Wales Bill

Baroness Humphreys Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 7th November 2016 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I beg to move that Clause 17 does not stand part of the Bill and in so doing apologise for the absence of my noble friend Lord Hain, who is unable to be with us today. I am glad to say that my noble friend Lord Kinnock, who has also signed this Motion, is with us this afternoon.

It is just over 20 years ago now that the people of Wales voted in the referendum to establish a Welsh Assembly. It is just over 20 years ago that the people of Scotland voted to establish a Scottish Parliament. It was at that point, two decades ago, that the people of both countries were asked about the nature of the devolution that they wanted. In Wales, income tax was not an issue. In 1997, when the people of Wales voted, as they did, narrowly for an Assembly, it was not to have a system of income tax. On the other hand, the people of Scotland voted in favour not just of a Scottish Parliament but also of powers to vary income tax in that country, even though they have never done that.

The purpose of this probing amendment—and it is a big probe—is to find out why the Government have changed their mind since the previous Wales Bill. That Bill, just a couple of years ago, said that if income tax powers were to be introduced in Wales then the people of Wales would be asked their views. I suppose, in a way, we have had a lot of referenda of late, which have caused all sorts of difficulties and problems. Nevertheless, the principle of asking the people of Wales whether they want income tax powers for Wales is no different from what was asked in 1997 of the people of Scotland. Now, however, we have a proposal in this Bill to abolish that question. The people of Wales will not in fact be asked to decide whether they want income tax powers for their Assembly or whether they want the Assembly itself to agree to the principle of income tax raising powers for the Welsh Government and Assembly. I want to find out from the Minister why this change took place and, indeed, what mandate there is for this change to occur.

The second reason why this issue is important is that there is a good, sound economic and financial reason why the people of Wales should not be burdened by an extra income tax. I understand the issues of accountability, and that was the main principle that the Government and others have argued: that there should be this income tax provision. However, given the Minister’s vast experience in this area, I am sure he will understand that Wales is not a wealthy country by comparison with England. Probably thousands more wealthy people live in the county of Surrey than in the whole of Wales. Therefore, the resource base in Wales for income tax is very low indeed, but the burden upon the people would be high were an income tax to be raised in Wales alone.

My noble friend Lord Hain is keen to expostulate that, if income tax is levied at a United Kingdom level, it is properly and fairly distributed among the less wealthy parts of our country. Therefore, Wales benefits from that fair distribution because we are not as wealthy as the south-east of England. That is an important issue to consider when we look at whether income tax should be devolved. Also, if income tax were to be raised in Wales—whatever the levy, be it 2p or 3p in the pound—if all that did was plug a gap because the block grant had been reduced, that, too, would be pointless. If income tax is to be raised, it should be extra and above the block grant allocation—the Barnett formula, flawed as it is—as my noble friend Lord Rowlands indicated.

The third and final reason why the Government should say why this change has been introduced is that they are in the middle of negotiations with the Welsh Government on a fiscal framework for Wales. That is a vital discussion and an important negotiation. If income tax is to be partly devolved to Wales, the onus lies on the Government to ensure that the fiscal framework is so devised that that inequality between Wales and the rest of the United Kingdom is recognised and any block grant or Barnett formula ensures that Wales has a fair deal. For those reasons, I ask the Government to rethink this measure and I shall be interested to hear the Minister’s reply.

[Baroness Humphreys (LD)]

My Lords, before contributing to this Clause 17 stand part debate, I apologise to the Committee, and to the Minister in particular, for not having taken part in the debate at Second Reading.

I welcome the Government’s decision to remove the requirement for a referendum before devolving powers over income tax to the National Assembly for Wales. I am afraid that I have to take issue with the noble Lord on the Labour Benches, who still sees the need for a referendum.

Our democratic institution, the National Assembly, commenced 19 years ago and successive Bills have conferred increasing powers on it. The aim of this Bill should surely be to further build that democratic institution by providing it with the powers it needs to do its job. Along with those powers, there must also be a means of providing the Assembly’s electorate with the opportunity to hold the institution to account. For me, these two factors—power and accountability—are the basis of democracy. Providing the Assembly with powers over partial income tax devolution, which brings with it the opportunity for transparency and accountability without holding a referendum, should be a mark of the confidence of this House in the Welsh Government’s ability to carry out their functions. The Bill should be about indicating a clear way ahead for the Assembly to provide the people of Wales with the mature and confident democracy we want and deserve, not about placing further obstacles in the path of their progress.

I am tired of living in a country which has had to hold out the begging bowl to the Treasury to enable it to receive funding via its annual block grant. I am tired of hearing Welsh Ministers blame the UK Government for every shortfall in funding. But, most of all, I am tired of there being no means by which I, as a Welsh elector, am able to hold the Government of my country to account for the way they raise and spend their revenue.

Wales Bill

Baroness Humphreys Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Tuesday 15th November 2016 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I have put my name to the amendment because we need to establish a clear principle here: if the Welsh Government and Welsh Assembly are funding a service, they should have an element of control over the terms and conditions of their employees who are running it. It should come as no surprise to anyone here that I hold that view, because I spoke on this matter during the passage of the Trade Union Bill.

The Welsh Assembly has long had considerable powers —for example, over doctors’ pay, terms and conditions. The doctors’ contract could in principle be completely different in Wales from that in England. It is not, for reasons of pragmatic certainty and manageability, but it could be. I see that the Government have signed an amendment tabled by my noble friend Lady Humphreys on teachers’ pay and conditions. That is very much along the same lines as the issues that we raise in this amendment.

The Assembly effectively gained such powers after the agricultural wages issue was referred to the Supreme Court. I was in the Wales Office at that time. I am sure I came to this House and told noble Lords that we firmly believed that the issue of agricultural wages was not devolved, but the Supreme Court found otherwise. The noble Lord, Lord Hain, was probably quite surprised by the Supreme Court’s judgment, too; I do not think he believed that he had devolved agricultural wages or any other issue of that nature in the 2006 Act. The Supreme Court’s interpretation of it is not in some way unmanageable or at odds with everything else; it can be viewed as completely consistent with other aspects of the Assembly’s work.

I ask the Minister to think about the issue of trust, of what it will look like in Wales, if the Government try to row back on what has now been accepted as part of the powers of the Assembly. I urge the Government to think again.

[Baroness Humphreys (LD)]

My Lords, I shall speak to Amendment 74 in my name and that of my noble friend Lord Thomas of Gresford. I am grateful to the noble Baroness, Lady Morgan of Ely, and the Minister for adding their names to the amendment, which will see power over teachers’ pay and conditions transferred to the National Assembly. I draw the Committee’s attention to my interests as a former teacher and my current membership of a teachers’ union.

I am sure that all noble Lords agree that the present system of teachers’ pay and conditions has served us well, with a clarity on pay scales that a single system has bought across both England and Wales. However, the system is a creature of its times. It was created in the days before devolution when a single system of education operated across England and Wales. Now our two education systems have diverged, with England moving to academisation and free schools, resulting in a system where English schools are no longer required to comply with the school teachers’ pay and conditions documents. It is more than likely that the Government’s announcement that they intend to introduce more grammar schools in England will contribute to further differentiation in salaries, as the new grammars attempt to recruit the very best teachers. Meanwhile, a fully comprehensive system still exists in Wales and the Cabinet Secretary for Education has vowed that there will be no grammar schools in Wales on her watch. Also, of course, Wales still fully complies with the teachers’ pay and conditions documents.

However, this places restrictions on the ability of the Welsh Government to respond to circumstances which arise. There are difficulties, for example, in recruiting head teachers in rural Wales and retaining staff in village schools. Devolving powers over teachers’ pay to the National Assembly would allow the Cabinet Secretary for Education and the Welsh Government the flexibility to begin to address these and other concerns.

My party has long been in favour of the devolution of teachers’ pay and conditions and, following our submission to the Silk commission, we welcomed the commission’s clarity in 2014 when it determined that teachers’ pay and conditions are an integral aspect of the school system, that they should be closely related to the devolved education function and that they should be devolved to the National Assembly. In recent days there has been some speculation in the Welsh media about the outcome of this debate today, with a teachers’ union voicing some doubts about the wisdom of the devolution of this power. I remind your Lordships, though, of the words of the general secretary of the Welsh teachers’ union, Undeb Cenedlaethol Athrawon Cymru—and here I declare an interest as someone who has retained her membership of that union. Speaking after the publication of the Silk report, she said:

“At a time when education policies in Wales and England are diverging at an increasing rate there’s little point in preserving a joint system of pay and conditions. It’s a power that’s already devolved in Scotland and Northern Ireland, and we’re extremely pleased that the Commission has made an unambiguous recommendation on the matter”.

It appears to me that that is the crux of this debate. We cannot continue to treat Wales differently from Northern Ireland and Scotland. The time for parity in these powers over teachers’ pay and conditions for all three devolved nations has surely arrived. In the debate on the second day in Committee in the other place, my honourable friend the Member for Ceredigion, among others, spoke to a similar amendment, which made the case for the devolution of powers over teachers’ pay and conditions. The Secretary of State’s response gave some comfort to those who spoke in favour of the amendment. He said,

“in principle I am in favour of devolving teachers’ pay and conditions, but there is a case for further discussions between the UK Government and the Welsh Government about how that can best be achieved”.—[Official Report, Commons, 11/7/16; col. 91.]

I would be very grateful if the Minister, when he speaks to this amendment, would outline the discussions that have taken place between the two Governments on this matter. I would like to give him the opportunity to formally inform the House whether the discussions have resulted in an agreement that the powers over teachers’ pay should be devolved to the National Assembly for Wales.

--- Later in debate ---

Moved by

[Baroness Humphreys]

74: Schedule 1, page 78, leave out lines 7 to 13

Wales Bill

Baroness Humphreys Excerpts

Report: 1st sitting: House of Lords
Wednesday 14th December 2016 Lords Chamber

[Baroness Finn (Con)]

My Lords, at Second Reading, I spoke in support of the maintenance of the single legal jurisdiction in England and Wales. I argued that the body of Assembly legislation can be accommodated for now within that single jurisdiction and that a separate jurisdiction would impose significant upheaval and unnecessary costs on the people of Wales, and that remains my view.

There has been a lot of change in administrative terms. There is already an administrative court to deal with judicial review and similar applications involving the interpretation of the legislation of the Assembly. However, this is a far way off from a wide separate jurisdiction. I agree with the noble Lord, Lord Thomas of Gresford, who argued that there was no need for procedural change and that the principles of statutory interpretation will remain the same. I would just continue to urge that more cases be heard in Wales.

However, although this is the position for now, I appreciate that the body of Welsh law will grow, with diverging Welsh laws over the years. My noble friend the Minister has listened to concerns that it is sensible to keep under review the functioning and operation of the justice system in Wales. I welcome his announcement that there should be a non-statutory committee— I have to disagree with the noble and learned Lord, Lord Morris—within the justice system that will undertake periodic reviews as the law continues to diverge. I believe that this is a proportionate and considered response that allows for a sensible evolution of the system.

A non-statutory review with a clear remit is the right way forward. The proposed statutory commission would have a broad remit and be unnecessarily expensive and complex to administer. Therefore the proposal from my noble friend the Minister is a sensible way through the issue. It recognises that the vast majority of laws will continue to apply across England and Wales and that there is no great appetite at the moment for a separate jurisdiction, with all the attendant cost and disruption. At the same time, it addresses the concerns of the noble Baroness, Lady Morgan, and of other noble Lords that it is important to keep the situation under review as the body of Welsh law grows and the system evolves.

[Baroness Humphreys (LD)]

My Lords, I will speak to Amendment 2, in the name of the noble Baroness, Lady Morgan of Ely, to which I have added my name. Although the amendment does not perfectly achieve the objectives of those of us on these Benches, I welcome the opportunity it brings to debate this important issue and to allow me to place our objectives on record.

The amendment itself reflects the views of the Silk commission, which recommended that, along with the devolution of youth justice, prisons and policing to the Welsh Assembly, a review of the legislative devolution of other aspects of the justice system should be carried out over a period of 10 years. Sadly, this Bill has not gone far enough to meet any of these expectations, although we have of course seen some movement on the matter of justice today.

Let me make this point and make the opinion on these Benches clear. We have followed and taken part in the debate over whether there is a need for a separate or distinct legal jurisdiction for many years and feel strongly that, sooner or later, the current system will require substantial reform to cope with the growing distinctions between the bodies of law produced by the two Governments. However, we have been cautious over whether now is the time for Wales to have a fully separate system from England. At this stage in the devolution process, we call for a distinct legal jurisdiction for Wales, but while the English and Welsh jurisdictions are still similar, we would support sharing the judicial framework, so as not to wastefully duplicate resources. The consequential massive savings on costs, at a time when Wales would be finding its feet as a legal jurisdiction, would be valuable.

Alan Trench, who drafted a report on behalf of the Wales Governance Centre and the Constitution Unit called Delivering a Reserved Powers Model of Devolution for Wales, said:

“Establishing a Welsh jurisdiction would be a major political decision, and have cost implications if the courts were to be devolved as well”.

We share this view. Our concern is how this can or will be achieved. We cannot allow this Bill to pass to its final stages without setting up a mechanism for further discussions on this vital issue. We owe it to the Welsh Assembly and the people of Wales to begin to sketch out a road map for the future of justice in Wales—a future which will highlight the relevance of the body of Welsh law which exists now and the additional Welsh laws which the Assembly will undoubtedly pass in the future.

I welcome the contents of the Minister’s letter, which I received today, concerning the emerging findings of the Justice in Wales working group. I was particularly pleased to note its anticipated focus on a periodic review of the operation of the justice system under the framework of the Bill, and its likely recommendations on the need to be more effective in considering the distinctiveness of how justice is delivered in Wales.

I am grateful to the Minister for providing further details of the way in which these recommendations will be put into operation. I look forward to reading the details of this debate in Hansard and giving further thought to how the committee that he proposes will operate. I hope he will be able to provide us with further details about the operation of that committee.

[Lord Morgan (Lab)]

My Lords, I think this is an occasion on which we should not speak for more than a minute and a half, and that is my intention. I support the Government’s amendment, and I thank the Minister for his consideration, but I make it clear that I regard it as an interim statement—something that will not stand the test of time. As Welsh law develops, the case for a Welsh jurisdiction will become overwhelming. There is an old Welsh song that asks, “Who will be here in a hundred years’ time?”—“Pwy fydd yma mewn can mlynedd?”—and perhaps that is the view that one should take.

At the moment we have a Bill that gives the Assembly reserved powers. The legislative competence of the Assembly is growing, yet we have two different legislatures passing laws for the same small territory. That is a situation unique in the UK and in Europe, and it seems bound to result in confusion and perhaps, in due course, conflict.

The idea of a distinct Welsh jurisdiction is supported by the legal professions in Wales. University law departments see Wales as lacking a legal identity, which actually it had for 300 years after Henry VIII’s Act of Union, so we have to catch up with Henry VIII. The idea is supported strongly by the Lord Chief Justice, Lord Thomas of Cwmgiedd; his wording is careful but he has said that it is perfectly possible to have a single justice system with two separate jurisdictions within it. Similar views were expressed by the great Lord Bingham in his work The Rule of Law.

So this is a well-meant interim settlement, a stopgap, that will not last. There is a void in the devolution settlement and eventually we will need a permanent principal settlement, both for the sake of devolution in Wales and, frankly, for the sake of the union of the UK.