Wales Bill

Debate between Lord Elystan-Morgan and Baroness Morgan of Ely

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

[Lord Elystan-Morgan (CB)]

My Lords, I, too, support fervently and earnestly these amendments. I admire very much the eloquence and force with which those main arguments have been articulated, particularly, if I may say so, the magisterial rebuke that was delivered by my noble and learned friend Lord Judge.

It is not enough just to safeguard legislation in Cardiff. That of course, has to be done; it would be a nonsense to create a sister parliament—as it was described by Speaker Martin when the Cardiff Assembly was established—and, at the same time, to treat it as a meaningless plaything. But that is not the whole point. Most of the legislation they let into Wales is Westminster-based so that, in so far as protection is concerned, it would have to be protected not just in Cardiff but here as well, otherwise the main thrust of this issue would be missed.

I endorse everything that has been said by those who have held up this question of the template, as it were, of Clause 2. The Sewel protection, which was endorsed in Scottish legislation, has been perpetuated in this Bill. There is the danger that if nothing is done at all, the powers that we are discussing could make meaningless everything that is contained in Clause 2. I deliberately say “could make meaningless”, because there is the possibility that Clause 2 is meaningless already. In other words, if it were a case of Clause 2 being inserted in order to build a shield or carapace to protect the constitutional entity of Wales, it would be a very severe attack upon that protection. But, if in fact it were nothing more than merely declaratory of what was happening in any event, with the sovereign power of the Westminster Parliament deciding what was or was not necessary, it would of course be utterly meaningless. I do not think it necessary for us to dwell any further on that matter but it should be held up as a template for this piece of legislation.

My third point is that Henry VIII was no great benefactor as far as Wales was concerned. The whole purpose of the Acts of Union was not only to say that Wales should not exist but that it never had existed. It was said that,

“the dominion, principality, and country of Wales … is and ever hath been incorporated, annexed”,

and included within the greater realm of England. We never were there at all. Certainly, as far as Henry VIII clauses are concerned, they should be dealt with very carefully, because they erase the authority of Parliament —or they are, at any rate, in a position to threaten that, at their very worst.

I remember reading a book when I was a student by Sir Gordon Hewart, who was Attorney-General in, I think, the late 1930s. The book is called The New Despotism; it is an examination of the vast growth in powers delegated to Ministers by way of regulations. He saw this as a very great threat to parliamentary sovereignty. He was not talking about Henry VIII clauses but about the positive powers given to Ministers from day to day by way of regulations. If there was a new despotism then, now—three-quarters of a century and more later—that despotism has grown enormously. I would urge that thought be given to the exercise of delegated powers to Ministers. More and more are given every year and Parliament, even with the help of the massive effort of this House to scrutinise, finds it more and more difficult to sieve everything that goes through. And those powers are increasing. What Sir Gordon Hewart would have said of these negative powers I know not but, if there was a despotism three-quarters of a century ago, there is potential for very considerable despotism now.

I urge the House to accept the arguments put forward so magnificently by my noble and learned friend Lord Judge and indeed by those powerful bodies, the Delegated Powers Committee and the Constitution Committee of this House. They are dangerous powers to use. We should use them with very great circumspection in any event. However, in Wales there is a principle involved—namely, that you do not set up a parliament which you intend to be a genuine devolved Assembly, and then treat it as a meaningless plaything.

[Baroness Morgan of Ely (Lab)]

My Lords, we have heard some stunning contributions this evening on an incredibly important aspect of the Bill. We have heard a devastating critique of Clause 53, in particular by my noble friend Lord Rowlands. I thank him for giving so much attention to an extremely difficult aspect of the Bill for the Assembly to live with. I urge the Minister to think very seriously about this clause, which is about repealing provisions in primary legislation. Within this House, there is an ability to look at those provisions, as the noble and learned Lord, Lord Judge, said. Both Houses can have the opportunity to look at what is being proposed. However, that opportunity is not available to the Assembly. That needs to be underlined. It is deeply discourteous to the Assembly and wrong in principle.

If the Secretary of State proposes by order to modify parliamentary legislation or tidy it up, as my noble friend Lord Rowlands suggested, quite rightly he cannot do that without Parliament’s express agreement. In the same way, the Assembly’s legislation should be protected from modification up to and including repeal unless the Assembly is first asked to give its approval to a draft order proposing such a modification. The consent of the Assembly is needed, as the noble Lord, Lord Elis-Thomas, suggested.

Secondly, we seem to be continually going back to the problems with Clause 2. I again urge the Minister to listen to what the noble and learned Lord, Lord Judge, and the noble Lord, Lord Elystan-Morgan, said about that clause. I know that the Minister was not persuaded that there was a need to amend it as we suggested. But I think it was common ground that a parliamentary Bill modifying the Assembly’s legislative competence could proceed only with the Assembly’s consent. That is an important feature of the devolution settlements. But the problem is that Clause 53 envisages that the Secretary of State can, with the approval of each House of Parliament, modify any Act of Parliament in consequence of provisions in this Bill.

Given the subject matter of the Bill, the Acts vulnerable to such modification are most likely to be the earlier Welsh devolution legislation—the 2006 Act and the 2014 Act. If modifications to those Acts were proposed by way of a parliamentary Bill, the Assembly’s consent would be required. But the Government apparently envisage that, if the modifications are to be given effect by a Secretary of State’s order under Clause 53, it can proceed without the need for Assembly consent. That cannot be right.

Amendments 111, 113 and others in this group address the two points that I have outlined. Their effect in summary is that, if the Secretary of State proposes to use his order-making powers to modify Assembly legislation, that should be subject to prior Assembly consent. That requirement for prior Assembly consent in respect of a proposed Secretary of State order is also to apply if the order envisages a modification of a devolution enactment—in other words, a provision of either the 2006 Act or the 2014 Act. In that way, the fundamental principle that Assembly consent is required before its functions or competence can be modified is preserved. I urge the Minister to think very carefully before proceeding any further with the Bill. This fundamental principle undermines the democratic integrity of the Assembly.

I thank my noble friend Lord Hain for drawing attention to the point that a legislative consent Motion needs to be passed by the Assembly, and the financial framework settled. I hope that Treasury Ministers were listening to what he had to say, but I will make sure that the Assembly Minister who will negotiate this issue hears what my noble friend had to say, because he underlined some important issues. We cannot see Wales lose out financially as a result of the Bill.

I know that we have previously had reassurance from the Minister on the need for a legislative consent Motion before the Bill is passed. If he could underline that once more for us, it would give us confidence. When the Minister replies to the debate, I hope that he will talk us through the final sequencing of the next part of the consideration of the Bill. What will the sequencing be? When will the financial framework be necessary? When will the legislative consent memorandum be put before the Assembly? When will the Motion come before it? If the Minister could talk us through that sequencing, it would be very useful.

Wales Bill

Debate between Lord Elystan-Morgan and Baroness Morgan of Ely

Monday 24th November 2014 Lords Chamber

[Baroness Morgan of Ely (Lab)]

As this is our final opportunity to discuss the Bill, I would like to thank the Minister for her co-operation on it. We knew when we started on the Bill back in July that the Scottish referendum could impact on the nature and tone of the debate, and that has indeed been the case. The very fact that we have so many people in here today talking about the Bill tells us something. The scope of the devolution debate across the whole of the UK has changed since September. It feels as if this Bill is slightly out of date even before the ink has dried. It is, however, another welcome step in the process of devolution for Wales. It is clear that it is not only the Scottish referendum that has changed the tone of this debate during its passage, but the appointment of a new and more conciliatory Secretary of State. We very much welcome the shift in tone since his appointment.

I take this opportunity to thank colleagues on all sides of the House, especially people on the Labour Benches, for their co-operation and support on the Bill. In particular, I thank my noble friend Lady Gale, of Blaenrhondda, for her sterling work and active support on the Front Bench. I also thank officials in the Wales Office and Catherine in the Labour office for their work. In particular, I applaud the co-operation afforded by the Government Front Bench, led by two extremely distinguished experts on the issue of devolution in Wales. In particular, we are extremely pleased that we have managed to find a resolution to the issue regarding the reserved model power of government, and we look forward to seeing the fruits of the department’s work on 1 March. Thank you for also agreeing to the issue of votes at 16 in the referendum on tax powers.

The devolution debate is far from over. The Labour Party is in favour of a constitutional convention to iron out some of the anomalies across the UK that many noble Lords have talked about today. If, and when, we form the next Government in 2015, the Labour Party has also committed itself to presenting a new Wales Bill, pushing the boundaries of the devolution settlement further. This obviously needs to take into account the changes across the UK. We know that the coalition Government have agreed to present a cross-party approach in March to further devolution for Wales. We would like a cast-iron assurance that both the Conservative Party and the Liberal Democrat party will, if they are through some terrible tragedy elected to run the country again after the next election, match Labour’s commitment and bring forward a new Wales Bill in the next Parliament.

[Lord Elystan-Morgan]

My Lords, I assume that we have already dealt with the amendment and are now dealing with the totality of the Bill on Third Reading?

Wales Bill

Debate between Lord Elystan-Morgan and Baroness Morgan of Ely

Wednesday 15th October 2014 Lords Chamber

[Lord Elystan-Morgan (CB)]

I endorse with very great enthusiasm everything that has been said by my noble friends Lords Wigley and Lord Elis-Thomas, particularly on the question of unity. We as a nation have been blighted by disunity for so long. That refrain was taken up over the years by my old and very dear friend Lord Elwyn-Jones: our predilection to fissiparous division. He had a marvellous story, and I hope the House will indulge me for a moment. A shipwrecked sailor was cast on a desert island, the only survivor of the tragedy. He was there for years, but ultimately a ship drew into the bay. A boat came ashore, and there was great jollification all round. Before leaving the island, the sailor showed the boat’s crew where he had been living: his living quarters, where he had kept the animals and a cave with a cross over it. He said, “That is the church in which I worshipped on Sundays”. Somebody among the boat’s crew said, “But there’s another cave with a cross on it”, and he said, “I wouldn’t be seen dead in that place”. That is the sort of people that we have all too often been in Wales, and unity is very greatly to be welcomed. I have already paid tribute to the noble Lord, Lord Bourne. The Silk commission tried to find a reasonable, meaningful, least common multiple. The chairman, the assessors and the four representatives of the various parties succeeded in doing that, and long may that continue.

I turn to the question now of the amendment itself. I accept the principle that it is healthy, proper and courageous for the Welsh people to take on themselves these heavy fiscal responsibilities and that the decision should essentially be theirs alone. On the other hand, I would not wish the situation to develop other than through a referendum because I think that a referendum would clarify the mind—as Dr Johnson might have said—and would allow these issues to be examined in very great detail. I was disappointed in 1997 when the Labour Government, having been elected, made it clear that they would proceed with the issue of some form of Parliament for Wales and then said at the same time that there would be a referendum. I was disappointed but I was enthralled that we managed to carry that referendum, albeit by a slim majority. It gave us a sovereignty and a moral certainty in relation to the matter and I think the same would be true in this connection.

I am sorry that I missed the beginning of this debate—I was upstairs in a sub-committee dealing with European matters and I apologise for that—but I believe I heard the Minister say, with regard to a referendum, that she wished that the matter would be dealt with fairly quickly by the Welsh Assembly. I see that she nods. This is my plea. This is a crucial matter that deals with the very essence of whether a Welsh Parliament can succeed in a credible way. Everything turns in the first place on the validity of that referendum in so far as it reflects the wishes and understanding of the Welsh people. There can be no question of meandering into the dark in this matter, marching possibly to the beat of a distant drum while looking at some faint point of light in the distance. It is the same as a jury contemplating a serious case. There has to be certitude over exactly what the issues are and what the main relevant facts are in relation to them.

Let me come to the point immediately. There are many issues but the most important one is Barnett. The Government have said in relation to Scotland, understandably and perhaps in a mode of panic, that they will not touch Barnett at all. Barnett shall be utterly inviolate. Having said that, it means that it is virtually impossible to contemplate a situation where they will be willing to discuss Barnett in the context of Wales. It is one and indivisible—the bubble is either pricked or it is not. As far as the losses under Barnett are concerned, I know that various figures are mooted. The probability is that the annual loss at this stage is of the order of £200 million to £300 million and will increase as prosperity increases. Be that as it may, I ask the Minister to give these undertakings. First, the Government should appreciate that it is the legal right of the Welsh Assembly, and no other body, to decide whether there should be a referendum and when there should be one. Secondly, they should not contemplate bringing any pressure to bear on the Welsh Assembly in that regard—it should have a free, unfettered choice. Thirdly, there should be no question of asking the Welsh people to determine this momentous matter of a referendum without the Barnett matter having being settled fully, comprehensively and once and for all.

[Baroness Morgan of Ely]

My Lords, the Labour Party in 1997 made a promise in that first referendum which established the Assembly. In that promise we made it clear that we would not introduce income tax variations to Wales unless and until the people of Wales gave us permission to do so. Let us not forget that we won that referendum by a hair’s breadth. It would be a massive political mistake to go against that. I honestly believe that had there been a question about tax in that referendum we would not have an Assembly today. We have to honour that promise we made to the Welsh electorate. The referendum promise to the people of Wales is one of three locks we want to be sure are in place before tax raising or cutting powers can be used in Wales. If we have learnt anything from the Scottish experience it is that the public will get involved if it is something that impacts on them directly. There is nothing that impacts more directly than income tax so they are sure to get involved in this debate. We must do them the honour of respecting their views and we will not know what those views are unless and until we hold that referendum.

Public Bodies Bill [HL]

Debate between Lord Elystan-Morgan and Baroness Morgan of Ely

Wednesday 9th March 2011 Lords Chamber

[Lord Elystan-Morgan]

Everybody who has spoken in this debate already and very probably everybody present in the House would probably agree with the proposition that if the Government make a mistake in how they deal with this matter, a death blow could be struck at the very existence of the Welsh language. S4C is a unique body charged with a unique commission to safeguard the very existence of the Welsh language. Well, you may say, that is nothing very much—but I doubt whether many Members of this House would take that view. A living language with a living literature is a jewel in the treasury of human culture, and the Welsh language no more and no less than any other living language is such a jewel. It is 1,500 years old and was in existence at least 500 years before the French language came into being. The French language came into being only at the end of the first millennium; up till then it was a patois of Latin. That shows something of the pedigree of the language that we are talking about.

If anybody thinks that those of us who are Welsh-speaking or committed in some way or another to a loyalty to the Welsh language are overdoing the case, I ask humbly of each and every Member of this House whether, if the English language were in such jeopardy, they would not take up honourably and gallantly exactly the same position. If you thought that the language of Milton, Shakespeare and Chaucer was in jeopardy and that its very life was in doubt, I know exactly what you would do. We are prepared to say exactly the same of the Welsh language.

The next question is about how unique the circumstances were in which S4C was set up. They have already been dealt with in some detail. There was a very ugly situation in Wales; there had been massive civil disobedience, and I have no doubt that Gwynfor Evans would have given up his life. A very wise, statesmanlike Englishman who had great experience of conflicts not dissimilar to these, William Whitelaw, made an agreement with the Welsh people. He said that if they called off their protests he was prepared to give them this channel. That is exactly what happened, to his eternal credit. I think that we should be very careful with this legislation that we do not go back upon the word of that splendid statesman and gentleman.

Indeed it was an agreement. A very great jurist, many centuries ago, spelt out in Latin the principle of agreements: pacta sunt servanda—agreements are binding. This agreement is binding and I would have thought that is the strongest possible case that one could have for not including it in Schedule 4. There are two jeopardies that S4C faces: it could be starved of a sufficiency of funds so as not to allow it to be able to carry out its true purpose; and it could be so boxed in with any form of association with a greater, more powerful body, the BBC, that it would render its independence something utterly unreal.

We have heard regarding finance how a 24 per cent cut might very well reduce S4C to the point when its very existence is placed in jeopardy. I am sure I am not exaggerating the situation. The other side of it is what would happen if it was brought under the aegis of the BBC. I am not entirely sure under what authority the Government have in fact suggested that there should be such a merger—Clause 4 deals entirely with funding; nothing else. Clause 7(1)—I will not go into the detail of it—might touch upon that but I doubt it. Are there any other statutory authorities that allow the Government to do this? I doubt it. Maybe the Government are relying only on the financial pressures brought about—not in relation to S4C alone—by the general economic situation to box S4C into a corner that it would not wish to be in.

[Baroness Morgan of Ely]

My Lords—

[Lord Elystan-Morgan]

I am sorry; I have not yet resumed my seat. I was only collecting my notes. I shall not delay that event very long.