My Lords, I strongly support the call by the noble and learned Lord, Lord Mackay, that primary legislation should be used to form the necessary frameworks. I made that point at Second Reading when I suggested that Clause 11 and all devolved matters should be taken out of the Bill altogether. It might then not have required any consent from the Scottish Parliament and the Welsh Assembly, the whole matter would have been considerably simplified and the focus could have been put on the very difficult issues that arise with devolution. The original architecture which the Government put forward, which of course they have changed now, was that the powers that were to come back from Brussels—or, as the noble and learned Lord, Lord Mackay, said, the restraints upon the devolved Administration, which is a simpler way of looking at it—should go to the UK Government and then be parcelled out and conferred upon the devolved Administrations. Which powers and when—the timing and the nature of those powers—would be virtually at the whim of the Minister who would decide what was appropriate. It would be done by secondary legislation, either statutory instruments or Orders in Council. We have had debates about that.
The conferred powers model has never been used in relation to the Scottish Parliament. It has always been reserved powers. That is to say that in specific cares of policy, all those powers go to the Scottish Parliament, save those that are named, enumerated and held back—reserved—by the UK Government. Precisely that reserve powers model is about to be employed in Wales under last year’s Wales Act. It is to commence in April. To come forward with a scheme in which, in effect, powers are conferred not by the UK Parliament but by a Minister merely by statutory instruments, which cannot be amended, or by Orders in Council, was clearly inadequate and has given rise to a great deal of difficulty and angst, certainly in Wales.
I shall quote from the evidence that appears in the report of the Committee on the Constitution. It was given by Professor Richard Rawlings of University
College London, who has given very valuable advice, in Wales in particular, on devolution issues. What he said about the original architecture was that,
“this process does not establish positive duties on the part of the UK Government to devolve. Legally-speaking, suggested ‘transitional’ elements could so easily become permanent features”.
That is the which and the when. He continued:
“Nor need one be an expert in game theory to appreciate the way in which clause 11 stacks the cards in favour of the centre when negotiating the different design choices with common frameworks”.
If the devolution of powers is simply within the control of the Minister of the UK Government, then the Scottish Parliament and the Welsh Assembly have lost their bargaining power in the creation of frameworks. The point was made that while UK-wide frameworks will be necessary in a number of policies, they should be agreed on a parity-of-esteem basis between the Governments and legislatures of the United Kingdom, not imposed by the UK Government even on a time-limited basis.
I hope that indicates what the real, critical matter is. It is not just Welsh, Scottish and possibly Northern Irish people whingeing or seeking to stand up for their own individuality—it is nothing like that. It is that they should have equal bargaining power with the UK Government in the construction of the UK frameworks, which everyone agrees are necessary. I wholly support the amendment.