Wales Bill

Lord Wigley Excerpts

2nd reading (Hansard): House of Lords
Monday 10th October 2016 Lords Chamber

[Lord Wigley (PC)]

My Lords, the pleasure falls to me to congratulate the noble Baroness, Lady Bloomfield of Hinton Waldrist, on her eloquent and delightful maiden speech. The fact that she has chosen the Wales Bill for her first speech to the House intrigued me, until I did some homework and discovered that not only has she recently been on a course in Wales to learn Welsh, to which she referred, but she has also obtained a distinction on her first grade on the harp. I understand that this was part of a fundraising endeavour in support of the London Music Masters, which promotes diversity and excellence in music to inspire positive social change, so well done.

I also noted the noble Baroness’s comments about the diaspora. It has always been an ambition of mine to harness the Welsh diaspora much more effectively, and this is an excellent example of the benefits that can come from such an approach. I have no doubt that her education at Atlantic College enabled her to appreciate the place of Wales in an international context—that college most certainly does that. We wish her well for her fundraising—to the extent that it focuses on worthy cultural causes rather than political ones—we welcome her active interest in politics and we wish her well in her career in this Chamber and look forward to her future contributions to our debates.

This is the fourth piece of primary legislation on Wales which various Governments have introduced since 1998. Such a continuous sequence of amendment reflects two things: yes, a view that devolution is a process and therefore will develop over time; but also a widely held feeling that the original legislation was inadequate and needed amendment to make it work in a transparent, effective and democratically answerable fashion.

Along with several other Members in this Chamber, I have had experience as an elected Member of the Assembly. We are fortunate to have here today a former Presiding Officer, my colleague and noble friend Lord Elis-Thomas, and the newly elected Assembly Member, the noble Baroness, Lady Morgan of Ely, both of whom are up to speed with current thinking across party politics in the Assembly as to how its powers should be augmented or modified to make it a more effective body able to hold the Government of Wales to account, while enabling that Government, whatever their complexion, to work effectively for the benefit of Wales.

We have here two former Ministers in the Welsh Government on the Liberal Democrat Benches: the noble Lord, Lord German, and the noble Baroness, Lady Randerson. We have former Secretaries of State for Wales—the noble and learned Lord, Lord Morris of Aberavon, and the noble Lords, Lord Hunt, Lord Hain and Lord Murphy—who over many years have had a deep involvement in several Wales Bills, as have many other noble Lords.

I should also say how glad I am to see the noble Lord, Lord Crickhowell, participating in this debate. We have not always seen eye to eye on matters relating to devolution, but I know that in accepting our National Assembly as an essential part of Welsh governance, he will want to see it made more effective, transparent and answerable. We noted his wish to see the two Governments at each end of the M4 working together more constructively and his trenchant comments on the Barnett formula.

We have here the noble Lord, Lord Morgan, Wales’s most eminent historian on the period from 1868 onwards when questions of greater Welsh autonomy were emerging and, of course, my noble friend Lord Elystan-Morgan, a long-standing advocate of greater Welsh autonomy and of dominion status. We are also fortunate that the Minister taking this Bill forward, the noble Lord, Lord Bourne of Aberystwyth, was a very effective leader of the Conservatives in the two Assembly terms in which he served and was a key member of the Silk commission, which wrote the second report which forms the background to this Bill.

In other words, we have significant experience in this Chamber, whatever its democratic shortcomings, and it would be short-sighted of the Government not to take on board the issues that will be flagged up today, and at Committee and Report stages, which may not have had adequate coverage in another place. Colleagues have already referred to some of these and I shall touch on one or two others.

In doing so, I do not in any way resile from Plaid Cymru’s ambition for Wales to be a member state of the European Union in its own right. We accept that change comes but gradually and sometimes painfully slowly. Questions relating to the interface between Wales and the EU today appear to be in a somewhat different light. The constitutional future of these islands will partly depend on how Northern Ireland and Scotland are allowed to relate to the EU. To that extent, some aspects of this Bill are already dated, and the Bill’s existence reminds us that the United Kingdom Government still pursue separate constitutional proposals for Wales, Scotland and Northern Ireland, and for England, and give little thought to securing a balanced UK-wide settlement that might stand the test of time.

First, I remind the House that this Bill emanates from the Silk commission, which was set up by a Conservative-led Government in 2011. That commission included members of all four parties which then had seats in the Assembly. My friends in the SNP in Scotland have often been criticised at Westminster for not being willing to participate in similar commissions in Scotland—the Calman commission, for example. Plaid Cymru took a full role in the Silk commission’s work, with Dr Eurfyl ap Gwilym playing an outstanding part, as I am sure the noble Lord, Lord Bourne, would immediately acknowledge. Sir Paul Silk worked hard to secure a unanimous report, supported by all four party representatives. That took a good deal of work and compromise all round.

I must say that I think we had every right to expect the Government, unless there were fundamental reasons to the contrary, to accept the report in its entirety and not to cherry pick those items that fitted in with the Conservative agenda and discard others that were deemed to be inconvenient. I have party colleagues in Plaid Cymru who will be reluctant to participate and compromise in this way, given that the Silk recommendations have been diluted and re-engineered to meet prejudices in Westminster and the convenience of Whitehall departments, rather than the agreed needs of Wales.

So as not to be unnecessarily divisive, let me first identify some matters covered by the Bill that I welcome. These include the permanence of the National Assembly, the acceptance of the principle of a reserved powers model, giving the Assembly power over elections to the Assembly, including the electoral system and franchise, and control of fracking in Wales. I certainly welcome all of those.

However, I must also flag up some unsatisfactory aspects of the Bill, which I shall want to pursue at a later stage. I expect that my noble friend Lord Elis-Thomas will refer to the key issue of how to implement the central plank of Silk, namely the need for the powers of the Assembly to be based on the principle of reserved powers rather than the conferred powers model enshrined in the 1998 and 2006 Acts. The version which the Government have brought forward is regarded in Cardiff Bay as inadequate. In fact, it still contains as many as 200 reserved matters. Indeed, in some ways, it makes the position worse in that it actually takes back powers from the Assembly and the Welsh Government.

Furthermore, while the Secretary for Wales, Alun Cairns MP, has been apparently willing to explain his proposals, he has been reluctant in this respect to negotiate an outcome which might meet the needs of both Wales and Westminster. That smacks of government by diktat.

The Report on the UK Government’s Wales Bill, published last Thursday by the Assembly’s Constitutional and Legislative Affairs Committee, of which I have a copy here, states in paragraph 11 that the Bill,

“is a complex and inaccessible piece of constitutional law that will not deliver the lasting, durable settlement that people in Wales had expected”.

Paragraph 14 adds that,

“in our view, significant improvements needed to be made to the Bill … to reflect authoritative criticism … Regrettably, necessary improvements were largely not accepted by the UK Government”.

It is the unanimous view of the committee that the arguments put forward by the UK Government in opposing a more ambitious Bill, “are not convincing”. Paragraph 22 of the report says:

“The Bill we are left with provides a restrictive settlement that over-complicates rather than simplifies and fails to fully empower the National Assembly as a modern legislature”.

The report describes the Bill as,

“the first piece of devolution legislation that takes backwards steps and that is a matter of considerable concern”.

These views were endorsed by all four parties represented on that committee, including the Conservative former Deputy Presiding Officer of the Assembly, David Melding AM, and if the UK Government now state that they will ride roughshod over their representations, it shows how misleading are the assurances given by the new Prime Minister that the wishes of Wales will be taken into account by her Government. Incidentally, I am somewhat surprised that the report is not available in the Vote Office for noble Lords to access.

If I may give a specific example, it might help noble Lords to appreciate the shortcomings of the Bill. I take the issue of compulsory purchase. Under the 2006 Act, it has not been specifically devolved, but neither is it retained. Therefore, legally, the National Assembly could legislate in this matter, provided that it was “incidental”, and not “central” to that piece of legislation. It is an example of what has been referred to as a “silent subject”. In the Bill, compulsory purchase is deemed as a retained matter, so the Welsh Government would in future be unable to legislate as it could under the 2006 Act. This is a clear example of how this Bill is withdrawing powers from the National Assembly, despite claims by Ministers to the contrary.

I refer to some other matters which are not included in this Bill, although they were part of the Silk recommendations, concerning which I hope to table amendments in Committee. These include: the devolution of policing, supported by all four newly elected police commissioners in Wales; provision for the emergence of a distinct Welsh legal jurisdiction, the absence of which has caused much of the complexity for which this Bill has been rightly criticised; powers relating to the youth justice system; and powers concerning the Wales and Borders rail franchise.

I shall also seek to propose amendments that deal with greater Assembly powers relating to energy, to remove veto powers enjoyed by the Secretary of State and to clarify the Welsh Government’s authority in dealing with trade matters relating to the single market of the European Union, in the unfortunate circumstances that the UK Government fail to negotiate unfettered rights for manufactured goods and agricultural produce, free from tariff and technical barriers. I shall also raise questions relating to the repatriation from Brussels to Westminster of matters that are already devolved, so that they can be transferred immediately to the National Assembly if they impinge on devolved functions.

I also flag up my intention to bring forward an amendment in Committee to give the National Assembly full powers to decide on any new proposals for extracting water from Wales. Specifically, this must include the power of veto over any intention of drowning valleys to create new reservoirs, which must be subject to authorisation by the National Assembly, which should have the powers to impose whatever conditions it deems fit on such projects. Sixty years on from when Liverpool Corporation resolved to drown the Tryweryn Valley, against the united opposition of all Welsh MPs bar one, this issue still causes rancour and bitterness. If there was one single step that the Government could take that would recognise Welsh sentiment on this issue, it would be to empower the Assembly to decide on such matters. I have no doubt that every party in Wales would welcome such a step with delight. Associated policy issues, such as land use, flooding, agriculture, the development of natural resources, environmental policy, industrial development, tourism and recreation are already overwhelmingly devolved to the Assembly. I ask the Minister if he will, even at this late stage, take up with his fellow Ministers the possibility of righting a long-standing wrong, and bring forward at least an enabling clause at a later stage that could facilitate such a move.

At a time of great constitutional uncertainty, when the UK Government put so much emphasis on the validity of identity and “taking back control”, and on enabling communities to do much more to help themselves, this Wales Bill should be a beacon that demonstrates how such thinking now applies to Wales. It should project how the principle of bringing power closer to the people is not just a tug of war between London and Brussels; it is equally valid in enabling Wales to decide for itself those matters which—because of cultural diversity, differences in social aspiration and community values, or of geographic or administrative convenience—can best be decided in Wales.

We are united that we need new legislation that enables Wales to do more to help itself in a transparent and effective manner and that overcomes the shortcomings of the tangled mishmash of existing law. We need legislation which has the confidence of Wales’s elected representatives and which the Government of Wales herald as a positive step to overcome current deficiencies in our constitutional settlement. As a number of noble Lords have already indicated, I fear that this Bill falls short of those ambitions. Depending on how the Government respond to proposals from across this Chamber to improve its provisions at later stages, a question must remain as to whether we are better with, or without, the Wales Bill as currently drafted. I support its Second Reading, so that it can be amended at a later stage to enable it to achieve the purpose for which it was meant.

Wales Bill

Lord Wigley Excerpts

Committee: 1st sitting (Hansard) : House of Lords
Monday 31st October 2016 Lords Chamber

Moved by

[Lord Wigley]

1: Clause 1, page 1, line 19, at end insert—
“( ) A referendum under subsection (3) may only be held following a vote in the Assembly in favour of holding a referendum for the purpose mentioned in subsection (3).( ) The rules relating to any referendum held under subsection (3) must be drawn up by the Assembly in cooperation with the Electoral Commission.”

[Lord Wigley (PC)]

My Lords, this amendment goes to the heart of the Government’s intentions relating to the permanence of the National Assembly. The Bill as it stands contains the words:

“In view of that commitment it is declared that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum”.

But what is the Government’s intention, and what do they really mean by those words?

I am aware that the introduction of those words follows a similar declaration in relation to Scotland’s Parliament—that it is a permanent part of the governmental system of that country. In Scotland, the demand for that grew from the Scottish assertion of a claim of right: that sovereignty in Scotland comes from the people. That is fundamental to the developments in that country over the past 25 years. It was central, indeed, to the initiative taken by the late John Smith when Labour leader, and it was the background to the Scottish convention which brought the question of a Scottish Parliament back on to the political agenda in the late 1980s.

I believe that this principle should equally apply to the National Assembly. As it was established—and later emphatically confirmed—by referenda of the people of Wales, it is only right that the National Assembly can be abolished only by the democratic vote of the people of Wales.

My amendment deals with the circumstances in which such a referendum can take place. I believe that it would be totally unacceptable if Westminster were to decide, against the wishes of the National Assembly, to hold a referendum on its abolition. That would make a total nonsense of the provisions in Clause 1 about the permanence of the Assembly. It would be a creature only in existence at the behest of Westminster. Equally, if the rules for such a referendum were drawn up by Westminster, there is no knowing what impediments might be contained within them. One has only to think back to the 1979 referendum, with its 40% rule, which meant that on a 50% turnout, there had to be a four-to-one majority in favour of the Assembly for it to be established. That rule applied in Scotland too, where, unlike Wales, there was a majority in favour of the assembly, but it was overruled because of the 40% rule.

My amendment, therefore, does two things. First, it provides that the right and responsibility for holding any such referendum should lie exclusively in the hands of the Assembly itself. Secondly, Amendment 1 provides that the rules for that referendum should be drawn up by the Assembly in co-operation with the Electoral Commission. These two safeguards ensure that this Bill does indeed legislate for the permanence of the Assembly and recognises—as, I think, do all true democrats in this Chamber—that the future of the Assembly should lie in the hands of the people of Wales alone, and not be beholden to the whims and wishes of the Government of the day here in Westminster. As such, this is fundamental to our vision for the status and future of the Assembly. I ask the Government to accept this amendment or, if it is in any way technically deficient, to bring forward their own amendment on Report to reach these objectives. I beg to move.

[Lord Elystan-Morgan (CB)]

My Lords, I wholeheartedly agree with the submission made by the noble Lord, Lord Wigley. He has adumbrated all the arguments that I can possibly think of in support of this amendment. It goes to the very heart of the question that this is essentially a contract, not inter-institutional in terms of the mechanics of Westminster, but a contract with the people of Wales.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank the noble Lord, Lord Wigley, for introducing this amendment, and the noble Lord, Lord Elystan-Morgan, for his contribution. The amendment seeks to define the trigger for a referendum to abolish the National Assembly for Wales and the Welsh Government, and would provide that the rules for such a referendum be drawn up by the Assembly in co-operation with the Electoral Commission. Clause 1 meets the Government’s commitment in the St David’s Day agreement and delivers the Silk commission’s recommendation that it should be recognised that the National Assembly is permanent so long as that is the will of the majority of the people of Wales. New Section A1(3), in Clause 1, states:

“In view of that commitment it is declared that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum”.

As matters stand, referendums are governed by the law relating to referendums, as passed by this Parliament, and I do not consider that there is any suggestion that that should be varied. The principle in the Bill establishes in statute what is already recognised to be the case—that the National Assembly for Wales and the Welsh Government are permanent parts of our constitutional fabric. The referendum provision strengthens this commitment and delivers on the second limb of the Silk commission’s recommendation. Although there has never been a question about whether these institutions are anything but permanent, it is only right that if they were to be abolished that would have to be on the basis of a decision by the people of Wales. Let me be clear that such a referendum is not envisaged, and so the noble Lord’s amendment deals with entirely hypothetical circumstances. I therefore believe that it is unnecessary. On that basis, I urge the noble Lord to withdraw the amendment.

[Lord Wigley]

Perhaps I may press the Minister to be a little clearer on this matter. Is he telling the House that there are no circumstances in which a Government in Westminster, in this Chamber or the other Chamber, could move to hold a referendum if the National Assembly for Wales were against holding such a referendum? Or is he saying yes, Westminster can pass such a referendum irrespective of the wishes of the National Assembly?

[Lord Bourne of Aberystwyth]

My Lords, the noble Lord will know that I do not set out the rules on the sovereignty of Parliament. He will be aware, as I am, that very recently we have seen situations that demonstrate the sovereignty of the people and the sovereignty of this Parliament, so nothing I say could obviate the possibility of a Parliament coming forward subsequently and reversing that. For example, it would be open to any Parliament here to repeal the Government of India Act. That would not be a sensible move and would not be politically realistic, but in terms of the sovereignty of Parliament, of course, that remains the case. This is an important declaratory principle that has not existed previously, indicating the permanence of the institution and the fact that it is the belief of this Parliament that it should not be done without the consent of the people of Wales.

--- Later in debate ---

[Lord Wigley]

My Lords, I am grateful to the noble Lord, Lord Elystan-Morgan, for his contribution and my noble friend Lord Elis-Thomas for his intervention—I nearly said my erstwhile colleague.

[Lord Elis-Thomas]

Call me whatever you want to.

[Lord Wigley]

I will not in this Chamber.

There seem to be two central points that have not been properly resolved. The first relates to a declaratory statement in legislation. I suspect that that is not something regarded as a strong principle in the systems we run because when we start pressing them we find they do not mean much more than the paper they are written on. Of course this place could pass laws that reverse the force of gravity, but they would not mean anything. The question is what they mean by this, especially, as my noble friend Lord Elis-Thomas said, in the context of the legislative consent orders required for all the legislation where the Assembly is involved. The Assembly is involved in this legislation because it is the Assembly that would be at stake and which would be involved in the undertaking of the practical aspects of a referendum. The legislation would therefore require a legislative consent order. If the Assembly said no, is the Minister then saying that that would be overruled? If it can be overruled in those circumstances, how does the principle apply in others when the Westminster Government might feel ill disposed towards policies put forward in Cardiff? This needs more clarification than the Minister has given so far. I invite him to clarify it.

[Lord Bourne of Aberystwyth]

My Lords, I am not sure that it is in order that I respond, but I will happily talk to the noble Lord outside the Chamber and report to other Peers. I have to say to the noble Lord that the declaratory statement was something pushed for by his party. I am very surprised that he then says that this does not have any significance, because his party pressed for it very hard. I would have thought he would welcome it being put in legislation.

[Lord Wigley]

I am grateful for that addition. Of course there are things that one declares. The question is whether one declares them intending them to have the force of law, which is what we are dealing with here—we are dealing with legislation. I will now go on from that; no doubt we can have a private conversation about it.

I believe that the people of Wales are entitled to know where they stand, in particular about the possibility that, if the going gets rough, Westminster can organise a referendum with a view to abolishing the National Assembly. That is not a good basis on which the Bill should be built. I welcome the declarations made regarding permanence. I was just looking for a way to ensure that that is the position in law, as well as in declaration, but we have probably taken this as far as we are going to this afternoon, so I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Moved by

[Lord Wigley]

2: Clause 1, page 2, leave out lines 1 to 6 and insert —
“PART A2ESTABLISHMENT OF TWO DISTINCT JURISDICTIONSA2 Legal jurisdictions of Wales and of England The legal jurisdiction of England and Wales becomes two legal jurisdictions, that of Wales and that of England.A3 The law of Wales and the law of England (1) The law of England and Wales is divided into the law of Wales and the law of England.(2) All of the law that extends to England and Wales immediately before the coming into force of this section—(a) except in so far as it applies only in relation to England, is to extend to Wales (and becomes the law of Wales), and(b) except in so far as it applies only in relation to Wales, is to extend to England (and becomes the law of England).(3) In this section “law” includes—(a) rules and principles of common law and equity,(b) provision made by virtue of an Act of the United Kingdom Parliament or an Act or Measure of the National Assembly for Wales, and(c) provision made pursuant to the prerogative.(4) Any provision of any enactment or instrument enacted or made, but not in force, when subsection (1) comes into force is to be treated for the purposes of that subsection as part of the law that extends to England and Wales (but this subsection does not affect provision made for its coming into force). A4 Senior Courts system (1) The Senior Courts of England and Wales cease to exist (except for the purposes of section A8 (3) and (4)) and there are established in place of them—(a) the Senior Courts of Wales, and(b) the Senior Courts of England.(2) The Senior Courts of Wales consist of—(a) the Court of Appeal of Wales,(b) the High Court of Justice of Wales, and(c) the Crown Court of Wales, each having the same functions in Wales as are exercisable by the corresponding court in England and Wales immediately before subsection (1) comes into force.(3) The Senior Courts of England consist of—(a) the Court of Appeal of England,(b) the High Court of Justice of England, and(c) the Crown Court of England,each having the same functions in England as are exercisable by the corresponding court in England and Wales immediately before subsection (1) comes into force.(4) For the purposes of this Part—(a) Her Majesty’s Court of Appeal in England is the court corresponding to the Court of Appeal of Wales and the Court of Appeal of England,(b) Her Majesty’s High Court of Justice in England is the court corresponding to the High Court of Justice of Wales and the High Court of Justice of England, and(c) the Crown Court constituted by section 4 of the Courts Act 1971 is the court corresponding to the Crown Court of Wales and the Crown Court of England.(5) Subject to section A9—(a) references in enactments, instruments and other documents to the Senior Courts of England and Wales (however expressed) have effect (as the context requires) as references to the Senior Courts of Wales or the Senior Courts of England, or both; and(b) references in enactments, instruments and other documents to Her Majesty’s Court of Appeal in England, Her Majesty’s High Court of Justice in England or the Crown Court constituted by section 4 of the Courts Act 1971 (however expressed) have effect (as the context requires) as references to either or both of the courts to which they correspond.A5 County court and family court (1) The county court and the family court cease to exist (except for the purposes of section A8 (3) and (4)) and there are established in place of them—(a) the county court of Wales and the family court of Wales with the same functions in Wales as are exercisable by the county court and the family court (respectively) immediately before this subsection comes into force, and(b) the county court of England and the family court of England with the same functions in England as are exercisable by the county court and the family court (respectively) immediately before this subsection comes into force.(2) For the purposes of this Part—(a) the county court is the court corresponding to the county court of Wales and the county court of England, and(b) the family court is the court corresponding to the family court of Wales and the family court of England. (3) Subject to section A9 references in enactments, instruments and other documents to the county court or the family court (however expressed) have effect (as the context requires) as references to either or both of the courts to which they correspond.A6 Judiciary etc. (1) All of the judges, judicial office-holders and other officers of Her Majesty’s Court of Appeal in England or Her Majesty’s High Court of Justice in England become judges, judicial office-holders or officers of both of the courts to which that court corresponds.(2) All of the persons by whom the jurisdiction of the Crown Court constituted by section 4 of the Courts Act 1971 is exercisable become the persons by whom the functions of both of the courts to which that court corresponds are exercisable except that (despite section 8(2) of the Senior Courts Act 1981)—(a) a justice of the peace assigned to a local justice area in England may not by virtue of this subsection exercise functions of the Crown Court of Wales, and(b) a justice of the peace assigned to a local justice area in Wales may not by virtue of this subsection exercise functions of the Crown Court of England.(3) All of the judges, judicial office-holders and other officers of the county court become judges, judicial office-holders or officers of the county court of Wales and the county court of England.(4) All of the judges, judicial office-holders and other officers of the family court become judges, judicial office-holders or officers of the family court of Wales and the family court of England except that (despite section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984)—(a) a justice of the peace assigned to a local justice area in England is not a judge of the family court of Wales, and(b) a justice of the peace assigned to a local justice area in Wales is not a judge of the family court of England.A7 Legal professions (1) Every legal practitioner who would (but for this Part) at any time after the coming into force of this Act be entitled to carry on a reserved legal activity for the purposes of the law of England and Wales, in proceedings in England and Wales or before the courts of England and Wales, has at that time the same entitlement for the purposes of the law of England and the law of Wales, in proceedings in England and proceedings in Wales and before the courts of England and the courts of Wales.(2) In this section-“legal practitioner” means every solicitor, barrister, notary, legal executive, licensed conveyancer, patent attorney, trade mark attorney, law costs draftsman, accountant or other person who, in accordance with the Legal Services Act 2007 (c. 29), is entitled to carry on a reserved legal activity;“reserved legal activity” has the same meaning as in the Legal Services Act 2007.A8 Division of business between courts of Wales and courts of England (1) The Senior Courts of Wales, the county court of Wales, the family court of Wales and the justices for local justice areas in Wales are to apply the law extending to Wales (including the rules of private international law relating to the application of foreign law). (2) The Senior Courts of England, the county court of England, the family court of England and the justices for local justice areas in England are to apply the law extending to England (including the rules of private international law relating to the application of foreign law).(3) All proceedings, whether civil or criminal, pending in any of the Senior Courts of England and Wales, the county court or the family court (including proceedings in which a judgment or order has been given or made but not enforced) must be transferred by that court to whichever of the courts to which that court corresponds appears appropriate.(4) The transferred proceedings are to continue as if the case had originated in, and the previous proceedings had been taken in, that other court.SupplementaryA9 Power to make further provision (1) Her Majesty may by Order in Council make provision (including provision amending or otherwise modifying any enactment or instrument, including this Act) that appears appropriate in consequence of, or otherwise in connection with, the provision made by this Part.(2) The provision that may be made under subsection (1) includes in particular provision relating to—(a) courts,(b) tribunals,(c) the judges, judicial officers and other members and officers of courts and tribunals,(d) the Counsel General or other law officers,(e) the legal professions,(f) the law relating to the jurisdiction of courts and tribunals, and(g) other aspects of private international law (including, in particular, choice of law, domicile and the recognition and enforcement of judgments and awards).(3) No Order may be made under subsection (1) unless a draft of the Order has been laid before, and approved by resolution of—(a) each House of the United Kingdom Parliament, and(b) the National Assembly for Wales.””

[Lord Wigley]

My Lords, I am delighted to have the opportunity to move Amendment 2, which addresses an issue that has been widely debated in Wales: establishing distinct jurisdictions for Wales and for England respectively. I immediately acknowledge that I am not a lawyer by background. It is a matter of regret that Plaid Cymru does not have in this Chamber a Member with in-depth experience in the law. I beg the indulgence of noble Lords, in particular of noble and learned Lords, who are much more knowledgeable than me in these matters.

I also speak to the other amendments grouped with mine. Amendments 4 and 5 in the name of the noble Baroness, Lady Morgan of Ely, calls for a Justice in Wales commission to reveal whether the existing single jurisdiction of England and Wales should be divided in two, one for Wales and one for England. I shall also speak to Amendment 10 in the name of the noble Lord, Lord Thomas of Gresford, which calls for a commission on jurisdiction to examine the desirability of a separate and distinct legal jurisdiction in Wales. I await the cases that will be made by the noble Baroness and the noble Lord relating to their respective approaches to this matter, but should my amendment for any reason not be accepted, I would certainly regard their amendments as steps in the right direction that I would support.

I accept that there are divided opinions among lawyers on these matters. I suspect that a majority of legal people in this Chamber might not initially warm to my proposals. I ask any doubters to consider that there has already been keen debate on this issue within legal circles in Wales—the range of amendments being debated emanating from different parts of this Chamber bears that out. I ask noble Lords to accept that there are leading legal brains, such as Sir Roderick Evans and Winston Roddick QC, who have long campaigned in favour of Wales having its own jurisdiction. In his memorable Lloyd George memorial lecture in 2008, Winston Roddick stated, “My view is that a devolution settlement, by which the Assembly is given full legislative competence but not the responsibility for the administration of justice, would be dysfunctional, constitutionally unsound and demeaning to Wales’s developing constitutional status”.

In fact, the need to address the divergence between Wales and England was recognised long before primary law-making powers were devolved. In the first four years of devolution over 1,100 statutory instruments were approved by the Assembly. A very large proportion of these were unique to Wales or reflected distinct differences to those pertaining to similar instruments operational in England, with these differences reflecting the different circumstances of Wales. As long ago as 2004 Professor Tim Jones and Jane Williams wrote an article in which they stated that Wales was emerging as a separate jurisdiction that needed to be separately recognised. If that was true then, how much greater is that need now and how much greater again will it be in another five or 10 years?

Notwithstanding the force of these points I feel I should address wider and more general questions in justifying the change that I advocate. One might argue that the separate or distinct jurisdiction requires a defined territory, a law-making body within that territory empowered to make laws for it and a judicial system within it to administer those laws. However, discussion of a separate or distinct Welsh jurisdiction must have regard for the wider UK context. England and Wales, and Scotland and Northern Ireland, have their legal jurisdictions, but none of them is separate in a watertight fashion. The Scottish judicial system enforces laws made in Westminster, as it does laws made in Edinburgh. The same is true of Northern Ireland in the Belfast/Westminster context.

In addition, important elements of the tribunal systems that operate in each jurisdiction are organised on a UK or GB basis and function alongside intra-jurisdictional tribunals. There is also the Supreme Court of the United Kingdom, which sits at the pinnacle of the judicial system of each jurisdiction. A Welsh jurisdiction would not be separate in an isolationist sense, but would take its place alongside the other jurisdictions of the UK and therefore perhaps the word “distinct” is more appropriate.

A question concerning the difference between separate and distinct jurisdictions might be exercising some noble colleagues, and I understand that. What does it mean in practice? A distinct jurisdiction will consist of a unified court system, encompassing Wales and England, but applying two distinct bodies of law: the law of Wales and the law of England. The infrastructure is therefore in place, minimising costs. A distinct jurisdiction may over time grow into a separate jurisdiction and that will reflect the evolution of our devolved Government.

As I understand it, the case is based on the need for there to be absolute clarity with regard to the legal rectitude of a legislative action taken by the Welsh Government. This will build up over time in terms of the primary and secondary legislation passed, amended and no doubt sometimes annulled by the National Assembly, and by the plethora of court cases that over time will create the interpretive framework for such laws and regulations.

In the earlier years of devolution—the years through which we are living—there will no doubt be lawyers practising in Wales and England who will be able to keep a focused eye on the law and its interpretation on both sides of the border. As the years go by and the volume of relevant legislation accumulates, it will become increasingly difficult to ride both horses without slips and mistakes. In one sense there is already an embryonic Welsh jurisdiction. There are approximately 15 tribunals that function in Wales. I believe that one was actually created by the National Assembly itself. Responsibility for these rests with the Welsh Government.

A Welsh jurisdiction could have whatever structures and institutions it is decided are needed to best serve the interests of Wales. There is no template that has to be followed and a jurisdiction, once created, is not immutable. It can change and develop as needs dictate; for example, the present Northern Ireland jurisdiction is structurally different from that originally set up. Creating a jurisdiction for Wales is having a clean sheet of paper and deciding on what we need at this stage. It is the opportunity to create a structure that meets the demographic, geographic and linguistic needs of Wales and, most of all, its democratic needs in the context of our devolved legislature and its responsibilities.

I will now address the reasons for creating a Welsh jurisdiction. First, the argument cited most often, as I have mentioned, is that Wales is developing a body of law that is different from the law of England, and those differences will increase as devolution progresses. It is a good, valid and attractive argument but it is not the only one and not necessarily the most persuasive. The differences between the laws of Wales and the laws of England are unlikely ever to be fundamental. There are no differences so fundamental between the laws of Northern Ireland or Canada or Australia and, say, England and Wales that a judge could not come to terms with them.

Secondly, the refinement of the “different law” argument into constitutional terms is, to my mind, far more persuasive. The judiciary, as the third pillar of government, needs to be properly in place in Wales to support the progress of devolution and to act in relation to the Welsh Government as the judiciary in London acts in relation to Westminster. I contend that the joint jurisdiction has not served Wales particularly well. Institutions of the law from the courts to prisons have been developed according to templates set to accommodate the large cities of England and not the needs of Wales. The infrastructure of the administration of justice has never been developed on a whole-Wales basis. It is not acceptable that there is, for example, no Crown Court west of Swansea or between Swansea and Caernarfon, and no Crown Court between Merthyr and Mold. County courts and magistrates’ courts have been closed in a way that would be unthinkable if the jurisdiction was run from Cardiff. Wales is able to decide on the siting of its schools and hospitals but not its courts and prisons.

Thirdly, I contend that legal services are an important economic driver and the development of a jurisdiction in Wales would provide a boost to the Welsh economy, which would by no means be limited to the legal professions. Wales is treated for the purposes of the present jurisdiction as a circuit of England, and work from Wales goes to support employment and career structures in England. We need to maximise the opportunities for the brightest of our young people to work in Wales. That is what devolution should be about and it is as relevant in the context of the law as it is in other walks of life.

Fourthly, many positives could grow out of having a Welsh jurisdiction. It would be small and able to react quickly and effectively to the need for change. It could, for example, develop innovative rehabilitation initiatives, which are linked to responsibilities already devolved to Cardiff. The importance of this was recognised by Gordon Brown a few years ago. Following the Good Friday agreement, criminal law was a reserved matter and it continued to be until 2010. In a speech delivered on 16 October 2008, Gordon Brown, then Prime Minister, sought to encourage the Northern Ireland Assembly to seize the opportunities that the devolution arrangements offered, and he said:

“There is something more vital at stake for your entire society, something that only the completion of devolution can deliver. How can you, as an Assembly, address common criminality, low-level crime and youth disorder when you are responsible for only some of the levers for change, and when you have responsibility for education, health and social development but have to rely on Westminster for policing and justice? The people of Northern Ireland look to you to deal with these matters because to them they are important. Full devolution is the way to deliver better services, tailored to the needs of all communities, regardless of the politics. It is the best way for you to serve them”.

The fifth justification I would advance relates to the Welsh language. Although in recent years attitudes towards the use of Welsh in the administration of justice have changed for the better, nearly half a century after the passing of the Welsh Language Act 1967 we still have a system that is fundamentally English and which accommodates the Welsh language only when it has to. Welsh and those who wish to use it remain in an inferior legal position and this is something that we in Wales have to put right. There is a growing call for a distinct jurisdiction for Wales. Recently, a majority of witnesses at the Welsh Affairs Select Committee in the other place recommended that the diverging body of distinct Welsh law could be best served only by this distinct jurisdiction. Lawyers and constitutional experts alike reiterated the case to that committee that to establish a clear and lasting legal settlement for Wales, a distinct legal jurisdiction is necessary. Academic and constitutional expert Professor Richard Wyn Jones summed it up in a pithy and memorable phrase. He said that a Welsh jurisdiction represents,

“the constitution catching up with the legislative reality”.

--- Later in debate ---

[Lord Wigley]

My Lords, I am grateful to the large number of colleagues who have participated in this debate: the noble Lords, Lord Crickhowell, Lord Elis-Thomas, Lord Thomas of Gresford, Lord Elystan-Morgan, Lord Carlile and Lord Deben; the noble and learned Lords, Lord Hope, Lord Judge and Lord Morris of Aberavon; and the noble Baronesses, Lady Morgan of Ely and Lady Randerson. A common thread that appeared to run through it was a recognition that, in the Minister’s own words, we have an evolving situation. It is a situation that is under scrutiny by virtue of the body that is looking into the matter. As the Select Committee on the Constitution, of which the noble and learned Lord, Lord Judge, is a member, reported last week, there is a need for the Government to keep a constant eye on this evolving situation to see how it is working out. As the Silk commission recognised, there may be a need in due course for a change in law to accommodate the structures that are necessary so that there is a system working in Wales that reflects our own legislation and growing body of law. To the noble Lord, Lord Carlile, who cited cases, I say that, irrespective of the complexity of crossing the border, decisions will be taken within the framework of one set of laws or the other. The body of law in Wales is there; it is growing and it will continue to grow. Therefore the need to accommodate it will be there, however it is done. It may not be possible to do it by virtue of my proposals here, although the Welsh Government have also supported it. As the noble Lord, Lord Thomas, recognised, there is a need for a perhaps one-off review along the lines that the noble Baroness, Lady Morgan, proposes in her amendment. In other words, there is a general acceptance that it will need to be accommodated.

I hope the Minister will be able to tell the House that if it is not possible to do it within the framework of this Bill, as it seems it will not be, given the timescale for Report, the Government will be open to the possibility—if legislation is needed, and as the noble Lord, Lord Elis-Thomas, said—of further Wales Bills. I would rather that this could be dealt with now, but there may be a need to legislate by virtue of the facts that have been presented to this Committee. The point made by the noble Lord, Lord Elystan-Morgan, that we are the only place in the world that will have its own separate legislature but not its own system of jurisdiction to run in parallel with it, was not refuted. That must tell us something, and it should inform us, as experience unrolls in Wales with regard to the workings of the Assembly and the body of our law, that we may need to do something about it. I hope the fact that it has been raised today will serve to ensure that a focus is kept on these issues and is not allowed to die away, and that at the appropriate time—and there will come a time when this needs to be acted on—there will be no shying away from the needed legislation if that is what best serves Wales and these islands generally. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Wales Bill

Lord Wigley Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 31st October 2016 Lords Chamber

Moved by

[Lord Wigley]

6: Clause 2, page 2, line 12, leave out “normally”

--- Later in debate ---

[Lord Wigley (PC)]

My Lords, the amendment stands in my name and that of the noble Lord, Lord Elis-Thomas. As your Lordships can well imagine, it is a probing amendment which, depending on the response that we receive in this short debate, may escalate into something more substantial. The Bill reads:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly”.

So what does “normally” really mean?

I have searched through the Bill and have failed to find any definition. I am not aware that the term is so commonly used in other legislation that there is a generally accepted meaning as far as use in legislation is concerned. In an attempt to seek clarification, my colleagues in the other place contacted the House of Commons Library, which confirmed that there is no legal status for “normally”. In this instance, it is inherently vague and asking for trouble, because it leaves every interpretation open to the courts—at least potentially so.

I am aware that questions on this matter arose also in the Commons and that the only response which Ministers were able to give was:

“The ‘not normally’ element of both the convention and clause”—

in relation to legislative consent—

“is essential as it acknowledges parliamentary sovereignty”.—[Official Report, Commons, 5/7/16; col. 784.]

Following a further check with the Library, it confirmed that every Act which requires the assent of the Assembly already contains a clause that confirms parliamentary sovereignty. Including “normally” here achieves nothing but confusion. That is simply unsatisfactory. We cannot make a law on such a basis. “Normal” is an immensely subjective term. What is deemed normal by one person may be regarded as highly abnormal by another.

Noble Lords may be aware of my work in the field of learning disabilities. At one time, people with such disabilities were referred to as “mentally abnormal” or “educationally abnormal”. That carried a huge stigma and was rightly consigned to the dustbin of history. The concept of normality is loaded with preconceptions and it should never be enshrined in law, certainly not without a very tight definition.

The word “normally” is a Trojan horse at the heart of this legislation. It is totally at the whim of Ministers at Westminster as to what it means. It enables them to use this loophole exactly as they might wish. It would have been more honest to write into the Bill that a Westminster Minister may intervene just when and how he or she wishes on matters falling into this category of Assembly powers.

This is just not good enough. I ask for the support of the House in removing the term if the Government cannot bring forward an acceptable term or some believable explanation for its existence in the Bill. I beg to move.

[Baroness Morgan of Ely (Lab)]

My Lords, I shall speak to Amendments 7 and 8. These amendments are designed to clarify the circumstances in which the National Assembly’s legislative consent is required for parliamentary Bills. As drafted—as the noble Lord, Lord Wigley, has suggested—the Bill provides that Parliament will not “normally” legislate with regard to devolved matters without the Assembly’s consent. He has just pointed out the difficulties in the definition of “normally”, but neither is there any definition of “devolved matters”. Indeed, elsewhere, the Bill speaks of “reserved matters” or matters that are “not reserved”. It does not use the language of “devolved matters” at all.

This provision closely follows an equivalent in the Scotland Act 2016. Your Lordships might recall that the equivalent provision in the Bill leading to that Act was the subject of rather anxious debate. The concern was that the provision was incomplete in specifying when the Scottish Parliament’s consent was required for UK parliamentary legislation. The provision had been included, following a recommendation from the Smith commission that the Sewel convention be given statutory underpinning. Unfortunately, the Government, in implementing that recommendation, gave the narrowest possible interpretation of the convention in writing it into the Bill.

While it is true that, as originally formulated, the convention proposed that a devolved legislature’s consent was required only in respect of a provision within its devolved legislative competence, it soon came to be accepted that consent should also be required if a parliamentary Bill proposed a modification of that very competence. I will simplify this: if the UK Government wanted to bring in a law on an issue where the Assembly already had the power to legislate—so on agriculture or education—the understanding is that that would not be possible without the Assembly’s agreement. However, if the UK Government proposed to change the Assembly’s powers to legislate, it is not clear that that Assembly agreement would be necessary.

Demonstrating that this was not a matter of controversy, the Government have repeatedly said—and the Minister himself has said on this Bill—that a Bill that radically modified the National Assembly’s legislative competence could not be passed without the Assembly’s formal consent, even though that might not appear obvious from the language of devolved matters. This issue is highlighted in the report on this Bill by the Constitution Committee of this House:

“There were important differences between the Sewel Convention as referred to in the Bill and the Sewel Convention as understood in practice. The Bill framed the Convention in terms narrower than those in which it is usually understood, by failing to refer to that limb of the Convention that is concerned with UK legislation that adjusts the scope of devolved competence”.

It should not be a matter of dispute between the UK and Welsh Governments. The difficulty is that, although the two Governments agree on the circumstances in which the Assembly’s consent is required for parliamentary Bills, the Bill does not reflect that common understanding. The purpose of the amendment, therefore, is simply to define what is meant by “devolved matters”. In so doing, it sets out the agreed circumstances in which the Assembly’s legislative consent is required for parliamentary Bills. Those circumstances importantly include the situation of the present Bill, which modifies the Assembly’s legislative competence.

This is quite a useful clarification that could be achieved without raising any new issues of principle that might be of concern to the Government. I hope at least that the Minister will be able to reaffirm that when a parliamentary Bill comes forward with proposals for modifying a devolved legislative competence, such a Bill—as he has promised with this Bill—can proceed only with the relevant legislature’s formal consent.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his comments and for clarifying what I was intending to say, and I apologise if I had not made that absolutely clear. I have taken on board the points that are being made. I said that we will look at this in guidance, but as I have indicated there is a need for room for manoeuvre here, so I will take the points back and look at them.

[Lord Wigley]

My Lords, we are making progress. This is a good omen perhaps for a future amendment that is coming forward. I am grateful to the Minister for agreeing to take it back and look at it. It is always better to have something spelled out in the Bill quite clearly than to depend on guidance notes. Of course the objective of this Bill is to clarify and simplify the problems that have arisen over the past few years, not to dig more holes for ourselves. But in the spirit in which the Minister has offered to look at this again, I am happy to withdraw the amendment.

Amendment 6 withdrawn.

--- Later in debate ---

[Lord Crickhowell]

My Lords, I preface my remarks with a story I was told long ago by Sir John Rodgers, who lived in Kent and was elected for a Kent constituency just a little way from his home. He decided to consult a neighbour, Winston Churchill. Winston replied: “Never live in your constituency”. That is not my position, but I have real practical objections to what is proposed, particularly for candidates.

I have two objections. Let us consider candidates first. Someone may have been born and brought up in Wales and his family live in Wales, but he is at present working in, say, London, perhaps as a civil servant or in business. He decides that he wishes to fight an election. If the amendment were passed, he would be forced to move back to Wales and give up his employment before standing.

I know of at least one very distinguished individual who in the war was in a reserved occupation in the Foreign Office and was determined to serve in the Armed Forces. He promptly got himself chosen as a candidate and immediately had to leave the Foreign Office. He became a founding member of the SAS, served with immense distinction in the Baltic states and later became a very distinguished Member of Parliament. One can also think of someone serving in the Armed Forces—perhaps in the royal regiment of Wales—encamped outside the Principality. He is about to leave the Army or decides that standing as a candidate forces his removal from the Army list. He is perfectly happy, after the election, to move to his constituency and live in it but, as this amendment is drafted, that would not be possible.

I have a second objection. In recent years, I have moved to Monmouth. Take an individual who has been born and brought up in Monmouth. He lives and works there; he worships there; his children go to school there; he goes to a doctor there. However, it chances that he lives just across the Wye bridge and is therefore living in England. He is disqualified from standing. My present Welsh home is on a road that leads up out of Monmouth and virtually every house in it is in the town, but if you go three-quarters of a mile up the road from me to my next-door neighbour, that house is in England. Its occupant may live, work and do everything he has to do in Monmouth but he would be disqualified. This situation is not unique to Monmouth. It happens that a considerable number of Welsh towns straddle the border, starting in the north with Bangor-on-Dee. On Saturday afternoon I passed through Knighton on my way to a memorial service in Presteigne. Someone might live and spend their whole life in Presteigne but it just happens that the house they live in, which is still part of the town, is 100 yards across the border and in England. They are therefore disqualified from standing for election in the county of Powys. Going south, there is Hay-on-Wye, and I could name a whole string of other little towns and hamlets up the border which would be disqualified for entirely the same reason.

Broadly, I have slightly more sympathy with the amendment in the name of the noble Lord, Lord Wigley, which at least allows them to stand as candidates but says that they then have to be living in Wales before they take their seats. However, that worries me too. Going back to my example of Presteigne, can it really be right that the person who lives, works and carries out all their business in that Welsh town is forced to sell their house 200 yards, say, across the border, in order to qualify for membership of the Assembly? It does not seem to me that this is a reasonable proposition.

I wonder too whether there may not be difficulties when boundary changes take place that force people suddenly to move their homes. However, I will not dwell on that. I have voiced my objections. I do not think this is a reasonable set of amendments and hope that it will not be passed.

[Lord Wigley]

My Lords, the noble Lord, Lord Crickhowell, has certainly given us cause to consider this issue further. As I speak to my amendment, I will deal with some of the points that he raised. Amendment 22 standing in my name is grouped with Amendment 20 moved by the noble Lord, Lord Hain. As he said, my amendment has a similar purpose to his—namely, to ensure that those who legislate for the future of Wales and those who decide the priorities of public expenditure in our country should do so on the basis that they actually live in Wales, know the needs of our communities and genuinely represent the people among whom they reside. I would have thought that was a fairly fundamental principle. I go further and say that ideally each representative, both constituency Members and regional list AMs, should live within the area they represent. In that way, they know the feelings and priorities of their constituents, friends and neighbours and appreciate the tensions which sometimes arise. During the 27 years I represented Caernarfon, a fundamental element in the way in which I undertook the job was that I could feel I was part of the community. I realise that cannot always be achieved and that some people living a couple of miles outside the constituency may be fully integrated into the community they represent. I also realise that there will be times when boundary changes may work in a way that takes the home of a sitting AM or MP marginally outside the constituency in which they were previously living. These amendments do not address those circumstances. They arise from the incredible fact that there is an AM, as has been mentioned, elected to the Assembly by way of the regional lists, who not only did not live in the region when he stood for election, but did not even live in Wales. What is more, he has indicated that he has no intention of moving his main home to Wales. Frankly, that is appalling and should not be tolerated. If our country is good enough to give him a job and pay his salary and expenses, it is good enough for him to accept that he should live there in order to undertake the work. Nobody is forcing him to come to the Assembly. If he chooses to do so, conditions go with the job, and I believe this is one of them.

I have tabled a slightly different amendment from that of the noble Lord, Lord Hain, as I can see circumstances where his wording could cause difficulties. There has to be a date at which a residency requirement applies. It could be the date a candidate is selected to fight a constituency, the date of the election or the date on which the AM in question takes up his or her responsibilities. I personally believe that the date should be that on which the Member takes up the seat, and should be geared to the point at which he or she takes the oath of office, although the qualification date will need to be geared to some existing verifiable location and date—my amendment suggests the electoral register in force at that time—but I realise that that, too, has shortcomings. If the date is that on which the election is declared, in the circumstances of a by-election, candidates from outside the area would effectively be debarred. Applying the rolling electoral register could possibly overcome that. I am not sure how this might have worked in the Neath by-election in 1991, for example, in which the noble Lord, Lord Hain, was first elected.

[Lord Elis-Thomas]

It was a very good by-election.

[Lord Wigley]

Yes, it was a very good by-election. I enjoyed it very much but then I was not standing. I should declare a past interest in that when I fought the Meirionnydd seat in 1970, which was then taken over by my noble friend in the subsequent election, I was working for Mars in Slough and living in the Thames Valley. There are many similar cases where people who have had to leave Wales to seek work might want to return, whether to a non-political job or to stand for election. The danger is that by having a rule as suggested in the amendments of the noble Lord, Lord Hain, there could be widespread avoidance, with prospective candidates renting an address for the period of the election, with everyone knowing that the address is merely a scam to give the impression that they are highly integrated local people. The address on the nomination paper for election should be the one at which they are registered to vote and to pay tax. If that is outside Wales, so be it; the electors can take that into account. However, once they are elected, they would be in danger of not being paid their salary or expenses if they had submitted a fraudulent address. Remember, these days there is a need to note for council tax purposes whether one’s address is permanent or a second home.

Wales Bill

Lord Wigley Excerpts

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

Moved by

[Lord Wigley]

23: After Clause 13, insert the following new Clause—
“Apprenticeship levy
(1) In Part 4A of the Government of Wales Act 2006, after Chapter 4 insert—“CHAPTER 5Apprenticeship levy116O Apprenticeship levy(1) The Treasury must make separate provision in regulations for apprenticeship levy charged to a person in Wales with a pay bill.(2) The Treasury must lay an annual report before the Assembly and the House of Commons on the amount of apprenticeship levy raised in each tax year from persons in Wales.(3) The Treasury must consult the Assembly before setting a levy allowance or a relevant percentage applicable to persons in Wales.””

[Lord Wigley (PC)]

My Lords, after that rush of enthusiasm for the Wales Bill, I rise to move Amendment 23, which stands in my name and the name of the noble Lord, Lord Rowlands. It relates to the devolution of the funds generated through the apprenticeship levy. The issue has been raised with me because of the uncertainty experienced by employers based in Wales regarding this matter. The Government’s rather chaotic and haphazard approach to the apprenticeship levy has left all the devolved Administrations scratching their heads. Although the specifics are clear for businesses in England, the way in which businesses and organisations in Wales will be able to access and benefit from the money generated by the levy remains completely opaque.

Of the projected £3 billion in the 2015 Autumn Statement, the Treasury specified that £2.5 billion would be spent exclusively on England while the remaining £500 million would be divided among Wales, Scotland and Northern Ireland. We were told we would have our fair share. Despite the fact that this levy is due to be introduced in April, just five months away, we are left facing more questions than answers on the matter. What is our fair share? Are the receipts going to be Barnettised? What happens if the levy yields less money than projected? Will England’s funding be prioritised at the expense of that which is promised for Wales? The lack of transparency in the Treasury’s funding formula for Wales, Northern Ireland and Scotland is creating practical hurdles for those Governments as they prepare for their own apprenticeship schemes.

Apprenticeships are a devolved matter. So are education and training. Operating at a UK level a levy that is meant to directly fund the devolved function has every potential to cause confusion. I am told that an employer-led institute of apprenticeships is to be set up in April 2017 to advise the Department for Business, Energy and Industrial Strategy on the administration of funding and apprenticeship standards in England. Is this institute specifically for England? If so, where does that leave Wales? Surely a similar institution for each of the devolved areas should have a parallel role in advising the Secretary of State. Are the devolved Governments expected to set up their own bodies analogous to the institute or are they expected to relate directly to an institute whose remit extends only to England?

Online services will apparently be provided to employers in England but will not be available to Welsh employers. Another issue that remains unclear is how the levy will work in relation to companies that have headquarters situated in one country but employ people across the border in the territory of a devolved Administration. Plaid Cymru MPs were given assurances in the other place that the Treasury is working in co-operation with the Welsh Government to determine the implementation of the levy. We are yet to see any development on that front.

The apprenticeship levy status in Wales is reduced to a mere link on the UK Government website directing readers to a nondescript Welsh Government webpage that provides no clarity to those in Wales seeking information. What discussions took place between the UK Government and the Government of Wales before that link was advertised? With apprenticeships and businesses keen to take advantage of the levy in Wales in the immediate future, it is not right that they are left guessing while their English counterparts are able to plan in advance.

The UK Government are introducing legislation that pays no regard to the specific needs of the corresponding system in the devolved Governments. They are England-centric in their planning and implementation and appear to be progressing the matter without any co-ordination with the devolved Governments. More broadly, the patchwork devolution settlement being offered to Wales in the Bill will result in confusion and mismanagement. One solution to this problem, as my amendment today sets out, would be to devolve the apprenticeships levy in its entirety to Wales. This would allow the Welsh Government to administer and control the money raised and to align it with apprenticeship policies. Put simply, it would clarify any doubts over Wales’s fair share of the money raised, and would enable employers and apprenticeships to plan their programmes in a co-ordinated fashion. This is a constructive proposal to address a very real problem. I appeal to noble Lords on all sides to indicate their support for the amendment and I appeal to the Government either to accept it today or to undertake to return on Report with their own amendment to answer these very real difficulties. I beg to move.

[Lord Rowlands (Lab)]

My Lords, I declare an interest as honorary president of the National Training Federation for Wales, and in its early years I was one of its advisers. The federation brings together many or most of the training providers that deliver the apprenticeship and skills policies and funding from the Welsh Assembly Government. I am grateful to the noble Lord, Lord Wigley, for tabling this amendment and bringing to our attention the peculiar and now very difficult situation that has arisen as a result of the introduction of the levy.

I say nothing about the merits of the levy. Frankly, it is a fascinating piece of interventionist politics in the labour and employment market. In fact, it reminded me—although I make no direct comparison—of when I was first in the other place in 1966 and a Chancellor of the Exchequer introduced something called the selective employment tax. I am not sure how many Members still remember that or it its fate. It was a novel tax which did not last; I wonder how long this novel levy will last.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

The noble Lord is right in the sense that the essence of devolution is that if the policy is devolved to Scotland, Northern Ireland and Wales it is a matter for those Administrations as to how the apprenticeship policy is rolled out. The apprenticeship levy discussion will be happening between the Treasury and the devolved Administrations. I will get noble Lords an update on how that is progressing. It will then be for them to decide how the money is spent. The discussion on how the cake is being divided up will be led by the Treasury with the devolved Administrations. That is my understanding of how it will operate.

[Lord Wigley]

My Lords, I will press the Minister further on this. Does he accept that, for the Welsh Government—or, for that matter, the Scottish or Northern Ireland Governments—to roll this out they need to know how much money they are getting; the mechanism for delivering it; the timing of it and the conditions that may be placed on it? It is now over 12 months since this thing was kicked off. Without knowing those details they cannot, with all the good will in the world, meet what is required. Inevitably, companies in Wales are going to be in an inferior position to those in England. Will the Minister also clarify the position of those who are employing people across the border: companies which may be based in England but employing in Wales, or vice versa?

[Lord Bourne of Aberystwyth]

My Lords, this was precisely the point that I was dealing with. As I said, I will get a note round about how the discussion is going on how the policy will be rolled out in terms of the amount of money that will be given to the devolved Administrations. The discussion will go on at that level on how that is being sorted out. As I understand it, the basis on which the policy is rolled out is that the place of employment will be where the policy applies. If a business is in Wales it will be a matter for the Welsh Government to decide a policy which is relevant to it. All the Administrations will want to bear in mind businesses which are on both sides of the border and ensure that there is some consistency in approach. However, that is a matter for them.

Based on my assurances that I will write to noble Lords on how the discussion is going now and that it is a matter for the devolved Administrations to decide the relevant policy—

[Lord Bourne of Aberystwyth]

My Lords, I am not quite sure what my noble friend wants me to say, other than that, as I have just said, I will endeavour to ensure that noble Lords will have the information that is being requested ahead of Report. With that, I ask the noble Lords to withdraw the amendment.

[Lord Wigley]

My Lords, I am grateful to the noble Lord, Lord Bourne, for his response, but he must be feeling a little uneasy with the quality of the brief that he has been given on this. It is recognised the length and breadth of Wales that this is a totally unsatisfactory position which is causing problems for employers and those employees who are hoping to gain benefit from apprenticeship schemes. It is causing problems for the Welsh Government as they forward plan their budget for the coming year. We are talking of a sum of money that may be, let us say for argument’s sake, in the order of £150 million—a significant sum. Whatever the detail on the way in which these schemes are rolled out in Wales, Scotland or Northern Ireland, none the less, if this is the funding arrangement that has been agreed, there should be transparency. We are now in November, and the budget will be coming in April. It is totally unsatisfactory for the UK Treasury and Government to place the devolved Administrations in this position. Whereas the note that no doubt will be sent round will give the fullest information that the Treasury is willing to make available, it none the less may well not answer the serious questions that have been raised.

I am grateful for the contribution of the noble Lord, Lord Rowlands, with his expert knowledge in this area, and to the noble Lord, Lord Crickhowell, for intervening. We need to know. I realise that it is not the tradition to divide the House in Committee. However, if there is not a satisfactory answer from the Treasury and the Minister, I most certainly intend to come back to this on Report and, at that point, to press it. It is just not acceptable that we in Wales are placed in this position. It is not the fault of the Minister personally, but it is certainly the responsibility of the Government and the Treasury. I hope that between now and Report the Minister will have serious discussions with the Treasury, and that if he in his heart recognises that there is a serious problem here, he himself might choose to come back on this. On that basis, however, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

--- Later in debate ---

Finally, as we debate further amendments in Committee, I will certainly be listening very carefully to the Minister as he seeks to explain the Government’s justification for the inclusion of many reservations to the UK Government. However, on the devolution of income tax powers to the National Assembly without the need for a referendum, I am happy to lend the Government my support.

[Lord Wigley]

My Lords, I am grateful for this opportunity to speak on Clause 17, which the noble Lord, Lord Murphy, opposes. On many matters concerning devolution, the noble Lord, Lord Hain, were he here, would accept that we are usually in agreement. I was a great admirer of the way that he succeeded in getting the 2006 Act on to the statute book, notwithstanding its shortcomings.

Tomorrow is election day in the USA. “No taxation without representation” was the phrase coined in 18th-century colonial America. Today, in 21st-century Wales, we have representation but we do not have powers over taxation. We need both.

As the noble Baroness said a moment ago, the devolution of fiscal powers to Wales establishes an intrinsic democratic link between citizens and the policymakers they elect. Devolving income tax means that we can create better Welsh solutions to the challenges faced by Wales, in both the economy and the delivery of public services.

Although I understand the background to the wishes of the noble Lord, Lord Hain, described by the noble Lord, Lord Murphy, for a referendum on income tax powers, I suspect that another referendum is not really what either of them dreams about at night. Indeed, if they do, they probably have nightmares about the use of this ostensibly democratic tool of government. They both know, as I do, how easily a referendum can transpose itself into a verdict on anything but the issue on the ballot paper. It should be used for only the most clear-cut matters, which the electorate clearly understand and know what the consequences would be. It may be fine for deciding locally whether pubs open or close on a Sunday but it is not an appropriate tool for deciding on taxation policy.

From what the noble Lord, Lord Murphy, said, I think he agrees with me on the need for the Assembly to have some tax-varying powers at the appropriate time for reasons that are becoming increasingly apparent. One of the major challenges for the Welsh Government now is to trigger a substantial capital expenditure programme to develop our industrial infrastructure. Plaid Cymru has called for a national infrastructure commission for Wales, which would enable the Welsh Government to borrow up to £7.5 billion over a 10-year period, and we need a tax-raising facility to fund such a programme. It does not have to be income tax—it could be other taxes, which we will discuss later—but income tax should be available for the Welsh Government, in their wisdom, to decide whether or not to use it.

It has been estimated that the servicing cost of that £7.5 billion would amount to £165 million a year, and it is unrealistic to believe that such a sum could be funded from the minor taxes alone. This is why the devolution of income tax is essential. We cannot call for an expenditure programme without accepting the need to fund it. The two go hand in hand and are essential to build a new forward-looking economy for Wales.

Income tax devolution will be the dawn of a new era of accountability for the National Assembly, reflecting the need for a mature public policy to balance the requirement for resources with the practicality of raising them. It is all too easy—and politically far too facile—for politicians of any party to call for greater spending on this or that element of public services without saying how the money is to be raised. It is equally irresponsible for politicians on the right to call for lower taxes without explaining which public services would lose funding. The acceptance of both as obverse sides of the same coin is a reflection of political maturity. Giving tax-varying powers to the Assembly represents another step to it becoming a genuine home of Welsh democracy. For that reason, I support Clause 17 remaining part of the Bill.

[Lord Morgan (Lab)]

My Lords, I had not intended to intervene in this debate but I should like to make two points. First, I am not persuaded, after what we have experienced in the past few months, that referendums are a source of clear, unambiguous decision. They are disastrous. We have seen that in connection with larger matters than Wales. To have a referendum on the deeply technical issue of the relationships of finance between local and central authorities—a very complicated matter—would resolve into the popular papers of the Welsh press, such as we have, debating whether it would mean income tax going up or down. The idea that fiscal principles would be subject to deep and profound scrutiny is not credible. We have had quite enough referendums as a substitute for democratic decision. They are a bogus form of democracy for the reasons we have seen and I would not want one for this.

Apart from a referendum being an unsatisfactory source of clarity and wisdom, as has been said by other noble Lords, it is an imperative of devolution that the Welsh Government should have some fiscal powers. The Scottish Government have had them since 1997, although they have not used them, and that is perhaps significant for whether the Welsh Government would use them. We do not know.

A devolved democracy that depends on handouts from somewhere else inevitably provokes complaints—as it has done in the history of Wales for decades; Westminster never offers or does enough—and will produce unsatisfactory responses. On the references to the American revolution, the reverse of what was said is profoundly true: if you do not have tax powers or the ability to raise your own revenue, you are not really a democracy because you are in a position of subservience. The whole history of Welsh devolution and other parts of the Bill show—in spite of the excellent intentions of the Minister and others on the Conservative side—that Wales has been treated in an inferior sense. Its status has not matched that of Scotland or Northern Ireland. That is riddled throughout the Bill, nullifying its good and noble purposes. So it is with regard to taxation.

It has been said that we should wait until things sort themselves out and the Barnett formula is removed. Let us wait. It is a temporary stop-gap, as we were correctly told by the noble Baroness. Lord Barnett himself explained what a very bad idea it was, because it was designed to plug what was thought a short-term problem in, I think, 1978, when the distinguished noble and learned Lord, Lord Morris of Aberavon, who is sitting in front of me, was in Cabinet—if I am wrong he can contradict me. Like other stop-gaps, it has survived the decades. It looks remarkably healthy for a stop-gap. A proposal to wait until the Barnett formula is resolved is a way to put off a decision completely. I very much hope we will not have a referendum and that we will bring to further completion the process of democracy in Wales.

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[Lord Kinnock]

I accept the point entirely. I can respond to it only by saying that I await, without bating my breath, for the implementation of this proposition. I can see the attractiveness of it, especially to a party which is self-confessedly populist and has gained great strength by means of offering simple answers to complex questions. That has served that party well for several years—astoundingly well. I await that exercise of the variation under the supplementary powers granted to them and on that occasion, I will withdraw all speculation about Scottish inclinations to vary taxation powers.

[Lord Wigley]

The noble Lord very kindly talked of our consistency on these matters; I also respect his consistency on them from 1979 onwards. Can I press him on the point that he made about exercisable powers? The next bank of amendments will talk about a new exercisable power to have a capital investment fund. Without some ability to vary taxation, how does the noble Lord square that circle or does he not support the demand for a greater capital expenditure fund?

[Lord Kinnock]

I say to the noble Lord, Lord Wigley, who I respect greatly, that it would be—without oversimplifying this—on the same basis as borrowings are undertaken now. He will know of the generous and immensely useful support given to a variety of projects in Wales by the European Investment Bank. Nobody has required the allocation of tax-varying or tax-raising powers to the Welsh Assembly to enable that support. Since there is also a guaranteed income for the Welsh Assembly—inadequate and stunted by the application of the Barnett formula, as he and I would agree—but nevertheless significant, as he and I would agree, nobody lending money for major capital investment projects in Wales, within reasonable limits and according to the required fiscal disciplines, should worry about it because they will be guaranteed a return on their investment. It is not necessary to add to the obligations of the Welsh Assembly to facilitate that—within limited confines, as I say. I will give him an example, which I will pluck out of the air.

If, for instance, a sensible proposal was made for establishing a link between Rhoose international airport and the main train line from London to Swansea, I would certainly support it, or, indeed a spur road from the M4 or even a direct road from the A48 into Rhoose airport in order to enhance the attractiveness of this major infrastructure advantage, substantially, and rightly, supported by the Welsh Government. There is no reason why a guarantee of return on the investment should not be made by the imposition of a small toll on the road or the railway line. It is not unprecedented across continental Europe. If we want to know how successful such arrangements can be, the noble Lord only has to look that the second Severn crossing. A huge capital sum, vastly in excess of anything that would be needed to link Rhoose airport, has been paid off with, in my view, excessive and unfair impositions—I am speaking of the degree, not the principle. The same thing could be done elsewhere. I am not advocating it; I am simply saying that there is a variety of ways of guaranteeing a reasonable return on long-term capital investment without requiring the allocation of fund raising through income tax-raising powers for the Welsh Assembly.

If this removal of a requirement for a referendum is to have a real justification, it has to have evident support from people across Wales. They have expressed no significant demand for, or preference for, the further allocation of such a power to the Welsh Assembly. The maxim employed earlier by the noble Lord, Lord Wigley, which was coined by a Welshman at the time of the American Revolution, “No taxation without representation”, bears an addition in this century. It is: “No further allocated powers of taxation without at least consultation, without at least deliberation, without at least endorsement and, finally, without at least agreement”. That brings us back to the referendum because where there is an absence of demand for this change in the way in which the people of Wales are governed, there has to be a supreme additional justification for allocating a power that is not only not demanded but that we have every reason to assume would not be exercised, a power that would not lend itself to extra accountability or enhance transparency or enrich democracy. I wait to hear from the Minister a justification of the dismantling of the undertakings previously given by all parties and enacted for a referendum as a prerequisite of the allocation of income tax-raising powers to the Welsh Assembly.

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[Lord Bourne of Aberystwyth]

My Lords, I am very happy to supply the information that I gave previously at Second Reading, when I said that I would update noble Lords, before Report, on the progress of the fiscal negotiations that are going on between the Welsh and United Kingdom Governments. As I indicated then, the discussions are progressing well. The ministerial Joint Exchequer Committee has met twice and, according to reports I have had from both the Welsh and UK Governments, it is going well. I am not all over the detail; it would be unwise to be so until they are nearer to a conclusion. There will obviously be a reduction in the block grant because 10p income tax will be raised at the Welsh level. So the discussion is about exactly how we do what is right for Wales and for the United Kingdom within that context. It is good news that progress is being made.

[Lord Wigley]

I will press the Minister for clarification. Of course, if 10p is transferred over there will be a netting off, but if there is an increase of 1p in income tax there would not be a reduction in the block grant because of that.

[Lord Bourne of Aberystwyth]

That is absolutely right. The National Assembly for Wales doing something imaginative to raise income will be to the benefit of the Assembly and of Wales. That is the whole point of what is going on. I take issue with the noble Lord, Lord Murphy, in suggesting that there is something sinister in the change of heart here. Other parties have had this change of heart; it is a recognition that we do not need a referendum. I suspect that many of the people urging it are hoping to delay things—I exempt the noble Lord from this—or, indeed, defeat it. That should not be the aim. The aim should be to do what is right for Wales. I strongly and sincerely believe that if we were to have a referendum, it would be carried.

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[Baroness Morgan of Ely]

My Lords, to me this is one of the key clauses in the whole Bill. I have made no secret of my lack of enthusiasm for the way the Bill has been written, but we are now living in very difficult financial times. The IFS has claimed that there will be a 3.2% cut, in real terms, in the Welsh budget over the next three years. We have little confidence that the UK Government are going to make up the losses that Wales will face as a result of Brexit. The IFS has said that if they do not make up the losses, that will lead to a doubling of those cuts if EU aid is not replaced after Brexit. I am aware that there has been a promise until 2020, but nothing beyond that.

The devolution of tax powers through the Wales Act 2014 will also enable the Welsh Government to borrow in order to invest in capital infrastructure. That will benefit the economy and communities across Wales. The current level of capital borrowing permitted to the Welsh Government is £500 million. That is based on the devolution of two fairly minor taxes: stamp duty land tax and landfill tax. In the Command Paper published alongside the Wales Bill in March 2014, the UK Government committed to reviewing the level of capital borrowing available to Wales if income tax is partially devolved. This Wales Bill will result in the transfer of an additional £2 billion in tax revenue to the Welsh Government, and so will significantly increase the size of the independent revenue stream available to the Welsh Government. In line with the commitment given in 2014, the Bill provides an opportunity to give Welsh Ministers a more meaningful degree of borrowing power to reflect the significant increase in devolved tax revenues under their control.

The Silk commission, of which the noble Lord, Lord Bourne, was a member, recommended that the Welsh Government’s capital borrowing limit should be at least proportionate to the limit agreed for Scotland, taking into consideration the relative lack of exposure to PFI in Wales. With comparable devolved tax powers, the UK Government agreed a capital borrowing limit of £2.2 billion in the Scotland Act 2012. In line with the recommendation from the Silk commission, a capital borrowing limit of £2 billion would therefore be proportionate to that agreed for the Scottish Government, after taking into account the Welsh Government’s lower exposure to PFI. The UK Government’s position that a limit of £500 million is appropriate, as set out in the Government of Wales Act, is contradictory to the approach taken for the Scottish Government in the Scotland Act. At a time when there are significant economic uncertainties, the ability to bring forward additional capital investment would provide a much needed economic stimulus to Wales. With a capital borrowing limit of £2 billion, the Welsh Government would have the fiscal tools available to support the level of investment needed in Wales.

The Welsh Government and Assembly are anxious to grow up, but it is as if the UK Government still want to treat them like children, telling them how much money they can spend and that they are allowed to borrow only if they tell “daddy” what they are going to spend the money on. An increase in the Welsh Government’s borrowing capacity is absolutely critical, and I for one would find it very difficult to support the Bill without that increase. We understand that this will form part of the discussions on the financial framework, but we strongly recommend that both the Welsh Government and the UK Government come to an agreement on this critical area. I ask the Minister to give a commitment that there will be a revision of the amount that is currently in the Government of Wales Act.

[Lord Wigley]

My Lords, I will speak briefly to Amendment 24 moved by the noble Baroness, Lady Morgan of Ely, which seeks to raise the limit on capital expenditure lending from £500 million to £2 billion. We touched on this issue in our debate on the previous group of amendments.

In the economic climate we find ourselves today, with further uncertainties ahead of us, it is more necessary than ever to have available to the Welsh Government a facility to boost jobs and stimulate growth by way of capital investment—in particular, in capital expenditure on infrastructure projects. Many expect the Chancellor to reflect that sentiment in his Autumn Statement later this month. The Bill imposes on capital borrowing the disappointing limit of only £500 million, which is not enough even to pay for the Welsh Government’s M4 relief road scheme—unless they were to adopt a more sensible route than that currently being advocated.

Wales Bill

Lord Wigley Excerpts

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

Similarly, Amendment 82 would remove the requirement for the Assembly to seek the consent of United Kingdom Government Ministers for an Act of the Assembly that would modify the functions of a reserved authority, including a United Kingdom Government Minister, if such an Act related to a Welsh language function. We have taken a number of steps to minimise the impact of the Bill on the Welsh language. For example, paragraph 199 of Schedule 7A includes a specific exception to the particular authorities’ restrictions in paragraph 198 to ensure that the restrictions do not apply in respect of those authorities’ Welsh language functions. This means the Assembly will continue to be able to legislate, with consent, to modify the Welsh language functions of the named particular authorities. In addition, the consent requirements under the Bill are not retrospective and will therefore not affect the implementation of standards made under the Welsh Language Measure 2011. The consent of a United Kingdom Government Minister would not be needed for regulations made under that measure which relate to reserved authorities other than Ministers of the Crown.

[Lord Wigley (PC)]

Amendment 82 was discussed in the other place and the Minister gave the same assurance to my colleagues there that the powers would not be exercisable on Acts of the Assembly that had already been passed, and therefore it was not a question of rolling back any existing legislation. However, is it not totally perverse that there should be a different set of circumstances relating to legislation that has been enacted in the past and identical legislation that may be enacted in the future, but they are handled in different ways?

[Lord Bourne of Aberystwyth]

I do not think I follow the noble Lord’s point. It is obviously a hallmark of good legislation that it is not retrospective. Therefore, anything that we are doing here will not, as it were, undermine anything that has already happened. But I think what we are doing otherwise is fairly clear for the future, so I do not quite understand what he means by perverse in that context.

[Lord Wigley]

Perhaps we could discuss it further.

[Lord Bourne of Aberystwyth]

I shall be very happy to discuss it further with the noble Lord.

The inclusion of exceptions to the Minister of the Crown consent process would undermine the whole principle of providing clarity within the devolution settlement over who can legislate for what.

The remaining government amendments in this group—Amendments 78A to 78D and 80A—build upon Clause 13, which is an important part of the Bill. Through that clause we are devolving competence to the Assembly so that it can set up its own regime for the audit and accounting of the Welsh Government and its public bodies, similar to the arrangements made by this Parliament for the UK Government and by the Scottish Parliament for the Scottish Government. Clause 13 has been the subject of detailed discussions between the United Kingdom Government, the Welsh Government, the Assembly Commission and the Wales Audit Office, and these amendments are the result of those discussions.

Through Amendment 78A we are devolving competence to the Assembly to amend Section 146A(1) of the Government of Wales Act 1998. Amendment 78B replaces paragraphs 5(2) to 5(6) of new Schedule 7B, as inserted by Schedule 2 to the Bill, with simpler drafting without changing the effect of the provisions in any way. The effect of these two amendments is that the Assembly will be able to modify Section 146A(1) of the Government of Wales Act 1998, which allows the Welsh Ministers to delegate or transfer supervisory functions to the Auditor-General for Wales, provided that that amendment is a provision about the oversight of the Auditor-General for Wales.

Through Amendments 78C and 78D we are devolving competence to the Assembly to amend sections of Part 5 of the Government of Wales Act 2006, other than those that are already listed in paragraph 7(2)(d), without the consent of the Secretary of State provided the amendments are incidental to, or consequential on, provisions relating to budgetary procedures or devolved taxes.

Finally, Amendment 80A will put in place key safeguards in paragraph 7 of new Schedule 7B so that the Assembly will be able to amend Treasury functions in Sections 138(2) and 141(4) of the Government of Wales Act 2006 only with the consent of the appropriate Minister.

Section 138(2) allows the Treasury to appoint another member of the staff of the Assembly as principal accounting officer for the Assembly Commission if the Clerk is unable to discharge these responsibilities or the post of Clerk is vacant. There are already arrangements for dealing with the replacement of an Assembly Clerk in certain circumstances, such as incapacity, and the accounting officer appointment should follow from that process. If these arrangements are changed, it is only reasonable that the Treasury gives consent because it is the guardian of the overall accounting officer system in the UK.

Section 141(4) ensures that the Treasury may continue to determine the form in which the Welsh Government submit their returns for the whole of government accounts. Although we are content for this to change in principle, the Treasury quite rightly wants to make sure that any change aligns with the arrangements for the Scottish Government, and so a requirement to seek Treasury consent is sensible.

These are technical but important amendments that build upon the important provisions in Clause 13. I therefore commend government Amendments 42A, 78A, 78B, 78C, 78D and 80A to the Committee and I urge the noble Baroness to withdraw her amendment.

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Moved by

[Lord Wigley]

42: Clause 3, page 2, line 40, at end insert—
“(c) relates to the Welsh Government’s provision of support for the furtherance of the Welsh language and culture in the Argentinian state of Chubut where the provision has the agreement of the UK Government and the Government of Chubut.”

[Lord Wigley]

My Lords, Amendment 42 relates to the Welsh community in Patagonia, which is located entirely within the Argentinian state of Chubut. I declare an interest in that I was president of the 150th anniversary celebration committee, which last year stimulated a programme of events to mark the occasion, and in particular to create a legacy which will help stimulate and sustain Welsh language and culture in Chubut.

Over the past 50 years, there has been a growing interest in matters relating to Welsh culture in Chubut, and there are today about 7,000 Welsh speakers there, of whom about 1,100 are learners of the language. Over the past 20 years, practical help and support has been given by way of helping teachers from Wales to work for two or three years in Patagonia to assist with the teaching of Welsh. The Welsh language school Coleg Camwy has been teaching Welsh in Gaiman, the most Welsh of the towns in Chubut. There are schemes to expand this school currently under consideration. A new Welsh school, Ysgol yr Hendre, was opened in Trelew, the largest city in Chubut, some 10 years ago, and this year a new Welsh school has been opened in Trefelin in the Andes. Welsh language and culture is also taught in dedicated classes in the town of Esquel.

This is relevant to the Wales Bill because since the opening of the National Assembly, the teacher scheme, which was originally established by Welsh Office Ministers back in the 1990s, has been taken over by the Assembly. Indeed, two First Ministers have visited Chubut—first Rhodri Morgan and last year Carwyn Jones—and other links between the National Assembly and the Welsh community in Patagonia have been established. These activities and links are associated with the National Assembly’s responsibility for Welsh language and culture. Although the Assembly and the Welsh Government have no direct responsibility for overseas activities and relationships, it has been recognised that such overseas links can be accepted as being within their competence because they are ancillary to safeguarding the broader interests of the Welsh language and culture.

However, with the new, tighter approach which seems to be taken by the UK Government in the context of this Bill, with “silent issues” being seen as reserved matters, words along the lines proposed in this amendment are needed to ensure beyond all doubt that these powers continue to be available to the Assembly and that nothing in this Bill should be seen as undermining such activity. I suspect I can carry the whole House with me in these aspirations. If the Minister can assure the House beyond peradventure that these powers will continue to be exercisable by the Welsh Government, the amendment may be unnecessary, but if there is any doubt whatever, such words should be added to the Bill. I hope the Minister can respond positively on this matter. I beg to move.

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[Lord Howarth of Newport (Lab)]

My Lords, while I share the aspirations of the noble Lord, Lord Wigley, I would like to ask him a couple of questions. The condition of his amendment is that the provision should have,

“the agreement of the UK Government and the Government of Chubut”.

Can the noble Lord tell us that he has squared the Government of Argentina, or is that not necessary because competence in this matter has been devolved from Buenos Aires to Chubut?

[Lord Wigley]

Indeed. Education in Chubut is a wholly devolved matter in Argentina. The state legislature of Chubut has been very positive on these matters. It contributed to the opening of Ysgol yr Hendre 10 years ago, which I mentioned. It is now actively involved in the possibility of expanding the school at Gaiman. In other words, there is a good working relationship between the Government of Wales and the Government of Chubut. The central Argentine Government have been very supportive. Indeed, they have provided funds to safeguard all 16 of the Welsh chapels in Patagonia to ensure they all remain open, provided there is one service once a quarter in each of the chapels. In other words, whatever other dispute there may be—disputes do arise in Argentina on various matters—on this issue there is harmony that is well worth building on because of its interest not only in Argentina and to Wales but to the United Kingdom in our relationship with Argentina.

[Lord Morgan (Lab)]

My Lords, what the noble Lord, Lord Wigley, said is totally correct. Y Wladfa, the Welsh community in Chubut, rather benefited from the Falklands War, because the Argentine Government were rather anxious to show that they were solicitous of the needs of cultural minorities in their country. I feel, on behalf of Welsh historians everywhere, that I should support this. I have not been to Chubut, as the noble Lord, Lord Crickhowell, has, but I have taught Chubut students in Swansea. I twice published articles by historians from that community in the Welsh History Review when I edited it. They have a very living contact; it is not an antiquarian matter. All Welsh people should strongly support it.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for introducing the amendment and other noble Lords who have participated in the debate. Through the amendment, the noble Lord seeks to extend the Assembly’s competence so that it could legislate otherwise than in relation to Wales to support the Welsh language and Welsh culture in the Argentinian province of Chubut.

Of course, the history of the Welsh settlement—“settlement” in a sense that I hope I will be allowed to use here—in Patagonia is one of the great stories of human migration and holds a special place in the hearts and minds of people in Wales. It is a story of typical Welsh tenacity and fortitude that led settlers to travel thousands of miles, driven by the desire for a better life and the dream of establishing a new Wales.

In Patagonia today, interest in the Welsh language and Welsh culture is flourishing, more than 150 years on from the first settlement. Members of the Welsh Affairs Committee in the other place saw this for themselves when they visited Patagonia in 2014, a year early, to mark the 150th anniversary of the arrival of the first Welsh settlers. Although the anniversary was in 2015, typical Welsh efficiency and promptness meant that they were there a year early. The settlement is of course a part of Argentina and, while Welsh culture thrives there, it is wonderfully intermixed with the rich culture of South America. I, too, have taken an interest in the settlement. When I was on the British Council committee, access to finance and help were certainly provided to Chubut.

When the amendment was tabled, my reaction was, “Surely, the National Assembly has the power to do this already”—and that is our conclusion. The common law-type powers that we are devolving to Welsh Ministers will ensure that they can continue to act in the way that they are doing in support of the Welsh language in Chubut. I will have another look at it to ensure that that is the case and will be happy to speak to the noble Lord if that is helpful, but I am sure that we would all want to see this continue. With that, I ask the noble Lord if he would kindly withdraw his amendment.

[Lord Wigley]

My Lords, I thank everyone who contributed to this short debate and am grateful for the positive spirit and in particular for the response of the Minister. I had hoped that he would say that the powers that already exist are not in any way diluted or diverted by virtue of the Bill. The Minister mentioned legislation. I should clarify that it was not my intention that the National Assembly should legislate for what happens in Chubut—obviously not—but there are Executive actions which support the language, and it is the continuation of those that I wish. Given the assurances that the Minister has given, and assuming that he does not find any snag that he has not seen so far, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

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[Lord Elystan-Morgan (CB)]

My Lords, these two amendments, Amendment 45 and Amendment 46, are intended to stimulate thought—particularly the first of those amendments, which relates to dominion status—and to try and deepen and broaden the whole issue of the constitutional future of Wales. The second, which deals with the constitution of reserved powers, is intended to seek to repair and ameliorate some very serious flaws which, in my submission, exist in this part of the Bill.

Dominion status is not about a rigid pattern of government. The principle is enunciated in the Statute of Westminster 1931 and has developed politically, broadly and indeed fruitfully over the 85 years thereafter. It is full of possibilities for meeting different situations in different parts of the world. Obviously, when one is speaking of dominion status in the context of Wales, one is not speaking in any way of a replica of the constitutional situation of New Zealand or Australia. Nevertheless, the common refrain which runs through it all is that it involves a territory that was once under direct British rule and which still accepts the sovereignty and the titular authority of the Queen. Beyond that, the possibilities are almost illimitable. Indeed, my appeal in this situation, when we are thinking of the future of Wales, is to think big. If you think big, you will achieve something worth while; if you think small, what you will achieve will be small, or even perhaps smaller than that which you have set out to obtain. That is the situation that confronts us now.

The possibilities of dominion status are almost illimitable. It is an open secret that about 10 years ago the Government of the United Kingdom and the Government of Spain almost came to an understanding—this is hardly believable—about the future of Gibraltar, with a plan for some form of dominion status. In other words, the concept is so flexible, so malleable and so adaptable that it was possible for the ancient conflicts there to come very near to a friendly settlement. That is an illustration of exactly how pliable dominion status can be. It is in that context that I would ask for imagination to roam and for the spirit to be broad and liberal and inspiring in relation to the possibilities here. There are endless plans and changes that can be considered, but within them there is the possibility of Wales playing a full, dominant, honourable and splendid part in the life of the United Kingdom. Who knows what the situation will be in five to 10 years’ time? It is a situation of total flux, and it is therefore incumbent upon us as Welsh people, and indeed upon all of us as British people, to consider exactly what this possibility should be, side by side with many other possibilities.

I turn to the second matter, the question of the creation of a reserved powers constitution for Wales. Normally I would jump with joy at this development because it places Wales upon the same constitutional basis as Scotland and Northern Ireland. It also tidies up a great deal of what is now in a state of confusion and, if I may so describe it, confetti. When you deal with a long period of transferring small powers, day in and day out, coming from hundreds of different sources, you create a situation that almost guarantees some constitutional neurosis on the part of many generations of Welsh lawyers. Avoiding that would in itself be utterly worth while.

However, I am far from happy with the situation because I believe it is deeply flawed and a blueprint for failure and disaster. The fact that there are 200 or more reservations—I am wrong, actually; it is about 198 or 199—and the very nature of the reservations themselves makes the matter a nonsense. Consider the matters that are reserved, though I touched on this at Second Reading so I will not go into all the detail: licensing, something that Wales had devolved to it in 1881; dangerous dogs; sharp axes and knives; hovercraft; prostitution; charitable collections—one could go through dozens of examples here of what are mere trivia, matters that are clearly domestic in their nature. The inclusion of them by way of reservation is to my mind an insult to the people of Wales.

It is on that basis that I ask the House to consider very carefully whether in any way this can fit in with what I have described as the moral and constitutional geometry of the situation. By that, I mean that when you have a settlement such as we are now seeking in relation to Wales, one that one hopes should last for a long time or at any rate be a basis upon which further development can be built, there has to be mutual trust and some sense of balance. The subsidiary parliament states straight away, “We are not concerned with the question of succession to the Crown, defence or foreign policy and perhaps three or four allied questions of that nature, but we are concerned with matters that are purely and classically domestic in their character”. If the current Parliament refuses to accept that, the whole moral geometry of the situation is affected.

How did this come about? Not, I think, on account of any mendacious conspiracy on the part of Ministers against Wales; I do not think there is any conscious machination at all in regard to it. It came from a long history of prejudice that has formed what you might describe as a permafrost of attitude towards Welsh devolution. I do not believe that the situation was anything different from this: the Secretary of State for Wales, perhaps rather deferentially, went to various colleagues and said, “What would you like reserved, my dear chap, from your department?”. Each one said, in his mind and his heart if not indeed in actual words, “Practically everything. It doesn’t matter how meagre, niggardly, small or utterly local it might be, we will reserve it if we possibly can”.

Why? I believe that it has a lot to do with the fact that Wales was England’s first colony. That was the situation in the 13th century. In the Act of Union of 1536, Wales was said to be part, inevitably and as it always had been, of the United Kingdom, and its affairs were to be assimilated, incorporated and included within the greater realm of England. We have not broken through that mould.

On Second Reading, I made this—I think, not invalid—point. When you think of some of these reservations—there are dozens which, to my mind, are utterly ludicrous—can you imagine the Colonial Office of the United Kingdom 60 years ago, particularly when James Griffiths was the head of that department, going to a British Caribbean or African colony and saying, “These are the reservations that I demand of you”? It simply could not happen.

It is against that template that one has to consider this matter. For that reason, I have drafted this new clause, which of course I shall not press to a Division tonight, but it could well be revisited before we finish with the Bill. It calls on the Secretary of State to be responsible for setting up a working party to report to Parliament within three years on the question of how the reserved powers are operating in each case. The purpose of that—allied, no doubt, with recommendations from the working party—would be, first, to narrow the gap between the situation now and that which existed on the very day in July 2014 when the Supreme Court gave its judgment in the agricultural workers case. The gap is immense. The powers that we have under the Bill are, strictly speaking, immensely inferior to what we had then, when it was discovered that silent transferred powers, which no one had ever appreciated, had given immense authority to Wales.

I think that the Government were reluctant to accept the reserved powers constitution that they had enforced on them; their hands were forced. I do not believe that there is even now a messianic commitment, and most certainly there is no incandescent enthusiasm for this reform. It is something to which they feel that they must surrender.

The effect will be, secondly, to get rid of many of these anomalies; and, thirdly, to set out a coherent pattern, for in fact there is no theme—no coherence—to this. For that reason, I beg to move.

[Lord Wigley]

My Lords, I support my friend, the noble Lord, Elystan-Morgan, on Amendment 45, which he moved so eloquently, and Amendment 46, which is coupled with it. The noble Lord has throughout his political life been a strong advocate of the merits of dominion status, as defined by the Statute of Westminster 1931. In his way, tonight, he has, even at this late hour, elevated the debate above the uninspiring contents of a rather unambitious Bill.

Since the United Kingdom became a member of the European Community in 1973 and now—at least for the time being—of the European Union, I must admit that I had tended to look at Wales’s future in European terms more than in terms of the Commonwealth. I had no difficulty in regarding Wales as both an historic nation in its own right and a European region. As the EU grew to its present strength of 28 member states, with eight of them smaller in population than Wales, now including in their own right small countries such as Slovenia, Estonia, Latvia, Malta and Luxembourg, I looked on our legitimate aspiration as being a member state of the EU in our own right.

That was not in any sense a separatist argument. If England, Scotland, Northern Ireland, and indeed, the Irish Republic, were also member states, we could co-operate within a new relationship covering Britain and Ireland. We would have our own presence in Europe. It was indeed the converse of a separatist approach. I regarded a pooling of sovereignty on a European level, subject to the principle of subsidiarity, where decisions are taken as closely as possible to the community on which they impact, as being most appropriate to the modern world, in which the physical barriers between nations should be regarded as a thing of the past.

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[Lord Bourne of Aberystwyth]

I apologise. I am grateful for the intervention. In that case, I have dealt with our amendments. I am grateful to the noble Baroness for her timely intervention. I beg to move.

[Lord Wigley]

My Lords, I have great personal respect for the Minister, as he well knows, but it is absolutely outrageous that he should be replying to a debate before the arguments have been put forward relating to the amendments. Amendment 48 in my name, to which he has responded comprehensively before I spoke to it, was the lead amendment in this group on Thursday afternoon when I left Westminster. When I came down here at 1 pm today it had been tacked on to the government amendments, which means that the very substantive issue of devolution of police in Wales has been tucked away without an opportunity for a proper debate.

[Lord Bourne of Aberystwyth]

I apologise to the noble Lord. Had he got up at an earlier stage I would have happily given way to him, but our amendment was the lead one in the group. I certainly would have given way to him if he had asked.

[Lord Wigley]

I accept entirely the Minister’s point that they have been grouped in this way, but when I realised they had been coupled in this way it was too late for me to get the decoupling done. That means that devolution of the police, which was a major issue for the Silk commission, is being tucked away at this hour of the night and has been responded to before the arguments have been put. I intend to put those arguments, even at this late stage of the night, and I shall not truncate what I had to say.

Amendment 48 would remove a reservation and subsequently devolve matters relating to the police in Wales to the National Assembly. As noble Lords will be well aware, the Silk commission, of which the Minister was a member, recommended unanimously the devolution of policing and related matters of community safety and crime prevention. Given that the Minister was so keenly in support of that in the Silk commission, it beats me how he was able to say what he said a few moments ago. It is my contention, shared by many people in Wales, that this Bill should have enacted the Silk recommendations—or at least the unanimous recommendations and in these matters in particular.

To put it simply, Wales, like the other nations of the United Kingdom, should have responsibility for its police forces. I cannot see any reason why police priorities in Wales should be dictated by the UK Parliament and not by the National Assembly. Given that policing is devolved to Scotland and Northern Ireland, I can see no reason why it cannot be devolved to Wales. What makes Wales an exception?

The four police forces are unique within the United Kingdom. They are non-devolved bodies operating within a largely devolved public services landscape. They are thus required to follow the dual and diverging agenda of two Governments. Additionally, all four forces in Wales accept the need to provide a service in Welsh and in English. North Wales Police does this with great effectiveness and is held up as a model among public sector organisations in Wales for its language training support and initiatives. This has largely broken down barriers which were at one time widely felt within Welsh-speaking communities in northern Wales and has created a new climate within which police and public co-operation have flourished.

All four police and crime commissioners, the Welsh Government, the Official Opposition in Wales and even the Welsh Conservatives are in favour of devolving policing to Wales. In fact, the only elected body of people in Wales who share the view of the UK Government are the UKIP AMs elected in May—I am not sure whether they are now unanimous on this matter either.

Transferring responsibility to the Welsh Government would not be the tectonic plate shift that many in this Committee might be inclined to believe. Relationships between the Welsh forces and the UK services, such as the police national computer and the Serious Organised Crime Agency, would continue as at present, as is the case with Scotland. I remind the Committee that many of the public services which are directly relevant to policing work are already devolved. That is the case with regard to highway matters, social services, local government, the ambulance service, youth services, education and training. It makes practical good sense to devolve policing, so that a synergy can be developed with these other devolved services.

Why should the people of Wales not be given the same democratic freedom enjoyed by the people of Scotland? Doing so would lead to greater clarity and efficiency by uniting devolved responsibilities, such as community services, drug prevention and safety partnerships, with those currently held by the UK Government.

The Silk commission was established by the Tories and comprised all four main political parties in Wales, including the Conservative Party. Its members spent two years consulting the public, civil society, academia and industry experts on the powers necessary to strengthen Wales. It received written evidence, heard oral evidence and visited every corner of Wales. It heard evidence from the police themselves and from the Police Federation calling for the devolution of policing, and the report recommended accordingly.

Budget cuts to Welsh police forces have been severe. We have seen a reduction of 1,300 in police officer numbers in Wales since 2010. It is true that these cuts have been across the board, but, as Plaid Cymru has recently discovered, they may well have been more manageable had the formula used to fund the police in Wales been according to population and not to crime figures.

A policing grant consultation launched in July 2015 by the then Home Secretary, Theresa May, was abandoned earlier this year after Policing Minister Mike Penning admitted that there had been a “statistical error” on which several police and crime commissioners threatened legal action. Last year’s formula would have resulted in a £32 million cut to Welsh forces, which. as everyone can imagine, would have caused the Welsh police severe difficulties.

The 43 police forces of Wales and England often have different needs and challenges. Policing is a field for which sophistication and complexity are needed in the funding formula to properly account for the relative needs of each force. The review last year sought to place greater emphasis on socioeconomic data and more general crime figures. Such a formula does not properly consider the workload differences in each constabulary. Figures provided by Dyfed-Powys Police indicate that funding our forces in line with population would result in an additional £25 million for the four forces in Wales. That is the Dyfed-Powys Police figure, not mine.

Of course, if policing were devolved to Wales—a position supported by all four police and crime commissioners—the overall Barnett formula would be applied as for the funding of all devolved public services and based on our population. So by retaining police as a non-devolved service controlled from Westminster, Welsh forces face the prospect of these very significant cuts. This is particularly relevant when we consider that policing is devolved to Scotland and Northern Ireland. Consequently, that new formula will not apply to them. Policing is the only emergency service not to be devolved. I am yet to come across any convincing argument, even after listening to the Minister tonight, for not doing so.

Even at this late stage, I beg the Government to think again and show that they are sensitive to widespread feelings in Wales on the issue, particularly within the police forces themselves, and add this provision to the Bill. It would then start to garner a critical mass which parties in the National Assembly would see as a significant step forward and create a logical framework of devolved services that could better serve Wales. There is no point in me adding more now: the reply has already been given. I write that into the record and I emphasise that I am very unhappy about the way this debate has been handled.

[Baroness Randerson]

My Lords, I greatly regret that we are discussing one of the key features of the Bill at this very late hour but there are things that certainly need to be said on this issue.

I share the concerns of the noble Lord, Lord Wigley, about policing. My party has been firmly committed to the importance of devolving policing to the Welsh Assembly for many years. That is simply a recognition of the reality of the situation. If you talk to senior—and junior—police officers in Wales, you see and hear their feeling of identity with the Welsh Assembly. It is to the Assembly that they look for the structures within which they work on a day-to-day basis. Devolving policing would not prevent them from linking in with, for example, training facilities or on rules and regulations across Britain. I have observed the way in which the police force in Northern Ireland manages to do that very successfully in a very difficult situation, and at a much greater distance from England. It works well.

In addition, it is very important to remember that the funding of policing in Wales comes predominantly from local sources within Wales one way and another. Therefore, it is important that the Welsh Assembly has more than a guiding hand on that.

In addressing the amendments in my name, I also share the Assembly’s serious concern about the impact of reservation 37 on the prevention, detection and investigation of crime. That illustrates the complexity of this situation and the way in which these issues are interwoven. For example, think of the ability within the Assembly’s power to deal with domestic abuse and sexual violence. The Assembly passed its own violence against women Act so clearly has competence within that area. However, it seems that the reservation I just referred to would make it very difficult for the Assembly to act in that area. It is important that we bear in mind the responsibilities of local government in this area as well as those of the police. The whole thing is an interlinked whole, and by not devolving these responsibilities you make it difficult for work to be done as effectively as possible.

Wales Bill

Lord Wigley Excerpts

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

Moved by

[Lord Wigley]

54: Schedule 1, page 59, leave out lines 9 to 27

[Lord Wigley (PC)]

My Lords, Amendment 54 stands in my name and that of the noble Baroness, Lady Morgan of Ely. I will also speak to Amendments 103, 105 and 107A, which also stand in my name and are grouped with my lead amendment. Some of them also stand in the name of my noble friend Lord Elystan-Morgan and the noble Baroness, Lady Randerson. I am grateful to these and other colleagues for their support in this matter.

The Committee today has an opportunity to put right a great historic wrong which has been the subject of much misgiving and dismay for a period of half a century and more. It concerns the drowning of valleys in Wales, usually with the compulsory eviction of farmers from their homes and land, sometimes with the destruction of whole villages and rural communities. I hope that in this matter I am knocking on an open door.

It would be stupid to assert that we should never construct reservoirs to supply water for domestic or industrial purposes, or to control the flow of water in our rivers. Some such projects have of course been built to supply water to our own conurbations in Wales, while some have been to provide water for English cities such as Birmingham. Some have been undertaken with the acquiescence of local people and with reservoirs so located that they do not cause massive disruption. Some projects have been handled with sensitivity and common sense, sometimes the reservoirs have helped to avoid flooding in Wales, as well as down river in England, and adequate compensation has been provided to those affected. But there have been other projects which have, to say the least, been handled in a cack-handed manner and, at worst, have ridden roughshod over local communities and their interests.

The best known of these, with the greatest ill repute, was the Tryweryn valley case, about which I shall say more in a moment—but it was not the first. The drowning of Llanwddyn and the valley in which the village was located to create Llyn Efyrnwy, the Vyrnwy reservoir, in the 1880s was probably the first to generate rancour. The poet Cynan, later Archdruid of Wales, wrote Balaad Dyffryn Ceiriog, which sums up the deep feelings. With noble Lords’ permission I shall quote just one verse in the original Welsh:

“Beth waeth fod dychryn dan fy ais?

Beth waeth fod deigryn ar fy ngrudd?

Wrth synfyfyrio ar y trais

A llwytho ‘nodrefn? Daeth y dydd

I ffoi o flaen y llid a fydd.

Pwy ydym ni, i gadw stwr?

Ffarmwr neu ddau, a gof a chrydd,

Cleddwch ein cartref dan y dwr”.

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[Lord Bourne of Aberystwyth]

I fully understand.

It will be important to put in place a protocol with bite. Both Governments will be subject to a duty to act in accordance with the new agreement and, once it is in place, both will need to agree any changes to it. The agreement will also need to include a process for resolving any disagreements that both Governments will sign up to.

It is as yet too early to say how soon the new arrangements will be agreed, but the Government will repeal the Secretary of State’s water intervention powers once an agreement is signed and sealed. This historic commitment to remove the intervention powers paves the way to conclude the Government’s consideration of the wider devolution issues relating to water and sewerage, including the sewerage intervention powers currently in Clause 46 of the Bill and the question of whether powers over water and sewerage should be aligned with the England-Wales border.

The Silk report recognised that water and sewerage devolution was complex and that further work was needed to consider the practical implications of implementing the commission’s recommendations. Following the St David’s Day agreement, the Government set up the joint Governments’ programme board with the Welsh Government to look at these issues and report on the likely effects that implementing the recommendations would have on the efficient delivery of water and sewerage services, on consumers and on the water undertakers.

That work has concluded and the Government have been considering the evidence that has been collected. In doing so, it has been particularly important to consider carefully the interests of customers and businesses on both sides of the border before reaching a decision on the recommendations. It remains the Government’s intention to bring forward provisions to implement the recommendations, if such a thing is achievable, and I hope to be able to return to this on Report.

I will now turn to other water-related amendments that are not Silk recommendations. Amendment 104, tabled by the noble Baroness, Lady Morgan of Ely, seeks to amend the Water Industry Act 1991 as it relates to Ofwat. Part of this amendment would require the Secretary of State to seek the consent of Welsh Ministers before making directions to Ofwat, outlining her priorities for keeping the activities of water companies under review. This would occur where these directions apply to Welsh water companies and licensees carrying out activities in the areas of those companies. This requirement for consent would cover all of Ofwat’s functions, including those applicable to policy areas reserved to the Secretary of State, such as those relating to competition law, insolvency and mergers. This would give the Welsh Ministers considerable influence over policy areas that are not devolved.

The noble Baroness’s amendment would also place a requirement on Ofwat to make its annual report to the Assembly rather than just send it a copy, as is currently the case. At present there is nothing to prevent the Welsh Ministers laying before the Assembly the annual report that Ofwat sends them or publishing it in any manner they see fit.

The amendment requires appointments to Ofwat’s board to be made jointly by the Secretary of State and the Welsh Ministers. Other amendments seek to grant Welsh Ministers joint powers with the Secretary of State over board members’ terms and conditions. Currently, the Secretary of State makes all appointments following consultation with the Welsh Ministers and consults them on some other aspects. In practice, this means that the Secretary of State writes to the Welsh Ministers to seek their views on an applicant before confirming the appointment. However, the Welsh Government are also invited to sit on the appointment panel, which is chaired by Defra. This, along with the various requirements to consult Welsh Ministers, already provides the Welsh Government with considerable influence over the process and final appointment decisions.

Amendment 105 in the name of the noble Lord, Lord Wigley, concerns the abstraction of water from Welsh reservoirs. As I think I have indicated, I share the views expressed by noble Lords today: the events of some 50 years ago which resulted in the flooding of Tryweryn were some of the darkest and most regrettable days in modern Welsh history. Never again.

In answer to the question raised by the noble Baroness, Lady Morgan—I am delighted to note that she did not wish to be churlish; I welcome that very much—decisions about the construction of new reservoirs and environmental controls are already devolved to the Assembly. However, we are going further—and rightly so. The Assembly exercises legislative competence in relation to both issues: construction and environmental controls. The Welsh Ministers would need to issue a compulsory works order to allow the construction of a new reservoir to take place. It is within the competence of the Assembly to give itself a role in the issue of consent orders.

Natural Resources Wales is the environmental body which regulates abstraction in Wales. Again, the Welsh Minsters and the Assembly can legislate to change or add to its powers. Nevertheless, as announced yesterday by my right honourable friend the Secretary of State, the Government intend to remove the Secretary of State’s powers to intervene on water and replace them with a protocol. I think that that is in the spirit of where we need to be in relation to this totemic and practically significant area of water. On that basis—

[Lord Wigley]

I have listened very carefully to the response that the noble Lord, Lord Bourne, has given us. Quite clearly, there is an intention to make considerable movement in what I and many others would regard as the right direction on this matter—but we cannot come to a judgment on that until we see what comes forward on Report. However, can he confirm one thing? Notwithstanding that there are powers in planning, and the other powers that he has mentioned, will he consider between now and Report to have it written on the face of the Bill, so that there is no doubt whatever, that the construction of the reservoirs in Wales is a function of the National Assembly, in the same way that it is spelled out that the control of fracking is in the control of the National Assembly? Can he give us an assurance that he will be looking for words by which to achieve that between now and Report?

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[Lord Bourne of Aberystwyth]

I am very grateful to the noble Lord for reminding me of the years of co-operation we had in the National Assembly for Wales and for clarifying that issue in the way that he did. On that basis, I hope that the noble Lord will consider withdrawing his amendment.

[Lord Wigley]

My Lords, I am very grateful to everyone who has participated in this debate, including two former Secretaries of State for Wales—we had four in the Chamber and one adjacent to it at one point; a remarkable situation—and for the expertise that they have brought to our consideration. I also thank the noble Lords, Lord Elystan-Morgan and Lord Thomas of Gresford, for their passion and background, which added to our understanding, and the noble Lord, Lord Morgan, from Aberdovey, for his historical knowledge and appreciation of the importance of this issue to the people of Wales. I thank also the noble Baroness, Lady Morgan of Ely, for her contribution and her amendments, which I think should be considered along with the others between now and Report—perhaps we can discuss those. I am grateful for the intervention of my noble friend Lord Elis-Thomas, who represents in the National Assembly the area that includes the Tryweryn valley.

I think that we are making progress. We have not got there yet but there is much to be considered and built upon between now and Report. If the Minister can deliver what he seems to want to deliver, and if his colleagues in the Wales Office can do likewise, then quite possibly we can, once and for all, put this issue to bed by making it quite clear that control of these matters is in the hands of the elected National Assembly for Wales. There is a need for co-operation, but there is also a need to appreciate the importance of communities and the significance of this issue to our nation. On that basis, I beg leave to withdraw the amendment.

Amendment 54 withdrawn.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I have spent much of the past five years involved with energy matters both here and abroad, albeit specifically interconnection and the generation of green energy. A nation's energy supply is so important a part of both industrial strategy and national security that in many countries the energy ministry is second in importance only to the Prime Minister’s office. It is surely right therefore that central government retains responsibility for determining the strategy that will ensure the security of supply for the whole nation through our common national grid.

The Silk commission recommended an increase in the threshold for devolved energy consenting for new projects from 50 to 350 megawatts—and this level I thought was agreed by all parties. Further, the Energy Act 2016 granted localised decision-making for all onshore wind projects. Surely the two together strike the necessary balance between devolving authority for many renewable energy schemes, for example the Swansea tidal lagoon, and allowing the Government to retain responsibility for larger schemes of more strategic significance to electricity infrastructure stretching beyond the confines of Wales.

Most of you will be aware that this is the first Bill that I have seen coming through this House. What a meaty one it is. I cannot hope to match the eloquence of the noble Lords, Lord Wigley and Lord Elystan-Morgan, but it did bring to mind the final two lines of the poem commissioned from the national poet for the opening of the fifth Assembly in Cardiff this year:

“Sooner may two men meet than two mountains”.

[Lord Wigley]

My Lords, once again it is a delight to follow the noble Baroness, Lady Bloomfield of Hinton Waldrist. I had the pleasure of speaking after her when she made her maiden speech a few weeks ago on an earlier stage of this Bill. On this occasion, I am afraid that we shall not see exactly eye to eye on the question of the limitation, since I shall speak briefly to Amendments 99 and 101, which seek to remove the 350 megawatt limit on the devolution of energy projects to Wales.

Having given Scotland complete control over its natural resources—with no limits, so for those looking for a United Kingdom policy, that has already been given away—the Government are proposing to devolve energy in Wales only up to a limit of 350 megawatts, with anything above that threshold being reserved to Westminster. This arbitrary constraint on the ability of Wales to control its own natural resources has stirred many emotions in Wales. It seems archaic and contrary to the spirit of devolution that Whitehall will still decide how and when Wales can harness many of its most precious natural resources.

I shall outline what this means in practical terms by reiterating an example highlighted by my colleagues in another place. Responsibility for the 320 megawatt Swansea Bay tidal lagoon would be devolved under the current Bill. However, the proposed Cardiff and Colwyn Bay tidal lagoons, which are identical apart from scale, will be reserved to Westminster. This does not stand up to any test in logic.

The Government have chosen to use the cover of the Silk commission’s recommendations—which, I recognise, also suggested a possible limit of 350 megawatts. However, if they are going to do so, does the Minister not agree that all of the Silk recommendations must be treated with the same respect? The Government most certainly are not doing this in other instances, so why pick out this one? As the Minister will undoubtedly recall, the 350 megawatt limit was agreed to in a cross-party Silk commission discussion on the understanding that other parties would support the devolution of policing and broadcasting. Does he recall that meeting? I have the references.

I conclude by noting that this is once again an example of how we are asked to accept second best in terms of devolution of energy. We are asking only for the same deal that is afforded to other nations. The 350 megawatt limit that the Bill imposes stops Wales effectively harnessing its world-class renewable resources —its wind, its coastline and sometimes even its sun. As my noble friend Lord Elis-Thomas emphasised, these are important ingredients for the future of the Welsh economy. Our resources belong to the people of Wales and now is the time for the law of the land to recognise that.

[Baroness Randerson]

My Lords, we on these Benches have felt for a long time that the constraint on the Assembly’s current control over energy is ridiculously low and the suggestion that it should rise to 350 megawatts is better, but by no means good enough. The noble Lord, Lord Wigley, has outlined the foolish situation that we are likely to find ourselves in if the 350 megawatt limit is adhered to. We all know it was picked as a limit by the Silk commission because it would encompass the Swansea Bay tidal lagoon. But as the noble Lord pointed out, the problem is that the sister projects in Cardiff and Newport, if they are built, will be larger than 350 megawatts, so by what measure would the Swansea lagoon not be considered to be of strategic importance but one built in Cardiff would be?

It is absolutely essential that the Welsh Government and the Assembly are able to take a stronger position on energy development. They should also be able to take a distinctive and different position on it. We fully accept that nuclear developments would not be appropriate for devolution because of their massive scale, but we do not believe that artificial limits should be put on the ambition of the people of Wales, the Assembly and the Welsh Government to provide a larger share of the energy they consume, and to find new, different, innovative and environmentally sound ways of doing so. I think that this is one of the most important series of amendments which have been put forward to the Bill so far.

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[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on devolution of energy to the National Assembly for Wales. I turn first to Amendment 55A, moved by the noble Baroness, Lady Morgan of Ely, which seeks to add an exception to the reservation in new Schedule 7A relating to the,

“Generation, transmission, distribution and supply of electricity”.

It is an amendment that needs to be considered in the context of Clauses 37 and 40, and of reservation M4 on “Development and Buildings”.

The Silk commission recommended that there should be further devolution to Wales—it is further devolution, as the noble Baroness, Lady Randerson, recognised—of responsibility for consenting electricity generation projects, and that there should be a more streamlined approach to consenting ancillary developments required to sit alongside those projects. Those were points well made in the debate. There was cross-party consensus to implement these recommendations taken forward under the St David’s Day agreement. Without looking at the Silk process, although I accept that it is important for the legislation, this is essentially based on the St David’s Day agreement.

We achieve the expanded role that Silk envisaged through the combined effects of Clauses 37 and 40, which clearly set out the parameters of the new devolution settlement in this area. The extent of that settlement is further reinforced by the terms of reservation M4, which provides that the very instances referenced at Clauses 37 and 40 are carved out of the range of planning matters that are reserved.

To provide further clarity on this point, the consenting of a generating station or an overhead line is a planning matter. While I accept that the proposed amendment is well intentioned, it would be not only superfluous but, as an addition to reservation D1, misplaced. Section D1 relates to the regulation and licensing of the process of generating electricity and to what subsequently happens to that electricity. This is the regime administered on a GB level by Ofgem, which includes Scotland. It does not concern itself with the planning for, or the construction of, the means of generating electricity.

Further, as drafted, the reservation would add confusion to the particular reservation and potentially the schedule in general. The Assembly’s legislative competence is limited to Wales—the counties forming Wales and the territorial waters adjacent to those counties. The amendment talks about planning in the “Welsh zone”, which includes seas beyond the territorial waters and outside the legislative competence of the Assembly, as we touched on earlier about the issue beyond the 12 miles of territorial sea. I hope the noble Baroness, Lady Morgan, will take those points on board.

As I said, the Bill already devolves matters relating to the planning for developments of up to 350 megawatts. This is not a point that has been covered, but the Energy Act 2016 has already devolved all onshore wind consents without limit to local authorities in Wales. At the same time, we devolved power to the Assembly to change that to the Welsh Government if it wanted to do so. In response to my noble friend Lord Crickhowell, I recognise his view that this should be a matter for local people, which I share, but at the same time, with this being a devolved issue, it would be for the Welsh Government to alter that if they wanted to do so. We have indicated our intention by giving the power to local authorities. The Welsh Assembly could alter that. There is no limit to the power relating to onshore wind. That might reassure noble Lords who were unaware of that.

The noble Lord, Lord Elis-Thomas, asked about a protocol. I will certainly go this far: it is important that Ministers talk together. Many of these projects are happening at a UK level. We should not consider that there is always malign intent on the part of the UK Government towards Wales. As we know from the Swansea lagoon project and others, important infrastructure projects are being moved forward by the UK Government, who are talking on a regular basis to officials and Ministers in Wales. Those points were covered by my noble friends Lady Bloomfield and Lady Finn. It is right that some of these important decisions are discussed between Wales and the United Kingdom.

I also say to the noble Lord, Lord Elis-Thomas, that I know, because I was a Minister in the Department of Energy and Climate Change, that BEIS is looking at small modular reactors. Trawsfynydd’s interest has obviously been noted, but I have to say to him that if it had been in Scotland it would not have got off the ground because of the nuclear element. Sometimes there are unintended consequences to these things. To come back to the issue we are looking at, the amendment as drafted would not achieve what it seeks to do, in any event.

Amendments 99, 100, 101 and 102 seek to reopen a key recommendation of the Silk commission and the St David’s Day commitment: that the devolution threshold for future consenting for electricity generation in Wales should be 350 megawatts and below. That threshold gives the Assembly and Welsh Government substantially more autonomy in determining the shape of Wales’s future energy structure than was previously the case.

I accept that any level is, in a sense, arbitrary. It has to be a matter of judgment where it is set as to what is appropriate for the UK Parliament and what is appropriate for Wales—hence the importance of the dialogue between the two Governments and the two Parliaments. It respects the fact that Wales and England are, and will remain, intrinsically linked through a common electricity transmission system that depends on inputs from a broad range of generating sources. The Government remain firmly of the view that, the larger the capacity of those sources, the greater their significance beyond the confines of Wales and to the United Kingdom as a whole. Those points have been made by noble Lords as the debate has progressed.

Consensus was reached during the St David’s Day process about the cut-off point. The noble Lord, Lord Wigley, said that if the Swansea lagoon is within this process for Wales—as I accept it is—it is simply an issue of scale. I agree that it is an issue of scale; that is where the cut-off comes in, because the cut-off has to be arbitrary. I cannot see that it can be any other way. It is a matter of judgment as to what is strategically significant for the United Kingdom and what is appropriate for Wales.

[Lord Wigley]

On that point, with regard to Swansea Bay being just below the threshold and Cardiff and Colwyn Bay being just above it, does it not make all sense for this limit to be adjusted at least enough to take those together, so the expertise in handling these matters is all in one place?

[Lord Bourne of Aberystwyth]

My Lords, I say two things to that. First, I am certainly not going to get into a Dutch auction as to what should come within on that basis. Of course I understand the point he makes, but my second point takes me back to one I have already made: we need a ready and willing dialogue between the Welsh Government and the National Assembly, as I think is happening, and between BEIS and Parliament. There is no reason to suppose that there is a malign intent regarding these projects. I know the noble Lord is not suggesting that.

Government Amendment 119G is a minor and technical change to Schedule 5. Under Clause 37, Welsh Ministers will have the ability to consent to electricity generating stations of up to 350 megawatts in waters adjacent to Wales. The vehicle for doing so will be Section 36 of the Electricity Act 1989, and Schedule 5 to the Bill gives Welsh Ministers the ability, by regulation, to amend the Section 36 application processes to suit their purposes. The Bill currently also extends that regulation-making power to Section 37 of the Electricity Act, which relates to the consenting of overhead power lines. However, as Section 37 consenting powers are not being devolved in the Bill, the power is ineffective and it makes sense to remove it.

Government Amendment 121 amends Clause 55. Further to the one-stop-shop philosophy for energy consenting advocated by the Silk commission, Clause 41 provides the Secretary of State with the ability to consent associated developments along with the principal consent for nationally significant infrastructure projects in the field of electricity generation and transmission. This will deliver significant streamlining improvements to a system which, at present, can require developers to assemble consents from a plethora of different authorities. It is wholly consistent with the Government’s policy of encouraging infrastructure development for these changes to be introduced as soon as it is practical. The amendment will achieve that by commencing the relevant provisions two months after the Bill’s Royal Assent.

On that basis, I urge the noble Baroness to withdraw the amendment, and for her and the noble Lord not to press the other amendments in the group. I intend to move the government amendments.

--- Later in debate ---

[Lord Wigley]

My Lords, my Amendments 59, 60 and 70 in this group seek to devolve responsibility for the funding and specification of the rail infrastructure in Wales. I shall not move Amendment 97 relating to the Wales and Borders rail franchise as the Government have, I believe, already accepted the changes in principle on that matter.

Only 1% of Network Rail funding has been spent on the Welsh rail network since 2011, according to the latest Welsh Government estimates. This is despite Wales being home to no less than 11% of the total England and Wales rail network. Deals struck between the Welsh and UK Governments for specific projects, such as the electrification of the Valleys lines, are of course very welcome, but they do not address the fundamental issue that the current arrangement for rail infrastructure planning and development does not work in Wales. There is a simple and widely supported solution to this problem: to devolve the funding and specification of the rail infrastructure to the National Assembly. I say “widely supported”: there is a plethora of people and organisations from across the professional and political spectrum who support the devolution of the rail infrastructure.

As is often the case with this Bill, the Silk commission is my first port of call on this issue, which is appropriate since the Minister was relying on Silk in an earlier group of amendments. The commission agreed that devolving the rail network in Wales is both “possible and desirable”. This sentiment was echoed by the previous Assembly’s cross-party Enterprise and Business Committee, which in one of its final reports before the 2016 election concluded that responsibility for Welsh rail infrastructure was best placed in the hands of AMs in Cardiff Bay. Only last month, the Economy and Infrastructure Cabinet Secretary, Ken Skates AM, told the Welsh Affairs Committee that he would like to see responsibility for the rail infrastructure and Network Rail devolved.

These statements of support from across the political spectrum are bolstered by comments from numerous figures in industry, including the passenger campaign group, Railfuture Wales, and a pre-eminent expert on Welsh transport, Professor Stuart Cole. Both have said that devolving rail services without rail infrastructure is just not logical. Even the UK Government’s own review of the structures of Network Rail, conducted by Nicola Shaw, concluded in March this year that a more devolved route structure is necessary for Network Rail to adapt to the challenges of developing a modern rail network. This must be matched in policy terms to allow the National Assembly for Wales to be accountable and to be able to facilitate the development of Welsh rail infrastructure fit for the needs of a modern Wales.

It is indeed anomalous that the Welsh Government will bear the responsibility for rail services but not the infrastructure. The obvious issues that this creates for infrastructure planning are matched by concerns over the apportioning of accountability that this unbalanced devolution settlement will trigger. Passengers—and, ultimately, voters—will lack clarity about where responsibility for meeting transport needs should lie. What they care about is a transport system that works. Devolution of rail infrastructure is a step towards delivering a rail network that works in a fair and accountable way.

The National Assembly for Wales is the last devolved national Parliament that has not been afforded the powers to manage its nation’s rail network. These powers have long been held in Scotland and Northern Ireland. It is inconsistent and ineffective for this aspect of transport policy not to be devolved. I therefore urge the Government to support these amendments and to heed the call of AMs and MPs across the party divisions, as well as those from industry who want to see this happen. I ask the Minister whether he would be prepared to look again, between now and Report, at whether it would be possible to get some sensible further devolution on this matter.

[Lord Hain]

Before the noble Lord sits down, is he now saying that he will not be moving his Amendments 58 and 97 on the devolution of the Wales and Borders franchise? I was going to speak about that briefly.

[Lord Wigley]

As I understand it, the Government have moved on the Wales and Borders franchise. Perhaps the Minister can respond and there will be an opportunity for the noble Lord, Lord Hain, to intervene.

[Lord Hain]

I was going to say that I strongly support Amendments 58 and 97, in the absence of an assurance from the Minister to the contrary, because there is a strong case—following the St David’s Day agreement, the work of the Silk commission and, indeed, the logic of the case—that responsibility for this franchise should lie with the Welsh Government. To avoid taking up any more time, I hope the Minister will confirm that it will be devolved and the Government will bring forward an amendment to that effect at some point, presumably on Report.

Wales Bill

Lord Wigley Excerpts

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

Moved by

[Lord Wigley]

67: Schedule 1, page 71, line 20, at end insert—
“ExceptionWelsh language broadcasting and other Welsh language media.”

[Lord Wigley (PC)]

My Lords, Amendment 67 seeks to devolve Welsh language broadcasting and Welsh language media to the National Assembly. There is currently an anomaly in that the Welsh Government have responsibility for and powers relating to the Welsh language, but no powers whatever over S4C or Welsh-language media, which are perhaps the most significant tools in promoting the Welsh language in this day and age. I should perhaps mention that I served on the S4C Authority’s board for three years during the last decade.

The survival of the Welsh language is a miracle, but it is a struggle that has to be perpetually refought and re-won from year to year. The language is important not just for its own sake but because it is the transmitter of our history, folk memory and culture from generation to generation, and a conveyor of our values and experiences as a nation. Welsh belongs to all of Wales—to those who speak it and those who, by accident of geography and history, do not. Its associated culture depends, in part, on language transmission, and its survival as a living part of our identity. It is no coincidence that our national anthem, so much loved by Welsh speakers and non-Welsh speakers alike, concludes with the line:

“O bydded i’r hen iaith barhau”—

“O that the old language should flourish”.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for moving this amendment on Welsh language broadcasting and other Welsh language media—and I note that that is the exception that is set down. I do not think that it is limited to S4C, as some noble Lords have assumed. It is not. I join other noble Lords in applauding the work of S4C; it is an extraordinarily strong and effective institution that does marvellous work for Wales in relation to the language and more broadly, and it has totemic significance and real significance and generates jobs in the Welsh media sector, which is important.

As the noble Lord said, it is absolutely right that the Silk commission recommended that funding the public expenditure element for S4C should be devolved to the Assembly. It was part of its recommendations but was not taken forward in the St David’s Day proposals: I understand that it was considered in that process but there was no consensus round it. It is also worth noting that as recently as June last year, the Welsh Government said, through Minister Ken Skates, that they could not support the devolution of broadcasting. Admittedly, that was said across the piece but it was the general position.

Where does that leave us? I will try to give an update on the financial commitments made by the Government, in response to the noble Lord, Lord Elystan-Morgan, and other noble Lords. The Government have agreed that funding for S4C—as opposed to Welsh language broadcasting—would be protected in 2016-17 at its current level of £6.8 million. The settlement for Exchequer funding in following years was set out at the 2015 spending review, and in September the BBC confirmed that it will protect licence-fee funding for S4C at £74.5 million until 2022. That is beyond the length of this Parliament, as noble Lords will be aware. The Government then committed to a comprehensive review of S4C in 2017, covering its remit, funding and governance to ensure that the broadcaster can continue to meet the needs of Welsh-speaking audiences in the future. I will endeavour to find out if we have any further details on the process and will write to noble Lords to update them on what the timetable is.

Broadcasting is different from almost any other area of activity in that it is international, national UK and national Wales. I am conscious of the fact that, historically, many people have been quite keen to see S4C’s budget settled in Westminster because they thought it was safer here that it would be in Wales—I had better be careful what I say. I notice a change of tenor in that position. Given that the Welsh Government do not seem to be seeking this, and given that there was no consensus in the St David’s Day process, I will have a look at it. I am very content to discuss this with the noble Lord, Lord Wigley, and others to see if there is anything we can do to strengthen the position of S4C and the involvement of the Welsh Government—a point raised by the noble Baroness, Lady Morgan. I appreciate what the noble Baroness, Lady Randerson, has said on the issue of the difficulty of broadcasting. As I said, it is internationalised in many ways so is unique among activities.

I am very conscious of the fact that the noble Baroness, Lady Morgan, was photocopying “Fireman Sam” scripts at S4C, so spoke with great authority. My first job in life was loading Britvic bottles on a production line. We had very different experiences: the noble Baroness was more clerical and managerial than I was in those heady student days. I appreciate that this is an important area and I will have another look at it and speak to the noble Lord, Lord Wigley, to see if there is anything we can do to strengthen this position. I hope that, with that, he will be content to withdraw the amendment.

[Lord Wigley]

My Lords, I am grateful to all noble Lords who have taken part in this debate, which has brought out a number of issues relating to S4C. I am grateful to the Minister for his undertaking to look again at some aspects of this. On that basis, I beg leave to withdraw the amendment.

Amendment 67 withdrawn.

--- Later in debate ---

Moved by

[Lord Wigley]

83: After Clause 26, insert the following new Clause—
“Assignment of VAT
(1) The Government of Wales Act 2006 is amended as follows.(2) In section 117 (Welsh Consolidated Fund), after subsection (2) insert—“(2A) The Secretary of State shall in accordance with section 117A pay into the Fund out of money provided by Parliament any amounts payable under that section.” (3) After that section insert—“117A Assignment of VAT(1) Where there is an agreement between the Treasury and the Welsh Ministers for identifying an amount agreed to represent the standard rate VAT attributable to Wales for any period (“the agreed standard rate amount”), the amount described in subsection (3) is payable under this section in respect of that period.(2) Where there is an agreement between the Treasury and the Welsh Ministers for identifying an amount agreed to represent the reduced rate VAT attributable to Wales for that period (“the agreed reduced rate amount”), the amount described in subsection (4) is payable under this section in respect of that period.(3) The amount payable in accordance with subsection (1) is the amount obtained by multiplying the agreed standard rate amount by—10/SRwhere SR is the number of percentage points in the rate at which value added tax is charged under section 2(1) of the Value Added Tax Act 1994 for the period.(4) The amount payable in accordance with subsection (2) is the amount obtained by multiplying the agreed reduced rate amount by—2.5/RRwhere RR is the number of percentage points in the rate at which value added tax is charged under section 29A(1) of the Value Added Tax Act 1994 for the period.(5) The payment of those amounts under section 64(2A) is to be made in accordance with any agreement between the Treasury and the Welsh Ministers as to the time of the payment or otherwise.”(4) The Commissioners for Revenue and Customs Act 2005 is amended as follows.(5) In subsection (2) of section 18 (confidentiality: exceptions) omit “or” after paragraph (j), and after paragraph (k) insert “, or(l) which is made in connection with (or with anything done with a view to) the making or implementation of an agreement referred to in section 117A(1) or (2) of the Government of Wales Act 2006 (assignment of VAT).”(6) After that subsection insert—“(2A) Information disclosed in reliance on subsection (2)(l) may not be further disclosed without the consent of the Commissioners (which may be general or specific).”(7) In section 19 (wrongful disclosure) in subsections (1) and (8) after “18(1)” insert “or (2A)”.”

[Lord Wigley]

My Lords, in view of the time, I shall try to truncate my comments. The amendment would give the National Assembly as of right a proportion of VAT revenues and so give Wales the same tax power in this regard as enjoyed by Scotland. It would also open the possibility, post Brexit, for some variation of VAT levels in Wales to help provide the cash stream needed to service capital investment programmes, as discussed earlier in Committee.

It is widely acknowledged, by the Institute of Welsh Affairs and others, that devolution of public spending responsibilities should be accompanied by the assignment of significant own sources of revenue. Wales’s funding framework has been highly unusual from an international perspective: there are not many Governments in the world with significant legislative and spending powers who do not also have a correspondingly important responsibility for raising tax revenues. If the UK Government are serious about securing a lasting devolution settlement for Wales, the devolution of VAT should be considered as part of a package of devolved fiscal powers.

The Scotland Act 2016 stated that revenues from the first 10 percentage points of the standard VAT rate would be devolved by 2019-20. The current UK VAT rate is 20%, so half of all the VAT raised in Scotland will be kept in Scotland. A recent article published by the Wales Governance Centre states that:

“Welsh VAT revenues have been far more buoyant than other major taxes, such that VAT has become the largest source of revenue in Wales (in contrast to the rest of the UK and Scotland, where income tax remains the largest source)”.

The report entitled Government Expenditure and Revenue Wales 2016 concluded that around £5.2 billion was raised in VAT revenue in Wales in 2014-15. With a similar deal to Scotland, around £2.6 billion would be assigned to the Welsh Government. There would of course be an offset from the Barnett block for however long that remains in its obsolete and unfair current format. Based on the report’s figures, it would mean that more than a third of total devolved expenditure would be financed by devolved and assigned taxes, up from 21% with currently proposed devolution.

I hope that the House will agree that this fiscal lever is essential to secure the success of the Welsh economy. I beg to move.

[Lord Hain]

My Lords, I normally agree with my noble friend on devolution matters, but I want to question the consequences of the amendment. If we look at change in income tax take in the UK and Wales during the past few years—indeed, since 2010-11—we see that income tax receipts have grown across the UK by 6% and in Wales by only 2%. Notwithstanding the noble Lord’s point that VAT represents a much larger proportion of tax receipts in Wales, I would be very surprised given the lower GDP and lower spending per head in Wales if Wales did not do badly out of the devolution of VAT. I have to oppose the noble Lord on that basis. Given his belief in an independent Wales, I understand ideologically why he would want just about everything devolved, but this measure would be folly in the context of the economic, financial and tax realities of Wales’s economy relative to that of the UK.

[Lord Wigley]

VAT is very much more stable and would be less likely to go down by the nature of the expenditure and the pattern of finances in Wales. There is that problem with income tax, but VAT has a much better prospect and I believe that we really should have it.

[Lord Hain]

The noble Lord may have a point in the sense that more VAT proportionately is paid by people on low incomes, and there are relatively low incomes in Wales, but I would want to see the figures. I would want to have the drains up on this proposal before I went anywhere near it, because I would not want Wales to be short-changed by such a reform. On that basis, I oppose the amendment.

--- Later in debate ---

[Lord Wigley]

I am grateful for the contributions made by my noble friends on this side, and for the response of the Minister, of course. All I say is that it is bizarre that we have devolved income tax, which is in Wales a relatively low-take tax, while we do not have a proportionate amount of the VAT. If we do not have the right to vary the VAT percentages, there will not be the effect on the poorer people in the community that has been referred to. However, we are not going to get very far with this tonight, and since it is getting late, I beg leave to withdraw the amendment.

Amendment 83 withdrawn.

--- Later in debate ---

[Lord Murphy of Torfaen]

I agree very much with the noble Baroness, Lady Randerson. Over the past three days in Committee, the Minister has been very helpful. He knows his stuff. He probably knows devolution better than any other Minister in the current Government. I rather suspect that he might not agree with us on this but I hope he can. I think this debate is about Bristol, not air passenger duty. As the noble Baroness rightly said, if it is about devolution, there is no reason whatever that the treatment should not be the same for Wales as it is for Scotland and Northern Ireland.

It seems to me, too, that Cardiff is our Welsh national airport and should not be disadvantaged because of people who lobby for Bristol Airport. As good an airport as Bristol is, that is not the issue. This is about devolution, not about Bristol Airport.

[Lord Wigley]

My Lords, I will speak briefly in support of Amendment 96, so ably moved by the noble Lord, Lord Rowe-Beddoe. We are glad to hear his expertise in this particular debate.

The amendment provides for the devolution of air passenger duty to the National Assembly for Wales. As has been mentioned, long-haul air passenger duty is already devolved to Northern Ireland and Scotland. It was included as a key part of a carefully crafted package of devolved measures in the recommendations of the Silk commission—of which the Minister was a central part—and would be used to give competitive advantage to Wales.

Plaid Cymru MPs attempted several times to include APD devolution in the other place, but this was met by a deluge of England-centric counterarguments from the Secretary of State and his Ministers. They seemed more interested in the possible effects of devolving APD to Wales on airports in Liverpool and Manchester than the benefits to Wales. I exclude the noble Lord from this criticism, which is based on what was said on 11 July in another place, but I am dumbfounded as to how Wales Office Ministers, who are meant to be working in the interests of their constituents, can justify their position in prioritising English airports. In this instance, I gently say to government Ministers that their job is to stick up for Wales—goodness knows, there are enough other people in the Palace of Westminster to argue England’s corner.

A recent Western Mail poll found that 78% of Welsh people are in favour of devolving APD, showing that public opinion is clearly on that side. Increasing footfall at the airport would generate substantial revenues elsewhere in Wales, and enable Wales to better market itself for trade, tourism and inward investment purposes, which will become a top priority in the post-Brexit world which we, sadly, will soon inhabit. Let us also remember that Cardiff Airport is owned by the people of Wales. It should be a matter for Welsh Ministers to decide on an aviation strategy that best serves those people. Airports in England should not have the power to determine government policy and block a beneficial Welsh devolution settlement. I support the amendment.

[Lord Hunt of Wirral (Con)]

My Lords, I have to start with an apology. I think this is the first occasion on which I have ever disagreed with my noble friend Lord Rowe-Beddoe. I cannot agree to his proposed new clause—“Tax on carriage of passengers by air”—for three reasons. I hope that when I say what I am about to say, he will recognise that I worked very closely with him in attracting inward investment to Wales and, indeed, in and around Cardiff Airport.

My first point is that, sadly, this debate, like so many debates about the great country where I was born, is centred on south Wales. There has been no mention, apart from a sudden reference just now by my noble friend Lord Wigley, to Liverpool and Manchester airports. I view the airports of England and Wales as a whole, and I will come to a solution in a moment, but Cardiff is certainly not the airport of choice for people living in and around where I was born. It is certainly not the airport of choice for those in central Wales. Indeed, the needs of a large part of the geographical territory of Wales are not met by Cardiff.

Secondly, I have never been a strong supporter of air passenger duty. No doubt, when all the volumes are written and all the Cabinet papers published, it will be seen that I was never a supporter of APD or insurance premium tax. However, I have to acknowledge that it is a very clever way of raising revenue—so much so, as the noble Lord told us, that I think it now totals £3.1 billion a year. The noble Lord seeks, with the best of intentions, at one single airport, to make it possible for the owners of that airport—by the way, I think there is a conflict between owning the airport and setting the tax—to be able to move the duty up or down. Because it is such a clever way of raising money, if the Welsh Government were ever a little short of revenue—and I think they usually are—it would be perfectly possible for them, under his proposed new clause, to raise the amount of revenue from APD. I just do not think I want to go down that route.

Thirdly, there is an urgent need to develop a better policy for regional airports. I am aware that the Government published a consultation paper—last year, I think—looking at the future of regional airports. We are, after all, the Parliament of the United Kingdom, so I would have thought we had to look at regional airports across England and Wales to find the best possible policy for ensuring their success.

I think there are three possibilities. The first is to devolve air passenger duty within England and Wales, a possibility that, if I recall correctly, was raised. Secondly, rates could be varied from airport to airport, with a view to strengthening the claims of that particular airport. Thirdly, we could give much more aid to regional airports. I recall, and the noble Lord may remember this, that several of the companies that decided to make substantial inward investment in Wales cited the efficiency of Heathrow Airport as the reason they were able to come to Wales.

As the Parliament of the United Kingdom, we ought to look at the policy for regional airports as a whole. I do not know whether the Minister can give us any idea when we will see a policy applying to regional airports in England and Wales, but I hope we will soon. In the meantime, do not let us go off in one direction or another in favouring or disfavouring one particular airport. We have to strengthen regional airports in England and Wales as a whole.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

The point being, my Lords, that they are either, in the case of Glasgow and Edinburgh, both able to vary the rates or, in the case of Liverpool and Manchester, both unable to vary them, so they are on an even playing field, which would not be the case between Cardiff and, for example, Bristol. The noble Lord talks about the possibility of Broughton, but that would not give rise to long-haul flights. If noble Lords will allow me to go down memory lane, I remember going out on the roadshow with the Silk commission, and this was not a popular suggestion in north Wales. I remember people in the audience across the political divide saying that this would be a tax that would help people in south Wales, not people in north Wales.

[Lord Wigley]

The Minister made references to north Wales. I hope that he is not starting to play the old game of playing north against south, because it is to the benefit of the whole of Wales if the Welsh economy flourishes. It is essential that we use these levers to benefit Cardiff and the economy around there. If it has benefits in terms of tourism, that is a benefit to the whole of Wales. We have a number of small airports around Wales. The service from Cardiff up to Valley, for example, is a valuable one. We have an airport in Caernarfon and other airports. What is essential is that we get a coherent policy to work for the whole of Wales and not to have it happen, as is happening again tonight and happened in the House of Commons, that we play the hand for the sake of English airports at the expense of Cardiff Airport and the strategy of the Welsh Government.

[Lord Bourne of Aberystwyth]

My Lords, that is an unfair suggestion. I am certainly not playing north Wales against south Wales—I am informing noble Lords of what happened when we were out on the road. There is only one international airport in Wales. If we are talking about APD in relation to long-haul flights, that means only Cardiff in relation to Wales, as things stand; that is undoubtedly the case. I am the first person to stand up for Wales, as I hope that the noble Lord will accept, but we cannot do that in isolation from what is happening in the rest of the country. If the measure being talked about is unfair, I am afraid that it will not see the light of day in the context of looking at what is fair for the United Kingdom. Yes, we must stick up for Wales, but it has to be done in the context of fairness.

I shall progress the argument a little to see if there are other things that we can be doing. As I have said, we do not want to look at the position of market distortions, but we want to help Cardiff Airport if we can. We looked at a review of this to see whether it would be possible to devolve APD to Wales while supporting English regional airports against the impacts of reduced APD. However, there are no obvious options that could mitigate against the impacts on regional airports elsewhere, if devolving the tax to the Assembly meant that Bristol could face 25% fewer passengers. That is significant. I shall ensure that I circulate full details of our review into these options to noble Lords so they can see it.

I hope that noble Lords will accept that this is not a desire not to do what is best for Wales, but a desire to do what is best for Wales while recognising that we cannot fail to be fair to the rest of the country. If that happens in this case to be England, I make no apologies for that. Bristol Airport does not have the ability to vary APD, and we cannot do that in the context of the Bill.

I have listened carefully to the debate, and I shall circulate the details of the review, when we had a look to see if there was anything that we could do. There was a long debate in the Silk commission, and it was not along party-political lines; it was generally divided on the issue of what we could do for Wales, partly because of fairness and partly because of the issue that still exists about state aid and the fear of action in relation to that—valid action. On that basis, I ask the noble Lord to withdraw his amendment. As I say, I shall circulate details of the review that we had to see whether there was anything that we could realistically do to help Wales—and, in this context, that means Cardiff Airport.

Wales Bill

Lord Wigley Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 23rd November 2016 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, the government amendments in this group demonstrate the pragmatic and progressive approach that the Government are taking in this Bill to the interface between devolved matters and the wider justice system of England and Wales. The amendments are designed to do two things. First, they will create a statutory office of President of Welsh Tribunals to oversee the work of the devolved Welsh tribunals. Secondly, they will allow for the movement of judges between different Welsh tribunals and between reserved Her Majesty’s Courts & Tribunals Service tribunals in England and Wales and the devolved Welsh tribunals, to share expertise in a way that cannot happen under current legislation.

These measures are the culmination of discussions with the Welsh Government, the Ministry of Justice and the senior judiciary. Although the clauses and accompanying schedules are fairly lengthy, reflecting some technical but necessary aspects of the provisions, the overriding purpose is simple: to improve the way in which the workload of the devolved Welsh tribunals is managed and to maximise flexibility in the deployment of judicial resources in the Welsh tribunals.

I will deal with the creation of the statutory office of President of Welsh Tribunals before moving on to discuss the flexible deployment measures in more detail. As noble Lords may be aware, there are currently seven devolved tribunals which are the responsibility of the Welsh Government. The full list is set out in Amendment 107C and includes, among others, the Special Educational Needs Tribunal for Wales and the Welsh Language Tribunal.

Each tribunal currently has its own chairperson, but Mr Justice Wyn Williams has undertaken an informal, presidential-style role in respect of the relevant tribunals, acting as a central point of contact for all leadership judges in them. By putting the role of President of Welsh Tribunals on a statutory footing in Amendment 107DA, we acknowledge the important work that Mr Justice Wyn Williams has done, while bringing greater consistency to operations and the provision of pastoral support to the leadership judges in the relevant tribunals. The fact that Mr Justice Wyn Williams has performed this role on an informal basis for some time is perhaps the best indication that there is a need for a permanent statutory position.

Noble Lords will be aware that the Lord Chancellor and Lord Chief Justice have legal duties to increase diversity in the judiciary. For that reason, the Government consider that the selection and appointment process should be as open and transparent as possible.

The new schedule inserted by Amendment 119AA provides for a two-stage process for the appointment of a person to this new statutory role. At the first stage, the Lord Chief Justice can recommend a candidate for appointment. If the person chosen is a current or former judge of the High Court or the Court of Appeal, and the Welsh Ministers and the Lord Chancellor agree with his recommendation, the appointment can go ahead. Where those conditions are not met, for example because there were two or more promising candidates, the Lord Chief Justice would be required to ask the Judicial Appointments Commission to recommend somebody for appointment. This is similar to the two-stage process that exists in relation to the Senior President of Tribunals, who carries out a similar role in relation to the First-tier and Upper Tribunals that exercise jurisdiction across England and Wales. If the Judicial Appointments Commission was invited to carry out a recruitment campaign, the new schedule created by Amendment 119AA makes it clear that its guiding principles of selection on merit and promotion of diversity would apply, just as they would in any other campaign carried out in England and Wales.

On flexible cross-deployment, the measures in Amendment 107FA are related specifically to members of the Welsh tribunals being deployed from one Welsh tribunal to another, giving the president greater flexibility in the way judicial resources are managed and the ability to respond effectively to peaks and troughs in the workload of the tribunals. In addition, the Welsh Government agreed with the Lord Chief Justice, the Senior President of Tribunals and the Lord Chancellor that it might be beneficial if judges could move between reserved HMCTS tribunals and the devolved Welsh tribunals, if this were needed to meet urgent business needs. Amendments 107GA and 107H would provide the legal basis for cross-deployment to occur. They would allow judges from the Welsh tribunals to sit in the First-tier Tribunal and for judges from the First-tier and Upper Tribunals to sit in the Welsh tribunals, subject to the agreement of the senior judiciary on both sides. In reality, the Government anticipate that it is more likely that judges would be deployed from HMCTS tribunals into the Welsh tribunals than vice versa, but these amendments would permit movement in either direction. I hope the Committee will agree that both the creation of the office of President of Welsh Tribunals and the measures on cross-deployment are worth while.

There is also an opposition amendment in this group. I look forward to hearing from the Opposition on that and will then respond to the points made. I beg to move.

[Lord Wigley (PC)]

My Lords, I shall speak to Amendment 108 in my name, which seeks to devolve the youth justice system in Wales. The amendment is perhaps slightly incongruously linked with this bank of amendments before the House.

The ineffective and complex mix of devolved and non-devolved bodies that manage the Welsh youth justice system means that a fragmented approach is the best we can hope to achieve. The argument for the devolution of the youth justice system has been made by many experts in both policy and practice, including former Youth Justice Board chair, Professor Rod Morgan, who noted that it is illogical to have a system where factors linked to youth offending are often related to devolved services, such as education and training, social services and health, while youth offenders are dealt with through non-devolved services such as the police, youth offending teams and youth courts.

My party colleague, North Wales Police and Crime Commissioner Arfon Jones, highlighted how a devolved youth justice system would provide an integrated and coherent children’s policy for Wales. Through a clear devolution settlement, the accountability, opportunities to innovate and the simplification of the way the youth justice system operates in Wales would lead to significant improvements for vulnerable children and young adults.

Understandably, the English youth justice system, on to which elements of the Welsh system continue to be tacked, is concerned with English problems, particularly gangs and urban violence. In Wales, rural issues and poverty underpin the challenges faced. By creating a clean break between the two systems, we could enhance outcomes for children at risk in both nations, allowing policies and practices to be targeted and focused on the issues of greatest importance in both places.

As another party colleague of mine, Liz Saville Roberts, highlighted in the other place, the Howard League for Penal Reform found out about our efforts to devolve youth justice and provided us with the following statement:

“When it comes to Welsh children in trouble with the law, Wales should be able to come up with a Welsh solution to a Welsh concern. This is particularly the case because both social services and education policy are already devolved and it is a welfare-led approach which will prove most effective for troubled children. The Welsh Youth Justice Board already recognise this in their ‘children first’ approach and there is an opportunity to build on that distinctiveness and protect it from any Westminster-led reforms that fail to take into account the specific needs of Welsh children”.

Coming from where it does, that quote ought to carry a lot of weight.

The practical benefits of devolving the youth justice system are clear. It is outlined in the recommendations of the Silk commission, as I am sure the Minister will readily recall. It is exemplified by the fact that it is already devolved to Scotland and Northern Ireland, and it is reinforced by the fact that the Government already said they are looking to devolve aspects of youth justice to areas of England. Can the Minister explain to the people of Wales why establishments such as the Greater Manchester Combined Authority are set to gain increased competence over youth justice but the established National Assembly for Wales, with a track record on closely related issues, is not?

I hope the Minister will listen to the advice of those involved in the sector and either support this amendment or bring forward an amendment on Report that will devolve the remaining aspects of the youth justice system to Wales.

[Lord Howarth of Newport (Lab)]

My Lords, there is a mass of important material in this substantial group of amendments but I draw attention to one particular issue arising from government Amendment 107H, which would introduce a new clause. It appears that that would allow the Lord Chancellor to amend a section of primary legislation, so this clause would create a new Henry VIII power. Parliament ought always to be on the alert when new Henry VIII powers are proposed by the Government. It would be appropriate and helpful if the Minister explained the Government’s justification for this. I see the noble and learned Lord, Lord Judge, in his place but do not know whether he is minded to deploy his forensic powers in examination of this particular amendment. If he is, it would be otiose for me to say more.

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[Lord Wigley]

Will the Minister address my point that there is devolution of a different kind going on with youth justice being devolved to areas such as Manchester, yet they are not having a totally separate Home Office or judicial structure of their own? In these circumstances, and given the fact that the Labour Party, the Liberal Democrats, a lot of Cross-Benchers and ourselves support this movement and the Silk commission’s recommendation, will he look at this matter between now and Report to see whether there is room for greater devolution, at least of large parts of this, to the Assembly in order to get a coherent service in Wales?

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord for that contribution. I was coming on to deal with devolution to areas of England, to which the noble Lord referred, and to say that I will cover that in the letter that I am writing in relation to the current arrangements in Wales. My understanding—I have had a look at this—is that it does not involve devolution of policy issues in the way that this would to the Welsh Government. It will not allow English cities or regions to have separate policy arrangements, which I think is what the noble Lord is seeking. But I will cover that in the letter, as well as the arrangements that are likely to be in place in the areas of England where we are looking at devolution—Manchester, Liverpool, the West Midlands and so on. But, in short, I think that it is devolution of a different sort.

I shall move on and talk about some of the cost implications that would be involved in replicating some of the functions that appear to be working well, partly by the purchase of custodial places in England owing to the lack of, for example, secure establishments in North Wales and secure training centres across the whole of Wales. That would be a necessary part of any devolution package. Perhaps more importantly, reserving legislative competence for youth justice ensures that the Government can apply a coherent approach to criminal justice and the management of offenders across all age groups, while enabling the joined-up working that is happening at the moment in Wales on the issues affecting youth offending.

I recognise the significant and continuing role of devolved authorities in delivering youth justice services, as happens now, and the level of co-operation which already exists on the ground between devolved and non-devolved organisations. I put on record my thanks to the devolved and non-devolved organisations that are making it work. However, it is the Government’s view that not accepting the amendment will ensure that we have the most efficient, effective and consistent way to deliver youth justice services across England and Wales within the single legal jurisdiction.

Wales Bill

Lord Wigley Excerpts

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

[Baroness Morgan of Ely (Lab)]

My Lords, I have tabled Amendment 2 relating to the establishment of a justice in Wales commission. I am very pleased to hear that there has been a degree of movement by the Government on this matter. We emphasised in Committee that we were largely dissatisfied, as I think are the Welsh Government, with attempts by the UK Government to address the fact that over time there will be this increasing disparity between English and Welsh laws, albeit they will both still be dealt with under the single England and Wales jurisdiction.

We have heard about this working group and I am glad that we have had a letter to inform us of the Government’s suggestions. We have not had as much time as we would have liked to deliberate on those, but I am pleased that the Government have recognised the need for some kind of ongoing committee or representation to make sure that they are constantly taking the temperature of the changes that will be happening. We made it clear that we were unhappy with this working group; we did not think it had been thought through in agreement with the Welsh Government but had been imposed on the Welsh Government, who certainly did not feel that they necessarily needed to respect any outcomes of it. That is why we are pleased to see the move to a more equitable system in which the Welsh Government will be respected.

Whether the committee outlined by the Minister goes far enough is questionable. We wanted a commission rather than a committee, but I am not going to nit-pick on that point; it is more important to look at the purpose of this group. I am glad that the Minister recognises that there will be, and is already, a distinct legal identity to Welsh laws but a number of points need to be addressed in relation to this committee. The noble Lord, Lord Elis-Thomas, just made the point that it needs to be seen to be more independent—equidistant from the UK and Welsh Governments. We have moved from the Ministry of Justice having the chairmanship to the idea that it might be somebody from the Cabinet Office but, given that it could be chaired by a representative from the UK Government, we wonder whether it would be better to have a more independent representative chairing the committee.

However, what is more important to me is the need to be clear that the people on the committee should be senior individuals, with the independence and expertise required to carry weight with both Governments. In that sense, it is crucial that both Governments are involved in making sure that they can agree on its membership. Can the Minister give us a commitment today that that will be respected—that there will be a joint agreement on who those experts will be? I should like it to be absolutely clear that this will be an ongoing group, because the body of Welsh law is likely to grow over time. It should not be a task-and-finish group; it needs to be ongoing. I am anxious to hear the terms of reference for this group. Can the Minister give us some indication of them? Would they also be agreed with the Government of Wales? If we are not to get an independent chair, those terms of reference need to be agreed by both Governments.

I hope the Minister will listen to those few requests on this issue. I am very pleased to see that he has come a long way towards us on it. A few tiny paces further would be very welcome but there have been a number of changes, as he suggested in his opening statement. On the new definition of Welsh law and in other areas, the Government have once again kindly listened to the changes that need to be made to the Bill. I thank the Minister for that.

[Lord Wigley (PC)]

My Lords, I had intended to speak in support of the noble Baroness, Lady Morgan of Ely, on her Amendment 2, but I am not sure whether she will now pursue Amendment 2 or seek to find a common way forward with the Minister. I will therefore truncate some of my comments on Amendment 2, but I also have Amendment 3 standing in my name in this group.

None the less, will the Minister confirm the permanent nature of the committee he has in mind? The noble Baroness raised that point herself. The difference between a statutory provision and an ad hoc provision is that the latter can easily run like water into the sand and disappear over time. A statutory commission not only would have the permanence that statute gives it but is also likely to have its terms of reference fairly clearly defined in an open way that people can respond to. A far greater degree of attention would also be given to drawing up the body’s terms of reference when it is set up. There is therefore a strong case for it to be a statutory body. But if it is not to be, I would certainly be interested in knowing what safeguards the Minister proposes to ensure that this is not something that is granted now but then disappears. As we know, and as I think the Minister accepts, there will be an evolving context for Welsh law and there will occasionally need to be adjustments to respond to it.

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[Lord Crickhowell]

My Lords, I refer in passing to Amendment 42, in the name of the noble Lord, Lord Wigley. I spoke about it at a previous stage and explained why I did not think it was workable, and I do not propose to add to my remarks on it today. I am a good deal more sympathetic to his Amendment 44, which my noble friend said was not necessary because it could be dealt with by the Welsh Assembly Government. However, it still seems a perfectly reasonable amendment.

I will concentrate my remarks on government Amendments 40, 45 and 50 and my amendments to them. I was delighted to see the amendments in the basic form they are in. I thought that we would probably only hear at this stage about the outcome of discussions between the Assembly and the Government on the arrangements for water in a kind of informal concordat form. I am delighted that the Minister has decided to introduce them all in statute, as that seems a considerable step forward. I will explain why I think that having made that great step forward, it is rather sad that he is not making them as comprehensive and effective as they could be. I will speak from my considerable experience—not always easy in this field—as the chairman of the National Rivers Authority, when I had to deal with exactly these issues on both sides of the border.

Amendment 40, which introduces the modification of water-related functions, as my noble friend explained, refers to “previously conferred or transferred” water-related functions. However, it happens to contain an extremely useful definition, I think taken from the 2006 Act, of what water-related functions mean. Because I want to use this definition later, I inserted something in it—which it is probably not appropriate to do at this stage—because we are dealing with matters previously conferred or transferred. I think that is what the definition confines itself to, although new subsection 2B refers to,

“provisions contained in or made under this Act or any other enactment”.

I therefore raise the question of whether those words in fact apply to the matters I will refer to on the later clauses. My reason for inserting the important matters of fisheries and recreation into the definition here is not so much where it refers back to previously conferred or transferred functions but because I want at this stage to produce a definition of water-related functions, which would be extremely useful in the later clauses. I therefore leave my point with a question about the wording and a comment about why I have inserted fisheries and recreation into the definition.

When we come to the later amendments, this becomes really important. It is equally important in both the later government Amendments 45 and 50, which deal with different aspects of the management of the water environment. When we come to the water protocol, which goes into statutory form, we refer only to water resources, water supply and water quality in England, but equally, we apply the same in Wales. The great thing about the protocol and all the government amendments is that they are of benefit equally to both parties, working both ways. Therefore I do not quite understand my noble friend’s point that if we alter the Silk commission recommendation, which in my view is incomplete, we will somehow upset the Welsh Government. The reality is that the Welsh Government ought to be equally pleased.

On both this and the later amendment, which deals with the way in which we manage these affairs, it makes no sense at all to pick just one or other of the water matters. In managing the water environment and what is going on in the rivers, we are dealing with the whole package, so usefully defined by the definition I extracted from the earlier clause. I seek only to bring together and complete what seems to be an admirable, initial partial proposal from the Government to provide effective management for both England and Wales of the water environment, comprehensively, covering all the things they ought to be looking at, not just water supply and water resources but flood defence and other matters such as the purity of water supply.

I will enlarge for a moment on fisheries and recreation. Fisheries are extremely important here. The main rivers we are talking about, the Severn and the Dee, are both important fishery rivers, as important for Wales as they are for England. Recreation is important in both; recreation and fisheries are related, because canoeists can have an impact on the fishermen, and in the past there have been disagreements and quarrels between canoeists and fishermen. I am happy to say that they are usually resolved, but it may be useful for those managing the affairs to have them involved in the total package of water functions so that they can play a part for the benefit of both Wales and England.

The Government have set about doing an excellent thing in statutory form in giving partial effect to the proper management of water as it ought to be managed, on a catchment management basis, covering all aspects of water management. In a sense, they have baked a cake—I do not know whether it will be a very nice cake—but it is missing a central ingredient. My proposals are trying to be helpful and positive. They ought to be welcomed equally on both sides of the border, and I hope that the Minister will not simply reject them because Silk did not cover them adequately. That is rather a bad reason to reject them. If they can be improved on, it is our job, proceeding with statute, to do so here and now.

I therefore hope that the Minister will at least not reject what I suggest at this stage. I hope that with his usual good sense and courtesy he will say, “I will go away and consider very carefully what my noble friend has said and see if we cannot come back with something”. He may not fully accept my amendments because Governments always say that amendments drafted from the Back Benches are likely to be imperfect in some way.

I thought that I would have to criticise my noble friend’s partial set of proposals on the grounds that officials in his department have simply not given adequate thought to providing the most comprehensive and complete answer, but I find that that is not so. They were studiously obeying Silk. I know that my noble friend played a crucial role in the Silk commission and therefore the St David’s Day agreement, but I suggest that if he is to do a complete, good and effective job, he should listen to my proposals and, I hope, accept them. If he cannot do so now, perhaps he can bring them back in a new or improved form at a later stage of the Bill.

[Lord Wigley]

My Lords, I am delighted to follow the noble Lord, Lord Crickhowell, whose interest and involvement in matters relating to water, and particularly water in Wales, has been known to us all for many years.

I wish to speak to Amendments 42, 44 and 49, which stand in my name and deal with water issues. I shall also speak to the other amendments in the group that impinge on these matters.

I say at the very start that, although the noble Lord, Lord Bourne, has rightly been praised for the way in which he has handled aspects of the Bill in Committee and, now, on Report, I am bitterly disappointed that we have not been able to get on to the face of the Bill substantive clauses that deal adequately with the three main issues in contention: an unambiguous statement that the National Assembly has total legislative control over all aspects of the creation of reservoirs in Wales, raised in Amendment 44; for the Assembly to have legislative control over all matters relating to water in all of Wales, with powers coterminous with Wales’s border, addressed in Amendment 42; and the unqualified removal of the powers of the Secretary of State to intervene, which I provide for in Amendment 49.

A few weeks ago, we were treated to a fanfare of triumph by the Secretary of State—whom I see standing at the back of our Chamber—who asserted that these matters had been sorted and the vexed issue finally put to bed. I welcome that statement, accepting it at its face value. Even today, I am willing to believe that not only were Alun Cairns, Guto Bebb and the noble Lord, Lord Bourne, sincere in that declaration but they genuinely aspired for these changes to happen, knowing how sensitive in Wales are matters relating to water. It would indeed have been a feather in their cap had they been able to deliver what they claimed to have achieved.

Today, at this last opportunity to get these three principles firmly embedded in the Wales Bill, we come to the reality of the situation—that they have, so far, failed to deliver on all these details. There is nothing whatever in the Bill or in any of the Government’s many amendments on Report that states unequivocally that the National Assembly has full legislative power over all aspects of authorising, building and controlling reservoirs in Wales in all their many guises. Yes, we were told in Committee that this would be contained in a protocol and, yes, Amendment 45 provides for a new clause entitled “Water protocol”, but we did not have the opportunity in Committee to see a copy of such an intended protocol and we still do not have one on Report. I assume of course that the detailed protocol will go way beyond the bare framework in this Bill to which the noble Lord, Lord Crickhowell, referred. We do not even have a draft protocol—not even an outline draft protocol—yet we are asked to confirm in legislation a provision about which we have next to no substantive knowledge whatever. We are being asked to rubber-stamp a pig in a poke.

In so doing, we are not even certain that the poke is there. Proposed new subsection (1) in Amendment 45 states:

“The Welsh Ministers and the Secretary of State may make an agreement (the ‘water protocol’) for the purpose of”—

which it goes on to define in outline but not in detail. It does not state that they “shall” produce a water protocol; it just states that they “may”—or, indeed, they may not. What a weak basis on which to build policies which the Wales Office Ministers paraded as being our salvation. There is no guarantee that there is in fact, in the murky room marked “Wales Office Water Policy”, any poke whatever. It may exist at some time; equally, it may never come into being.

Even if we have this undefined poke of a protocol, what sort of a pig do we find inside? The clause goes on to stipulate that the provisions that will be facilitated by law are to safeguard the well-being of English consumers. It gratuitously adds that the protocol may also safeguard the well-being of Wales—something that would not be needed in any protocol whatever if full control over water in Wales were in the hands of the National Assembly. It gives the impression of being a charter for the meddling by English Ministers and English authorities in matters relating to water in Wales. That is what we have suffered in Wales down the years and it is something that the National Assembly was expected to bring to an end, although now it may not be able to do so. We do not know for certain for the very reason that we do not have a protocol or a draft protocol before us to examine the implications.

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[Lord Bourne of Aberystwyth]

My Lords, as I said, I will look at the issue, but my understanding is that if the fishing is taking place in England it will be a matter for England and if in Wales it will be a matter for Wales—but I will take a more detailed look at that and write to my noble friend and other noble Lords who have participated in the debate.

I turn now to the serious issue about the protocol and Tryweryn. I have said on more than one occasion—I feel that I have said this so often—that Tryweryn is not affected by this legislation. Tryweryn could not happen now. The power in relation to reservoirs in every respect is already with the National Assembly for Wales. I could not have been clearer on that. I understand the importance of the issue as part of our folklore, but it is unaffected by this legislation. One would not expect this legislation to claim to be doing things that it is not doing. That is the basic point—although I understand the passion in relation to this area. I give that reassurance to the noble Lords, Lord Wigley, Lord Thomas, Lord Elystan-Morgan and Lord Morgan. Tryweryn cannot happen—or if it does, it is a matter for the National Assembly for Wales.

[Lord Wigley]

I am grateful to the Minister, who is repeating—quite understandably—the points he made in Committee. However, I pray in aid the comments made by the noble Baroness, Lady Morgan of Ely, with regard to the benefits of having something written in the Bill. Other declaratory points are included in the Bill—for example, the permanence of the Assembly. That is a declaration and there is no reason at all why there should be not that clear declaration. But it goes further than that. It goes to the question of the total control of reservoirs in Wales—every aspect of them should be under the control of the Assembly. Is the Minister saying that they are?

[Lord Bourne of Aberystwyth]

My Lords, I am saying that. The noble Lord is not often unfair, but I think that he is being unfair on this occasion. The issue in relation to the permanence of the Assembly is an aspiration and a declaration that was sought by his party and agreed by others. This is a very different issue. It is a statement of what this particular Act will do. This Bill as it is at present does not do anything in relation to the situation he is referring to—so it would be most extraordinary to claim that it did.

Turning to the broader issue of the protocol, once again I am conscious that the protocol is clearly important, but the Government have not claimed anything that is untrue or indeed misleading. We have said that the existing intervention powers will be substituted by a protocol. That remains the case. I understand noble Lords wanting information on what the protocol will cover, and perhaps some timetable for how it will be agreed, but noble Lords cannot have thought that I would be able to produce an agreed protocol at this stage of proceedings when we have only just agreed across government that this will be the way forward. I certainly undertake to write to noble Lords with a timetable for how the protocol will proceed and what it will cover, but I hope that they will accept that there has been no misleading in relation to the protocol. What we claimed is what we are delivering.

[Lord Wigley]

I am sorry to intervene again—I do not want to be a nuisance—but the Bill says that the protocol “may” be introduced. Why does it not say “shall”?

[Lord Bourne of Aberystwyth]

That is a drafting point. The noble Lord makes a fair point, but I can give the reassurance that there is certainly no intention on the part of the Government that this should not happen. It is something that is proceeding. I can confirm that it is the Government’s intention. We want this to happen and I believe that it will happen. I am not taking a pessimistic view of this. The noble Lord makes a fair point about the drafting, which I had not picked up—but sometimes these things are referred to as “may” and sometimes as “must”. From our point of view, we regard this as imperative.

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Moved by

[Lord Wigley]

14: Clause 29, page 26, line 23, leave out “, other than harbours that are reserved trust ports”

[Lord Wigley]

My Lords, I shall speak briefly to Amendment 14 and the other amendments in the group which have been tabled by the noble Baroness, Lady Morgan of Ely, seeking to devolve the trust ports to the National Assembly for Wales. I have added my name to Amendments 14 to 22.

The noble Baroness’s amendments were debated at the previous stage of the Bill, and I would like to remind the House of a point on which we were all agreed: the fact that Milford Haven is of strategic significance. It is unique in that it has a deep-water facility and handles 62% of all our liquefied natural gas, and as such it is of economic importance to Pembrokeshire. It was included in the Silk report and the St David’s Day agreement. To my mind, the reasoning behind this reservation is totally unclear. On the previous occasion, the Minister implied that the Government were unwilling to compromise on this matter, stating that reserving Milford Haven was an essential part of the Bill. He went on to assure noble Lords that he would take another look at the arguments set out and report back on his conclusions. I look forward to hearing them.

I want to reiterate that I am in full agreement that Milford Haven should be devolved. There is, however, one deeply troubling comment that I wish to raise again, and that is that Milford Haven trust port was at one stage being suggested by the current First Minister of Wales as a base for the UK nuclear fleet. He went on to say that the Government are not considering that option, but using the hosting of Trident as a way to emphasise the strategic significance of the port immediately rang alarm bells. Devolved or reserved, Trident is not welcome in Wales, and I urge both the Government and the Opposition to put on the record today that they do not intend to acquire powers in order to justify locating it there. However, I am very much in agreement with the main points made by the noble Baroness, Lady Morgan, in Committee. I beg to move.

[Baroness Morgan of Ely]

My Lords, I shall speak to Amendments 14 to 22 in my name and that of the noble Lord, Lord Wigley, and to Amendments 23 to 26 in my name, on the devolution of ports to Wales. The difference between my amendments and the Government’s position is that I believe that all ports in Wales should be devolved. The Bill as currently drafted does not conform with the recommendation of the Silk commission on the devolution of ports to Wales, as the noble Lord, Lord Wigley, has just emphasised.

To be fair, the Bill allows the Assembly to legislate on ports and harbours, which is a welcome move, but there remains this category of reserved trust ports on which the Assembly cannot legislate and over which Welsh Ministers cannot exercise any powers. That category seems to be arbitrarily defined by a certain turnover in relation to ports. In fact, only one port in Wales falls within the category, and that is Milford Haven in Pembrokeshire. It strikes me as very odd that the UK Government are seeking to control this one particular port.

So far, the justification given is that Milford Haven is a strategic energy port because it handles 63% of all the liquefied natural gas that comes through UK ports. As I mentioned in Committee, this justification is particularly odd as the UK Government made no attempt to cite energy security as a policy driver for investment in Milford Haven to support the sale of the Murco refinery in 2014. Equally strange is the fact that the UK Government did not seek to control the trust port of Aberdeen, which has significant strategic energy value due to the importance of North Sea oil to the United Kingdom. There are definite double standards in this. In Scotland, all ports and harbours are devolved, while Wales is once again being treated as a second-class country.

I would also argue that devolving powers over the trust port at Milford Haven is incredibly important for the economic development of the area, and it should be within the power of the Assembly to help promote growth in Pembrokeshire. It is the Assembly which has responsibility for economic development.

Some powerful points were made in Committee by noble Lords, including one by the noble Lord, Lord Crickhowell, on the issue of safety at the port. Indeed, the very fact that so much fuel comes through the port makes safeguarding an essential issue. The emergency services, both ambulance and fire, are already devolved. I want noble Lords to recall the “Sea Empress” oil tanker, which in 1996 ran aground just outside the port of Milford Haven. Protecting our environment is equally as important as the safety issues, as is the policing of the legislation for both safety and the environment at the port. In order to have a truly holistic response to accidents, whether on safety or environmental grounds, it should be acknowledged that one umbrella of responsibility makes more sense.

Noble Lords can imagine that, if an accident such as that involving the “Sea Empress” happened today, there would be a great deal of passing the buck between the UK Government and their accountable body, the port authority, and the Welsh Government, who are responsible for environment and safety. This was not an issue in 1996 because the Assembly did not exist. I am always concerned that, when there is not an absolutely clear line of responsibility, where does the buck stop? In a case like that of the “Sea Empress”, noble Lords can imagine how the bodies would pass the responsibility for it between each other for years.

The interrelated issues of the economy, the environment and safety, together with the interaction of local communities and the local authority, all need to be co-ordinated. Surely it would be easier and more effective to co-ordinate them at the Wales level. I hope that the Minister will reconsider this point and allow the port at Milford Haven to come under the control of the Welsh Assembly, as recommended by the Silk commission.

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[Lord Bourne of Aberystwyth]

My Lords, we could disagree on this issue until the cows come home but the basic point, which I think the noble Lord would accept, is that some matters are rightly retained as reserved matters for the United Kingdom Government while other matters are appropriate for the Welsh Government. It is our belief that the significance of this port in UK terms means that this should be a reserved port and not a devolved port. We disagree on that, but that is the basis on which we are moving forward, recognising that the Welsh Government have a role to play in relation to Milford Haven—a role that they fulfil at the moment. As I say, I will endeavour to ensure that I write to noble Lords to explain how that relationship is working at the moment.

In our debate on 7 November, some noble Lords questioned the matter of the devolution of strategic ports in relation to Aberdeen, which has been cited, quite appropriately, I acknowledge, in relation to Scotland. That was, of course, a devolution arrangement that was put in place in 1998. The Government’s thinking has developed since then and the Wales Bill includes the important concept of reserving to the United Kingdom Government trust ports that are nationally significant. I repeat to the noble Lord, Lord Hain, and others that that is the reason we seek to retain Milford Haven as a reserved port.

Government Amendments 27 to 35 are concerned with reciprocal requirements for the consent of the Secretary of State and the Welsh Ministers imposed by Sections 42C and 42D of the Harbours Act 1964. These requirements relate to harbour orders and schemes made under that Act which amend existing harbour orders and schemes made by the Secretary of State or the Welsh Ministers. The amendments are needed because the consent requirements are not consistent with the new devolution settlement for harbours in Wales set out in the Bill.

The amendments remove the reciprocal consent requirements. The transfer of harbour functions to the Welsh Ministers in the Bill will mean that the Welsh Ministers, not the Secretary of State, will exercise these harbour order and scheme-making functions for all harbours wholly in Wales, apart from reserved trust ports, which I shall refer to as “devolved harbours”. This would cover issues such as improvements to harbour facilities in relation to devolved harbours. The Secretary of State or his delegate could make such orders or schemes relating to devolved harbours only in very limited circumstances. In all such cases, the Secretary of State or his delegate will have a duty to consult the Welsh Ministers before making such a scheme or order, including under new provisions in the amendments.

Also, it would be unduly restrictive if Welsh Ministers were required to obtain consent from the Secretary of State when making, for example, a harbour revision order for a devolved harbour that alters the effect of a harbour revision order made for the harbour by the Secretary of State before the new devolution settlement. Other amendments in the group contain consequential amendments applying to Clause 36—provisions supplementary to Clauses 34 and 35—covering the Secretary of State’s new consultation obligation introduced by the amendments.

Lastly, Amendment 31 removes wording from Clause 36(1) which carries an exception from the duties to consult where consultation is not reasonably practicable. This amendment has been requested by Welsh Ministers.

Government Amendments 54 and 110 to 114 fulfil a commitment I gave in Committee to examine further the fisheries management functions being transferred to Welsh Ministers to regulate fishing vessels outside the Welsh zone. Amendment 54 introduces a new clause that transfers additional fisheries management functions to Welsh Ministers. The functions replicate, to a large extent, those already exercisable in the Welsh zone which were transferred under the Welsh Zone (Boundaries and Transfer of Functions) Order 2010. The effect of the amendments is that Welsh Ministers will have available to them the functions they require to manage Welsh vessels wherever they are. They also preserve the United Kingdom Government’s requirement to retain a symmetry between the concurrent functions available to the Secretary of State in relation to Scottish and Welsh fishing vessels operating outside their respective zones. Welsh Government officials worked with their colleagues in the Wales Office and in the Department for Environment, Food and Rural Affairs to recommend these amendments, which we are pleased to present.

Finally in this group, Amendment 55 requires the Secretary of State to consult Welsh Ministers while setting strategic priorities in relation to the Secretary of State’s delivery, in Wales, of functions under two pieces of primary legislation: the Coastguard Act 1925 and the Merchant Shipping Act 1995. In practice, each of these functions is carried out by the Maritime and Coastguard Agency, an executive agency of the Department for Transport. While day-to-day operational and incident response decisions are, quite properly, the responsibility of the chief executive of the Maritime and Coastguard Agency, the Secretary of State is responsible for setting its strategic priorities. Areas covered include the 24-hour search and rescue helicopter service provided by the coastguard and the promotion of seafarer health and safety standards.

Noble Lords will be aware that statutory provision has been made for consultation between the Scottish Government and the Secretary of State in the Scotland Act 2016, and in Committee I agreed to reflect on the case for making similar provision for Wales, in line with the amendments brought forward in Committee by the noble Baroness, Lady Morgan, and the noble Lord, Lord Wigley, and by the Smith commission in respect of Scotland. I am pleased to say that we can make such provision, and this amendment is the result. I commend the government amendments in this group and urge noble Lords not to press their amendments.

[Lord Wigley]

I thank those who have taken part in this debate, including the noble Baronesses, Lady Morgan and Lady Randerson, the noble Lords, Lord Crickhowell and Lord Hain, and, of course, the Minister. On Milford Haven, I think that there is a feeling across the House that there is a greater role for the National Assembly and the Welsh Government in this matter, particularly when one considers that they have responsibility for the safety and civil emergency aspects. There are questions of coherence in manpower planning, in transportation and road planning and in the economic infrastructure of the whole area. None the less, we note the points that the Minister made and it appears that we will have to agree to differ on this. I thank the Minister for government Amendments 54 and 55 on fisheries, which are a response to amendments we tabled in Committee and which will be welcome in Wales. On that basis, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

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Moved by

[Lord Wigley]

36: Clause 37, page 32, line 32, leave out “350” and insert “2000”

[Lord Wigley]

My Lords, here we go again. I rise to move Amendment 36 and to speak to Amendment 37, which is coupled with it. I shall speak to Amendment 60 a little later.

I welcome the Minister’s acknowledgement in the previous stage of the Bill that the limit placed on energy projects is in fact arbitrary. However, he failed to outline in any way why such a low arbitrary limit is necessary. I am sure that I will catch his eye, or his ear, in a moment so that he will be able to respond to that point in due course. The Minister rightly made the point that if you have to put a limit somewhere it will always, in some respects, be arbitrary. An obvious solution is to remove the limit altogether, as is the case in Scotland. Does he not think it bizarre that the Government are happy to use words such as “arbitrary” to justify their imposition of a regime which means that Welsh people will not decide how and when Welsh resources are developed? I do not want to replay the battles already fought. However, I am keen to respond to some points that he made during our last discussion on this matter.

First, as he knows well, and as I have already made clear, the Silk commission serves as no cover to justify the failure to enhance the Bill, since the Government have blatantly ignored unanimous Silk recommendations on other matters. The Minister cannot have it both ways. Although I accept that the 350 megawatt limit was agreed in the cross-party commission, that was in the context of an understanding that other parties would support the devolution of a range of policies in other areas and part of a carefully constructed compromise, as he will well recall, several aspects of which are now being sidelined. The Government have ignored the recommendations of the commission on policing, youth justice and rail infrastructure, among other areas. Just to cherry pick from the commission’s recommendations makes a mockery of the process.

Secondly, I am pleased that the Minister has agreed that I was right to highlight the absurd situation of the tidal lagoons, which means that the already approved 320 megawatt Swansea Bay lagoon would be within the threshold, while almost all the other proposed lagoons would not be within the competence of the Assembly. That makes it impossible for the Assembly to develop a coherent expertise, recognised by all people in such matters. Since we already have projects on the stocks in this area and close to each other in size, it really begs the question: seeing that it is arbitrary, why should it not be so at a slightly higher level?

I do not agree with the Minister that the 350 megawatt limit is the only way to do things, as he said, even when it comes to tidal lagoons. He justified the arbitrary 350 megawatt limit by intimating that some strategically important energy projects were not safe in the hands of Wales—at least, that was the implication. Of course, it is the policy of my party that the people of Wales should decide on how all its resources are utilised, regardless of technology or size. However, I emphasise that the Minister need not be concerned about strategically important energy projects being scuppered by Wales. Nuclear energy is already listed in the reservations. A limit well in excess of 2,000 megawatts would still fail to capture much of what is considered as strategically significant by way of energy generation. Fundamentally, a more sensible and pragmatic approach to these energy limits would create a clear, lasting devolution settlement. Even more importantly, in practical and pragmatic terms it would be easier for the developers and for the expertise within the Assembly.

The amendments in my name, unlike the previous ones tabled by Plaid Cymru MPs, recommend a 2,000 megawatt cut-off offer. This would still not encapsulate many of the projects which I had hoped the Government would recognise should be decided on by the Welsh people. But I hope that it offers a more amenable arbitrary limit—yes, arbitrary, as the Minister put it—which would increase Welsh people’s ability to decide how Welsh resources are utilised and give the Assembly a coherent role. The 2,000 megawatt figure, although undoubtedly arbitrary, has been inspired by the Labour amendment in Committee; I readily acknowledge that it proposed the same figure. I therefore hope that I can count on their support for this amendment. Can the Minister outline how any arbitrary limit, be it 350 megawatts or 2,000, can be increased without the need for primary legislation in a pragmatic and sensible fashion, or adjusted in any way that circumstances require, to ensure that we get to a point where Wales’s natural resources are decided on by Welsh people to the maximum possible extent?

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I acknowledge that this is a serious issue. I am grateful to the noble Baroness for exaggerating my powers in relation to the Government as a whole regarding what legislation is forthcoming. I will have to write to her on that, but I acknowledge that it is a problem and I have given her an indication that if we deal with it in Westminster, of course any consequent changes would apply in Wales as well.

[Lord Wigley]

My Lords, I am grateful to everyone who has taken part in this debate. I have noted the replies given to the various subjects that have arisen. I still feel very strongly that some of the powers that Scotland has regarding the Crown Estate are powers that we should have as well, but clearly we are not going to make much progress on that today. I also suspect that we will come back to the diverse matters that we have discussed, including the gambling questions and possible legislation. On the basis of the debate, though, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Wales Bill

Lord Wigley Excerpts

Report stage (Hansard - continued): House of Lords
Wednesday 14th December 2016 Lords Chamber

[Lord Judge (CB)]

My Lords, I shall not speak to Amendments 63 or 64, but I shall speak to Amendment 65. As the noble Lord, Lord Wigley, reminded the House, I had the privilege of being Lord Chief Justice of Wales for some time and I regard this as a constitutional question. I also recognise that at this time of the night, a speech like that of Welsh-born Henry V before the Battle of Agincourt—or before the walls of Harfleur—will not do very much for anybody, so I will confine myself to a few choice words, but maybe more than I intend.

I make this speech because this provision is simply a constitutional aberration. Here we are in the mother of Parliaments, an institution where the principles so movingly crafted by Abraham Lincoln on the blood-soaked field of Gettysburg, about government for the people by the people and of the people—democracy—is embodied. Yet we are to provide a Minister of the Crown with powers to amend, repeal, revoke and modify—perhaps I can use the word “disapply” to cover all those—any primary or secondary legislation. We do it all the time in what are called Henry VIII powers and we all let it happen. We should not, but we do—so let us face the fact that there are Henry VIII powers in this provision.

Secondary legislation can overrule primary legislation, but this is the malevolent ghost of King Henry VIII wandering through the valleys of Wales because, at least in the provision as it stands, if the primary legislation of this Parliament is to be overruled there are going to be regulations which would empower this House to overrule it. I disagree with the process but it is up to Parliament, and Parliament provides it. The necessary regulations are subject to parliamentary approval or annulment, but—this is the crucial but—the regulations that would empower the Minister to disapply legislation of the National Assembly for Wales are not subject to the equivalent control by that Assembly. We seem to have been discussing this legislation all day yet any part of it—primary, secondary, tertiary or whatever it may be—can be wiped out by a Minister without any consultation with anyone at the National Assembly for Wales. In other words, we would wipe out the enactments of a democratically elected Parliament that we call the National Assembly.

If I may say so, I find a ministerial diktat that is given such powers quite astonishing. It is astonishing that it is considered here in the mother of Parliaments. There is not a scintilla of control of the Executive envisaged in these provisions, which is why I describe them as a constitutional aberration. I am sorry to use strong language and I know I am not before Harfleur, but it is an insult to the democratic process which this Parliament created when the National Assembly for Wales was created. That is my prime concern, but I am concerned, too, about the legislation itself.

Can we just remember that this is open to question as a piece of legislation? Clause 60 as it stands is inconsistent with the spirit and arguably, I suggest, with the precise language of Clause 2. If Parliament is normally precluded—as it would be for the reasons we have discussed this afternoon—from legislating about devolved matters without the consent of the National Assembly, why on earth should a Minister or the Executive, not Parliament, be given wide-ranging powers, including powers to disapply primary legislation of the Assembly by secondary legislation without any consent, without so much as a “by your leave”? There may be political consequences, but in law that is what we are being asked to consider.

I know that the Minister, who has dealt with me with the greatest possible courtesy, will no doubt point out that that is what happens in Scotland. So it does. We should be embarrassed that we allowed it to happen. The fact that it happens in Scotland does not alter the fact that it was an aberration there and will be an aberration here. I beg to move.

[Lord Wigley (PC)]

My Lords, I am delighted to follow the noble and learned Lord, Lord Judge, in his excellent opening statement on Amendment 63 and the amendments grouped with it. I shall speak to my Amendments 64 and 71 and to Amendment 65, to which I added my name.

Amendment 65 may be the most effective amendment in this group. The amendments seek to ensure that the National Assembly for Wales has primacy when it comes to secondary legislation in areas of devolved competence and to removing Westminster’s powers to undermine Welsh devolution through what are known as Henry VIII powers. It is worth reading out the amendment:

“Page 49, line 7, at end insert—

‘(2A) The Secretary of State may not make regulations under subsection (2) unless the National Assembly for Wales has passed a resolution approving a draft of the regulations”’.

That seems a very reasonable thing to do. When these points were put forward in Committee, I found the Minister’s response, particularly to the points raised by the noble and learned Lord, Lord Judge, to some extent disappointing and perhaps a little misleading. The Minister argued that Acts of Parliament and Acts of the Assembly should be treated equally in areas of devolved competence. The Minister characterised the argument as being about equality, although no one appeared to be using that word to describe the intentions of these amendments. It is not a matter of equality; it is about establishing the supremacy or primacy of laws created by the Assembly in Wales for Wales. The Minister argued that a number of Welsh Assembly Acts require amendments to Westminster Acts and that a statutory provision to create more accountability for secondary legislation would shift the balance too far in favour of the Assembly. However, as my noble friend Lord Elis-Thomas highlighted, we are talking about two very different scenarios. The Assembly is simply amending Westminster Acts, which are the legislative framework on which Welsh law has been built for centuries. In contrast, unwanted attempts by Westminster to amend Assembly Acts are simply interventions in what should be an area of unquestionable authority for the National Assembly for Wales. It therefore seems quite a misnomer to say that any attempts to use Henry VIII powers to undermine Welsh law are a matter of equality. The issue is about ensuring that Welsh Assembly Acts have the respect and legal standing that they deserve.

I shall also briefly address a further point raised by the Minister. He argued that Clause 53 will be used to address “minor” or “consequential” issues only. It was argued that any wholesale changes to this process would create unnecessary complexities for these necessary but uncontentious pieces of secondary legislation. He will be able to see from Amendment 64 that by including the word “minor” in the appropriate line of the clause, I have addressed that issue. I hope he will acknowledge that and perhaps accept the amendment.

I understand that, as with primary legislation, AMs are afforded the right to vote on a consent Motion for any changes to Westminster orders and regulations which infringe into areas of devolved competence. This is called Standing Order 30A and is referred to by the abbreviation SICM for statutory instrument consent memorandum. However, this is only agreed to by convention, and recognised only in Assembly standing orders. It has absolutely no legal standing—even less than the somewhat pathetic standing given to the Sewel convention by including the word “normally” in the Bill.

The Assembly cannot rely on the kindness of Westminster to ensure that it can continue to exercise the powers we have fought so hard for it to have. Will the Minister therefore accept the advice of so many legal and constitutional experts and recognise that it is no longer acceptable to have these arcane and undemocratic clauses in the Bill—or, for that matter, in any Bill of this nature? A way out of this totally unnecessary mess would be to require the National Assembly’s agreement to the use of any statutory instrument by Westminster. At a stroke, that would resolve the issue. If the matters are as uncontentious as the Minister claimed them to be, there would be no difficulty in getting that Assembly agreement.

As things stand, I can well see this matter becoming a dominant one, which could well lead to the National Assembly refusing to pass a legislative consent order in relation to the Bill. If that were to happen, it would be a direct consequence of the Government refusing to apply even-handed common sense and instead running terrified of upsetting the Scots by giving Wales this additional power. We have been told time and again that just because something is appropriate for Scotland, it is not necessarily appropriate for Wales. In this instance, the boot is on the other foot, and for the sake both of the self-respect of our National Assembly and of the even-handed resolution of disputes between Westminster and Cardiff Bay, I urge the House to accept this amendment.

[Lord Thomas of Gresford (LD)]

My Lords, Clause 60 is an example of the encroachment of the Executive on the privileges of Parliament that has increasingly come to the forefront in the last two or three years. It is necessary to look at the provisions of that clause very carefully. In subsection (2), it says:

“The Secretary of State may by regulations make such consequential provision in connection with any provision of this Act as the Secretary of State considers appropriate”.

Parliament passes primary legislation, and a Secretary of State introduces regulations. The control that Parliament has is by way of statutory instrument—sometimes by the affirmative procedure, sometimes by the negative procedure. This is an issue that has troubled the Delegated Powers and Regulatory Reform Committee, of which I am a member, for some time. Every time this provision appears, a statement is made which the Government have, in the last two or three years, ignored. Subsection (3) says that “Regulations under subsection (2)” made by the Secretary of State “may amend, repeal”—and these are the important words—

“revoke or otherwise modify … an enactment contained in primary legislation, or … an instrument made under an enactment contained in primary legislation”.

That is the Henry VIII clause which permits a Minister to bring forward a statutory instrument to amend an Act of Parliament passed by Parliament.

There are two ways of doing that, as I have already indicated: by affirmative resolution, whereby the amendment does not take place unless the instrument has been laid before, and approved by a resolution of, each House of Parliament; or by the negative procedure, whereby a draft is produced and subject to annulment in pursuance of a resolution by either House of Parliament. Your Lordships are familiar with the bringing forward of Motions in the House to seek to annul regulations that are subject to the negative procedure. However, this clause, at subsection (6), says:

“A statutory instrument containing regulations under subsection (2) that includes provision amending or repealing any provision of primary legislation may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.

That is the affirmative procedure, but the words are “amending or repealing”. It is not necessary to have an affirmative resolution if the purpose of the regulations is to revoke or otherwise modify the Act of Parliament that is under consideration. So whereas subsection (3) refers to amending, repealing, revoking or otherwise modifying, an affirmative resolution is required only if the provision amends or repeals. If it revokes or otherwise modifies an Act of Parliament, the negative procedure is enough, according to this clause.

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[Lord Bourne of Aberystwyth]

My Lords, I appreciate the point that the noble Lord is making, and indeed the point that the noble Baroness is making, but I suspect that this would be part of the response of the Presiding Officer to the Secretary of State now that she has the letter—or hopefully has the letter, because it has only just been sent. That would be a matter for dialogue between the Presiding Officer, First Minister and Secretary of State.

[Lord Wigley]

Before the Minister sits down, can he address one point that I raised with him? If the matters under consideration for the use of these orders are generally small, consequential, almost trivial sortings-out, why on earth is it not possible to have a consent order in the Assembly for any orders being made here and vice versa, so that everybody is built in? If they are not controversial there would be no difficulty in getting them.

[Lord Bourne of Aberystwyth]

My Lords, again, I do not want to second-guess what will happen in the discussion subsequent to the letter being received. It is a fair point, but I suppose it does raise the question of when something may be minor to one person but not another. I think that it may be easy to identify but more difficult to define what is minor. I take the point but, sometimes, there may be a need to act with great facility. The point here is that the approach that I have suggested—indeed, the approach that we are carrying forward—involves a dialogue between the National Assembly and our own Parliament, through the Wales Office, which can hopefully drive this matter forward. That is what I have been seeking to do and I hope that noble Lords will accept this as a way forward in relation to what could otherwise be a difficult issue.

Wales Bill

Lord Wigley Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 10th January 2017 Lords Chamber

I do not buy the argument that this would impact adversely on Bristol Airport. Currently there are no long-haul flights from Bristol. Bigger planes, such as Boeing 747s, are not able to use the runway. The last direct flights across the Atlantic from Bristol to New York were scrapped six years ago. So a reduction in air passenger duty would help air passengers, support growth and jobs, and cut costs for business. I ask the Minister to consider these points when he makes his response.

[Lord Wigley (PC)]

My Lords, I am glad to follow the noble Baroness in addressing these questions. First, let me say how glad I was to see the Minister arriving in the Chamber. I was fearful that we might be losing all the last few months’ work if we stumbled at this last stage.

Before I address the amendment in my name, I would like to comment that everyone must be glad that progress is being made on the fiscal framework and that there has been some agreement, but only time will tell whether that agreement is adequate. One problem is that, over the past 17 or 18 years since the establishment of the National Assembly, there has been a shortfall of more than £5 billion due to the effect of the Barnett formula on the Assembly’s funding, and therefore we are starting from a position where we will have to work very hard indeed to make up that loss. Clearly, the formula now forthcoming may or may not work in the future, but it does nothing to recoup that loss. Also, a central question in relation to the capital programme, which I will talk about in a moment, is the availability of a revenue stream to fund the interest on capital borrowing, and I suspect that that has not been adequately dealt with within the framework.

Amendment 73, which was spoken to by the noble Baroness, Lady Morgan of Ely, seeks to raise the Welsh Government’s capital expenditure limits to £2 billion, in line with other devolved settlements. The arguments on this issue are well rehearsed. We know that, as in many other areas, the UK Government have failed to honour the wording of the Silk commission and have given Wales a settlement that is less than adequate when compared with those of the other devolved nations. Therefore, perhaps I may once again outline precisely what we seek in these amendments.

The independent Silk commission, on which the Minister sat, agreed that the Welsh Government should have borrowing powers comparable to those of their Scottish counterparts. As outlined by the noble Baroness, Lady Morgan, taking into account considerations relating to PFI, this would take us to around £2 billion. As noble Lords will know, the recently agreed fiscal framework, which sits alongside the Bill, is seen by some as making progress on this issue, but under the framework £1 billion will be the Welsh Government’s capital expenditure upper limit. The lead amendment in this group—government Amendment 72A—incorporates this figure into the Bill. However, it is difficult to see how that represents anything like adequate progress. The Welsh Government will be short-changed by £1 billion compared with what they should have, and Plaid Cymru Members, both in another place and in the Assembly—regard this as totally unacceptable.

Although the parsimony of the UK Government on this matter is staggering, I am afraid that some of the blame must be laid at the door of the Government of Wales. If the noble Baroness, Lady Morgan of Ely, who spoke to the amendment, really believes in what it says—that the limit should be £2 billion—why did her Labour colleagues in the Assembly settle on the figure in the fiscal framework? Surely we should be fighting for £2 billion from the Assembly end as well.

That said, I shall conclude my remarks on this amendment by highlighting some rather remarkable comments made by the Minister on Report. He urged us not to push an identical amendment to a vote on the basis that,

“we do not want to constrain the figure in case the discussions lead to it going higher than that”.—[Official Report, 7/11/16; col. 927.]

Was the Minister deliberately leading us down the garden path, or had he himself been led down that path by Treasury officials promising to write cheques which they knew they would never cash? Perhaps he knew that a higher figure was never going to be delivered as part of the fiscal framework—a carrot that in his heart he knew could not be delivered. If that was the case, it was somewhat reprehensible, although I might say out of character. If he himself had been misled into believing that the money was there, he has surely been put into a totally impossible position. Some explanation is needed and some Treasury heads should roll. However, if he was indeed right that such money was available but the Welsh Government made an inadequate case to secure it, then Wales needs to know. Whichever it was, it seems that Wales will not get the resources it needs to stimulate investment-led economic growth and, compared with Scotland, it is getting second-class treatment.

I now turn to Amendment 74, which stands in my name and concerns the apprenticeship levy. The amendment relates to the devolution of the funds generated through the apprenticeship levy and the way in which it will be implemented. It seeks complete transparency surrounding the levy and how it is rolled out in Wales by making separate provision for the levy in Wales in consultation with the Assembly. We debated this issue in Committee and, although I got the impression that the Minister recognised that there were some problems, particularly in cross-border circumstances, he does not appear to have brought forward any proposals to tackle the issue. The amendment seeks greater clarity regarding the implementation of the levy in Wales and how the Government intend to work with the Assembly to ensure that this tax, which straddles not only national boundaries, but also both devolved and non-devolved areas of policy, works in practice. Greater clarity is essential so that the levy works effectively in both countries to provide high-quality, effective apprenticeships.

I am grateful to the noble Lord, Lord Bourne, for his letter, which he sent to all noble Lords on 14 November, attempting to shed some light on the Treasury’s intentions. This confirmed that the agreement would,

“provide the devolved Administrations with a population share of the Office for Budget Responsibility’s latest apprenticeship levy forecast”,

meaning that the Welsh Government will receive £128 million in 2017-18, £133 million in 2018-19 and £138 million in 2019-20.

“Beyond 2019-20, once the levy is embedded, the normal operation of the Barnett Formula should provide a similar outcome”.

It went on to say that the Welsh Government would then,

“decide how to allocate this funding to their devolved responsibilities”.

I thank the noble Lord for this note confirming the Treasury’s intentions, although this has left it rather late for the Assembly to consult widely and to formulate an apprenticeship policy in tandem with the commencement of the charges being imposed on organisations when it comes into force in April.

However, in the previous debate, the noble Lord, Lord Bourne, when questioned regarding the Barnettisation of the levy to Wales, conceded that he was,

“not sure that Barnett would present the right answer”.—[Official Report, 7/11/16; col. 904.]

If the intention of the levy is for companies to be able to “get out” what they “put in”, then this should have been communicated from the start. Now we are left in a position where organisations in Wales are waiting for the Welsh Government to play catch-up and announce how they intend to allocate their revenue in a race against time before April. Due to this lack of communication, several organisations in Wales which will be eligible to pay the levy are still in doubt as to whether or how they will benefit from the levy. There is a danger that some organisations may wish to relocate their training operations over the border to England, where they may have greater certainty and where they will be more certain of securing direct benefit from the levy that they pay.

I acknowledge that some of the blame lies at the other end of the M4, with Ministers in the Welsh Government dragging their feet as to how they intend to use the funds. In a letter to the Assembly’s chair of the Economy, Infrastructure and Skills Committee in November 2016, the Welsh Retail Consortium expressed concern that,

“Levy-payers in Wales will not have any opportunity to see a direct return from their contribution to the Apprenticeship Levy”.

The consortium contrasts the situation in Wales with that in Scotland, where the Scottish Government have consulted extensively with stakeholders, whereas the Welsh Government have given very few assurances. It is clear that the UK Government are introducing legislation that has been England-centric in its planning and implementation and as the noble Lord, Lord Rowlands, eloquently put it during the last debate,

“This levy has added confusion and uncertainty, and sadly is a terrible example of a non-consultation with devolved Administrations on issues that are fundamental to such Administrations”.—[Official Report, 7/11/16; col. 903.]

I hope that our experience with this levy will serve as a salutary lesson about the need to formulate clear and distinct devolution, where it is transparently clear as to where responsibility lies and not to be fudged, as in this instance. This half-devolved, half-reserved policy is an example of how the UK Government should not conduct their business in future.

Finally, I turn briefly to Amendment 80 on air passenger duty. I support Amendment 80, which is tabled in my name and the names of the noble Baroness, Lady Randerson—I am not sure whether she will be moving it—the noble Lord, Lord Rowe-Beddoe, who as I understand is indisposed and unable to take part in this debate which is so close to his heart, and the noble Baroness, Lady Finlay, who I am glad is here with me to support it. On the third day in Committee, we had a vigorous debate on this issue, in which an amendment previously tabled by my party colleagues in the other place was moved by the noble Lord, Lord Rowe-Beddoe. I am glad to see that he has put his name to this slightly narrower amendment. I say narrower because, whereas the previously tabled amendment on APD sought to devolve the whole tax, this amendment, as the noble Baroness, Lady Morgan, stated, would devolve powers over air passenger duty only for long-haul flights. Although I would like to see power over the whole tax devolved, as is the case in Scotland, I can appreciate that this narrower form of devolution for APD was the recommendation of the Silk commission.

--- Later in debate ---

If we do not receive assurances on this issue from the Minister, I advise him that we will be moving that amendment to a vote. I respectfully ask him to reconsider his attitude towards all the amendments that we are proposing but towards this one in particular to avoid a constitutional punch-up—something that we are all anxious to avoid.

[Lord Wigley]

My Lords, we are again dealing with a very disparate group of amendments. Amendments 76 and 77, which stand in my name, seek to ensure that the National Assembly can continue to legislate on ancillary matters. My amendments have a similar objective to that of the amendments tabled by the noble Baroness, Lady Morgan of Ely, about which she has just spoken and which I certainly support. They are based on amendments recommended by the National Assembly Llywydd, or Presiding Officer, Elin Jones. In Committee similar amendments were tabled and forcefully supported by the former Assembly Llywydd, my noble friend Lord Elis-Thomas.

This is undoubtedly a hugely complex, intricate and fundamentally confusing area of legislation. It is so confusing that, as was outlined earlier, we have seen a whole range of answers from a variety of Government Ministers on the issue. In the Commons, my colleagues were initially told that including a provision to legislate in an ancillary fashion would,

“drive a coach and horses through the key principle underpinning the new model”.—[Official Report, Commons, Wales Bill Committee, 11/7/16; col. 87.]

Later they were told that their amendments were simply not needed as they were already provided for.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I thank all noble Lords who participated in the discussion on these amendments. I will begin with Amendments 75 to 77 and 79, which seek to broaden the circumstances in which the Assembly could legislate in relation to reserved matters. I will first deal with an issue that was raised by the noble Lord, Lord Wigley, concerning the phrase,

“ancillary to a provision of any Act”.

I took him to mean that this was not provided for in the Bill. It is in fact expressly provided for in Clause 3, in subsections (3)(a) and (b) of new Section 108A. It says,

“subsection (2)(b) does not apply to a provision that —

(a) is ancillary to a provision of any Act of the Assembly or Assembly Measure or to a devolved provision of an Act of Parliament, and

(b) has no greater effect otherwise than in relation to Wales, or in relation to functions exercisable otherwise than in relation to Wales, than is necessary to give effect to the purpose of that provision”.

So there is express provision in relation to “ancillary to” and how that would operate, and I hope he finds that of some comfort.

[Lord Wigley]

I am grateful to the Minister. He will see that my amendment in fact applies to subsection (2)(c) of new Section 108A, in Clause 3, and therefore extends the provision.

Wales Bill

Lord Wigley Excerpts

Report: 2nd sitting (Hansard continued): House of Lords
Tuesday 10th January 2017 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, the first amendment in this group, Amendment 106A, is a technical one. It responds to a concern raised by the Welsh Government about the way in which the restrictions on the Assembly legislating on reserved authorities in paragraph 8(1) of new Schedule 7B apply to the seven reserved authorities listed in paragraph 9 of the new schedule.

The Assembly is prohibited from legislating to confer or impose functions on a reserved authority without consent by virtue of paragraph 8(1)(a), and from legislating to confer or impose functions that are specifically exercisable in relation to a reserved authority without consent by paragraph 8(1)(c). Paragraph 9(2) excepts a small number of reserved authorities from the paragraph 8(1)(a) restriction, but there is no similar exception in relation to paragraph 8(1)(c). That could create an anomalous situation where the Assembly could impose functions in devolved areas on any of the authorities listed in paragraph 9(2), but could confer a power on Welsh Ministers to do so only with consent.

To think of a tangible example, the Assembly could confer on Welsh Ministers a power to issue guidance to any of the seven reserved authorities listed in paragraph 9. The authority would be subject to a duty to have regard to any such guidance when exercising its devolved functions. As the Bill stands, the ministerial consent requirement would not apply to the provision in so far as it concerns the duty on the reserved authority to have regard to the guidance. But the ministerial consent requirement would apply to the provision in so far as it concerns the conferring of a power on Welsh Ministers to issue the guidance. The effect of the amendment is that the requirement for UK ministerial consent does not apply if the relevant provision has the effects described in both paragraphs 8(1)(a) and 8(1)(c) of new Schedule 7B. Following our example, the Assembly would not require consent to create a power for Welsh Ministers to issue guidance to an authority listed in paragraph 9 or create a duty on such an authority to have regard to the guidance.

Government Amendments 136 to 141 extend the application of paragraph 6 of Schedule 7 to a public authority. Paragraph 6 currently preserves the validity of, and provides continuity for, actions taken by a Minister of the Crown in respect of functions which are transferred to Welsh Ministers by the Bill. This includes actions taken by a public authority exercising delegated functions of a Minister of the Crown. However, there are functions currently conferred directly on rather than delegated to public authorities such as the Oil and Gas Authority and the Marine Management Organisation which are being transferred to the Welsh Ministers in the Bill. Such functions are not currently covered by paragraph 6. At the point of transfer of these functions to the Welsh Ministers, there may be actions in progress which will need to be continued and completed post-transfer. The amendments made to paragraph 6 preserve the validity of actions taken by a public authority before the date of transfer and provide continuity for anything that is in the process of being done by a public authority at that point.

I look forward to hearing from the noble Baroness, Lady Morgan, and the noble Lord, Lord Wigley, on their amendments in this group. I beg to move.

[Lord Wigley (PC)]

My Lords, I listened with great interest to the rationale given by the Minister. I will need to read it again in Hansard to comprehend it fully, but I am sure that it does what he hopes it does.

My Amendment 108 was tabled following concerns expressed to us by the Welsh Language Commissioner, Meri Huws, regarding the Bill’s potential effect on the National Assembly’s power to legislate on matters pertaining to the Welsh language. It was raised in Committee, but I am concerned that there appears to be a lack of appreciation of the points put to us by the commissioner, and which have been addressed by the amendments put forward by my colleagues in Plaid Cymru. The commissioner herself is frustrated that the Government do not seem to have engaged with the substance of the case, which she has made to them as well as to us.

The possible effect of Schedule 2 to the Bill is that, when the National Assembly wishes to legislate for the Welsh language, it will require the consent of the relevant UK Minister to confer, impose, modify or remove within that legislation the Welsh language functions of Ministers of the Crown, government departments and other reserved authorities. Under the current settlement, ministerial consent is required only when legislating to impose Welsh language functions on Ministers of the Crown. The ministerial consent provisions of the Wales Bill in relation to the Welsh language apply to a wider range of persons than is currently the case. The new legislation is therefore more restrictive on the Assembly’s powers than is the status quo and this represents a retrograde step.

Let us consider a practical example. The Welsh Language Commissioner is already engaged in the statutory processes that would result in placing a duty on bodies such as Her Majesty’s Revenue & Customs, the Crown Prosecution Service, Ofcom and the BBC to adopt Welsh language standards. This amendment removes the requirement for ministerial consent for Acts of the Assembly affecting functions of reserved authorities, public authorities and Ministers in circumstances where the Act of the Assembly relates to a Welsh language function. I am sure that the House will agree that such a provision is fair and reasonable, given that the Welsh language is quintessentially a devolved issue. Allowing Ministers and public authorities based outside Wales to second-guess National Assembly policy on the Welsh language in Wales, a policy area on which they have little if any informed opinion, is a formula for acrimony and dispute and would reopen language tensions which have abated to a significant extent over recent years.

In the House of Commons debate on the Bill, the Government claimed to offer some clarity and reassurance on the issue by saying that there is nothing in the Bill which affects the Welsh language retrospectively, and that of course is true. However, the Minister went on to confirm that if a future Welsh language measure were to be proposed, it would have the effect which we have pinpointed. Consent would be required to add new public authorities other than Wales public authorities. It would therefore affect any future Welsh language legislation applicable to those areas. The Minister’s words offered no reassurance or indeed any justification as to why this Bill should include such a retrograde step.

A briefing paper produced by the National Assembly for Wales research service confirms our fears and outlines that, under the Bill as it currently stands, there will be a loss of legislative power relating to the Welsh Language (Wales) Measure 2011. My colleagues in the National Assembly are furious about this, and it is not only Plaid Cymru AMs who feel strongly about the matter. I shall quote from that briefing paper: “Part 4 of the Welsh language measure allows Welsh language standards to be imposed upon public bodies. Some of the bodies captured by Part 4 would be reserved authorities under the Wales Bill. This means that UK Government consent would be needed before Welsh language standards could be imposed upon them”. There is a consensus that this is yet another blatant rollback and a significant reduction in the ability of the National Assembly for Wales to be able to legislate on its own language—a subject matter that is, for very obvious reasons, devolved.

Perhaps I may say in conclusion that on item after item that we have raised today, including the industrial relations amendment moved earlier by the noble Lord, Lord Hain, and lost in a tied vote, the Government have not been willing to move one inch to reduce the powers rollback being instituted by this Bill. The Bill started its passage with a lot of good will, in the belief that the Government would seek to find common ground. Failure to do so has led to a growing bitterness across the parties, which I greatly regret. I urge the Minister to reconsider the Government’s position even at this late stage and to rid the Bill of this devolution rollback and to accept our amendment today, even if they need to amend it themselves when the Bill returns to the Commons.

[Baroness Morgan of Ely (Lab)]

My Lords, my Amendment 109 provides for the transfer of all functions currently exercisable by Ministers of the Crown—UK Government Ministers—in relation to areas which are within the devolved legislative competence of the Welsh Government to be transferred to Welsh Government Ministers. Let me start by saying that, given the Government’s intention of producing a Bill that will provide clarity and coherence to the Welsh devolution settlement, it is difficult to understand why such a simple provision as the alignment of executive and legislative competence has not been included.

In providing evidence to the Silk commission, the Welsh Government made clear that a move to a reserved powers model should be accompanied by a blanket transfer of all executive functions within the devolved areas. The Silk commission agreed and recommended:

“In order to reduce complexity and increase clarity, we believe that a future Government of Wales Act should include a general transfer to the Welsh Ministers of Minister of Crown functions in devolved … areas”.

I thank the Minister for writing to me and setting out his understanding of the situation and for clarifying the three categories of executive functions. I will start with the area about which I am most concerned: the pre-commencement functions.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, and the noble Baroness, Lady Morgan, for speaking to their amendments, which I shall deal with in turn. I therefore turn first to Amendment 108 tabled in the name of the noble Lord, Lord Wigley. In beginning my response I should say that I did not recognise the caricature of the Government not listening and not responding during the course of this legislation; I think that that was uncharacteristically unfair of the noble Lord. We have listened very carefully and in many areas have given ground, as he himself has previously acknowledged. Perhaps I may also say in opening that we are certainly happy to engage with the Welsh Language Commissioner, Meri Huws, for whom I personally have massive respect. I do not think that we have failed to engage, but if there is any issue that she wants to discuss further, I will be more than happy to talk to her about it.

The amendment seeks to remove the requirement for an appropriate Minister to consent where the Assembly seeks to amend, remove or impose new functions on a reserved authority or a Minister of the Crown where those functions relate to the Welsh language. I think that there is agreement between us on the intent of the clause in the Bill.

Throughout the development of the Bill, we have given careful thought—absolutely correctly—to the Welsh language and taken steps to minimise the effects of the new reserved powers model on the Assembly’s legislative competence for the language, but obviously there are issues in relation to reserved bodies. For example, while paragraph 197 of new Schedule 7A reserves the functions of authorities named or described in that schedule, we have inserted an exception for Welsh language functions in paragraph 199. This means that, under the new model, the Assembly will be able to legislate to confer Welsh-language functions on particular authorities, such as the BBC and police and crime commissioners, as the noble Lord, I think, indicated in his speech, subject to the consent of a Minister of the Crown.

We would anticipate that this is not going to be unreasonably withheld, but I think the noble Lord will understand that, where we have a process of reserving issues, and in relation to every other area, we have a provision that devolved areas are quite distinct, so we need to make provision for the Welsh language to make sure that reserved authorities are not put in an invidious position. The noble Lord’s amendment would cut across one of the underlying core principles of the Bill: the Assembly should not be able to impose burdens on non-devolved bodies without agreement. This goes to the core of the legislation. To add a specific exception to the consent process for the Welsh language would undermine that principle.

The noble Lord is absolutely right in relation to the Welsh Language (Wales) Measure 2011. It does not affect matters that are already settled, but he is right that in so far as there were to be new regulations under the measure, they would be subject to the new provisions of the clause if it is part of subsequent legislation.

[Lord Wigley]

Am I understanding correctly that the Minister is in fact confirming the fact that, compared to the position when the 2011 measure was passed, there is a rollback of powers as far as the Assembly is concerned in relation to imposing Welsh language conditions on such bodies?

[Lord Bourne of Aberystwyth]

My Lords, we are not comparing like with like. There is a significant amount of legislation here that is actually devolving new powers to the National Assembly. As I have indicated, the noble Lord’s analysis of what the legislation is seeking to do is correct; I am not seeking to deny that.

Amendment 109, moved by the noble Baroness, Lady Morgan, again seeks a blanket transfer of pre-commencement Minister of the Crown functions and prerogative functions exercisable in devolved areas to the Welsh Ministers, an issue we debated in Committee. I hope noble Lords have read my letter of 12 December to the noble Baroness which explained the Government’s approach on this issue. This has not changed.

I will give an outline of what happens next, which I think may provide some reassurance to the noble Baroness. In preparing the Bill we have undertaken substantial work with departments across Government to identify the remaining functions exercised by Ministers of the Crown in devolved areas. Noble Lords will appreciate that most such functions have already been transferred by transfer of functions orders made since 1999. In the light of the existing transfer of functions orders and the outcome of this work, we have concluded that the blanket transfer proposed would not deliver the clarity that we are looking to deliver through the Bill. New Schedule 3A to the Government of Wales Act 2006, inserted by Clause 20 of the Bill, sets out the Minister of the Crown functions in devolved areas that will in future be exercised concurrently or jointly with the Welsh Ministers.

A handful of pre-commencement functions will continue to be exercised by a Minister of the Crown solely. These are set out in paragraph 11 of new Schedule 7B. I agreed in Committee to take a further look at these functions, and as a result we have, through Amendments 107B and 107C, narrowed the range of functions in the Marine and Coastal Access Act that require consent for modification. As a corollary to this, in Amendment 114A, we have added some functions under this Act and regulations made under it to the list of functions jointly exercisable by Ministers of the Crown and Welsh Ministers, reflecting the interconnectedness of decision-making in the Welsh zone.

The remaining Minister of the Crown functions in devolved areas will be transferred to Welsh Ministers by order, and we intend to make that order once this Bill has been enacted. I shared a draft list of the functions that will be included in this order with noble Lords before Second Reading, and we are continuing to discuss this list with the Welsh Government so that we can include any further functions that we identify. Any such order will be subject to the affirmative procedure in both Houses of Parliament, so noble Lords will be able to debate the content in more detail at that stage.

Once we have made this order it will be absolutely clear which functions have been transferred to Welsh Ministers, something that a blanket provision would not achieve. In addition, a blanket provision would not provide the benefits of concurrent exercise of some powers—for example, enabling Ministers in both Governments to give grants. I will write to the noble Baroness about the issue she raised concerning Scotland, about which I am uncertain, and copy that to other noble Lords who have participated in the debate.

The amendment also includes prerogative functions in so far as they are exercisable in devolved areas. On examining the range of those functions, we concluded that none applied to devolved matters, and therefore have not acted on that.

The noble Baroness talked about the 35 more functions identified by the Welsh Government. As I said, we are looking at additional functions as identified by the Welsh Government and discussing those with them. We will consider them in light of the order that will need to be made. As I said, this will be subject to debate.

In conclusion, regarding the Welsh language, I am very happy for the Wales Office to engage with Meri Huws and perhaps provide her with more certainty about how this would be carried forward. I can assure the noble Lord, who knows my approach to the Welsh language, that there is no malign intent here at all. The language is central to everything that happens in Wales, and thank goodness it is no longer the party-political football it once was. The Wales Office, as you can imagine, is at the moment very much wedded to that view.

I will endeavour to update the noble Baroness on the Scotland issue, but I will also write to her and to noble Lords more generally about how the discussion with the Welsh Government is going regarding those functions. With that, I ask the noble Lord to withdraw the amendment.

[Lord Bourne of Aberystwyth]

My Lords, I am trying to speculate what the noble Baroness might be finding behind the sofa at that stage. I hope that the process would have delivered most of the important issues, but in so far as something is discovered later on, I am sure we will be able to engage with the noble Baroness—or whoever else discovers it behind the sofa—and come to some measure of agreement. It is difficult to anticipate what that issue would be, but if it clearly should be the subject of an order, then I do not see any problem.

[Lord Wigley]

If in fact there is something that has not been foreseen, do we have the order-making facility that can cover matters that have not been specified in the Bill?

[Lord Bourne of Aberystwyth]

My Lords, I am not sure whether the noble Lord is referring to the specific order that would come forward, in which case there would be the ability—subject to affirmative procedure, presumably—to withhold consent, unless we were in listening mode, if that should happen in an extreme position. But if it happens after that procedure, as I have indicated to the noble Baroness, I would be very happy to engage and discuss how we could deal with that. I am uncertain whether there is a particular procedure, but I would anticipate that there is. There must be a way to transfer functions by order, which we have done during the course of successive Governments. So I think the procedure is there, and if I can give that undertaking, I am very happy to do so.

--- Later in debate ---

Moved by

[Lord Wigley]

146: Clause 62, page 50, line 32, at end insert—
“ Before making regulations under this subsection, the Secretary of State must consult the Welsh Ministers and the Presiding Officer of the National Assembly for Wales.”

[Lord Wigley]

My Lords, this is the last amendment on our list today, Amendment 146 in my name, which seeks to ensure that UK Ministers may use regulations to commence a number of provisions of the Bill only after consultation with Welsh Ministers and the Presiding Office of the National Assembly for Wales. Incidentally, harking back to what we were talking about a moment ago, order-making capacity, I understand that unless there is a specific order-making capacity in primary legislation it is not possible to bring forward orders. However, we can look at that outside the Chamber.

From the outset, I concede that this amendment would not, in isolation, achieve what I am seeking to do. It is, broadly speaking, part of a series of amendments that I have tabled at earlier stages, which aim to stop UK Ministers riding roughshod over the National Assembly for Wales by using secondary legislation to commence, amend or repeal legislation affecting our national Parliament without its consent. It is that question of establishing a system of prior consent that is central to this amendment.

The issue that triggered my concerns, and the concerns of many Peers across these Benches, was the inclusion of Henry VIII powers within this Bill. Since the Minister has felt the full force of the former Chief Justice of England and Wales, the noble and learned Lord, Lord Judge, not once but twice on this issue, I know that he is well aware of the arguments. I will therefore keep my comments on this matter to a minimum. However, I want to use the amendment to call on the Minister to hold true to his word, and the word of his colleagues, to create a permanent devolution settlement, which means that the democratic Parliament of Wales in Cardiff Bay has the absolute authority over the laws that it makes.

I shall not press the amendment to a vote, but I remind the Minister of the comments made regarding Henry VIII powers in our previous debate. In particular, I remind him of the response of the noble and learned Lord, Lord Judge, to the Minister’s two assurances—that any regulations would be discussed by officials well in advance of coming into force and that the Secretary of State would write to the First Minister and Presiding Officer notifying them of the intention to bring forward regulations. Undoubtedly, these are welcome concessions, although they will not appear in the Bill. However, this Bill, in the Government’s own words, is meant to be about creating a clear, working, legal settlement between two Parliaments. As the noble and learned Lord, Lord Judge, noted during our last debate, the Minister’s so-called solutions to our concerns regarding Henry VIII powers are,

“legally ... completely irrelevant”.—[Official Report, 14/12/16; col. 1350.]

I shall shortly ask leave to withdraw this amendment but, before doing so, I ask the Minister to consider once again removing or amending all clauses in this Bill which allow Westminster to take steps that can be interpreted as riding roughshod over the democratically elected Parliament of Wales—in other words, the need for consent, discussion and agreement prior to using powers that can have quite a draconian effect. I beg to move.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for moving the last amendment for business today. First, on the point that he made in relation to orders, I believe that there is an order-making power in Section 58 of the Government of Wales Act 2006 that can be used—but I shall cover that in writing to noble Lords if I might, because there are a variety of issues on which I want to write to noble Lords.

I understand the point that the noble Lord made on the need for partnership working between the two Governments, which, if I may say so, has been exemplified in relation to the fiscal framework, where there has been a very successful partnership which may have confounded expectations. But yes, of course, we need to extend that across the piece so that it does not apply just in relation to that issue, important though it is. It needs to be done on a broader front. The other point is, when we have had parties of different political complexions in government here and in Wales, it has been illustrative of the fact that we have been able to move things forward in a demonstrable way—not always agreeing on everything, clearly, but agreeing on an awful lot, and the way forward in relation to the legislation.

I take to heart very much what the noble Lord said about Henry VIII powers, which certainly need to be limited in scope. I think that the noble and learned Lord, Lord Judge, said that it was politically astute but legally not worth the paper that it was going to be written on, to be absolutely fair. That was his judgment—and of course he has great authority and knowledge on these matters, as I regularly acknowledge.

The amendment seeks to require the Secretary of State to consult the Welsh Ministers and the Assembly’s Presiding Officer before making regulations to commence provisions under Clause 62(4). Clause 62 provides for those provisions which need to be brought into force quickly after the Act is passed to come into force on the day the Act is passed, through subsection (1), or two months after it is passed, through subsection (2). The Assembly will, for example, early on, if it wants to do so, be able to change its name at any time after two months from Royal Assent.

Of course, Clause 62(3) already imposes a duty, which the noble Lord did not mention, on the Secretary of State to consult the Welsh Ministers and the Assembly’s Presiding Officer before commencing the new reserved powers model—that is already in the clause—on the “principal appointed day”. That is already there and of course there are good reasons for that. The new devolution model will fundamentally alter the landscape within which the Welsh Government make policy and the Assembly makes legislation. It will require policymakers and legislators to get to grips with a new settlement, framed in a very different way from the current one. It is only right, therefore, that the Bill places a statutory duty on the Secretary of State to consult both the First Minister and the Presiding Officer before bringing the new model into force.

For other provisions in the Bill, we will of course work closely with the Welsh Government, as we are doing, and the Assembly Commission to ensure that the transition is as smooth as possible as the Assembly takes on the important new powers that the Bill will deliver. Of course, the majority of these provisions devolve further powers to the Assembly and Welsh Ministers and are intrinsically linked to the new reserved powers model. I anticipate—although clearly this will be subject to discussion with the Welsh Government—that most if not all of them, other than those limited ones I have indicated, will come into force on the same day as the reserved powers model. But that is a matter for discussion.

I believe that a separate consultation on the commencement of these provisions would be unnecessary as it is something that is either provided for, as it is in relation to the important issue of reserved powers, or will be included in that discussion in practice between the two separate Governments as things progress. On that basis I ask the noble Lord, Lord Wigley, to withdraw his amendment.

[Lord Wigley]

My Lords, I am grateful to the Minister for that considered response. I accept entirely that there are broad-brush consultation provisions in the Bill for when the first steps are taken to bring in the new order that will follow the Bill coming into force. There will, however, be cases that arise from time to time when new orders are forthcoming and when there will be a necessity for there to be at least a notification—I hope there will be a consultation—before that happens. I hope, therefore, that in the initial consultation to which the Minister referred a moment ago, there might be established a procedure—a protocol, if you like—for the way in which such orders will be handled in future, and, built into that procedure, an agreement that there will be advance warning and consultation and that views can be taken on board. That would be a very helpful move forward. Having said that—I note that the Minister is thinking carefully about it, judging by the look on his face, and I will be very grateful if he does—on that basis I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

Wales Bill

Lord Wigley Excerpts

3rd reading (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

I say once more that the Bill before us meets the Government’s ambition for a lasting devolution settlement for Wales. In our opinion, the clearer, fairer and stronger settlement for Wales delivered by this Bill, and supported by the National Assembly, will bring about a new era of mature devolved governance in Wales. I once again thank noble Lords and noble Baronesses for the constructive manner in which they have scrutinised the Bill. It returns to the other place for consideration of our amendments in finer fettle as a result.

[Lord Wigley (PC)]

My Lords, I wish to say a few words as we reach the end of the Bill’s passage through the House. Before I do, I have one question for the Minister on the amendments to which he has just spoken with regard to electricity. Will the changes that he has made have any effect whatever on the Swansea Bay project that is going forward? I hope that he will respond to that point.

We have given the Bill considerable scrutiny over recent weeks, which has led to some welcome adjustments but has also focused attention on many issues that we regard as missed opportunities. We feel that the opportunity to enact the carefully balanced Silk package as a whole has been partly lost because of the way it has been approached. The Bill is consequently a bit of a parson’s egg and, as the Minister knows, the reaction in the National Assembly reflects that.

[Lord Elis-Thomas (Non-Afl)]

I think that it is a curate’s egg. I am a Welsh Anglican; I know these things.

[Baroness Warwick of Undercliffe (Lab)]

It is a parson’s nose.

[Lord Wigley]

My noble friend is of course far better versed than I am in these matters. It may well be, as the noble Baroness suggests, that the parson’s nose is coming to the fore in my consideration of some of the more controversial aspects of the Bill.

As the Minister knows, the Plaid Cymru group in the Assembly voted against the legislative consent Motion yesterday, for the simple reason that the Assembly is losing some powers, as we noted in a number of debates in the Chamber in Committee and on Report. Some of those powers may well have been assumed or unclear, but none the less they were used, some for substantive pieces of legislation. The existing legislative powers of the Assembly were endorsed by a 2:1 majority in a referendum in Wales in 2011 and some of the powers implicit in that vote are now being retracted. Some of the legislation enacted by the Assembly since that referendum was made using powers that will no longer be available to the National Assembly when the Bill becomes law. That is a perfectly valid basis on which to register a protest vote, as the Plaid Cymru group did in the Assembly yesterday. None the less, I hope that the Government of Wales will make full use of the powers now available to them under the Bill.

Sadly, the Bill does not provide the long-term settlement to which the Minister referred. No doubt in the fullness of time another Wales Bill will clear the uncertainties left by this Bill and address the issues, many covered by the Silk report, that were avoided in this Bill. Undoubtedly, for example, the devolution of police, prisons and justice will drive that demand, as well as more coherent powers over energy. By the way, I noted something that did not come to the fore during our early debates: the Home Office, which was then under Theresa May as Home Secretary, failed to give evidence to the Silk commission on these matters. I am sure that the Minister will recall that from his work on that committee. A whole new debate will arise, post-Brexit, on financial levers and further tax-varying powers.

Finally, I will say a word of tribute to the noble Lord, Lord Bourne, for the way in which he has conducted the passage of the Bill. His has been a stalwart performance—single-handed most of the time—and we admire the way in which he has kept on top of his brief throughout, although at times we disagreed with that brief. His experience, both as a key member of the Silk commission and a former party leader in the National Assembly, undoubtedly stood him in good stead in this matter. Many of us feel that there were times when he had to defend a government line when, in a previous incarnation, he may well have taken a different line. None the less, I hope that he will be recognised by his colleagues for the work that he has done and I hope that they will take note in future of the advice that he gives on matters relating to Wales. I hope that the Bill will help to the extent that that is possible within its limitations. I therefore wish well those who will live within the framework that is now being enacted.

[Lord Hain (Lab)]

My Lords, I echo the remarks of the noble Lord in thanking the Minister for the way in which he has handled the Bill. Its passage would have been a lot bumpier without his conciliatory approach. I also echo what he said about his officials, including the excellent Geth Williams, who once had the dubious privilege of working for me. I am glad that he survived to serve on the Bill, although what he makes of the dog’s breakfast that it serves up we will never know, his being a professional civil servant.

Finally, I appeal to the Minister. In the light of the Division on the question of employment and industrial relations last week, on which there was a tied vote, I have said to him privately and I repeat publicly that there is a way in which the Government could, even at this late stage, when the Bill goes back to the Commons, bring forward an amendment to tweak the amendment that was moved. As I said, there was a tied vote in the Lords last week. He could do that in a way in which the Government could overcome their reservations and satisfy everybody concerned. He will know that the Assembly has since voted on a Bill in this area. The issue is on its way to the Supreme Court. He can avoid that. It is not too late.