Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Elystan-Morgan (CB)]

My Lords, I begin by wholeheartedly endorsing what has been said by way of tribute to the noble Lord, Lord Bourne, and the very constructive role he has played for a couple of years now in Welsh devolution. Whatever the Bill’s defects might be—and I believe them to be myriad—he is not responsible for them, and I would not wish him to think that anything I say by way of criticism of the Bill is in any way directed at him.

I shall concentrate my remarks on what might be described as the main constitutional timbers of the Bill. As has already been said, this is the fourth time within the short span of less than 20 years that a major piece of legislation has been introduced in relation to Wales. What distinguishes this Bill and differentiates it from the other three attempts is that, whereas they added to the constitutional powers that Wales had as a land and nation, it turns in the opposite direction. Whereas they were progressive, this Bill is regressive.

I have no doubt that we would not be discussing these matters in the context of this Bill were it not for the decision by the Supreme Court in July 2014. That is the fons et origo of the whole matter. It is not an incandescence of enthusiasm on the part of the Government for Welsh devolution that brings these matters to the fore, but the realisation that a crisis was created by that epoch-making decision.

The House will broadly remember the facts of the case. The Cardiff Assembly was proposing a measure to standardise and define agricultural wages in Wales. There was an immediate objection by the Attorney-General, who seized on this matter like a hungry piranha and said that it was something Wales must not touch. Why was that? It was because it was a matter not of agriculture but of employment. If the Attorney-General’s logic had been correct, that would have been the end of the matter, but the Supreme Court respectfully disagreed with him in a 5-0 decision. Whereas the impression had been carried for a long time that if there had been a transfer of a limited nature within any one of the 20 fields of devolution to Wales, that was it, the Supreme Court said that where there has been a substantial transfer of functions and there are other allied matters that reasonably go with them, unless they have been specifically exempted, they are transferred. In other words, there is a silent transfer mechanism, and that is what caused the whole problem.

Given the situation that confronted Wales the day that judgment was published, it is right that we should consider how the Bill compares with that template. My submission is that the powers that Wales has under the Bill are vastly diminished compared with the decision reached by the Supreme Court. That is the reality. This matter has been touched upon already by one or two noble Lords, and I have no doubt that they are absolutely correct: the gap is very considerable. Yes, the decision to transfer to a reserved powers model has achieved something—certitude, of a certain nature—but it is a certitude for which a high price is paid: the diminution of the constitutional status of Wales. That is the effect of the main parts of the Bill.

The Government reacted fairly swiftly to that decision of 2014 and decided that they would move to a reserved powers model, which was introduced by the St David’s Day agreement of last year. A draft Bill was published, which was scrutinised by a number of distinguished bodies, and following that we have today the legislation proposed in the House of Commons in June of this year. I believe that the Bill is flawed, first in that it does not achieve the purpose that it genuinely should have sought to achieve. Secondly, it is a Bill that is unworthy of the people of Wales. We have a far lower level of devolution now than that which was spelled out by the Supreme Court in July 2014. The consequence is that we are moving backwards when we could have been moving forwards.

The worst part of the Bill is not what is mechanically set out in the reservations—of which there are far too many; more than 190, as we have heard—but the mentality that lies behind them. It is a mentality of monumental negativism. Look at the reservations: the control of axes and knives; the control of charitable funds and philanthropic institutions; and the control of the sale of alcohol, which Wales had devolved to it in the 19th century. I see the noble Lord, Lord Hunt, who well appreciates the history of this matter, nodding. There are many other instances where one could say that these are simple, basic, minor matters, taken against the bundle of responsibilities a nation has. The question I ask the House to consider is this: had such matters as these been raised 50 years ago by the Colonial Office in relation to a colony belonging to Britain, either in the Caribbean or in Africa, would they have dared bring about such reservations? The answer must surely be no. We are placed in a neocolonial situation by this Bill.

My appeal is not so much for a change in the mechanics, but for a change in mentality. I can remember being shocked as a schoolboy—which was many years ago, believe you me—when reading of a decision made by Mr Attlee’s Government in relation to Wales. Herbert Morrison, the then Home Secretary, announced it in these terms: “We have considered the future of Wales very carefully. We have taken advice, broadly, from people who are in a position to give that advice, and we have come to the conclusion that the very best that we can do in relation to Wales is to have a nominated council”. Do your Lordships think that Mr Herbert Morrison and his Government would have suggested a nominated council for a British colony 50 years ago? Most certainly not. To my mind, such neocolonialism shows that the dead hand of Westminster still lies upon Wales.

My appeal is not just for a new mechanism but for a new mentality altogether: a change in the attitude of the mandarins of Whitehall—the Sir Humphreys, Sir Williams and Sir Rogers—who say, “Nothing shall come from my table at all”, and likewise in the dog-in-the-manger attitude of Ministers towards their own powers. There should be a spirit of partnership and mutual respect between Cardiff and Westminster.

The Welsh people should think big in this matter. A distinguished English poet of the 19th century wrote:

“a man’s reach should exceed his grasp,

Or what’s a heaven for?”.

We as a nation have been grasping for small things, but we must think big about the role we can constructively play within the UK. I believe that dominion status is a principle sufficiently supple and mobile to allow Wales, under the 1931 Act of Westminster, to play the most major and constructive part imaginable in the life of the UK. That is the opportunity we now have. Many matters in the field of government are in a state of flux. Wales must react positively to that, as this chance may not come again.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[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 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.

[Lord Elystan-Morgan]

Does the Minister agree that this matter would be caught by the words of new subsection (6) in Clause 2:

“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”?

In other words, it is the Sewel covenant. The Government would fall foul of that, it seems, if they were to act in a cavalier way.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his assistance on this matter. He is right that this provision gives that convention statutory force but, of course, it does contain the word “normally”; therefore it is still subject to the will of the Parliament of the United Kingdom. He is right that in normal circumstances that would be impossible to do.

--- Later in debate ---

The amendment put forward by the noble Baroness, Lady Morgan, suggests a sitting commission that continues for all time, so that the issue is never put to bed. To my mind, this issue has been raised so it should be dealt with properly and considered, a report should be put forward, and if legislation follows from that so be it. However, from a purely practical view based on years of experience as a member of the Wales and Chester circuit and as someone who has dealt with the law on both sides of the border and had experience of other jurisdictions abroad, in the Far East, Jamaica, Trinidad and places like that, I believe that a separate and distinct jurisdiction for Wales is not necessary and should not be followed through.

[Lord Elystan-Morgan]

My Lords, I support the amendment in the name of the noble Lord, Lord Wigley, with all the Celtic fervour that I can muster. The principle is undoubtedly a proper one, but the technicality is narrow. Some arguments turn upon the existence of Welsh law—its distinctive character—and they are not without their merit. However, that to my mind is not the issue, which is the juxtaposition of a parliamentary jurisdiction and a court jurisdiction. I would go so far as to say that there is something wrong with the constitutional geometry of the situation where more than one parliament operates within the sphere of one legal jurisdiction. That is the essence of it.

Even if there was no difference whatever between Welsh and English law in this matter—and we know there is—it would still be the case, parliaments having the inimitable bent to go their own way, that to have two or more parliaments operating within a single jurisdiction was wrong. I think I heard the noble Lord, Lord Wigley, say that he doubted whether there was any situation in the whole world where that is so, but I ask the Minister—not perhaps in his ministerial capacity but in his capacity as a very distinguished professor of law—whether in any democratic system in the world there is an instance of two parliaments operating within a single legal jurisdiction.

Having said that, I appreciate that there are difficulties, and I have profound respect for what has been said by the noble and learned Lords, Lord Hope and Lord Judge. A great deal has already been started and been done. The Administrative Court has been referred to and it is undoubtedly a success. In addition—I think that the noble and learned Lord, Lord Judge, had a great deal to do with this—the civil and criminal divisions of the Court of Appeal were given every encouragement to meet in Wales, and they did so on many occasions.

There are many trends of that kind; nevertheless, the basic problem still has to be met. We have already heard of the situation in Scotland and Northern Ireland. The Isle of Man, Guernsey and Jersey have their own parliaments and their own jurisdictions. As a matter of legal purity, there should never be a situation where more than one parliament operates within one jurisdiction. Having said that, I appreciate that there are practical difficulties.

[Lord Carlile of Berriew (LD)]

My Lords, I joined the Wales and Chester circuit of the Bar 45 years and two months ago. I went to chambers in Chester, where my noble friend Lord Thomas of Gresford was already well established, and I confess that I learned a great deal from him, almost all of it good. It is therefore with a good deal of pleasure that I rise to support his amendment.

I have some sympathy with the noble Lord, Lord Wigley, in his aspirations for Welsh institutions, but I fear that I have to come to the same conclusion as my noble friend Lord Thomas—that what he proposes is not needed and nor would it work. Speaking only for myself, I suspect, I have long been in favour of the creation of a separate Wales division of the High Court to cover civil and criminal proceedings. Although a great deal has been done, which I shall mention in a moment, we still do not quite have that formal division. In my view, that would be an excellent measure, well understood, and it would possibly allow Wales to have some appointments that would be appropriate to such a division, such as a presidency of the division—there are presidents of the other divisions of our senior courts. I think that that would be met with approval throughout the legal profession in Wales, although, as I shall set out in a moment, it is not necessarily those in the legal profession who are the right people to decide these things.

I join in the tribute that has been paid to the noble and learned Lord, Lord Judge, who as Lord Chief Justice did a great deal to give the Welsh jurisdiction an identity which previously it had not had for several hundred years. Of course, as I think my noble friend said at Second Reading—I have certainly heard him say it in your Lordships’ House—there used to be a chief justice of Wales. Indeed, he and I appeared at the Chester city quarter sessions, in the building of which there is a large portrait of a former chief justice of Wales—the well-known Lord Jeffreys or Judge Jeffreys. He is not necessarily the best precedent for such an appointment; nevertheless, there is that precedent. There could be a president of a Wales division, although not in a Jeffreys-like way—who, by the way, was not half as bad as history has made him out to be. Of course I will give way to my noble friend.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Bourne of Aberystwyth]

My Lords, I do not think that I said that. I said that it signals that it is not justiciable. I am making the point that noble Lords have been making about the generality of the phrase and that it is difficult to define, and it means that if Parliament decides something it can decide that this is not normal. That is the point about it. As I say, I will take it back and see whether we can accomplish what noble Lords are seeking in guidance.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that there are two problems here? First, the bar is set at a very low level—a level of “normality”. Secondly, as far as the word “normal” is concerned, although of course it appears in the two Scotland Acts, it does not seem ever to have been judicially interpreted in the courts. That is a considerable weakness. I take the Minister’s point that in a way it is a matter for Parliament to define itself—to define its own metes and bounds—which bearing in mind its absolute sovereignty are untrammelled, but nevertheless it is a crucial word in an Act of Parliament and as such it must be interpretable by the courts. I am afraid that, if the matter were raised before the higher courts now, they would say that “normal” means something that is not abnormal and they would leave us in the mists of uncertitude in that way.

[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.

Wales Bill

Lord Elystan-Morgan Excerpts

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

Moved by

[Lord Elystan-Morgan]

45: After Clause 3, insert the following new Clause—
“Working group on constitutional development
The Secretary of State for Wales shall, within the period of three years following the principal appointed day referred to in section 55(3), establish a working group to study the possibilities for Wales, as a land and nation, of constitutional development within the terms of and consistent with the principles of the Statute of Westminster 1931, and developments thereafter, and shall within the said period of three years present a report of its study to Parliament with such recommendations as it deems appropriate.”

[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.

--- Later in debate ---

[Lord Elystan-Morgan]

Will the noble Lord accept my word for it that I am not in any way advocating any jurisdiction for Wales over foreign policy or defence? The point I was seeking to make was that you can make dominion status whatever you wish it to be in the particular context and circumstances of that case. No doubt the noble Lord will, over the years, have studied the position of Newfoundland, which was a dominion for some years. It started off with direct rule, then became a dominion, then ultimately became part of the dominion of Canada. It is an illustration that you can make dominion status be whatever you wish it to be.

[Lord Howarth of Newport]

My Lords, I will not embark on a personal excursion into Welsh history. However, apropos the excellent Amendment 46, in the name of the noble Lord, Lord Elystan-Morgan, which would establish a working group to review the operation of Schedule 1, I hope that the members of that group would follow the example articulated by the Silk commission and the Welsh Affairs Committee, both of which recommended that, in determining what matters should be reserved and what not, principle guidance should be issued so that there are criteria against which all can judge whether a reservation proposed by a department in Whitehall could be justified. Unfortunately, that guidance as to principle, and the questions that departments should ask themselves, was not issued.

The consequence is that we have this ragbag of reservations which have been accumulated all around Whitehall, apparently on no better basis than what we have we hold or, if in doubt, we will hang on to. That is a very poor basis for the institution of a reserved powers model for devolution, so I hope that all of us welcome the proposition of the noble Lord, Lord Elystan-Morgan, that such a working group should be set up. I simply want to see added to its terms of reference as set out in his amendment that principle guidance should be provided for that working group, or that that working group itself should develop the principles. But we must have criteria against which judgments can be made on whether particular reservations are appropriate or not.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on this part of the Bill. I particularly thank the noble Lord, Lord Elystan-Morgan, for moving the amendment with such fluency and commitment, although he will know that I disagree with him fundamentally, particularly on the first of the two amendments in this group.

Through their Amendments 45 and 46, the noble Lords, Lord Elystan-Morgan and Lord Wigley, seek to place new duties on the Secretary of State for Wales to review the constitutional arrangements for Wales and the operation of the Wales Bill that we are putting in place. Indeed, through Amendment 45—at least on the wording, although I accept what the noble Lord, Lord Elystan-Morgan, has said—they seem to be proposing that the Secretary of State of State be required to review Wales’s readiness for independence. I can act only on the basis of how the dominion status has operated in the past. The Statute of Westminster 1931 is expressly referenced in the amendment. There is no appetite for this proposal in Wales. Both noble Lords will know that that is shown in opinion polls and at the ballot box.

The Statute of Westminster established the dominions as sovereign states and enshrined in law the principle that no legislation made in this Parliament could apply to the dominions unless a dominion requested it. We cannot possibly agree to that. It also provided that the Parliaments of the dominions would have the power to amend or repeal any previous legislation made by this Parliament. Therefore, we cannot possibly agree to what is proposed. As a representative of a London-based polity, as it is called, I do not believe this proposal is wanted in England and it is certainly not wanted in Wales either.

Through Amendment 46, the noble Lords are seeking to place a new duty on the Secretary of State for Wales to establish a working group to review Schedule 1, which sets out the reservations, as soon as possible after it comes into effect and to report on reservations that should be removed within three years of the principal appointed day—the day on which the new reserved model comes into force under Clause 55.

Once again, we have a measure in front of us to set up yet another commission or working party to look at constitutional arrangements. I do not believe that would be welcomed in Wales. We have a duty to get on with the job on this Bill. I ask the noble Lord, Lord Elystan-Morgan, to withdraw his amendment.

[Lord Elystan-Morgan]

My Lords, on the question of dominion status, I was tempted to make the mischievous point that for many centuries Wales was a dominion in law. The actual wording of the Act of Union of 1536 refers to the,

“dominion, principality, and country of Wales”,

so that wording has been there for many centuries. However, that is a mischievous point, probably made much too late at night.

Some years ago, a good friend said to me, “You could be a very nice chap if you did not tilt at the English so often”. I am not sure what a nice chap was intended to mean in that context, or whether I would ever qualify within that definition. However, as far as the second part of his proposition was concerned, I have never tilted at the English. I have immense respect and, indeed, often, admiration for our neighbours. I conceive nationalism in the context of Wales as being a patriotism that knows not the hatred of any other nation. That is what Welsh nationhood and Welsh nationalism at their very best should be and are. I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Crickhowell (Con)]

My Lords, I plead total ignorance of the licensing regime. Are we satisfied that whoever is in charge of it, the fishing boats are actually going to be Welsh? I ask only because I seem to recall that long ago, when I was the Member of Parliament for Pembroke, Spanish fishing boats registered in the port of Milford Haven and somehow avoided the licensing regime. The licensing regime may now have dealt with that effectively but I should like confirmation that that is so.

[Lord Elystan-Morgan (CB)]

I support the amendment for the reasons that have been placed before the House. I raise one question that is common to this and to all the other matters involving the reserved elements of the Bill. I ask the Minister not so much as a Minster of the Crown but also as a distinguished professor of law who understands these issues well. Harken back to the undertaking that was given solemnly, and I have no doubt sincerely, by the then Prime Minister on the day after the Scottish referendum result when he said that Wales was at the very heart of devolution. To my mind, those were not intended to be empty words of adulation but to be an undertaking solemnly given to the people of Wales. I take them in that spirit. My question applies to this and to all the matters reserved that we regard as being trivial and unworthy of reservation. It is this: how does being at the heart of devolution square first with the principle of home rule, secondly with the concept that every decision should be taken at as local a level as possible and thirdly with a healthy interpretation of the concept of devolution? Those are not three different matters at all. At some point they seem to coalesce.

Ships in olden days took their position at noon, but nowadays with sophisticated technology that is no longer necessary. I would like to know what the position is at noon, as it were, in relation to Welsh devolution. I put that to the Minister with very great respect knowing that he will react reasonably to it.

[Lord Bourne of Aberystwyth]

My Lords, I thank all noble Lords who have participated in the debate on Amendment 53, in particular the noble Baroness, Lady Morgan of Ely, who moved it. It seeks to reserve sea fishing outside the Welsh zone but makes an exception to that reservation for Welsh fishing boats. The notional effect of the amendment would be that the Assembly would have legislative competence for Welsh vessels outside the Welsh zone. However, in practical terms the amendment would have no effect because it seeks to reserve a power which the Assembly could not have. Under the Government of Wales Act 2006 and under this Bill, the Assembly’s legislative competence extends to the landmass of Wales and the sea adjacent to Wales out as far as the seaward boundary of the territorial sea; that is, 12 nautical miles, so as drafted it could have no effect. The Assembly has no legislative competence beyond that 12 miles—

--- Later in debate ---

[Lord Crickhowell (Con)]

My Lords, during earlier discussion on the Bill, many criticisms were made of the lack of information available to us, and I am enormously grateful to my noble friend the Minister for the letters that he has sent us that deal with a great many of those issues, give us a lot of information and promise us more when it becomes available—preferably before Report.

I do not intend to speak about Amendment 105, although the noble Lord, Lord Wigley, spoke almost entirely about it—the one about reservoirs. I entirely understand the strength of feeling and his determination that what happened in the past should not happen again, and I am in no way critical of any proposal that he may put forward under that amendment.

However, Amendment 54 goes a good deal further. It talks about water. I speak with a good deal of experience because, for eight years, I was chairman of the National Rivers Authority and had to deal with some of the issues. We took great care about how we dealt with them. We had a Welsh region, but we were extremely careful to ensure that its work was carried out in the closest possible consultation and co-operation with the English regions that faced it across the frontier.

That was because, whatever the noble Lord may say, rivers do not exactly comply with national boundaries in a helpful way. The water that runs down them, the silt that it carries, the pollution that may be involved, and the fisheries and recreation are all affected, one way or another, by decisions taken on both sides of the water. Therefore, the closest co-operation and discussion is essential.

I refer first to the issue of drinking water and start with the river Severn, which, like the Wye, rises on Plynlimon. It does not originate in reservoirs; it is not, therefore, the subject of most of the points made by the noble Lord; but the water flows across the border and happens to provide a great deal of the drinking water for the midland region of England. Indeed, more than that, because the Severn-Trent River catchment area, an integrated system, carries the water on into eastern England and East Anglia, it is equally important for drinking water in those counties. Therefore, it is crucial that the closest possible co-operation happens on both sides of the border.

The other two main rivers with which we were—and I am—concerned are the Rivers Dee and Wye. The noble Lord, Lord Elis-Thomas, referred in an earlier debate as a keen fisherman to the importance of the Dee, which flows in and out of England, as does the Wye. But for quite considerable stretches they form the border. As I say, the management of that border is of crucial significance in terms of pollution control, flood defence, fisheries and recreation—and the way in which it is managed is of equal importance to those who live on either side of the border.

At an earlier stage in our discussions, we were told that a working party was discussing the exact way in which these matters are handled between the Welsh Assembly Government and the Government at Westminster. I am sure that that is the right way in which to proceed. I hope that by the time we get to Report we will know exactly what the outcome is and will be able to form a view as to whether they meet entirely my concerns and those of the noble Lord, Lord Wigley. But until we have those conclusions presented to us, the noble Lord’s initial Amendment 54 makes no sense at all.

When I was chairman of the National Rivers Authority, I depended enormously on the wisdom of a great Welshman and a great scientist, Professor Ron Edwards. He chaired our Welsh region. Ron Edwards, whose departure and death many of us deeply lament, would have regarded the proposal in its present form with the powerful criticism of which only he was able, and which I could not match. He would regard it as an absurdity, because he would want to have seen in place the kind of arrangements that I hope are now being discussed and which we will know about by the time we get to Report. For that reason, I am opposed to Amendment 54 but full of sympathy for Amendment 105.

[Lord Elystan-Morgan]

I wholeheartedly support everything that has been said with such eloquence and conviction by my noble friend Lord Wigley. My feelings on what the Minister’s attitude might be are summed up in one sentence by a Welsh poet of many centuries ago, Dafydd Nanmor, “Gobeithiaw a ddaw ydd wyf”, “My hopes are for the future”. I am confident that the Minister, who I know has shown himself to be extremely sensitive to the rights and wrongs of situations such as these in Wales, will achieve a solution here that will be just and practicable.

In so far as the past is concerned, I remember very vividly the Tryweryn issue, although it is now more than half a century ago. There was a great deal of humbug involved and less than total honesty in the case put forward by Liverpool, which said, “The people of Tryweryn are deeply religious—they go to church on Sundays but they will not allow their neighbours in England to have a cup of cold water. Fie upon them”. Those are the exact words. But it was all bunkum; it was not drinking water but industrial water that Liverpool wanted, run down the River Dee and diverted from Queensferry to its own ends. It was sold to over 21 other authorities fringing Liverpool and they made millions upon millions out of it, because they chose to rape a Welsh valley. There is no other way of putting it. They stole the land of the living and desecrated the graves of the dead. I feel very strongly about this, even after half a century. I hope that I can forgive, but I doubt whether I can ever forget. However, that all now belongs to the past: Tryweryn must never happen again. I am confident that the Minister’s decision will be such that Tryweryn will not happen again. This does not mean to say that those privileges—call them what you will—that are entrenched in favour of English cities will be changed at all; they will remain as previously.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Elystan-Morgan (CB)]

My Lords, I very much regret that I must disagree respectfully with the submissions of the noble Baroness. Looking at it in a very narrow constitutional context, the issue is a massive irony. On the day the Supreme Court unanimously gave its judgment in the agricultural workers’ wages case, there was an epoch-making decision that changed the whole face of Welsh devolution. Until then, people had thought devolution was a fairly limited matter, limited to the specific expression of matters transferred, minus matters that were reserved. Nobody had conceived of what we might call the massive silent transfers, with which the decision of July 2014 was involved.

The irony we face is that that is the state of the law. It was the unanimous decision of the Supreme Court. There is no appeal from it. That is the state of the law at present. If the Bill passes in its present form there is a massive row-back, diminution of status and deduction of authority as far as Wales is concerned compared with the decision. I know I need not press the point with the Minister, who is an excellent lawyer and well understands this matter. If there is no change in this matter, there is a massive diminution of authority for Wales compared with that decision. That is the irony.

When the then Prime Minister, Mr Cameron, stood, as noble Lords will remember, in the grey dawn in Downing Street after the Scottish referendum—which was after the Supreme Court decision we are referring to—and said that Wales is at the very heart of devolution, what if he had said, at the same time, “Mind you, there’ll be far fewer rights for Wales when we’ve finished with the Bill than there are at present”? What would people have said? That is exactly the situation I put to the House. It is so plain and obvious that I do not think there can be any controversion regarding it at all. Although one may say it is politic to change the situation, it means doing so in such a way that would diminish the rights of Wales relating to devolution massively.

[Lord Murphy of Torfaen (Lab)]

My Lords, I support the points made by my noble friends Lord Hain and the noble Lord, Lord Elystan-Morgan. I, too, spoke during the passage of the then Trade Union Bill. I hope the Minister will reply to the debate with greater knowledge of the devolution settlement than his colleague did. Inevitably, his ministerial colleague looked at it from the point of view of employment throughout the whole of the United Kingdom. This is not about that, however: my noble friend made it absolutely clear that employment law is reserved. This is about public services in Wales and how industrial relations operate within them.

Since these public services are wholly and exclusively devolved, so should be the modest industrial relations consequences that flow from that. We are talking not about strikes, but about the possibility of public bodies allowing their workers to have their wages docked for trade union subscriptions and about allowing public workers to have full-time officials paid for in those organisations. These are not revolutionary or tremendously difficult issues; they are issues that affect public services. The constitutional point that the noble Lord, Lord Elystan-Morgan, made is crucial to this, because it strikes at the heart of the devolution settlement in Wales. That is why the Welsh Assembly is taking it so seriously that it has promised it will legislate to change the trade union law in so far as it affects public services in Wales. That could be avoided at a stroke were the Government to agree to my noble friend’s amendment. They probably will not, but they will cause a huge amount of trouble to build up in the months and years ahead.

In the agricultural workers’ case, the Supreme Court made it clear that the service was devolved to Wales and that the industrial relations aspect of it was therefore devolved as well. Nothing could be clearer than that, so why are we entering a war with the Welsh Government and the Welsh Assembly on this issue? It is a pointless war which will not be won. I hope the Minister will give some hope to us. If he does not, I am sure the issue will be raised again on Report. If the amendment is unsuccessful then, the Welsh Assembly will pass a law and the Supreme Court might become involved. Why are the Government doing this when there is no need for it? The public services are devolved. I urge the Minister to think carefully about his reply.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, most of the debate has so far referred to the necessity to devolve control over Welsh broadcasting to the Welsh Assembly, and the arguments have all been made in structural terms, but I want to put in a word for S4C. It is very good. Its children’s programmes in the morning are outstanding and are carried worldwide in various languages. Its farming programmes and programmes about the natural world are also outstanding, and the sporting coverage probably takes up more of my weekends than anything else on television. In fact, I spend quite a lot of time in Scotland, and when I am there my wife is amused to see that, much of the time, I am watching S4C. I am saying nothing about Scottish broadcasting, but there we are. It is not just the sport, of course—it is the musical tradition as well. It is heartening to see so many young people taking part in classical music and choral works, as well as in much more modern music. It is excellent, and we cannot allow this debate to come to an end without making that clear.

[Lord Elystan-Morgan]

My Lords, I greatly appreciate the kind and generous words of the noble Lord, Lord Thomas of Gresford, on S4C. I support the amendment completely, but there is a possible compromise, if I may be so bold as to suggest it. Many months ago, when the question of the BBC charter was mentioned, I asked the Government whether they would be prepared to have in-built in the charter a guarantee on the adequate financing of S4C as well as on its independence and future. The reply that I received was somewhat anodyne, but I was assured that so great was the affection of Her Majesty’s Government for the Welsh language that I had nothing to fear at all. It may be that that is a compromise that would guarantee effectively the future of S4C, its independence and its finance, and I commend it to the noble Lord.

[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.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Murphy of Torfaen]

I am grateful to my noble friend. I want in particular to support my noble friend Lord Hain and his two amendments. For the whole of the Labour Government—from 1999 onwards, anyway—he and I held the position of Secretary of State for Wales between us. Two things emerged which were themes in that job—he has already touched on this. One was ensuring that there were good relations between the Assembly in Cardiff and the Government and Parliament in London. It seems to me that Amendment 120, which talks about the legislative consent Motion, is a vital link. I do not think that this Bill would be worth anything unless the Welsh Assembly agreed with it. It would be a pointless, meaningless Bill.

More particularly, on Amendment 120A, with regard to the fiscal framework, the Minister—and his boss—will know that relations between spending departments and the Treasury are never easy. Most of my time as a territorial Secretary of State was spent in negotiations with a less than benevolent Treasury, even when we thought that there was a lot of money about. It would try to stop and, occasionally, it would try to obstruct. I will not rehearse the arguments that we had some days ago on the devolution of income tax and a referendum but the danger with the devolution of income tax is that the Treasury will do its best to ensure that it keeps as much money as it can in negotiations between the Welsh Assembly—and the Secretary of State and Minister acting on the Assembly’s behalf—and the Treasury. There is an important issue here that, if the way in which the Assembly gets its money is to be dramatically changed—it is a dramatic change; I expressed earlier that I am quite dubious about the good effects of that—it will not necessarily be in terms of the democratic nature of income tax but the practical, realistic figures that result from its introduction. The people of Wales must not lose out upon the introduction of income tax powers for Wales and, ultimately, there should be a benefit to the people as a consequence of this new fiscal framework.

I know that we cannot hold up a crystal ball, but my noble friend made a very powerful case with regard to the resource base in Wales. We are not a rich nation and the amount of money that we can raise in income tax is low, as has been indicated even today in the figures that the Government have put out with the Autumn Statement. The amount that comes from every penny raised in Wales is effectively much less than can be raised in the rest of the United Kingdom, because of the need to ensure—as my noble friend rightly said—that we share and distribute our resources.

This amendment asks the Minister to tell us—on Report I assume, by which time there will hopefully have been an agreement on the fiscal framework—that the Bill should not proceed unless that fiscal framework is such that it is, at worst, neutral, and, at best, an improvement for the people of Wales in terms of what they get out of the settlement. There is no point in having a Bill that introduces the devolution of income tax if the Welsh people are going to be worse off because of the interrelationship between that and the block grant.

I have great pleasure in supporting all the amendments that have been proposed this evening.

[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

Lord Elystan-Morgan Excerpts

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

[Lord Thomas of Gresford]

My Lords, to follow on from what the noble Lord, Lord Morgan, has just said, I have looked at the government amendments with some care and notice that Amendment 45, which sets out the proposed water protocol, refers to a,

“serious adverse impact on water resources in England, water supply in England or the quality of water in England”,

and, conversely, water resources in Wales. What is not contained there is the impact on the social and environmental character of Wales from any proposal that may be brought forward for the extraction of water from Wales. When the Minister referred to Amendment 44 in the name of the noble Lord, Lord Wigley—that the extraction of water from Welsh reservoirs shall require the legislative consent of the National Assembly for Wales—he said that we need not worry about that because there is already environmental law that will protect the people of Wales from the building of reservoirs that would have such an environmental or social impact. I would like the Minister to state quite clearly that there will be no reservoirs built in Wales without the consent of the Welsh Assembly. I think that that must be said. Whether it is due to the existing position or the proposals he has brought forward in these amendments, I do not care. I just want it to be absolutely clear what the position is.

[Lord Elystan-Morgan (CB)]

My Lords, I take exactly the same view and support completely everything that has been said by the noble Lord, Lord Wigley. I have, as the House well knows, spoken with bitterness and rancour on many previous occasions about what happened 50 years ago in Tryweryn in Wales. I make no apology for that. However, I jumped with joy when I had the impression—as I think every other Member of the House had the impression—that this matter had been settled once and for all on the previous occasion. I would have preferred it to have been included in an Act of Parliament as a matter of primary legislation, but I was perfectly prepared to accept the word of the Minister, a most honourable and splendid Minister whom we greatly admire, that this matter would be settled on the basis of a protocol. Now, it seems that that is left drifting in mid-air.

The noble Lord, Lord Wigley, speaks of a pig in a poke. I have no doubt that he is perfectly correct in that. There is no certitude at all now in relation to this matter. I feel that I acted rather foolishly when, some weeks ago, I, like many others, joined the choir of those on radio and television who revelled in the fact that this matter had been solved and a long-standing injustice had been righted. Although clearly there should be some further undertaking with regard to a protocol, I hope that the Minister will say tonight, in strict terms, that there will be no further Tryweryn—never, never, never.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I defer to my noble friend Lord Crickhowell’s specialist knowledge on fisheries and will restrict my comments to the general. I will also happily endeavour to follow the suggestion of the noble Lord, Lord Morgan, to limit contributions to under two minutes.

I spoke in Committee in support of reserving powers on consents for energy, on the basis that energy policy is so important as to be part of a national strategy determined by Westminster. On this occasion, however, I am delighted to support the devolution of matters relating to water and sewerage to the Welsh Government. As I hope will be mentioned today, and as was so passionately and eloquently referred to in the last debate on the Bill by the noble Lords, Lord Wigley and Lord Elystan-Morgan, this decision should put right a long-standing injustice following the flooding of the Tryweryn valley in 1965.

I welcome the positive steps that the Government have taken to put in place a comprehensive devolution settlement for water and sewerage in Wales. The amendments on this subject brought forward today reflect a clear devolution boundary on these matters. This, in turn, reflects the clearer boundary between devolved and reserved powers which underpins the new model of devolution set out in the Bill. Importantly, it includes a new statutory agreement, the water protocol, between the UK Government and the Welsh Government, setting out how they will work together in future on water and sewerage matters and how any disputes will be resolved. This replacement of intervention powers with a statutory intergovernmental agreement reflects the maturing of the relationship between the two Governments, one that is based on working together and resolving issues by discussion, rather than relying on powers of intervention. I particularly welcome the move to make this agreement reciprocal, with the same duties on the Welsh Ministers and the Secretary of State to have regard to the interests of consumers in both England and Wales respectively in exercising functions relating to water resources, water supply or water quality.

We must all hope that, as predicted by the noble Lord, Lord Wigley, on the last occasion, these decisions will be welcomed by every party in Wales and will put to rest any lingering rancour and bitterness that the tragic drowning of the Tryweryn valley created.

--- Later in debate ---

[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.

[Lord Elystan-Morgan]

From what the Minister says, it seems pretty obvious that the protocol will not be in existence before the Bill receives royal assent. So one will be left with some sketch on the part of the Minister. That is not the ideal way of doing things, but I am sure that we would be prepared to accept the word of the Minister on what the basic content of the protocol will be.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Rowlands (Lab)]

My Lords, I support the amendments, which are similar to those that I had the pleasure of moving in Committee. Since then, we have had a most interesting and informative letter— yet another Bourne letter, I may say; the collected correspondence of the noble Lord, Lord Bourne, is becoming voluminous—that is extraordinarily revealing. It appears that if we have bad habits, other Assemblies, including the Welsh Assembly, are now catching them. The letter tells us:

“In 2015 and 2016, eight out of the twelve Acts passed by the Assembly included a power for Welsh Ministers to make consequential amendments to Acts of Parliament”—

that is, our Parliament—

“without any role for Parliament to scrutinise such secondary legislation”.

It turns out that the Assembly is doing exactly what we are threatening to do. It is bringing in legislation, including Henry VIII powers, that will then be used to amend legislation, primary and secondary, that this House has passed. That is a constitutional absurdity and we have to put a stop to it at both ends.

In fact, not only has the Welsh Assembly taken these Henry VIII powers in eight of its 12 Acts, it has exercised them already. In three cases it has amended our primary legislation without our knowing or being consulted. I do not know who was asked. I ask the Minister to elaborate on this, because it is all in his letter. Another four pieces of secondary legislation have been made by the Assembly that amend SIs made by the UK Parliament. So there are three pieces of primary legislation and four secondary that have been amended by the Welsh Assembly, using their Henry VIII powers, without either this House or the other House knowing.

I have the privilege of serving on two committees of this House that spend a lot of time on secondary legislation, as well as the Joint Committee with the Commons. They are most impressive committees. An enormous amount of effort is taken and thorough, diligent work is done by the legal advisers and the members of the Committees. We pore over our draft statutory instruments and report if there is any special reason—if we need to draw attention to defective drafting, in the case of the Joint Committee on Statutory Instruments, or to vires issues or broader issues in the case of the Secondary Legislation Scrutiny Committee.

I am astonished that we spend all this time making sure that we bring to this House statutory instruments that are fit for purpose, yet I now find that another Assembly—the Welsh Assembly—has amended the statutory instruments that we have so carefully prepared. I do not know how it has amended them; I do not know the nature of the amendment—I will press the Minister to explain in a minute—but this is the sort of situation that we get into. It is a sort of inter-ministerial legislative stitch-up: “You can amend it in your legislation —it is sufficient, it saves time and it is convenient”. Neither House should be interested in ministerial convenience. It is our job to be inconvenient at times, and I believe we should be in this case.

Will the Minister now tell us, based on the letter he has sent us, which sections of which Acts of Parliament—primary legislation—the Assembly has amended? I do not have a clue; none of our committees seems to have found out about it. Secondly, which statutory instruments have been amended by the National Assembly and which paragraphs of our statutory instruments have been changed? We have to put a stop to this; we have to put our foot down. I will read the last paragraph of the letter:

“There was no requirement for Parliament to scrutinise any of this legislation”.

It appears that Parliament was not party to any of this legislation, only Ministers. That is not true. Acts of Parliament and statutory instruments belong to this Parliament as much as they belong to Ministers; they are as much our constitutional property as they are that of Ministers. We need to put our foot down and find ways and means to ensure that this will not happen again. It is now happening to us, as we threatened to do it to National Assembly legislation. Let us put a stop to it, please.

[Lord Elystan-Morgan (CB)]

My Lords, I wholeheartedly agree with the submissions made by everyone who has spoken on this matter. If I may say so, my heart swelled with pride at the wholly magisterial and superb condemnation of the situation by my noble and learned friend Lord Judge.

This provision has no place in the mores or principles of the 21st century. It is a remnant of a monarchical diktat. Although it does not seem to have been abused by government at all in recent years, but used only for something utterly mechanical, it is still the letter of the law—a law that, I submit, is indefensible. I hope the Minister will not seek to defend the indefensible when he replies.

In Committee, I cited a book written by a former Attorney-General, Sir Gordon Hewart, in the late 1930s, entitled The New Despotism. He was worried about the powers being exercised daily by Ministers in such a way as to circumvent Parliament. He was not dealing with this problem but with positive powers allowing Ministers to make regulations in a wide field. What he would have said of this, I just do not know. It is an anachronism that we must get rid of, because it has no place whatever in the fundamental basis of our parliamentary system in the 21st century.

My name is down to Amendment 68, which covers this situation and goes a little further. It deals not just with the Cardiff Assembly but Westminster. I appreciate there is a distinction between them, as my noble and learned friend pointed out, but I thought it proper to include both for this reason. Most of the legislation that affects Wales and creates devolutionary powers for Wales does not come from Cardiff—it comes from here. For that reason, I should have thought it entirely proper to include it in the condemnation, which should be regarded as utter and absolute, of these Henry VIII powers.

I therefore ask the Minister to say yes. It may well be that there is no abuse of these powers and that no modern Government would dream of abusing them, but that is the letter of the law. It is a dangerous law and one that has no place in our day. Let us get rid of it as soon as possible.

Wales Bill

Lord Elystan-Morgan Excerpts

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

In conclusion, it is important to realise that, although some very worthwhile progress has been made, the Government must shift their ground on the issue of legislating on ancillary matters. Otherwise, they are heading for bitter confrontation—and that is not something that any of us want.

[Lord Elystan-Morgan (CB)]

My Lords, I rise to speak to Amendment 78. However, before so doing, I want to say first how delighted we are that the Minister is safe and sound with us. I must say that a doleful bell rang in my memory. In 1968, I was a Minister in the Home Office and on that particular day had Question 77 to answer. I was assured by somebody who might have known better that there was no prospect whatever of it being reached. However, in my nonconformist ignorance, I had not realised that it was Epsom week and that a large swathe of a particular party was disporting itself at Epsom. I still regard other persons as having some responsibility for that. On the other hand, there was a high degree of contributory negligence on my own part. However, we are very delighted that the Minister is with us. I doubt whether any Minister has ever attended a Bill with greater integrity, enthusiasm and candour as has the noble Lord, Lord Bourne, in this matter.

I wholeheartedly support everything that the noble Baroness, Lady Morgan of Ely, put forward as a background to the matter my proposed amendment deals with, which is demarcation. It is an attempt to try to draw a clear and understandable line between the authority of this Parliament and the authority of the Cardiff Assembly. As one brought up in the countryside, I have always espoused the adage: good fences make good neighbours. I have no doubt that there is massive truth and realism in that in relation to constitutional matters.

Devolution is both an end in itself and a means to an end. Essentially, what it means to me is that it is possible for a number of communities within the same kingdom and the same sovereign state to be able to share responsibilities of an administrative and, more particularly, legislative nature. That can be done only if there is a clear understanding of where the equitable point of balance—the watershed—exists in relation to the division of the two bodies. How do you find that? You do not find it in any criteria set down by a court of law or in an Act of Parliament; nor, if I may say so, do you find it in the learned writings of eminent jurists. You find it in each case by using instinctive common sense and an understanding of the justice of the situation.

If we look at European sub-Parliaments, there is no clear, consistent rule as to exactly where the boundary is drawn, but they have all espoused a common approach to the problem. It has been an approach that they accept, historically and socially: that there is what might be called a watershed and that certain matters flow inevitably to the general sovereign Parliament, while others inevitably and physically flow to local decision. That is the way that we should approach this matter in relation to Wales.

Of course, that has simply not happened. It is not as if the Government had set out their criteria for deciding what was local and what was general. As far as the outside world is concerned, it is a wholly haphazard ragbag of reservations—197 of them. I have looked carefully at the situation in Scotland and Northern Ireland and there is nothing approaching that concentration of reservation in either of those countries. Indeed, it is not just a question of the number of reservations, but the sheer triviality. One could spend many doleful hours going through those lists.

I shall not repeat what I have said on more than one occasion in the House on that, but I will say that the Minister, as an able and distinguished professor of law, will know full well that under certain local public health Acts and local government Acts over the last century and a half, it was possible for local authorities of a modest nature to adopt certain modest rules. They effectively became local law. That happened on scores and scores of occasions. The Minister is probably in a better position to advise the House than anybody else, but interestingly, many of the 197 exceptions that we have would have been included in those very provisions. Is that not a massive irony?

My case therefore is this. The Government, intentionally or unintentionally, have managed to make a thorough and chaotic mess of this situation. There is no rationale as to why certain matters are reserved and others are not. No criteria are suggested at all. In so doing, a very great disservice has been done both to the principle of devolution and to the principle of subsidiarity, if there is a difference between the two. One may very well argue that one is talking about the same central principle. But as the matter now stands Her Majesty’s Government have devalued the whole principle of devolution and trespassed on the noble principle of subsidiarity, cynically reducing it to something wholly ineffective.

The purpose of the amendment is to seek not so much to cure the situation in which we now find ourselves, because that would take something much more fundamental, but to start a process of examining it in detail. The amendment would impose on the Secretary of State for Wales the obligation to set up a working party to report within three years on the operation of each and every one of the reserved matters, and to report to Parliament regularly on such progress. That would not answer the question altogether, but it would be a helpful way of approaching the problem. That working party should represent as broad a social and political spectrum as is humanly possible.

Perhaps I may make a suggestion to the Minister. If the Secretary of State wants to use something off the shelf to address this matter, he could do far worse than ask the Silk commission to sit again and consider this point. The Minister knows more than anyone else in the House about the commission, having for many years been one of its most distinguished members. The commission has reported on two occasions in a mature, diplomatic and thorough manner on Welsh constitutional matters, and it could do so again. On that basis, I urge the House to consider that this amendment is of real constitutional importance. It does not completely cure the problem but it is a hopeful way of setting about resolving it.

--- Later in debate ---

I know what the Minister will say: he will refer to the sovereignty of Parliament. Of course, as some sort of constitutionalist, I understand what is meant by “the sovereignty of Parliament”, but, with all due respect to this House and the other House, in reality that sovereignty is the legislative aspiration on the part of the Parliament—because, clearly, the sovereignty of Parliament, by its own decisions, has been delegated in different areas. This is the nature of devolution and we are now in a situation where the Parliament at Westminster has devolved powers to Wales and created a legislature that has had primary legislation since 2011. That legislature should therefore be treated as an equal partner in any future discussions.

[Lord Elystan-Morgan]

Does my friend, the noble Lord, Lord Elis-Thomas, accept that whatever might be said about the purity of the principles that he puts forward—principles which the late Professor Dicey might very well have approved of—there is nevertheless a huge gap to be made up between the situation that existed on the day in July 2014 when the judgment was given in the agricultural workers’ cases, and the consequences of the Bill? To my mind, the gap in terms of actual devolution might be 20%, 30% or 40%. It is massive and until that gap is made up the noble Lord’s theory, for all its general attractiveness, does not really apply.

[Lord Elis-Thomas]

I appreciate being given the authority of Professor Dicey but the real situation is that these issues will be resolved through the public political debate that will continue about the constitution of Wales and all other constitutions, because that is the sign of a vibrant democracy. It is therefore not an appropriate subject for a working group, led by a Secretary of State or whomever—and I would say the same thing about a working group led by the First Minister of Wales or the Presiding Officer of the Welsh Assembly or the Lord Speaker or the Speaker of the House of Commons. The issue is not about how that debate takes place: it is whether we need to place in statute, on the face of the Bill, the creation of a working group that would somehow have responsibility for delivering Wales from any constitutional weaknesses that it has as a result of the Bill.

--- Later in debate ---

Moved by

[Lord Elystan-Morgan]

78: After Clause 3, insert the following new Clause—
“Working group to review reserved powers and functions
(1) The Secretary of State for Wales shall, within three months of the day on which this Act is passed, set up a working party to report upon the operation of each and every power and function reserved to Parliament under Schedule 1 to this Act.(2) The working party established under subsection (1) shall, within three years of its establishment, report to the Secretary of State upon the operation of each and every power and function reserved under Schedule 1 to this Act, and make such representations as are appropriate as to whether the continued operation of such reservations is appropriate in the current context of devolution.(3) The Secretary of State shall publish the report and recommendations made under subsection (2).”

[Lord Elystan-Morgan]

My Lords, I shall beg leave to withdraw the amendment, but at the same time I want to—

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

Are you withdrawing the amendment, or do you want to speak to it?

[Lord Elystan-Morgan]

With the leave of the House, I beg leave to withdraw the amendment.

Amendment 78 withdrawn.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Thomas of Gresford (LD)]

My Lords, some 3,000 years ago, Homer wrote in the Iliad that after the battle men like to reminisce about their prowess in the fight. Some 10 or 15 years ago the tributes and thanks were getting so extensive that the decision was taken that such tributes would no longer be heard at Third Reading. However, just as referring to people at the Bar is now commonplace—any Member of Parliament or Minister who comes to the Bar tends to get a mention these days—so that tradition, in which I firmly stand, has been eroded. Therefore, I confine myself to thanking the noble Lord, Lord Bourne of Aberystwyth, who has done a brilliant job in listening to all the complaints, some of which were completely without foundation. He has reacted very well. Lastly, I thank my noble friend Lady Randerson, who was part of the team in the coalition Government when the Bill was in its infancy. She played an important part in framing the way it progressed.

[Lord Elystan-Morgan (CB)]

My Lords, I strike a concordant note in joining with all others who have expressed so genuinely their appreciation of the Minister’s efforts in this matter. He has been a model of courtesy and accommodation in so far as it has been humanly possible for him to be so. Had he been invited to draft the Bill we would have had a very different piece of legislation before us, but that was not to be.

Although the Welsh Assembly yesterday gave its seal of approval to the Bill, although a reserved constitution has placed Wales technically in the same field as Scotland and Northern Ireland—a matter of constitutional significance—and although this is the third occasion when there has been a very thorough examination of the Welsh constitutional position in the short space of 19 years, nevertheless the Bill cannot be regarded as a great leap forward in the field of devolution at all. I say that because it seems to me that, compared with the situation Wales found itself in two and a half years ago after the agricultural workers’ wages case was decided by the Supreme Court, we are far behind where we were on that occasion in so far as the sum total of legislative and devolutionary authority is concerned.

When the Scottish referendum concluded and the Prime Minister, in the grey dawn of that morning, walked to a microphone in Downing Street, he uttered the words that Wales will be at the very heart of devolution. I was stirred and cheered by those words, but had they been followed with the prophecy, “But bear in mind that 27 months from now the range of devolution will have been very severely cabined, cribbed and confined by a Bill called the Wales Bill”, I am not sure my attitude would have been exactly the same.

There is no doubt that there has been a faint tinge of old colonialism relating to this situation—something I have referred to ad nauseam. I make no apology for that. It is the attitude somewhere or another that small, insignificant powers that are wholly classically local in their character must somewhere or another be withheld from Wales. I hope that will change. I hope future Governments will accept that we are no longer in a colonial era—that:

“The old order changeth, yielding place to new”.

It may well be that the Government think they have thrown away many of the difficulties relating to devolution in Wales, but not all things thrown away stay thrown away. There is a tale that David Lloyd George used to tell of one of his erstwhile colleagues, a person who had changed his attitude very considerably to former policies. Somewhere or another they came back to him again and again. Lloyd George likened it to the position of an old Aboriginal chief who was utterly fed up with his boomerang and threw it away. It did not matter whether he threw it in a sharp curve or in wide curve; back it came again and again. I end with the admonition to government: never forget the boomerang.