Welsh Assembly Legislation (Attorney-General)
(10 years, 6 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Paul Flynn (Newport West) (Lab)
I am extremely grateful to the Conservative party. Because of the social event that Conservative Members are attending tonight, it managed to engineer a little under two hours for me to make the important points that I wish to make, which is just about adequate time.
We have a Government who are Janus-faced on a vital issue. I had the pleasure last Thursday of listening to the new Minister of State, Cabinet Office, the right hon. Member for Tunbridge Wells (Greg Clark), talking about his view of the principle of devolution. He is the one that is facing forward, but I believe there is another face to this Janus. Lurking in the Attorney-General’s Office is a little nest of devolution deniers who are doing great damage.
The Minister of State said last week:
“This has been something that, as you know, I have always been passionate about. Way back in Opposition, I wrote books on the need to transfer power from the centre to the places in our country. As you probably know, I am Middlesbrough born and bred, and the founders of the infant Hercules did not need to ask permission from central government to grow and prosper. I think we need to get back to the spirit of people, the leaders of our cities, towns and counties across the country, feeling that they have the right to initiate policies, do things differently, and have greater control of financial resources.”
Hallelujah. Amen to that.
But what has happened in Wales has been extraordinary. We have seen the other face of Janus that is looking backwards. That is where the devolution denial is coming from. The Attorney-General’s Office is suffering from an acute case of CPR—it is chronically power retentive in an era of devolution. This is not something that has come about as party propaganda. We have had votes on this. We have been through the whole process. We had a referendum to get devolution in Wales and we had a referendum to get greater powers.
I speak with some pedigree on this because I can fondly recall the day in 1953 when I marched through Cardiff with people from several parties. I had a Labour party banner that said “Senedd i Gymru”, “a Parliament for Wales”. It did not say, “hanner Senedd i Gymru”. It did not say, “LCOs i’r bobl”. It did not say, “half-baked policies that can be shredded by a national Government.” It said, “a Parliament for Wales”. We still do not have one, sadly. We have a form of democracy, but it is not tax-raising and the limited powers that it has for passing laws have been frustrated at every turn.
Mr Peter Hain (Neath) (Lab)
Does my hon. Friend recall also, on that theme, that in 1994 he and I and Jon Owen Jones, a former Member for Cardiff, Central, were censured by the Welsh Executive for speaking as Labour MPs at a conference in Llandrindod Wells for a Parliament for Wales?
Paul Flynn
I remember it vividly. It was a painful experience but one that resulted in promotion to Cabinet rank for my right hon. Friend. I saw the former hon. Member for Cardiff, Central today. At that time it meant challenging some of the views of the Labour party in Wales, which were not always progressive.
We got to the stage where Wales had the chance to make laws on its own soil, not for the first time in history, but for the first time in 1,000 years. Laws were made by Hywel Dda between 942 and 950, and they were very progressive. One stated that if a wife caught her husband in bed with another woman for the third time, she could divorce him and get compensation for the previous two occasions. Women had the right to own land, which was progressive in 942. There was also a law—it is rather better than the bedroom tax and other measures we have now—stating that if a person had passed through three villages asking for food but not been fed, he or she could not be punished for stealing food. That was progressive Welsh legislation, and it should have inspired the Government to realise that, as the great Welsh proverb states: Hawdd cynnau tân ar hen aelwyd—it is easy to kindle a fire on an old hearth. The old hearth was there, because we were law-makers in the past, and good law-makers at that.
Boldly the Welsh Assembly Government put forward their first law, which had the romantic title of the Local Government Byelaws (Wales) Bill. They took it through the Assembly and it became an Act. One would not have expected it to cause an enormous amount of excitement, because it just cleared up a few other laws to allow local government to pass their own byelaws, which they have been doing without trouble for a long time. There was no hesitation and no excitement, but for some reason—I am sure that the Solicitor-General will explain it when he replies—that modest Bill, the first for 1,000 years to bear the royal Welsh seal, which made it significant, even if its content was not, was opposed by the Attorney-General’s office.
Huw Irranca-Davies (Ogmore) (Lab)
My hon. Friend might want to recollect that before that we had the procedure for legislative competence orders, which he has referred to. The first one I dealt with, along with my right hon. Friend the Member for Neath (Mr Hain), was the LCO on red meat. Although it was delayed, subject to parliamentary scrutiny that was a little over-onerous, we did not delay the red meat LCO too long, because otherwise it would have gone off.
Paul Flynn
Yes, it was a difficult period when we had the LCOs, which were a new legislative monstrosity that we were stuck with and that puzzled us, but as a result of certain ingenuity they did mean that some sort of law was made in Wales, even if in a cack-handed manner. They are now a footnote in history.
The Local Government Byelaws (Wales) Bill went through because it was uncontroversial, and there was a little bit of ceremony because we were proud to be making laws in the land of our own country for the first time in more than 1,000 years. Why on earth was it opposed? The First Minister called it a
“ridiculous situation that has arisen on what is a totally uncontroversial piece of legislation…The primary policy objective of the Bill is to simplify and rationalise how local authorities make byelaws to deal with nuisances in their areas…So why the UK government has decided to take this to the Supreme Court, at the last minute, is inexplicable.”
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
My hon. Friend is making a strong case about the first law, which was very historic, as he mentioned. Did he share my surprise, along with other members of the Welsh Affairs Committee, that the Secretary of State, and apparently the Attorney-General’s office, did not even seem aware of the cost to the taxpayer of referring that very modest measure to the Supreme Court?
Paul Flynn
I am glad that my hon. Friend has intervened, because I can remind him of the costs that the Government seemed indifferent to. The legal cost of the Treasury Solicitor’s Department for representing the Attorney-General in relation to the Bill was £59,000.
Paul Flynn
Absolutely. We could have saved lots of the bedroom tax if this had not been done. The legal cost incurred by the Welsh Government was £30,000, and about £15,000 was spent on civil service time in the Wales Office. The total bill was £150,000. Why? Because some pernickety piffle artist in the Attorney-General’s office was trying to make some kind of stand against devolution. He went through the might of the High Court. Five judges were there, looking dignified and wise in their wigs. The total number of judges who agreed with the Government was zero. It was a unanimous vote that this was a frivolous intervention.
The Solicitor-General (Oliver Heald)
While following the very excited way in which the hon. Gentleman is putting his case, I cannot let him get him get away with that, because the Court made it clear that it was a perfectly justifiable application, and in fact it clarified the law in an important way.
Mr Hain
I am not sure that it is entirely fair for my hon. Friend to put all the blame on officials in the Attorney-General’s office in the way that he graphically described, because it was the Secretary of State in the Wales Office who referred the matter to the Attorney-General. As the then Secretary of State, I was the author of the Government of Wales Act 2006, under which this process took place. I can tell my hon. Friend, and the House, that in no way was that Act drafted and designed to allow for this situation to occur. The drafting of the relevant clause dealt with cross-border issues where there were questions, for example, about rivers that flowed across the border or other environmental concerns about which there might be disputes after a Wales Act had been passed by the UK Government in Westminster. There needed to be a reserve power by which the Secretary of State for Wales could clarify or tidy up anything that resulted from such a cross-border issue. It was never intended to allow the Secretary of State to ride roughshod over the devolution settlement and veto what the Welsh Assembly had decided.
Paul Flynn
I am very grateful to my right hon. Friend for his expert view on this.
Another Bill was then presented by the Welsh Assembly.
Huw Irranca-Davies
Before my hon. Friend continues on to another Bill, may I suggest that there might be an interpretation of what justified the Westminster intervention and challenge on this? It is as simple as this: for local government, a devolved area in Wales, read England.
Paul Flynn
Absolutely. This is part of the long history of the neglect of Wales and the undervaluing of Welsh life by the British Government over the years that now has a chance of being corrected.
A Bill about the Welsh language was proposed that offered equal status to the two languages. While there were quibbles from the national Government about this, they did not take it to the High Court. We now have a farm workers wages Bill—a splendid Bill in many ways—that has had great support even from the farm unions in Wales. That is because there are farm wages boards in Scotland and in Northern Ireland, and the Bill tried to get the board continued in Wales. Farm workers along the borders in Wales are already exposed to market forces and do not have the protection that the 13,000 farm workers in Wales have. The Agricultural Wages Board set pay rates that gave a modest amount of protection to farm workers, whose wages have never been generous and were hardly generous under the Bill, but are certainly exposed to greater cuts now.
The UK Government warned that there were important questions for the Supreme Court to resolve as to whether the Assembly acted within its powers on that matter. Yet whatever powers the Welsh Assembly got, they certainly included agriculture. There is no question about that, because it was the decision of this House under the Acts that were passed here. However, for some twisted reason the Government decided that this was to do with employment, and by that chicanery challenged the Bill.
Huw Irranca-Davies
Does my hon. Friend share my shock at the fact that the Welsh Government Minister, Alun Davies, had repeatedly made it clear to the Secretary of State for Environment, Food and Rural Affairs that he wanted to carve a different path in Wales and was simply seeking a dispensation in order to do that, and yet he was told, “No, we will abolish the whole structure of the Agricultural Wages Board and then fight the battle over whether you can reinstate something that looks like it”? What sort of respect for devolution is that?
Paul Flynn
My hon. Friend gives a splendid example. This is the reverse of devolution, the very opposite of what the new Minister of State at the Cabinet Office said the other day about local opinion and good ideas. Wales has a stronger case for an Agricultural Wages Board, perhaps, than many parts of England, so we should be able to make a different decision, but the Government object.
Paul Murphy (Torfaen) (Lab)
I congratulate my hon. Friend on securing the debate. Should it not be the case—it certainly was when I was Welsh Secretary—that disputes between devolved Administrations and the United Kingdom Government should be resolved at a governmental and political level, and that they should never get to a stage where they are resolved by the courts?
Paul Flynn
That is absolutely right. Leaving decisions to the courts and depending on expensive silks is no way to run devolved Assemblies or national Governments.
A Bill on recovering NHS costs for asbestos treatment is also of great value. It went through the Assembly over the summer and is at an advanced stage. The first people to have their lives destroyed by negligent employers, or by defects in the health service with which they were provided, have suffered—it is a terrible, crippling disease—and they will be entitled to compensation from those who were responsible for causing the problem. What is wrong with that? The Bill has not been finally resolved, but if there is a problem with such Bills, surely the two authorities should discuss and resolve it.
Nia Griffith (Llanelli) (Lab)
Does my hon. Friend agree that that Bill is important because it will recover money for the health service, which is a very worthwhile thing to do? One would have thought there would be support for that across the whole of the UK.
Paul Flynn
That is absolutely right. The main part of the Bill is to get money back for the health service from the negligent people who allowed diseases to take hold. Many of the unfortunate people affected by asbestosis in Wales worked in industry.
Tied to all this is the Government’s view of devolution. The Silk commission reported after a referendum that measured popular opinion in Wales. We know that the Tories have always had trouble with devolution. They were very much against it in 1994 when, as my right hon. Friend the Member for Neath (Mr Hain) has said, three of us were disciplined by the Labour party in Wales. Only one of their candidates in the first Assembly was elected by first past the post, while a few others came in through the assisted places scheme.
Mrs Siân C. James (Swansea East) (Lab)
I congratulate my hon. Friend on securing this debate. We are still awaiting the latest information on the findings of the Silk commission. Devolution delivers the things we need for the people of Wales—Welsh solutions to Welsh problems—and yet we cannot seem to prise that information out of the Government. It is a great shame that we cannot make progress at the pace that the communities and citizens of Wales want when we are putting all this time and effort into good governance.
Paul Flynn
My hon. Friend expresses very well the position we are in now. The Silk commission, after an exhaustive inquiry, made certain recommendations. We were promised that the Government would reply in the spring, then the summer, then the late summer and then the early autumn, but when will they actually respond? Carwyn Jones rightly said over the weekend that this is a major problem. An urgent bypass is required in Gwent and other constituencies that suffer continual traffic congestion, such as that of my right hon. Friend the Member for Torfaen (Paul Murphy), in order to find an alternative route for the M4. As Carwyn Jones said, the situation is frozen. The Welsh Government cannot move forward until there is a response to the Silk commission and action is taken on that.
In a few weeks’ time, on 4 November, Newport will recall the great day when thousands of Chartists made their protest against the Government of the time. They intended to establish a republic. The plan was to stop the mail going from Newport—that is the Royal Mail, not the Daily Mail, although there may well be riots about that now—so that the signal would go to the rest of the country that a revolution was going on and that a republic was to be set up. It was very good of Her Majesty to organise a party tonight to give me enough time to explain what happened. Those people wanted to run their own affairs and to have autonomy 174 years ago.
I will conclude, because I am sure that my hon. Friends will want to contribute to the debate, by reading a poem about that march in 1839 by Gillian Clarke, who concludes by saying that the “grudged gift” of devolution was given sparingly:
“Their bones ached from the shift, wind in the shaft,
the heat of the furnaces, yet on they marched,
their minds a blaze because their cause was right,
through darkness from Ebbw Vale, Blackwood, Pontypool,
faces frozen and stung by the lash of rain,
trudging the roads to Newport through the night.
At the Welsh Oak, Rogerstone, betrayed by daylight,
Frost’s men from the west, Williams’s from the east,
Jones’s men never arrived. The rest struck on
To stand united, of one heart in the square
before the Westgate. Had they stood silent then,
had they not surged forward, had they not been shaken
by rage against injustice, had they muzzled
the soldiers’ muskets with a multitude
of silence, had reason spoken,
those steely thousands might have won the day.
But they stormed the doors to set their comrades free,
and shots were fired, and freedom’s dream was broken.
A score dead. Fifty wounded. Their leaders tried,
condemned, transported. The movement, in disarray,
lost fifty years. Then came, at last, that shift
of power, one spoonful of thin gruel at a time,
from strong to weak, from rich to poor,
from men to women, like a grudged gift.”
Nia Griffith (Llanelli) (Lab)
I congratulate my hon. Friend the Member for Newport West (Paul Flynn) on his excellent speech in which he described our grave concerns about the way in which money has been used and continues to be used to deal with matters in a legal context rather than a political one. My right hon. Friend the Member for Torfaen (Paul Murphy) made the key point that we would like to see such discussions resolved politically, rather than being taken through the courts, with the huge costs that that involves.
The Secretary of State for Wales is responsible for initiating the action. The sad thing is that in each case, he has acted right at the last minute. Instead of discussing early on whether the Assembly was taking the appropriate measures or proceeding in the right way, on each occasion he has waited until the very last minute, when the Welsh Assembly Government have had everything ready and have been prepared to act, to raise the objection, in an almost obstructive manner. I hesitate to use that word because it might be considered unparliamentary to accuse him of such action, but it really does look as though he acts just when the Welsh Government have an excellent idea.
My hon. Friend the Member for Ogmore (Huw Irranca-Davies) spoke about the preparation that was done to allow the Agricultural Wages Board to remain in Wales. That was not a matter of starting from scratch, but of continuing what was already there. However, that has been laid waste because the legislation was put in question. That is such a wasteful way of proceeding.
I would like to ask the Minister a question, to which I hope he will respond when he replies, although I fear it might be difficult for him as Solicitor-General, because he cannot predict what his colleague the Secretary of State for Wales will do. My question is, when will this process end? How many more things will the Welsh Government prepare and be ready to run with, only to find that they are suddenly thwarted? We want that process, and the ridiculous waste of money, to stop now. If there are doubts about what is within the competence of the devolved Government, let us get that sorted out properly, around the table in a grown-up manner, not in the current ridiculous way. It is like children running up to mummy or daddy to ask whether something is right or wrong. It is an absurd situation, and I would like to know whether the Attorney-General has had talks with the Secretary of State for Wales about making this the last time it happens. It should not continue in future.
Paul Murphy (Torfaen) (Lab)
Unexpectedly, I rise to support my hon. Friend the Member for Newport West (Paul Flynn) on this issue. I do not actually think the Attorney-General’s Office is to blame for the situation. The system is to blame, because it means that issues are resolved through the courts when they should be resolved through the political process.
The whole purpose of the Wales Office and its counterparts in Northern Ireland and Scotland is to resolve disputes such as those that have been described in a proper political way, so that they never have to enter a court of law, let alone end up going to the Supreme Court and costing so much money. When I was first appointed Secretary of State for Wales, virtually all the responsibilities of my predecessors had gone to the National Assembly for Wales. Although my hon. Friend and I—we have been friends for far too many years to remember—were not always on the same path on the issue, we have ended up in the same place on it, not least because the people of Wales recently voted to extend the Assembly’s powers. For the first time, it will have the right to produce its own primary legislation.
The Solicitor-General will know that disputes in government are resolved either through correspondence or, if that cannot work, through Ministers meeting. In the case of matters involving devolved Administrations, Ministers of the Crown meet other Ministers of the Crown who happen to be in the devolved Administrations in Scotland, Wales and Northern Ireland. Beyond that, there is machinery, for which I was once responsible, for joint ministerial committees. If necessary, there is the British-Irish Council. All that means that matters can be resolved in a way that avoids the need to go to the courts. Of course, the situation is not the same when different parties are in government in London and Cardiff, but the principle is the same—to try to resolve the problem.
I rather fancy that the Solicitor-General will talk about whether the National Assembly has the powers to do certain things and whether it acts ultra vires or intra vires. Even those points can be resolved by diplomatic means, however, if they are talked through. By going to the Supreme Court, we press the nuclear button. Although that might satisfy the lawyers, civil servants and Ministers who think it should be done, they are unwittingly doing immense damage to the devolutionary settlement, whether in Wales, Scotland or Northern Ireland. The whole purpose of devolving legislation and administration to those three countries and regions of the United Kingdom is that they are allowed, by Act of Parliament and by referendum, to take their own decisions. If the Government do not like something, a crafty way to stop it is not through negotiation among Ministers but by going to the courts. That is the wrong way to do it.
A lot of the problem is the general inexperience in government of how devolution works. For many years, I was frustrated with Whitehall Departments because they did not understand what devolution meant. The purpose of the territorial Departments of State for Wales, Scotland and Northern Ireland is to undertake liaison between the Governments of Wales, Scotland and Northern Ireland and that of the United Kingdom.
Stephen Doughty
My right hon. Friend is making a strong case. Does he agree that at play here was something much more sinister because, in the case of the Agricultural Wages Board, the Welsh Government were going to show up the UK Government in what they were doing and what we were trying to protect? Let us not forget that the measure was to protect more than 13,000 low-paid agricultural workers in Wales. The use of this constitutional process shows not only disrespect for devolution, but a way of trying to get away from something the Government did not want to be shown up in public.
Paul Murphy
There are two ways of looking at it. There are party political differences because of the different parties in the different countries, but I also experienced that when Labour was in government and other state Departments were not necessarily sympathetic to what the Welsh Government were doing. It was my job to say, “You might not like it, but you’ve got to do it because that is what devolution is all about.” Otherwise, what is the point of having it in the first place?
Huw Irranca-Davies
When I served under my right hon. Friend as Under-Secretary of State for Wales, a signature of his tenure in office was that at all times such resolutions were dealt with early and within our mechanisms. It was a signal failure if something had to escalate to another constitutional mechanism, and it did not go at all to the Supreme Court.
Paul Murphy
I am grateful to my hon. Friend for his remarks, and there is machinery within the Government system for resolving disputes between the devolved Administrations and their Parliaments, and the United Kingdom Government. That has been set up for nearly 16 years and is precisely to deal with those areas of considerable difference. In my view, that includes whether there is a dispute, and whether something is intra vires or ultra vires. I repeat: to take the issue to the courts is to press the nuclear button and could cause immeasurable damage to the devolution settlement.
Mrs Siân C. James (Swansea East) (Lab)
I want to return to the Agricultural Wages Board—a good example —and ask the Solicitor-General why he is so adamantly trying to stop the agricultural wages sector in Wales, which is important to us in Wales as a rural economy. I represent the wonderful rural constituency of Swansea East and—I have to say this—I have a husband and son who are actively engaged in the rural community. I therefore get my ear bent about this matter on a regular basis by family, friends and neighbours, and I note the concern that people are expressing to me, and the worry. We have already seen the agricultural industry hit. Many people will have far greater fluency on the issue and be more qualified to speak about these matters than I am, but the idea that we in Wales cannot make a decision about helping farmers and rural workers within the boundaries of Wales without having it challenged is a retrograde step in the light of devolution, as many of my colleagues have said.
I am worried because the Farmers Union of Wales has stated clearly that this is about attracting young people of high calibre to the agricultural industry. If we want to attract the best young, forward-thinking people, including women, into rural industries and those related to them, how do we do that when we have to fight for every penny? How do we say, possibly when unscrupulous employers are taking advantage of the fact that there is now no Agricultural Wages Board to protect people, “It’s okay, we’ll look after you”?
This is not a race to the bottom; it is supposed to be a race to the top, but I am finding it difficult, and I would like the Solicitor-General to explain the situation to me and to all the people in Wales, including the 13,300 agricultural workers who would be protected by the introduction of the legislation in Wales. They are heaving a huge sigh of relief and are sympathetic to their fellow workers across the border in England. We already have wages boards in Scotland and Northern Ireland, and we cannot see why this legislation was introduced in Westminster.
I am going over old ground—the Minister will have heard this regularly and be well aware of it—but we want and need that protection in Wales. If we want a thriving rural sector in Wales, we must pay decent wages. We must ensure that we can protect people.
As I have said, I have friends in unglamorous jobs in farming—cow men, shepherds, general farm workers and farriers. They are cross, as hon. Members can imagine. They expect to be protected. They have been successfully protected for 65 years. During that period, many hundreds of thousands of people have been ensured a minimum wage and protection.
When the right hon. Member for South East Cambridgeshire (Sir James Paice) was a Minister in the Department for Environment, Food and Rural Affairs, he suggested that Labour Members assumed that farm workers were “forelock-tugging yokels”. All hon. Members accept that the world has moved on since 1948, but protection is not backward looking; it is about the future.
Somebody once likened history to using a rear-view mirror in a car: it is useful, but we do not necessarily need it. My hon. Friend the Member for Newport West (Paul Flynn) spoke of history, particularly of the Chartists. We should look over our shoulders and ask why the Agricultural Wages Board was established in the first place and what it has done over the years. I am sorry, but in Wales we would like to plough our own furrow—pardon my pun.
I return to the basic question. The board is supported by farming unions in Wales and other parts of the UK. I ask the Minister to accept that we in Wales want to be forward thinking. We want to protect people and give them decent wages. The Labour Welsh Assembly Government is to be congratulated on their action. They should not be stymied and thwarted at every corner. Let us move forward.
Huw Irranca-Davies (Ogmore) (Lab)
I congratulate my hon. Friend the Member for Newport West (Paul Flynn) not only on introducing the debate and on his excellent peroration on the stymieing of legislation and policy in Wales by the current Westminster Government, but on expounding on the narrative history of the Chartists and why it is relevant. I can only share his disappointment that we have so little time to debate this—we could go overnight, but, in compliance with the wishes of right hon. and hon. Members, we will try to avoid that situation.
The legislative competence order process was a previous mechanism for producing legislation in Wales. It was slightly cumbersome and convoluted, and required a great deal of detailed scrutiny in Parliament. However, it passed some cognisance of the growing authority of the Welsh Government. LCOs were much criticised at the time—rightly, in some ways, because they caused delay and were complex, even for the very good officials in the Wales Office in London and in Cardiff, and for Welsh Government officials, who worked through the minutiae. The intention—to afford proper scrutiny in Parliament and ensure that the Welsh Government could introduce their own measures under the process within their clearly devolved responsibilities and so on—was good. Yes, it caused delays, but there was a good spirit. We managed to pass LCOs into legislation, even after good scrutiny in Parliament by the Welsh Affairs Committee and others. There was never any intention to hold things up unduly.
The purpose was the growing relationship under the LCO system between the right scrutiny of this place at that time and the right role of the Welsh people, through their elected officials in the Welsh Assembly and the Welsh Government, to introduce appropriate measures from Wales. As my hon. Friend pointed out, that was not without its difficulties. It could sometimes be tortuous—even the now legendary red meat LCO took a little time to get on to the books, and that was one of the more straightforward orders—but we got there eventually. On all occasions, the intention of my right hon. Friends the Members for Neath (Mr Hain) and for Torfaen (Paul Murphy) was for their officials to work with officials in the Welsh Government and the Welsh Assembly to try to progress the measures through the LCO mechanism, which was imperfect but was what we had at the time.
What has followed, with the will of the Welsh people, is ostensibly an attempt to streamline the process to give clarity on where devolved responsibilities lie, and to allow the Welsh Government, the Welsh people and Welsh civic society to get on with passing their own laws—whether we, on both sides of the House, might agree or disagree with them ideologically—to define their own democratic path. As we have heard, it has not quite gone that way. For those on the Opposition Benches it feels like there has been by the current Secretary of State for Wales—I do not blame the Solicitor-General for looking quizzical—a maybe inadvertent but deliberate attempt to hold up, to challenge, to rebuke the Welsh people for being so impertinent as to actually bring forward their own legislation.
The Solicitor-General
I am surprised to hear the hon. Gentleman suggest that LCOs are better than the current system, whereby the National Assembly for Wales has primary powers in 20 areas. What is more, most of the Bills are going through without any difficulty. There have been difficulties with two, but the idea that we should go back to LCOs is wrong.
Huw Irranca-Davies
I could not agree with the hon. and learned Gentleman more. Perhaps I should clarify what I was saying: LCOs were clearly imperfect, but the new system is meant to be better. Even with the LCO paraphernalia—it was difficult and cumbersome—attempts were made within the constitutional arrangement, as my right hon. Friend the Member for Torfaen has made clear, to work through those difficulties. If necessary, and as a last resort, they would be escalated up the constitutional food chain for resolution at a higher level, but there was certainly not the seemingly macho political posturing of taking it outside of this place without recourse to internal mechanisms and straight to the Supreme Court. I can see only one possible justification for that: to prove some sort of point and say to the people of Wales and the democratically elected representatives in Wales, “Know your place.”
Stephen Doughty
Does my hon. Friend accept that there is also an opportunity cost here? What is the Secretary of State for Wales doing with his and his officials’ time, attempting to stymie and frustrate the will of the Welsh people and the National Assembly instead of focusing on standing up for Wales around the Cabinet table? He was evasive when we questioned him on this point in the Welsh Affairs Committee. He would not give us an estimate of the amount of time that he and his office had spent on this. I suspect it was far more than it should have been.
Huw Irranca-Davies
I agree entirely with my hon. Friend. There is a clear case for a cost-benefit analysis of the tasks the Secretary of State is spending his time on, and for asking why he is not finding more useful things to do. There is also the question of the cost of challenging this through the Supreme Court. In an era of what we are told is great austerity, cutbacks and stringent demands on Departments, I am amazed that the Wales Office thinks it fit to throw on to Government—albeit another Department—the cost associated with a Supreme Court challenge.
I turn to the Agricultural Wages Board, about which I know some small amount, given that I was the shadow Minister who stood here frequently in opposition to its abolition. Just as frequently, I put the case that the Westminster Government merely needed to allow Wales to continue as it was by putting a clause in the Bill, as requested by the Welsh Government, saying, “Ignore Wales for these purposes.” We only asked that they let us carry on and find a way to do it ourselves, rather than abolishing the whole mechanism and saying, “Now do what you want.”
I pay tribute to the work of Unite, in Wales and throughout the UK, which stood up for the lowest of the low-paid agricultural workers, for skills and training and for the development of earnings and capacity among agricultural workers. I also pay tribute to colleagues in the Welsh Assembly, including Mick Antoniw and others, who fought the good fight in Wales and to the Farmers Union of Wales—for goodness’ sake!—which said, “The reason we want to keep it in Wales is that we are slightly different from England. We have a higher proportion of small and medium-sized farms, which do not only employ individuals. That is why we want the clarity provided by the Agricultural Wages Board. We also rent ourselves out.” They would say to me, “I as a small farmer, rent out, and I know the terms of the contract.” I am talking of the young farmers of Wales too. These are not organisations that would automatically side with Labour on every issue in defence of something such as the Agricultural Wages Board, but my goodness they did on this occasion.
All that the Welsh Government and Alun Davies, the Welsh Minister, were asking was, “Give us time and space to define our own future”, but that did not happen. We debated it long and hard, we fought the good fight, speaking up for the Agricultural Wages Board not only in England, but in Wales, all the while conscious that the voice of representatives in the Welsh Government and the National Assembly was not being heard anywhere except in the media. We had to speak for them.
Wales lost without having had a direct say, and all that was required was for a Westminster Minister to say, “We concede that agriculture is a devolved responsibility. We won’t challenge you. We will put a clause in the Bill that will allow you to proceed.” That, I say to the Solicitor-General, would have shown respect for Wales and the devolution settlement. Rather than that, and symptomatic of the case put forward by my hon. Friend the Member for Newport West, we had a firm no. The door was shut in our faces. In effect, it wiped Wales off the democratic map. That is a regret.
The Solicitor-General is a reasonable and fair-minded fellow. The cacophony of pleas from the Opposition might remind him of the old poem about Welsh people worrying the carcase of a dead song and being a bit too melancholy, but we are not melancholy; we want to be joyous and we want to celebrate devolution and respect the fact that the people of Wales supported greater devolution. We just ask the UK Government, whatever political perspectives make it up, also to show that respect.
The Solicitor-General (Oliver Heald)
I start by thanking the hon. Member for Newport West (Paul Flynn) for initiating the debate. The issues raised are important and go to the heart of the UK’s devolution arrangements. It is clear that the issues have raised concerns among several hon. Members.
The hon. Gentleman, in his characteristic way, brought in history and his own political struggle over many years, and it was clear that he would like devolution to go further still. That is his viewpoint. I found the information about the three villages law of 945 particularly interesting, although I am not sure that it would be of current import and could cause some concerns if implemented by the current Government. It is not the Conservative’s stance on law and order, but it was an interesting piece of context.
The subject of the debate is the role of the Attorney-General in reviewing legislation passed by the National Assembly for Wales—a role that I share with him. Despite the comments of the right hon. Member for Neath (Mr Hain), this role was conferred by Parliament on the Attorney-General under the Government of Wales Act 2006. That was, of course, under a Labour Government, with their own approach to the issue of devolution. They had set forward a system of devolution that was a conferred powers model rather than the sort of model used elsewhere in the United Kingdom. As that happened, Parliament recognised that the devolution settlement for Wales must be made to work. The 2006 Act sets out the 20 “devolved” subjects in respect of which the National Assembly may legislate. It is the responsibility of this Parliament to legislate in any area that is not devolved.
The 2006 Act provides for the Attorney-General to consider each Bill of the National Assembly, so the Government look carefully at all legislation passed by it to ensure that it falls within the Assembly’s legislative competence. The Act provides that, where the Attorney-General or I consider a Bill to go beyond the Assembly’s competence, we can refer it to the Supreme Court to decide the question.
All of that recognises that it is in the nature of legislation that it may often appear to be about more than one thing. Where that happens with legislation passed by the National Assembly, a judgment has to be made about whether the legislation is about something that either is or is not devolved. The Government of Wales Act 2006 provides a means for the Attorney-General and, if necessary, the Supreme Court, to arrive at that judgment. If it did not, the devolution settlement could not work. The same power to refer a Bill to the Supreme Court is conferred on the Counsel General for Wales. In this way, there is an appropriate equality between the UK Government and the Welsh Government.
That illustrates an important point that I do not want to get lost in the debate. Something has been made of the idea that this Government are anti-devolution or are somehow determined to thwart the will of the Welsh Government and the democratically elected National Assembly for Wales. Where concerns arise, as the right hon. Member for Torfaen (Paul Murphy) said, most are resolved by a process of negotiation between the UK and the Welsh Governments. My officials have excellent working relations with their colleagues in the Wales Office and their opposite numbers in the Counsel General’s Office. The Attorney-General and I have excellent working relations, as one would expect, with the Secretary of State for Wales and with the Counsel General, Theodore Huckle QC. Together, we are working hard to try to reach agreement.
It was suggested by the hon. Member for Llanelli (Nia Griffith), the shadow Minister for Wales, that there was a problem with the UK Government making an effort to resolve issues before they escalated to the Supreme Court. It is, however, the last resort. The Wales Office, working with the Department for Environment, Food and Rural Affairs, has discussed with the Welsh Assembly Government concerns about the Agricultural Sector (Wales) Bill from the outset, and the Secretary of State wrote to the First Minister as soon as the draft Bill was available, expressing concerns about it—but the Welsh Government could not be persuaded to address them. The mechanisms provided under the Government of Wales Act 2006 will therefore need to be followed. Under its provisions, we are guardians of the Welsh devolution settlement and together we must put our efforts into making it work.
A reference to the Supreme Court is not a confrontational process. It does not amount to this Government or any Government picking a fight with the National Assembly. It is a simple recognition of the fact that a particular piece of Welsh legislation raises difficult devolution questions that are best answered by the independent Supreme Court. That process of resolution is to the benefit of the Welsh Government, the National Assembly and the UK Government. It is in all our interests that we fully and clearly understand the boundaries of the devolution settlement.
Full primary law-making powers are still relatively new for the National Assembly. It was the UK Government and the former Secretary of State, my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan), who facilitated the successful referendum in 2011 on the devolution of those powers to the Assembly, allowing it to pass its own laws in 20 devolved areas for the first time. That was a major departure in comparison with a legislative competence order, as it lodged the power squarely with the Assembly.
We are still learning about the settlement. Decisions by the Supreme Court about what is within the legislative competence of the Assembly allow us to establish the boundary with greater certainty, and the Supreme Court itself has recognised that when there is uncertainty, it is appropriate for a reference to be made to allow it to be resolved at the earliest possible stage. That was true of the byelaws case.
Having said all that, 1 do not want the House to think that a reference to the Supreme Court is made lightly, or is somehow to be seen as the easy way out. Several Bills have now been passed by the Assembly, and the vast majority are uncontroversial in devolution terms. For the most part, there is consensus with the Welsh Government and the National Assembly that the legislation passed is within competence.
It is clear from this evening’s debate that the reference of the Agricultural Sector (Wales) Bill has given rise to strong emotions, which were set out by the hon. Member for Swansea East (Mrs James). Given that the reference has been made, I do not think that I should discuss the arguments about, in particular, the competence of that Bill in any detail here. We shall await the Court’s decision. What I will say is that the reference relates to all the themes that I have already identified, and that the United Kingdom Government take the view that employment law is a UK competence.
The Attorney-General considers that the Agricultural Sector (Wales) Bill raises important questions about the extent of the Assembly’s legislative competence and the boundary of the devolution settlement. Despite the good working relationships that I have described and the efforts of the UK Government, it was not possible to persuade the Welsh Government that there was a way forward that would meet their concerns. That is why the Supreme Court will have to make the decision. It is a sign of the Government’s respect for the current devolution arrangements, and our wish to provide certainty and stability for those who work in the agricultural sector, that we are continuing the existing agricultural wages regime in Wales until the court case is decided.
The Government of Wales Act 2006 was introduced by the previous Labour Government. It provided a conferred model for Welsh devolution whereby subjects that were devolved and within the legislative competence of the Assembly were specified in the legislation. The present Government believe that the conferred model is right for Wales. The settlement is not perfect, and the Silk commission—which has been mentioned—is currently considering how it could be improved. The Government will respond to Part 1 of the commission’s recommendations in due course, and, as the House will know, there was a further consultation about stamp duty during the summer. The Government are determined to see the process through, and to make it work.
There is some room in the settlement for different views in certain areas about the extent of the National Assembly’s legislative competence. That is why the last Labour Government provided a mechanism for the Supreme Court to scrutinise Assembly Bills. However, I agree with the right hon. Member for Torfaen that, if possible, it should be the last resort.
It was this Government who enabled the referendum on full Assembly powers to take place. That is an achievement of which we are proud, and because of it we are seeing a growing and maturing legislature in Wales. That is what devolution is about.
The hon. Member for Newport West mentioned the Asbestos (Recovery of Medical Costs) Bill. It is true that there have been constructive discussions about the Bill, but that demonstrates that the UK Government are seeking to resolve the devolution concerns at the earliest possible stage.
I do not think that the hon. Member for Ogmore (Huw Irranca-Davies) should be so pessimistic. I realise that to some extent he was making a political case, and it was very nice of him to say how reasonable and fair-minded I am; I have always found him to be the same. However, I think that progress is being made. It is early days, and I believe that this will be seen as a major achievement which is proceeding effectively.
Question put and agreed to.