Wales Bill

Lord Thomas of Gresford Excerpts

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

[Lord Thomas of Gresford (LD)]

My Lords, I congratulate the noble Baroness, Lady Bloomfield, on an excellent maiden speech. I was delighted to hear of her interest in green energy and that she is a supporter of the Swansea lagoon. But, more importantly, she is a harpist. I thought that I was the only harpist in this assembly. Having learned the instrument for some years, I hope that we can twang from the same legislative hymn-sheet over a number of years.

Fifty years ago, in the autumn of 1966, in a Wales rocked by the Aberfan disaster, I sat down and drafted the Parliament of Wales Bill, which Emlyn Hooson presented in the House of Commons on 1 March 1967. The noble and learned Lord, Lord Morris of Aberavon, will be delighted to know that I decided to call that Parliament a Senedd. It was to have 88 members, be elected by proportional representation, of course, and have powers to legislate,

“for the peace, order and good government of Wales”,

with powers to raise taxes, other than income tax and certain other taxes. The Bill reserved to the Westminster Parliament defence, foreign affairs, currency, international trade, law and order and social security.

I have been looking through the Bill before us in the course of this debate to try to work out how many of the 200 reservations in it could come under those much more simple headings that I put in my Bill. By Clause 9(5) I provided for elected members to be paid £2,250 a year. It happened to be £250 more than I earned at the time as a law lecturer, and I thought that that would suffice. It promoted a ministerial system of government.

The political context of 1966 was that Harold Wilson had won the election and the noble Lord, Lord Elystan-Morgan, had turfed the Liberals out in Ceredigion. I was a bit miffed about that, because I had voted for him in 1964, when he was the Plaid Cymru candidate in Wrexham. In July 1966, Gwynfor Evans won the Carmarthen by-election on a platform which called for Commonwealth status for Wales. How delightful it was to hear dominion status being argued again—Saunders Lewis wanted that when he first set up Plaid Cymru in the 1930s.

[A noble Lord]

The 1920s.

[Lord Thomas of Gresford]

I thank the noble Lord. I did not realise that it had such a long history. At the same time, a small group of us, led by Emlyn Hooson, formed the Welsh Liberal Party, and the first president was Sir Alun Talfan Davies, so I was delighted to hear the reference made by the noble Baroness, Lady Finn, to her relationship with my old friend and colleague. If she belongs to the Talfan Davies family, it is as though she were born into the crachach. Our first task, we thought, was to clarify the Welsh Liberal approach to devolution. That was the purpose of my Bill, and I gave evidence about it to the Kilbrandon commission in 1968, which was mentioned earlier.

Gwynfor was a supporter of our Bill, as was SO Davies from the Labour Benches. However, when in June it was listed for Second Reading, it was objected to by the Labour Government and the Conservatives and it fell. When introduced into the Lords by Lord Ogmore in January 1968, Labour and Tory Peers blocked it in the usual way, by an amendment that it should be heard six months hence. The noble Lord, Lord Murphy of Torfaen, was obviously born into that tradition. It will be no surprise, therefore, that we on these Benches support the reserved powers model contained in the Bill, although the principle could be much more easily expressed. Fifty years on, it is comforting if not a little frustrating, to find that the Constitutional and Legislative Affairs Committee of the Welsh Assembly, with Labour, Conservative and Plaid representation but no Liberal, have concluded in paragraphs 83 and 84 of its report that the words,

“make laws for the peace, order and good government of Wales”,

would indeed confer plenary law-making authority on the National Assembly. I agree. But in one area I disagree with the CLA committee: that of a single jurisdiction, which your Lordships have debated today.

Because I was a purist in 1966, Clause 19 of my Bill set up a separate Court of Appeal and revived the Court of Great Sessions, to which the noble Lord, Lord Morgan, referred, with its own judges and its own Attorney-General, and a single legal profession. This would obviously have involved the creation of a separate Welsh jurisdiction. I topped it with a Chief Justice of Wales, and to tell the truth, I rather fancied the position myself—it was something to work for. As the noble Lord, Lord Morgan, said, the Court of Great Sessions in Wales was set up in 1542 and lasted until 1830. It had full King’s Bench and Chancery civil jurisdiction and full criminal jurisdiction. My Bill proposed the abolition of the assizes, which at that time took High Court judges around Wales, and the creation in Wales of six permanent courts. That in fact happened in any event in the reforms of the court system in 1972.

However, since those halcyon days I have had practical experience of separate jurisdictions. I practised in Hong Kong, Singapore, Malaysia and the Caribbean, which have inherited the common law and the judicial system of the United Kingdom from their colonial past, and it works. Two or three years ago, I was anxious to appear pro bono in a Scottish court on behalf of neighbours in Scotland who were being sued in an intellectual property dispute. I discovered that admission to the Scottish Bar would be at the discretion of the Dean of Faculty and that I would have to pass an aptitude test, which involved—this is two years ago—a written examination paper in the Scots legal system, constitutional and administrative law, written examinations in two of three special subjects, and oral examinations in the criminal law and either contract or delict. Fortunately, the case was withdrawn, with the costs payable to my friends.

In Northern Ireland, the system is that temporary membership may be granted by the Northern Ireland Bar Council committee for a specific case but will be granted for a maximum of three occasions. A glance at the regulations governing the Irish Bar indicate that a European lawyer may have rights of audience before a court in Ireland but only if he appears in conjunction with a full member of the Irish Bar. Therefore the pattern of all these is that despite the EU lawyers establishment directive 1998, which attempted to make legal qualifications interchangeable across Europe, each jurisdiction in these islands is jealously guarded. The creation of a separate jurisdiction for Wales implies not just separate courts but separate qualifications and separate rights of audience. The noble Lord, Lord Howarth, referred to that. If they can, lawyers lose no opportunity to create an exclusive world. At some future point a zealot might even perhaps call for a qualification in the Welsh language for all lawyers licensed to practice in Wales. After all, there is a right to use the Welsh language in every Welsh court.

In my early years, the Wales and Chester circuit included the Birkenhead courts, because Cheshire then extended to Birkenhead. As a result, we charged any members of the Liverpool Bar who had the temerity to cross the Mersey £5 a case. With that money we built up a fine circuit wine cellar for the Chester Bar mess, which served us very well for years—and, of course, an enduring enmity with the barristers from Liverpool.

There is of course a distinctive body of Welsh law, not only the legislation passed by the Assembly but the inheritance of the common law and of existing acts which relate to areas of policy which are not reserved to Westminster. Current laws in those areas will continue to apply as at present in Wales, even though Westminster amends, updates, repeals or changes them. But there is no need for procedural change in the justice system. The principles of statutory interpretation will remain the same and, unlike Scotland, the language of the law will be the same. There will be nothing to confuse any lawyer qualified in the usual way.

Furthermore, as has been pointed out, there is already an administrative court to deal with judicial review and similar applications involving the interpretation of the legislation of the Assembly. The Lord Chief Justice and Mr Justice Wyn Williams are today sitting on an appeal against Welsh Ministers in Swansea Crown Court in the Administrative Court for Wales. No doubt a number of specialists in this limited type of work will emerge, but that is a very far cry from a wide, separate jurisdiction. Noble Lords should beware of lawyers and academics who might call for just such a jurisdiction simply to corner the market.

I would deplore any extension of legislative powers in criminal law and private law in a way that would create significant disparities with the law across the border. I am sure we will examine where the Assembly has a role to create offences or civil remedies to enforce breaches of regulations in areas which are devolved and not reserved, but it must be limited.

No doubt we will discuss the specific reservations of powers. I was interested in the discussion about the Sunday Closing (Wales) Act 1881. I recall emerging from my Welsh chapel Sunday school at an early age to see queues forming at the bus stop in Wrexham high street. Where were they going? They were going to the pubs in Farndon on the English side of the border. The noble Lord, Lord Howarth, said, “Well, if Wales wishes to be virtuous, so be it”. I have never knowingly relinquished my membership of the Band of Hope, so I will fight for the right of the Assembly to turn Wales dry again if that is what the people of Wales want.

The powers relating to water affect me very much. A member of my family comes from Tryweryn. The village was drowned, along with a nearby farm. Lord Hooson and I appeared for the local people when there was an attempt to drown the Dulas Valley. Lord Cledwyn announced at the end of that inquiry that no Welsh valley would again be drowned in order to provide water for England. So I am with anybody who wants to have the powers relating to water devolved to Wales.

I have always believed in, and campaigned for, a Parliament for Wales but we must keep a sense of proportion. We must resist the temptation, for the sake of purity, to grasp and grasp, and grasp again, for a quasi-independent state. This Bill should be about the practicalities of good government. I join in the tributes to the noble Lord, Lord Bourne, to Stephen Crabb and to my noble friend Lady Randerson for all the work that they did in bringing about the St David’s Day agreement. There will never be an end to the process unless we finally sort out the fiscal framework for Wales, and I hope that before the Bill is finished we will hear more about that from the noble Lord at the Dispatch Box.

Wales Bill

Lord Thomas of Gresford Excerpts

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

[Baroness Morgan of Ely (Lab)]

My Lords, I tabled Amendments 4 and 5 to establish a justice commission for Wales. Like the noble Lord, Lord Wigley, I apologise for not having the legal background or brilliance of the noble and learned Lords, Lord Hope and Lord Judge, to speak as I would like on the amendments, but I will do my best.

The noble Lord, Lord Wigley, made some relevant and serious points which need to be considered. It is premature to establish a separate legal jurisdiction for Wales, but there is without question an issue that needs to be addressed. I shall briefly summarise the background and explain why the commission is needed and what it would achieve.

There is clear consensus among constitutional and legal experts that there is a problem here that must be addressed. The creation of the National Assembly as a legislature with primary legislative powers, operating within a single jurisdiction of England and Wales, creates a situation which will throw up difficulties in the medium to long term. That single legal jurisdiction, to quote from those who have promoted this Bill in the other place, “has served us well”. Yes, it may have done that, but it has served us well in different times. It served us well when the laws that applied across England and Wales were the same laws—when this place was the only legislature that could enact the laws of the jurisdiction. That is no longer the case and has not been for some time.

It is worth emphasising the point made by the noble Lord, Lord Elis-Thomas. There is no question but that the UK’s Government’s anxiety to protect the joint jurisdiction is the source of many problems in the Bill. We accept that some constraints have been removed, but there remain many reservations and restrictions whose primary purpose is to protect the consistency of law across England and Wales. The problem is that that consistency no longer exists: the horse has already bolted. The reality is that there is already a growing divergence of law which is the inevitable consequence of legislative devolution. The law on education, planning, the environment and social services is now fundamentally different in Wales. Without reform of the jurisdiction to reflect this divergence, there are risks to the rule of law and the administration of justice. By necessity, a single jurisdiction involves a single body of law that extends across its territory. A single jurisdiction implies that the law is the same across that territory. The laws of England and Wales—already vast—must now absorb the increasing divergence between laws that apply only to Wales and those that apply only to England. This is highly complex, so how can we be sure that the citizens will understand the law or even that solicitors, barristers and judges will apply the correct law? This is not a debating point: these are real practical risks and they are increasing.

This issue demands a serious response and the UK Government see no need for concern on the grounds that this single jurisdiction has served Wales well. That misses the point. The shared jurisdiction served Wales well for four and a half centuries when Wales did not have its own legislature. That is no longer the case. The single jurisdiction is out of sync with the way that Wales is governed. It has not caught up with reality. But it is okay, because we have a glimmer of hope. All is going to be fine because the Ministry of Justice has set up a working group—what in Wales we call a committee—of Whitehall officials. The noble Lord, Lord Crickhowell, referred to this. Its birth was not auspicious: it was a party to which the Welsh Government were apparently invited but had not received their invitation. Never mind: it has now met, but we and the Welsh Government are in the dark as to its progress. Will the Minister enlighten us on some key points in relation to that working group? How many meetings has the group held? What engagement has there been with legal practitioners who understand the day-to-day realities of practising law in Wales? What is the work programme and when can we expect to see the report? Will we have it before Report stage?

It is an incredible coincidence that today, when we are debating this, the Welsh Government have received an invitation to the working group’s second meeting. That is great news, but we should be concerned that that progress is not a serious way of demonstrating a commitment to the fundamental importance of this work. This is why we think it is important to bring forward a commission on which the Welsh Government have equal status and to which they are able to bring their expertise and that of those who have real knowledge of the Welsh justice system. We have no confidence that this informal working group will be capable of producing a serious response to the challenges I have outlined. Maybe it will: let us see if we can see something before Report stage. It is important to have a much more credible mechanism for taking this issue forward which will be independent of government and consist of senior judiciary and other practitioners who already have the authority and expertise required. Such a mechanism would provide a forum for developing solutions to problems that cannot be avoided and would be transparent in producing an annual report on progress against an agreed remit.

For all its flaws, one of the positive impacts of this Bill is that we have had to focus our minds on this key issue. It is clear that the single jurisdiction is no longer fit for purpose in its current form. What exactly should come in its place and how it should operate are questions that necessitate detailed analysis of the situation and the evidence of the problems caused. Much thought needs to be given to what is the right way forward. The relevant body should comprise those with most experience of the problems, and legal and constitutional experts adept at finding solutions. These problems will not go away. The proposed commission would provide a mechanism for addressing them. That is the purpose of this amendment. I hope that the Minister will support it.

[Lord Thomas of Gresford (LD)]

My Lords, those of your Lordships who were here at Second Reading will recall that I told the House that when I was in my 20s and full of ambition and great principle, I thought that it was necessary, when drafting a Bill for the parliament of Wales back in 1967, to have a separate Welsh jurisdiction to determine the laws that that parliament would pass. As I indicated at Second Reading, I have changed my view; I think it is a matter of complete practicality. I disagree with the noble Lord, Lord Wigley, who said that the joint jurisdiction has not served Wales well. There is no joint jurisdiction. There is a single jurisdiction and it has operated over four centuries to provide the same standard of justice in Wales as in England. When he was called on to give an example of where it goes wrong, he talked about courts, as though a Welsh parliament would create new Crown Courts west of Swansea or in mid-Wales and would have the funds, judicial power and practitioners to man such a system. It is purely a practical question. To demonstrate that, I quote from the noble Lord’s amendment. Under the heading “A6 Judiciary”, the amendment states:

“All of the judges, judicial office-holders”,

and others,

“become judges … of both … courts”—

that is, the existing judges would continue to operate in both England and Wales. The amendment then proposes:

“All of the persons by whom the jurisdiction of the Crown Court constituted by section 4 of the Courts Act 1971 is exercisable become the persons by whom the functions of both of the courts to which that court corresponds”.

In other words, practitioners and judges in criminal courts could operate in both England and Wales. Where is the separate jurisdiction in that? Proposed new Section A6(3) states that all the existing judges and others should become judges in the courts of both England and Wales. The same situation is proposed for family courts and the legal profession. Therefore, the proposal put forward by the noble Lord, Lord Wigley, is that existing judges and practitioners should operate in the courts of both countries. How could that be possible if there were such a distinct and arcane system of Welsh law that only Welsh practitioners could understand it? Lawyers are accustomed to dealing with separate parts of the law, whether it is Welsh law, administrative law, the law relating to trusts or whatever. Practitioners and judges deal with differences between the laws passed by the parliament in Wales and those passed by the Parliament in England. There is no problem with judges doing precisely that. At the moment an Administrative Court sits in Wales and deals with legislation passed by the Welsh Assembly quite adequately—the Lord Chief Justice and an old friend of mine, Mr Justice Wyn Williams, sat in such a case last week—and no problem arises from that. However, the hare has been started, and for that reason I have advanced, as a matter of practicality, my Amendment 10.

--- Later in debate ---

[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.

[Lord Thomas of Gresford]

Your Lordships will appreciate that I was born in Acton on the Jeffreys estate.

[Lord Carlile of Berriew]

I am delighted to hear that. My noble friend’s sense of justice certainly does not in any way imitate that of Lord Jeffreys of the Bloody Assizes.

However, what I am suggesting is that the presidency of a Wales division of the High Court would have real attractions within Wales.

I would also like—I know that the noble and learned Lord, Lord Judge, would associate himself with this—to praise the actions of the current Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, who was born in south Wales and has frequently reminded us of that fact. Indeed, the noble and learned Lord, Lord Thomas, has evolved what was introduced by the noble and learned Lord, Lord Judge, and given further credibility to the respect that is given to Wales as a jurisdiction where relevant and appropriate.

One group who have hardly been mentioned in this debate is the poor old litigants who go to law in Wales. I had the great privilege of representing Montgomeryshire as its Member of Parliament for 14 years. It sits on a long stretch of the Welsh border. It is quite common for a customer to walk into an estate agent in, say, Llanfyllin, and negotiate the purchase of a property in another branch of that estate agency in Shrewsbury. It is very common—I may have done it myself—to go and look at a new car in Welshpool, but negotiate the price of that new car with somebody in Shrewsbury or some other English town. It is important for Wales that we develop as strong a financial services industry and venture capital industry in Wales as possible, but we need those English and foreign investors who want to take part in such transactions to have the confidence that they work in a predictable legal environment.

This is my final example, although I could give dozens. We need to be sure that those who face a trading standards dispute that arises with a company that operates both in Wales and in England are not faced by someone like myself scratching their expensive head in chambers and saying, “Oh, we’ve got a private international law issue here; a conflicts of law issue on which I will have to write you an extremely learned opinion”—at whatever my hourly rate for the time being happens to be. I do not think that we should inflict those disputes and problems on litigants. Inevitably, that is what would happen after time.

There are many common law jurisdictions around the world and they of course pay enormous respect to the decisions of what was formerly the House of Lords and is now the Supreme Court, and pay lower levels of respect to senior courts as you go down the hierarchy of courts. But inevitably there would be judgments in a separate Welsh jurisdiction that would be inconsistent with judgments in the English jurisdiction or any other common law jurisdiction such as the Scottish jurisdiction—which, as the noble and learned Lord, Lord Hope, knows, has a different origin—or for that matter the jurisdiction in Northern Ireland.

While I would not wish to leave things necessarily as they are and I welcome the proposal made by my noble friend of a detailed and one-off review, creating a completely separate set of law for Wales would be to turn the clock backwards rather than forwards and would have damaging effects on potential litigants in Wales and on the economy of Wales

Wales Bill

Lord Thomas of Gresford Excerpts

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

The issue is the complexity of Welsh devolution, which remains unclear and undefined. The issue of what it is within the Assembly’s competence to do is made even more complex than it was before by the Bill. I speak as someone who was involved—for too long, I suspect—in trying to determine what was within the competence of the Assembly and what was not, but I was well advised by excellent lawyers in the National Assembly and assisted more recently by the Supreme Court. It is not for me to comment on the activities of the Supreme Court, but clearly what we are doing here by not specifying more clearly what “devolved matters” are is not providing the required clarity, not just for politicians, lawyers or interest groups, but for the public in Wales. This is my greatest concern about what we are legislating in the Bill: we are continuing the cawl—Hansard will know how that is spelt—of Welsh devolution. There is no clarity in this soup, Minister.

[Lord Thomas of Gresford (LD)]

My Lords, I was in this Chamber when this issue first arose in 1998 in the then Scotland Bill. I heard Lord Sewel produce his sentence, which was hastily cobbled together. There was no thought behind it. It was not part of the government programme at that time, but he was under great pressure from Scottish Peers to define when the Westminster Parliament would act where Scotland had competence. He came out with his phrase, using the word “normally”, in that context. It has found itself into the Scottish legislation and has been adopted for the purposes of this legislation.

It is an unsatisfactory solution. There are no doubt exceptional circumstances, such as a declaration of war or something of a really serious consequence, when the Westminster Parliament may wish to overrule the Welsh Assembly or act in its place, but the word “normally” does not cover that. It is open to huge misinterpretation and the sort of litigation to which the noble and learned Lord, Lord Judge, referred in his contribution before the adjournment. The Government ought to excise the word altogether. I seem to recall it was still in contention as to whether it was a satisfactory phrase in consideration on the recent Scotland Bill.

I also support Amendment 8 in the name of the noble Baroness, Lady Morgan of Ely. I prefer it to the amendment tabled by the noble Lord, Lord Elis-Thomas, because it is disjunctive whereas his is not. An “or” at the end of his proposed new paragraph (c) might have made it a bit clearer.

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

My Lords, I thank noble Lords who participated in the debate on this amendment. I turn first to the comments of the noble Lord, Lord Wigley. Clause 2 places the existing convention on legislative consent on a statutory footing. As the noble Lord, Lord Thomas of Gresford, just indicated, this is not something that the Government have suddenly dreamed up. It is an existing convention and something we committed to do in the St David’s Day agreement. As has been noted by various noble Lords, it is also in line with Section 2 of the Scotland Act 2016. The convention states that Parliament will not normally legislate on matters devolved to the National Assembly for Wales without the consent of the Assembly, or in the case of Scotland the Scottish Parliament. These amendments seek to broaden the convention in two ways. They seek to remove the “not normally” requirement and also seek to expand the circumstances in which Parliament would not legislate without the consent of the National Assembly for Wales.

That said—the noble Lord, Lord Elis-Thomas, is right that I am going to refer to the doctrine of the sovereignty of Parliament—I can, nevertheless, understand the points that have been made. I am grateful for comments about this from other noble Lords, including my noble friend Lord Crickhowell, and earlier from the noble and learned Lord, Lord Judge, who is not in his place at the moment. I will go back and have a look to see whether we are able to do something by guidance, but the whole nature of the “not normally” is that that there will be circumstances that are difficult to foresee.

The nature of this signals that they are not justiciable, because it is left to Parliament. However, in line with comments from noble Lords and in the interests of ensuring that we look at this from all angles, I will go back and see whether there is something that we can do in relation to guidance on the two issues in relation to devolved matters as raised by the noble Baroness, Lady Morgan of Ely, and the noble Lords, Lord Elis-Thomas and Lord Wigley. I urge the noble Lord to withdraw the amendment.

[Lord Thomas of Gresford]

I understand the Minister is saying that it is not justiciable as to whether the word “normally” is applicable in a particular case. However, it could be subject to judicial review if a Minister brought forward a Bill that was the subject of contention as to whether the circumstances were normal or abnormal. To say that it is not justiciable is not, I think, correct.

[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.

--- Later in debate ---

[Lord Murphy of Torfaen]

If I had my way I would change the whole system—probably not to what the noble Lord, Lord Wigley, wants, but to the alternative vote system, for example. The point I am making is that the people in that part of Wales did not get the opportunity to say, “I don’t want that person because they do not live in Wales”. They were voting for a party instead of an individual. I cannot see any reason why, when we set up a Parliament or an Assembly in one of our devolved parts of the United Kingdom, a person should represent it without living in it. All the arguments that have been addressed are valid and I hope that the Minister will look favourably on these amendments.

[Lord Thomas of Gresford]

My Lords, this debate takes me back to 1981, when I applied to be a candidate in a constituency not very far from my home. It was impressed on me that I should buy a cottage in this constituency, to which my reply was that I lived half an hour away and had a fast car. That was one factor that meant I was not chosen as the candidate. The other was that I was competing against my noble friend Lord Carlile of Berriew. That was much more important.

I support the amendment of the noble Lord, Lord Wigley. We had problems in my party in the Assembly election before last where two candidates could have been disqualified by being members of public bodies at the time they filed their nomination papers as candidates. One was in a paid office and one was not paid. But they could have been disqualified. One of them succeeded, as noble Lords will recall, in gaining entrance. The other did not.

My recollection is that in the last Wales Bill we adopted a similar provision to that of the noble Lord, Lord Wigley; namely, that they should have ceased to hold those public offices by the time they were sworn in as Members of the National Assembly for Wales. I think that is fair. A candidate does not know, particularly in my party, whether he is ever going to be elected. Accordingly, to ask him to move his house and family, even if it is only half an hour away and he has a fast car, is not a sufficient reason for disqualifying that person from being a candidate. Therefore, I support Amendment 22.

Wales Bill

Lord Thomas of Gresford Excerpts

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

[Lord Kinnock]

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

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

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

[Lord Thomas of Gresford (LD)]

My Lords, I wonder whether I can assist the noble Lord, Lord Kinnock, in his final question by telling your Lordships about my brother-in-law, who is Welsh, but who has lived in Aberdeenshire since the 1970s. In 1979, like the noble Lord, Lord Kinnock, he was wholly against devolution to Scotland. In 1998, he had not changed his mind, unlike the noble Lord, Lord Kinnock, and in the referendum he voted no to devolution to Scotland, but yes to tax-raising powers if a Parliament should be formed. At the time, we thought this was slightly odd. But what he was saying was that you should not have a parliament unless it is accountable—fully accountable. That is the point.

A lot of water has flowed under the bridge since the Welsh Assembly was constituted, and the Labour Party has, one way or the other, exercised power in Cardiff since its inception—it still does. The purpose of a proper Government is to raise taxes and to spend them, and to be accountable to the people from whom they raise those taxes as to how they handle their money. It is a perfectly simple proposition, but for the last 20 years, we have heard from the Labour Government in Cardiff that if they are incapable of providing adequate services in Wales—for example, in the health service or in education—it is because they do not have enough money sent to them from Westminster.

It does not require a referendum now. The reason why a referendum was provided for in the last Bill and why it appeared to be a good idea was that we were following the Scottish practice of 1998. But we moved on; devolution has moved on. We were tired, as my noble friend Lady Humphreys said, of the excuse that we are failing as a Government because Westminster does not give us enough money. It is time that income tax is devolved to Wales and that proper accountability should occur.

[Lord Howarth of Newport (Lab)]

My Lords, I will briefly emphasise a point strongly implied by my noble friend Lord Kinnock but perhaps not yet made fully explicit in this debate, which is that there is an issue here about trust between people and their politicians. As has been noted, the Labour Party, the Conservative Party and others have promised a referendum on this question of income tax-varying powers over many years. Indeed, if I am not mistaken, it was a manifesto pledge by the Conservative Party at the last general election, and we need to look at that question of whether it is acceptable and politically prudent for a Government to slide away from a manifesto commitment that was so very clearly made.

I understand, and in large measure agree with, the point made by my noble friend Lord Morgan about the unsuitability of the referendum as a device for resolving technical and complex political issues. I also accept what has been said about income tax-varying powers being a mark of the maturity of the Welsh Assembly, which may call itself a Welsh Parliament. It is desirable in principle that a parliament should have those powers and be held accountable to the people on whom it would propose to levy income tax. It is perhaps desirable that these powers should be created, but one must also recognise that if the people of Wales are asked in a referendum whether they favour the introduction of powers that they would anticipate will be used to raise income tax, they might well say no. Taxable capacity in Wales is decidedly limited, and people on the whole do not vote for higher taxes. But none the less, if they have been offered the opportunity to make that choice for themselves, it may well be rash and improper to take that choice away from them.

The alternative will be that this legislature will impose on Wales an income tax-varying power for the Welsh Assembly. It has been assumed in this debate that that power to raise income tax would be most unlikely to be used in the foreseeable future. But I do not entirely share that confidence, because we have no long-term fiscal framework and no settlement. The Barnett formula has not been reformed, and I agree with those who have said that to wait to move on this until that formula is fully and satisfactorily reformed is to wait for ever. It is not beyond the bounds of possibility that, after 2020, we could see a future Government of the UK reducing the block grant for Wales—indeed, if the Government have their way in this Bill, we will see borrowing powers for Wales very severely curtailed—and in those circumstances Wales would need to increase the proceeds of income tax and to use those powers.

--- Later in debate ---

[Lord Thomas of Gresford]

The noble Lord seems to think that this is about additional income tax but we are talking about tax-varying powers. They could go up or down or they could stay the same, but they would give a separate stream to the income of the Welsh Assembly, which would assist in borrowing. What disappoints me in the Minister’s reply is not to hear some idea of the fiscal framework. I wonder whether the Welsh Government have ever put forward a variation on the Barnett formula. We all oppose the Barnett formula in one way or another, but I have never heard the Welsh Government suggest an alternative way in which to raise money, other than the Barnett formula. Can the Minister say something about the broader picture?

[Lord Murphy of Torfaen]

I had not quite finished my remarks—I thought the noble Lord was intervening on me. The issue is about the principle of a referendum. Right from 1997, the people of Wales agreed on a devolution settlement. In 1979, my noble friend Lord Kinnock and I disagreed with the idea of a Welsh Assembly. Twenty years later, we agreed with it—and, as the Minister himself said, in 2011 there was a referendum to change that settlement. I approved of it, I agreed with it and I supported it. That gave legitimacy to the change, because at the end of the day the people of Wales agreed.

I suspect there has been a change in the past 18 months because, after all, this is about a change in the current law. It is not about introducing something but about abolishing something: the right of the people of Wales to have a referendum on income tax. My guess is that it has nothing to do with the spread of devolution or the other issues to which the Minister referred; it is about their thinking that they would not win it. But the principle of the referendum would give it that legitimacy. Indeed, if the Government and others thought it would be hugely popular, what is wrong with a referendum on it? If we had one on the powers, we can have one on income tax. The Minister has not explained why the Government have changed their mind about the principle of a referendum in under two years. That is a pretty rapid change, and there must be other reasons lying behind the Government’s views. At the end of the day, if the people of Wales want income tax variation—and, by the way, it is not extra money. I reject that idea; I do not think for one second that any income tax powers will produce a penny more for the people of Wales, because the block grant will be reduced. That imposition has been put on a country that is poorer than England. Having said all that, I shall not push this to a vote this evening.

[Lord Thomas of Gresford]

In Committee, I think I am entitled to speak as many times as I wish. I apologise to the noble Lord, Lord Murphy, for interrupting him in full flow, but I still look to the Minister to give us some idea at this stage of how he sees it. What is the future fiscal framework? What does he have in mind? Will it be a deduction from the block grant, as the noble Lord, Lord Murphy, suggests, or will it not?

[Lord Bourne of Aberystwyth]

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

Wales Bill

Lord Thomas of Gresford Excerpts

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

[Lord Bourne of Aberystwyth]

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

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

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

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

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

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

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

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

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

[Lord Thomas of Gresford (LD)]

My Lords, the noble Lord, Lord Elis-Thomas, in introducing his Amendments 77 and 78, did not expand very much on what they mean. I support the Government on the necessary test for the law on reserved matters, and I think it is essential that it be confined in that way.

I would be extremely concerned if there were an attempt to have a different criminal law applying in Wales, save in matters concerned with the enforcement of regulations or Acts of the Welsh Parliament. However, any modifications to the criminal law that dealt with, for example, the meaning of intention, recklessness, dishonesty, and so on or “secondary criminal liability” would cause great conflict. I have to tell your Lordships that I was involved in the definition of “recklessness” in the House of Lords Judicial Committee 25 years ago. My argument was dismissed but 25 years later their Lordships overruled the previous decision. It was similar with secondary criminal liability. My argument about that many years ago was dismissed but in very recent times has been accepted. These are difficult concepts and they should not be interfered with in any way.

[Baroness Morgan of Ely)]

My Lords, I thank the Minister for his comprehensive answer. There is a lot to digest.

It gives me a degree of comfort to understand that the amendment will fail the relate test if it has reserved matters as its purpose—that was clearly underlined by the Minister. The shifting of the burden of proof is also useful. I find that examples tell the story more readily than heavy legalese. However, it would have been useful to have heard examples of where it would have failed. We may be able to look at that in future. We need to be clear about where the lines are.

It was useful to understand that there will not be a need for consent by a UK Government Minister in relation to reserved bodies if it relates to general duties. I am again comforted by that.

As I say, there is a lot to digest and we will need time to look in detail at the Minister’s answer to see whether it meets some of our concerns. At this point I reserve judgment on whether he has answered all of my concerns and beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Gale (Lab)]

My Lords, by now, after the contributions that have been made, the Minister will be quite clear that there is a need to consolidate the Welsh Acts of Parliament. We believe that the Wales Bill would be appropriate and without doubt could consolidate matters so that the Welsh constitution is accessible as a single piece of legislation.

The Bill as it stands constantly refers to or amends many previous pieces of legislation, in particular the Government of Wales Act 2006. As such, reading and understanding where power lies in relation to Wales can be needlessly complicated. As noble Lords have said, we should therefore aim to bring as much clarity as possible to what could be a landmark piece of legislation.

So far, however, the UK Government do not seem to want to consolidate the Welsh devolution settlement into one authoritative piece of legislation. I believe they have said—perhaps the Minister can confirm this—that it is “not necessary”, because the constitutional settlement for Wales is in the Government of Wales Act 2006. We should strive for more than what is just necessary; rather, we should aim to produce a Bill that all of us in Wales will be proud of.

The Welsh Government have already drafted an alternative Wales Bill, drawing together many pieces of legislation into one self-contained whole. In that sense, the hard work has been done. Could the UK Government not simply follow the approach of the Welsh Government, and what I believe is the wish of noble Lords tonight? This would be an opportunity for us to forge clear, accessible and ambitious legislation. I am sure that the Minister has been listening to what all noble Lords have said, and I hope that he will come forward with some positive responses.

[Lord Thomas of Gresford]

My Lords, I am a lawyer, but I have no idea what Clause 3(5) means. I look forward to the Minister explaining it because what is being referred to if,

“power to make laws other than that of the Assembly is disregarded”?

I have no idea at all.

On Amendment 44, I believe in consolidation but I do not know that I believe in this particular amendment. The law affecting Wales will be what one might call Acts of the Assembly, subordinate legislation under Acts of the Assembly and legacy law—that is to say, if in devolved areas the law in England moves on, the provisions which previously applied to Wales will continue. In devolved areas, the Westminster Government may decide to change the law as a result of policy, leaving Wales with the legacy. Proposed new Section 108B says on consolidation that:

“Nothing in this Act prevents the Assembly restating … the provisions of any enactment that provide for the government of Wales”.

What does that refer to? Is it the legacy law and, if so, how does the Assembly restate it?

Subsection (2) of the proposed new section in Amendment 44 really makes me puzzle. It says that the Secretary of State—presumably, the Secretary of State for Wales—

“may by regulations repeal the provisions of any enactment … restated by the Assembly in accordance with subsection (1)”,

so whatever mechanism restatement is supposed to be, the Secretary of State here in Gwydyr House can repeal it. The Assembly may make this pronouncement: “We are following the law that previously applied to England and Wales but England has moved on. We are continuing the law as it was previously stated in Wales”. Then the Secretary of State for Wales comes along and repeals it, not by any legislation but simply by statutory instrument on an affirmative resolution by each House of Parliament. I really do not know what this consolidation means. I agree with my noble friend Lady—

[Baroness Randerson (LD)]

Randerson.

[Lord Thomas of Gresford]

My noble friend Lady Randerson. I was getting my names mixed up for a moment. She said the other day that it is—as a matter of fact, I have forgotten what she said so I shall leave it at that.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords for their participation in this part of the Bill. Through these amendments, the noble Lord, Lord Elis- Thomas, is seeking to provide the Assembly with the competence to consolidate the law as it applies in Wales. Through Amendment 43, I think that he seeks to broaden the circumstances in which the Assembly could legislate other than in relation to Wales. However, the amendment as drafted would actually narrow the Assembly’s competence to legislate otherwise than in relation to Wales by making the “no greater effect than necessary” test more restrictive. I am sure that this is not the noble Lord’s intention.

Through Amendment 44, the noble Lord and the noble Baroness, Lady Finlay, seek to give the Assembly a wide-ranging power to restate without modification any law that provides for the government of Wales. I think the noble Baroness, Lady Gale, was referring to an alternative Bill that is not a consolidation measure. We would hesitate to accept an alternative Bill which is nothing to do with consolidation.

Nevertheless, let me answer the question about consolidation because it seems to me that the consolidation of United Kingdom legislation can realistically take place only in the United Kingdom Parliament, and no more could or should the United Kingdom Parliament consolidate legislation of the Welsh Assembly or, for that matter, the Scottish Parliament.

The noble Lord, Lord Howarth, asked why we have not consolidated previously. The reason is that we have been under continuous pressure—I think that probably applied to the previous Government as well—to change the laws in relation to Wales because it has been a fast-moving position. There has been understandable pressure to make amendments, and it is difficult to consolidate the law at the same time as the law is being changed. In relation to an area that I know something about—company law—before the consolidation in the Companies Act 2006, which was then and I think still is the largest piece of legislation ever to go through the UK Parliament, there had not been a substantial consolidation measure since 1948, although there had been consolidation to some extent in 1985. That is why these things get postponed.

Before we get too exercised by this, I remind noble Lords that this does not alter the law. The law is there. I would need to be convinced, as I think others would too, that people in Wales are hanging about for a consolidation measure and that they want the law somewhere neatly. I do not think they are particularly exercised about this. I would have to be convinced that this is something that is exercising people up and down Wales or, indeed, in England. There was a suggestion—I am characterising it slightly—that this primarily concerns Wales, but it concerns England too, and Scotland, because it carves out the constitutional position within the United Kingdom.

That is not to say that it may not be necessary at some stage, but when it is done, it is important that it is done in the UK Parliament. In the meantime, it is important that we get the law right. I appreciate that we have got some way to go on some of that, but it is more important to get the law right before we consider consolidating it, so I ask the noble Lord to withdraw the amendment.

[Lord Thomas of Gresford]

I apologise to my noble friend Lady Randerson. What she said on the first day in Committee, which I now recall, was that there should be an easy way of access to Welsh law, and so far nobody has put together any form of loose-leaf book or anything of that sort that shows the current law in Wales. That is the point she made, which I follow.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, I yield to no one in my admiration for my noble friend Lord Elystan-Morgan, but although I agree fundamentally with one of his amendments, I disagree fundamentally with the first. Dominion status is about the shedding of British governance. The 1931 statute of Westminster gave the dominions power over their own affairs, effectively making them semi-independent. I do not want to give up British governance in Wales; I am glad that we have it—and I am also glad that we have Welsh governance in Wales. I like the two, which is why I believe that we are in the right position in the United Kingdom whereby we have devolved Governments in those places that require them—Wales, Scotland and Northern Ireland. I hope that we can extend the same system of government to parts of England, too. I have always believed that, and I think we are heading towards it.

I cannot agree with the first of the amendments, but I fundamentally agree with the second—that a working party should be set up to look at the operation of Schedule 1 to the Bill. The noble Lord, Lord Elystan-Morgan, is absolutely right and put his finger on it when he asked why this particular list has come to fruition. It has come to fruition because individual government departments have made a wish-list of what they wanted to keep. It was not about looking at the bigger picture of what should happen in this new dispensation for Wales. So to have a body that looks at the operation of the new situation in Wales, with the reserved power Assembly, with this schedule, is absolutely right and I support it.

[Lord Thomas of Gresford]

It is really heart-warming to hear my noble friend Lord Elystan-Morgan—and I call him that—go back to the dominion status which was the lodestar of the early days of Plaid Cymru. Saunders Lewis did not want total independence; he wanted dominion status. I have no doubt that 1931 was very much on his mind at the time, having regard to the date of the statute of Westminster. I have always regarded that as totally unrealistic, requiring as it does that Wales should look after its own defence, foreign affairs, social security and so on. That is what dominion status means, and always has meant. So whereas I have always been a supporter of devolution, I rather go along with the Gordon Brown argument, which was so successful in the Scottish independence referendum, when he reminded his fellow countrymen that the United Kingdom is united because it shares risks and wealth. Those areas that are depressed at one time in history can be supported by those that are successful.

At the beginning of the 20th century, the highest wages were paid in the Rhondda valley, and as a result it attracted in the Irish and people from all over the United Kingdom. It was the Aberdeen of its day, if you like. Aberdeen has attracted people from all over and is currently suffering because of the fall in the price of oil and the possible diminution of oil resources in the North Sea. But it will be balanced by another part of the United Kingdom—and that is the important point. We are not really concerned with going back in history and talking about a British colony. I recall that Henry Tudor came from Wales and brought with him the Cecil family, who played a very big part not only in the proceedings in this House but in British history ever since. Although he had a Donald Trump attitude towards sex, he was nevertheless favourable towards Wales. His introduction into Wales of the assize judicial system and his formation of the counties of Wales was for their good, not in order to conquer them as his predecessors tried to do.

I do not go along with the idea of the English colony. As a Welshman, I do not feel, and never have felt, that I am in any way subject to the colonial oversway of the English. We have provided leadership in the United Kingdom over the years with our politicians—some great men who, as the noble Lord will no doubt recall, have held the highest offices in this country. For example, I will refer not to Lloyd George but to Aneurin Bevan. Many, many Welshmen have played their part in the governance of the United Kingdom as a whole. We have to stay with that and not go back to what I consider to be, with the greatest respect to my noble friend, the rather romantic aspirations of dominion status. I therefore support the basic proposition in the Bill that the Welsh Parliament—as I hope it will be—should have all the powers it needs but on a reserved powers model, not a conferred powers one. We should work towards that.

Although I have some sympathy for the second amendment which the noble Lord has put forward, it is our duty to try to deal with these issues here and now, as the Bill goes through, not simply kick them into the hands of a commission. That would, no doubt, be made up of great Welshmen but would sit in Cardiff or elsewhere and chunter over the provisions of the reserved powers set out in the Bill. In my Second Reading speech, I argued that we should not have 190 separate reservations. One effect of the Agricultural Wages Bill was that we became very interested in detail, whereas one could describe the powers which should be reserved to the Westminster Parliament in much broader terms, such as defence, foreign affairs and so on. I am very sorry: although I voted for the noble Lord in 1964 when he was a Plaid Cymru candidate, I cannot go along with his interesting and reminiscent arguments for dominion status.

Wales Bill

Lord Thomas of Gresford Excerpts

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

However, some consideration should be given to the fact that, in many a dry summer—and we do have such a phenomenon from time to time—there will be areas in Wales from which water is extracted which suffer drought and will see that invaluable asset running away from them without any compensation whatever. That has to be put right some day. Amendments 103 and 105 in my name make it impossible for another Tryweryn to take place. If it did, I have no doubt that it would be the finest recruiting sergeant Welsh independence ever had, but that is another matter altogether. This is a matter of justice and I am sure that the Minister bears very much in mind the feelings that still remain raw in Wales in relation to it. I am confident that what he does will be just, wise and proper.

[Lord Thomas of Gresford (LD)]

My Lords, in the 1970s, I was engaged in the case made by the Birmingham corporation to drown the Dulas valley, near Llanidloes. I was led by Sir Tasker Watkins VC and by Lord Hooson but unfortunately they could not stay more than a day or two so the full force of the inquiry fell on me for some three weeks. I was, of course, representing the objectors in the local community. I shall never forget the community hall in Llanidloes packed every day by the people from that valley. To the English eye, the valley seemed deserted. Such was our concern about that that we commissioned a report from the University of Aberystwyth. Some noble Lords may remember its great pre-war study of Llanfihangel-yng-Ngwynfa which indicated the strength of the Welsh community in a rural area. The study produced for the Dulas inquiry established the strong community links within that valley: the chapel, the school, the pub—two pubs actually—and how the people there came together far more than you would find in some housing estates in the sort of area that I came from. It was a strong and living community and we put that case to the inspector at the inquiry.

Birmingham corporation was represented by Michael Mann, later Lord Justice Mann, a man of great integrity. He presented the case for the corporation along the lines that Birmingham needs the water, but the ultimate result was that the inspector held against his case and for the community. One memory which I carried away from that was of the service of thanksgiving in the chapel afterwards. The community came together and I was there. The minister gave a prayer and a sermon in which he described the inquiry and the finest moment in it. I hoped he might mention my final speech, but he did not. It was when Michael Mann finished, on behalf of the Birmingham corporation. He had presented his case so fairly—and the result was not known at that stage—that the 400 people in the Llanidloes community centre applauded him. It was a spine-tingling moment.

As a result of the inquiry you can drive through the Dulas valley today, enjoy its scenery and meet its people; it is not the dank lake that I referred to in my closing speech. It is still there and still alive. Also, Lord Cledwyn, who as Cledwyn Hughes was Secretary of State for Wales, made a pronouncement in Parliament that no other Welsh valley would be drowned for the purposes of supplying water to England. That was his commitment. Your Lordships can imagine the sort of emotions that were felt at that time, and to which the noble Lord, Lord Elystan-Morgan, has just referred. It was a wonderful inquiry to be involved in. I support these amendments with all the emotion shown by my noble friend but I bear in mind the commitment given by the Labour Government of the day that no Welsh valley would ever be drowned again. These amendments are essential: it must be for the Welsh Assembly—the Welsh Parliament as I hope it will be—to have the responsibility of determining the water resources in Wales.

The noble Lord, Lord Crickhowell, talked about the River Dee. I am familiar with that river: in July I rowed some 14 miles up it in a quad. On one side was England and on the other was Wales. The only part of England that was ever on the other side of the Dee is the Grosvenor estate. The Grosvenors came in in 1066 and captured that little parcel of Wales. There are very important flooding issues affecting both sides. If the rain falls this winter, very shortly you will not be able to see where the boundary is because the whole of the area around Holt, Farndon and Almere Ferry always floods. There are problems, but the reservoirs have to be in the hands of the Welsh Assembly.

[Lord Hunt of Wirral (Con)]

My Lords, as we turn the pages of history, I share the view of the noble Lord, Lord Wigley. Having been born and brought up in the Ceiriog valley, I went through the controversy which took place, to which he referred most eloquently. As a Liverpudlian as well, I can recall the great debates that took place. We have to learn from the lessons of history, but there is no doubt in my mind that water is by far the most complex aspect of Welsh devolution. In many ways, it is what my great friend and colleague, Wyn Roberts, used to call Welsh water: dagrau o Dduw— the tears of God. It falls in all the wrong places, and as many noble Lords have already conceded, the devolution boundary follows water catchment areas rather than the England/Wales border and that is the extent of the problem. However, as my noble friend Lord Crickhowell pointed out, we have to confront that problem and find a solution. I strongly support the concept of a reserved powers model. My noble friend Lord Morgan and I had the honour to sit on the Constitution Select Committee. Although we applauded the setting up of a reserved powers settlement determining which powers should be devolved and which should be reserved to the centre, we said that it was a “complicated and challenging process”. This debate has demonstrated how complicated and challenging it can be.

I pay tribute to my noble friend Lord Bourne of Aberystwyth, who has adopted the right approach to finding a solution by listening carefully to what has been said. I think the solution is there. We ought to take the opportunity to remind ourselves once again what the Silk commission determined because it outlined the way in which we can solve this problem. I am sure that my noble friend will know it off by heart but I think that it is the common-sense way forward.

I hope that my noble friend will say how far he can go on this issue. We have already had yesterday’s announcement, which I believe is a step in the right direction. I hope that we can find a solution by drawing the boundaries in the right place, or at least by making sure that the powers of intervention are limited. The noble Lord, Lord Thomas of Gresford, with his great eloquence, won the day for the communities which he represented. We must make sure that communities are never neglected in the same way ever again. Areas determined as being slums were ignobly swept away and their communities were forgotten about. The communities wanted to be relocated, if they were to be swept away, but they would have preferred to stay where they were and have their homes improved. Those communities in the valleys wanted to see the areas that they had lived in all their lives preserved. I do not know what my noble friend will say but if he follows his normal course, which I warmly applaud, I am sure that we will find a solution.

Wales Bill

Lord Thomas of Gresford Excerpts

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

[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.

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[Lord Bourne of Aberystwyth]

I am grateful for the clarification on the existing charter flights. I am aware of our recommendation for long haul, although the scope of the amendment is probably broader.

As I said, the position in Scotland is very different because the airports are a long way from the next international airports, so the competition and fairness argument cannot apply. The United Kingdom Government have to look at these things in the context of fairness, and it would genuinely not be fair to an airport in England, which is unable to vary the rates, to compete with an airport that could. Noble Lords must surely see that point.

The point made by my noble friend Lord Hunt, speaking with a north Walian voice, was that this tax, if we were to adopt it, would not help the people of north Wales, for whom the nearest international airport would be Manchester or Liverpool; or, indeed, the people of mid-Wales, for whom it would be Birmingham —I am not sure that this is a plea for Birmingham, but I thought I would get in before it.

[Lord Thomas of Gresford]

I take issue with that. We have always wanted to develop our connectivity in Wales. There have been attempts to use the Broughton airstrip from time to time; I have flown on a regular service from Broughton to Cardiff in the past, and a very good service it was. Unfortunately, it did not pay.

If it were possible to reduce air passenger duty, Broughton would make a very good place from which to start flights, and I am sure it would be very popular in north Wales. Liverpool and Manchester are closer than Cardiff and Bristol. Edinburgh and Glasgow are closer than Cardiff and Bristol. They do not complain; they compete.

Wales Bill

Lord Thomas of Gresford Excerpts

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

[Lord Thomas of Gresford (LD)]

My Lords, I support the Government’s approach on tribunals. The position on tribunals has been sorted in England and I was party to the discussions that went on at that time. The provisions put forward by the Government seem very sensible. I note in particular the question of cross-deployment of members of the tribunals, not merely within Wales from tribunal to tribunal but also with English counterparts. That indicates something I have said in earlier debates: there is nothing so arcane about Welsh law passed by the Welsh Assembly that it would be impossible for those brought up in the same traditions in England and Wales to be able to cope perfectly adequately with the issues that may arise.

I also support Amendment 108, to which my name is attached. The Welsh division of the Youth Justice Board has operated very successfully in Wales and created new partnerships with social services, education and health—which are all devolved matters. There is a consensus view across what I hesitate to call the “stakeholders” in Wales in this area that it should be a devolved service. As the noble Lord, Lord Wigley, pointed out, the opportunities for its improvement and for experimentation would no doubt then be possible.

Wales Bill

Lord Thomas of Gresford Excerpts

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

[Lord Thomas of Gresford (LD)]

My Lords, I must express our gratitude to the Government for clarifying this position. I also echo the noble and learned Lord, Lord Hope, in saying that there was some rather neat draftsmanship involved. The officials are to be congratulated on the way that this has clarified the situation.

[Lord Morgan]

My Lords, I was once vice-chancellor of the University of Wales and I think that this is a distinct improvement. It will strengthen the status of Welsh university institutions and I am grateful for it.

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[Lord Morgan]

My Lords, I very strongly agree with what the noble Lord, Lord Wigley, has just said. To leave these matters uncertain and vague, and potentially as, yet again, a source of future bitter conflict, is quite contrary to what the Minister is doing in the Bill.

Two points occur to me. First, it seems that giving the Assembly authority over water is fully consonant with what we are doing in the rest of the Bill—that is, strengthening the regulatory powers of the Assembly over the natural resources of Wales. Secondly, and perhaps more fundamentally, we are—perhaps unintentionally —bypassing this enormous emotive issue in Wales. I would like it to be felt and seen by the citizens of Wales, who are not always clear on the point, that devolution is making a difference. I would like it to be felt that devolution means that there will be no more Tryweryns in Wales and no more treating with contempt the small rural communities for the benefit of others. I expect the Minister to listen with sympathy and I hope very much that the amendments of the noble Lord, Lord Wigley, will be supported.

[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.

Wales Bill

Lord Thomas of Gresford Excerpts

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

[Lord Wigley (PC)]

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

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

“Page 49, line 7, at end insert—

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

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

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

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

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

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

[Lord Thomas of Gresford (LD)]

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

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

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

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

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

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

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

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

Wales Bill

Lord Thomas of Gresford Excerpts

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

[Lord Thomas of Gresford (LD)]

My Lords, I apologise for the absence of the noble Baroness, Lady Randerson, who is heavily engaged in the Moses Room on the High Speed Rail Bill. I therefore stand in her place.

My experience with Cardiff Airport is somewhat limited. I have flown into it only once, in an eight or twelve-seat plane from Harden, in north Wales. In those days there was no gap between the passengers and the pilot. As we came over the hills and the valleys and headed into Cardiff Airport, the co-pilot said to the pilot, “Do you think we will make it?” This did not fill his passengers with a great deal of confidence.

I support, as I always have, the concept of devolving air passenger duty in order to improve the use of Cardiff Airport and to provide a facility for the people of south and mid-Wales. I did a little research this morning on Bristol, because Bristol seems to be the problem, and discovered that it has only one flight that goes any distance: a weekly flight to Cancun, in Mexico, which is not one of the major long-haul trips. As the noble Baroness, Lady Finlay, pointed out a moment ago, the major airports in the south of England are overflowing. We are looking for solutions to the planes that are stacked and the passengers who fill the terminals in Heathrow and Gatwick. Here we have the possibility of a facility which will take long-haul traffic. If a proper incentive were given by a reduction in air passenger duty, then I am quite sure that the people of south Wales and indeed of the borders would flock to Cardiff Airport. It is common sense that this possibility should be allowed to develop. Bristol Airport, on the other hand, does not have any longer flights and does not have the capacity for such regular long-haul flights.

We have always supported air passenger duty devolution and I hope that the Minister, even at this stage, will give further thought to it. I do not think we have heard a positive rationale for not devolving it, save its impact on Bristol Airport. Its impact would be nil.

We very much welcome Amendment 22A. The increase in borrowing powers is one of the key points in the agreed fiscal framework. I congratulate the Government and the Welsh Government for coming to a sensible agreement on this before the Bill reaches its conclusion. It seems a reasonable basis for Wales to be ambitious in its capital projects. As for Amendment 73, it is ambitious—perhaps a little bit too ambitious, because, although you can pluck a figure from the air, debts do have to be repaid, and interest on them is a heavy burden and a drag on current expenditure. Therefore, a balance has to be struck. We believe that, for the moment, the Government and the Welsh Government have struck the right balance.

[Lord Crickhowell (Con)]

My Lords, I had not intended to intervene but I am prompted to do so by one or two things that have said. I particularly want to have a word about the much tighter amendment on Cardiff Airport, which shifts my position.

First, I congratulate the Government on the way they have dealt with the fiscal framework. Acknowledgment has been given from around the House to the real progress that was made in reaching what inevitably is a compromise deal but one which represents a very considerable step forward. Yes, things do change with time. When I was Secretary of State of State, long ago, it just happened that the Barnett formula was rather favourable to Wales, so I avoided criticising it. But of course it has changed—and we have heard how things change over time—and the Government, and the Welsh Government as well, deserve some credit for the deal that has been done.

I turn to this more restricted amendment about Cardiff Airport. I suppose that I should declare two matters. Long ago, at Second Reading, I supported the Government and declared an interest as a frequent flyer from Bristol. I did not declare another, even more remote interest—that long ago I was part of a consortium that bid for the management of Cardiff Airport. We did not bid enough, but I like to think that, if we had won, we would never have allowed that airport to be pushed downhill as rapidly as its subsequent managers did. That is the past history, which is very regrettable. I am sad that my noble friend—I always regard him as my noble friend, because he is a very good friend of mine—Lord Rowe-Beddoe, is not here, because he did great work in trying to rebuild the airport from the state in which it has been.

The new amendment would change things. Long haul is a very different matter, and the airport is not in my view a competitor with Bristol, as I feared that it would be in the past. So I hope that the Government will be sympathetic to this much narrower amendment. I withdraw the hostility that I previously expressed for the wider amendment and the wider campaign that was originally fought.

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[Lord Thomas of Gresford]

My Lords, it is always a great pleasure to follow the noble Lord, Lord Elystan-Morgan. As I have told your Lordships before, I voted for him in 1964 when he was a Plaid Cymru candidate. I know that he has recovered from a serious illness to play an important part in this Bill and we are all very pleased to have him with us today. When he talked about the advantages of building a fence between neighbours, I wondered whether he was proposing to build one between England and Wales. I would support him in that—particularly if the English have to pay for it.

In preparation for this debate I spent the new year viewing five or six episodes of S4C’s excellent series “Y Gwyll”—“Hinterland”—kindly provided by S4C at its Christmas party before the break. It is a somewhat grim picture of policing in a rural Welsh community. I had some interest in that because my first five years were spent in Llangollen police station where my father was the station sergeant. His territory covered a large area of rural Denbighshire.

In one of the episodes of “Y Gwyll”, Chief Inspector Matthias has to confront a man armed with a shotgun in a remote cottage high up in the hills. It rang a bell since my father had to do precisely that. As my father approached him, the man shot himself rather than my father. In the denouement of the series, broadcast over the Christmas season, the retired chief superintendent turned out to have murdered the policeman investigating his past while his replacement, the current chief superintendent, murdered his predecessor in turn—which did not accord with my memory of the Denbighshire constabulary of those days.

The series depicts the Welsh language, the people, the way of life, the rural remoteness and the stretched facilities, emphasising the different society and community in which we live. It is not surprising that a significant majority of Welsh people, when asked for the purposes of an opinion poll in connection with the Silk commission, were of the view that the Welsh Assembly and the Welsh Government should have responsibility for policing in Wales. Indeed, devolution of policing was supported by the Welsh Government, the chief constables, the majority of police commissioners, the Police Federation and other professional police bodies.

The Silk commission reported in favour, although it was careful to say that the devolution of the governance and administration of the police would not involve the devolution of legislative competence for police powers or the criminal law. It also did not recommend devolution of matters dealt with at the UK level by the National Crime Agency—serious and organised crime, fraud, cybercrime and child protection. However, proposed new Section B5 of Schedule 1 to the Bill reserves policing to the Home Office—and that is an argument for another day.

My Amendment 81 deals with subsidiarity, leaving out the reservation of anti-social behaviour to the Westminster Government which the Bill proposes. Anti-social behaviour is essentially a matter for the local community. That is what is reflected in all the parts of the Anti-social Behaviour, Crime and Policing Act 2014 that are specifically reserved in proposed new Section B6 of Schedule 1 to the Bill.

Under Part 1 of the 2014 Act, which deals with injunctions, applications for an injunction may be made by a list of bodies, the first of which is the local authority. The next one is a housing provider, and only third on the list is the chief officer of police. Other bodies which may apply for an injunction include the Natural Resources Wales body and Welsh Ministers exercising security management functions.

Similarly, under Chapter 1 of Part 4, community protection orders, the initiative to issue a community protection order against an individual or a body lies with the local authority, where it is satisfied on reasonable grounds that the conduct of that person is having a detrimental effect of a persistent or continuing nature on the quality of life of those in the locality, and that the conduct is unreasonable. It is for the local authority to apply for the order and to take action if the individual or body fails to comply with the notice.

Your Lordships will see that anti-social behaviour is already dealt with at the local authority level. In Chapter 2 of Part 4, it is the local authority alone which may make a public spaces protection order if it is satisfied on reasonable grounds that activities carried out in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality and that the activities are unreasonable and of a persistent or continuing nature. Again, the local authority applies for the order, the local authority enforces it.

Under Chapter 3 of Part 4, power to make and exercise a closure notice for premises associated with nuisance or disorder rests with either a police officer of at least the rank of inspector or the local authority.

Part 5 gives power to landlords to recover possession on anti-social behaviour grounds, and Part 6 is headed “Local involvement and accountability” and lays down requirements for the police to consult with local authorities and community leaders in the preparation of community remedy documents, the purpose of which is to require an individual to carry out certain specific actions.

The whole of Parts 1 to 6 of the 2014 Act is concerned with what a local authority, in the main, or a local policeman does in relation to problems within the community. It indicates how localised the legislation is. It is only sensible because other agencies which are concerned with the same sort of thing are devolved—the health service, education, ambulance and fire services, and so on.

The other powers reserved to Westminster in Section B6 refer to dangerous dogs or dogs out of control. It is a perfect example of why this should be devolved—devolution works. I am sure that many of your Lordships will recall the Dangerous Dogs Act 1991. It was regarded as an example of knee-jerk legislation and has always been thought to be utterly unsatisfactory. After toying with the idea of pet anti-social behaviour orders, an idea first put forward in the satirical political show “The Thick of It,” the Government passed Part 7 of the 2014 Act, which made some patchwork reforms. It is still not satisfactory.

Meanwhile, up in Scotland, the Scottish Parliament passed the Control of Dogs (Scotland) Act 2010, which dealt with the whole question comprehensively and sensibly. The initiative in Scotland lies not with the police but with an authorised officer who is defined as an officer appointed for that purpose by a local authority. Each local authority in Scotland must appoint at least one such officer, skilled in the control of dogs and with the capacity to instruct and advise others in matters relating to the control of dogs. The Act deals with the control of dogs and with the prosecution and punishment of owners of dangerous dogs in Scotland. Why does Westminster want to reserve to Westminster power over dangerous dogs and their control when Scotland has legislated so effectively? We have passed—or, rather, the Welsh Assembly has passed—the Control of Horses (Wales) Act 2014. If the Assembly can be allowed to legislate for the control of horses, why not dogs?

When I was living in the Llangollen police station, we had a Pembrokeshire corgi called Rex who, having been reared by my aunt, only understood Welsh. He was not one of those brown and white royal jobs—he was a proper dog, black and white with a long tail. During the last election, my wife, the noble Baroness, Lady Walmsley, and myself were canvassing near Pistyll Rhaeadr, the famous waterfall in Montgomeryshire, one of the seven wonders of Wales. She came to me rather disturbed and said that there was a dog in the next farm and that it was a bit snappy. I patted her rather condescendingly on the head, said leave it to me and went through the gate. Sure enough, there was a black and white Welsh collie, which kept jumping up at me. I said, remembering my youth, “Steddwch”, which means “Sit”—and the dog bit me. Surely, that was an issue not for Whitehall but one for Cardiff.

[Lord Hain]

My Lords, how to follow that? I shall speak to Amendment 90 in my name and in those of my noble friends Lord Murphy, Lord Kinnock and Lady Morgan. I begin by expressing my disappointment that the Minister has not been able to persuade the rest of the Government to think again on this issue and that they continue to press ahead with their transparent move, not simply to go beyond overriding decisions that the Welsh Government have taken since 2011, but deliberately to claw back powers from the National Assembly. From everything the Minister has told your Lordships, and much of what the Bill contains, this is supposed to be a pro-devolution, not an anti-devolution, Bill. But in the way in which devolved public services are configured, and especially their staff relations organised, it is repatriating powers that are already the preserve of the Assembly. Surely, that cannot be right.

When we considered this amendment in Committee, the Minister acknowledged our shared belief that employment law is, and should remain, a reserved matter. He said that,

“the underlying legislative framework concerning rights and responsibilities in the workplace must be reserved”.

I agree with that. He went on to say that the,

“system we have allows workers to be clear on their rights, whether they are in the public sector or the private sector”.

Again, I agree. However, he then said that this,

“is a fundamental principle and I cannot accept that the law underpinning the terms and conditions of public sector workers should be different from the law that underpins the rights of other workers”.—[Official Report, 15/11/16; col. 1384.]

On that point, we diverge.

My noble friend Lady Randerson spoke previously about the fact that the Welsh Assembly has long had considerable powers—for example, over doctors’ pay, terms and conditions. The principle has been conceded and accepted by the Government, ironically, as it has been in this very Bill in another respect. A government amendment to give the Assembly legislative competence over teachers’ pay and conditions has been accepted as part of this Bill. For the Minister to somehow then argue that it is impossible to disentangle fundamental employment rights from the terms and conditions of employees in the devolved public services seems somewhat irrational and contradictory, to say the very least. For the sake of clarity, I hope the House will permit me a short time to highlight the four different elements of this and to unpick a number of aspects that have been conflated during previous debates.

--- Later in debate ---

Moved by

[Lord Thomas of Gresford]

81: Schedule 1, page 59, leave out lines 11 to 15

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, I have already spoken to this amendment and do not intend to say anything further except to state, in reply to the Minister, that an important principle of subsidiarity is involved here. Comments have been made from the very moment this Bill came before the House that the reservations in Schedule 1 are a ragbag of items collected from various government departments. I have commented on this issue of anti-social behaviour, which should really be dealt with at a local level. Accordingly, I seek the opinion of the House.

Wales Bill

Lord Thomas of Gresford Excerpts

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

[Lord Elis-Thomas]

My Lords, I add my thanks to the Minister, who is an old colleague of mine—sorry, not an old colleague but a former colleague—in the National Assembly. His great achievement then, which I have alluded to before, even in this place perhaps, was converting the Welsh Conservative Party into a Welsh Conservative Party and a pro-devolution Conservative Party, as we saw most firmly yesterday in the National Assembly vote. He has excelled that contribution in the way that he has taken this legislation through this House. If I may, I want to link him to what is a very important memory for many of us. He ranks up there with the late, great Gareth Williams QC, who took us through the very early stages of devolution in this House. I cannot pay him a higher compliment than that.

The Minister kindly referred to our debate yesterday. I am not going to rise to the bait and have a spat with my noble friend about the way that the parties voted. However, it did strike me as interesting that the United Kingdom Independence Party and the party of Wales ended up in electronic harmony—we do not have Lobbies in the National Assembly—voting against a measure of Welsh devolution, even if it was for different reasons. The debate we had there was reasonable and reasoned. It was necessary to have that debate and that vote because, as the Minister has told this House before, we could not have proceeded to complete our stages without that legislative consent Motion.

That leads me to another conclusion that we can, I hope, take from our proceedings on this legislation, both in the National Assembly and in this House. Last week, I ventured to mention that we had perhaps finished a chapter of doing things in a certain way in relation to Welsh devolution. I believe we have now, potentially, reached a level of consensus, certainly between the main parties of devolution, as we saw in yesterday’s debate in the Assembly.

Perhaps we can now move, in the spirit of the agreement for legislative consent and the agreement that this House has achieved through reasoned discussion with the Welsh Government and the Constitutional Affairs Committee of the National Assembly, towards a form of co-legislating. Certainly we should look for early drafts of any proposed future developments in devolution, rather than this hand-me-down form of Westminster legislating on behalf of Wales. I put that suggestion forward not in a spirit of controversy but because I believe it is the way to achieve the consolidation championed by one of the most distinguished former Secretaries of State for Wales.

On that point, the noble Lord neglected to include himself in the list of the promoters of devolution. Although he tries now to present himself as an anti-devolutionist, during his period as Secretary of State he achieved more Executive devolution than did any other Secretary of State. It is important that we remember those days because, without the Executive devolution led by the Conservative Party in Wales, we would never have had the basis for the powers now devolved further in this Bill. I am afraid I include him as well in the pantheon of devolutionists, where he likes it or not.

I add my own thanks to Geth Williams. I remember working with him and my right honourable friend the Secretary of State in a previous Government. I recognise the quality that he and the officers and lawyers of the Wales Office bring. I also thank the lawyers of the Welsh Government who participated in these discussions and the lawyers of the National Assembly Commission, particularly those advising the Constitutional Affairs Committee of the Assembly, of which I am proud to have served as a member in two Assemblies—although not for the whole time, for reasons which I will not go into tonight.

I pay tribute to the present Constitutional Affairs Committee in the Assembly for its rapid turnaround in producing those “critical friend” reports on the Bill; to its current chair, a former Member of the House of Commons, Huw Irranca-Davies; and to its previous chair, David Melding, who has been such a distinguished Member of the Assembly, and among the deep, caring, great Conservative constitutionalists of Wales. I thank the First Minister for his constant support on these matters and the Counsel General. In addition, I pay tribute to my noble friend Lady Morgan. It is not an easy job to work both sides of the railway line but we had the happy experience of sharing the same train this morning, so were able to congratulate each other, and the Minister in his absence, on the progress we have made together on this Bill. I link with that my friend the noble Lord, Lord Wigley, and the noble Lord, Lord Elystan-Morgan, whose contributions have always been philosophical and sometimes prophetic—a great Welsh tradition.

We thank all noble Lords for their contributions. We know that through the progress of this Bill we have achieved a further significant milestone in the progress of devolution. I am not here to speculate as to what will happen next but, whatever does happen, will be on the firm basis of the reserved powers model, which is constitutionally congruent even if not as extensive as what happens in the rest of the United Kingdom, and for that I thank the Minister and this Government deeply.

[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.