Wales Bill

Baroness Morgan of Ely Excerpts

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

[Baroness Morgan of Ely (Lab)]

My Lords, I am a little overwhelmed and daunted by the fact that I am speaking on the Wales Bill from the Front Bench with no fewer than five former Secretaries of State going to participate today, on top of other Welsh constitutional experts who have been involved in Welsh politics since before I was born.

I am also aware that the Minister leading for the Government was the principal architect in ensuring that the Conservative Party dropped its opposition to devolution in Wales and engaged constructively in the process, and for this he deserves to be commended. In addition to this, he made a distinguished and valuable contribution to the Silk reports, which of course were supposed to have served as the basis for this Wales Bill. Because of my great respect for the Minister, I will make every effort to resist the temptation to ask him why he has changed his mind on so many issues since his transformation from being a key member of the Silk committee to becoming a Welsh Minister.

I declare my interest in this Bill as an elected Member of the National Assembly for Wales. I will start by being kind: the Minister is correct that this Bill is a considerable improvement on the draft Bill introduced in October 2015, which was so fundamentally flawed that the Government had to withdraw it in the face of almost unanimous criticism of its viability. The necessity test in relation to private and criminal law has now been removed, there has been a reduction in the number of reserved areas and there is improvement in the system for Minister of the Crown consents. We welcome the fact that the National Assembly for Wales will be permanent, and that it will now have power to determine its own electoral processes, its size and the electoral system for National Assembly elections. We welcome the fact that, among other things that the Minister outlined, the Assembly will have enhanced powers in energy projects, including fracking, and new transport responsibilities. We are also pleased that the changes were made in response to scrutiny of the draft Bill, and I am particularly pleased that social care regulation and inspection will be under the control of the Assembly, following my call for the establishment of a national care service for Wales last week.

But—and this is a huge but—the Bill in its current form is complex, inaccessible, unclear and will not settle the devolution issue for Wales as was the intention. There has been a failure to incorporate any fundamental or firm constitutional principles within the Bill, such as clarity, stability, legitimacy and subsidiarity. It is poorly drafted and ill conceived. The opportunity to introduce a consolidated Bill, which would have meant that there would no longer be a need constantly to refer to previous Government of Wales Acts, has been missed. The lack of clarity means that there are some significant points where there will still be a need to refer to the Supreme Court to seek clarity on where power should lie—a costly and unnecessary exercise.

We believe that the Bill has been rushed, to no clear purpose, and goes against the spirit, expressed in the Bill, of “collaborative working”. It also fails in its aspirations, which were set out in the St David’s Day proclamation, for a durable and lasting settlement. The unwillingness of the UK Government and Whitehall departments to deliver a settlement that matches the clarity and accessibility of other devolution settlements, in Scotland and Northern Ireland, is also disappointing. I am sure that the Minister will have taken note of the severe criticism of the Bill published by the Constitutional Affairs Committee of the National Assembly, most notably, perhaps, its assertion that for the first time ever there is a rollback of current powers vested in the National Assembly.

We are living in extremely turbulent political times. The EU referendum has thrown the whole legislative framework of this country into turmoil. The pressures on the unity of the union will be tested severely in the next few years as we extract ourselves from the European Union. This constant piecemeal approach to constitutional developments in Wales is disrespectful, and the Government need to call a constitutional convention to prepare a route map in order to keep our United Kingdom together. This constant nibbling away at the constitution will ultimately erode the unity of the United Kingdom and will create divisions more emphatic than the ones which we have just witnessed with the EU referendum.

Integral to the Bill is a recognition that Bills proposed by the UK Government which will impact on National Assembly legislative competence will no longer be allowed to pass in both Houses of Parliament unless they receive the consent of the Assembly by means of a legislative consent Motion. Let me be as clear as I can be: the Government absolutely must respect the view of the National Assembly in relation to this Bill, and in particular the outcome of the legislative consent Motion. We know that central to this will be the need to come to a definitive position on the fiscal framework for Wales. This fiscal framework will need to give an absolute reassurance, not just to Assembly Members but to the public in Wales, that the country will not be worse off financially, now or in the future, if we were to adopt some of the measures suggested in the Bill. This is particularly true in relation to the devolution of income tax. We need an assurance that we can borrow significantly against any income tax devolved, and that we would not get a worse deal than Scotland. It would give us a great deal of reassurance if the Minister could today assure us that the opinion of the National Assembly will be respected in relation to this Bill.

Some parts of the Bill require additional work. There is no point in the Assembly being able to make laws if it then has difficulty enforcing them. It would be useful to have greater clarity on the scope of the Assembly’s ancillary powers to enable it to make laws which are effective and enforceable. Areas in the Bill where unnecessary potential interference is suggested simply seem heavy-handed. This will require intensive intergovernmental working with additional bureaucracy and administration, which contrasts with the Government’s own commitment, and that of the Silk commission and the Richard commission, to the need to cut constitutional red tape. There is an urgent need to strengthen intergovernmental and interparliamentary relations, as has been suggested on more than one occasion.

It is a shame that the Bill has not aligned legislative and executive competence more closely, and that there continues to be reliance on transfer of functions orders. We cannot understand this, and we look forward to the Minister justifying why all functions currently exercisable by a Minister of the Crown within devolved areas cannot be devolved and transferred to Welsh Ministers.

I am aware that there is real disquiet on our Benches about the introduction of income tax powers without the need for a referendum. I know that many noble Lords will want to pursue this issue with vigour.

As the Minister suggested, England and Wales share the same legal jurisdiction. Since 2011, however, a body of Welsh law has already been built which is distinct from that of England and Wales. Given the very low number of Welsh-only laws, we believe that currently it is unnecessary to establish a separate legal system. However, we believe that in time complexities relating to the training of judges and lawyers will need to be considered. The accessibility of the law to ordinary citizens is also paramount. We believe, therefore, that it is necessary to insert a clause requiring the UK Government and the Welsh Government to keep the situation under review.

The move to a reserved powers model is something which in principle we welcome. We had hoped, however, that this would deliver the “clarity, coherence and stability” which the Government had announced was the intention of the settlement. While I believe that we have to accept that there are some areas where introducing a reserved powers model would smooth out the creases of the current devolution settlement and give clear lines, the system is more difficult to accept if the consequence is the rolling back of the powers of the Welsh Government in areas which have hitherto been “silent” areas, where the Welsh Government have consequently been able to act.

One of the worrying aspects of the move to the reserved powers model is that, if a matter “relates to” a reserved matter, it is not within the Assembly’s power to legislate. The question of how a provision will be assessed when deciding whether it “relates to” a reserved matter will be determined using a “purpose test”—in other words, whether the purpose of the provision is devolved or not. We will seek a great deal more clarity on the issue of the purpose test in Committee.

As I suggested, while in principle we agree with the move to a reserved powers model, the next question is, inevitably: do we agree and accept all the areas where the UK Government have insisted on retaining power to themselves? We accept and welcome that the list has been reduced since the draft Bill, but we have noted some attempts to reduce the list by lumping some subjects together which were previously counted individually. For example, architects, auditors and health professionals were previously three categories; now all three are included in one category.

We were promised a more comprehensive rationale and justification for why certain areas were reserved, and we do not believe that the Explanatory Notes currently provide the reasoning that we seek. I will do what I can to stop Members on the Labour Benches from putting amendments down on every reservation so that the Government will have to justify each one on the Floor of the House. However, noble Lords might have noticed that I have some pretty heavy hitters on my side, and I may not be able to stop them. Therefore, if the Minister can come up with better justifications for those reservations prior to Committee, we will be grateful.

It is also worth emphasising that it is not simply a matter of reducing the number of reservations on the list in new Schedule 7A; we should like to see some of the reservations redrafted or exceptions added so that the breadth of the reservations is limited, creating more legislative space for the Assembly in which to act. At this stage I will give just a few examples of where we have some concerns: employment matters with regard to devolved public services; licensing and the sale of alcohol; the community infrastructure levy; railway franchises; and water, which I need not emphasise the sensitivity of since the construction of the reservoir at Tryweryn.

In its current form, the Wales Bill is wholly unsatisfactory. We are disappointed that it has been rushed, both in drafting and in the depth of scrutiny, and in some instances we are seeing powers being taken away from Wales. The people and the businesses of Wales have the right to know and to understand the constitutional and legal framework under which they live and work. In these uncertain and unstable political and economic times, now, more than ever, people need a clear understanding of where responsibility lies. The Bill does not give us that clarity. It is a real shame that the democratic will of the people of Wales, as expressed in particular in the 2011 referendum, has been missed, that the opportunity to produce an aspirational settlement has been missed, and that the chance to produce a vision for the future direction of Wales has been missed.

Despite this, I reassure the Minister that we are well disposed to working with him during the passage of the Bill, and we hope that he will accept our interventions in the spirit of ensuring that we produce the best possible Bill for the people of Wales.