My Lords, this amendment is in my name and those of my noble friend Lady Morgan and the noble Lord, Lord Wigley. It is the first of a group of nine amendments dealing with the issues that arise from Clause 53. I also acknowledge that in this group are amendments in the name of the noble Lord, Lord Elis-Thomas.
Before I turn my attention to the substance of the amendments, I remind the Committee that their established provenance, as it were, comes from amendments drafted and promoted, in some cases, by the Welsh Government and, in other cases, by the National Assembly. Given that, I hope that due weight will be attached to the amendments because of where they have come from and what they propose. I also draw attention to the fact that concerns about this clause have been brought to our attention not only by the National Assembly and the Welsh Government but by two reports from this House—one by the Delegated Powers Committee and a further one by the Constitution Committee. I shall draw to the attention of the Committee what those two reports say in their concerns about this clause.
It is not surprising, mind you, that this clause has attracted such attention. As we have just been reminded, yet again here is a clause that introduces a Henry VIII power. We have been seeing an increasing tendency to use Henry VIII powers. The phrase “Henry VIII power” harks back to the fact that similar provisions can be found in early Tudor statutes—for example, a Statute of Sewers in 1531 and, more interestingly, the statute of Wales of 1542-43, have such powers in them. I need not tell anyone in this Committee what a Henry VIII power is, but we might as well remind ourselves: it is a power that allows the Secretary of State to modify, amend, repeal or revoke any piece of primary legislation through a statutory instrument.
I suggest that the power in Clause 53 is a Henry VIII power-plus because of the way in which, in subsection (8), the clause defines primary legislation:
“In this section ‘primary legislation’ means … an Act of Parliament”,
or,
“a Measure or Act of the National Assembly for Wales”.
In other words, the clause will allow the Secretary of State to modify, repeal or amend any Measure or Act of the National Assembly for Wales. As the clause stands, the Secretary of State can do so unilaterally. There is no provision in the clause to involve, in any meaningful way, either the Welsh Government or the National Assembly, whose Measures and Acts are their property. I strongly believe we should look at a process by which the National Assembly could scrutinise and approve any such proposed statutory instrument.
I therefore turn to the first of the reports from this House and the comments of the Delegated Powers Committee on this clause. I have a feeling that the Delegated Powers Committee is getting increasingly exasperated by the way in which these Henry VIII powers are being introduced and, for that very reason, by Clause 53 in particular. I remind the Committee what the Delegated Powers Committee said about Clause 53:
“a Bill should not as a matter of routine confer a Henry VIII power such as that in clause 53”.
That is the first of its exasperated comments. The second is, as that committee has repeatedly said on other Bills that have included Henry VIII powers, that,
“where a Henry VIII power is included in a Bill, it must be fully explained and justified in the delegated powers memorandum”.
No such full explanation or justification has been included in the memorandums on this clause.
6.45 pm
Interesting and almost as potent is the committee’s observation in paragraph 43 of the report:
“Regulations which amend or repeal ‘primary legislation’ as so defined are subject to the affirmative procedure in both Houses of the UK Parliament. However, there is no requirement in clause 53 for the Secretary of State to consult or seek the approval of the Assembly or Welsh Ministers before making regulations which amend a Measure or Act of the Assembly. We note with disappointment that no explanation is given in the memorandum”.
I turn to the second of our committees that have reported on this clause, the Constitution Committee. It picks up strongly the issue that there is nothing in the clause allowing the Assembly to scrutinise, or indeed possibly approve, any of these statutory instruments. It quotes—effectively, in my view—a concern expressed by the Constitutional and Legislative Affairs Committee of the Assembly:
“Regulations which seek to change the law that only applies in Wales and was made by the National Assembly, must be approved by the National Assembly. This is basic matter of constitutional propriety”.
Paragraph 88 of the Constitution Committee report—the committee’s conclusion, which is in bold—states:
“Clause 53 would permit legislation passed by the National Assembly for Wales to be amended by statutory instrument at the behest of a UK Government minister without the consent, or indeed involvement, of the National Assembly or Welsh Government. The House may wish to consider whether it would be more
appropriate for the consent of the National Assembly to be required—as, for example, is the case for certain statutory instruments made under the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011”.
The committee is prompting us to adopt the position that these amendments seek, which is to involve, in a formal way, the role of both the Welsh Government and the National Assembly in the scrutinising of any such statutory instruments.
I had not noticed the two interesting precedents quoted in that paragraph. I looked up the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011, and both have within them a requirement that agreement or consent should be obtained from either the Welsh Government or the National Assembly before statutory powers can be exercised. So in some way we have precedents. I know it will be argued that there are precedents the other way as well, and that in fact in most devolution legislation this kind of provision has not been included. I would make the simple case that we are evolving our devolution process, and surely this would be one sensible way to evolve.
What do the amendments do? I shall not burden the Committee with a detailed account of all of them; I shall take the two that pave the way for a number of the consequential amendments. Amendment 111, which I am in the process of moving, states:
“If a statutory instrument containing regulations under subsection (2) includes provision within devolved competence or provision modifying a devolution enactment, the Secretary of State must send a copy of the instrument or, if subsection (7B) applies, a draft of the instrument to the First Minister for Wales and the First Minister must lay it before the Assembly”.
That is the paving process, which begins to include the First Minister, the Welsh Government and the Assembly. Amendment 113, in my name and that of my colleague, states:
“A statutory instrument containing regulations under subsection (2) that include—
(a) a provision within devolved competence modifying any provision of primary legislation, or
(b) a provision modifying any devolution enactment in primary legislation,
may not be made unless a draft of the instrument has been laid before, and approved by, a resolution of the National Assembly for Wales”.
I submit that both those amendments are sensible and propose perfectly workable arrangements.
I wondered what was the case against, other than the fact that these provisions have not been made in previous devolution Acts. I searched to find out what the other place had said about the clause. I have to say that it never really got round to debating it in any deep or thorough way, but in Committee, on 11 July, it was mentioned. The burden of the Minister’s response was: “These powers are of a very minor character. All they will do is tidy up statutes”—I will come in a minute to the concept of tidying up statutes—“and you don’t need elaborate arrangements or processes because, anyway, we will consult the Welsh Government. How do you think we could possibly introduce a statutory instrument of this kind without consulting the Welsh Government?”. It is not the Welsh Government who should be consulted; it is the National Assembly. It is not the constitutional property even of a Welsh
Government; Measures and Acts are the constitutional property of the National Assembly. The notion that there can be some informal consultation with the Welsh Government is wholly inadequate.
I would love to believe that we could have tidy statutes. This is my 13th Parliament, now spanning more than 50 years. When I think of the hundreds of Bills and statutes that I have seen come and go through the other place in this place, I have a sneaking suspicion that a large majority of them were not very tidy, to say the least. They were not so tidy because so many of them were just amending an Act passed a year or two before, which had obviously been got wrong.
Although I love the idea that this is all about tidy legislation, as Welsh Members here present know, in Anglo-Welsh terms, there is a particular connotation to the word “tidy”—“They are a tidy family” or “He’s the tidy child”. It is captured marvellously in the personification of Welsh tidiness, that wonderful character Mrs Ogmore-Pritchard, who ran a guesthouse but did not believe that any guests should come across the threshold, because they would make the place untidy. If these provisions are just a question of tidying up legislation, perhaps we should not call this a Henry VIII power; we might suggest the name of Mrs Ogmore-Pritchard.
Whatever minor piece of tidying-up legislation the statutory instruments may bring, I cannot see the case against allowing the National Assembly and the Welsh Government to scrutinise and, where necessary, approve them. I do not know whether one can objectively talk about a tidy Bill or a tidying-up amendment. The National Assembly may well want to scrutinise and check whether it is just a tidying-up process or whether there is a matter of greater substance.
I therefore have very great pleasure in moving the amendment.