Wales Bill

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

Second Reading (Continued)

17:41

[Lord Howarth of Newport (Lab)]

My Lords, this Bill should not have been placed before Parliament in the state it is in. For all the work of the Silk commission, of which the noble Lord, Lord Bourne, was a distinguished member, three successive Secretaries of State, pre-legislative scrutiny of a draft Bill and then scrutiny of this Bill by the House of Commons, it is a mess. It is confused and opaque. The opacity is not just because this legislation is not consolidated, although it is very unhelpful that that is the case. The Bill is based on no discernible constitutional principles. It expresses no clear or convinced vision for Wales or for the United Kingdom or for the relationship between the two. With the fractures exposed by the EU referendum, such a vision has never been more needed.

The Bill is not the product of a concordat between the Governments of Wales and of the United Kingdom. It will not fulfil the aspirations of the people of Wales for full law-making powers vested in the National Assembly as expressed in the referendum of 2011. It will not,

“put Welsh devolution on a stable footing for the long term”,—[Official Report, Commons, 14/6/16; col. 1644.]

which at Second Reading the Secretary of State described as the ambition of Ministers. There is a lack of ambition here for Wales. Rather than seeking to provide for Wales devolutionary parity, or near-parity, with Scotland and Northern Ireland, Ministers have tried to get away with the minimum they can. Power, instead of being shared generously between England and Wales, is being grudgingly contested in a zero-sum game.

My noble friend Lord Hain famously said that devolution is a process, not an event. The process to which this Bill will consign us will be one of frustration for Wales, legal uncertainty and continuing friction. Yet another round of legislation—a fifth go—will soon be needed. That phrase, “a new constitutional settlement”, which the noble Lord, Lord Bourne, used in his peroration—is peculiarly inapplicable to this measure.

The Secretary of State insists that his underpinning principles in preparing the Bill have been clarity and accountability. Whatever accountability there may be for the Welsh Government if they should avail themselves of the new power to vary rates of income tax, there will be no clarity in the absence of a commitment by the Government of the United Kingdom to extend the minimum funding pledge beyond this Parliament and to compensate for the loss of European payments to Wales following Brexit. Without that commitment the Government of Wales are being offered a pig in a poke. Why would they impose an income tax increase on the hard-pressed people of Wales when the Chancellor’s response may be to cut the grant to Wales? I think we should reflect very carefully on the thoughtful speech in this regard about the fiscal framework by the noble Lord, Lord Crickhowell. This Government, like their predecessors, are too scared of Scottish voters to reform the Barnett formula, so they are leaving Wales disadvantaged while giving a meaningless new power to the Welsh Government. They are also scared of Welsh voters and are reneging on their manifesto promise of a referendum in Wales on devolution of powers to raise income tax.

While providing extensions to the legislative powers of the National Assembly, the Bill does not concede a distinct legal jurisdiction for Wales. The noble Lord, Lord Bourne, set his face emphatically against that in his speech. Here I part company with the noble Baroness, Lady Bloomfield, whose maiden speech I enormously enjoyed and admired. After more than 15 years of devolution there is now, as the Bill recognises, a substantial body of Welsh law that has been created within Wales. That body of Welsh law will grow with use of the powers to be newly devolved. Already there are practical problems, with English counsel and judges being insufficiently versed in the parallel corpus of Welsh law. The Ministry of Justice and the courts in England are more than hard pressed to deal with the challenges they face in England alone. It is not sustainable to have two legislatures making law in one jurisdiction. The time has come at least to legislate to provide the ability to accord to Wales the respect and dignity of having its own jurisdiction.

My noble friend Lady Morgan of Ely was generous in her assessment of important aspects of the Bill. She described it as a considerable improvement on the provision for devolution that has so far been in place. Of course we should be grateful for the small mercies that the Bill does provide: powers to develop small ports and small energy projects, and control over aspects of transport and environmental policy as well as over equalities policy and arrangements for elections. While I welcome the Government’s conversion to the reserved powers model of devolution, the version offered in this Bill is, frankly, absurd and insulting to Wales. A studied vagueness in the drafting makes it impossible to be sure of the precise number, but the new Schedule 7A contains 190 or 200 reserved powers—different noble Lords have totted up different totals. Whatever the total may be, it is vastly more than the powers reserved in relation to Scotland. The imprecision of the schedule makes it inevitable that the two Governments will again have to resort to the courts to rule on what precisely is devolved. After the agricultural wages saga, that is what sensible people want to avoid.

It appears that the Wales Office ignored the advice of the Welsh Affairs Committee that it should issue guidance to other Whitehall departments as to the principles and considerations that they should apply in deciding what powers they wished to reserve, and instead has accommodated a dog-in-the-manger stance department by department. The Secretary of State claims that there is a clear rationale for each of the reservations, but what constitutional principle causes the Government to refuse to devolve to an experienced and—as the noble Lord, Lord Bourne, acknowledged—mature Welsh Assembly powers over crime, public order and policing, including specifically such matters as anti-social behaviour, knives, drugs and prostitution? If the Home Office thinks it has a monopoly of wisdom, nobody else does. These are responsibilities devolved to Scotland and to be devolved to city regions in England. Why not to Wales? There is no principled basis for this reservation; it is simply a case of the Home Office saying, “What we have, we hold”.

If the Welsh Government should wish to improve access to justice—fundamental to a liberal society—by reversing some of the UK Government’s disgraceful cuts to legal aid, why are they forbidden to do so? On what principle is Wales not to be allowed competence in the licensing of entertainment or the sale and supply of alcohol, or for betting and gaming? Why should Wales not take responsibility for its own sins? If Wales wishes to be virtuous, why is it not entitled to take that decision? What about advertising, charities or adoption services? Do we need uniform policies on such matters across England and Wales? Are Welsh legislators unfit to determine them for Wales? If Wales can take charge of its planning policy, for what good reason will it not be allowed to determine its own policy on the community infrastructure levy? How can it make sense to separate competence for the two? Why on earth is policy on industrial development in Wales reserved to Whitehall and Westminster? The noble Lord, Lord Bourne, spoke of the responsibility of the Government of Wales to ensure that the Welsh economy performs well.

If the National Assembly is to determine electoral law for Welsh elections, why is it to be precluded from exercising powers in relation to the funding of political parties—an issue which, lamentably, for many years politicians at Westminster have failed to grasp? Since, pace the Secretary of State, the rationale for these and large numbers of other reservations is not clear, we may have to table amendments to delete each reservation individually, so that in the debate on each one the Minister can explain the reason. My noble friend Lady Morgan may or may not seek to strong-arm me to prevent me doing that, but she will have a good wrestle.

It is not just that Whitehall begrudges reasonable freedoms for Wales. Even as the Government are slashing parliamentary representation of Wales at Westminster, they are taking powers from the Welsh Assembly. Bizarrely, in a measure paraded as taking devolution a stage further, Whitehall is actually retracting devolved powers. This is partly because so-called silent areas, where hitherto powers were not specified or were specified ambiguously, and Wales exercised them de facto, are now included in reservations. Of course what the noble Lord, Lord Elystan-Morgan, had to say about the judgment in the Supreme Court in 2014 is highly pertinent here. It is also partly because the vague drafting of reservations, by reference for example to the “subject matter” of large amounts of preceding legislation, enlarges the scope for reservation. With better, more precise drafting, the reserved powers model could have been introduced with no diminution of Assembly competence. As it is, Assembly competence is reduced in regard to, for example, aspects of employment rights and criminal offences against young people, as well as through the tests of competence in new Schedule 7B on modifying the law on reserved matters and Minister of the Crown consents. All this is helpfully discussed in the excellent report of the Constitutional and Legislative Affairs Committee of the Assembly, on which the noble Lord, Lord Elis-Thomas, served. The Bill gives with one hand while it takes away with the other. It gives new meaning to the phrase “take back control”. The Minister should at least tell the House which powers the Government are deliberately removing from Wales and why, and which powers they are removing inadvertently.

Brexit is a new ghost at this devolutionary feast. We now have before us a huge agenda of repatriation of European Union law to the United Kingdom, and then of examination and modification of its components. It will not be enough for the Government and Parliament in London to handle all this on behalf of Wales. The Government of Wales must be a champion for Wales, and the Assembly must play its part in legislation for Wales. The Bill began its passage through Parliament before 23 June, and Clause 19 on implementation of EU law does not appear to meet the point. How will the Government reframe their devolution policy to take account of Brexit?

I have been severe about the Bill because bad law will make good government in Wales more difficult. We must seek, in consultation with the Assembly, and as far as possible consensually in this House, to improve the Bill.

17:54

[Lord Morris of Aberavon (Lab)]

My Lords, perhaps I may put on record my appreciation of the way the noble Lord, Lord Bourne, who takes his title from my home town, has done so much to mould opinion among his colleagues. The Assembly, as he stated earlier, is now a permanent feature of our national life in Wales.

The Bill is another step in the granting of democratic control to the people of Wales, sitting as an elected body in Cardiff. When I introduced a Wales Bill as far back as the 1970s, I got a great deal of flak for using the word “Senedd”, meaning senate; it was a bridge too far for many of my nervous colleagues. How we have moved on since then. This Bill is an improvement on the last offering of the Wales Office, but it still fails to grasp the fundamental point that every opportunity should be taken on the face of legislation to avoid litigation, first by limiting the number of opportunities and secondly by ensuring there is clear water in the demarcation of what Cardiff can legally do and what must be reserved to Westminster. There are, as has been mentioned, more than 20 pages of specific reservations—something of the order of nearly 200, if my arithmetic is correct. This in itself makes the Bill deserving of rejection. The Government should go back to the drawing board and think again.

The reservations have all the fingerprints of every department in Whitehall’s objections, solemnly paraded in statutory form. We had similar problems in the 1970s. The difficulty is that today’s Wales Office has a minuscule staff and very limited statutory drafting experience. Our remedy was to bring in Cabinet Office nominees to knock heads together, which is what Sir John Garlick and Sir Michael Quinlan—both to become outstanding civil servants—did. That is how we eventually got the Bill off the drawing board. As night follows day, this Bill will be the precursor of more Wales Bills and is an unnecessary exercise in constitutional navel-gazing, when the public’s concern is over the quality of government in Wales on the issues that affected my constituents for more than 41 years—health, education, social services and jobs.

The ethos of devolution is that such issues are decided in Cardiff, but we should not be blinded to the successes and alleged shortcomings of the Welsh Government. A wise Government might consider, now that so many years have passed, having some form of independent assessment—a sort of Welsh mini-royal commission—to give a considered view of their record and to suggest possible improvements. I suggest this not as a critic but as a friend of the First Minister and of the Assembly, who are to be congratulated on what they have achieved so far. My personal experience after what could have been a near-fatal motor accident a year ago was, regrettably, questionable so far as hospital care was concerned, which left a lot to be desired when it came to the availability of different forms of treatment and indeed of a ward where one could sleep night after night undisturbed. I have been pursuing my former constituents’ interests ever since and am I grateful for the co-operation of the senior staff at Carmarthen.

The health service in England, too, as we all know, has many problems. It is the provision of comparable health treatment, social services, education, and success in inward investment, that we should be talking about, particularly after the dismantling of some of the machinery that I set up—the WDA, the Land Authority and the DBRW. Our Civil Service, good as it is, can always do with the infusion of expertise from business and trade unions, which are closer to the coalface. With grown-up Governments in Scotland and Wales, do we really need Secretaries of State for Scotland and Wales? They seem to be, at best, claimers of credit for the achievements of other departments—and, at worst, state-paid propagandists for their parties at Westminster. Surely the time has come for more intergovernment negotiations without intermediaries.

I confess to having created a role for the Attorney-General to march up and down Offa’s Dyke to ensure that the Welsh Government did not exceed their powers. It was intended as a nuclear deterrent—a weapon of last resort, not an opportunity for a trigger-happy Attorney-General to rush to court time after time. We know of intergovernment disagreements only when they are aired in court. How much time is spent by a busy Civil Service on those issues that do not come to the public eye? The Bill may give even more opportunities for litigation unless the Attorney-General’s chambers have learned lessons from burning their fingers too many times.

Historically, there are two important milestones in my party’s commitment to devolution. The first was the invitation by Jim Griffiths, MP for Llanelli and deputy leader of the party, to Lord Prys-Davies, whom we miss, to put his thoughts about an elected all-Wales democratic institution on paper, in 1952-53. My party had nothing at the time in writing. He published his pamphlet, An Elected Body for Wales. In the main it dealt with local government powers, but it was a national body that he envisaged. I had no responsibility for that, but I would return home from Cambridge and from the Army in Germany for long and earnest discussions with him on Wales’s future. I had been planning to study the Stormont Government as part of my master’s degree at Cambridge, but there was no other model at the time.

The second milestone was the setting up of the Royal Commission on the Constitution by Harold Wilson—first under Lord Crowther and then, when he died, under Lord Kilbrandon—in 1968-69. The noble Lord, Lord Elystan-Morgan, used his substantial influence to persuade his boss, Jim Callaghan, who was then Home Secretary. The commission and its assistant commissioner for each country comprised persons of exceptional intellectual ability and experience in the affairs of state. It may have been the last royal commission; it is not easy to get such eminent persons together. Regrettably, its conclusions were very divided; each one was hammered out and intellectually well-argued, but the sheer variety gave you room to choose whatever solution you wanted.

Totally unexpectedly, I was appointed Welsh Secretary in 1974—to my amazement and indeed the amazement of Wales. I will never forget the PM’s words to me in the Cabinet Room: “You are a devolutionist and I would be interested in your proposals”. I was given a blank sheet of paper. Despite the absence of its mention in the first draft of the Queen’s Speech—this is not very well known—we became committed to flagship legislation. Given other priorities, the big question was: could there be devolution Bills for both Scotland and Wales in the first Session of Parliament? Could Wales be shunted to the end, as a “tail-end Charlie” option?

I opted for the least radical of the Kilbrandon proposals, hoping to persuade most of my colleagues. There is a rich reward for political students if they read my noble friend Lord Donoughue’s diaries from the ringside at the many all-day away meetings of the full Cabinet at Chequers. There was a different set of objections at each meeting to any form of devolution. In my noble friend’s words, they were “quarrelling like monkeys”. Only the PM’s determination kept the ship afloat. I assure the House that a reserved powers Bill for Wales was not remotely on the cards at that time. That was the realpolitik of our long and exhausting summer days at Chequers. The rest is history.

Because the Scottish Secretary and I had our hands full in running our own countries, John Smith MP was brought in and, after Second Reading, brilliantly piloted the Bill through. I had the able and exceptionally industrious assistance of no more than two Parliamentary Secretaries at any one time—my noble friends Lord Jones and Lord Rowlands, and the late Mr Alec Jones. I particularly record my gratitude to them. I make the point because, according to the Library, there are now 12 Ministers in the Welsh Government—certainly there were on 27 May. Their tasks are of course different from ours, but I would be interested in a comparison of the ministerial costs. When the issue is considered of creating and increasing the number of Back-Bench Assembly Members to scrutinise the Government—and there is a problem of scrutiny—I hope the possibility of reducing and redeploying some of the Ministers is taken into account.

After an 18-year gap, it was a privilege for me as Attorney-General to be a member of the Cabinet committee considering Mr Blair’s Wales Bill, not as a policymaker but as the Government’s principal legal adviser, and to see the Bill through its course. Indeed, it was an unexpected pleasure as Attorney-General to be invited by Mr Alun Michael and his colleagues to the opening of the first session of the Welsh Assembly and to present to Her Majesty a dummy Bill in both languages for her signature.

I hope that some day we will see an end to this parade of Welsh legislation and have a proper reserved powers Bill and—who knows?—a constitutional convention to consider the future constitutions of Wales, Scotland, Northern Ireland and England, too. That is a path I have been treading since 1953.

18:07

[Baroness Finn (Con)]

My Lords, I welcome the Wales Bill, which brings a new era of devolution for Wales by delivering a clearer and stronger devolution settlement. It is a particular honour to speak after the noble and learned Lord, Lord Morris of Aberavon. I knew him as a child growing up in Swansea; he was a great friend of my step-grandfather, Sir Alun Talfan Davies. He will recall that Sir Alun sat as a member of the Royal Commission on the Constitution, which informed the blueprint for Welsh devolution in the 1979 referendum.

It is also an enormous pleasure to speak after the excellent and assured maiden speech of my noble friend Lady Bloomfield of Hinton Waldrist. I have known her as a friend and colleague for a number of years, and share her love of our Welsh heritage and culture. She will bring her considerable experience as well as her formidable energy and enthusiasm to this House. I am also delighted by her support for the Swansea tidal lagoon; I hope to recruit ever more support for this excellent and innovative project.

The key purpose of the Bill is to provide clarity over powers and accountability of those powers. The reserved powers model addresses the patent deficiencies in the current settlement. It establishes a clear line between those subjects that are devolved to the Assembly and those that are the responsibility of the UK Parliament. Too much time has been wasted arguing in the Supreme Court over where powers lie, and the Bill draws a line under those disputes. There is now commendable clarity over who should be held to account for the decisions taken on the public services on which the Welsh people depend.

I very much welcome the Government’s commitment to maintaining the single legal jurisdiction that has served Wales so well for many hundreds of years. The body of Assembly legislation can be accommodated, for now, within the single jurisdiction of England and Wales. A separate jurisdiction would impose significant upheaval and unnecessary costs on the people of Wales. The time and money would be far better spent on front-line services. So much has already been done administratively—for example, moving the Court of Appeal, and it would be excellent progress if more cases were actually heard in Wales.

Devolution has greatly benefited Welsh national life, and the Bill grants an important new power to the Welsh Government: namely, the ability to vary income tax. The devolution of some tax-raising powers will make the Welsh Government more accountable for the public services they provide. There was considerable debate in the other place about whether there was a need for a referendum on the subject. As a general principle, I am not in favour of referendums, and I fully appreciate that, after June, we are all suffering from referendum fatigue. However, although I support the Bill in its entirety, I had some personal disappointment that a referendum will not be on offer for the Welsh people as it was for the people of Scotland. If we expect the people of Wales potentially to pay more tax, we should put the question to them and allow their voice to be heard. I would be grateful if the Minister would consider this position and explain what has changed.

Employment and industrial relations will not be devolved to the Welsh Government. This is consistent with the position in Scotland, and the Government were clear that that would be the case with Wales during the passage of the Trade Union Act earlier this year. If the noble Lord, Lord Hain, tables his amendment to disapply this reservation from devolved public services in Wales, I will join forces with my noble friend Lord Crickhowell to support the Government in opposing that amendment. It would lead to an unwelcome reduction in clarity over employment and industrial relations powers— something that the Bill is designed to avoid.

The Bill devolves further powers to enable the Welsh Government to decide on issues that concern the people of Wales. These include putting Wales’s natural resources in the hands of the people of Wales. The Assembly will, for example, be able to decide on the planning regime for major strategic energy projects, such as whether fracking should take place and, if so, how it should be regulated. As such, decision-making on the use of those resources will rightly rest with the people of Wales, who are best placed to make such decisions. The Labour Party announced at its conference plans to outlaw fracking and reopen coal mines. It would be a shame to ignore the economic benefits of fracking. Shale gas has the potential to power economic growth, support the creation of jobs and provide a new domestic energy source. This in turn will make us less reliant on imports. We should not turn our back on innovation, and I urge the Welsh Government not to do so.

The Wales Bill is rich in opportunity for Wales, and allows us to channel collective effort into delivering a bolder, brighter future for the people of Wales. In my maiden speech, I spoke of my strong support for the Swansea Bay tidal lagoon project. Last week, members of the Government spoke of their resolve to embrace new ideas and industries and to be bold and decisive about our national infrastructure. We are an island nation; we have a safe natural resource in the power of our tides; we can harness that power and, by so doing, nurture a transformative new industry for Wales and the wider UK. As the review undertaken by the right honourable Charles Hendry draws to a close, I urge policymakers at both ends of the M4 to join forces so that Swansea Bay can be the pioneer of this exciting and inherently Welsh industrial opportunity.

The Wales Bill devolves a historic package of powers to the National Assembly. It delivers on its two underpinning principles of clarity and accountability. The new reserved powers model makes clear what is devolved and what is reserved so the people in Wales know who is responsible for what. As such, it enables the Welsh Government to get on with their important task of improving both the economy and devolved public services. It is a welcome settlement for Wales and the people of Wales.

18:13

[Lord Murphy of Torfaen (Lab)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Finn, and to congratulate the noble Baroness, Lady Bloomfield, on her very fine maiden speech, which we all enjoyed. As an addition to the Welsh Members of the House of Lords, she is indeed most welcome. I also pay tribute to the Minister, the noble Lord, Lord Bourne, who I know is deeply committed to the business of Wales and its prosperity. He has enormous experience in the National Assembly for Wales and as a member of the Silk commission, which provided the basis for the Bill.

I welcome the Bill: it is better—a lot better—than the draft Bill that preceded it. As several noble Lords said, it is the fourth devolution Bill to come to Parliament in two decades. I have been involved in one way or another with all of them. It reminds me of a phrase by a previous Secretary of State for Wales, no longer in the House of Commons, who referred to devolution being a process, not an event. I was not sure at the time that I agreed with that idea, but when I look at my chequered relationship with devolution over the past 30 to 40 years, I understand it. My noble and learned friend Lord Morris gave a very interesting account of the birth of devolution in the Labour Government of the 1970s. I was a rather small but prickly thorn in both his flesh and that of the Labour Government as the treasurer of the Labour No Assembly campaign in the 1978-79 referendum, in which Wales of course overwhelmingly rejected devolution all those years ago.

I began to change my mind for a variety of reasons over the following 18 years and, by the time I became a Minister in Tony Blair’s Government and served on the same committee on devolution as my noble and learned friend Lord Morris, I had become a devo-sceptic—I had been a devo-hostile before. By the time I had finished my course as Secretary of State, I had become a devo-realist. Now I suppose I am a devo-enthusiast, to such an extent that I campaigned vigorously for the extension of the Assembly’s powers in the referendum in 2011.

Incidentally, I see nothing wrong in having this gradualist approach to dealing with devolution, whether it is here or in Northern Ireland or Scotland. There is no rule that you suddenly have to have a great Bill—like the great repeal Bill—which is all that has to be said or done about devolution. Of course, it does not work like that. We have asymmetric devolution in the United Kingdom, which means that it develops differently in different parts of our country. That applies to Wales as it does to Scotland and Northern Ireland.

Does the Bill do the trick? On reserved powers, it probably does—certainly in principle, but whether it does in practice needs to be seen. In Committee and on Report on the Bill, there is plenty of opportunity to examine that aspect of the Government’s commitment to the Silk commission’s report. I think that 200 reservations are too many, even after they have been trimmed down from the previous draft, but I quite understand how they got there.

My experience of Whitehall as Welsh Secretary on two separate occasions is that when Whitehall departments are faced, as they are here, with representations from the Welsh Office, Wales Office or Assembly about different powers and responsibilities, they react grudgingly and with great sulkiness, and I suspect that this has happened here. Government departments have been asked, “What do you want to keep? What do you want to give away?”. They rarely want to give anything away and there needs to be a central power with the Welsh Secretary, but with the help of the Prime Minister, to ensure that those grudging Whitehall departments are, frankly, told what to do. That is what lies at the basis of the inadequate nature of the devolved powers. There are some which have come to Wales which are welcome—for example, those dealing with oil and gas extraction and ports, except for Milford Haven. However, I am bewildered by the air passenger duty decision. If Northern Ireland and Scotland can have air passenger duty, why cannot Wales? If it is simply because of Bristol, that is not a good enough answer and we should have another look at that.

The entrenchment, as far as we can in our constitution, of the Assembly in law and the provision about electoral law for the Assembly and local government are welcome, but, like my noble friend Lord Hain, I have doubts about two issues. One, touched on by the previous speaker, is the question of employment law. I fully understand that, generally speaking, employment law should not be devolved; it should be a reserved matter for the United Kingdom Parliament and Government. But when it touches on policies and services run by the devolved Administrations, that is different. If the Assembly and local government in Wales are, for instance, to be able to deduct trade union subscriptions from wages, why on earth cannot they do that? The world would not fall in on the other side of Offa’s Dyke if that were to happen. It is not about strikes or general issues of employment legislation; it is about practicality and realising that the Assembly and the Welsh Government have a right to deal with those issues that are devolved.

It seems to me ironic that, because of the reserved powers situation, powers that the Welsh Government and Assembly currently have could go back to Whitehall. That cannot be right. I sincerely hope the Minister will have another look at those issues as well.

My noble friend Lord Hain and others also raised the question of the referendum on income tax powers. It depended, of course, not simply on a referendum but on the Assembly agreeing to income tax powers coming to the Assembly in Cardiff. I certainly would not go to the barricades about having a referendum but I remind noble Lords that in 1997, when the people of Wales voted on the whole issue of devolution, they were not asked, as in Scotland, whether they wanted tax-raising powers. I know that it is different if it is a separate referendum, and it is not likely to be very popular, but there is an issue of legitimacy there that needs to be addressed. Certainly the Assembly should give its approval before it decides to take up the issue of income tax powers.

Another vital issue, and something that we saw here in your Lordships’ House during the passage of the Scotland Bill some months ago, is that we cannot really deal with a Bill that, in this case, deals with a referendum on income tax without looking at the fiscal framework. I do not think that it is right for Members of this House to deal with the remainder of this Bill in Committee or on Report until some progress has been made with the fiscal and financial agreement between the Welsh Government and the United Kingdom Government. That is difficult at the moment, I know, because Barnett and the whole issue of the block grant needs to be addressed.

I am rather sceptical about devolving income tax powers, not because income tax on its own is a bad thing, or that the argument about accountability is bad—it is not. However, if all it does is plug the gap in a reduced block grant, that is not right. It should be over and above it. The reason for that is that with Brexit and the loss of European funding for Wales, and with the loss of Objective 1 funding—with which I had a great deal to do all those years ago, and which has benefited Wales enormously—the Assembly needs to be able to borrow money to deal with the great infrastructure projects. The way that it could do that is to have an income stream from income tax and also from other areas, including air passenger duty. I ask the Minister to look very carefully at the progress of these discussions and to keep the House informed on them. I hope that when we come to the Committee and Report stages we can deal with these matters with greater perspective.

I agreed with the noble Lord, Lord Crickhowell, when he talked about joint ministerial committees and interministerial conferences, and about the British-Irish Council, which acts as a means by which the different devolved institutions and the Republic can get together. I do not think that we have used those properly over the last number of years. In my view there would have been no need for the Supreme Court to do what it did if there had been proper discussions at ministerial level and it had been sorted out between Ministers of both the UK and Welsh Governments. The machinery is there, it has been set up for some years now, but it should not simply be a grandstanding or a great gesture. There should be working committees between the devolved institutions and the United Kingdom Government.

This is an opportunity. I think that this Bill should go through but that it needs serious amendment. I hope that, in Committee and on Report, noble Lords will have the opportunity to go into greater detail on some of the issues that I and other Members of the House have raised this evening.

18:24

[Lord Elis-Thomas (PC)]

My Lords, it is a particular pleasure for me to be sandwiched between two Secretaries of State to whom I owe a great debt of gratitude. I worked with the noble Lord, Lord Murphy, twice, when he returned as Secretary of State in my period as Presiding Officer of the National Assembly in Cardiff. The noble Lord, Lord Hunt, who is to follow—I am merely a warm-up act for him—gave me my first public appointment, without which I would probably not be standing here today. He stands guilty as charged.

This has not just been reminiscence therapy for former Secretaries of State. All the contributions we have had from all noble Lords who have spoken have been a relevant contribution to today’s discussion. Those contributions show up the inadequacy of where we are now compared with where we were when we started. The lack of progress in the last 20 years and more, during my political life in the Assembly and in other places, is something that distresses me about this Bill.

I am not one of those “capital N” nationalists, as my colleagues often find to their chagrin. I used to call myself a Welsh European devolutionist autonomist but I am not sure whether one can use the adjective “European” any more in this House. The constitutional development of Wales is something that I have always sought to promote and to work for, often with great difficulty. Sometimes the context was not there and the politics were not right. However, I think that we should have got further than we have at this stage. It is for that reason that my latest contribution as an Assembly Member and a Member of the Constitutional and Legislative Affairs Committee of the National Assembly at the end half of the previous Assembly, and at the moment, has been an attempt to influence the debate in a new way.

We are not supposed to call ourselves noble friends across the House, but the noble Lord, Lord Bourne, who was a great friend of mine when I worked with him in the National Assembly and who is still a great friend, knows that what we have developed in the Assembly is a legislative body of competence and the ability to scrutinise in the same way that Parliament does. The Constitutional and Legislative Affairs Committee will meet later this week with a committee of this House to discuss these issues.

We have gone on at quite some length in this debate but I want to speak briefly about the constitutional principles that concern me and about where we are and why we have not been able to do better at this stage of our devolution pilgrimage, if I can say that, following on from the noble Lord, Lord Elystan-Morgan.

The Constitutional and Legislative Affairs Committee has Bills referred to it by the Business Committee of the Assembly. We operate in a similar way to other Assemblies and Parliaments. When we got this latest Bill we had already done work on the previous draft Bill. We took serious evidence. We opened a public consultation in June of this year and completed it in September and took serious evidence from the most learned legal opinion we could gather together on the constitution in Wales. All this evidence is in the committee’s report. I know that some noble Lords have already read it. My noble friend was complaining that it was not a parliamentary paper. I am not sure whether the Assembly Commission, although I am no longer in charge of it, has the resources to provide all its papers free and in print form. We are, of course, a paperless, digital Assembly, so all Members who do not have a copy can see me later and I will tell them how to print it off the Assembly website. I see that the noble Lord has already done so, and I am grateful to him for that.

We held the consultation, took evidence and had a stakeholder event in which practitioners were involved. The online Loomio platform is still there. That was an attempt to consult in the widest possible way, and we produced this report. I signed up to the report with sadness, because I thought that we should have done better.

We will come back to these issues in Committee and on Report, and there will be amendments. The early clauses of the Bill talk about the permanence of the National Assembly, but I want to know what the legal force of that is. What is the legal force of saying that an institution is permanent? We are here in transient times—we have the great 1662 prayer book, and Prayers at the beginning of our day. We know that we are transient, so what does it mean to legislate for permanence? Even more conflicting and difficult for me is the further clause recognising Welsh law. I am proud to have studied medieval Welsh law at the University of Bangor. I was taught by various scholars, so I know that there is such a thing as Welsh law, because I studied it. Suddenly, we are legislating in Parliament assembled to recognise such a thing as Welsh law. Professor Richard Rawlings is one of the most distinguished constitutional lawyers and persons who has studied devolution, and he told our committee that the clause was a “shocker”. It demonstrates the problem of trying to do something symbolic when you do not really want to do anything at all. I am not saying that that is the Government’s intention, but that is how it has been interpreted by the academic lawyers that we consulted.

I was grateful to my noble friend Lord Murphy for referring us back to the Wales Act 1978, which became the basis, in a reformed way, of the 1998 Act. That Act was an attempt to legislate in a way that did not recognise the clear difference between a legislature and a Government, although we did not use those words in those days. But now we have the reserved powers model, which has been much heralded to be the solution of devolution in perpetuity—yet we have reserved powers plus reservations or exemptions, which is exactly where we were before. For 12 years, which was probably too long, I worked as Presiding Officer, deciding the competence of legislation; it was all about ensuring that it was in the competence, which meant that we had to take decisions about where the boundaries were of the devolution settlement. Clearly, conferred powers with exemptions take us to the same place as reserved powers with further exemptions. So where are we 200 exemptions further down the road? There is no clarity and no constitutional intelligibility here. In particular, where is the intelligibility for the citizen and the electorate? This is what this is about—it is about writing the law of Wales in such a clear way that the people of Wales, in taking decisions about their political life from day to day, will understand what it means. We are nowhere near that.

Having spent all these years trying to legislate in this place and Cardiff, I stand here knowing that I have failed to deliver a reasonable constitutional system for the country that I sought to represent. That is not my fault and not the fault of the present Minister, nor the fault of the parties here. We have been labouring in this vineyard for many years—but there is a failure to realise that Wales deserves better than the present treatment within the family of nations of the United Kingdom. If we are a home nation, it is time that we came home.

18:34

[Lord Morgan (Lab)]

My Lords, the history of Welsh devolution has been a very tortuous one. Since 1999, it has not been a straight run down the piste but a series of slaloms—but we are making progress erratically, and this Bill takes us further. It has a good deal of cross-party support, although that might not have been apparent from what we have heard in the past few hours. As other noble Lords have said, progress owes a great deal to the Minister, a man I have always regarded as a,

“good deed in a naughty world”,

to quote the Bard, perhaps because he was trained in Aberystwyth, although it was slightly before my time there.

Most of the discussion has been around the two main features of the Bill—the reserved powers aspect and the provisions over income tax. I shall deal with those fairly briskly, as so many of the points have already been made. It is profoundly right and long overdue that the Parliament—or, to quote my noble friend, the Senedd—should have reserved powers and not conferred powers. A very strong case for that was made by the Silk report, on the grounds of clarity. It is also important to give greater authority to the Welsh Assembly comparable to Scotland and Northern Ireland. I have never understood why the Welsh Assembly and Government did not have reserved powers from the beginning. We have now got them, although, as noble Lords have said, with a number of limitations.

The Bill has been criticised for its complexity and contradictions. As other noble Lords have done, I welcome many of its features. It is very good to remove the notorious necessity test, which caused a great deal of lack of clarity. I welcome the greater powers and welcome very much the extension of devolution to energy and transport and the running of elections. On the other hand, as noble Lords have said, there are all these many restrictions. As a historian I find it slightly ironic that a measure designed to extend devolution in so many ways goes back on our history. I see that one of the reserved powers is the supply, distribution and sale of liquor. As I tried to explain in a book of mine that appeared—oh dear—52 years ago, and which is still on sale in Aberystwyth in all good bookshops, the principle was admitted in 1880 of the Welsh Sunday closing Act. That is to say, there was a legislative principle accepted for Wales and, accorded through that, the pubs could or should close on Sunday. All these many years later, that is reversed, which is very ironic.

As many noble Lords have said, a lot of progress needs to be made in Committee in that regard. It just shows that over the decades the constitutional and political status of Wales has been unequal. That is what an asymmetrical devolution means—it means that Wales is unequal, and does not have the status in its Assembly or its political authority that the other Celtic nations have.

There has been a lot of discussion about levying income tax. I am all in favour of Wales having the power to levy its own income tax, as Silk recommended. It seems to me, to reverse the famous phrase, you cannot have representation without taxation.

It is unsatisfactory to have your funding based on money that comes from somewhere else that you grumble about, in this case Whitehall and the Treasury. The Labour Party and the Government in Cardiff—and I entirely understand this—have been very critical of many features of this, particularly the fact that it will be yoked to the Barnett formula. They would like to see that removed before Wales has its own income tax: they will have to wait a very long time. The formula was a temporary stop-gap by our dear friend the late Lord Barnett in 1978. There is nothing more permanent than a temporary stop-gap and so it has been with the Barnett formula. I do not particularly like the idea of another referendum. As we have seen with Brexit, the last thing you have with a debate of that kind is a sensible discussion of constitutional and financial principles. There would be lots of wrangling in the press about whether income tax would go up or down and that is all you would have: it would be intellectually worthless. However, the Welsh Government and the Constitution Committee have expressed concerns, so I hope the Minister can give assurances that the overall funding will not suffer and that, in particular, the Welsh Government will have the power to extend their borrowing powers in due course.

I want to talk mainly about three other things. First, it is very important that Wales should have its own legal judicature. It has legislative powers but not a legislative system. We have a growing corpus of Welsh powers coming into being, but we have no structure. There should be a distinct Welsh legal jurisdiction to, among other things, avoid institutional conflict. Again, it is ironic how we have gone back on history. We did rather better under Henry VIII, God rest his soul, than we do now. His Act of Union, as the noble Lord, Lord Elystan-Morgan, will know, created Welsh courts—the Courts of Great Session, which disappeared in 1830. Otherwise, Wales suffers badly in this. We have no designated Supreme Court judge to pay attention to Welsh matters as there is for Scotland. There is an administrative court in Wales, but that is all. Otherwise, the Welsh legal system is administered through London. Therefore we find that Welsh law made in Wales and the wider English and Welsh law administered through the judicial system in London are applied to precisely the same areas of policy. At some stage this is bound to reach confusion and conflict. If you do not take my word for it, there is rather more powerful evidence from, for example, the late Lord Bingham, who spoke very positively in favour of this principle. We have also had very supportive remarks from the Lord Chief Justice. Since his name is Lord Thomas of Cwmgiedd, that may explain his particular way of looking at things.

We do not want a separate Welsh legal system. We are not talking about independence for Wales but devolution: a different political complexion. A separate system would be anomalous and very expensive, but we should and could have a distinct jurisdiction as they do in Scotland, Northern Ireland, the Isle of Man, Jersey and Guernsey. Why not Wales? Why should Wales not have a system which would enable Welsh citizens to feel close to their law and which reflected their deeply felt identity as a nation?

I have two final points. I agreed very much with the peroration of the speech by the noble Lord, Lord Crickhowell: the union. I declare an interest as a member—like the noble Lord, Lord Hunt—of the Constitution Committee. Our report, which the noble Lord, Lord Crickhowell, kindly quoted, was about the union and devolution. This is again an example of piecemeal devolution. I am not criticising the Government particularly on this. It has been happening repeatedly since 1999. Where is the overarching statement of principle about the result of a change of this kind in relation to the union? We reported on this and, as I said previously, a virtue has been made of asymmetry. I do not think it has virtue: it is a way of demeaning Wales. I hope that the Minister, in his response, or the Government, when we look at the Bill at a later stage, can explain the organic relationship of this measure within the overarching union which we wish all these devolution measures to reinforce, not undermine.

My very short final point is that it would be very important to clear up all these issues before we have Brexit. Brexit will have a major impact on Wales in almost every aspect: in agriculture, education, industry, and almost every feature you can think of. It is crucial to have constitutional clarity within the United Kingdom and between all its governmental institutions before the iron curtain comes down.

18:46

[Lord Hunt of Wirral (Con)]

My Lords, in declaring my interests as set out in the register, I reflect on a fascinating and interesting debate with some outstandingly good speeches. I pay tribute to the eminent historian, the noble Lord, Lord Morgan, who joins me in thanking my noble friend Lord Crickhowell for quoting from our committee’s report on this very important subject. Like many other noble Lords who have spoken, I am delighted to give my wholehearted support to the principles of this enabling Bill, changing the basis of the legislative competence of the Assembly, moving from a conferred powers model to a reserved powers model.

The obvious principle behind the Bill is one of which Winston Churchill would certainly have approved—namely, bringing power to the people. It delights me that the modern-day Conservative Party so readily and comprehensively embraces that principle, that philosophy, that policy. Another guiding principle underlying this Bill is to deliver, so far as possible, constitutional certainty. As many noble Lords have outlined, devolution to date has been a journey—always bracing, never dull—but now a destination is in sight. In a world full of uncertainty, that truly is most welcome, to businesses and citizens alike.

The St David’s Day agreement was a magnificent achievement on the part of the political leaders of Wales, which I gladly and warmly celebrate. It took devolution, at last, completely out of the cauldron of inter-party debate and created the prospect of a once-and-for-all settlement. A question which has long divided us, not just between parties but within parties too, setting colleague against colleague, is now being settled with a very considerable degree of agreement across the political spectrum. Let us work hard to retain that agreement as we proceed in the debates on the Bill.

I pay tribute to my noble friend Lord Crickhowell, who, between 1979 and 1987, did so much to initiate a programme of major urban renewal, as set out in his book, Westminster, Wales and Water, which I commend to this House. After 1987, Peter Walker carried forward that ambitious regeneration programme. Then, after three years, I took up the baton from him.

Like my noble friend Lady Bloomfield of Hinton Waldrist, who made one of the best maiden speeches I have ever heard in this House, I am proud of my Welsh heritage, not just as a schoolboy singing the Welsh national anthem in Welsh—which gave me real advantage in later life—but also to have served as Secretary of State for Wales between 1990 and 1993, and then again in 1995, under both Margaret Thatcher and John Major. After that lengthy period initiated by my noble friend Lord Crickhowell, Wales came to be seen as a force in its own right, standing alongside other European “motor regions”. One day I will explain to the House how I managed to persuade the Foreign Secretary that I should be allowed to sign treaties on behalf of Wales, which I did with Baden-Württemberg, Lombardy, Catalonia and Rhône-Alpes.

Inward investment became the driving force of the modern Welsh economy. It still is, and must be. The environment was transformed, too. I am pleased to see in his place the noble Lord, Lord Rowe-Beddoe. I was proud to have secured his appointment as chair of the Welsh Development Agency—not that he took much persuasion. The WDA was reclaiming the equivalent of a football pitch of formerly derelict land every working day. I pay tribute to all that hard work. Yes, we did good work, but there was, in the end, no disguising the democratic deficit that was emerging.

I pay tribute also to the titan of Conservative politics in Wales, whom we miss so much—my friend and colleague, Wyn Roberts, later Lord Roberts of Conwy. Known to friends and opponents—for he had no foes—as the “Bardic Steamroller”, Wyn was a redoubtable fighter for the people of Wales, their culture and their economic and social development. He was responsible for re-establishing the Welsh language at the heart of Welsh life. Throughout my time at the Welsh Office, he was an ever-present source of timeless wisdom, good humour and sound practical advice. As has already been mentioned, Wyn inspired me to make one of the best decisions I ever made—to appoint the noble Lord, Lord Elis-Thomas, as chairman of the Welsh Language Board. I am sure Wyn would feel very proud of all that has happened, were he able to be with us today. As a former political reporter, he had a natural and healthy lifelong scepticism about politicians. As a proud Welshman to his core, he well understood the philosophical arguments for devolution. He always greatly regretted the partisan nature of the debate and also warned, charmingly but firmly, against an endless proliferation of the political class.

Looking back, devolution seemed to be a never-ending matter for debate, a continuing process, even an interminable conversation in its own right—a kind of elevated and ever more abstruse academic seminar, not a concrete reality for the people of Wales. I do not believe this is well known, but in 2008 Wyn produced a report for the then leader of the Opposition, David Cameron, setting out the basis for a long-term settlement, transforming self-government for Wales from that debilitating discussion into a solid, entrenched system that would stand the test of time. That report marked a fundamental shift in my party’s thinking. It is a testament to Wyn Roberts and to David Cameron that here today we are discussing a very similar set of proposals, now with cross-party support.

I join other speakers who have paid tribute to my noble friend Lord Bourne for the leading role he has played in creating this new, more collegiate climate. He has been both visionary and practical, both a diplomat and a politician. As a party, I strongly believe we have to sense that devolution—perhaps even what used to be termed subsidiarity—is the best possible way of bringing decisions closer to the people. My noble friend grasped that from the outset. I believe that we now have a historic opportunity.

There are still one or two loose ends. I wish that so many of them had not featured in this debate, but we have to recognise that they exist. I know that noble Lords have a range of views on matters of varying moment, from the possible emergence of a distinct and distinctive legal system in Wales to the police. If tempted, I may refer in Committee to an agreement I reached with the then Home Secretary, Kenneth Clarke, about the transfer to Wales of powers over the police, but perhaps I should not delve too deeply into that because it was stopped by the bureaucracy of Whitehall. Both Ken and I have several times realised that we face quite a difficult task in taking this further forward and getting it on to the statute book. There are also cross-border train franchises and the allocation of air passenger duty, but let us not get too diverted. We should concentrate on the broad degree of consensus which ought to sustain us through the passage of this Bill.

There was a time when I feared that devolution would be the first step to the break-up of the United Kingdom. The world has moved on, however, and I have moved on, too. I believe that this legislation not only takes forward straightforward decentralisation, bringing power closer to the people, but also draws a line under a long and fractious debate, which has sometimes overshadowed us all and threatened to supplant positive action with hot air.

I look forward to the debates we shall have in Committee and on Report and to the positive and creative atmosphere in which we will have those debates, so different and preferable to the rancorous discussions that I recall only too well, and which I very much hope we have consigned permanently to the dustbin of history.

18:57

[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.

19:13

[Baroness Gale (Lab)]

My Lords, it is a great pleasure to speak in this debate on behalf of the Opposition. I thank the Minister for opening the debate and for his clear explanation of what the Bill is all about as we take yet another step on the journey of devolving more power to the Welsh people and giving them a direct say in what happens in Wales through the Welsh Assembly.

Many noble Lords who have spoken today have been on that journey for a very long time and they have great experience, as we heard from their speeches. As my noble friend Lady Morgan of Ely and other noble Lords have said, we have had five former Secretaries of State for Wales speaking in this debate, bringing to it a wide range of experience. Some, like the noble Lords, Lord Crickhowell and Lord Hunt of Wirral, and my noble and learned friend Lord Morris of Aberavon, were Secretaries of State before devolution. My noble and learned friend mentioned the word “senedd”, which was highly political in his day. I can tell him that even in the late 1990s it was still a very political word and most people tried to avoid using it, although today we do so quite freely.

My noble friend Lord Murphy spoke about his journey through devolution, which I witnessed. Now, he is a fully paid-up member of the devolution club. He and my noble friend Lord Hain were Secretaries of State after devolution, as well as in the run-up to it, and they played their part in the second referendum campaign. But all our former Secretaries of State for Wales played a big role, whichever side they were on, and all have made a great contribution to Welsh life.

I was very pleased to hear the noble Baroness, Lady Bloomfield, make her maiden speech. It is so good to have another Welsh Baroness in your Lordships’ House and I congratulate her. As she is learning Welsh, I can say llongyfarchiadau—congratulations—on her excellent contribution to the debate. Like me, she is a south Walian, and she attended Atlantic College, as did my noble friend Lady Morgan of Ely. Like, I am sure, all other noble Lords, I look forward to her making further contributions on all matters Welsh.

In the 17 years of devolution a number of Acts beneficial to the people of Wales have been passed. One example was the legislation to bring about the Older People’s Commissioner for Wales, believed to be the first in the world and designed to improve the lives of older people in Wales. The Children’s Commissioner for Wales was the first to be introduced in the United Kingdom, aimed at improving the lives of children in Wales. The Human Transplantation (Wales) Act 2013 was the first measure in the UK to give people the chance of a longer and better life. Other legislation, in 2011, introduced a charge on plastic bags, thus making a contribution to improving the environment. It has cut down the use of plastic bags by up to 90% and has raised money for charity at the same time. The Welsh Assembly was the first legislature in the United Kingdom to introduce such a measure, and it is good to see that the other three countries in the UK have since followed. The ban on smoking in public places in Wales has contributed to better health, and the Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 was regarded as ground-breaking legislation.

Those measures would not have happened without devolution, proving that, where the Assembly has powers, it acts on them for the benefit of the Welsh people. They are responsible measures, responding to needs of the people of Wales.

The Bill before us gives greater powers and more devolution to Wales but, as many noble Lords have said, it is still flawed. I believe that everyone is aware that much work needs to be done on it. Indeed, Guto Bebb MP, the Parliamentary Under-Secretary of State for Wales, said at Second Reading in another place:

“It is fair to say that this is a complex and difficult Bill”.—[Official Report, Commons, 14/6/16; col. 1726].

I think he is right, and I am sure that many noble Lords agree.

The report of the Welsh Assembly’s Constitutional and Legislative Affairs Committee on the Wales Bill, published in the last few days, says that its,

“overall assessment of the Bill is that it is a complex and inaccessible piece of constitutional law that will not deliver the lasting, durable settlement that people in Wales”,

hope for, but there are elements that the committee does welcome. However, again in contrast, Alun Cairns MP, the Secretary of State for Wales, said at Second Reading in another place that the Bill is one of clarity and accountability. He said,

“the new reserved powers model of devolution draws a well-defined boundary between what is reserved and what is devolved, clarifying who is responsible for what. It is also a major step in extending powers. It will end the squabbles over powers between Cardiff Bay and Westminster, enabling the Welsh Government to get on with the job of improving the economy, securing jobs and improving devolved public services”.

He went on to speak about accountability:

“The second principle is accountability. The Bill paves the way to introduce Welsh rates of income tax. It will make the Welsh Government accountable to people in Wales for raising more of the money they spend. This, again, is a major step in the assembly’s maturity”.—[Official Report, Commons, 14/6/16; col. 1645.]

On the devolution of income tax, during the referendum campaign in 1997, Labour went to the polls with one question on the ballot paper, not two as in Scotland. We made a commitment to the people of Wales that there would be no tax-raising powers unless there was a referendum. Now the Government are proposing that tax-raising powers should be given to Wales without a referendum. We need to be much clearer on what this means, as my noble friend Lord Hain has pointed out in detail, because it is such a change in government thinking from only two years ago in the Wales Act 2014. Other noble Lords have said the same. I have no doubt that we will come back to this point in Committee.

On the reserved powers, many noble Lords have outlined what they are and the concerns around them. We are not sure of the figure but it is around the 200 mark. The noble Lord, Lord Elystan-Morgan, said that this was unworthy of the people of Wales and that we are moving backwards. Others have spoken in a similar vein. I am sure the Minister will agree that there is much work to be done on the reserved powers. I know he is always in listening mode and is prepared for discussions and to listen to what noble Lords have to say. I am sure he will carry on in that way.

Many noble Lords have mentioned the air passenger duty. There is disagreement on this matter in your Lordships’ House, with the noble Lord, Lord Crickhowell, being against giving air passenger duty to Wales and the noble Baroness, Lady Randerson, saying that Wales should have it. The argument the Government are putting forward on this matter is not a strong one and we will have to have more discussions on it.

On elections, which a few noble Lords have mentioned, we welcome the devolution to the Welsh Assembly of local government elections, the number of members, the age at which people have the right to vote in Welsh elections, the number of Assembly Members and constituencies and the name of the Assembly. We called for this when the Wales Act 2014 was being debated but the Government did not agree then. It is good that they have had a change of heart on this matter and now agree that it is a sensible measure to allow these decisions to be made in Wales. If only we could have had that in 2014.

I am sure the Minister will agree that there will be great scrutiny after listening to what noble Lords have had to say today. We will scrutinise and discuss the Bill during its passage through your Lordships’ House and raise amendments, certainly in Committee. As I mentioned earlier, I am sure the Minister will listen to all Members of your Lordships’ House and that we can arrive in the end on a Bill on which we all agree. I look forward to the Minister’s response.

19:24

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

My Lords, this has been a debate of rare quality. As has been said, we have had contributions from five former Secretaries of State—the noble and learned Lord, Lord Morris, and the noble Lords, Lord Crickhowell, Lord Hain, Lord Hunt and Lord Murphy—all, obviously, with vast experience of this area. We have also had a contribution of rare quality as a maiden speech from the noble Baroness, Lady Bloomfield. It was truly excellent and I am sure we all look forward to many contributions from her in the future, not only on Wales but focusing very much on it. We have also benefited greatly from the contributions of former Assembly Members, party leaders and former Ministers, from the noble Baroness, Lady Randerson, to the noble Lords, Lord Wigley, Lord Howarth and Lord Elis-Thomas, who also brought their great experience to bear.

I will try to deal with key points that have been made during the course of the debate. Obviously I look forward to engaging in Committee and thereafter on some of the detail. There is a genuine feeling that we want to move forward in a consensual way, as far as possible, and obviously many areas of the Bill have been welcomed pretty much universally—not least in the contribution of the noble Baroness, Lady Gale, on some of the internal workings, elections and so on, which we both agree should have been matters for the Assembly from a much earlier date—probably well preceding 2014.

I thank the noble Baroness, Lady Morgan of Ely, for her kind words in opening. We go back a long way together on devolution matters and I know that she is now adding her wisdom to the counsels of the Assembly. I thank her for what she said and look forward to engaging on some of the issues that she quite fairly set out.

Let me look at some of the key ones. First, on taxation, I can reassure the noble Lord, Lord Hain, that there is no neoliberal assault on the part of the Government. This is a pragmatic approach to an issue that it is high time that the Welsh Assembly—who knows, henceforward perhaps the Welsh Parliament—were able to deal with. It is appropriate that a body of such maturity has the tax powers we are talking about.

It is not, of course, a wholesale tax package. Listening to one or two noble Lords, it sounded as if we were devolving the whole of income tax powers to Wales. That is not the case. We are devolving 10p and there is an ability for the Government of Wales—which is currently the Labour Party, with a Liberal Democrat Minister—to set that at current rates. There is no obligation to vary it. They have to set a rate but they are quite at liberty to set it at the existing rate if that is what they want to do. We have taken away the condition that they are obliged to vary all the rates together. The lock-step has gone, which means that they can be varied quite separately.

That is appropriate now, devolution having come so far. It is nearly 20 years since there was the issue of whether a separate question being put in Scotland should be put in Wales, and a lot of water has flowed under the bridge. We would not be doing Wales any great service by holding things back and saying that there has got to be a referendum on the issue. There is no assault on the state. Listening to the present Prime Minister, it is quite clear that she realises that the state has a powerful role to play. That seems to strike a chord with the electorate because that is where the electorate is, too. That is important. I disagree on this issue with my noble friend Lady Finn. It is appropriate that we move forward on this without greater delay because, in my view, it would hold back Wales.

Moving on to look at that in the wider context of the fiscal framework and the question that the noble Baroness, Lady Morgan, put to me initially about whether we should wait until we have got the legislative consent Motion, I can assure her that I think that that is absolutely appropriate. Although legally we could move this legislation forward without the LCM, that would not be the appropriate thing to do. We are looking for progress from the Welsh Assembly and, as I understand it, discussions between my right honourable friend David Gauke, the Chief Secretary, and Minister Mark Drakeford are going well. I hope that progress continues and that I will be able to give more details to noble Lords as matters progress. That is certainly our intention.

[Lord Hain]

I welcome what the noble Lord said. Could he give some guidance as to whether clarity on the financial framework will be provided before Report in this House?

[Lord Bourne of Aberystwyth]

I anticipate that it will be, but it does not have to be. Obviously we will want to make sure that steady progress is being made before Report. As things progress it is anticipated that we could have agreement on these issues before Christmas, but I will ensure that the House is updated on this. As I said, I certainly anticipate we will not go to Third Reading without it and probably we will not go to Report—but I will want to make sure we are making the progress to which I referred before we commit to taking it to Report.

I move to the question of the single jurisdiction. I think there was broad support for saying that, certainly at this stage, there is no desire to move away from a single jurisdiction. I have spoken to representatives of every single law school in Wales and that is pretty much their feeling. It is also the feeling of many practitioners in Wales. We would not be doing Wales any great favours by differentiating the Welsh jurisdiction from the English jurisdiction. It is quite possible, even at this stage, to accentuate and overemphasise the differences that exist. Historically, they are not great. It is very different from the position in Scotland, where the Scottish jurisdiction historically has been very different. So parallels there are not appropriate.

There is a body that is looking at the legal arrangements. As I have indicated, I will update noble Lords on how that body is getting on, because there is an appropriate interest in making sure we have Welsh judges—when I say “Welsh judges” I mean judges not necessarily of Welsh nationality but with Welsh experience—deciding issues that are steeped in Welsh law. That is quite appropriate and what the administrative arrangements we are looking at should take hold of.

I move on to look at reservations—another key area which overlaps to some extent with the Welsh jurisdiction issues around the separate position on alcohol. I well remember as a student at Aberystwyth that the time I felt most thirsty and in need of a drink was on a Sunday. Inevitably, the only place you could get a drink on a Sunday in Aberystwyth was the student union because it was membership only. Of course, the queue was about a mile long to get there. The alternative in those days was getting a bus into Montgomeryshire, which was a popular thing to do. So I can understand the strong feelings that exist on that issue.

Some of the points made on reservations were somewhat wrongheaded. The noble Lord, Lord Howarth, mentioned the position on knives in relation to the position on devolution to cities. Of course, cities will not have legislative powers in relation to knife crime, so I do not think it is a perfect analogy—but no doubt we can look at this as things develop in Committee. The noble Lord, Lord Elis-Thomas, said that adopting a reserved model is not a solution to all ills. Hear, hear to that. I never thought it would be. Obviously, the discussion on this will be about what is and what is not reserved. I am sure that we will take different views on some of that, but I look forward to discussing it when we come to Committee.

It is great to see the noble Lord, Lord Elystan-Morgan, in his place, firing on all cylinders as always. I thank him for his kind comments. I do not agree with his position on dominion status. I do not hear that as a great clarion call for something that the people of Wales want, but I understand that he has some material points to discuss in relation to reservations and I look forward to hearing them as we move forward.

The conferred model was silent about many issues that nobody would ever anticipate, as opposed to reserved issues such as defence, immigration, the Crown and foreign affairs. Sensibly, nobody was suggesting that therefore these were matters the Welsh Assembly could deal with. It is quite a difficult manoeuvre to go from conferred to reserved. I am very grateful that noble Lords have recognised that we have made progress on this. I look forward to hearing from noble Lords on some of the remaining issues of concern.

I will touch on one or two other aspects raised by noble Lords that are worthy of further investigation. One, brought forward by my noble friend Lord Crickhowell and echoed by the noble Lords, Lord Murphy and Lord Morgan, was the importance of working with existing institutions—perhaps getting the physics right, not just the chemistry, of the relationship between different Ministers to make sure we have some underpinning for when it is necessary for decisions, policies or interactions to be discussed between Cardiff and Westminster. That is a very good point that I will take away and look at to see what we can do on it.

Without getting into the purely philosophical, another issue that the noble Lord, Lord Elis-Thomas, mentioned was the permanence of the Assembly and the strength of the new clause that says the Assembly is permanent. That was something pushed for very hard by the Plaid Cymru representative on the Silk commission—but, on that issue, just as the India Act could in theory be repealed by the Westminster Parliament, I would not overlook the symbolic importance of including the clause that states that the Assembly is permanent because it perhaps underlines the way it is regarded politically. It is a matter of political realities. I am not suggesting that we can alter the Kelsen Grundnorm of the fundamental basis of the constitution, but it is something that has been widely welcomed.

As I said, this has been a debate of rare quality. I thank noble Lords for engaging constructively and I look forward to that constructive approach continuing. Lastly, air passenger duty is not just an issue of the potential unfairness to Bristol, which clearly was and, in the interim, remains an issue relating to the state aid position. It is also a question of fairness within the United Kingdom and in Wales. There is a great danger that we see this as just a tax, the variation of which can help Cardiff Airport. People in north Wales would not consider using Cardiff Airport; they use airports in England. Likewise, in central mid-Wales they would use Birmingham. It is a much broader issue of whether we do something about air passenger duty—as a Treasury issue, that is well beyond my pay grade—across the whole of the United Kingdom, which remains a possibility.

Once again, I thank noble Lords very much for the constructive way they have engaged. I look forward to Committee and continuing to provide information as it becomes available on the way that discussions are proceeding between the Treasury and Cardiff Bay. I beg to move.

Bill read a second time and committed to a Committee of the Whole House.