiny than would be the case if the process of scrutiny did not allow amendments to be made, which I understand is what is set out in amendment No. 187.

Dominic Grieve (Conservative, Beaconsfield)

Who would be doing the amending, and in what setting?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Let me continue to go through the process.

The Secretary of State would forward the proposed Order in Council to the appropriate parliamentary body—for example, the Welsh Affairs Committee—in the same way as is the case when draft Bills receive pre-legislative scrutiny. It would be open for any other Select Committee to scrutinise the proposal. When draft Bills receive pre-legislative scrutiny, the Wales Office announces that the public may give their views and, if they wish, contact their Member of Parliament, who may wish to contribute to the process. Pre-legislative scrutiny would thus not be restricted to Members of the House because members of the public could contribute their views.

The practice of joint scrutiny between the Welsh Affairs Committee and Assembly Committees has worked well in the past. Depending on the type of Order in Council, the Welsh Affairs Committee could choose to continue with that arrangement, or decide to examine the proposal separately. That would be a matter for the Committee, but such a process would assist in gathering the widest possible input into the consideration of the proposal.

I did not mention this in my letter, but as part of the pre-legislative scrutiny of draft Bills, reports of the Welsh Affairs Committee have regularly been debated in the Welsh Grand Committee. I have noted the thoughts of my right hon. Friend the Member for Torfaen about that. We would encourage such debates on proposed Orders in Council. If it were felt that such a debate in the Welsh Grand Committee would help the process, we certainly would not put any obstacles in the way of that. I also agree that it is important that all hon. Members have the opportunity to comment on a proposed draft Order in Council, to ask questions about its scope and to propose ways in which amendments could be made.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

Has the Minister made any assessment of how many Orders in Council might have been brought forward in any specific year, such as during the previous year? We must consider not only Wales-only legislation, but the Welsh elements of England and Wales Bills. The Childcare Bill is going through the House at the moment. Would that require a separate Order in Council? If so, how many times would the Welsh Grand Committee need to meet to consider all the Orders in Council?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

It is difficult to give a totally accurate prediction of how many Orders in Council will come through. Orders in Council would not be required for primary legislation because the arrangements under which primary legislation gives secondary legislative powers to the Assembly would continue. It would be for Parliament to decide whether it was happy for such powers to be passed on, as is the case at the moment. I do not envisage that the number of proposals for Assembly Measures would be much greater than the number of requests for primary legislation that come through at present. However, the First Minister said that he would be surprised if there were more than five or six a year. I hope that that is helpful.

On the scrutiny and involvement of all hon. Members, my right hon. Friend the Member for Torfaen asked whether it was possible for those who are not members of the Welsh Grand Committee to attend its debates. Again, we cannot dictate to the House what should happen. That is for the House to decide under its Standing Orders. However, I am sure that if a good case were made for an amendment to the Standing Orders—perhaps to consider a particular Order in Council or Orders in Council in general—the House could change its Standing Orders to widen the membership.

Alan Williams (Labour, Swansea West)

Would the Minister support such an application?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I would have no problem with that. In addition, there is nothing to prevent a report by the Welsh Affairs Committee on a particular Order in Council from being debated in Westminster Hall. Again, hon. Members could make a contribution in that way, which would be open to everyone. That is an alternative to the Welsh Grand Committee.

The hon. Member for Beaconsfield asked how Orders in Council would be amended. Once pre-legislative scrutiny is complete, reports will have been produced by the Welsh Affairs Committee. The Welsh Assembly might also have produced a report, and there may well be minutes of the Welsh Affairs Committee or, perhaps, the debate in Westminster Hall. Those will be taken into account, along with changes or problems highlighted in the pre-legislative scrutiny. Once that has been put together, the Secretary of State will liaise with the Welsh Assembly Government to produce a finalised draft Order in Council. Then, and only then, would the Secretary of State lay the draft Order in Council in an unamendable form for the 90-minute debates in both Houses of Parliament, inviting their approval. I would expect those debates to take place on the Floor of the House, certainly in the early days of the process. That process follows the successful model, developed over a number of years, for the pre-legislative scrutiny of draft Bills, which has helped to improve those Bills and ease their passage through the House. It represents a good model to apply to the Orders in Council.

The Government welcome and encourage pre-legislative scrutiny of proposals for enhanced legislative competence. At the same time, there should be flexibility in the system. I would not wish either the Welsh Affairs Committee or the Welsh Grand Committee to have their business dictated by statute, which is the implication of amendments Nos. 187 and 212.

Amendment No. 187 would also set fixed time scales for the draft Orders in Council. I am not talking about proposed draft Orders in Council; it clearly refers to draft Orders in Council that have been finalised by the Assembly after pre-legislative scrutiny. The amendment would require those to be laid before Parliament for 60 days—the so-called super-affirmative procedure. As I said, there will have been ample opportunity for hon. Members to have taken part in the pre-legislative scrutiny, so there is no need for a fixed period.

The hon. Gentleman did not put much emphasis on draft Measures that are attached to the draft Order in Council. I remind Members that, by their nature, the Orders in Council do not change the substance of the law. Substantive changes of law would be made by the Assembly Measures themselves. Assembly Measures will be subject to detailed scrutiny by the Assembly. That is what we term the enhanced legislative process, which part 3 is all about.

Dominic Grieve (Conservative, Beaconsfield)

I suspect that I may not have spent as much time on this as I should have, in the hope that we would make some progress after yesterday's quite slow progress. There is an important issue, because it is far from clear—the Minister will appreciate this—to what extent the Order in Council will give an indication to Members of this House of what in reality will be in the Measure. I appreciate that there is a difficulty. The Measure has to be fleshed out by the Assembly and that cannot be done here, but how will reassurance be provided to Members of this House that they are not writing a blank cheque?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I am not sure whether the hon. Member for Chesham and Amersham gave the hon. Gentleman a copy of my letter of 17 January and the attachments thereto, but there will be a clear indication in the attached memorandums of what such Measures will cover, the reasons behind them, the policy development and so on. I am pretty certain that pre-legislative scrutiny will be able to tease out any other issues that may not have been fully explained in the explanatory memorandum. I am also pretty certain that the Welsh Affairs Committee, the Welsh Grand Committee or any other Committee of this House would be able to establish whether they were getting a pig in a poke. I hope that the hon. Gentleman is reassured on that point.

Amendments Nos. 122, 123, 181, 53 and 54 relate to the role of the Secretary of State. Much has been made of the fact that the Secretary of State has discretion whether to lay a draft legislative competence order—or an Order in Council—before both Houses, but that position is perfectly reasonable and rational. As I explained earlier, these proposals will not come out of the blue. Normally, the preliminary draft Orders in Council and the explanatory material that will accompany the draft would reflect the outcome of discussions between the Welsh Assembly Government and the UK Government, so that issues of scope, clarity and vires would have been thoroughly thought through before even the preliminary draft was laid before Parliament for pre-legislative scrutiny.

The Secretary of State should be cast not in the role of Napoleon, as the right hon. Member for Suffolk, Coastal (Mr. Gummer) implied, but genuinely as an honest broker. It would in any event be unreasonable to force the Secretary of State to lay before the House a draft order that he or she felt was defective, unworkable or premature. The provisions will ensure not only that the proposals that are put before Parliament are properly prepared but that the Government's view on them is clear.

In new clause 4, the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) proposes that the Assembly or Counsel General should be able to refer to the Supreme Court any decision by the Secretary of State to refuse to lay a draft Order in Council before each House of Parliament, so that the Supreme Court could decide whether such a decision was reasonable and intra vires. I do not believe that such a provision is necessary. The Bill already provides for the Secretary of State to give notice of his reasons for refusing to lay the draft Order in Council. That, in itself, is a powerful incentive to any Secretary of State to ensure that he or she has good reasons for any refusal to lay such a draft. The Assembly and the public at large would know the Secretary of State's reasons for refusing.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I hear what the Under-Secretary says, but the only reference in the White Paper to the Secretary of State's duty to provide reasons is a statement that the reasons he gives should not be trivial. That does not take us very far. Can the Under-Secretary provide examples of why the Secretary of State should refuse to lay a draft Order in Council?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Pre-legislative scrutiny might have failed to tease out an issue relating to whether the Measure fits correctly within one of the fields. The Secretary of State would therefore query whether the proposal is workable and firmly grounded. In such a case, he would say, "There is something wrong with this proposal—I cannot support it. The Assembly should consider the matter again." That is the type of case that we have in mind. Understandably, some have argued that the Secretary of State might block an Order in Council for purely political reasons—because he did not like the contents of the Measure—but we do not expect the process to work in that way. I hope that the hon. Gentleman is satisfied with that answer.

David Davies (Conservative, Monmouth)

I appreciate that the Minister is attempting to reassure us that the Secretary of State would never turn down an application for political reasons, but although that might be the present intention, the Bill as drafted allows the Secretary of State for Wales, now or in future, to turn down a Measure for political reasons, if he or she wishes to. I cast no aspersions on the present Secretary of State when I say that, although that might be the present intention, if the wording of the Bill is not amended, it might not necessarily be what happens in future.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

The political reality is that if the Secretary of State's reasons were weak or unconvincing, he would come under considerable public pressure. In addition, the Bill provides powers for the Counsel General to refer questions to the Supreme Court—for example, whether a matter relates to a field listed in part 1 of schedule 5. However, careful thought must be given to when those powers are required. In general, we have provided such powers where the question is clearly one of legal interpretation and requires a decision of the senior judiciary, given the constitutional significance of the matter in question. In such a case, judicial review is available to anyone who thinks that the Secretary of State's decision is unreasonable. An additional power for the Assembly or the Counsel General to refer the Secretary of State's decision to the Supreme Court is not necessary. Furthermore, the Secretary of State's decision is an Executive decision and is therefore qualitatively different from matters in respect of which the Bill provides a power for the Counsel General and the Attorney-General to refer questions to the Supreme Court.

I have taken some time to respond to an important debate, which started last night. I hope that what I have said persuades Opposition Members that our proposal is reasonable and that we expect to have rigorous and effective pre-legislative scrutiny. I urge the hon. Member for Beaconsfield to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I thank the Minister for the way in which he has presented the Government's case, both yesterday and today.

I said at the outset that amendment No. 180 was probing in nature. It was designed to highlight the difference of approach in the part 4 and part 3 procedures. The Minister is right, and I accept that if the amendment were to be accepted, it would have a sclerotic effect on the way in which the Assembly functions. Although I may have serious reservations about the operation of part 3 in principle, as the Minister no doubt realises, it is not my purpose to scupper it by making it ineffective if Parliament decides it wants part 3 in place. For those reasons, I shall not press amendment No. 180 to a Division.

I hope that in due course it will be possible to press amendment No. 187. I continue to have serious reservations about the scrutiny procedure. I am grateful to the Minister for the letter that he wrote to my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) on 17 January and the two memorandums attached to it, which I had an opportunity to read before they were put in the Library. They make interesting reading. I can see how the Government seek to involve the House and the Welsh Grand Committee in the formulation of policy in Wales and in taking a decision whether the Welsh Assembly should be allowed to pass an Assembly Measure.

However, as I am sure the Minister recognises, the word "amendable" in the context of what goes on in this House usually suggests that it is possible to table an amendment and carry it by some vote or other or with the agreement of all concerned, so that the text can be varied. That, of course, is not possible under the proposed procedure, which envisages a consultation mechanism by which a draft order can be scrutinised. If individuals in the House or elsewhere—the various public bodies that the Government intend to consult—succeed in raising sufficient objection to make the Government consider that there may be a mistake in the drafting of the scope of the order, or that they may have difficulty getting the order in its present form through the House, they can redraft it and present a new order. That, as I am sure the Minister acknowledges, is not the same as an amendable order. It is an entirely different creature.

In those circumstances, the House faces a possible difficulty. I shall not revisit the debate that we had yesterday on my first amendment, No. 161. That suggested to the Government that one possible way of proceeding was to hold a further vote after the Assembly Measure was drawn up and before it was submitted to Her Majesty in Council for ratification. In terms of the House having scrutiny of what is passed in Wales, that to my mind remains a better mechanism, but if that is not to be the course of action, we need to set out formally a procedure that will allow the House to undertake pre-scrutiny.

The Minister worried me a little in the course of his comments, because he made it clear, rightly, that the system could be short-circuited. We will be relying on the Standing Orders of the House. No formal mechanism will be prescribed. That is not adequate. The Government need to consider what mechanism they want for the proper scrutiny process to take place. If amendment No. 187 is not a suitable vehicle for that, I look forward to a Government alternative being tabled on Report.

As we are dealing with a novel area—I cannot think of previous legislation of this kind—I am not persuaded that the existing informal systems, which are enshrined only in convention and Standing Orders, are adequate. If the House is to have a proper role in deciding whether the Welsh Assembly should legislate, there is no reason why the scrutiny procedure should not be laid down in primary legislation. For those reasons, I seek to put amendment No. 187 to the vote. Even if it is not carried, it may be an inducement to the Government to consider the matter further. Subject to that, I seek leave to withdraw amendment No. 180, and to press amendment No. 187 to the vote.

Amendment, by leave, withdrawn.

Amendment proposed: No. 187, in page 51, line 29, at end insert—

'(5A) Any draft of an Order in Council laid before Parliament under this section must be accompanied by—

(a) a detailed memorandum setting out the scope of the proposal, its practical effects on Wales and the legislative authority that would pass to the National Assembly, and

(b) a draft of the proposed Assembly Measure.

(5B) Before an Order in Council is subject to a resolution of both Houses of Parliament, the Secretary of State must make a motion to refer the draft of the Order in Council, along with the draft Assembly Measure, to the Welsh Grand Committee for consideration.

(5C) A report of the debate in the Welsh Grand Committee on the draft Order in Council and Assembly Measure must have been available to both Houses of Parliament for a period of not less than 60 days before any Order in Council is made under this section.'.—[Mr. Grieve.]

Clause 95 — Scrutiny of proposed Orders in Council by Supreme Court

Hywel Williams (Plaid Cymru, Caernarfon)

I beg to move amendment No. 28, in clause 95, page 52, line 11, after 'Counsel General', insert 'or the Assembly'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 29, in clause 98, page 53, line 44, after 'Counsel-General', insert 'or the Assembly'.

No. 41, in schedule 9, page 136, line 33, at end insert 'or the Assembly'.

No. 42, in schedule 9, page 140, line 14, after 'Counsel-General', insert 'or the Assembly'.

Hywel Williams (Plaid Cymru, Caernarfon)

The amendments would enable not just the Counsel-General and the Attorney-General but the Assembly itself to appeal to the Supreme Court on disputes about whether the Assembly has acted within its powers. It seems entirely reasonable for the elected Assembly to have that power, and unreasonable that it should not. The Bill proposes a separation of the Assembly from the Government, which is very welcome, of course. But the two are being treated differently, with the elected body coming off worse.

The Counsel-General, as I understand it, is deemed to be a Minister. While the power of referral to the Supreme Court is appropriate as a ministerial power, why is it not so for the elected body? However much the Assembly might wish to do so, as things are it cannot appeal to the Supreme Court. In certain circumstances, it might be appropriate to confer on an elected body, because of its standing as an elected body, powers that it would be inappropriate to confer on an individual appointed Minister. However, in spite of that excellent principle, the elected body is coming off worse here. Furthermore, what recourse would there be for the Assembly if the Counsel-General refused to refer the matter to the Supreme Court for reasons that the Assembly might not accept? What recourse would there be for the Assembly and the Counsel-General if the Attorney-General refused to refer a matter to the Supreme Court for reasons that they might not accept?

We can speculate about disagreements on referral to the Supreme Court between the Counsel-General and the Attorney-General, but that probably goes beyond the scope of the amendment. Given the Assembly's status as the elected body and as something separate from the Executive, and given those potential problems, we think that there is reason for the Assembly to have direct recourse to the Supreme Court.

Dominic Grieve (Conservative, Beaconsfield)

I am not minded to support the amendment, but it raises a pertinent issue. It might be helpful if the Minister took the opportunity to explain the nature of the relationship that will exist between the Counsel-General and the Assembly. There is some lack of clarity in the Bill's text about whether the Counsel-General is the servant of the Executive and the Ministers or of the Assembly, or of both.

Of course, in this House, the Attorney-General fulfils a function both as the Government's adviser and, in theory, an adviser to the House, although because he is not a Member of the House, it is difficult for him to discharge that responsibility. I have not seen the Solicitor-General fulfil that function since he was appointed. It is an issue on which there needs to be some clarity.

On the face of it, I can see why the Government have restricted the right to make a reference to the Counsel-General or the Attorney-General, but it raises the question of what the Counsel-General's duties will be and how he should discharge them. I assume that by virtue of his office he has to cast a wholly impartial eye over legislation and, if he thinks that there is an issue of controversy or difficulty, to make the reference. However, that raises a question about the extent to which he should be seen to act and will act independently and the extent to which he will be seen as a creature of the Executive.

The standard problem that could arise, I suppose, is an issue on which there is disagreement between the Assembly and Ministers. We should like some reassurance from the Government as to how they see this working in practice.

John Gummer (Conservative, Suffolk Coastal)

Could we have a clear explanation of this, for another reason? I am rather minded to support the amendment, which seems merely to point out the nonsense of so much of the interior tergiversations that are going on in this clause. The thing that concerns me is the role of the Counsel-General. If he can be shown to be an independent figure able to take a proper legal view of what the Assembly wants, there may be an argument for saying that the Assembly, separate from the Counsel-General, should not have an application to the Supreme Court. The Minister must convince us that the Counsel-General will not be a creature of the Government but a proper servant of the Assembly. If he can so convince us, it would be perfectly proper to leave the Counsel-General that access, because of his legal position, but the Minister would have to be significantly more convincing than either the explanatory notes or what we have heard so far from him. I hope that he will help me.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Clause 95 gives a specific power to the Counsel-General and the Attorney-General to make a reference to the Supreme Court, where they would like a decision on whether a particular matter specified in a proposed Order in Council actually relates to a field listed in part 1 of schedule 5.

We think that this should be a power for the Counsel-General or Attorney-General to exercise, because it is all about legal interpretation. Does the matter, as described in the proposed Order in Council, actually relate to a field as set out in part 1 of schedule 5? In most cases, it should be clear whether a matter relates to a specified field or not, so in most cases it will not be necessary to use this power. However, in the less clear-cut cases, the Counsel-General or Attorney-General will need to make a judgment as to whether a decision is required from the Supreme Court so that there is clarity on whether a matter is relevant or not.

On a technical point, the Assembly will be an unincorporated association of 60 members. As such the Assembly itself could not institute proceedings in court, but it is possible that the Assembly Commission could act on its behalf. However, that is just a technical point. On the principle that I think the hon. Member for Caernarfon (Hywel Williams) is proposing, I still believe that it is inappropriate and unnecessary for a legal representative of the Assembly, as a legislature, to have such a role. The Counsel-General would be acting to represent Welsh devolution interests in proceedings involving devolution issues. It would seem odd to have two people able to carry out this role.

The position of Counsel-General means that there is someone with status similar to that of Attorney-General—this touches on the points that the hon. Member for Beaconsfield (Mr. Grieve) and the right hon. Member for Suffolk, Coastal (Mr. Gummer) made—to represent devolution interests in proceedings. Opposition Members should welcome the fact that the Bill creates a post that can represent Welsh devolution interests in proceedings. But the provisions in the Bill correspond with provisions made with respect to Scotland and Northern Ireland.

The Counsel-General's appointment will have to meet with the approval of the Assembly, which should also enable the Assembly to signal that it has confidence in that person's ability to represent Welsh interests.

John Gummer (Conservative, Suffolk Coastal)

Would the Counsel-General be required to give advice to the Assembly? In other words, if the Assembly were to say to the Counsel-General, "We think this is a matter you ought to look at," will he be required to give the reasons for his decision not to refer it to the Supreme Court or would he be like the Attorney-General, who never gives the reasons for his advice?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I assume, bearing it in mind that the Counsel-General is a member of the Welsh Assembly Government, that when he is approached—we are talking about whether an Order in Council fits in with part 1 of schedule 5—he will be open in giving his opinion as to whether he thought that it did or did not fit in.

I hope that I have answered the point that the hon. Member raised in his amendment. I hope that I have been able to reassure him that the amendments are not necessary, that the Counsel-General will be able to ensure that advice is given to the Assembly and that if there is a question as to whether the issue relates to part 1 of schedule 5, he will refer the matter to the Supreme Court.

Dominic Grieve (Conservative, Beaconsfield)

The Counsel-General may be a Member of the Assembly, but then again he may not. The option is open. We know from clause 49 that his appointment has to be ratified by the Assembly, but it is not clear how the Assembly would apply pressure, for instance, for his removal. Indeed, this applies to all the Welsh Ministers. I do not know whether it would be possible for the Welsh Assembly to move a motion for someone's salary to be reduced or, indeed, extinguished, which is the way we in this House normally go around these things if we wish to register our displeasure with a Minister's conduct.

There are some issues of procedure. I accept that, ultimately, if the First Minister stands by a Counsel-General who is not performing adequately, that will lead to a crisis in which the Executive might be overturned by the Assembly. Nevertheless, that is a bit of a nuclear button option. In this House, we have other ways of showing clearly that someone has lost our confidence.

David Davies (Conservative, Monmouth)

Will my hon. Friend give way?

Dominic Grieve (Conservative, Beaconsfield)

No, I cannot. I was intervening on the Minister.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

It was a long intervention, but not that long. I think that it was an intervention rather than a speech. Perhaps I should have been urging the hon. Gentleman to give way.

Mr. Benton, I do not wish to go out of order. Strictly speaking, we are starting to discuss the issues set out in clause 49. The Assembly would have the power to vote for a reduction in salary. As clause 49 makes clear, proceedings are laid out in the Bill that would have to be followed either to appoint or to remove the Counsel-General.

I think that I have responded to the points raised adequately. I am conscious that we need to make progress, and I urge the hon. Gentleman to withdraw his amendment.

Hywel Williams (Plaid Cymru, Caernarfon)

I thank the Minister for that response. We welcome the creation of the post and, given his reassurance to me and to the right hon. Member for Suffolk, Coastal (Mr. Gummer) on the Counsel-General's role in advising the Assembly as well as the Government—notwithstanding that he is counted as a Minister—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)

I beg to move amendment No. 188, in page 52, line 11, leave out 'may' and insert 'must'.

This is a probing amendment. I accept, before the Minister tells me, that "must" would be overly prescriptive, but the explanatory notes are, unfortunately, simply a replication of the clause and it would therefore be helpful if the Minister set out the criteria that would define "may" as it currently appears in the clause.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I am glad that the hon. Gentleman said that this is a probing amendment, because if accepted it would mean that every Order in Council would have to be referred to the Supreme Court. Clearly, he does not propose that. Occasionally, it will be necessary to obtain the opinion of the Supreme Court and the Bill provides for that. That is why the clause contains the word "may" and I invite the hon. Gentleman to withdraw his amendment.

David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)

I am disappointed that we did not get an example, or a definition of the criteria that would cause the process to be used. On other occasions on which the provisions in the Bill have not been entirely clear, the Minister has helpfully set out examples. Given where we are in our proceedings, I shall not press the matter further, but it would be helpful if the Minister could identify more fully the circumstances in which the process would be used. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 95 ordered to stand part of the Bill.

Clause 96 — Introduction of proposed Assembly Measures

Hywel Williams (Plaid Cymru, Caernarfon)

I beg to move amendment No. 30, in page 52, line 21, at end insert

', or

(c) by any committee of the Assembly established under section 28 or section 30.'.

Clause 96(1)(a) and (b) provide that an Assembly Measure may be introduced to the Assembly

"by the First Minister, any . . . Minister . . . any Deputy . . . Minister or the Counsel General, or . . . by any other Assembly member."

The amendment would add to that list any Committee of the Assembly. It is a probing amendment, but I hope that the Minister will respond to a couple of points.

Committees fulfil an important function in the Assembly. They are potentially a resource of great expertise and, in fulfilling their scrutiny function, they will be familiar with the detail of issues and in a good position to be innovative in their thinking. Any Measure proposed by a Committee would still be subject to all the scrutiny procedures that would apply to Measures proposed by Ministers or Back Benchers, but such a Measure would have all the advantages of having been scrutinised in detail beforehand by Members from all parties who would have reached a consensus. The Measure would be all the better for it. I hardly need remind the Committee that cross-party consensus is a prized commodity when promoting legislation. If, for some reason, a consensus had not been reached, the Assembly and, I dare say, this place and the other place could draw their own conclusions when giving the Measure further consideration.

It may be argued that the role of Committees is to hold the Government to account, but it is also their role to contribute to policy development. Committees will need to be reactive to the Government's legislative priorities, but it has been said that it is necessary

"to strike a proper balance between doing things that are the Government's agenda and setting your own agenda."

That quotation comes from evidence given to the National Assembly's Committee on the Better Governance of Wales White Paper—its report was published in September last year—by the Clerk to the House of Commons. I am sure that hon. Members will agree that it is an excellent recommendation.

As Professor McAllister said, also in that report, we should see

"policy development and scrutiny as part of the same linear equation".

Hon. Members' grasp of algebra might be as variable as mine, but her point is clear. This amendment is based on solid experience. There have been several Scottish examples of Committees being successful in generating legislation, as was shown in the report. That was also the case in respect of the Northern Ireland Assembly in the past. The process works and has proven useful. That is one reason why the National Assembly Committee recommended that Committees should be able to propose Measures. We endorse that view and invite other hon. Members to support us.

David Davies (Conservative, Monmouth)

I offer my support for the amendment. It would appear to be anomalous that Assembly Committees cannot bring forward Measures. However, I wish to add a word of warning. In my experience of six years in the Welsh Assembly and my more limited experience in the House of Commons, I have noticed that the Committee system here works far better. I am not certain what the problem is, but it is probably to do with the number of Assembly Members and the fact that everyone knows everyone else so well. Also, most of the Committees are chaired by members of the governing party. Whatever the reason, the culture in this place is that Committees act independently and impartially and that, to some extent, people leave behind their political allegiances. That is certainly not the case in Assembly Committees, and I would therefore be cautious about suggestions that they function as well and as impartially as Committees in this place.

Hywel Williams (Plaid Cymru, Caernarfon)

They might do so some day.

David Davies (Conservative, Monmouth)

My hon. Friend—if I may call him that—says that they may do so in the future, and I suggest that we wait and see. At the moment, the Assembly Committees are not as impartial and too many of their members are in the thrall of the party Whips.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

It may assist Opposition Members if I say that I agree that it may in some circumstances be appropriate for an Assembly Committee to propose an Assembly Measure. For that reason, the Bill does not prevent Committees from doing so. Clause 96 ensures that Ministers and individual Members have the right to propose Measures, subject to the provision of standing orders. However, there is nothing to prevent standing orders from providing that Committees may also propose Measures. It is appropriate for the Assembly's Standing Orders to make any provision relating to the proposal of Measures that is additional to the minimum provision in clause 96. The amendment is not therefore necessary and I invite the hon. Gentleman to withdraw it.

Hywel Williams (Plaid Cymru, Caernarfon)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 ordered to stand part of the Bill.

Clause 97 — Proceedings on proposed Assembly Measures

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 170, in page 53, line 5, leave out subsection (2).

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 172, in page 53, line 11, at end insert 'and'.

No. 173, in page 53, line 13, leave out 'and'.

No. 171, in page 53, line 14, leave out paragraph (c).

No. 174, in page 53, line 22, leave out from 'Welsh' to end of line 24.

Dominic Grieve (Conservative, Beaconsfield)

Clause 97 will regulate proceedings on proposed Assembly Measures. Subsection (1) provides that there should be a threefold procedure in the Assembly: a vote on general principles, an opportunity for the Assembly to consider Assembly Measures in detail—I take that to be a Committee or Report stage, adapted, obviously, due to the number of Members of the Assembly—and a final stage at which a proposed Assembly Measure can be passed or rejected. However, I am worried about subsection (2), which states:

"Subsection (1) does not prevent the standing orders making provision to enable the Assembly to expedite proceedings in relation to a particular proposed Assembly Measure."

There is a meeting of minds to the extent that part 3 of the Bill is not the same as part 4. Part 4 would, after a referendum, give the Assembly the legislative power to get on with it, for better or worse, but part 3 allows the Assembly to undertake detailed scrutiny of legislation in a procedure under which we retain, by virtue of the Order in Council, overall responsibility for the process. If that is indeed what we are doing, I have considerable anxiety about whether subsection (2) is appropriate because it provides a mechanism whereby the Assembly, having been given power by the Order in Council that we had enacted, could enact the Assembly Measure without giving it the consideration that is the very justification for granting the power in the first place.

The situation is quite different from that under part 4. I have tabled an amendment that is similar to amendment No. 170 to part 4, but that is a probing amendment because my attitude to part 4 is rather different. I understand that, if we are transferring legislative functions to an independent body, it is not for us to start telling it how to carry out its business. However, the Government are announcing to the people of Wales that part 3 offers a hybrid procedure under which the House retains control, but detailed scrutiny is carried out by the Assembly so that the minutiae can be thrashed out in a way that provides better legislation for the Welsh people. It is thus astonishing that subsection (2) provides a loophole under which the Assembly could decide not to carry out adequate scrutiny.

John Gummer (Conservative, Suffolk Coastal)

Can my hon. Friend imagine a circumstance in which the House decided that it was suitable for the Welsh Assembly to consider a matter, yet the Assembly thought that the importance of the matter was such that it had to rush the process through? I think that those two things are utterly contradictory.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my right hon. Friend and cannot imagine such a circumstance. The process under part 3 that must be followed to get the Order in Council, including the delay periods, shows that Assembly Measures are hardly the material of urgent business, so it is difficult to understand why subsection (2) is needed at all.

I hope that the Minister will accept that I say sincerely that subsection (2) is an invitation to possible conflict. Someone could decide to short-circuit the process, and the difficulty would be that the poor old Secretary of State would have to decide whether to apply his veto because hon. Members would make representations to suggest that the whole matter had not been considered by the Welsh Assembly and that full scrutiny had thus not been carried out.

I look forward to hearing the explanation for subsection (2) from the Minister. There is justification for including such a provision in part 4, if it is ever to be implemented, but I do not understand the justification for including it in part 3. If I understand the Government's position correctly—let me leave aside the question of whether I agree with the principle of the process—they are offering the reassurance that the people of Wales will get better governance because the Welsh Assembly will have more time to flesh out the details of a principle that has been approved by the House. However, subsection (2) is a mechanism by which the Government say that if the Welsh Assembly wishes to circumvent that principle, it may do so.

I look forward to hearing the Minister's response because unless it is adequate, we might well wish to pursue this important matter on Report, if not now. However, I do not want to provoke a conflict at this stage because even though I am not wildly happy with part 3 of the Bill, I want to improve it.

Amendments Nos. 171 to 173 are probing amendments that relate largely to the same point: the Standing Orders for private proposed Assembly Measures. The House has different procedures and Standing Orders for its consideration of private measures, so I understand that the Welsh Assembly would need different procedures, too. However, private proposed Assembly Measures would still need to be considered fully. We must not have a situation in which that process can be short-circuited. Although I accept that there must be a mechanism for a separate system, the amendments reinforce the point that I am making about subsection (2).

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I support amendment No. 174. The hon. Member for Beaconsfield (Mr. Grieve) is on to a good point. I cannot imagine any circumstances in which an Assembly Measure should not be produced bilingually. It would be frankly unreasonable to expect all the paperwork generated by the Assembly to be bilingual, but an Assembly Measure, which will be akin to a parliamentary Bill, should be published in both languages. I fully support the hon. Gentleman and add my voice to his call for an explanation of the circumstances that would justify such an exemption.

Dominic Grieve (Conservative, Beaconsfield)

I regret that I failed to speak to amendment No. 174, but the hon. Gentleman gives me the opportunity to set out the precise explanation that I want from the Minister. Bilingualism appears to be absolutely embedded in the Assembly, so surely the idea of an Assembly Measure that is not bilingual is very odd indeed.

John Gummer (Conservative, Suffolk Coastal)

I owe a filial duty to my Welsh-speaking father to support amendment No. 174 and the need for bilingual provision. I have always held it against him that we did not learn Welsh in the household, and I am pleased that the Welsh language is now much more widely spoken. I support the general idea that the Welsh Assembly should be bilingual in its entirety, although I understand that complex legal tomes or scientific articles could be excluded. There should be no possibility of the two languages being thought of as anything other than equal.

David Davies (Conservative, Monmouth)

I am happy to agree entirely with my right hon. Friend, but sometimes things can go too far. For example, the emergency signs for lifts in the Welsh Assembly were written in English and Welsh and also set out in both English and Welsh Braille. I am given to understand that during the first six months that the Assembly was in place, the Welsh Braille sign was upside down, so the only way in which people would have been able to use it would have been if they had stood on their heads.

John Gummer (Conservative, Suffolk Coastal)

We can find the absurd in many such situations. It is the very nature of a law, although I do not know what to call it because one word that can be used is impolite in the House and the use of the phrase Murphy's law is now illegal because it is racist. Whatever the law is called, these things just happen.

The matter is crucial. It is crucial the other way round, too, because it is also important that English-speaking Assembly Members are not put in a position in which an important document is not available in English. Wales has done remarkably well in returning to a choice of languages. The fact that a great language was not lost is a rare and encouraging example. It would be odd if the Committee decided not to do everything it could to encourage that further.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

This has been an interesting and, hopefully, brief debate. Clause 97(2) enables the Assembly, in its Standing Orders, to provide for the circumstances in which a particular proposed Measure can come before the Assembly and be taken through a procedure that is different from that set out in clause 97(1). As the hon. Member for Beaconsfield (Mr Grieve) said, there is an equivalent provision in clause 110(2), as regards Bills in the Assembly.

I am sympathetic to the concern that we ensure that all Assembly Measures receive proper scrutiny, but clause 97(2) does not circumvent that. Instead, it recognises that there may be circumstances in which the Assembly's standard scrutiny procedures would not be appropriate because the Measure concerned deals with a matter that requires urgent attention. Animal health, such as foot and mouth, is an example of that. The circumstances would arise when the Assembly has already been given powers to legislate by this place. If a foot and mouth outbreak, or another animal health issue, required it to legislate quickly, clause 97(2) would allow it to truncate the process, as we have done on occasion.

I imagine that the Assembly's standing orders set out the time between its equivalent of our Second Reading, Committee stage, and Report and Third Reading—the same stages as we go through. The standing orders could be amended to allow the scrutiny process to take place over one or two days. That is sensible. I am sure that the hon. Gentleman accepts that we have included the provision for those purposes. It will be used on rare occasions, but it would be wrong for the standing orders not to set out proceedings in which the Assembly can address urgent issues.

Dominic Grieve (Conservative, Beaconsfield)

I understand the force of what the Minister says, but the difficulty is that the expression "Assembly Measure" will cover the enactment of what we consider to be statutory instruments and secondary legislation, and the enactment of a form of primary legislation, for which we have given permission. The two things have been rolled together, something that we touched on yesterday. In those circumstances, should we not at least make an attempt to bring back a distinction, because the two are rather different?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I understand the hon. Gentleman's point, but there may well be a need for the Assembly to take advantage of the permission, given by this place, to legislate not just in secondary legislation but, in effect, through its Measures system. I would be surprised—it would be illogical and, possibly, irresponsible—if those standing orders did not allow for emergency legislation to be enacted by the Assembly.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Given that the Minister is unable to give an example, apart from animal health, why not leave it to the Assembly to create its own standing orders? Why do we need to tell it what to do? The clause says "must include" so and so. It is prescriptive and tells the Assembly what to do. [Interruption.] On any reading, that is what it says.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Subsection (2) states:

"Subsection (1) does not prevent the standing orders making provision to enable the Assembly to expedite proceedings in relation to a particular proposed Assembly Measure."

We are not telling it how to do it; we are just giving it permission to change its standing orders, in whatever way it wants, so that it can expedite a Measure. We are not being prescriptive in that respect. We are allowing the Assembly, under its standing orders, to address the problem that I set out. We are putting in the Bill the provision for the Assembly to come up with its own solution, through its standing orders, to the need to introduce urgent legislation.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am talking about subsection (5), which is the subject of amendment No. 174. It states:

"The standing orders must include provision for securing that the Assembly may only pass a proposed Assembly Measure if the text of the proposed Assembly Measure is in both English and Welsh"—

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I am not there yet.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I thought that the Minister had addressed that amendment. I will hold my fire.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

For clarification, I was still addressing my remarks to amendment No. 170. I had not moved on to amendment No. 174.

Peter Bone (Conservative, Wellingborough)

On subsection (2), the Minister said that the provision will be used rarely. Will he give a rough figure of how many times that might happen in a year?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I would imagine that it would not happen every year. It would be a rare occurrence, for something like a major animal health problem, such as an outbreak of foot and mouth. It is rare for us to truncate our scrutiny of a particular problem.

Amendments Nos. 172, 173 and 171 relate to private Assembly Measures, and I recognise the comments made by the hon. Member for Beaconsfield. The provisions are similar to those that apply in this place to private and hybrid Bills, by which a special Committee is set up to take evidence. That is the thought behind them.

On amendment No. 174, we would be amazed if the Assembly did not produce its Measures in both languages. We have a simple reason for resisting the amendment. The Assembly may, on occasion, want to introduce a Measure on public health, for example, which lists dozens of micro-organisms known only by their Latin names. Would hon. Members want us to convert those into English and Welsh? Let me give the assurance, however, that we would expect any Measure to be produced in English and Welsh.

Dominic Grieve (Conservative, Beaconsfield)

At the risk of being pernickety, the wording of subsection (5), and the use of the expression

"the text need not be in both languages",

does not cover the possibility of the text being in Latin, because it is not one of the two languages specified? In those circumstances, the Minister would have to amend the legislation to say that the text does not have to be in either language, but some other.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

All I can say to the hon. Gentleman on that point is that both he and the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) are seeking an assurance that the Measures would be published in both English and Welsh, as was the right hon. Member for Suffolk, Coastal (Mr. Gummer), and I can give that assurance.

Bearing in mind what I have said previously and the assurances that I have given on amendment No. 174, I hope that the hon. Gentleman will withdraw his amendment.

Dominic Grieve (Conservative, Beaconsfield)

Short debates can often be the most interesting. The Minister has persuaded me completely—indeed, I do not think that I needed much persuasion—on amendments Nos. 171, 172, and 173 about the proposed private Assembly Measures. Clearly, the Standing Orders of the Welsh Assembly will have to make provision for dealing with private business.

The Minister has also persuaded me, so far as amendment No. 174 is concerned, that there are good reasons for not fettering the Assembly by requiring that it can produce texts only in English and Welsh. However, I recommend that he and his legal advisers look again at the provision, because I wonder whether it has the effect of requiring that texts can be in English or Welsh but nothing else. Perhaps I am wrong about that, and I should be greatly reassured if that were so, but my reading of the provision is that texts normally have to be in English and Welsh or in English or Welsh. That might create a problem if Latin terms are to be included.

The Minister has only half persuaded me on amendment No. 170. This debate has highlighted the odd situation that we are creating: defining as an Assembly Measure that which in this House we would consider to be either primary legislation or statutory instruments. The Minister makes a persuasive case for urgency if the Assembly is enacting what we would normally call a statutory instrument. After all, we sometimes have to enact them urgently, and by their very nature a statutory instrument can in this House be passed rapidly. By virtue of the way in which the Welsh Assembly operates, however, statutory instruments are normally mulled over at considerably greater length, which was one argument for the original devolution proposals given to the Welsh.

Of course, if urgency is required, something can always be enacted by a statutory instrument in this place. It is clear that it is unacceptable that there should be short-circuiting of the primary legislative functions which could be transferred under the Order in Council procedure, as I think the Minister has acknowledged, but, as the Bill stands, there is a risk that that is exactly what could happen, which would defeat the entire object of the exercise of going through and enacting part 3.

Therefore, given the difficulty with the way in which we define Assembly Measures, I propose to consider the matter further, but I cannot rule out on Report our suggesting that some distinction must be drawn between different sorts of Assembly Measures. I urge the Government to consider that, because within the term "Assembly Measure" we are lumping together forms of legislation which in this House we treat very differently, both in their significance and in the way in which we proceed. With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 97 ordered to stand part of the Bill.

Clauses 98 and 99 ordered to stand part of the Bill.

Clause 100 — Power to intervene in certain cases

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I beg to move amendment No. 125, in page 54, line 39, leave out paragraph (a).

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 158, in page 54, line 41, leave out paragraph (b).

No. 126, in page 54, line 43, leave out paragraph (c).

No. 175, in page 54, line 44, after 'England', insert 'and Wales'.

No. 176, in page 55, line 22, leave out subsection (8) and insert—

'(8) No order under this Section may be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.'.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I rise to speak to amendments Nos. 125, 158 and 126, which stand in my name and those of my hon. Friends.

The reason why the amendments have been tabled is very simple. The first amendment would deal with subsection (1)(a), which says:

"if a proposed Assembly Measure contains provisions which the Secretary of State has reasonable grounds to believe—

(a) would have an adverse effect on any matter which is not specified in Part 1 of Schedule 5".

That is terrifically broad to a point that it is almost nonsense. I hope that in responding the Minister will give us some detail, because in the hands of an unsympathetic Secretary of State it could be a tool to stamp on the Assembly and prevent it from proceeding in its normal democratic way. The notes on clauses are more obtuse than usual, so there is no help there. I press the Minister for as much detail as possible on that paragraph. I am sure that he will do his best to enlighten us in due course.

Amendment No. 126 relates to paragraph (c), which effectively gives the Secretary of State the same veto. It refers to whether a Measure

"would have an adverse effect on the operation of the law as it applies in England".

Again, my objection is that that is nebulous. We would like to know more. In all the various reports and the notes on clauses that I have read, I have seen nothing of any great help. The provision is extremely broad and, again, an unsympathetic holder of the office could easily pray in aid such a power to prevent any legislation.

By far the most concerning is paragraph (b), which is the subject of amendment No. 158. For the record, I shall read the paragraph. It also provides for a veto and would come into effect where any Measure might have

"a serious adverse impact on water resources in England, water supply in England or the quality of water in England".

I remember as a young boy going with my father to Tryweryn. I have the honour to represent that area now, and I shall deal briefly with the history of the drowning of the valley. I know some of the displaced people from the Tryweryn valley, and I know that never again will the people of Wales stand for such undemocratic, Mugabe-type dealings. Every single Member of Parliament from Wales was against the drowning of the valley, but it went ahead. I hope that we will never see such an event again, because I do not know what would happen, but this clause would enable it, and that is my concern.

The provision has touched a raw nerve, not just among people such as myself who support Plaid Cymru but among others, because once more they can see potential for conflict. The paragraph clearly refers to water resources in England, and I can easily envisage that in some years from now somebody might consider that there is a need to drown another valley in Wales. As that would be such a large planning operation, it would come under the Office of the Deputy Prime Minister and then bypass the planning procedures in the Assembly. The Government could rely on that paragraph, among others, to ensure that the plan went ahead, whatever the view of the Welsh Assembly, which would be expressing the view of the Welsh people.

We have experienced that once already. I know families who were displaced and who still live in the Bala area. Most of the elderly people have now passed away, but some remain; their wounds are still open and they still feel a great deal of hurt. Subsection (1)(b) therefore touches a very raw nerve.

Jennifer Willott (Liberal Democrat, Cardiff Central)

My reading of the clause is that it applies only to Measures proposed by the Assembly, so the paragraph refers to the Secretary of State's decision, not on legislation that is coming from Parliament to the Assembly, but on a Measure proposed by the Assembly that would have an effect on the water supply. Will the hon. Gentleman clarify?

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

By all means. If the Assembly of its own volition, through one of its Measures, wished to signal that it opposed any such thing happening, the paragraph would enable the Secretary of State to overrule it. Now that the hon. Lady is taking an interest, perhaps she will tell me how she squares what she has just said with what the Liberal Democrat leader in Wales said. His response to the clause, which has been described as "bizarre" and "patronising", was:

"We're not children. Does anyone seriously think that a future Welsh Government would turn off the taps to England? Or that we would poison the water in our reservoirs? If we are to be trusted with making our own laws, then surely we can be trusted not to damage the supply of water to homes in the neighbouring country. This clause is insulting, and we will be seeking to get it removed as the Bill goes through Parliament and the Assembly."

I emphasise the last sentence. Is the hon. Lady disobeying her Welsh leader?

Jennifer Willott (Liberal Democrat, Cardiff Central)

I was actually asking a question, not stating a fact. The hon. Gentleman has not answered my question, but has merely quoted words back at me.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

While I am at it, I shall quote the Conservative leader in Wales. He said:

"I find this clause odd. Things like this show the Secretary of State for Wales has the powers of a colonial governor and we are not being treated as grown-ups."

Plaid Cymru's Assembly deputy leader said:

"We don't want a Secretary of State telling us what we should do with our water. I thought the whole point of devolution was to transfer power from London to the democratically elected 60 Members of the National Assembly."

If the hon. Lady's reading of paragraph (b) is correct, her colleagues in the National Assembly and hon. Members here—myself included—will take some comfort from that; but my ordinary reading of it suggests that it goes far broader than she has implied. It seems to me that a future Welsh Government could say, for whatever reason, that they were not willing to accept further valley drownings, and be overruled. My reading of the provision might not be correct, but that is my understanding.

When the Government were asked to comment on the provision in Wales on Sunday, the Wales Office spokesman said only:

"It is a fallback provision, and would only ever be used in extreme circumstances."

That being so, may I ask the Minister what he means by "extreme circumstances"? If they include closing off the water supply or, worse still, fouling the water supply, does not the Civil Contingencies Act 2004 deal with them? We are owed a better explanation. I ask the Minister to give us examples of extreme circumstances and to tell the Committee that my reading of the clause is wrong and that it would not allow Parliament to override the democratic view of the National Assembly if it decided against another valley being drowned.

John Gummer (Conservative, Suffolk Coastal)

The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) has understated his case. The three amendments are most important. Paragraphs (a) and (c) in subsection (1) differ from paragraph (b) because paragraph (b) contains the word "serious". I find that peculiar, because it means that the provisions that are the least precise may be activated when the consequence or effect of the Measure is not serious, but merely adverse.

It is extremely difficult to envisage how paragraphs (a) or (c) would be used. They can be used even in circumstances where the Minister would not have to show that the "adverse effect" was serious. Even the word "effect", used in paragraphs (a) and (c), is less powerful than "impact", which is used in paragraph (b); an effect is a passing matter. I imagine that the phrase "adverse effect" refers to a range of issues—the list of fields specified in part 1 of schedule 5 is considerable, encompassing a huge number of areas. Under the clause, a Secretary of State, by diktat, would be able to say that a Measure that has a passing or glancing effect on some matter of importance—sufficiently important for the Assembly to feel that a Measure is needed—should be stopped because he has "reasonable grounds to believe" that it would have an "adverse effect". It is difficult to imagine that a Secretary of State would not be able to stop anything that he did not like. The condition of having "reasonable grounds" does not help, so vague is the wording used in the following paragraphs.

In my opinion, paragraphs (a) and (c) are entirely otiose. Their presence suggests that the Bill will not do what it is supposed to. I have all sorts of doubts about the processes set out in the Bill—they are far too opaque. However, if we are to proceed, we must not pretend that the Bill is a means of enhancing the powers of the Assembly, when, just in case the Assembly does something of which we do not approve, we have put in a few get-out clauses to keep power in the hands, not of Parliament, but of the Secretary of State. That is the second reason why I feel so strongly about this matter: I do not like Ministers having such powers without reference back to Parliament. Through the Bill, in effect, Parliament is delegating further legislative powers to the Assembly, but the Government are ensuring that Ministers will still have power, even though Parliament has delegated it. Both paragraphs (a) and (c) are unacceptable.

On subsection (1)(b), I agree with the hon. Member for Meirionnydd Nant Conwy. Either we trust the Welsh people or we do not. It is extremely difficult for me to accept that the Welsh people have to be singled out and measures taken to ensure that, where water is concerned, they should not in any way or in any circumstances be able to do anything that might upset the plans of English Ministers.

I have another reason to object. These days, when even some of our less educated newspapers are beginning to understand the importance of climate change, the issues relating to water have become more important, not less. I do not want to give the impression to the Welsh people—or to the English people—that if we are short of water, our first response will be to extend the resource, rather than to improve retention and reduce use. The clause is very old fashioned. It suggests that Wales is a provider of water for England. It does not say that England and Wales together must deal with the problems of the shortage of water, the effect of climate change, the need to restrain our use of water, and the like.

The clause comes from a civil servant. Having been a Minister for 16 years, I know the sort of civil servant who would have drafted it.

Chris Ruane (Labour, Vale of Clwyd)

Name him.

John Gummer (Conservative, Suffolk Coastal)

It is for the Government to name him or her. I suspect that somebody came out of the woodwork one day and said to the Minister, "Ah, Minister, better not." That is a very dangerous part of the civil servant's language. "Better not give the Welsh the possible power to do something about water. Better remind them that it's not their water. It is, in effect, our water and we're going to decide what is done with it. Better not, Minister. Let's keep the powers that really matter."

That is offensive to Welsh people. One would not have said that about any other community in the United Kingdom, either historic communities or newly found communities. I invite the House to substitute the names of a range of newly found communities in the clause and see how well that goes down. The quality of the drafting is below even the low standard of the Bill.

I suggest that we use the Civil Contingencies Act to cover the problem of a revolutionary party in the Assembly bent on stopping people having water. There is no need for the clause. It is an unnecessary attempt to remind the Welsh where they really are—under the control not of the House, but of Ministers. If I were living in Wales, I would find the clause unacceptable, as the leader of the Conservative party in Wales suggested, and I hope very much that it is removed.

David Mundell (Conservative, Dumfriesshire, Clydesdale and Tweeddale)

My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) raised a number of interesting issues, which I look forward to hearing the Minister address. As I said in relation to an earlier amendment, the confusion derives from the explanatory notes that accompany the Bill and the lack of clarity about the meaning of nebulous phrases such as "adverse effect" and "serious adverse effect". It is incumbent on the Minister to define for us the difference between the two, and to explain the reason for two definitions in the same clause.

As there is a conjoined English and Welsh jurisdiction, subsection (1)(c) should refer to that, and not just to the law in England, which does not exist as a jurisdiction. That is the purpose of amendment No. 175. If the Minister is able to satisfy the House as regards the terminology in subsection (1), we propose in amendment No. 176 an affirmative procedure for orders brought before the House.

The Minister can hardly expect anything other than the reaction in the Chamber this evening to the clause, given that the definition is so nebulous and the potential impact of the clause is so serious. If the clause had been proposed as an amendment by the Opposition, the Minister and others would have called it a wrecking amendment tabled by people determined to ensure that the Bill and the procedures would not work. It is incumbent on the Minister to answer the questions that have been raised, and further questions that my hon. Friend the Member for Clwyd, West (Mr. Jones) intends to raise.

David Jones (Conservative, Clwyd West)

I am concerned about clause 100(1)(c). As my hon. Friend the Member for Dumfriesshire, Clydesdale and Tweeddale (David Mundell) observed, we occupy a conjoined jurisdiction of England and Wales, yet the clause provides that the Secretary of State can effectively put a stop to an Assembly Measure only if it has an adverse impact on the operation of the law as it applies in England. We have a large body of law that may well be affected by an Assembly Measure not only in England, but in Wales. It is extraordinary that the Secretary of State has no power of intervention if an Assembly Measure has an adverse effect on the operation of the law as it applies in Wales also. The explanatory notes are silent on that point, so will the Minister expand on it?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

The measures set out in subsection (1) replicate schedule 3, paragraph 6 of the Government of Wales Act 1998. There is nothing new in subsection (1). The provisions were discussed in this place and passed in 1998. That provides some context for the measure.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Is the Minister saying that paragraph (b) about water resources was in the 1998 Act?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I am assured that that is the case. Perhaps that will lower the temperature of the debate so that we can address the detail.

Clause 100 contains powers for the Secretary of State, by order, to prevent a proposed Assembly Measure from being submitted for approval by Her Majesty in Council. These powers are rightly constrained. The Secretary of State would be able to block a proposed measure only in certain prescribed circumstances. Moreover, the Secretary of State must have reasonable grounds to believe that those circumstances exist.

Hon. Members asked about the difference between paragraph (a), which refers to adverse effects beyond the Assembly's legislative competence, and paragraph (b), which refers to

"a serious adverse impact on water resources".

An adverse effect on matters beyond the Assembly's legislative competence is an issue that we have already discussed. That could be addressed through the Counsel-General or the Attorney-General. I emphasise to the hon. Member for Meirionnydd Nant Conwy that the clause relates to Assembly Measures and their possible effect, not to a UK Department imposing some measure on Wales. There is a remote possibility that these circumstances may occur and as in the 1998 Act, we need to deal with that possibility.

The clause refers to an adverse effect on matters outside the Assembly's legislative competence. If the process already exists whereby such an issue may be referred to the Supreme Court in the Order in Council process, the provision in the Bill would mean that if, after a Measure had been completed, a problem—possibly purely technical—emerged in relation to whether the Measure would have an impact in an area for which the Assembly did not have legislative competence, the Secretary of State could prevent it from going forward, or perhaps suggest to the Assembly that it look again at the Measure and amend it.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

May I take the Minister back to clause 100(1)(b), which deals with water resources? What would happen if the National Assembly wanted to pass a measure to outlaw any further drownings of valleys because it believed that water needed to be conserved and that a certain percentage of water was being wasted through leaking pipes every day of the year? Could the Secretary of State say, "No, we are not having that, because we might need compulsorily to acquire land to drown in the future." I believe that Parliament would prevail in those circumstances and that the voice of the Assembly would be drowned.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

Let us examine the hypothetical case that the hon. Gentleman has raised, in which the Assembly said that there would be no increase in the amount of water available. As I read clause 100(1)(b), such a proposal would have a serious adverse impact on water resources, water supply or the quality of water in England. The proposal does not specify an increase; it describes the current situation and states that it should not be made any worse. Hon. Members were seeking an example of an Assembly Measure that would have such an impact, but I cannot think of one. However, there might be a measure affecting a major forestry issue, for example, that would have an impact on the water resources that are supplied to England. The provision might apply in that kind of area.

I repeat that this does not involve something being done to Wales. It would involve an Assembly Measure that was being introduced. The hon. Member for Meirionnydd Nant Conwy referred to the drowning of valleys, but I just cannot see how that would relate to the circumstances to which these requirements refer.

John Gummer (Conservative, Suffolk Coastal)

I ask the Minister to look again at his explanation of clause 100(1)(b). It seems clear to me that the provision could be used by a Minister against an Assembly Measure that related to the increase of water resources. If England thought that there was a need for such an increase, any such Measure could have a serious adverse impact on water resources. The provision does not mention present or previous water resources; it simply mentions water resources. The Minister is giving that opportunity; he might want to. I think that we ought to know.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

We are starting to get into the realms of fantasy now. This provision has been on the statute book since 1998, and there has never been a problem with it. I simply cannot accept some of the arguments that have been put forward. These are perfectly reasonable proposals that were originally set out in schedule 3(6) of the Government of Wales Act 1998.

David Jones (Conservative, Clwyd West)

I note that the word "effect" is used in clause 100(1)(a) and (c), while the word "impact" is used in paragraph (b). Will the Minister please explain—[Interruption.] Clearly, an Act of Parliament uses words in a particular manner in order to convey a particular meaning; at least, one hopes that it does. Can the Minister explain why the word "impact" is used in paragraph (b), and the word "effect" in paragraphs (a) and (c)?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

No, I cannot. We are trying to scrutinise a very large Bill, and I think that we are now moving into an area in which our proceedings might fall into disrepute. We really need to move on.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Will the Minister give way?

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I will give way to the hon. Gentleman, but I hope that he is going to make a sensible intervention.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I only make sensible interventions. I have been listening very closely to the arguments put forward by the hon. Member for Meirionnydd Nant Conwy and to the Minister's response to them, and I must take issue with what the Minister has just said. As the hon. Member for Clwyd, West (Mr. Jones) has just pointed out, the wording of these provisions is very important, and it is our duty to get this right. If different terminology is used in paragraph (b) from that in paragraphs (a) and (c), one has to assume that there is some logic behind that. I know that this argument is taking a bit of time, but I hope that the Minister is about to receive some clarification on this, because for me at least, his answer will be salient to what we should do if there were a vote on the amendment.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

This will really enlighten the Committee. The reason that the word "effect" is used is because it relates to the legislative environment. The reason that the word "impact" is used is because it relates to the physical environment. I hope that everyone is happy with that explanation.

As I was saying, the intervention powers are extremely limited, but they are important. It is absolutely right that the Secretary of State should be able to prevent proposed Assembly legislation from having adverse consequences of the kind set out in clause 100(1). It is unlikely that that would be necessary, but it is important that that power should exist.

Amendment No. 175 would give the Secretary of State the power to override proposed Assembly legislation just because he or she thought that it would have a bad effect. That would be completely unacceptable. We must strictly constrain the powers of the Secretary of State, and I would urge hon. Members not to support that amendment.

Amendment No. 176 would provide that an order preventing an Assembly Measure from being submitted for approval by Her Majesty should be subject to the affirmative rather than the negative resolution procedure. I suspect that it has been tabled in this way because the previous amendment, amendment No. 175, is so powerful. The reason that we have proposed to use the negative procedure, which could be implemented by either House of Parliament, is that the Secretary of State must make an order within four weeks. It would not be possible to do that, or to be properly accountable, if we were to use the affirmative order procedure.

In conclusion, the Conservative amendments and the Plaid Cymru amendments are poles apart, in that they seek to do completely opposite things. Any of them would unbalance devolution in one direction or another. The position that we have outlined in the Bill strikes a perfect balance, and I would therefore ask the hon. Member for Meirionnydd Nant Conwy not to press his amendment to a vote.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Perhaps unsurprisingly, I am far from satisfied. The Minister has not assisted us very much on amendment No. 158. We have had a discussion, and he has said certain things about it, but I am still unclear. From my reading of paragraph (b), I still believe that, were the Assembly to decide to introduce a measure to prevent the creation of any more dams or the drowning of any more valleys in Wales for any purpose, Parliament could lawfully override that measure via the Secretary of State. That is quite plain, because the provision does not use words such as "current" or "historical". It does not relate to the here and now; it is for the future. Let us be straight about this; all legislation is about the present and the future, not the present alone. We do not legislate for tomorrow alone; we legislate for 10 years from tomorrow, and for 20 and 30 years from tomorrow if the Bill is reasonable.

Unfortunately, I am dissatisfied. I know that time is short for our debate generally, but I wish to put amendment No. 158 to the vote.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Does the hon. Gentleman wish to withdraw amendment No. 125?

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 158, in clause 100, page 54, line 41, leave out paragraph 9(b).—[Mr. Llwyd.]

Clause 102 — Referendum about commencement of Assembly Act provisions

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 189, in clause 102, page 56, line 24, leave out subsection (3).

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

We move on to part 4 of the Bill. In the spirit of the welcome that I accord to this section of the Bill, we thoroughly approve of the provision for a referendum. As we have argued previously, we believe in asking the people of Wales for their views. Although the provision comes late in relation to the legislative devices encompassed in the Bill, certainly in part 3, we would not be so curmudgeonly as to fail to welcome the referendum should the Assembly receive full law-making powers.

I want to express an element of scepticism, however, on behalf of many who read that the Secretary of State does not envisage the provision being enacted before 2011—which, I understand, he has said on many occasions—and who believe that offering a referendum in such circumstances is merely a diversionary tactic. Certainly, by ostensibly offering a referendum in the Bill, the Secretary of State can point out that the Bill contains a provision that arranges to consult the people of Wales on a future occasion. In truth, however, it is so far into the future that it seems strange that we should be discussing it now. Therefore, while many continue to believe that the Secretary of Sate can achieve virtually full law-making powers through the convoluted Order in Council process contained in part 3, they remain to be convinced that the Secretary of State has any intention of ever holding this referendum.

I am a pleasant person, however—

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Hear, hear.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I thank the hon. Gentleman. I would like to give the Secretary of State the benefit of the doubt, and I will therefore assume that at some time in the future the provision will be put into operation. If it is put into operation, however, it would be inequitable to allow what is contained in the provisions—the ability for referendums to be repeated over and over again. Certainly, I am not the only person who is worried about that phenomenon in relation to the way in which clause 102 is drafted.

I am sure that the Father of the House, the right hon. Member for Swansea, West (Mr. Williams), whom I am delighted to see in his place, will want to make his contribution. As it happens, he tabled an amendment identical to mine, and I am slightly embarrassed that my amendment was selected first, as I would certainly have given way to the Father of the House if his amendment had been selected and he had wanted to move it. On Second Reading he made a great deal of sense, and he was particularly concerned that the Secretary of State had not even taken into account the First Minister's views, or, indeed, his own views, that a no vote would take the matter off the agenda for a long time.

The Government only issued their response to the Welsh Affairs Committee on 18 January, but that Committee had also been concerned about the chances of a referendum being repeated over and over again following a no vote. I refer in particular to the "Better Governance for Wales" scrutiny by that Committee, and to paragraph 135. I am sure that the Secretary of State is pretty intimate with its wording, because he must have examined it carefully to respond to the conclusion. It is worth repeating:

"The Secretary of State confirmed that there would not be specific provision in the Bill to outlaw repeated referenda, as that would be a 'matter for politics'."

There we have it—the consideration is not about the effect on the people of Wales, or the effect on the morale of people facing repeated referendums, but a "matter for politics" . The paragraph continued:

"Rhodri Morgan"—

the First Minister—

"believed that should a referendum fail 'everybody will have to take a deep breath and decide when they want to do this again' but was of the strong belief that a 'No' vote would put the issue 'off the agenda for a very long time', probably lasting a generation."

That is not what the Bill allows for, however. Even Professors Miers and Rawlings, in giving evidence,

"suggested that there was a case for 'a moratorium on further referendum initiatives for a specified period, for example, two Assembly terms'. In that event, the effect of a 'No' vote would be 'simply that the Assembly carried on as it was'."

I should have thought that that was the Secretary of State's exit route, and that the clause could have allowed for a referendum to be held, say, after two further Assembly terms, which might have been more reasonable and have found favour in the House and certainly in another place. However, the Government's response stated:

"The Government agrees that there should not be a cycle of essentially redundant or capricious referendums—not least reflecting voter confidence and the significant cost involved. However, the Government does not consider that explicit provision is needed to bar repeated referendums. The provisions within the Bill to ensure consensus, i.e., approval of any referendum Order in Council by both Houses of Parliament and by a two thirds majority of all Assembly Members, together with the role of the Secretary of State, should prevent this."

I beg to differ. Despite that response, I ask the Government to think again. If they are going to rely on the provisions that are retained in the Bill, if they believe that a no vote would put a referendum off for a long time, and if, as the Secretary of State confirmed, it should be a matter for politics, I ask him to practise good politics. He is capable of accepting the amendment and improving the Bill for and on behalf of the people of Wales.

The Secretary of State said that this piece of legislation would settle the question of devolution in Wales "for a generation". If the Government are allowing in the Bill the possibility for repeat referendums, how can the Bill be about settling the debate? It is quite the reverse. It is about prolonging the debate and achieving an end by a process of attrition. I am sure that that is not what he would want as a testimony to his stewardship of Wales: the prospect of a running sore in the history of devolution.

This is not an ambitious amendment. It is not a monumental change that is being requested. It is a sensible measure that would rule out using the referendum process improperly. I hope that the Secretary of State will consider the amendments and accept them in the spirit in which they were tabled.

Alan Williams (Labour, Swansea West)

I share the embarrassment of the hon. Member for Chesham and Amersham (Mrs. Gillan) at finding that our minds work alike and that we both tabled the same amendment. I hope that her colleagues will not hold that against her. I remind my right hon. Friend the Secretary of State that, when he first came to the Dispatch Box to announce what he had in mind, I welcomed the referendum, and he welcomed the fact that I supported what he said at that time. A week ago, I welcomed the referendum because I thought that a referendum meant that the people of Wales would make a choice. I did not realise that it was to be an ongoing saga until the people of Wales made the right choice, the choice that the Secretary of State wants and the only choice and decision that he is willing to accept. I have become disenchanted, to put it mildly.

I asked the Under-Secretary of State for Wales last week to confirm my reading of the Bill that we could get full devolution without a referendum just by the use of the order process. In fairness to him, he came back to me during the week and confirmed what I said: it would be slow but—this is the important point—inexorable. The people of Wales cannot escape that while Ministers who share the view of the Secretary of State are making the decisions. Full powers can be achieved by the order-making process alone. Yes, it is slow but virtually nothing can stop it while Ministers are so determined.

The Bill is clear. That consequence has already been described. A majority of one and we jump right through to full devolution. A defeat by 100,000 or 250,000 and we will come back again and again and again. Ministers have not even been willing to put in the safeguard of a time limit. They go to the Select Committee and indicate the time that they think would pass before anything different could be introduced, but they are not willing to put any time limit in the Bill.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The right hon. Gentleman makes an interesting point. Cannot one argue that there is a presumption in favour of devolution on the basis that we had a referendum on the principle of devolution? Therefore, the Assembly having been set up, one can assume that there is a progression. As Ron Davies used to say, devolution is a process, not an outcome. I think that he had a lot of wise words to say about devolution. Does not the right hon. Gentleman accept that the principle of devolution was established in 1997 in the referendum and now we are discussing the pace at which it progresses? That is why one would establish the criteria that he described.

Alan Williams (Labour, Swansea West)

We can go forward, but we cannot go back. That is astonishing. It is a somewhat interesting perspective on what constitutes democracy. I will come to that in a moment.

Despite the Select Committee's recommendation that there should be a minimum of two full Assembly terms before there is a second referendum, the Government have not accepted that. Despite the First Minister's indication that a generation would be needed before there could be a second referendum, the Secretary of State has not accepted that. Despite his own declaration that it would be a very long time before there was a second referendum, he has not even been willing to incorporate a very long time in the Bill. Why? I have not seen the quotation that the hon. Member for Chesham and Amersham read out, but a time limit is not included in the Bill because he is waiting for a moment of political opportunism. That is what it is about. He will not put a time limit in. He will just wait for the opportunity, if there is one. If that opportunity arises, he will jump while he can to get the vote that he wants. Meanwhile, we shall still have the drip, drip, drip of the order-making process. For that reason, I welcome the amendment that was tabled by my hon. Friends; I apologise for jumping in before them. I wish that the interval had been substantially longer, but at least I agree with the principle.

I tabled my amendment not in the expectation that it would be accepted but because I want to alert the people of Wales to the fact that, as the hon. Member for Montgomeryshire (Lembit Öpik) has just revealed, the people of Wales are trapped—they were trapped by the original Bill. I described it then as a constitutional mystery tour, but the mystery has gone. We are now on a one-way escalator with two buttons: slow and fast. There is no stop and certainly no reverse, as we heard from the hon. Gentleman. The devo-zealots will not contemplate the fact that the people of Wales have as much right to think of going back as they have of going forward. They are not willing to offer them that option. They could put it at nil cost on the ballot paper to resolve once and for all perhaps the issue of whether the people of Wales want devolution, but we can rest assured that that choice will not be offered.

The Secretary of State—I am not knocking him for this—is a self-declared enthusiast for full legislative power. I am as sceptical as he is enthusiastic. I respect his position, although I do not agree with it, and I hope that he respects the sincerity of my position and what I am saying. What worries me is the determination that he shows. He showed it in his evidence to the Select Committee. I quoted this last time but it is worth repeating. He was asked by my hon. Friend the Member for Clwyd, South (Mr. Jones):

"Have the people of Wales ever been consulted over the Order in Council procedure?"

He replied:

"There was a widespread process of consultation following the Richard Commission, in which both Rhodri and I were in exactly the same position, that we wanted to see the Assembly get on with its task of having greater powers following 2007 and did not want to wait".

He and Rhodri did not want to wait. That sounds like a great consultative process. He says that he consulted on the Richard commission. He consulted, and then he ditched it, because he and Rhodri did not want to wait.

There is something even more revealing, and I asked about it in my speech last week. When I was talking about consultation, I asked Ministers to put in the Library the consultative papers that had been issued before the election. The White Paper and the Bill came afterwards, but what papers had been issued for the people of Wales, to consult them about this switch to the salami-slicing of the order-making process? In fairness, I must tell the House that the Secretary of State and the Under-Secretary gave me a firm answer: there were no papers to go in the Library.

There had been no consultative process—with one exception: there had been consultation within the party. That worries me even more. Of course the Minister should consult the party; that is right—but I am talking about what happened before the election. He knew his intentions before the election. He knew his intentions after the election as well—but he decided that he did not want to bother the people of Wales with them. Well, I think that the people of Wales deserve better than that.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I have considerable issues with amendment No. 189, and I suspect that, on reflection, those on the Conservative Front Bench ought to feel the same. That is because there is a simple precedent for mechanisms with regard to holding referendums on constitutional issues affecting nations within the United Kingdom.

I am, of course, referring to Northern Ireland, where we have a clear structure that determines when and how often referendums can be held on the reunification of the north and south of Ireland. As far as I know, when that legislation was framed, the Conservatives did not object to the framework allowing a referendum to be held more than once. I certainly do not recall any Conservative spokesperson on the referendum provisions for Northern Ireland saying at any point that they thought that there should be only one referendum, and that if the idea were defeated, the question of reunifying the north and the south of Ireland would have to be shelved forever.

David Davies (Conservative, Monmouth)

As the hon. Gentleman will be aware, I was not in the House at that time, but surely he recognises that the situation in Northern Ireland is unique, and that Governments, particularly the last Conservative Government and the present Labour Government, had been trying to overcome a very difficult situation to bring peace there. It is unfair for the hon. Gentleman to use that as an example of a referendum framework that could be repeated elsewhere. A better example would be something like entry into the European Union, where there is scope for a further referendum that might change the direction of our European policy at some point in the future.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The only reason why my example may seem unfair to the hon. Gentleman is that it utterly contradicts his party's position. The principle is the same: significant constitutional change to a nation state of the United Kingdom. The question is whether a referendum of this type can be held more than once, or whether one single referendum is binding. I am in no doubt that the comparison is entirely valid, so for the Conservatives to say, as they do in amendment No. 189, that we have the referendum once, and if the idea is defeated, never again, suggests that they feel that we could have a referendum once only in the north of Ireland, and if that idea were defeated, never again.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Will the hon. Gentleman give way?

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I will; just let me finish this point. Obviously, I am willing to hear any clarification that the hon. Lady can give me. I feel that we need joined-up thinking in such important constitutional debates, rather than having one argument in one debate about Wales, and a different argument in a different debate about Northern Ireland.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

To equate Northern Ireland with Wales or Scotland is to misunderstand the situation entirely. I have a question for the hon. Gentleman: do he and his party, believe that there should be the same voting system and the same constitutional arrangements in Ireland, Wales and Scotland? That is where his argument is leading.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Lady says that I am making a false equation between the two situations, and that I do not fully understand them. I humbly suggest that in the nine years that I have been speaking on Northern Ireland matters on behalf of the Liberal Democrats, in the various debates that I have had on exactly this point I may have picked up one or two salient points regarding the comparisons that I make. In fairness, I must recognise that the hon. Lady did not take part in those debates, but the Secretary of State for Wales, coincidentally—and, on this occasion, helpfully, I think—can provide his own perspective, if he is the Minister who will respond to the amendments. I suspect that he will agree with me that there is no fundamental difference in having a significant referendum on constitutional arrangements in Northern Ireland and having a significant referendum on constitutional arrangements in Wales.

As for the hon. Lady's second point, the issue at stake is not whether there is a difference of principle, but whether in Wales—I shall focus on Wales for the moment—it is acceptable to give the Welsh people one chance, and if the answer is no, to terminate any prospect of developing the devolution process further.

I was not sympathetic to the idea of having a referendum in the first place. However, that is not the main point with this string of amendments, so notwithstanding that, I shall turn to the comments made by the Father of the House, who paraphrased me and suggested that I had said, "We can go forward, but we can't go back." Actually, that is not far from what I said. More to the point, it is exactly what the leader of his party, the Prime Minister, has said; he said that he had no reverse gear. He has also said that every time that he has initiated a reform, he wishes that he had gone further. [Interruption.]

I hear howls of woe from the Government Benches, suggesting a rebellion among the Labour MPs from Wales who are here. I understand that they may not be happy with this. Nevertheless, my understanding is that if we initiate some constitutional changes, we must make the assumption that, the principle having been set, there will be an evolutionary process that goes with it.

The Father of the House is entirely justified in taking a different view. It is a difference of judgment. However, on behalf of myself and the Liberal Democrats, I would summarise the situation by saying that once the devolution process has been set in motion, there will be a momentum within it that will militate in favour of giving more powers to the Welsh Assembly, rather than stalling at some fairly arbitrary point by putting a cap on the number of referendums that can take place.

I understand the case for having some kind of structure and timetable governing the frequency of referendums. I am less unsympathetic to the attempt, rudimentary as it may be, in a couple of the amendments that have been tabled on that basis, because that more closely reflects the situation in Northern Ireland. However, the Liberal Democrats are not very keen on having a referendum on this matter at all, because we think that it is acceptable and appropriate for us to assume that the Welsh Assembly should have the same kind of powers as Scotland. I do not need to dwell on that, because we had a fairly significant debate on that subject yesterday in the context of changing the name from the Welsh Assembly to the Welsh Senedd.

In conclusion, I understand that there is a genuine difference of view. I believe that there is a contradiction between the way in which the Conservatives are approaching this piece of legislation and their approach to Northern Ireland legislation. I believe that that comparison is valid, and I look forward to hearing what the Minister has to say about it.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman keeps on making comparisons with Northern Ireland legislation, but unless I am mistaken, the mechanism there limits referendums to once in a decade. Is he therefore suggesting that such a provision should be introduced into this Bill?

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I feel that I am almost negotiating with the Conservatives on this issue. If the hon. Gentleman is saying that he is so moved by my argument that he accepts the case for a structured revisiting of the referendum process on a limited time scale, that is progress. [Interruption.] The hon. Member for Chesham and Amersham (Mrs. Gillan) says that I did not listen to what she said earlier, but let me remind her of what I said. I said that we Liberal Democrats are not keen on holding a referendum at all, so for us, including this element in the Bill is otiose. I am suggesting to those who seek a referendum that it is inappropriate to hold one just once, and then to prevent one from being held ever again.

As I said, I look forward to hearing what the Government have to say about this issue. But I counsel those who seek to discuss the question of referendums, and other elements of such Bills, that it is vital that we learn lessons from other aspects of the United Kingdom devolution programme. In order to remain consistent, one must make sure that one does not introduce inconsistencies through amendments.

Hywel Francis (Labour, Aberavon)

The amendments tabled by my hon. Friend the Member for Clwyd, South (Mr. Jones) and I arise out of recommendations made by the Welsh Affairs Committee, which I chair, and they enjoy broad cross-party support. The amendments deal with the possibility of subsequent referendums on the granting of primary legislative powers to the National Assembly. The Bill allows for a final stage of devolution, whereby the Assembly would become a fully functioning Parliament with primary legislative powers. I agree with the Government that a referendum of the people of Wales is necessary before that stage is reached, in order to achieve proper democratic legitimacy. However, should a referendum not deliver a decision in favour of giving such powers, it would be wrong for a series of subsequent referendums to be held until one of them delivered the desired yes result. I, along with many other Members, believe that such an exercise would diminish the democratic process.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I shall resist intervening frequently on the hon. Gentleman, but I simply want to ask him this. Would he apply that same principle to Northern Ireland and the question of reunification?

Hywel Francis (Labour, Aberavon)

We are discussing Wales, not Northern Ireland, which is another matter.

My Committee highlighted the concern to which I just referred and it recommended that, should a first referendum return a no vote, a subsequent one should not be held for a further two National Assembly terms. We believe that that is perfectly reasonable. Unlike my right hon. Friend the Member for Swansea, West (Mr. Williams), I approach this issue as an enthusiast for devolution. That may sound contradictory, but I believe that we have to show respect for the decisions taken by the people of Wales, and to give some time for reflection. I shall develop that point in a moment.

Both the Secretary of State and the First Minister acknowledge that, if a first referendum failed to deliver a yes result, a period of reflection would be necessary. Similarly, they are both of the view that a no result would put the issue off the agenda in Wales for a very long time. I agree with that view, as did my Committee, but I do not agree with the Government that the provisions already contained in the Bill are sufficient to prevent short-term repeated referendums, even if undertaken only as a political exercise. My amendment, which was inspired by the Welsh Affairs Committee's recommendations, would ensure that short-term repeated referendums could not happen. It would set a time limit within which a subsequent referendum could not be held—a further two Assembly general elections.

My amendments have two benefits. First, those in favour of granting primary powers, those against doing so, and the Welsh public at large—be they indifferent or undecided—would be clear about the implications of a no result. Such information is important if an informed decision is to be made.

Philip Hollobone (Conservative, Kettering)

I am listening carefully to what the hon. Gentleman has to say, but is it not possible that his envisaged timetable might not be as long as he thinks? His amendment uses the phrase

"in advance of two further Assembly general elections",

which does not rule out the possibility of a referendum being held at the same time as an Assembly general election. The time scale could therefore be shorter than he perhaps has in mind.

Hywel Francis (Labour, Aberavon)

I hear what the hon. Gentleman says and I have noted it. I may deal with it in a moment, through the other points that I am about to make.

Secondly, my amendment would provide a defined time period, during which thoughts about, and plans for, a subsequent referendum would be unnecessary. That would avoid the potential for doing needless work and—dare I say it?—indulging in political posturing. In his response to my Committee's report, the Secretary of State argued that a subsequent referendum would need the approval of the National Assembly and both Houses of Parliament, and that that was a "sufficient safeguard". He is correct to say that that safeguard would prevent a subsequent referendum from going ahead, but it would not prevent the National Assembly from making premature requests for subsequent referendums. My amendment would prevent that problem from arising and avoid the need for making judgment calls on the appropriateness of the timing of subsequent requests for referendums.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

Does the hon. Gentleman not agree that, in addition to repeated capricious requests for referendums, it would also be unacceptable to have a long delay such as we experienced between 1979 and 1997? The timetable that he describes would prevent repeated referendums, but it would also prevent—hopefully—an unacceptably long delay until another referendum.

Hywel Francis (Labour, Aberavon)

Indeed, and that is a very important point. Those of us who experienced the wait to which the hon. Gentleman refers recall that it was a very long wait, whereas eight years is a relatively short time.

My amendment would provide the clarity and certainty in respect of referendum procedures that my Committee emphasised is necessary. I ask Members to support it, and I urge the Secretary of State, as a supporter of democratic devolution, to reflect on these issues.

John Gummer (Conservative, Suffolk Coastal)

Not for the first time, I found the most surprising intervention in a debate to be one from a Liberal Democrat spokesman. On two different grounds, the hon. Member for Montgomeryshire (Lembit Öpik) totally missed the point. First, he made the amazing suggestion that, having had a referendum of the people of Wales on the question of whether they wanted a very restricted form of devolution—many of the Members representing Plaid Cymru, along with others, were unhappy about that—no further reference to referendums should be allowed. This is a new constitutional concept, and evidently it is one that the Liberal Democrats might spread to other matters. The idea is that one makes a tiny decision and thereafter no movement from it should ever be allowed, whatever the circumstances, because one has signed up for ever to a rolling programme. The only question is whether it rolls fast or slow. This amazing and unusual proposal should have appeared in the Liberal Democrat manifesto. It took some doing, but I read that document. As far as I understand, it was never likely to contain such a proposal.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The right hon. Gentleman has described my feelings about being in the Liberal Democrats over the past two weeks. His general point is correct, but it is not right to say that we would allow no further reference to the public. Manifestos for elections to the Welsh Assembly and to this House offer an authoritative way to consult the public.

John Gummer (Conservative, Suffolk Coastal)

The hon. Gentleman's use of words allows me to explain my deep opposition to all referendums. When Parliament makes a decision such as this, it does so on behalf of the whole nation. People who are affected by it can vote on it, whether or not they are in Wales or Scotland. That would not happen with a referendum, even though UK citizens who live in England also have a part to play. A parliamentary democracy offers a much more sensible way to proceed.

The unfortunate thing for the hon. Gentleman is that we chose to proceed by referendum. When people are asked in a referendum to accept one form of devolution, it is very peculiar then to ask them to move to a different form of devolution that has been decided on in an entirely different manner. Indeed, that decision would be neither parliamentary nor derived from a referendum.

The Bill proposes a mechanism for devolution by salami slices. As the Father of the House pointed out, at the end of the process a referendum will be proposed, even though by that stage all the matters that could be decided by referendum will have been devolved. That is a unique and dangerous parliamentary concept—although no more so than the Liberal Democrat proposition that people are never asked at all.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

The right hon. Gentleman will accept that the Liberal Democrats, and various other parties, have always favoured devolution as a way of giving the Welsh Assembly primary legislative powers. As he said, a referendum would consult only the Welsh people and not the English, even though the outcome affects them as much as the Welsh. That is why we believe that there should not be a referendum.

John Gummer (Conservative, Suffolk Coastal)

I have various problems with that observation. First, it is not true that the Liberal Democrats have always been in favour of devolution. When they managed to win an election in Britain as a whole, they were against it. They were happy not to have devolution when they thought that they could have power in the country as a whole. They became keen on devolution when they lost power, as devolution offered a different opportunity.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The right hon. Gentleman is going back to 1922.

John Gummer (Conservative, Suffolk Coastal)

The hon. Gentleman says that I am going back to 1922, but that is how far one has to go back to find the last time that the Liberals played an active part in British politics.

We have decided that decisions on these matters will be made at a referendum. I oppose referendums, which I consider to be inimical to the British system. However, if the referendum mechanism is to be used, it is vital to ensure that major decisions are arrived at as a result. The affair in question must be settled, at least for a reasonable period of time.

We can argue about how long is reasonable, and I agree that a referendum cannot be held whose result is that no other referendum can ever be held. On the other hand, it cannot be desirable to have a system under which referendums are held so often that people become so fed up with voting that only a few zealots turn out. If those zealots should win by two votes, they would call it a remarkable victory. That is what the Father of the House is worried about, and any democrat should share his concern. The Select Committee was of the same opinion, even though its Chairman holds a view about devolution that is the complete opposite of the one held by the Father of the House.

That shows that serious people with different views can come to the same conclusion on the question of referendums. They agree that a proper timetable is needed to prevent referendums from being used for what may be called "partial" purposes.

The Secretary of State may say that we should not worry about what he and his Ministers do, as they will behave perfectly properly, but that is not my experience of the referendum process in England. The Government wanted to hold three referendums about the governance of the English regions, but when it became clear that they would lose at least two of them, they were not held.

The parallel that I am making is related to the amendment under discussion, as a referendum was held in the north-east. The Government thought that they would win it, but they lost so heavily that the result looked like a vote in an African dictatorship, only in reverse. The Government lost appallingly badly in an area where Ministers were very active and indeed represented parliamentary seats.

My point is that, although the Government failed to win the planned referendums, they nevertheless carried on implementing their regional policy, come what may. That is what could happen in Wales: a referendum is not held because it cannot be won, but the policy that would have followed a victory is implemented anyway.

I should point out that, under this Government, "regionalism" means taking away powers from local government and giving them to a regional assembly. The Government's failure in the first referendum of the proposed three was so bad that the other two were never held but, even so, they were determined to go ahead with the process that they had decided on. That is the problem with this Bill, and it is emphasised in this clause.

The Father of the House made the same point. On no other occasion over many years have he and I agreed on so much. I want to celebrate that: it does not embarrass me, even though it may embarrass him. His reverence for Parliament and his longevity—which I hope to emulate—

Ian Lucas (Labour, Wrexham)

This speech is longer than his.

John Gummer (Conservative, Suffolk Coastal)

It is a pleasure for me to say that the observations of the Father of the House contain a very important truth—that the Bill, if it is not dishonest, is deeply flawed. The Bill pretends to have two parts. One part gives some additional powers to the Welsh Assembly, in accordance with the Labour party's manifesto. The other part gives full devolution to Wales, after a referendum.

Unlike many Conservative Members, I am not especially opposed to a devolved structure. However, I do oppose a devolved structure that disfranchises my constituents and renders English Members of Parliament second rate, at least in terms of the powers available to them. I am not opposed to the nature and principle of devolution. I do not stand on the same side as the Father of the House on that. I do think, however, that we ought to face all the issues at once instead of having the system we have, which is a dog's breakfast that fails to recognise the problems of the West Lothian question.

We are being asked to have a referendum on a new basis—that the referendum will be part of normal governmental activity until the Government have managed to achieve devolution. That is what the Bill means. My hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) made that very clear, and I believe her to be right.

The parallel with Northern Ireland is manifest nonsense. In the north of Ireland, we have had a continuing situation of violence and disorder. The six counties are constantly upset by two powerful tribal issues: unity and independence from the south. Those battles are unique to that part of the United Kingdom, and, happily, pretty unusual in the world as a whole. The House has always accepted that dealing with the six counties is a matter of total difference from what we do elsewhere because its history is totally different. It would be ridiculous to say that because we have to do X, Y or Z in the north of Ireland, we have to do the same elsewhere, or, indeed, to say that because we want to do something different elsewhere we have for some reason or other to do it in Northern Ireland.

If the hon. Member for Montgomeryshire does not remember what an 8th century pope said, it would be a good idea for him to do so now. In the 8th century, a pope very properly said that Ireland is different and has to be treated differently. It would have been wise of the House to have thought that in the 19th century and to have followed the views of Cardinal Manning instead of those of Lord Salisbury.

The referendum is being presented as a continuous part of governmental life. We shall have it again and again until the people of Wales make the choice that the Secretary of State wants them to make. That seems to me to be the opposite of democracy. It is an example, again, from the Government of Louis Napoleon—Napoleon III. It is how he used referendums. Whenever he found the Government a little difficult or whenever the structure that he had invented produced a result that he did not like, he had a referendum. He even had a particularly nasty and unpleasant one that he called "crowning the edifice". It was held to make sure that what he wanted was voted for, because he arranged for it to work like that. That is one of the reasons why I so deeply object to referendums.

All referendums actually do is ask people the question we want to ask them in the way most calculated to get the answer we want and which is an answer that happens to be true on the day the referendum is held. It is often an answer that has nothing to do with the question, being about what people feel about the Government or whoever asked it. It is a load of nonsense and we should never have joined up to it. I am sorry that my party has agreed to referendums on a whole range of situations in which they are wholly unsuitable.

Having had a referendum in Wales, however, we cannot go for the Liberal concept of slipping a whole matter through because the electorate have made their bed and must lie in it. Nor can we go for the socialist concept of creating a part 3 of the Bill that makes sure that we deliver the whole thing by salami slicing it. Nor, if they do not get it that way, can we allow part 4 to let them have as many referendums as it takes for the Secretary of State for Wales to be able to say to his grandchildren that he was the one who forced devolution on the Welsh. Given the right hon. Gentleman's background, I am not sure that I think he is suitable to do that.

We ought to have a change to this part of the Bill for democratic reasons. We should change it because it makes referendums even more silly than they were in the first place. Above all, we should have a change to remind the people of Wales just how devious the Bill is and how much it is using time in the House of Commons to sew together the divisions in the Labour party.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

I have a particular view on referendums. I have some sympathy with the right hon. Member for Suffolk, Coastal (Mr. Gummer) on them. I do not really like them as a basic idea, but we are in the historical situation that, since Harold Wilson's day, on constitutional issues we have devised the mechanism of referendums. Sometimes we have done so for reasons of political expediency, but they have become part of the fabric.

Interestingly enough, there were thresholds in the referendums that were held in the 1970s. Some say that referendums should not be provided for in the Bill. I say that it is important that the Bill contains a measure that institutionalises the fact that if we are to have primary powers, we will have to have a referendum. There are those who would not want to have one even at that stage. That was part of the discussion that surrounded the Richard commission and so on. There were people who wanted to proceed without such a mechanism. We have to go back to the people.

Those who forget where the last referendums were would do well to go and revisit them. Let us be clear. Only half of the electorate turned out, and only half of those who did voted yes. So, in the words of Antonio Gramsci, we have to temper our enthusiasm with the pessimism of the intellect. We had better not run too far ahead of the people on these questions.

Interestingly enough, I remember the report of the Welsh Affairs Committee, of which my hon. Friend the Member for Aberavon (Dr. Francis) is a member. It was a unanimous report. It was certainly no minority report.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

The full quote from Gramsci referred not just to the pessimism of the intellect but to the optimism of the will. How about some of the latter in the hon. Gentleman's remarks?

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Perhaps I can help the hon. Gentleman. It will not happen very often, but perhaps on this occasion I will help him. What has happened here is that those people have gone away and looked at the reality of where we are now against the historical process that we have come through with regard to referendums in Wales and they have determined that what is more sensible is the sort of proposition that has come from my hon. Friend. It does not debar the process from being revisited within sensible periods of time, but it does stop—I dread to say this because I do not want to start the hon. Member for Montgomeryshire (Lembit Öpik) off again about Northern Ireland. It is a strange twist on the "Vote early, vote often" theory that we have had from the Liberal Democrats.

There ought to be a great deal of support for the argument that has come from the Select Committee. It recognises that the mechanism needs to be enshrined in the Bill, but there is a tempered process that provides proper periods for reflection not only by the Houses of Parliament and the Assembly but by the people of Wales so that processes that have been put in place have the opportunity to mature.

The Assembly is a new institution. I forget when it was set up, but it has not had much of a life yet to mature. I differ from the right hon. Member for Suffolk, Coastal in that I struggle with this question. Is the process that we are putting in place sufficient to justify a referendum now? I come down in a different position to him, but if we are going to look for primary powers we have to have a referendum. This seems to me the sensible process that follows that.

David Davies (Conservative, Monmouth)

I was one of the people who was involved in that last referendum, very much on the "anti" side. It is my experience that a significant number of people in Wales then and now want primary legislative powers. It is also fair to say, and I hope that everyone recognises, that a large number of people in Wales preferred the status quo and believed that Wales best played out its destiny as an integral part of the United Kingdom. I was one of those people; I was proud to be Welsh and proud to be British; proud to be a Welsh Unionist, if you like.

Many people in my situation are disappointed that the door effectively has been slammed shut on any change in the constitutional direction. The hon. Member for Montgomeryshire (Mr. Öpik)seems to think that we should never change direction constitutionally; that we can never make mistakes. Perhaps I may remind my two Liberal Democrat colleagues that one of the biggest constitutional changes this country has ever made was to get rid of the monarchy. The experiment lasted only 11 years. We recognised that we had made a mistake and we went back in the other direction. It is a shame that we slammed the door on doing that in Wales.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

Does the hon. Gentleman accept that the option of full primary legislative powers was never offered to the Welsh people? Is he saying now that he would be happy for the Assembly to be got rid of altogether?

David Davies (Conservative, Monmouth)

I would be happy to see another referendum that included that question, but that is my preference, not my party's. There is a slight difference between us on that. I have never made any secret of my view and I shall not pretend that I have changed my mind in the past few weeks. As the hon. Gentleman says, the referendum was on whether to have an Assembly, not a Parliament with primary legislative powers. If we are to have such a Parliament, we should have a full referendum on it.

I do not accept the implication that perhaps more people would have voted in favour of a Welsh Assembly had they been offered a Parliament. Had the Government thought that there was any support for having primary legislative powers in Wales, that would have been on offer in the first place, not the model we have now. Indeed, that would have been a far more coherent way to go about the project.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Gentleman wrote on 30 June 2005:

"The Government are in the process of giving extra powers to the Welsh Assembly at present. Given the dreadful lack of competence in the areas in which the Assembly has got powers this is something I will be opposing."

There is an enormous difference between what he and his Welsh Conservative colleagues say and what their Front Benchers say. Does he regard a referendum as a potential way to fulfil his own goal of reducing the level of devolution, rather than increasing it or maintaining it at its current level?

David Davies (Conservative, Monmouth)

Time is short and I shall not go over my views again and again. Suffice it to say that I have not changed my mind. I am one of many people in Wales who did not want the Welsh Assembly, but unlike those who want a Parliament, I accept the situation as it is. I accept that we have an Assembly and I want to see it work, but I cannot accept a situation in which those who want primary legislative powers can come back over and over again, with one referendum after another, until they get the result that they want. That is why I support the amendments.

Peter Hain (Labour, Neath)

We have had some interesting contributions, and some tantalising bait was dangled before me by the right hon. Member for Suffolk, Coastal (Mr. Gummer), my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Havard) and the hon. Member for Monmouth (David T.C. Davies). I shall not bite at that bait because I am concerned about meeting the terms of the programme motion that was unanimously agreed.

I am grateful to the hon. Member for Montgomeryshire (Lembit Öpik) for his general support for the Bill, but a Liberal Democrat source was reported in The Times recently as saying that

"the last thing anyone wants is for him to declare for them. They're calling it the curse of Lemsip."

I shall luxuriate in the fact that he does not support me on this occasion.

There is widespread agreement across the House, including the hon. Member for Chesham and Amersham (Mrs. Gillan), that there should be a referendum if we move to primary powers. I also agree with the spirit of amendment No. 189 in the sense that we cannot keep calling referendums until the voters, exhausted, simply say yes. That point was also made by my right hon. Friend the Member for Swansea, West (Mr. Williams). The very idea that we should have an "everendum" that just kept going in the way that was described is completely unacceptable and I think that the people of Wales would revolt against it. We need to come down to earth politically on that point.

The hon. Member for Chesham and Amersham asked about my motives. My view on the time frame is straightforward. In the end, the question of a referendum is not up to me because it is for the Assembly to initiate the process with a two-thirds majority. If she was asking for my view, I do not think that there is a case for considering holding a referendum in the next term of the Assembly, which will run from 2007 to 2011, because there will be a new political architecture in the Assembly if the Bill is passed and the new streamlined process of powers will be bedding down. I do not think that the issue will arise until at least the following Assembly term. We can all agree that the additional procedures provided under part 3 will need to establish themselves. We will then be able to determine whether that process has provided the streamlined process of decision making for which the Assembly has asked, whether there is a need to call a referendum, or whether a period of conflict has existed between Westminster and Wales that has provoked conditions such as those in the late 1990s that resulted in a turnaround of opinion from that in 1979 and produced the yes vote in 1997.

Alan Williams (Labour, Swansea West)

I am impressed that the Secretary of State finds distasteful what we find so distasteful. In that case, why does he not legislate against it?

Peter Hain (Labour, Neath)

For the reasons that I am about to explain to my right hon. Friend and the House.

The amendments are an attempt to address the perceived risk that repeat referendums could be held on the commencement of Assembly Act provisions. I do not think that an explicit provision is required to stop repeat referendums, whether that is of the type proposed by my hon. Friend the Member for Aberavon (Dr. Francis), or that proposed by the Conservative party, because the Bill provides for an environment of consensus. Hon. Members who have spoken do not seem to have recognised that a two-thirds majority of the Assembly would be required. I have been criticised for insisting on a two-thirds majority, and ardent advocates of primary powers say that it will create an obstacle. I make no apology for the proposal because I do not consider it to be an obstacle.

If we are going to go for a referendum, it makes elementary political sense to say that we must be satisfied that the conditions are at least those that existed in 1997, with Welsh Labour, the Liberal Democrats and Plaid Cymru—and probably sections of the Welsh Conservatives—being in favour of a referendum and full primary law-making powers. The two-thirds majority is an essential check on whether there is consensus. In addition, a vote in the House and the House of Lords will be required, so Parliament will have to endorse that position. The idea that a series of referendums could be called one year after another—Quebec-style—is not realistic given the need for a two-thirds majority in the Assembly and a vote in the House of Commons and House of Lords. My answer to the fair question asked by my right hon. Friend the Member for Swansea, West is thus that a process of caution is built into the Bill.

A further point, albeit not a decisive one, would be in the background and could figure in public debate. Referendums are costly. It is estimated that a referendum would cost about £7 million, which is another reason why the people of Wales would revolt at the idea of continual referendums. History teaches us the political reality. When the referendum was lost in 1979, it took until 1997 to create the conditions in which it was felt that there was consensus to move again. We do not need legislation on the matter because it would put rigid barriers in the way of the politics. We and the people of Wales want politics to reflect the centre of gravity of Welsh politics, which is where I humbly believe that the Bill is situated.

The problem with amendment No. 189 is that it would throw away the key for the future. In that spirit, I hope that the hon. Lady withdraws it and that my hon. Friend the Member for Aberavon will not push his amendments to a vote. There are sufficient locks to require political consensus to be created, through a two-thirds vote in the Assembly initially, and then with this House and the House of Lords having the final say. I do not think that Parliament would stand for continuous referendums to bully people into voting yes, even if the Assembly repeatedly requested them. There is no support for that in the House and I, as the Secretary of State responsible for introducing the Bill, would have no truck with it.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

We have had an interesting debate, which has gone on longer than I anticipated because of the significant contributions by some hon. Members. To defer to the Father of the House, the right hon. Member for Swansea, West (Mr. Williams) summed up the situation well. The Secretary of State is a man in a hurry. He does not want to wait. In a devastating critique, the right hon. Member for Swansea, West outlined that there is an element of political opportunism. What came through was that the Secretary of State is not showing any duty of care to the people of Wales by allowing the Bill to stand in the form that is before us. What I derived from the Father of the House's contribution is that this is an experiment with the constitutional position of Wales, which is not advisable and will do no good.

The fact that the Secretary of State was invited to place papers in the Library and papers were there none is also fairly significant. The consultation appeared to be only within the party and not with the public. That also goes some way to revealing the mindset behind the Bill.

I shall touch only briefly on the comments by the hon. Member for Montgomeryshire (Lembit Öpik), because his contribution was not one of his best. However, I want to defend him. The Secretary of State was unnecessarily cruel in his taunting. It is understandable that his arguments were not as comprehensive as usual in the circumstances.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I thank the hon. Lady for her support. I have had a lot on my mind recently, and I give her my unequivocal backing in her career.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am happy to receive it because fortunately I am not running for the leadership of the Liberal Democrats, although I might make a better job of it than some other people.

As Chairman of the Select Committee, the hon. Member for Aberavon (Dr. Francis) has done a sterling job in difficult circumstances. I do not think that his Committee was fully consulted by the Secretary of State. I certainly do not think that it has been taken along in the process. He approaches the problem from a different dimension. Whereas the right hon. Member for Swansea, West may not be a great enthusiast for devolution, the hon. Gentleman is, but even he has problems with the way in which the Bill stands.

My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer), in the bravura performance that we have come to expect, made the points in his inimitable fashion. It was interesting that the hon. Member for Merthyr Tydfil and Rhymney (Mr. Havard) was tempted to participate in the debate. He said that we must not run too far ahead of the people. I agree entirely. I was delighted that he participated because we have not been treated to many contributions by the Labour Members who represent Welsh constituencies. It was good to see the hon. Gentleman making a contribution. My hon. Friend the Member for Monmouth (David T.C. Davies) said that the proposals would make Wales a political football, and he was quite right.

I have listened carefully to the Secretary of State. He says that nothing will happen until 2011—it might be some time after that—but he is trying to legislate today. He also said that there might be a period when Westminster was in conflict with Cardiff; I am not entirely sure that Westminster is not in conflict with Cardiff at the moment, but I do not want to intrude on the private agonies of the Labour party. But that is no excuse for bringing forward this legislation. I do not accept his arguments.

I see, rather, a strange consensus. He said that he wanted consensus, and he has it; from Swansea, West, from Suffolk, Coastal, from Aberavon, from, I think, Merthyr Tydfil, and from Chesham and Amersham. Therefore, I have no choice but to put my amendment to the vote in order to place on record our belief that the Bill should not provide the opportunity for repeat referendums and for turning Wales into a political football. By not acceding to any of the amendments that I or the hon. Member for Aberavon have tabled, the Secretary of State has brought this vote on himself.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

I beg to move amendment No. 31, in page 56, line 25, at end insert—

'(3A) If a resolution passed by the Assembly under section 103 includes the text of the question which the Assembly proposes should be included on the ballot paper at the referendum, that text shall be included in any recommendation made to Her Majesty in Council to make an Order in Council under subsection (1).'.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

Amendment No. 31 seeks to give the National Assembly for Wales the right and responsibility of setting the wording on any future referendum under the provisions of clause 102. As the Library has pointed out, it is unusual for the wording of a referendum question not to be set out in a Bill. Indeed, there is only one other example of this not happening. We had a lengthy discussion recently on the uniqueness of Wales vis-à-vis Northern Ireland. Only in the Northern Ireland Act 1998 is there another example of the wording not being set out in the legislation.

The Conservative amendment, which we do not support, would provide the opposite solution to ours, namely that the wording should be set out by Parliament. We believe that the people of Wales should decide on these matters, and that their representatives should decide on the wording of the question in a referendum on the extension of the principle of democratic sovereignty. As we know, timing is a key parameter of success when it comes to calling a referendum. We had a lengthy discussion on such issues in our debate on the last few amendments.

The other key parameter is the wording on the referendum ballot paper, which can influence the likelihood of success. As opinion pollsters know, the wording of a question can affect the level of support that a proposal attracts. We have seen that in relation to questions of devolution over the years. I suggest that a question asking the people of Wales whether the National Assembly for Wales should have law-making powers would be more likely to succeed than a question asking whether it should have more power, in an open-ended way. These are subtle differences, but they can affect the likelihood of success.

The referendum in question, as with every other referendum, will be subject to the provisions of the Political Parties, Elections and Referendums Act 2000, which will mean that the Electoral Commission will pronounce on the intelligibility of the question and produce a report, according to its guidelines, to ensure that the question is clear, concise and impartial. Nevertheless, the power to set the wording of the referendum question is an important one, and it should properly reside with the elected representatives in the national representative institution of the people of Wales—the National Assembly—which is what our amendment seeks to achieve.

The Welsh Affairs Committee's report suggested that the wording should be set out in the Bill in the interests of clarity. However, the Government's response rejected that proposal, saying, rather mysteriously, that the wording should reflect the circumstances and the timing of the question's being put. That almost suggests that the referendum might happen in some future century, when the English and Welsh languages might have evolved in some way. The Government's response proves my point that subtle differences can be introduced into the wording of a question. The power to set the wording is therefore an important one.

The other issue that the Welsh Affairs Committee was trying to resolve in its way, and that we are trying to resolve in ours, is that of the lack of clarity as to how the wording will be decided. This could become a major political issue. As we have seen, the issue of where the power to decide the wording lies became a major issue in Quebec following the 1995 referendum there. Even now, we can see the jostling between Ottawa and Quebec for the proper constitutional authority over that issue. Ottawa has passed the Clarity Act to give itself the constitutional authority over the wording of any future referendum question, but the Quebec Government insist that they still have that power. We, too, need clarity, because we do not have it at present in this regard.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

My hon. Friend is making a powerful point, and I fully agree with him. Let me take him back a few sentences to when he said that the procedure proposed in the Bill would mean that the Government here would decide on the wording, and that that would be overseen by the Electoral Commission. Does he agree that this Government's track record of listening to the Electoral Commission is not all that good, given that the commission has said that there is no case whatever for banning dual candidacy?

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

As ever, my hon. Friend has made a strong point, which constitutes a trenchant criticism of the governing party. Presumably the Electoral Commission could produce a report criticising the wording, and its independent advice could be ignored again.

Alex Salmond (Scottish National Party, Banff and Buchan)

As the hon. Gentleman knows, the Arbuthnott commission, appointed by the Secretary of State for Scotland, considered this very subject. It decided that the attempt to ban dual candidacy was undemocratic, and the work of a political party that did not understand the process.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

The hon. Gentleman has made another excellent point. The Government do not have a very good record of listening to independent commissions when the results of their inquiries do not accord with their own narrow party advantage. That is why we do not propose that the wording should be decided by an independent commission. We should remember that the Government did not listen to the Richard commission.

The solution is clear: if the Secretary of State wants the referendum to work on the basis of party consensus, he should take account of the consensus that would have triggered the referendum in the first place. The National Assembly should decide this important matter—not this House or the other place, not English, Scottish or Northern Irish Members of Parliament, but directly elected Assembly Members in Wales.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

My amendment No. 194 is straightforward, so I shall not detain the Committee for long. The amendment requires both the question on the ballot paper and the statements preceding it to be amendable and approved by both Houses of Parliament.

It seems only right to me for Parliament, when preparing to devolve primary powers, to have the right to approve and/or amend the essence of questions about the process being put to the public. That would help to ensure scrutiny of what is a bit of a political hot potato, and I do not believe that the Government have provided for it in the Bill.

I heard what was said by the hon. Member for Carmarthen, East and Dinefwr (Adam Price) and I admit that I have some sympathy with it. Like him, I hope that the spirit of consensus that the Secretary of State keeps dangling before us will come home to roost one day—that he may agree with something that Opposition Members say, and incorporate it in the Bill. I doubt it very much, but we live in hope. I shall listen carefully to what the Secretary of State has to say.

Peter Hain (Labour, Neath)

Despite the honourable and valiant attempt of the hon. Member for Chesham and Amersham (Mrs. Gillan) to build consensus with Plaid Cymru, there are two separate points here. The first is that Parliament is ultimately in charge, and has to be. I do not think that amendment No. 31—under which the Assembly would be in charge, and Parliament would simply rubber-stamp the wording on which it had decided—is acceptable.

Clause 102(6) requires the Secretary of State to consult widely, and those consulted will obviously include the Assembly. The Secretary of State will also have to consult the Electoral Commission on the referendum question in the draft Order in Council. That procedure was established by section 104 of the Political Parties, Elections and Referendums Act 2000. As the draft Order in Council will have to be approved by at least two thirds of Assembly Members, I put it to the hon. Member for Carmarthen, East and Dinefwr (Adam Price) that the Assembly's support will be needed. Consensus will be built into the whole process. I think that the Bill would handle the matter much better than either amendment No. 31 or amendment No. 194.

It is not in the interests of the Government, when about to embark on a referendum to trigger primary powers for the Assembly, to create controversy around the question. There will be enough controversy around the issue at the time. Through the consultation requirements with the Electoral Commission built into the Bill, the requirements of the Political Parties, Elections and Referendums Act 2000 and consultation with the Assembly, a consensus will emerge that it is in no one's interest to disturb.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Secretary of State appears to have a crystal ball that is not available to the rest of us. He has already said that the provision will probably not come anywhere near us until 2011 plus plus. He has just said, however, that it will be a controversial matter when it does come before us. I contend that it might not be. What does he know that we do not know, and how can he be sure, looking so far into the future, that he knows what will happen? I think that that is slightly arrogant.

Peter Hain (Labour, Neath)

I will not rise to that accusation. All I am saying is that the issue before the people of Wales should be the question on the ballot paper—do they wish to proceed to primary powers for the Assembly or not? That will undoubtedly be controversial—I would be surprised if it were unanimous. That is the point.

In respect of amendment No. 194 tabled by the hon. Member for Chesham and Amersham, the problem with the procedure that she suggests is that it could be a recipe for endless ping-pong if the House of Lords amended an Order in Council, which would be an unusual procedure—half of the argument of the hon. Member for Beaconsfield (Mr. Grieve) was, quite properly, that Orders in Council are not amendable—or if the House of Commons amended it and then the Assembly amended it. The truth is that we can all agree with the procedure laid down in the 2000 Act, and that is exactly what the Bill does. I ask the hon. Member for Carmarthen, East and Dinefwr to withdraw the amendment.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

I am sorry that the Secretary of State believes that Parliament is in charge and not the Welsh people, because it was on the latter basis that we worked together to win the referendum in 1997. Nevertheless, I do not want to detain the Committee further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

I beg to move amendment No. 156, in page 56, line 28, after 'Council', insert '(a)'.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss the following amendments: No. 157, in clause 102, page 56, line 29, at end insert

'or

(b) has been laid before each House of Parliament and the Assembly, has been approved by a resolution of the House of Commons and of the Assembly, but has been rejected by the House of Lords.

(4A) If subsection (4)(b) applies, the referendum shall not be held until one year has elapsed since the date on which the House of Commons came to the resolution.'.

No. 186, in clause 102, page 56, line 33, leave out subsection (6).

No. 195, in clause 102, page 56, line 36, at end insert—

'(6A) The draft of any statutory instrument containing an Order in Council under subsection (1) laid before each House of Parliament shall be amendable by either House during its consideration and approval.'.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

Amendments Nos. 156 and 157 would remove the absolute veto enjoyed by the other place over the Order in Council setting up the referendum and replace it with a suspensory veto, similar to that which it enjoys over primary legislation under the Parliament Act 1949. There is an important point of principle involved for our party. It would be entirely wrong for an unelected institution to frustrate the will of the Welsh people, as expressed through their directly elected National Assembly, to hold a referendum on the matters contained in the Bill. I hope that some Labour Members agree with that basic principle and will support the idea of democratic sovereignty in that regard.

The royal commission on reform of the House of Lords proposed replacing the absolute veto over statutory instruments, which is what we are discussing in this instance, with the suspensory veto. It is important to remember that the other place has used its power to reject statutory instruments on a number of occasions. The Secretary of State will remember the famous case involving sanctions against southern Rhodesia in 1968. The House of Lords struck down that order because it supported the white minority Administration in southern Rhodesia. That caused something of a constitutional crisis at the time. However, it has used the power more recently too, during the passage of the Greater London Authority (Election Expenses) Order 2000, on the issue of freepost. The other place has shown that it is willing to use its power to strike down statutory instruments in the case of elections. Our fear is that, unless the amendment is accepted, the other place, which is not representative of anything in particular—it is certainly not representative of Wales—will use its power in the Bill to frustrate the aspirations of the Welsh people and their representatives to move on to the next phase of democratic devolution. That cannot be right.

The Under-Secretary said in the Second Reading debate that the Parliament Act would not apply to the legislation, so that cannot be used to protect us against the House of Lords striking down an Order in Council in this context. The Salisbury convention will not apply. All we are left with is the First Minister saying in his evidence that new conventions will develop over time, as is the practice in the British constitution. That provides us with no crumb of comfort as we face the possibility that, having achieved the two thirds bar in the National Assembly that has been set down in the Bill, having achieved the political consensus that the Secretary of State refers to constantly, and having achieved an affirmative vote in this House of directly elected Members, we will be frustrated by the unelected Chamber down the corridor. That would be entirely unacceptable and against every honourable radical tradition in Welsh politics.

We appeal to the Government and to hon. Members to think again about giving the House of Lords an absolute veto in this regard. If a suspensory veto is good enough as regards every other piece of primary legislation, surely it is good enough when we are talking about the historic decision and proposal emanating from elected representatives of the people of Wales to move on to the next phase of democratic devolution.

The First Minister in his speech in the National Assembly for Wales said that he did not believe that there would be any circumstances where the Order in Council procedure, whether in relation to the referendum or to other aspects of the Bill, would be used to frustrate the will of the Assembly, because to do that would be to

"expose yourself to ridicule, and you would pay the penalty at the next election."

That argument may apply to the Secretary of State and to the Commons, but it expressly does not apply to the unelected, unaccountable and often unpredictable House of Lords. We cannot expect the House of Lords simply to accede to the demands of this place and the National Assembly in that regard. As Lord Morgan pointed out in his evidence to the National Assembly Committee on Better Governance for Wales White Paper, the House of Lords came very close to throwing out, purely adventitiously, the Health (Wales) Bill. Heeding the clarion call—the bugle call—all the Tory peers appeared just before the vote on the hunting ban was taken. They were there and they came very close to striking down the Wales legislation. Surely everything in our political traditions in Wales should tell us that we cannot trust the other place to have the final say on whether we can move on to the next phase in democratic devolution.

In closing, I shall quote the Secretary of State. This is what he called the House of Lords, which in this Bill he is giving the final say over democratic devolution:

"a rather fey survivor from the pre-democracy days; it is a constitutional dinosaur . . . Unelected peers reflect an elitist state, which is one of the most unaccountable and secretive in the democratic world. It wields power by a combination of the royal prerogative, massive patronage and centralisation, with only a nod towards democracy".—[Official Report, 31 March 1993; Vol. 222, c. 357–59.]

The right hon. Gentleman must have had better speech writers in those days, but surely the principles that he enunciated in that speech are the same today. The House of Lords should not have a veto over whether Wales moves forward to democratic devolution.

Hywel Francis (Labour, Aberavon)

Amendment No. 186, in my name and that of my hon. Friend the Member for Clwyd, South (Mr. Jones), would limit the role of the Secretary of State to laying a draft order for a referendum, which reflects the recommendation in the Welsh Affairs Committee's report on the White Paper. As things stand, the Secretary of State could refuse to lay the draft order for a referendum even if the National Assembly had voted by a two-thirds majority in favour of holding the referendum. I believe that Parliament alone, not the Government of the day, should accept or reject a request for a referendum.

I was impressed by what the Secretary of State said in response to earlier amendments about the importance of the sovereignty and primacy of Parliament—and that certainly applies to my amendment. His response to our recent report argued that removing his power of refusal would "bypass" the Government of the day, but that argument does not stand up. The Government of the day would be able to put forward their position in the debate on the order, and could control the timing of that debate. They would also hold a majority in the House of Commons, which would provide them with the numbers necessary to win a vote. Their views could not and would not be bypassed.

Ministers also argue that the Government would be

"entitled to test and satisfy itself that the question should be put to the people of Wales".

I do not understand what form such an additional test would take. Would the Government hold focus groups or phone-ins, or an informal pre-referendum referendum? The necessary test for the referendum trigger is whether two thirds of the Members of the National Assembly for Wales are in favour of a referendum. As the Secretary of State said in another context, such a high threshold would necessitate cross-party support, and would therefore reflect the clear policy view of those parties—and also, surely, the view of those who voted for them.

Once that test has been satisfied and a request has been made, it should be for Parliament to decide. The Secretary of State is right to say that a move to full legislative competency at the National Assembly would represent "a significant constitutional development", but that makes it more important that Parliament—the sovereign seat of the United Kingdom Government—rather than the Government of the day, should decide on the merits of the request.

The Secretary of State knows as well as I do that the Government of the day will decide the fate of a request for a referendum—but the Government should have the confidence to make that decision in Parliament, not in Whitehall. For that reason, I ask hon. Members to support my amendment. I am sure that, as a democrat and a supporter of democratic devolution, the Secretary of State will respond positively and wisely to this sensible and modest request. I shall end by quoting the Secretary of State's hero and mine, Aneurin Bevan, on these matters—and I notice that the right hon. Gentleman is listening carefully. Aneurin Bevan said:

"The purpose of getting power is to be able to give it away."

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

In reality, we are considering three groups of amendments. Amendment No. 157, tabled by the hon. Member for Carmarthen, East and Dinefwr (Adam Price), appears to give some breathing space before the referendum is held and after approval by the Commons and the Assembly. However, it also seeks to eliminate the role of the House of Lords, and I cannot agree with that, as the hon. Gentleman would doubtless expect me to say. Moreover, such a provision would presumably still apply even if the House of Lords became a wholly elected body; that would be rather anti-democratic.

I have some sympathy with amendment No. 186. Clause 102(6) is a delaying tactic that can be spun out for as long as the Secretary of State of the day wishes. Removing it would remove some of the Napoleonic powers that the Secretary of State has attracted to himself. If he really wants to keep them he could add a time limit, in order to avoid the Secretary of State of the day deploying such delaying tactics.

Our amendment, No. 195, is simple, and if the Secretary of State appreciates the principles of sovereignty and the primacy of Parliament, he will have great sympathy with it. It would allow both Houses to examine and amend Orders in Council under subsection (1), and he should have no quarrel that, given his own principles, which he has laid out. I therefore hope that of these amendments he will have the grace to accept mine.

Peter Hain (Labour, Neath)

I very much enjoyed hearing the hon. Member for Carmarthen, East and Dinefwr (Adam Price) quote my words from some 10 years ago. The burdens of office mean that I cannot indulge in such ringing rhetoric and narrative any more.

David Davies (Conservative, Monmouth)

Will the Secretary of State give way?

Peter Hain (Labour, Neath)

I am sorry, but no. I want to make some progress, so I cannot give way to the hon. Gentleman, who is another specialist in ringing rhetoric. I should also point out that he is a very able newcomer to the House.

The problem with amendment No. 157 is that it would introduce a pre-emptive, Parliament Act-type procedure in respect of the referendum order. As the hon. Member for Carmarthen, East and Dinefwr will realise on serious reflection, we cannot introduce into a Government of Wales Bill an entirely new and unprecedented constitutional revolution in the relationship between the House of Commons and the House of Lords.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The Secretary of State will doubtless reflect on the view of Lord Richard, who said in giving evidence to the Welsh Affairs Committee that it would be a devil of a job to get these orders through the House of Lords. So the point that my hon. Friend the Member for Carmarthen, East and Dinefwr (Adam Price) makes through his amendment is a proper one. Secondly, when I challenged the Secretary of State on this issue at a conference in Cardiff, he said that he would invoke the Parliament Act to ensure that this problem did not occur. So it was on his mind then and it is on ours now; so far, we see no way around it. My hon. Friend quoted earlier from an excellent speech by the Secretary of State. During that speech, he quoted Tony Benn, the former Member for Chesterfield, who said:

"The House of Lords is the British Outer Mongolia for retired politicians."

Peter Hain (Labour, Neath)

We are not debating the merits or otherwise of a second Chamber. To be fair, the House of Lords has behaved with great care and responsibility towards Welsh legislation such as the Transport (Wales) Bill, the Commissioner for Older People (Wales) Bill and the various legislation that has gone through Parliament in recent years following bids from the Assembly. I would not expect it to treat Orders in Council in any way differently. Therefore, I do not think it right, in the middle of the debate about the Government of Wales Bill, to aim for a revolutionary change in the relationship between Lords and Commons. That would not be appropriate.

I remind my hon. Friend the Member for Aberavon (Dr. Francis) that the Secretary of State will lay the Order in Council triggering the referendum. The referendum cannot appear suddenly, all on its own. It needs a Secretary of State to lay the Order in Council, and that would present an opportunity for proper questions about the consultation process. That is why we have made the order a requirement: it is not a delaying tactic, but will mean that proper answers must be given to proper questions.

In any case, the Secretary of State will have to consult the Electoral Commission about the referendum question contained in the draft Order in Council. The commission's report on that question's intelligibility will have to be laid, together with any preceding statement, with that draft order, according to the procedure established by section 104 of the Political Parties, Elections and Referendums Act 2000.

The hon. Member for Chesham and Amersham (Mrs. Gillan) said that she wanted a procedure that would allow the Order in Council to be amended, by either House or by both. Her amendment is not explicit, but I presume that she would want the Assembly to have the same ability. That would be a recipe for endless ping-pong.

If the Assembly did not have the ability to amend an Order in Council, but was required by the legislation to pass it, we would get it into great difficulties. I hope that the hon. Lady will concede, on reflection, that the 2000 Act contains a procedure that requires the Electoral Commission to be the driving force, along with the Government, on the referendum question. The commission will also, of course, have to consult with the Assembly on that question. I hope that that answers the hon. Lady, and that she will withdraw the amendment.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

It is a shame that the Secretary of State believes that he can use the Bill to impose a constitutional lock by an unelected Chamber on the ambitions and aspirations of the people of Wales to deepen and enhance their democratic sovereignty. That is what the Bill does, and it is deeply objectionable to me and my party.

Some Labour Members may share our belief that sovereignty lies with the people of Wales. It is insulting to give an unelected Chamber the power to reject a constitutionally based demand by the elected politicians who represent the Welsh people in the National Assembly. That such a demand can be flouted by an unelected Chamber that represents nothing, let alone the nation and people of Wales, is especially demeaning.

I shall withdraw the amendment, but we may want to return to the matter. A consensus exists across the Chamber on this matter that we can build on with useful discussion. It is entirely unacceptable that the House of Lords should have a constitutional lock on the development of democracy in Wales.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

On a point of order, Mrs. Heal. As I understand it, my hon. Friend the Member for Aberavon (Dr. Francis) had an amendment under consideration by the Committee.

Hywel Francis (Labour, Aberavon)

No, I was not.

Clause 103 — Proposal for referendum by Assembly

Hywel Williams (Plaid Cymru, Caernarfon)

I beg to move amendment No. 32, in page 57, line 7, leave out from 'which' to end of line 9 and insert

'a majority of Assembly Members present and voting vote in favour'.

I suspect that the debate may be rather short as it is likely that there will not be much meeting of minds between Plaid Cymru and the Government and other parts of the House. Clause 103 is concerned with the Assembly's power to pass a resolution that a recommendation should be made that a referendum be held on whether the provisions of Assembly Acts should come into force. The clause requires a two-thirds majority of Assembly Members to vote in favour. Our amendment would replace that with a simple majority.

A simple majority has been deemed quite enough in this place to pass even the most contentious of matters. Hon. Members will recall just such a matter squeaking through last autumn by a single vote. I refer to the Terrorism Bill, which was of the utmost importance and to do with the freedom of citizens and a great many other matters. It was hugely contentious and split the Labour party, but it was carried by a single vote. I well recall Labour Members—at least, some of them—cheering and waving their papers as that happened.

If a one-vote majority is sufficient here on such contentious and important matters, why is it not good enough for the Assembly? The vote concerned will not be a vote to change the law; we will not be bringing in some huge innovation. It will be a question as to whether the people of Wales should be asked their opinion. In that circumstance, it would be quite proper to put the question to the people if a majority of the Assembly Members voted in favour. That is particularly so given the other checks on action that the Government have insisted on. When the Assembly holds a vote, there are the checks of the Secretary of State, of this place and of the place down the Corridor, as my hon. Friend the Member for Carmarthen, East and Dinefwr (Adam Price) said. All we are looking for is a vote on whether the people of Wales should be asked their opinion. I think it is a matter of common sense to do that by a majority vote.

The research paper prepared by the Library notes that a two-thirds threshold is quite "unusual". It also notes that the nearest precedent for this unusual move was the 40 per cent. threshold required for the referendums of 1979 on devolution for Scotland and Wales. That is an unfortunate precedent, to say the least. I have no desire to replay the fierce arguments of 1979 as that would not be appropriate here.

Adam Price (Plaid Cymru, Carmarthen East and Dinefwr)

Go on.

Hywel Williams (Plaid Cymru, Caernarfon)

I shall resist the temptation and note only that the 40 per cent. threshold then imposed was widely seen in Wales and in Scotland as being a wrecking move. There is a great danger that the higher threshold in the clause—not 40 per cent. but 66 per cent. before even an application could be made for a referendum—will be seen, too, as a wrecking move. It will be seen in a similar light.

Of course, in 1979 the referendum in Wales was lost disastrously, and it took us many years to recover from that. However, if I may allude briefly to the situation in Scotland, it is significant that the vote was carried in Scotland, but the 40 per cent. threshold was not achieved. That gave rise to a great deal of conflict and argument—the very controversy that the Secretary of State said only a few minutes ago that he was mindful to avoid in Wales. However, the Government are in danger of sowing further seeds of controversy, not about whether part 4 powers should come into effect but about whether the people of Wales should even be asked their opinion on the matter. The Secretary of State has an aversion to controversy around this issue, as he noted in speaking to amendment No. 31. In that respect, he should take the opportunity now to avoid further conflict on the two-thirds majority issue.

The Government will contend, I suppose, that the two-thirds majority would indicate a consensus. We have heard the Secretary of State and the Minister say that a number of times and that we should not proceed without such a majority. It is for the Minister to answer the points that I and perhaps other hon. Members will make.

Mark Tami (Labour, Alyn and Deeside)

Clearly, under the hon. Gentleman's proposal there could be a narrow majority, perhaps of only one. That would be a difficult referendum. What would be his view if a referendum on the future of the Assembly were lost on that basis?

Hywel Williams (Plaid Cymru, Caernarfon)

I am happy to leave the question whether to hold a referendum to the good sense of the Assembly Members. That is what they are elected for by the people of Wales. They represent the people of Wales, and as my hon. Friend the Member for Carmarthen, East and Dinefwr said, they carry the sovereignty of the people of Wales. Plaid Cymru Members are happy to leave it to their good sense.

The argument is to be made by the Minister. I suspect that he will not agree with me. I cannot see why a simple majority is not sufficient to call a referendum.

Peter Hain (Labour, Neath)

May I say to the hon. Member for Caernarfon (Hywel Williams) that he and I agree, and our parties agree, that primary powers should be in this Bill? His party properly and honourably has campaigned for that for generations. I am proud to be the first Labour Secretary of State to be putting primary powers in a Bill.

The hon. Gentleman referred to the 1979 referendum and the circumstances of it. I am haunted by that, although I did not take part in the campaign. From a distance I supported the yes campaign. I am also haunted by the narrowness of the vote in 1997. Unlike 1979, the Labour party was not bitterly divided on the question in 1997. In 1979, there was a minority saying yes and a majority probably no. The referendum was lost four to one. I do not think that we should go anywhere near a referendum that could produce those circumstances. That is why I built in carefully a two-thirds vote in the Assembly, which would require at least, in the current political configuration and that for the foreseeable future, Welsh Labour, Plaid Cymru and the Liberal Democrats to be united, as we were in 1997. Even then, the referendum was only narrowly won.

If we put in place a mechanism that could result in an opportunistic vote in the Assembly with the current political arithmetic, the Opposition, even for the sake of embarrassing the Government—it is difficult to foresee, but one could imagine it—could force on the ruling Welsh Assembly Labour Government and on the Government here a referendum that could not be won by any objective assessment. As my hon. Friend the Member for Alyn and Deeside (Mark Tami) pointed out, that would do terrible damage to the cause of devolution and to the cause in which the hon. Member for Caernarfon believes—that of an Assembly with primary powers. This is not a roadblock; it is a sensible precaution.

We would need a consensus in the Assembly, reflecting the views of directly elected Members only, and support in Parliament to follow. I ask the hon. Gentleman to withdraw his amendment, not because we disagree about the principle of primary powers in this Bill, or about having a strong Welsh Assembly or about the cause of devolution, but because if he were to get his way it could create circumstances that would take us nearer to 1979, which would be a disaster for the whole devolution cause.

Hywel Williams (Plaid Cymru, Caernarfon)

I must say that I take offence at the Secretary of State's comments about the possibility of the Opposition parties, especially my party, taking an opportunistic chance in the Assembly to embarrass the Labour Government. This issue is far too important for that and I hope that the Secretary of State will recognise that our party has acted very responsibly on this matter.

Peter Hain (Labour, Neath)

I am grateful that the hon. Gentleman has taken this intervention, but I have to say that in recent months his party has consistently allied with the Conservative party and the Liberal Democrats in the Assembly on opportunistic votes to defeat the Welsh Assembly Government. Why might not that happen again?

Hywel Williams (Plaid Cymru, Caernarfon)

It is not opportunistic to vote against the Government on matters of principle and of great importance, such as tuition fees.

David Davies (Conservative, Monmouth)

I am not sure whether I should declare an interest at this point. However, I remind the Committee that different parties have voted in different configurations all the way through the Assembly. On many occasions—even quite recently—I have joined the Labour party in voting against the Welsh nationalists. I do not think that anyone should read anything into that other than that all parties will try to do their best for the people whom they serve.

Hywel Williams (Plaid Cymru, Caernarfon)

I do not wish to continue this discussion, but it does appear that the Labour party thinks that genuine and honest opposition to the Labour Government is in some way dishonourable, and I reject that entirely. As the hon. Member for Monmouth (David T.C. Davies) said, we have voted with the Government on occasion, depending on the issue.

I suspect that we shall not have a meeting of minds on the amendment and I do not wish to prolong the debate in view of the amount of business remaining. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ian Lucas (Labour, Wrexham)

I beg to move amendment No. 110, in page 57, line 13, leave out subsection (3) and insert—

'(3) The Secretary of State must—

(a) within the period of 120 days beginning immediately after the day upon which it is received consult upon—

(i) the voting system, and

(ii) the number of Assembly members

of an Assembly after the Assembly Act provisions have come into force, and

(b) within the period of 180 days after the end of the consultation—

(i) lay a draft of a statutory instrument containing on Order in Council under section 102(1) before each House of Parliament, or

(ii) give notice in writing to the First Minister of the Secretary of State's refusal to do so and the reasons for that refusal.'.

The amendment relates to the period after the Assembly has voted in favour of moving forward on the proposal to this place for an Order for primary legislative powers. This is an unusual section of the Bill because it addresses a period that most parties agree is some time distant from today. It is not within the contemplation—I hope—of the Government to bring forward proposals at this stage for a referendum to introduce the part 4 process. We are therefore talking about a period that is some years hence—my right hon. Friend the Secretary of State mentioned 2011-plus.

In those circumstances, it is appropriate that if we are to consider the position politically at that time, there should be some provision in the process for a broader reflection on the Assembly to take place. The amendment proposes that after the Assembly asks for primary legislative powers there should be a consultation process, so that the people of Wales can be asked two questions relating to the Assembly.

The first question relates to the voting system for the Assembly. We should not assume that the system that was put in place by the Government of Wales Act 1998 should be set in stone for ever. If we are to have an Assembly with primary legislative powers, we shall have a different creature to the body created by the 1998 Act. It would thus be entirely appropriate at that stage at least to consult the people of Wales on the voting system that should be used to elect the new Assembly—if I may call it that.

People have extremely different views on the appropriate voting system for the Assembly at present. I am satisfied that the legislative powers for the Assembly that are proposed by the Bill are not so different from the existing powers that they require the system to be reconsidered at the moment. A referendum was held in 1998 and an additional member system was introduced. When a further referendum is held, there should be at least consultation so that the people of Wales can consider whether it is appropriate to continue with the additional member system. I have strong views on the matter. The Richard commission put forward several views, and the parties have different views on the system that should used. It would thus be right and proper to ask the question at the time of the referendum.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am listening carefully to the hon. Gentleman. Will he tell the Committee which voting system he prefers? He says that he has strong views on the matter, but has not explained the voting system that he would like to see at that stage.

Ian Lucas (Labour, Wrexham)

I would like a first-past-the-post voting system with 40 constituencies in Wales represented by two Members each—one man, one woman.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

That is very clear. Why has the hon. Gentleman restricted his amendment so that it allows consideration of the number of Assembly Members, but not commensurate consideration of the number of Members of Parliament at the same time?

Ian Lucas (Labour, Wrexham)

The amendment proposes consultation. If primary powers are allocated to the Assembly following a referendum, the Labour Government are likely to reduce the number of Welsh Members of Parliament, just as they did with Scottish Members, because the Labour party is a generous party. When the Labour party considered voting systems, it even assisted the official Opposition by ensuring that they had additional Assembly Members in Wales although they could not win a first-past-the-post seat.

David Taylor (Labour, North West Leicestershire)

Is it not the case that the number of Scottish Members of Parliament was reduced not primarily because of the increased powers of the Scottish Parliament, but because of the significant inequity that had grown up over the years due to the number of people represented by each Scottish Member compared with the number represented by each English Member?

Ian Lucas (Labour, Wrexham)

I am afraid that I am not as familiar with the intricacies of Scottish politics as my hon. Friend, so I will not respond to his point.

David Davies (Conservative, Monmouth)

May I remind the hon. Gentleman that there are some honourable exceptions to the rule of Conservatives not winning first-past-the-post seats? We have held at least one ever since the first Assembly elections were held.

Mark Tami (Labour, Alyn and Deeside)

rose—

Ian Lucas (Labour, Wrexham)

I give way to my hon. Friend.

Mark Tami (Labour, Alyn and Deeside)

Like my hon. Friend, I support the introduction of the first-past-the-post system. Perhaps those who want a full single-transferable-vote system would give us an opportunity for the debate to take place. Few people are wedded to the current system. Many people on either side of the argument think that the system is badly flawed.

Ian Lucas (Labour, Wrexham)

Indeed. My hon. Friend makes a powerful point. It is for that reason that I suggested a consultation. The issues are controversial. The importance of raising the subject at this stage is that unless the Bill is amended, the issues cannot be considered within the context of the referendum debate that will take place so far in the future.

The second aspect of the consultation relates to the size of the Assembly in terms of the number of Members. Clearly, an Assembly that has primary legislative powers will have a scrutiny role that goes far beyond the existing scrutiny role of the National Assembly for Wales. It is not often that politicians call for more politicians. I am afraid that I will do so, because one of the most important aspects of any legislator's job is to scrutinise legislation. My personal sense is that it would be essential to increase the number of Assembly Members if primary legislative powers were to be granted to the National Assembly for Wales. Any sensible discussion in the lead-up to a referendum on primary legislative powers would inevitably touch on that issue. Again, with the Bill as it stands, it is difficult to envisage how that could be sensibly raised and how more Members could be introduced.

I have suggested a consultation. I know that the issues are controversial, but when a major constitutional debate takes place in Wales when the referendum is called—if ever such a referendum is called—it is important that we have the discussions, consult the people and hear what they have to say.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have read the hon. Gentleman's amendment carefully. Has he given any consideration to the length of time that the consultation should take? Does he envisage there being a specific period of time, so that it would not be an open-ended process?

Ian Lucas (Labour, Wrexham)

I did consider the length of time, because the amendment stipulates a length of time. However, it is optimistic. I am not wedded to it. I was conscious that I did not want an extended period of consultation because I did not want to delay the process if the decision had been made by the Assembly. On the other hand, it would be necessary for a consultation to take place over a period of time, and for that reason I included the 120 days.

Paul Murphy (Labour, Torfaen)

It is 18 years ago almost to the day when I was squeezed into such a debate, with two and a half minutes left at the end of business on Welsh questions. I hope that the rules of the House will permit me to continue my remarks when we return on Monday to discuss this important business.

I sometimes look at legislation and apply what a very good friend of mine calls the Splott market test, which is: what would the people of Cardiff who go to the market in Splott on a Saturday morning think of the legislation that we are producing? I suspect that they would not think an awful lot about some of the constitutional issues that we have debated. I am not underestimating the significance of those issues, but we have to understand that, at the end of the day, the Welsh people want to consider how devolution affects their lives. Are their hospitals any better? Are their schools any better? Has the system of local government or planning been improved by the existence of the Assembly? The answer, probably, is yes, because the Assembly has given accessibility to Ministers and the accountability of Ministers to the people of Wales in a way that was never there when we had the old Wales Office.

The amendment that my hon. Friend the Member for Wrexham (Ian Lucas)—

It being Ten o'clock, The Chairman left the Chair to report progress and ask leave to sit again, pursuant to Order [9 January].

Committee report progress; to sit again tomorrow.