14:41 - The Committee divided: - Ayes: 41 / Noes: 270 - Question accordingly negatived.
14:54 - The Committee divided: - Ayes: 217 / Noes: 274 - Question accordingly negatived.
17:29 - The Committee divided: - Ayes: 294 / Noes: 228 - Question accordingly agreed to.
17:44 - The Committee divided: - Ayes: 181 / Noes: 285 - Question accordingly negatived.
17:58 - The Committee divided: - Ayes: 285 / Noes: 7 - Question accordingly agreed to.
Mr Mark Williams
It is a privilege to serve under your chairmanship, Mrs Laing. I reiterate my support for the amendments on the permanence of the National Assembly. I think that they originate in the office of the Presiding Officer who co-represents the Ceredigion constituency, but regardless of our constituency interests, there is huge sympathy and empathy with the principle of permanence right across the Committee—perhaps there are one or two exceptions on the Government Benches.
Amendments 3 and 4 are probing amendments like those tabled by the hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts). I do not intend to divide the Committee on those amendments, but I wish to elicit from the Minister a little more detail that is currently not in the Bill. To avoid clashes between the two legislatures on devolved matters, this Parliament has hitherto adopted a self-denying ordinance, and would not normally legislate on devolved matters without the consent of the National Assembly.
I believe there is a consensus on the Opposition Benches, which is reflected by my amendment and amendments 24 and 25 tabled by Plaid Cymru, that the new provision does not provide a complete statement of the circumstances in which the Assembly’s consent is required in respect of parliamentary legislation. The Bill fails to mention the circumstances in which proposed legislation would modify the legislative competence of the Assembly itself. The amendments seek to clarify that. The requirement for consent in itself is not the issue. The Bill will at some point require the assent of the National Assembly for Wales, but in the interests of clarity and transparency the amendment sets out the circumstances when the Assembly’s consent should normally be required. I think it provides a tidier definition of devolved matters.
The meat of this grouping relates to a separate, although interestingly in this debate not a distinct, jurisdiction. I understand the principle behind Plaid Cymru’s amendments. We have heard about a separate jurisdiction and less about a distinct jurisdiction. The Government have gone as far in the Bill as to acknowledge and recognise a body of Welsh law. That is an important principle, but it is where we take that principle that concerns me. I am led in the direction of the Labour party’s amendment, which follows the stance established in the increasingly dated Silk report, which is something of a bible to Liberal Democrats. Silk, in that now slightly dusty report, talked about reviewing the case for devolving legislative responsibility for the court service—sentencing, legal aid, the Crown Prosecution Service and the judiciary—to the National Assembly. I think he would endorse the speech just made by the hon. Member for Torfaen (Nick Thomas-Symonds) and the case for a broader review of the legal system in Wales. Silk also talked about the need, in recommendation 34, for a “periodic report” by the UK Government, in consultation with the Welsh Government, to the UK Parliament and to the National Assembly on how access to justice is improving in Wales, and that there should be a regular dialogue between the Lord Chief Justice of England and Wales and Welsh Ministers on the administration of justice in Wales.
The groundwork has therefore already been done for the Labour party’s amendment. It requires the Secretary of State to keep under review the justice system as it applies in relation to Wales, with a view to reform. For some of us, the inevitable divergence of English and Welsh law being open to the possibility of reform is critically important. As a Liberal, there is still the question of timing. There is a very clear Plaid Cymru amendment. We have something that has been described as more pragmatic. Simplistically, we could say that it beefs up what Silk was talking about some time ago.
The Government have acknowledged that this is an issue by providing legal clarity on a Welsh body of law. They have also acknowledged it through the creation of a judicial working group. We talked on Second Reading about the principle of setting up the Government’s working group, which is welcome, but I do not believe it is sufficient to address the issues before us today. I am led to believe that the Welsh Assembly Government have not been invited to participate in its work.
Mr Williams
I will stand corrected if that is actually the case. I am seeking clarification and it looks like I am about to get it.
Alun Cairns
I can absolutely confirm that an invitation was sent to the Welsh Government some weeks ago. We have not yet received a response.
Mr Williams
I am grateful to the Minister for that update. That should create some food for thought at the other end of the M4, because co-operation and collaboration between both Administrations on these issues is vital.
I still have concerns about timetabling. On Second Reading, the hon. Member for Dwyfor Meirionnydd spoke about timetabling and about the working group concluding its work by September. That suggests this House—or the other place, as the Bill proceeds—would not have much of an opportunity to deliberate on its work, which is a concern. Does the working group have the opportunity to engage with civil society in the way the Welsh Affairs Committee did when it received evidence on distinct and separate jurisdictions? That is important.
I support the idea of the commission, which follows a suggested precedent that we need to review these matters. As I said on Second Reading, of all the issues in the Wales Bill we have been talking about, legal jurisdiction is the one that will not go away. It needs to be addressed and I am not sure that that can be done in one amendment today. It needs to be addressed in a substantive review. If it is not addressed in a substantive review, I fear that if some of us are lucky enough to be in this House in years to come, we will be returning to another Wales Bill to deal with it.
Paul Flynn
I agree entirely with my hon. Friend. In my book, which begins with a dramatis personae, I awarded Welsh politicians a number of pompoms for being poodle-ish or flames for being dragon-like. I think he emerged with no pompoms and five flames, which was the top award. His point is absolutely right.
During the pre-legislative scrutiny, it became clear that the question of the jurisdiction was a fundamental one that had to be addressed in the Bill. As the hon. Member for Dwyfor Meirionnyddp said, the Plaid Cymru amendment adopts the approach in the Welsh Government’s alternative Bill. That is fine—we agree with that—but we are proposing a compromise that would address the issue in a more consensual way. That is the spirit in which we approach consideration of the Bill. In response to the intervention from the Secretary of State, I must say that I welcome the concept of working with the Welsh Assembly. I know that the Constitutional and Legislative Affairs Committee of the Welsh Assembly will be meeting throughout August to consider the Bill under our former colleague Huw Irranca-Davies. I am sure that it will have a great deal to contribute, and I hope that its suggestions will meet with an open door.
There is common ground among legal and constitutional experts that the current arrangements are not sustainable. The challenges can only grow as the Welsh statute book develops further in the fifth Assembly term—“the Welsh statute book” has a nice ring to it. We have not yet risen to the heights of cyfraith Hywel Dda and the days in the 10th century when Wales led Europe with progressive legislation. There was a law that said if a starving person had gone to three villages without being fed, he or she was entitled to steal without risk of prosecution. They had wonderful rules on the rights of women that were far in advance of anywhere else and they had practically no capital punishment. Eight hundred years later, England had 220 crimes for which people could be punished with death, including stealing from a rabbit warren and cutting down a tree. So we are building on the shoulders of the giants of the 10th century and Hywel Dda. We are a long way from it, but this is another step towards that progress.
The joint jurisdiction was based on the premise that there was a common body of law across England and Wales with a single set of administrative arrangements. That premise worked for the centuries following the Acts of Union but is now out of date. In essence, that premise is inconsistent with legislative devolution; it is simply impossible to argue for retention of the joint jurisdiction when the criminal and private law in England and Wales will increasingly diverge as a result of Assembly legislation. The starting point is that there must be robust joint arrangements between the Lord Chancellor and the Welsh Ministers to work through the issues and identify solutions, and the UK Government’s proposed official working group might add some value. In his intervention, the Secretary of State said that an invitation had been sent to the Welsh Government. I do not know about that, but we would like to see that joint working. It is certainly the desire of the Welsh Government.
Our amendments would achieve three things. First, there would be a duty on the Lord Chancellor and Welsh Ministers to keep the operation of the justice system under review, including the jurisdiction question. Secondly, they would be able to appoint an expert panel to advise them, which could be an invaluable source of legal expertise to focus on the practical issues. Thirdly, the work would have to be transparent and sustained, with an annual report laid before the National Assembly and Parliament.
The Secretary of State, like his predecessor, wants the Bill to offer a lasting settlement, and so do we, but that will not happen unless they put forward a credible and serious process for reforming the joint jurisdiction. There is a major gap in the Bill as it stands. Amendment 7 is proposed as a constructive solution that deserves cross-party support and we hope to press it to a Division.
Clause 2 provides statutory underpinning for the Sewel convention. Under our constitution, both Parliament and the Assembly can legislate for Wales on devolved matters, so it is important that there be a clear understanding between the two legislatures as to which will be the principal legislature on these matters. The convention normally resolves that issue in favour of the Assembly. Amendments 23 and 24 address that issue further. The convention also requires that if Parliament proposes to amend the legislative competence of the Assembly, that too should require the Assembly’s formal consent.
To be fair to the UK Government, they have always acknowledged that the Bill will require the Assembly’s consent if it is to proceed to Royal Assent. This is a matter not of controversy but of common sense and consensus between the parties. This aspect of the convention, however, is only set out in rather obscure terms in a devolution guidance note for civil servants. As drafted, clause 2 makes no reference to this aspect of the convention at all, so it is an incomplete statement of the real position. Clarity would be appreciated.
Amendment 4 is designed to fill that gap. It would provide a comprehensive statement of the circumstances when Assembly consent is required for parliamentary legislation. In particular, it would make it clear in the Bill that Assembly consent is required when a parliamentary Bill proposes changes to the Assembly’s legislative competence. I note that amendment 25 is broadly to the same effect. This is an important element in the Welsh devolution settlement, so clarity is required; it should not depend on what is written in devolution guidance note. I urge the Government to accept these reasonable and constructive amendments.
The Parliamentary Under-Secretary of State for Wales (Guto Bebb)
I join hon. Members in welcoming the hon. Members for Newport West (Paul Flynn) and for Swansea East (Carolyn Harris) to their places on the Front Bench. I fear that I have followed the hon. Gentleman’s political career for more than 40 years, which makes me feel very old. When he was the candidate in Denbigh during the 1974 general election, my father was the election agent for Ieuan Wyn Jones, who stood for Plaid Cymru. The hon. Gentleman clearly made a huge impression on my father, who followed his career avidly, but I am surprised that as a resident of Llansannan he did not appreciate the beauty and importance of the agricultural community in the way that he perhaps should have. When my wife had a bookshop, we recommended “Dragons led by Poodles” to many of our customers. It was one of our bestsellers in the year in question, so he undoubtedly contributed to my coffers then.
On behalf of myself and the Secretary of State, may I also thank the hon. Members for Llanelli (Nia Griffith) and for Clwyd South (Susan Elan Jones) for their constructive engagement on the Bill prior to the change of guard on the Opposition Front Bench? The Bill has been brought forward in a measured way, and we have attempted at all times to have a constructive engagement with all Opposition parties. The constructive engagement we had with the hon. Members for Llanelli and for Clwyd South was particularly appreciated.
I need to go through the amendments in some detail to provide reassurance where necessary and to explain the Government’s position on them. Let me deal first with amendment 17, which was tabled by the hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts). This is clearly an attempt to change the place where new part 2A is inserted into the Government of Wales Act 2006. The new part inserted by clause 1 enshrines the permanence of the National Assembly for Wales and the Welsh Government and recognises the body of Welsh law. Amendment 8, which was tabled by the Opposition, would change the title of new part 2A, making it broader in scope. Amendments 17 and 8 are consequential amendments, so I shall explain the Government’s position on them when I speak to other amendments.
Amendments 18 to 22, tabled by the hon. Member for Dwyfor Meirionnydd, are designed to insert into the Government of Wales Act 2006 separate statements on the permanence of the National Assembly for Wales and of the Welsh Government. The amendments rightly recognise the importance of new part 2A in confirming without any doubt in law what is widely understood—that the National Assembly and the Welsh Government are a permanent part of the United Kingdom’s constitutional arrangements.
I pay tribute to my hon. Friend the Member for Monmouth (David T. C. Davies) and his work as Chairman of the Welsh Select Committee. I pay tribute, too, to his speech in which he highlighted the permanence of the Welsh Assembly in the UK’s constitutional arrangements. I accept his argument that a majority is a majority in a democratic vote. My mother-in-law argued on Sunday that we should try to avoid the result of the EU referendum, highlighting the fact that it was a very small majority on a very small turnout, whereupon I said to her that she was of the view that the 50.3% of the people of Wales who voted for the establishment of the Welsh Assembly should be respected. I stood by the democratic principle that a majority is a majority, but it was good to hear my hon. Friend the Member for Monmouth being so clear in his view that the Assembly is part and parcel of the UK’s constitutional arrangements.
It is fair to say that a great deal of consideration has been given to the content of this clause and its place in the 2006 Act, not only in the context of the draft Wales Bill, published last October, but in terms of the read-across from the Scotland Act 2016. As in the context of Scotland, I am keen to see this commitment expressed in a single clause to reflect the fact that the Assembly and the Welsh Government belong together as a part of the UK’s constitutional arrangements. I would, however, like to give further consideration to the most appropriate place to insert new section 92A in the Government of Wales Act 2006.
I shall deal next with amendments 5, 7, 9 and 10, which amend new clause 92B on the recognition of Welsh law. In its second report, published in March 2014, the Silk commission recommended that there
“should be further administrative devolution in the court system”,
and it specifically provided for devolution in respect of the various divisions of the High Court, which should sit in Wales on a regular basis to hear cases—other than highly specialist cases—that arise in Wales. The commission stated that a High Court office should be established in Wales to co-ordinate High Court sittings in Wales; that the divisions of the Court of Appeal should continue to sit in Wales on a regular basis to hear cases that arise in Wales; and that High Court and Court of Appeal judges should be allocated to sit in Wales only if they satisfy the Lord Chief Justice that they understand the distinct requirements of Wales.
I am pleased to be able to state clearly from the Dispatch Box that many of the recommendations relating to administrative devolution in fact reflect the current position in Wales: the senior courts already sit in Wales; the administration of Welsh courts is overseen by Her Majesty’s Courts and Tribunals Service Wales; and court sittings are co-ordinated locally.
Jonathan Edwards
There has, of course, been a material change in conditions, following the events of the last few weeks and the EU referendum. From our perspective, we just want to get the Bill on the statute book, so that we can move on to the next big debate about the future of our country. Is the Minister seriously saying from the Dispatch Box today, after the events of the last few weeks, with Scottish independence imminent in the next few years and with Irish unification never being closer since Lloyd George decided to split that country in two, that this Bill will hold Wales together for the next generation?
Guto Bebb
The hon. Gentleman is a passionate speaker and a strong advocate for his position. In a debate in Westminster Hall this morning, however, I warned of the dangers of creating history as we want to believe it to happen. I am not as yet convinced that there is enough evidence to suggest that Scotland is imminently about to leave the United Kingdom—[Interruption.] I am not convinced. There was a referendum two years ago that provided a fairly clear result. I think it would therefore be inappropriate to legislate on the basis of the wish list of the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards)—much as I enjoy that wish list and the passion with which it is articulated.
The Government are fully committed to maintaining the single legal jurisdiction of England and Wales. It has served Wales very well. It is also our firm view that it is the most effective, efficient and consistent way to deliver justice. The issues raised by the hon. Member for Torfaen (Nick Thomas-Symonds) highlighted some of the complexities that would be created if we moved away from that single jurisdiction at this point in time. The vast majority of law is not devolved, so there is no justification for a separate jurisdiction that would create significant upheaval and huge costs. It is worth highlighting that cost issues cannot be swept under the carpet. There would be a cost implication with very little benefit. I wonder whether Plaid Cymru Members have carried out a cost-benefit assessment to weigh up the benefits and the costs that would be incurred.
Amendment 5 envisages separate legal and court jurisdictions, administered by a common judiciary and court staff. It is designed to provide clarity, but I am not sure that it would. I think it would create more confusion, having the opposite effect—a point made by the hon. Member for Cardiff West (Kevin Brennan). The same people would be charged with administering two separate legal regimes where there is currently a commonality of law and procedure. This would have downstream consequences and it would impact on how the legal system works. It is difficult to justify such an impact on the basis of the current body of Welsh law.
We have heard the argument that the situation in Scotland and Northern Ireland is simpler because they have separate legal jurisdictions. I expected to hear that argument, but it ignores the historical reality that there has been—there always has been for that matter—a separate Scottish legal jurisdiction. I have engaged previously with the hon. Member for Carmarthen East and Dinefwr on the laws of Hywel Dda, who is rightly remembered for the legal system he put in place.
David T. C. Davies
Does the Minister also accept that Hywel Dda was very well known for the importance he placed on working with the English Government at the time, particularly with Edward the Elder and Athelstan? Is there not a great lesson for all of us here in terms of co-operation with the Welsh Assembly?
Guto Bebb
I appreciate that there are quite a few experts on Hywel Dda in this place. It is certainly the case that he took a co-operative approach. As I said previously in a debate with the hon. Member for Carmarthen East and Dinefwr, Hywel Dda was perhaps very good in some respects, but he allowed the murder of his brother-in-law for his own personal gain in the kingdom. So perhaps he was not perfect.
Let me return to the serious issue of the separate legal entity. I think that, for all the talk of Hywel Dda, it would be a mistake to ignore the historical context. We are where we are. We legislate not in terms of what we would like to see, but in terms of what is practical and what is right at this point in time, and I think that the Bill has struck the right balance in that respect.
We recognise the validity of some of the points that were raised during pre-legislative scrutiny. Wales has a distinctive legal identity. It has two legislatures, and a growing body of law made by the Assembly and Welsh Ministers. The Bill recognises that, and there is clearly a need to ensure that it does so in the context of maintaining the single jurisdiction of England and Wales. Our position is clear: we are recognising reality in the context of a system that currently works very well for Wales and the United Kingdom.
Amendments 7 and 9 call for the Lord Chancellor and Welsh Ministers to keep under review the functioning of the justice system in relation to Wales, including the question of whether the single legal jurisdiction should be separated into a jurisdiction for Wales and a jurisdiction for England. The case for that was argued by the hon. Members for Torfaen and for Newport West.
This is an important issue, and it should be considered carefully. The St David’s day process considered the position for and against devolving justice, and ultimately found no consensus in favour of implementing the Silk commission’s recommendation. As I have said, the Government firmly believe that the most effective, efficient and consistent way to administer justice is under a single legal jurisdiction.
Despite the devolution of powers to Wales, under this Bill and the Government of Wales Acts before it, and despite the increasing amount of legislation made by the Assembly, the vast majority of laws apply equally across England and Wales, and will continue to do so. The Government therefore pledged to continue to reserve justice and policing in their election manifesto, as I mentioned earlier. However, I agree with the principle that the functioning of the justice system must be kept under review, especially given the continuing divergence in law to which I have referred.
It is for that very reason that my right hon. Friends the Justice Secretary and the Secretary of State for Wales have established a working group to consider the administrative changes needed to meet the administrative and operational demands of diverging legislation in a Welsh context. The group will represent the key areas affected by the changing legislative Welsh landscape, and will consider a range of circumstances affecting the operation of justice in Wales. I can tell the hon. Member for Ceredigion (Mr Williams), who raised the point in his speech, that the Welsh Government have been invited to be represented on the group, but the invitation was issued to officials in that Government, so there should be no condemnation of any political forces—any Ministers—in the Assembly. We expect a positive response to the invitation.
Mr Mark Williams
Will the Minister clarify—I am sure that he is on the verge of doing so—the time frame for the joint working group? I understood that it would conclude its work in the autumn. The amendment proposes a real review over a lengthier period as the divergence between Welsh and English legislation becomes a reality.
Guto Bebb
It is currently envisaged that the group will report in the autumn, and, as things stand, that is its aim. I hope that that satisfies the hon. Gentleman, at least in terms of clarity.
It is important to understand what the group will and will not do. It will consider the administrative and operational implications of a shared but single legal jurisdiction, but it will not discuss broader constitutional questions such as whether there should be a separate jurisdiction. The Government’s view is clear: the single legal jurisdiction of England and Wales is the most effective, efficient and consistent way to deliver justice. I hope that provides the clarity for which Members have been asking.
Amendment 10 seeks to omit subsection (2) of the proposed new section 92B of the Government of Wales Act. Subsection (2) recognises that a body of Welsh law made by the Assembly and by Welsh Ministers forms part of the single legal jurisdiction of England and Wales, while giving due regard to the boundaries of competence set out in the Bill. It is important for the Assembly to have full and effective powers to enforce its legislation on devolved matters, and in order to achieve that, a growing body of distinct law will necessarily continue to be made by the Assembly and Welsh Ministers.
The Bill provides for that throughout. In particular, paragraphs 3 and 4 of new schedule 7B, which schedule 2 inserts into the Government of Wales Act and which the Committee will debate next week, make it clear that the Assembly may modify the private law for a devolved purpose, and that only certain core elements of the criminal law are outside its competence. Those elements are listed in paragraph 4 of the new schedule. The Assembly will, for example, be able to create and modify offences when they are for the purpose of enforcing devolved provisions.
Subsection (2) of new section 92B is intended to be helpful, explaining that the purpose of the provision is to recognise the ability of the Assembly and Welsh Ministers to make laws forming part of the unified legal system of England and Wales. The new section constitutes a declaratory statement, and does not bestow any further powers on the Assembly than are provided for elsewhere in the Bill. It is, however, important in that it enables the contribution made by the Assembly and Welsh Ministers to the law of England and Wales to be recognised for the first time, while having due regard to the other provisions in the Bill. Subsection (2) is required to clarify that the statement must be considered in the context of the rest of the Bill. Without it, there might be uncertainty about the meaning of subsection (1).
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
So that the public can understand the divergence that has, to a limited degree, taken place so far, will the Minister tell us what proportion of the current law he considers to be distinctly Welsh, as opposed to England and Wales law? May we, in future, be given a regular update on that distinction, so that ordinary people understand where the law is diverging?
Guto Bebb
That is a good question, because it highlights the importance of ensuring that people in Wales understand where law is made. The percentage of Welsh law is currently tiny by comparison with the overall impact of the law on those people, but I think we should keep an eye on the position.
Clause 1 sets the scene for the new model of Welsh devolution that is presented in the Bill. It inserts a new part 2A into the Government of Wales Act, ensuring that, for the first time, the permanence of the National Assembly for Wales and the Welsh Government is confirmed. It recognises both as a permanent element of the United Kingdom’s constitutional arrangements, and as part and parcel of our nation’s constitutional fabric, and reflects the importance of the National Assembly and the Welsh Government to political life in Wales.
The Silk commission recommended that it be recognised that the National Assembly for Wales is permanent for as long as that is the will of the majority of people in Wales. In the St David’s day agreement, the Government gave an undertaking to enshrine that commitment in legislation, which we are delivering in clause 1; we did the same for the Scottish Parliament and the Scottish Government in the Scotland Act 2016. I think it fair to say that most Members welcome that certainty.
New section 92A also provides that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision by the people of Wales voting in a referendum. I hope that such a referendum will not be forthcoming, but I think it important to recognise that the decision on whether we have a Welsh Assembly and a Welsh Government is a decision for the people of Wales, to be made by them.
New section 92B underpins the commitment to permanence by recognising that there is a body of Welsh law made by the Assembly and Welsh Ministers that forms part of the law of England and Wales. It is important that we recognise that in statute—which we are doing for the first time—while also recognising the elements that are common to England and Wales. Clause 1 is a declaratory statement, but its recognition of the contribution made by the Assembly and Welsh Ministers to the law of England and Wales is important none the less. Meanwhile, the Justice in Wales working group of officials that I mentioned earlier will consider what changes are necessary to reflect the distinctiveness of Wales within the administrative arrangements for justice, and, as I have said, I expect a report in the autumn.
Amendment 23, tabled by the hon. Member for Dwyfor Meirionnydd, seeks to broaden the scope of the commitment given in relation to the convention about Parliament’s legislating on devolved matters by removing the word “normally”. The commitment in clause 2 that Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly reflects the current convention on legislative consent. We gave a commitment to put that convention on a statutory footing in the St David’s day agreement, and that is what clause 2 does. The clause is also in line with the provision made in relation to the Scottish Parliament in the Scotland Act 2016. Since the convention was established, a legislative consent motion has always been sought before Parliament has passed legislation for Wales in relation to devolved matters. This is part of the normal working arrangements between the UK Government and the Welsh Government and we expect it to continue, but to remove “normally” from the clause would fundamentally change the convention. The “not normally” element of both the convention and clause is essential as it acknowledges parliamentary sovereignty and, within the clause, signals to the courts that this clause is not intended to be subject to adjudication.
The Temporary Chair (Sir Alan Meale)
With this it will be convenient to discuss the following:
Amendment 28, in clause 6, page 7, line 2, leave out paragraph (b) and insert—
“(b) for ‘The Secretary of State may by order provide for the poll at an ordinary general election to be” substitute “The Presiding Officer may propose that the poll at an ordinary general election is.’”
The Bill as drafted transfers the power to vary the date of an ordinary general election from the Secretary of State to Welsh Ministers. The amendment transfers the power to the Presiding Officer of the National Assembly for Wales.
Amendment 29, page 7, line 2, at end insert—
“(7A) Leave out subsection (2) and insert—
(2) If the Presiding Officer makes a proposal under subsection (1), Her Majesty may by proclamation under the Welsh Seal—
(a) dissolve the Assembly,
(b) require the poll at the election to be held on the day proposed, and
(c) require the Assembly to meet within the period of fourteen days beginning immediately after the day of the poll.”
The amendment inserts provision for the arrangements for varying the date of an ordinary general election. The amendment also extends from seven to fourteen days the period within which the Assembly is required to meet following the day of a poll.
Amendment 30, page 7, line 2, at end insert—
“(7B) In subsection (4) for ‘An order under this section may’ substitute ‘If the Presiding Officer makes a proposal under subsection (1), the Welsh Ministers may by order’”.
The amendment replicates existing provisions in the Government of Wales Act 2006 with a modification resulting from the transfer of the power to vary the date of an ordinary general election to the Presiding Officer.
Amendment 31, page 7, line 6, at end insert—
“(10A) Section 5 of the Government of Wales Act 2006 (Extraordinary general elections) is amended as set out in paragraphs (a) to (d)—
(a) In subsection (1) for “Secretary of State” substitute ‘Presiding Officer’.
(b) In subsection (4) for “Secretary of State” substitute ‘Presiding Officer’.
(c) In subsection (4) for ‘Order in Council’ substitute ‘proclamation under the Welsh Seal’.
(d) In subsection (4) for ‘seven’ substitute ‘fourteen’”.
The amendment inserts a new provision transferring the power to propose the day of an extraordinary general election from the Secretary of State to the Presiding Officer. The amendment also extends from seven to fourteen days the period within which the Assembly is required to meet following the day of a poll.
Clauses 6 and 7 stand part.
The Parliamentary Secretary, Cabinet Office (John Penrose)
Clauses 5 to 7 deal with elections to the Assembly and local government elections in Wales. Clause 5 concerns the power to make provision about Welsh Assembly elections. It flows from the St David’s day agreement, which states that powers relating to elections to the National Assembly for Wales should be devolved. Essentially, the clause gives Welsh Ministers an order-making power to make provision about the conduct of Welsh Assembly elections. It also gives the Secretary of State, subject to the agreement of Welsh Ministers, the power to make regulations to combine the polls at Welsh Assembly elections with UK parliamentary elections and in theory—this will not matter much in future—with European parliamentary elections, too.
Clause 5 substitutes section 13 of the Government of Wales Act with a proposed new section 13. It broadly transfers to Welsh Ministers the power exercised by the Secretary of State to make provision by order about the conduct of Welsh Assembly elections. The new section provides that the powers of Welsh Ministers are aligned with the legislative competence of the Welsh Assembly. It also sets out the scope of the order-making power and makes it clear that it enables provision to be made on a number of matters, including the registration of electors and the limits of election expenses for individual candidates. It also allows Ministers to combine polls: when more than one poll is held on the same day, they will decide how the polls will be administered.
The clause also devolves matters relating to the allocation of regional members at an election, the process for challenging an election and what should happen if there is a vacancy in the Assembly. It also inserts a new section 13A into the 2006 Act that gives the Secretary of State the equivalent power to combine polls at Welsh Assembly elections with UK parliamentary elections and European parliamentary elections. For example, an extraordinary general election for the Assembly could be held on the same day as a general election for the UK Parliament. The exercise of this power by the Secretary of State will be subject to the agreement of Welsh Ministers and subject to the affirmative resolution procedure here in the UK Parliament.
Clause 6 concerns the timing of elections in Wales and implements the St David’s day agreement, which states that while conduct of Assembly elections and local government elections in Wales should be devolved, the Assembly should not be able to decide to hold its elections on the same day as general elections to the UK Parliament, the European Parliament or local government elections in Wales. This aspect of the administration and conduct of Assembly and local elections will therefore remain reserved to the UK Parliament.
By way of background, to date, each general election that has been held to the Assembly—there have been five in total—has been held in a different year from ordinary local elections in Wales. Further, the Wales Act 2014 amended section 3 of the Government of Wales Act 2006 so that ordinary general elections to the Assembly are now held every five years rather than every four. This, and the provision in the Fixed-terms Parliaments Act 2011, which it superseded, avoided the Assembly general election and the UK parliamentary general election clashing in 2015 and will avoid such a clash in 2020, as the next ordinary general election to the Assembly is now scheduled to be in 2021.
The next scheduled local elections in Wales are due to be held in 2017. The Local Authority Elections (Wales) Order 2014, made by Welsh Ministers, provided for the local government election date to be moved by one year in order to avoid a clash with this year’s Assembly election. The clause says that in the event of a clash, Welsh Ministers can make an order specifying the alternative day on which the poll of the ordinary Welsh Assembly general election shall be held. It also transfers the existing power of the Secretary of State to move the date of an Assembly ordinary general election by up to one month to Welsh Ministers, and that where this power is exercised, that new date cannot fall on the same date as a UK parliamentary general election or European parliamentary election.
The clause also includes provisions that prevent local government elections in Wales from being held on the same day as an Assembly general election. If there is a clash, Welsh Ministers can make an order specifying the alternative day for the local government election to held.
Clause 7 ensures co-operation between Welsh Ministers and UK Ministers over the online individual electoral registration digital service for Assembly elections and local government elections in Wales. The Assembly is free to decide on a franchise and a registration process for these elections, but as a practical matter, where the Welsh Government wants changes to the GB-wide Digital Service, they will need the approval of UK Government Ministers to do so.
Stephen Doughty
To clarify, if Assembly Ministers have the ability to change the provisions about the registration of electors and potentially to move to an automatic system of registration, which ensures that we have people registered, unlike the current system, how will that work with future UK parliamentary elections or other elections? Will they then be using the system that the Welsh Ministers have decided on or will there be a different register for those elections?
John Penrose
As the hon. Gentleman will be aware, we already run two very heavily overlapping but subtly different electoral registers for local council elections and parliamentary elections. There are different qualifications. For example, an EU national who currently lives in a British city might be eligible to vote in a local council election and not in a UK parliamentary election, so we have two heavily overlapping but not identical registers. The same applies to Scottish parliamentary elections to Holyrood. That will continue, and should the Cardiff Assembly decide that it wants to change things in some way it will have the competence to do so for the electoral roll for Cardiff Assembly elections, but it will not have the competence to change the registration process or scope for UK parliamentary elections as that is a reserved matter to be decided in this place. I hope that clarifies things for the hon. Gentleman.
John Penrose
There has been a difference for many years between local election registers and parliamentary election registers. That is a very long-standing principle. We are not changing that. It would be possible, should the Welsh Assembly so decide, to make further changes and enfranchise other groups of people whom we would not necessarily want to enfranchise for UK parliamentary elections. At the moment, however, there is already a difference between the two electoral registers. There has been for a very long time. Nothing about this will change any of that, but in future it will be up to the Welsh Assembly to decide whether it wants to make further changes that might narrow or widen the existing long-standing differences.
Geraint Davies (Swansea West) (Lab/Co-op)
The Minister seems to be saying that the Welsh Government should have the right to displace coincidental elections, but that they do not have to. He seems to be saying that under the rules a general election, an Assembly election and even a European election could occur on the same day. At the same time, he is saying that it would be delayed by only a month. In the last such episode, we saw political parties in Wales campaigning up to the Assembly elections and not really mentioning Europe, but then we had only six weeks to persuade Wales that it was better off in. That was not enough. Is a month long enough?
John Penrose
I fear that I was not clear enough. I am saying that there are explicit provisions in the Bill to prevent the elections the hon. Gentleman just mentioned from happening on the same day. It will not be possible to hold an Assembly general election, for example, on the same day as a UK parliamentary general election. That is explicitly prevented in the Bill and if some future accident of diary meant that the two things were to fall on the same day, we are talking about the powers for Welsh Ministers to move their date, should it be necessary, by up to a month, and about their having that power rather than the Secretary of State.
Geraint Davies
On the second point, one question would be whether a month is long enough. It would seem to me that it is not. Secondly, it seemed to me that the Minister said that there are powers to move the dates but that Welsh Ministers are not obliged or required to move them. Could not the Welsh Assembly Government choose to have the two elections on the same day under this provision?
John Penrose
I am not saying what the hon. Gentleman fears I am saying. I can reassure him on that. The power to move things by a month already exists. It just happens to be vested in the Secretary of State. All we are seeking to do here, as part of the St David’s day agreement and following the principles set out in it, is to devolve that power from the Secretary of State to Welsh Ministers. We are not seeking to change the power in one direction or another; we are just making sure that it is being exercised more locally in Cardiff rather in than Westminster. It continues to be legally the case that the Assembly elections and the UK parliamentary elections cannot happen on the same day, so it would only be a question of moving some of these elections around in that case—although there might be other reasons why one might want to—if at some point, many decades hence, an accident of the diary meant that the two happened to coincide. In order to comply with the constraint, they cannot happen on the same day and one would have to move, whereupon this power would apply.
I was talking about the online voter registration system and the way that that needs to be adjusted, if it is to be adjusted, by mutual consent. As I said, the Assembly is free to decide on the franchise and the registration process for Assembly elections, but as a practical matter, where the Welsh Government want changes to the Great Britain-wide Digital Service, they will need the approval of UK Ministers to do so. That is because the Digital Service is a series of interconnecting digital applications, including online voter registration, for people living in England, Wales and Scotland, as well as British citizens resident overseas. We all need to ensure that any changes to the franchise or registration process for Welsh Assembly and local government elections in Wales do not adversely impact on voters in other parts of the UK or abroad.
With these considerations in mind, the clause allows Welsh Ministers to make regulations concerning the Digital Service in relation to Assembly and local government elections in Wales with the agreement of a Minister of the Crown.
Hywel Williams
I apologise to the Committee for my voice today. My daughter Enlli came back from nursery the other day with a slight tickle, and that has led to world war three breaking out in my larynx, unfortunately.
My hon. Friends and I support the motion that clauses 5, 6 and 7 stand part of the Bill, preferably along with our amendments 28 to 31 to clause 6. These are probing amendments and I would be interested in hearing the Minister’s response.
As the Assembly has grown in competence, it is reasonable that the power over the timing of its own elections, as well as powers over the conduct of those elections and the registration of electors, should be devolved. Any ambitious democratic body would surely seek such powers. The amendments in this group, as Members on both sides of the Committee will be aware, were originally drafted and published by the office of the Presiding Officer of the National Assembly. In a letter dated 30 June, the Presiding Officer set out that the aim of this set of amendments is to
“deliver a constitutional settlement that is workable, clear and provides a firm foundation for the Assembly’s future.”
She noted in the same letter that these amendments were informed by evidence given during pre-legislative scrutiny of the previous draft Wales Bill to the then Assembly’s Constitutional and Legislative Affairs Committee, and were equally informed by the Assembly’s experience of working under the current settlement.
Amendments 28 to 31 would transfer the power to vary the date of an ordinary general election, as well as the power to fix the date of extraordinary Assembly elections, from the Secretary of State directly to the Presiding Officer of the National Assembly, rather than to Welsh Ministers. The amendments are underpinned by the principle that the Assembly should have powers over its own internal affairs.
It is worth pointing out, as the context, that the Fixed-term Parliaments Act 2011 set a precedent for moving decision making over the administration of elections away from the Government. Our amendments in this group, though probing, have this same underlying principle at their root—that is, that powers over determining the date of Assembly elections should be moved away from the Government. To our mind, this power should not be conferred on the Executive, so as to remove the possibility of any accusations of political interference. Were this change to be made by our amendments, it would add to the competence and responsibility of the legislature, which should surely be welcomed by all parties. It would also increase public confidence in the independent nature of election management in Wales.
As drafted, the Bill transfers the power to vary the date of an ordinary Assembly general election from the Secretary of State to Welsh Ministers. This is in contrast to the system operated in Scotland, whereby this power is bestowed on the Presiding Officer. Amendment 28 would put the Welsh Assembly’s arrangements on the same footing. Amendment 29 relates to conferring powers over varying the date of an ordinary general election. Although the Bill devolves powers over electoral arrangements, it does so in an unnecessarily impractical way.
John Penrose
Can the hon. Gentleman expand on his thinking about why those changes would be helpful? There are different approaches, as he will appreciate. Does he believe that there is anything unclear about the criteria that must be satisfied under the Fixed-term Parliaments Act as to whether a majority has been achieved in an Assembly or Parliament, or does he have other concerns about potential political game playing? Does he believe that the measure might put the Presiding Officer in a politically contentious position?
Hywel Williams
I have considered that, and it is my opinion and that of the Presiding Officer that it would not put her in that difficult position. These amendments are hers, after consideration. The point about parity and similarity with Scotland is persuasive, to our minds.
Hywel Williams
I take my hon. Friend’s point entirely. The four Assembly elections held so far have not produced a majority Government, so the consent of the Assembly collectively would be required in that situation. I am not casting any aspersions on the motives of Governments in Cardiff, London or anywhere else, but the amendment would remove any suspicion of political advantage being sought.
By adding a strict seven-day timeframe, during which period the Assembly must meet and elect a Presiding Officer, the Bill once again puts Wales on an unequal footing with Scotland. The Scottish Parliament is allowed 14 days to carry out this function. Given the history of the outcomes of elections to our Assembly, as I said a moment ago, and the obvious consequence that time has been required for the parties to discuss all manner of arrangements, seven days for this particular exercise seems unreasonable. That is why amendment 29 extends this period to 14 days for the Welsh Assembly.
Amendment 30 amends the Government of Wales Act 2006 so as to confer powers over varying the date of an ordinary general election to the Presiding Officer, as opposed to transferring this power directly to Welsh Ministers under the Bill as currently drafted. Finally, amendment 31 amends the 2006 Act so as to ensure that powers over proposing the date of an extraordinary general election are given to the Presiding Officer. The amendment once again extends the timeframe during which the Assembly is required to meet following an election to 14 days, thus establishing parity with Scotland.
These amendments are meant to probe and promote discussion. We do not intend to press them to a vote.
John Penrose
I thank the hon. Gentleman for laying out his case so clearly and so helpfully. He is right to point out that the provisions in the Bill seek to mimic the existing provisions to which his four amendments relate and to devolve the existing arrangements from the Secretary of State down to Welsh Ministers. However, he is also right to point out that this is not quite the same thing as has already happened in the parallel situation in Scotland, where the powers were devolved not to Scottish Ministers but to the Presiding Officer. We therefore already have in British constitutional arrangements two parallel but subtly different approaches.
The reason I asked my question of the hon. Gentleman is that there are competing views on this issue. I am not sure that either is necessarily automatically better or worse than the other, but there are different strengths and weaknesses, and different pros and cons, to both. Some people are concerned that devolving these powers to the Presiding Officer could put them in a politically contentious position. I do not think that that is the view of the Scottish Presiding Officer, the Welsh Presiding Officer or many politicians in the Welsh Assembly, but some people would certainly cleave to it—perhaps here, for example.
Equally, the question is whether the criteria that have to be satisfied for a fixed-term Parliament to be altered in length and for an early, extraordinary election to be called, are clear. For example, for this Parliament, the Fixed-term Parliaments Act says that we either have to have a Government who cannot command a majority and who, over two weeks, have failed to find one, or we have a two-thirds majority. Those are fairly clear criteria, so there is relatively little opportunity for political game-playing, either by Ministers or a Presiding Officer.
Jonathan Edwards
I am grateful to the Minister for the tone of his reply and for his clarification. Having read up on the potential implications of the Brexit situation, whereby the new Prime Minister may decide to call a snap election, I wonder whether it would be possible, under the terms of the Fixed-term Parliaments Act, for the new Prime Minister to call a vote of no confidence in him or herself, therefore triggering an election.
John Penrose
If the hon. Gentleman is not already in his party’s Whips Office, he probably should be, because that is a proper Whips Office wheeze. Were such a thing legally possible—I defer to others to decide whether it would be—I do not think it would pass the test of democratic credibility. Any Government who sought to precipitate their own downfall through that kind of mechanism—voting against themselves and saying they were not competent—would, as a practical matter, probably be judged quite harshly by voters in the polls. However, I appreciate that we are talking about theoretical circumstances, and we will have to leave that issue to the future to decide.
The point I was trying to make is that there are legitimate arguments on both sides, and both systems—one here, and one in Scotland—already persist quite happily side by side in British constitutional arrangements, and the question is now being raised in relation to the Welsh Assembly. I do not want to say that one system is inherently legitimate or illegitimate, or that one is necessarily better or worse than the other. It has to be a question of what is acceptable to local decision makers—in this case, Assembly Members and their officials in the Welsh Assembly.
We are therefore sympathetic to taking this issue away and thinking about it carefully. I thank the hon. Gentleman for raising it, and he makes a thought-provoking case. If he agrees, I would be happy to take his amendments away—I think he indicated they were probing amendments—to see whether we can take this issue forward or at least develop his ideas and thinking a little further.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clauses 6 and 7 ordered to stand part of the Bill.
Clause 8
Super-majority requirement for certain legislation
Hywel Williams
I beg to move amendment 32, page 10, line 3, leave out subsections (5) and (6).
The amendment removes the requirements on the face of the Bill for the National Assembly for Wales’ Standing Orders to include requirements for the publication of a statement in Welsh and English.
Alun Cairns
It is a pleasure to serve under your chairmanship in this important debate, Mr Gray.
In opening, I say that it is a pleasure to welcome the hon. Member for Newport West (Paul Flynn) to his place. He is the Member of Parliament for my parents-in-law, and an active constituency Member. We all know how active he is, usually on the Back Bench, but it is a pleasure to see him on the Front Bench. I extend a welcome to the hon. Member for Swansea East (Carolyn Harris)—I have some roots in Swansea, having been brought up in that part of the world. I also pay tribute to the hon. Members for Llanelli (Nia Griffith) and for Clwyd South (Susan Elan Jones), for the work that they have put into consistent scrutiny of the Bill in its early stages. I am grateful for the co-operation and support they gave me as we sought to bring about broad agreement on where the Bill stands. There is not agreement on everything, but I am grateful to all Members who have contributed for the broad consensus that has come forward.
Clauses 8 to 21 and the amendments related to them deal with changes to Assembly processes, the devolution of income tax powers, and the functions of Welsh Ministers. Clause 8 would insert a new section into the Government of Wales Act that determines what types of protected subject matter would, if contained in an Assembly Bill, require that that Bill be passed by a super-majority, which is two thirds of all Assembly Members. The protected subject matters in clause 8 include the name of the Assembly, those entitled to a vote in the Assembly elections, the system used in Assembly elections, the specification or number of Assembly constituencies and regions, and the number of Members returned for each constituency or region. These are in line with the protected subject matters included in the Scotland Act 2016, with two exceptions. The Bill provides that any change to the name of the National Assembly for Wales be subject to a super-majority requirement. The Bill also provides for the specification of constituencies, regions or equivalent electoral areas as protected subject matter. The super-majority requirement will ensure that there is broad support across the Assembly for those fundamental changes.
In the first instance, it would be for the Presiding Officer to determine and make a statement on whether or not an Assembly Bill relates to any of those protected subject matters. It is this part of the clause that amendment 32, tabled by Plaid Cymru, seeks to change. The amendment would remove the requirement for the Presiding Officer’s statement to be made in both the English language and the Welsh language. It would also remove the requirement for the Assembly’s Standing Orders to determine the form of the statement and the manner in which it is to be made.
It goes without saying that the Government are fully committed to the Welsh language. The Wales Office has two Ministers who speak Welsh, of which I am one, and a third Minister who is learning Welsh. It is good to see that the political tension around the Welsh language seems to be a relic of history, which is, I am sure we would all agree, a positive move. But the intention behind proposed new sections 11A(5) and 111A(6) of the Government of Wales Act 2006, as inserted by clause 8, is to ensure that the Welsh language is treated equally with English when the new super-majority processes are incorporated into the workings of the Assembly.
Glyn Davies
Does the Secretary of State agree that it is outrageous for those organisations supporting the Welsh language to assume that because we are leaving the European Union the support for the Welsh language will in some way be greatly diminished? The UK Government and Welsh Government have been huge supporters of the Welsh language, and there is no earthly reason why that should not continue in future.
Alun Cairns
My hon. Friend makes an extremely important point. A broad consensus has developed on the Welsh language over the past few decades, which is very different from what we might have seen before.
Susan Elan Jones
Does that mean we will have a fully bilingual Welsh Grand Committee? I am just hoping.
Alun Cairns
The hon. Lady knows that the Welsh Grand Committee is fully bilingual when it sits in Wales, but when it sits in this place its proceedings are in English, the language of the House.
Alun Cairns
I am not going to give way, because there are many technical amendments I need to cover and I want to make some progress.
I say to the hon. Member for Arfon (Hywel Williams), who moved amendment 32, that he has made a persuasive argument that the Assembly processes would ensure that Welsh is treated equally anyway, without adding a prescriptive provision to the Government of Wales Act. I would like to give the matter more thought but undertake to return to it on Report. I therefore hope that he will consider withdrawing the amendment.
Hywel Williams
I am grateful to the Secretary of State for that response and will listen to the rest of his speech with interest. I will withdraw the amendment. There is a progression in the normalisation of a language such as Welsh, from a point where it has to be specified to one where it is assumed, which is where we are in the National Assembly. That is an important point to make.
Alun Cairns
The hon. Gentleman makes an extremely important point that demonstrates the maturity of the debate and the acceptance of the language.
Clause 8 also provides for the Counsel General or the Attorney General to be able to refer the question of whether a provision of an Assembly Bill relates to a protected matter to the Supreme Court for a decision. The Counsel General or the Attorney General may make such a reference to the Supreme Court at any time during a period of four weeks from either the Assembly rejecting the Assembly Bill or its being passed.
There is precedent for a requirement for a super-majority on matters of constitutional importance. Under the Government of Wales Act 2006, the Assembly vote that triggered the 2011 referendum on Assembly powers required two thirds of Assembly Members to vote in favour. The Government believe that the safeguards in the Bill are sensible and command broad support across Wales.
Supplementing clause 8, clause 9 amends requirements for the Assembly Standing Orders on Assembly Bill proceedings, to reflect the new processes required as a result of a reference to the Supreme Court. The clause provides for Assembly Bills to be reconsidered by the Assembly in the event that the Supreme Court rules against the Presiding Officer’s decision on whether the Bill relates to a protected subject matter. That is in line with procedures put in place for the Scottish Parliament in the Scotland Act 2016, which has been passed by both Houses.
Clause 10 relates to justice impact assessments, on which there was considerable debate. The UK Government and Welsh Government have a number of well-established processes for assessing the impact of legislation on matters ranging from regulation to equalities. Indeed, on Second Reading I discussed the fact that Assembly Bills are assessed against their likely impact on the Welsh language and on equalities. It is also important to recognise that, through the Treasury and a range of other Departments, Her Majesty’s Government issue guidance and requirements relating to expectations of how public spending will be conducted and how public interests will be guarded. That is the principle under which the justice impact assessment should be considered, rather than how it has been interpreted by many.
Within the UK Government, Departments bringing legislation forward to this House are required to assess its likely impact on the justice system. The importance of that assessment is self-evident: for legislation to be effective it must be enforceable. It is vital that that enforcement process is ready and resourced sufficiently to cope with new demands placed upon it.
Mr David Jones
Will my right hon. Friend explain what extraordinary event has happened in the past 14 months to move devolution on to such a large extent?
Alun Cairns
I am grateful to my right hon. Friend for his intervention. I was about to go on to say that two important principles have been acknowledged. First, the Assembly is more mature. That is reflected in the legislation we are passing to enable the Assembly to reach out and respond further to Welsh needs.
Secondly, when my right hon. Friend was Secretary of State for Wales, he established the principle of devolving significant tax-varying powers without a referendum. In the 2014 Act, the devolution of stamp duty land tax and the aggregates levy, in addition to powers over council tax and the subsequent full devolution of business rates to Wales, account for a broad income of £2.5 billion. The Welsh rate of income tax, which we propose to devolve is—at about £2 billion—significantly less than that. This important principle has been accepted positively by the Welsh public and by civic society. That stands firm and is a backstop to clause 16.
Mr David Jones
Does my right hon. Friend not accept that the significant difference is that very many more people pay income tax than pay stamp duty land tax or landfill tax? Is that not the point, that it affects nearly everybody in Wales?
Alun Cairns
I remind my right hon. Friend that a similar number of people who pay income tax also pay council tax, and that many will be business owners who pay business rates.
Much reference has been made to the Welsh Conservative manifesto and I remind right hon. and hon. Members what it said. Our manifesto for Wales stated that a funding floor would be introduced in the expectation that the Welsh Government would hold a referendum. We have fulfilled our end of the bargain, having introduced a funding floor of 115%, as has been mentioned. That is the floor—if I may gently correct the hon. Member for Ynys Môn (Albert Owen)—and the spending level is currently higher. If the Welsh Government are not going to introduce a referendum—I do not think that any of us want one after the events of recent weeks—we will need to take steps, so I hope that the House will agree clause 16 as it stands.
Clauses 17 and 20 deal with the functions of Welsh Ministers and devolve important new powers to them. Clause 17 will insert new subsection 58A into the Government of Wales Act 2006, conferring common law-type powers on Welsh Ministers—the kinds of powers exercised by a natural person, such as the power to enter into contracts, make payments or set up companies. It is difficult to believe that Welsh Ministers do not already hold these powers, and it demonstrates how current legislation is out of date with modern thinking and concerns.
Clause 19 deals with the transfer of ministerial functions. The Bill provides for a clear separation between devolved and reserved powers, an important component in which is being clear about which so-called pre-commencement Minister of the Crown functions in devolved powers are to be exercised in the future. We intend to transfer to Welsh Ministers as many of these functions as we can. We will do so in a transfer of functions order made under section 58 of the Government of Wales Act and will bring forward a draft order during later stages of the Bill. Several other transfer of functions orders have been made under section 58 since the Assembly was established.
I turn now to amendment 11, tabled by Labour, which would place a requirement in the Bill for a so-called fiscal framework. I should underline that the precedent in Scotland was not for the inclusion of such a provision in legislation; instead, the UK and Scottish Governments negotiated an agreement. I would hope that a mature relationship has developed between the Welsh and UK Governments, and between the First Minister and me, in respect of how we conduct our affairs. Clearly, there is no way I want to see Wales in a detrimental position—that is the starting point of our negotiations—and I am optimistic that we can come to an agreement over the appropriate adjustments to the Welsh block. Holtham has made some recommendations that are a good starting point for those discussions. Few people believed we would ever get to the position of introducing a funding floor. I hope, therefore, that that funding floor of 115% might give people confidence.
I would like us to reach a position where the Welsh Government can grant a legislative consent motion. Under the model we followed in Scotland, a legislative consent motion came only after the fiscal framework was agreed. I would hope that, once we have reached an agreement on a fiscal framework and a Barnett adjustment, a legislative consent motion could then be used as proof and evidence. For that reason, the amendment proposed is unnecessary—appropriate structures are in place to allow for that mature discussion to take place.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Hywel Williams
We have had a wide-ranging debate, including on issues not really to do with the lead amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Clause 9 ordered to stand part of the Bill.
Clause 10
Introduction of Bills: justice impact assessment
Question put, That the clause stand part of the Bill.