Wales Bill

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

Committee (2nd Day) (Continued)

20:32

Clause 3: Legislative competence

Amendment 38

Moved by

[Baroness Morgan of Ely]

38: Clause 3, page 2, line 28, after “7A)” insert “and is not ancillary to another provision (whether in this Act or another enactment) that does not relate to a reserved matter”

[Baroness Morgan of Ely (Lab)]

My Lords, many amendments have been put together in this group, but I will focus in the first place on the so-called purpose test. Here we come to the crux of the constitutional issues with the Bill, and an area which has been criticised by some of the top constitutional experts of this country. I will raise some general questions about how the so-called purpose test works, in order to determine the scope of the Assembly’s legislative competence, because if we do not get clarity on this, the chances of ending up in the Supreme Court are extremely high.

The Bill appears to operate in a binary way. If a provision in an Assembly Bill is exclusively concerned with non-reserved matters, such as agriculture or health, it is of course within the Assembly’s legislative competence. If, conversely, a provision in an Assembly Bill “relates to” a reserved matter, the Bill is outside the Assembly’s legislative competence. Whether a provision relates to a reserved matter is, as the Bill has it, to be,

“determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances”.

This is the purpose test that I would like to explore.

Of course, in the real world, matters can never be so black and white. Any Assembly Bill seeking to address the complications of modern life is unlikely to be able to do so by making provisions exclusively about non-reserved matters. It may be necessary, for entirely sensible reasons, to touch on reserved matters as well as non-reserved matters.

The question that I am exploring is how far the Assembly can do that before stepping outside the scope of its competence. Does the fact that a specific provision in an Assembly Bill deals in some way with a reserved matter automatically take the Bill outside the Assembly’s legislative competence? If so, that could present some major practical problems for the Assembly. The Minister will know that in the agricultural case, under the current devolution settlement the essence of the matter was that what the Assembly had done could be characterised either as relating to the conferred matter of agriculture or, as the Government contended, to some other matters entirely that were effectively reserved. The Supreme Court held that under the present settlement, provided that the provision fairly and realistically relates to a conferred matter, it makes no difference that it could also be described as relating to a matter on which the 2006 Act is silent—it would still be within competence. On that basis, a certain degree of flexibility is inherent in the current settlement.

Additional flexibility is also available under the present settlement as, where a provision falls within one of the exceptions to the Assembly’s competence, it can still be included in an Assembly Bill where it is incidental to or consequential on another provision within the Assembly's competence. What flexibility is implicit in the settlement envisaged by the Bill before the House? I invite the Minister to address that question. In so doing, I simply make the point that, given the inordinate length of the list of reserved matters that the Assembly will face, this is far from being a theoretical matter. The Constitution Committee’s valuable report on the Bill points out that,

“this test may have the effect of reducing the scope of the Welsh Assembly’s legislative competence, and perhaps lead to further referrals to the Supreme Court. We would welcome”—

again, this is what the Constitution Committee of this House said—

“an explanation from the Government as to whether this was the intent of the legislation and, if not, what steps they intend to take to ensure that the competence of the Welsh Assembly is not inadvertently reduced”.

I ask the Minister to address that issue. We need to know whether the Assembly could be hopelessly constrained from taking action on important social concerns by being unable in its legislation to touch on reserved matters in the course of addressing issues that otherwise would clearly be within devolved competence.

There are a whole load of other amendments in this group, and I would like to deal also with the issue of “ancillary”. Section 108 of the current Government of Wales Act enables the National Assembly for Wales to pass legislative provisions that are ancillary to devolved matters—or, to use the exact terminology, provisions that are,

“incidental to, or consequential on”,

devolved matters, or which,

“provides for the enforcement”,

of such matters to make them effective. But no such express provision is made in the equivalent clause of the Bill, which, coupled with the overlapping issue of the necessity test imposed on modifying the law on reserved matters, is a cause of deep concern. The issue of enforcement is more allowable in the current system than in the one that the Minister envisages with the Bill.

When this issue was raised in the other place, a somewhat confusing response was given. On the one hand, it was said that making such a provision would,

“drive a coach and horses through the key principle underpinning the new model, which is a clear boundary between what is devolved and what is reserved”.—[Official Report, Commons, Wales Bill Committee, 11/7/16; col. 87.]

On the other hand, it was claimed that the ability to make ancillary provision is “simply not needed” as it was already provided for. I find that response as confusing as the Bill itself.

Those promoting the Bill could also have said that it is in this respect merely following the precedent of the Scotland Act 1998, which has a similar provision. But blindly following those provisions in these very different circumstances is unwise. The approach taken in the Bill is uncertain and obscure. It is by no means clear that the National Assembly can make ancillary provision, as no express provision is made in the Bill; it is merely implied.

Why can the Minister not deal with this clearly by making express provision, as is done in the Northern Ireland Act 1998? If, as the Government claim, it is clear that the manner in which the purpose test operates means that ancillary provision is not reserved, why is there a need to state in Schedule 7A that it is not reserved where it,

“is ancillary to a provision of any Act of the Assembly or Assembly Measure”?

Such a provision should be unnecessary if ancillary provisions are not reserved.

The ability to make ancillary provision is vital for Welsh law because of the narrowness of the devolution settlement. The mechanisms necessary to enforce the law, such as police and the courts, are all devolved in Scotland, which they are not in Wales. Put simply, the obscure way in which this is dealt with in the Scotland Act and the attached necessity test is of little practical importance, while in the Government of Wales Act it is crucial to enable the National Assembly to legislate freely. Again, lessons can be learned here from Northern Ireland, where such matters as policing were not initially devolved. It is no doubt for this reason that clear provision is made to ensure that ancillary provision is within competence.

This is not a minor, technical matter worthy of debate only by lawyers and academics. This goes to the heart of whether the Welsh devolution settlement is workable. As has been alluded to by the Delegated Powers Committee and the Constitution Committee in their excellent reports, the particular reserved powers model adopted by the Government risks further reducing the legislative competence of the Assembly, and the failure to make express provision for ancillary matters and the constraint of the necessity test is in the same vein.

Amendment 75 provides for an exception for ancillary provision on certain justice matters for the purpose of enforcing legislation on a subject matter that is not reserved, so that the Welsh Government can give effect to such legislation. Unless this is allowed, it may be difficult for the Assembly to enforce provisions in Assembly Acts.

Finally, I touch on Amendment 81, which restates the existing powers of the National Assembly to modify Minister of the Crown functions within devolved areas where doing so,

“is incidental to, or consequential on”—

another provision in an Assembly Act. I will give one example of how absurd the law could become if something is not done.

Wales was one of the first places to ban smoking in public places. Last year, the Welsh Government hoped to introduce a law under the Public Health (Wales) Bill to ban the use of e-cigarettes in the workplace in Wales. They planned to impose duties on workplace managers in Wales to police the new ruling. The problem is that the UK Government in London would be required to give their consent in workplaces under their authority, such as the DVLA and the Crown Prosecution Service. If the Government refused to grant consent, we could have legions of Welsh people traipsing over to the DVLA to smoke their e-cigarettes.

Can the Minister give us clarity on the situation and how we can resolve what I believe is a serious matter?

20:45

[Lord Elis-Thomas (Non-Afl)]

My Lords, my amendments in this group are all focused on attempting to ensure that the legislative competence of the Assembly is not reduced by the movement from conferred powers with exceptions, to reserved matters with even more exceptions.

I was always concerned about this matter when I had responsibility for presiding over the Assembly because I had to make decisions about the competence of legislation. I often found it difficult to assure myself that there was clarity about the boundaries, although I was advised by excellent lawyers. The current Presiding Officer of the Llywydd has published a series of amendments to enable us to study the question of the constitutional propriety of where we are heading. What particularly troubles me—I am sure the Minister will understand this—is that the UK Government seem to have no intention of publishing an explanation or rationale, if there is such a thing, across the whole 200 or so reservations that would help us to understand the constitutional principles at work here.

Although we were promised by a previous Secretary of State that the pause in the Bill would give an opportunity for these matters to be considered, and there would be a response, this does not seem to have happened. My amendments would restore or maintain the current competence of the Assembly by enabling it to legislate in an ancillary way in relation to reserved matters. I know the Minister will say that ancillary matters are a minority interest but they are of great constitutional import. In my view, this is a clear example of how the move from the current form of legislative powers to the new form is narrowing the Assembly’s competence.

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

My Lords, I am very grateful to the noble Baroness, Lady Morgan of Ely and to the noble Lord, Lord Elis-Thomas, for tabling the amendments. I am particularly grateful for the careful way in which they have spoken to them.

I understand the importance of the issues that have been raised, and I shall try to address them in general terms by giving some examples of how the purpose test should operate in practice. First, on the wording, I say to the noble Baroness that the legislative competence in proposed new Section 108A(3) is a dual test. It allows the Assembly to legislate if it,

“is ancillary to a provision of any Act of the Assembly or Assembly Measure or to a devolved provision of an Act of Parliament, and”—

so there is the additional requirement—

“(b) has no greater effect otherwise than in relation to Wales, or in relation to functions exercisable otherwise than in relation to Wales, than is necessary to give effect to the purpose of that provision”.

So, it is a dual test. It is not simply ancillary but has to be “necessary”, under proposed new subsection (3)(b) of the provision.

These are important issues but they are not novel. Exactly the same sort of questions arose in respect of the Scotland issue because both in Scotland and Wales we are relying on the so-called purpose test to help define the scope of the relevant legislature’s legislative competence. We now have the benefit of guidance, as has been stated, from the Supreme Court, on the proper interpretation of these provisions. The guidance, although given in a Scottish case, will be highly relevant to the Welsh matters provided for in the Bill before us.

The starting point is that whether a provision in an Assembly Bill could be said to “relate to” a reserved matter is dependent on its purpose. As has been pointed out in the Supreme Court,

“the expression ‘relates to’ indicates more than a loose or consequential connection”.

I stress that the application of the purpose test in a reserved powers model should be interpreted as meaning that a provision that merely refers to a reserved matter, or has an incidental or consequential effect on a reserved matter, will not relate to that reserved matter. In other words, to fail the “relates to” test, an Assembly Act provision must have a reserved matter as its purpose. The purpose of a provision must be established by having regard to its legal, practical and policy effects in all the circumstances. The Assembly Member bringing forward the Bill cannot simply assert a purpose for one of its provisions. The purpose must be assessed by considering how the provision has been drafted and what it actually does, as well as the wider context, including the other provisions of the Bill of which the provision under scrutiny forms a part.

It is also important to say that the move from the current conferred powers model to one based on reserved matters reverses the operation of the purpose test. It shifts the burden, which is important. Whereas under the current settlement an Assembly Act provision needs to satisfy the purpose test by positively demonstrating that it relates to one of the subjects conferred in Schedule 7 to the 2006 Act, the reserved powers model instead requires that such a provision must not relate to a reserved subject matter. In other words, the case would need to be made that an Assembly Act provision is outside competence because its purpose relates to a reserved matter. As I say, it shifts the burden of proof. If such a case could be made, the provision would satisfy the requirements of the proposed new Section 108A(2)(c) and would be within competence, provided, of course, that it satisfied the other legislative competence requirements of new Section 108A.

To demonstrate how the purpose test ought to be applied in practice, I thought it would be helpful to give some examples. However, it is important to bear in mind in each of these hypothetical examples that it would depend on how the provision was drafted and what it actually did. As I have mentioned, the purpose test requires assessment of the effect of the provisions, including all the circumstances, in the round. An Assembly Bill which required tenants to insure their residence could relate to the devolved subject of housing and not to the insurance limb of the financial services reservation in Section A3. Rather than aiming to amend the law of insurance, the provision’s purpose would be to ensure the quality of housing stock in Wales. I think that most people would appreciate that that was the purpose.

A further example is that an Assembly Bill provision creating competitive tendering requirements for local authorities would be to improve their efficiency and cost-effectiveness, and would therefore not relate to the competition reservation in Section C3. Furthermore, the jurisdiction of the Agricultural Land Tribunal is set out in the Agricultural Holdings Act 1986. This Act also specifically excludes certain matters from the jurisdiction of the ALT—for example, disputes between landlords and tenants of agricultural land. An Assembly Bill may seek to alter this position by bringing such disputes within the jurisdiction of the ALT and no longer subjecting them to arbitration. This would not engage the arbitration reservation in Section L4 because the purpose of the provision would be to facilitate the smooth and economic operation of the agricultural sector by providing a practical, accessible and cost-effective way of settling disputes about agricultural land. The effect on arbitration would be incidental to, or consequential on, that purpose.

Lastly, an Assembly Bill provision requiring information-sharing between schools and Estyn which supported more general provisions aimed at improving the operation of the education sector in Wales would not relate to the reservation for the protection of personal data in Section L6. I hope this explanation of how we see the purpose test working, and these hypothetical practical examples, are sufficient to reassure the noble Baroness and that she feels able to withdraw her amendment. It is not possible to go through every conceivable example. I think that lawyers would accept that, as drafted, this would serve to answer particular cases that may be brought forward.

Through his Amendments 39 to 41, the noble Lord, Lord Elis-Thomas, is seeking to broaden the circumstances in which the Assembly could legislate in relation to reserved matters, and in that respect he is probing similar issues to those raised in Amendment 38. I therefore hope that the explanation I have given is reassuring.

As I have said, unlike under the current settlement—where an Assembly Act provision needs to satisfy the purpose test by positively demonstrating that it “relates to” one of the subjects conferred in Schedule 7 to the 2006 Act—the reserved powers model instead requires that such a provision must not relate to a reserved subject, so that the burden is shifted. In other words, the case would need to be made that an Assembly Act provision is outside competence because its purpose relates to a reserved matter. If such a case could be made, the provision would satisfy the requirements of the proposed new Section 108A(2)(c), and would be within competence, provided, of course, that it satisfied the other requirements. I do not therefore see a need for the Bill to be amended in the way that these amendments propose. Indeed, a side effect of the noble Lord’s amendments would be to prevent the Assembly being able to legislate otherwise than in relation to Wales for ancillary purposes—currently an important part of its competence that allows for enforcement provisions to apply in England. This is something that I know the noble Lord does not intend.

Government Amendment 42A is a minor change to ensure that the wording of the test in Section 108A(5) coincides with the wording in paragraph 12 of Schedule 7B. Both provisions ensure that, when considering the legislative competence of the Assembly in the context of an Act of Parliament, any requirements for the consent of, or for consultation with, a Minister of the Crown, are not relevant. This makes sense on the basis that it would be clearly inappropriate to require a Minister of the Crown to consent to, or be consulted about, an Act of Parliament. This is a technical amendment ensuring consistency throughout the Bill.

I turn to Amendments 47, 75 to 78 and 81 and 82. Paragraph 6 of Schedule 7A reserves the core elements of the single legal jurisdiction of England and Wales. These include the courts, judiciary and civil and criminal proceedings. Sub-paragraph (2) provides an exception to this reservation to enable the Assembly to provide for certain appeals or applications in relation to a devolved civil matter where it is ancillary to a provision of an Act of the Assembly or an Assembly measure.

Amendment 47 seeks to remove the ancillary requirement from this exception and allow the Assembly to directly place devolved functions on to civil courts. This ancillary requirement is crucial in that it enables the Assembly to enforce its legislation and to allow appeal decisions on devolved matters to be heard in a court on civil proceedings, yet it maintains the clear boundary that the single legal jurisdiction is a reserved matter. Paragraph 1 of Schedule 7B restricts the Assembly’s ability to modify the law on reserved matters. This includes any enactment whose subject matter is reserved. Paragraph 2 sets out the exception to this restriction. It allows the Assembly to modify the law on reserved matters where the provision is ancillary to a provision on a devolved matter and has no greater effect on reserved matters than is necessary to give effect to the provision. This provides the Assembly with the flexibility to legislate with regard to the law on reserved matters in a limited way to give effect to provisions that are within its legislative competence. However, such a provision cannot go further than required to achieve its objective.

Amendments 75 and 76 seek to remove the second limb of this exception—that the provision must have no greater effect than necessary—from Assembly provisions that seek to modify the law in relation to paragraphs 6 and 7 of the new Schedule 7A. These are the reservations for the single legal jurisdiction and tribunals. Amendment 77 seeks to remove the necessity element of this test altogether. This would allow an Assembly, through on Act, to amend the law on reserved matters without a requirement for it to act proportionally to meet its objective. The law on reserved matters is, by definition, not an area of the law that should be open to wide-ranging alteration by the Assembly in this manner. This is vital to effect a clear boundary between what is devolved and what is reserved.

The matters within paragraphs 6 and 7 to Schedule 7A specifically are fundamental to the maintenance of the single legal jurisdiction of England and Wales. The Government’s position on the maintenance of the single jurisdiction is clear. Allowing the Assembly to modify these areas puts at risk the uniformity on which the single jurisdiction is based. Removing the requirement that Assembly modifications to the law on these matters should go no further than necessary would give the Assembly a significant increase in competence. The constraints represent an appropriate and balanced limitation on the Assembly’s competence. This gives the Assembly the same powers to modify the law on reserved matters as the Scottish Parliament has in relation to Scotland.

21:00

Amendment 78 seeks to omit the criminal law restriction in paragraph 4 of the new Schedule 7B and replace it with a restriction that would bring it in line with the private law restriction at paragraph 3. Paragraph 4 sets out a category of offences which the Assembly would be unable to modify. These include the most serious indictable offences, such as homicide and sexual offences. The Assembly would also be prevented from making modifications in relation to what might be termed the architecture of the criminal law, which includes matters such as criminal responsibility, the mental elements of offences, inchoate offences and the composition and definition of sentences.

This amendment would remove the restriction on modifying the law on these listed offences and the architecture of the criminal law. It seeks to enable the Assembly to be able to modify the criminal law as it relates to devolved matters. It would enable the Assembly to create its own serious criminal offences for devolved purposes and, in relation to those offences, provide different sentencing regimes, new definitions of criminal responsibility, change the law on inchoate offences and so forth. Again, these are fundamental elements that make up the criminal law in England and Wales, which should remain consistent across both countries. The criminal law restriction achieves the best balance between allowing the Assembly to make appropriate provision in relation to criminal law, while ensuring consistency on the most serious offences and important mechanisms of criminal law.

Paragraph 4 strikes the right balance by allowing the Assembly to apply the existing framework to its own enforcement provisions and to decide which aspects of the existing criminal law apply. It would allow the Assembly to create strict liability offences or the appropriate mental element to attach to the offence as well as choosing the sentences that apply to devolved offences.

Amendment 81 seeks to allow an Assembly Act to modify the Minister of the Crown functions listed in paragraph 11(1) of Schedule 7B without the consent of the relevant UK Government Minister if the modification is incidental or consequential to an Assembly Act provision. The Bill establishes a clear boundary between what is devolved and what is reserved. This includes making clear those devolved public bodies which are accountable to Welsh Ministers and the National Assembly for Wales, as distinct from reserved public bodies that are accountable to the United Kingdom Government and to this Parliament. It is only right that United Kingdom Government Ministers are asked to consent to any Assembly Act which seeks to modify their functions. I should be clear, however, that the consent of a Minister of the Crown is not required to subject reserved authorities to general duties imposed by the Assembly; for example, requiring planning permission or prohibiting smoking in public buildings.

Similarly, Amendment 82 would remove the requirement for the Assembly to seek the consent of United Kingdom Government Ministers for an Act of the Assembly that would modify the functions of a reserved authority, including a United Kingdom Government Minister, if such an Act related to a Welsh language function. We have taken a number of steps to minimise the impact of the Bill on the Welsh language. For example, paragraph 199 of Schedule 7A includes a specific exception to the particular authorities’ restrictions in paragraph 198 to ensure that the restrictions do not apply in respect of those authorities’ Welsh language functions. This means the Assembly will continue to be able to legislate, with consent, to modify the Welsh language functions of the named particular authorities. In addition, the consent requirements under the Bill are not retrospective and will therefore not affect the implementation of standards made under the Welsh Language Measure 2011. The consent of a United Kingdom Government Minister would not be needed for regulations made under that measure which relate to reserved authorities other than Ministers of the Crown.

[Lord Wigley (PC)]

Amendment 82 was discussed in the other place and the Minister gave the same assurance to my colleagues there that the powers would not be exercisable on Acts of the Assembly that had already been passed, and therefore it was not a question of rolling back any existing legislation. However, is it not totally perverse that there should be a different set of circumstances relating to legislation that has been enacted in the past and identical legislation that may be enacted in the future, but they are handled in different ways?

[Lord Bourne of Aberystwyth]

I do not think I follow the noble Lord’s point. It is obviously a hallmark of good legislation that it is not retrospective. Therefore, anything that we are doing here will not, as it were, undermine anything that has already happened. But I think what we are doing otherwise is fairly clear for the future, so I do not quite understand what he means by perverse in that context.

[Lord Wigley]

Perhaps we could discuss it further.

[Lord Bourne of Aberystwyth]

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

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

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

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

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

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

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

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

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

[Lord Thomas of Gresford (LD)]

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

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

[Baroness Morgan of Ely)]

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

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

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

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

Amendment 38 withdrawn.

Amendments 39 to 41 not moved.

Amendment 42

Moved by

[Lord Wigley]

42: Clause 3, page 2, line 40, at end insert—
“(c) relates to the Welsh Government’s provision of support for the furtherance of the Welsh language and culture in the Argentinian state of Chubut where the provision has the agreement of the UK Government and the Government of Chubut.”

[Lord Wigley]

My Lords, Amendment 42 relates to the Welsh community in Patagonia, which is located entirely within the Argentinian state of Chubut. I declare an interest in that I was president of the 150th anniversary celebration committee, which last year stimulated a programme of events to mark the occasion, and in particular to create a legacy which will help stimulate and sustain Welsh language and culture in Chubut.

Over the past 50 years, there has been a growing interest in matters relating to Welsh culture in Chubut, and there are today about 7,000 Welsh speakers there, of whom about 1,100 are learners of the language. Over the past 20 years, practical help and support has been given by way of helping teachers from Wales to work for two or three years in Patagonia to assist with the teaching of Welsh. The Welsh language school Coleg Camwy has been teaching Welsh in Gaiman, the most Welsh of the towns in Chubut. There are schemes to expand this school currently under consideration. A new Welsh school, Ysgol yr Hendre, was opened in Trelew, the largest city in Chubut, some 10 years ago, and this year a new Welsh school has been opened in Trefelin in the Andes. Welsh language and culture is also taught in dedicated classes in the town of Esquel.

This is relevant to the Wales Bill because since the opening of the National Assembly, the teacher scheme, which was originally established by Welsh Office Ministers back in the 1990s, has been taken over by the Assembly. Indeed, two First Ministers have visited Chubut—first Rhodri Morgan and last year Carwyn Jones—and other links between the National Assembly and the Welsh community in Patagonia have been established. These activities and links are associated with the National Assembly’s responsibility for Welsh language and culture. Although the Assembly and the Welsh Government have no direct responsibility for overseas activities and relationships, it has been recognised that such overseas links can be accepted as being within their competence because they are ancillary to safeguarding the broader interests of the Welsh language and culture.

However, with the new, tighter approach which seems to be taken by the UK Government in the context of this Bill, with “silent issues” being seen as reserved matters, words along the lines proposed in this amendment are needed to ensure beyond all doubt that these powers continue to be available to the Assembly and that nothing in this Bill should be seen as undermining such activity. I suspect I can carry the whole House with me in these aspirations. If the Minister can assure the House beyond peradventure that these powers will continue to be exercisable by the Welsh Government, the amendment may be unnecessary, but if there is any doubt whatever, such words should be added to the Bill. I hope the Minister can respond positively on this matter. I beg to move.

21:15

[Lord Crickhowell (Con)]

My Lords, a good many years ago I and my wife visited the Welsh settlement in Patagonia. We were greatly impressed and moved by what we found there. We met a large number of people with Welsh names. Indeed, we stopped to picnic by the roadside and an individual in a truck drove up and asked what we were doing. We told him why we were there. He said, “Oh, he’s Welsh”, pointing to the nearest farm, the owner of which had a Welsh name. He pointed at another farm and the owner of that one had a Welsh name. We found wonderful examples of Welsh culture and the Welsh language, and an enthusiasm for Welsh culture and language that I, for one, found greatly moving and was very impressed by.

I know that, a good time after our visit, the support described by the noble Lord began. It has continued and has been very successful and influential. I hope it can be continued. It may be that my noble friend will be able to tell us that the amendment is not needed, but if by any chance it is it has my warm and wholehearted support.

[Lord Howarth of Newport (Lab)]

My Lords, while I share the aspirations of the noble Lord, Lord Wigley, I would like to ask him a couple of questions. The condition of his amendment is that the provision should have,

“the agreement of the UK Government and the Government of Chubut”.

Can the noble Lord tell us that he has squared the Government of Argentina, or is that not necessary because competence in this matter has been devolved from Buenos Aires to Chubut?

[Lord Wigley]

Indeed. Education in Chubut is a wholly devolved matter in Argentina. The state legislature of Chubut has been very positive on these matters. It contributed to the opening of Ysgol yr Hendre 10 years ago, which I mentioned. It is now actively involved in the possibility of expanding the school at Gaiman. In other words, there is a good working relationship between the Government of Wales and the Government of Chubut. The central Argentine Government have been very supportive. Indeed, they have provided funds to safeguard all 16 of the Welsh chapels in Patagonia to ensure they all remain open, provided there is one service once a quarter in each of the chapels. In other words, whatever other dispute there may be—disputes do arise in Argentina on various matters—on this issue there is harmony that is well worth building on because of its interest not only in Argentina and to Wales but to the United Kingdom in our relationship with Argentina.

[Lord Morgan (Lab)]

My Lords, what the noble Lord, Lord Wigley, said is totally correct. Y Wladfa, the Welsh community in Chubut, rather benefited from the Falklands War, because the Argentine Government were rather anxious to show that they were solicitous of the needs of cultural minorities in their country. I feel, on behalf of Welsh historians everywhere, that I should support this. I have not been to Chubut, as the noble Lord, Lord Crickhowell, has, but I have taught Chubut students in Swansea. I twice published articles by historians from that community in the Welsh History Review when I edited it. They have a very living contact; it is not an antiquarian matter. All Welsh people should strongly support it.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for introducing the amendment and other noble Lords who have participated in the debate. Through the amendment, the noble Lord seeks to extend the Assembly’s competence so that it could legislate otherwise than in relation to Wales to support the Welsh language and Welsh culture in the Argentinian province of Chubut.

Of course, the history of the Welsh settlement—“settlement” in a sense that I hope I will be allowed to use here—in Patagonia is one of the great stories of human migration and holds a special place in the hearts and minds of people in Wales. It is a story of typical Welsh tenacity and fortitude that led settlers to travel thousands of miles, driven by the desire for a better life and the dream of establishing a new Wales.

In Patagonia today, interest in the Welsh language and Welsh culture is flourishing, more than 150 years on from the first settlement. Members of the Welsh Affairs Committee in the other place saw this for themselves when they visited Patagonia in 2014, a year early, to mark the 150th anniversary of the arrival of the first Welsh settlers. Although the anniversary was in 2015, typical Welsh efficiency and promptness meant that they were there a year early. The settlement is of course a part of Argentina and, while Welsh culture thrives there, it is wonderfully intermixed with the rich culture of South America. I, too, have taken an interest in the settlement. When I was on the British Council committee, access to finance and help were certainly provided to Chubut.

When the amendment was tabled, my reaction was, “Surely, the National Assembly has the power to do this already”—and that is our conclusion. The common law-type powers that we are devolving to Welsh Ministers will ensure that they can continue to act in the way that they are doing in support of the Welsh language in Chubut. I will have another look at it to ensure that that is the case and will be happy to speak to the noble Lord if that is helpful, but I am sure that we would all want to see this continue. With that, I ask the noble Lord if he would kindly withdraw his amendment.

[Lord Wigley]

My Lords, I thank everyone who contributed to this short debate and am grateful for the positive spirit and in particular for the response of the Minister. I had hoped that he would say that the powers that already exist are not in any way diluted or diverted by virtue of the Bill. The Minister mentioned legislation. I should clarify that it was not my intention that the National Assembly should legislate for what happens in Chubut—obviously not—but there are Executive actions which support the language, and it is the continuation of those that I wish. Given the assurances that the Minister has given, and assuming that he does not find any snag that he has not seen so far, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 42A

Moved by

[Lord Bourne of Aberystwyth]

42A: Clause 3, page 3, line 3, leave out “paragraphs 8 to 11 of Schedule 7B” and insert “any requirement for consent or consultation imposed under paragraph 8, 10 or 11 of Schedule 7B or otherwise”

Amendment 42A agreed.

Amendment 43

Moved by

[Lord Elis-Thomas]

43: Clause 3, page 3, leave out lines 5 and 6

[Lord Elis-Thomas]

I have always believed that constitutional legislation in any state should be intelligible, or as intelligible as possible, not only to the practitioners of public life but to the general public. This is particularly the case with the constitution of Wales. The episode that we are now involved in is a further obfuscation of the constitution rather than its opening out to intelligibility, which is why these amendments on consolidation are important. I am grateful for the support of the noble Baroness, Lady Finlay, who will no doubt want to speak to them.

The question of how a constitution is made accessible was highlighted in the outstanding judgment of the High Court last week. In their judgment, their Lordships said:

“The United Kingdom does not have a constitution to be found entirely in a written document. This does not mean there is an absence of a constitution or constitutional law. On the contrary, the United Kingdom has its own form of constitutional law, as recognised in each of the jurisdictions of the four constituent nations”.

But because the constitution of Wales is currently spread over four pieces of legislation, it hardly meets the test of being intelligible to the population or to any of those active citizens who wish to participate in understanding their constitution.

This has been a persistent theme of the National Assembly’s relevant committee dealing with constitutional matters. That is why the predecessor committee of the current one, of which I was also a member for a period, recommended that a clear commitment should be given to consolidating the constitutional legislation of Wales and to having this done in the current parliamentary term. If for good reasons of their own the UK Government did not feel able to undertake such consolidation, there should also be a clear provision—or at least there should not be any hindrance—in any Bill so that the National Assembly itself could undertake it. Amendments to this effect were tabled in another place and in the debate the UK Government said this was not necessary because the constitutional settlement for Wales is the Government of Wales Act 2006 as amended—a matter to which I alluded earlier. Quite simply, the urtext that is the basis for our understanding of the constitution of Wales is the Government of Wales Act 2006 as amended, but it does not meet the test of consolidation and intelligibility.

Is it not now time to give the people who are most concerned about this matter—those of us who must live and work through the constitution we are given by courtesy of the Houses of Parliament of the United Kingdom—responsibility to make that consolidation? It is not an attempt to amend legislation, merely to consolidate it. This approach should recommend itself to all who are concerned about constitutional clarity and democratic principles. All that Amendments 43 and 44 would do is permit the National Assembly to consolidate the devolution statutes relating to Wales in both its languages. This is not to blow my own trumpet because I happened to be born bilingual, but we are officially a bilingual legislature. We work actively and daily in two languages. To allow us to legislate and provide consolidation in this area would mean that we were able to serve our citizens much more effectively. I beg to move.

[Lord Howarth of Newport]

My Lords, I have huge sympathy with what the noble Lord, Lord Elis-Thomas, just said. Why have the Government not presented this legislation to Parliament in consolidated form? That would have greatly facilitated scrutiny and, more importantly still, as the noble Lord suggested, it would be for the benefit of the people of Wales and all our fellow citizens who are interested in and care about the development of our constitution, by enabling them much more readily to understand the Government’s constitutional proposals. I cannot see why we must wade through these thickets of legislative obscurity to try to get the measure improved and an adequate and comprehensible piece of legislation presented to the world.

[Lord Crickhowell]

My Lords, I have every sympathy for what has been said about consolidation. My difficulty is more fundamental. I am not a lawyer, and I know I am a bear of very little brain, but quite frankly, I do not understand what lines 5 and 6 mean. I should be grateful if the Minister could tell me, in simple language, what on earth they mean, because it is far from clear to me.

21:30

[Baroness Finlay of Llandaff (CB)]

My Lords, I have added my name to the second of these amendments, but I should have added it to both. I have felt strongly that law should be accessible to the people to whom it applies. You cannot expect a population to understand the law that surrounds it and the way it lives unless it is intelligible and accessible. Ever since the Assembly came into being, divergence of the systems, particularly in education, health and social care and planning, has meant that we have an increasingly complex range of legislation. Cardiff University was where Wales Legislation Online first started as an attempt to provide some kind of solution to this. I was pleased to be part of the campaign at that time to get that instigated. That subsequently evolved into Law Wales and is now more formalised.

This requirement and request for consolidation came through quite clearly in the report of the Constitutional Affairs Committee, which made clear that we need consolidation. I cannot see that the Government in Westminster will ever feel particularly motivated to consolidate, but I can see that the Assembly would feel motivated to do so.

Lateral to that, this all fits with a quiet campaign I have had over the years. In 2004, I asked the Government to make sure that the Explanatory Notes accompanying each Bill provided a table listing all the provisions to give powers to the National Assembly. The response I had from the Lord President of the Council was that:

“It will be suggested to departments that they present this in a tabular form where appropriate”.—[Official Report, 11/10/2004; col. WA 1.]

During the passage of the Government of Wales Act 2006, I further pursued the need to be able to track legislation, particularly because of this effect of divergence. I stressed that solicitors and other professionals in Wales, such as healthcare professionals, educators and so on, need to know and understand the law which governs the way they function and live and their everyday activities such as their professional duties with regard to the rest of the population.

Can the Government therefore explain what they lose by giving such powers to the Assembly? I cannot see that they would lose anything at all. Why could they not seek to adopt this amendment, which might provide a solution to a problem which will probably get worse over the years, as further constitutional changes come through in other pieces of legislation?

[Baroness Gale (Lab)]

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

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

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

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

[Lord Thomas of Gresford]

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

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

I have no idea at all.

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

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

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

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

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

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

[Baroness Randerson (LD)]

Randerson.

[Lord Thomas of Gresford]

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

[Lord Bourne of Aberystwyth]

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

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

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

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

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

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

[Lord Thomas of Gresford]

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

[Lord Bourne of Aberystwyth]

My Lords, there is a commercial opportunity there. I commend the noble Baroness, Lady Randerson, for her good idea.

[Lord Crickhowell]

I am sorry to intervene again, but I thought I was being pretty stupid at a late hour at night when I asked what subsection (5) meant. When a leading Welsh lawyer got up and asked exactly the same question, I decided that perhaps I was not quite as stupid as I thought. I would love to know what it actually means.

[Lord Bourne of Aberystwyth]

My Lords, I believe it means—and I will write to noble Lords if I am incorrect in this, as I may be—that, in determining what is necessary for the purposes of subsection (3), which relates to the test of ancillary and necessary, you cannot allege that it is necessary that the law is passed unless it is necessary that it is an Assembly law. It cannot be necessary for another legislative body. I think that is what it means. If I am wrong, I will write to the noble Lord and copy the letter to other noble Lords. I may be wrong.

[Lord Elis-Thomas]

I am, of course, disappointed by the Minister’s response, but I should be disappointed at least once in a debate in this Parliament. I am grateful for the support from the noble Lord, Lord Howarth, and the noble Baronesses, Lady Finlay and Lady Gale, and for the interventions by the noble Lords, Lord Thomas of Gresford and Lord Crickhowell.

The consolidation of the law is about the intelligibility of the law and the transparency of political activity. I will continue to pursue this with greater vigour and will call upon my distinguished academic colleagues throughout the Principality and beyond to get on and do it. I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

Amendment 44 not moved.

Clause 3, as amended, agreed.

21:45

Amendment 45

Moved by

[Lord Elystan-Morgan]

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

[Lord Elystan-Morgan (CB)]

My Lords, these two amendments, Amendment 45 and Amendment 46, are intended to stimulate thought—particularly the first of those amendments, which relates to dominion status—and to try and deepen and broaden the whole issue of the constitutional future of Wales. The second, which deals with the constitution of reserved powers, is intended to seek to repair and ameliorate some very serious flaws which, in my submission, exist in this part of the Bill.

Dominion status is not about a rigid pattern of government. The principle is enunciated in the Statute of Westminster 1931 and has developed politically, broadly and indeed fruitfully over the 85 years thereafter. It is full of possibilities for meeting different situations in different parts of the world. Obviously, when one is speaking of dominion status in the context of Wales, one is not speaking in any way of a replica of the constitutional situation of New Zealand or Australia. Nevertheless, the common refrain which runs through it all is that it involves a territory that was once under direct British rule and which still accepts the sovereignty and the titular authority of the Queen. Beyond that, the possibilities are almost illimitable. Indeed, my appeal in this situation, when we are thinking of the future of Wales, is to think big. If you think big, you will achieve something worth while; if you think small, what you will achieve will be small, or even perhaps smaller than that which you have set out to obtain. That is the situation that confronts us now.

The possibilities of dominion status are almost illimitable. It is an open secret that about 10 years ago the Government of the United Kingdom and the Government of Spain almost came to an understanding—this is hardly believable—about the future of Gibraltar, with a plan for some form of dominion status. In other words, the concept is so flexible, so malleable and so adaptable that it was possible for the ancient conflicts there to come very near to a friendly settlement. That is an illustration of exactly how pliable dominion status can be. It is in that context that I would ask for imagination to roam and for the spirit to be broad and liberal and inspiring in relation to the possibilities here. There are endless plans and changes that can be considered, but within them there is the possibility of Wales playing a full, dominant, honourable and splendid part in the life of the United Kingdom. Who knows what the situation will be in five to 10 years’ time? It is a situation of total flux, and it is therefore incumbent upon us as Welsh people, and indeed upon all of us as British people, to consider exactly what this possibility should be, side by side with many other possibilities.

I turn to the second matter, the question of the creation of a reserved powers constitution for Wales. Normally I would jump with joy at this development because it places Wales upon the same constitutional basis as Scotland and Northern Ireland. It also tidies up a great deal of what is now in a state of confusion and, if I may so describe it, confetti. When you deal with a long period of transferring small powers, day in and day out, coming from hundreds of different sources, you create a situation that almost guarantees some constitutional neurosis on the part of many generations of Welsh lawyers. Avoiding that would in itself be utterly worth while.

However, I am far from happy with the situation because I believe it is deeply flawed and a blueprint for failure and disaster. The fact that there are 200 or more reservations—I am wrong, actually; it is about 198 or 199—and the very nature of the reservations themselves makes the matter a nonsense. Consider the matters that are reserved, though I touched on this at Second Reading so I will not go into all the detail: licensing, something that Wales had devolved to it in 1881; dangerous dogs; sharp axes and knives; hovercraft; prostitution; charitable collections—one could go through dozens of examples here of what are mere trivia, matters that are clearly domestic in their nature. The inclusion of them by way of reservation is to my mind an insult to the people of Wales.

It is on that basis that I ask the House to consider very carefully whether in any way this can fit in with what I have described as the moral and constitutional geometry of the situation. By that, I mean that when you have a settlement such as we are now seeking in relation to Wales, one that one hopes should last for a long time or at any rate be a basis upon which further development can be built, there has to be mutual trust and some sense of balance. The subsidiary parliament states straight away, “We are not concerned with the question of succession to the Crown, defence or foreign policy and perhaps three or four allied questions of that nature, but we are concerned with matters that are purely and classically domestic in their character”. If the current Parliament refuses to accept that, the whole moral geometry of the situation is affected.

How did this come about? Not, I think, on account of any mendacious conspiracy on the part of Ministers against Wales; I do not think there is any conscious machination at all in regard to it. It came from a long history of prejudice that has formed what you might describe as a permafrost of attitude towards Welsh devolution. I do not believe that the situation was anything different from this: the Secretary of State for Wales, perhaps rather deferentially, went to various colleagues and said, “What would you like reserved, my dear chap, from your department?”. Each one said, in his mind and his heart if not indeed in actual words, “Practically everything. It doesn’t matter how meagre, niggardly, small or utterly local it might be, we will reserve it if we possibly can”.

Why? I believe that it has a lot to do with the fact that Wales was England’s first colony. That was the situation in the 13th century. In the Act of Union of 1536, Wales was said to be part, inevitably and as it always had been, of the United Kingdom, and its affairs were to be assimilated, incorporated and included within the greater realm of England. We have not broken through that mould.

On Second Reading, I made this—I think, not invalid—point. When you think of some of these reservations—there are dozens which, to my mind, are utterly ludicrous—can you imagine the Colonial Office of the United Kingdom 60 years ago, particularly when James Griffiths was the head of that department, going to a British Caribbean or African colony and saying, “These are the reservations that I demand of you”? It simply could not happen.

It is against that template that one has to consider this matter. For that reason, I have drafted this new clause, which of course I shall not press to a Division tonight, but it could well be revisited before we finish with the Bill. It calls on the Secretary of State to be responsible for setting up a working party to report to Parliament within three years on the question of how the reserved powers are operating in each case. The purpose of that—allied, no doubt, with recommendations from the working party—would be, first, to narrow the gap between the situation now and that which existed on the very day in July 2014 when the Supreme Court gave its judgment in the agricultural workers case. The gap is immense. The powers that we have under the Bill are, strictly speaking, immensely inferior to what we had then, when it was discovered that silent transferred powers, which no one had ever appreciated, had given immense authority to Wales.

I think that the Government were reluctant to accept the reserved powers constitution that they had enforced on them; their hands were forced. I do not believe that there is even now a messianic commitment, and most certainly there is no incandescent enthusiasm for this reform. It is something to which they feel that they must surrender.

The effect will be, secondly, to get rid of many of these anomalies; and, thirdly, to set out a coherent pattern, for in fact there is no theme—no coherence—to this. For that reason, I beg to move.

[Lord Wigley]

My Lords, I support my friend, the noble Lord, Elystan-Morgan, on Amendment 45, which he moved so eloquently, and Amendment 46, which is coupled with it. The noble Lord has throughout his political life been a strong advocate of the merits of dominion status, as defined by the Statute of Westminster 1931. In his way, tonight, he has, even at this late hour, elevated the debate above the uninspiring contents of a rather unambitious Bill.

Since the United Kingdom became a member of the European Community in 1973 and now—at least for the time being—of the European Union, I must admit that I had tended to look at Wales’s future in European terms more than in terms of the Commonwealth. I had no difficulty in regarding Wales as both an historic nation in its own right and a European region. As the EU grew to its present strength of 28 member states, with eight of them smaller in population than Wales, now including in their own right small countries such as Slovenia, Estonia, Latvia, Malta and Luxembourg, I looked on our legitimate aspiration as being a member state of the EU in our own right.

That was not in any sense a separatist argument. If England, Scotland, Northern Ireland, and indeed, the Irish Republic, were also member states, we could co-operate within a new relationship covering Britain and Ireland. We would have our own presence in Europe. It was indeed the converse of a separatist approach. I regarded a pooling of sovereignty on a European level, subject to the principle of subsidiarity, where decisions are taken as closely as possible to the community on which they impact, as being most appropriate to the modern world, in which the physical barriers between nations should be regarded as a thing of the past.

22:00

The recent referendum means that the UK will now, most regrettably, leave the European Union—though goodness knows what new relationship we shall have with our European neighbours, including the Irish Republic. In these circumstances we must all look again at what should be the appropriate place for Wales in the brave new world towards which we are, for better or for worse, heading. I suggest that it is also time for the London-centric political parties to start thinking in these terms, too.

For me, there are three guiding principles. First, the people of Wales should have the right to determine the degree of independence towards which they aspire, and what is appropriate to their developing circumstances. While it is right that no outside body or authority can set limits on the ambitions of a nation, as was once famously stated in an Irish context, it is up to the people of that nation how far and how fast they wish to travel. I say this deliberately, since I do not believe that in the modern world there is room for any such concept as absolute independence, as espoused by UKIP.

Secondly, any new constitutional settlement between the nations of these islands should recognise the practical reality that we must have open borders between all five nations. In that I include the Irish Republic. There must be free movement of people, goods, money and services between each of them, unhindered by customs posts or passport control. Anything else is totally impractical and those who advocated Brexit are now coming to realise that basic fact as they try to square an unsquarable circle with regard to the relationship between the Irish Republic, Northern Ireland and the countries of Britain.

Thirdly, Wales should be empowered to take every decision that can meaningfully be taken in Wales by our own Government in our own National Assembly, to the extent that the people of Wales so wish. Where decisions that affect Wales are taken by bodies outside our borders, we should have a strong, effective and direct voice in those forums.

That is the background against which I approach the two amendments on the constitutional development of Wales. Amendment 45 addresses the broad picture. What should be the degree of self-government and pattern of constitutional development in the new circumstances that are unfolding in Wales? I believe that the working group specified in the amendment should of course include representatives of the Welsh Government and the National Assembly, including perhaps its Presiding Officer, who might well argue that this is a question that needs to be addressed in the context of the democratic relationships between each of the four nations of these islands. That, however, is beyond the scope of this Bill. There needs to be a three-year timescale since the outcome of the Brexit negotiations will be an essential backdrop to any such considerations.

Amendment 46 is a more narrow and focused amendment to deal with the inevitable consequences of the Bill. The Bill as it stands has changed significantly from the ill-considered hotchpotch that it was at the start of its journey. There are still significant and far-reaching amendments that the Government themselves are realising to be necessary. I believe that this salutary exercise in coming to grips with the reality of devolved Wales will not end at Royal Assent—assuming the Bill gets that far. That must still be an open question, given the ongoing resentment in Cardiff Bay, and throughout Wales, at the Bill’s implications of powers being retracted from the Assembly, on the principle that any silent power will certainly be automatically converted into a reserved power. This is the very converse of the intentions, as I understood them, of the Silk commission in putting forward a reserved powers model for Welsh devolution.

I believe that including an amendment to provide for an ongoing review mechanism can get the Government off being ensnared on a hook of their own making. Again, I believe that the working group should, of course, include representatives of the Welsh Government and the National Assembly. If the words of the two amendments are inadequate, let the Minister bring forward a government amendment or a new clause to that end on Report. I believe that a mechanism such as that proposed in Amendment 46 is necessary for the Bill to work when it is enacted.

[Lord Murphy of Torfaen (Lab)]

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

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

[Lord Thomas of Gresford]

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

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

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

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

[Lord Elystan-Morgan]

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

[Lord Howarth of Newport]

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

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

22:15

[Lord Bourne of Aberystwyth]

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

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

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

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

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

[Lord Elystan-Morgan]

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

“dominion, principality, and country of Wales”,

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

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

Amendment 45 withdrawn.

Amendment 46 not moved.

Schedule 1: New Schedule 7A to the Government of Wales Act 2006

Amendment 47 not moved.

Amendment 47A

Moved by

[Lord Bourne of Aberystwyth]

47A: Schedule 1, page 46, line 45, leave out from “reserve” to end of line 2 on page 47 and insert—
“(a) welfare advice to courts in respect of family proceedings in which the welfare of children ordinarily resident in Wales is or may be in question;(b) representation in respect of such proceedings;(c) the provision of support (including information and advice), to children ordinarily resident in Wales and their families, in respect of such proceedings;(d) Welsh family proceedings officers.”

[Lord Bourne of Aberystwyth]

My Lords, turning to the next group of amendments, I am pleased to speak, first, to government Amendment 47A, which was tabled as a result of discussions with the Welsh Government.

Paragraph 6(5) of new Schedule 7A provides for an exception from the reservation for courts and civil and criminal proceedings as part of the single legal jurisdiction of England and Wales. The exception is for the,

“provision of advisory and support services in respect of family proceedings in which the welfare of children ordinarily resident in Wales is or may be in question”,

so that the provision of such services is not reserved by paragraph 6(1). This exception was intended to reflect the existing exception for what may be described as the functions of CAFCASS Cymru.

The Welsh Government have argued—in our view with some force—that the wording of the exception is too broad and does not sufficiently closely reflect the Assembly’s current competence in respect of CAFCASS Cymru. Amendment 47A seeks to insert into paragraph 6(5) modified wording which, I understand, the Welsh Government support.

Government Amendment 47B would remove sub-paragraph (2) from the defence reservation. It would have no effect on the substance of the defence reservation but it would remove a tautology. Removing this sub-paragraph would not change the powers that Welsh Ministers have under the Marine and Coastal Access Act 2009 to appoint marine enforcement officers, who then enforce legislation in relation to sea fishing; nor would it change the automatic appointment of certain members of Her Majesty’s Armed Forces as marine enforcement officers under the same Act. I am pleased to say that UK Government and Welsh Government officials have worked together closely to come to the conclusion that this sub-paragraph should be removed.

Government Amendment 52A is a technical amendment. It seeks to provide clarity in relation to Section C2 in new Schedule 7A by providing a definition of “business association”. There is already such a definition in Section C1, but interpretation provisions in the schedule cannot be read across to apply to other sections.

Government Amendments 53A and 53C would make minor adjustments to the consumer protection and product standards reservations to ensure that the Assembly’s competence in these areas remained unaltered from the current position.

Amendment 48, tabled by the noble Lord, Lord Wigley, proposes the devolution of policing. As the noble Lord will know, the Government have been clear that, in the absence of a consensus around the Silk commission’s proposals in this area, policing is not being devolved. We believe that the current England and Wales arrangements for policing work well, and the proponents of devolution have failed to adequately address some of the risks that would arise if these arrangements were disrupted.

[Lord Crickhowell]

On this very point, at Second Reading I asked the Minister to explain why it appeared that powers over policing were being given to some English regions while they were not being given to the Welsh Government. I am entirely in favour of a general reservation and I would simply like an explanation of that apparent difference.

[Lord Bourne of Aberystwyth]

My Lords, I shall deal with that briefly before I resume. I recall my noble friend raising this at Second Reading and I will write to him. The devolved arrangements that I think he is referring to in relation to some of the city regions in the United Kingdom, specifically in England, do not involve devolution in the way that it is being talked about here. They do not establish separate lines of authority within national boundaries, for example. I will write to him with details on that but I think that the form of devolution is rather different in that respect.

There are factors that I think I should touch upon in relation to why policing is being retained within the England and Wales system under the Bill. First, policing is inextricably linked with the criminal justice system. It is a key component. The criminal justice system’s priorities and ways of operating have a direct impact on other parts of the criminal justice system and vice versa. This can be seen, for example, through quality of evidence gathering and the mutual role played in crime prevention and reducing reoffending. Secondly, existing governance and partnership arrangements provide a significant level of integration and autonomy. The establishment of police and crime commissioners has already devolved policing to the local level. Thirdly, there would be cost and complexity in separating out the existing national structures and arrangements. Fourthly—although admittedly this is a factor that is more easily accommodated—police forces in England and Wales are responsible for tackling a range of crimes and other threats that go beyond the boundaries of a single police force.

At the national level, the strategic policing requirement which applies to police forces in England and Wales sets out the threats which are considered of particular national significance. These include terrorism, organised crime, public disorder, civil emergencies, cyberattacks and child sexual abuse. These threats can require a co-ordinated or aggregated response in which resources are brought together from a number of police forces. Devolution could lead to a weakening of both the regional and national response to these serious crimes. In short, the devolution of policing could lead to a disjointed criminal justice system, adding costs for both the people of Wales and the rest of the United Kingdom.

Amendment 49 would remove the reservation in relation to anti-social behaviour. This would remove our ability to legislate to prevent and address anti-social behaviour through coercive methods such as the tools and powers introduced by the 2014 Act. The subject matter in the Act is intended to reserve coercive responses to anti-social behaviour generally, whatever its form, rather than the detail of the specific orders contained in the Act. The whole approach to anti-social behaviour set out in the Act is intended to encourage the police, councils and other partners to work together to deal with problems quickly. The legislation provides local agencies with a range of different powers and measures and it is for front-line professionals to develop jointly solutions which address the causes of the behaviour and protect victims and communities.

I will listen carefully to the arguments made in this debate. The noble Baroness, Lady Morgan, and the noble Lord, Lord Wigley, seek through Amendment 50 to devolve responsibility to the Assembly for private security. I appreciate the view that private security should be a devolved rather than a reserved matter. I understand those who question why bouncers in, say, Merthyr, Swansea or anywhere else in Wales should be regulated on an England and Wales basis but there are sound reasons why private security is a reserved matter.

First, the security industry is regulated in England and Wales by the Security Industry Authority, an effective regulator which provides consistent standards across borders. In an inherently mobile industry it promotes consistency, maturity and professionalism through, for example, the approved contractor scheme. The licensing regime operated by the authority provides reassurance that those who work in the private security industry have the appropriate qualifications and training and have been subject to rigorous criminal records checks.

Secondly, there are close links between private security and the police, particularly in relation to the night-time economy. The Security Industry Authority has an investigative arm which, in co-operation with the police and other government bodies, tackles criminality in the private security sector, including organised crime. All Security Industry Authority-approved qualifications also include counterterrorism awareness, for example, in looking out for hostile reconnaissance, and the industry is playing an increasingly important role in being the eyes and ears to potential terrorist threats. These current arrangements work well.

Amendment 51 seeks to remove the reservation for the sale and supply of alcohol and the provision of entertainment and late night refreshment. These activities are regulated under the Licensing Act 2003 and the proposed paragraphs preserve the current devolution settlement in respect of all matters covered by that Act. Regulated entertainment includes live and recorded music, plays, films, indoor sporting events, boxing, wrestling and dance performances.

22:30

“Late night refreshment” is defined in the 2003 Act as the sale of hot food and hot drink to the public between the hours of 11 pm and 5 am. The Act includes certain exemptions where the premises are not used by the public, such as the provision of refreshments to guests staying at a hotel, or the provision of refreshments by an employer to an employee.

The 2003 Act provides a framework for licensing based on the promotion of four licensing objectives: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. As such, alcohol licensing is inextricably linked to policing and the criminal justice system; while they remain reserved, alcohol licensing should also continue to be reserved. Maintaining consistency across England and Wales prevents cross-border issues that would be likely to occur as a result of opportunities to exploit differences in licensing laws either side of the border.

Alcohol licensing is devolved in Scotland and in Northern Ireland. The situation there is different because policing and criminal justice are also devolved, thereby allowing them to legislate to prevent and tackle any issues which may arise.

Amendment 55 would devolve responsibility for the Pubs Code and Pubs Code Adjudicator. The Pubs Code regulates the relationship between tied-pub tenants in England and Wales and the six pub-owning businesses that operate 500 or more tied pubs. The Pubs Code Adjudicator is in place to enforce the code. The adjudicator is largely financed by a levy on these six pub-owning businesses. The levy covers administrative overheads, as well as many of the operating costs of individual cases. The cost of setting up a separate system to regulate the tied pubs owned by these businesses in Wales would require either a levy set at an unaffordable rate or a very large public sector subsidy. It may also be possible to operate a levy on Welsh pub-owning businesses, such as Brains Brewery, that fall well below the threshold for the current statutory Pubs Code.

Amendment 56 seeks to remove the reservation that deals with the supply of heat and cooling. It is important to be clear that the reservation is concerned with policy on heat supply, which is analogous to the supply of every other type of energy. Heat is strategically significant and represents almost half of our energy use and around a third of carbon emissions. The reservation of heat supply is not about fuel poverty, energy efficiency or building regulations; it is about supplying heat through policies such as the renewable heat incentive, the heat networks investment project, the combined heat and power quality assurance scheme, and innovation support through initiatives such as the smart systems and heat programme.

[Baroness Morgan of Ely]

I think the noble Lord has decoupled that amendment. We will deal with heating and cooling at a different time.

[Lord Bourne of Aberystwyth]

I apologise. I am grateful for the intervention. In that case, I have dealt with our amendments. I am grateful to the noble Baroness for her timely intervention. I beg to move.

[Lord Wigley]

My Lords, I have great personal respect for the Minister, as he well knows, but it is absolutely outrageous that he should be replying to a debate before the arguments have been put forward relating to the amendments. Amendment 48 in my name, to which he has responded comprehensively before I spoke to it, was the lead amendment in this group on Thursday afternoon when I left Westminster. When I came down here at 1 pm today it had been tacked on to the government amendments, which means that the very substantive issue of devolution of police in Wales has been tucked away without an opportunity for a proper debate.

[Lord Bourne of Aberystwyth]

I apologise to the noble Lord. Had he got up at an earlier stage I would have happily given way to him, but our amendment was the lead one in the group. I certainly would have given way to him if he had asked.

[Lord Wigley]

I accept entirely the Minister’s point that they have been grouped in this way, but when I realised they had been coupled in this way it was too late for me to get the decoupling done. That means that devolution of the police, which was a major issue for the Silk commission, is being tucked away at this hour of the night and has been responded to before the arguments have been put. I intend to put those arguments, even at this late stage of the night, and I shall not truncate what I had to say.

Amendment 48 would remove a reservation and subsequently devolve matters relating to the police in Wales to the National Assembly. As noble Lords will be well aware, the Silk commission, of which the Minister was a member, recommended unanimously the devolution of policing and related matters of community safety and crime prevention. Given that the Minister was so keenly in support of that in the Silk commission, it beats me how he was able to say what he said a few moments ago. It is my contention, shared by many people in Wales, that this Bill should have enacted the Silk recommendations—or at least the unanimous recommendations and in these matters in particular.

To put it simply, Wales, like the other nations of the United Kingdom, should have responsibility for its police forces. I cannot see any reason why police priorities in Wales should be dictated by the UK Parliament and not by the National Assembly. Given that policing is devolved to Scotland and Northern Ireland, I can see no reason why it cannot be devolved to Wales. What makes Wales an exception?

The four police forces are unique within the United Kingdom. They are non-devolved bodies operating within a largely devolved public services landscape. They are thus required to follow the dual and diverging agenda of two Governments. Additionally, all four forces in Wales accept the need to provide a service in Welsh and in English. North Wales Police does this with great effectiveness and is held up as a model among public sector organisations in Wales for its language training support and initiatives. This has largely broken down barriers which were at one time widely felt within Welsh-speaking communities in northern Wales and has created a new climate within which police and public co-operation have flourished.

All four police and crime commissioners, the Welsh Government, the Official Opposition in Wales and even the Welsh Conservatives are in favour of devolving policing to Wales. In fact, the only elected body of people in Wales who share the view of the UK Government are the UKIP AMs elected in May—I am not sure whether they are now unanimous on this matter either.

Transferring responsibility to the Welsh Government would not be the tectonic plate shift that many in this Committee might be inclined to believe. Relationships between the Welsh forces and the UK services, such as the police national computer and the Serious Organised Crime Agency, would continue as at present, as is the case with Scotland. I remind the Committee that many of the public services which are directly relevant to policing work are already devolved. That is the case with regard to highway matters, social services, local government, the ambulance service, youth services, education and training. It makes practical good sense to devolve policing, so that a synergy can be developed with these other devolved services.

Why should the people of Wales not be given the same democratic freedom enjoyed by the people of Scotland? Doing so would lead to greater clarity and efficiency by uniting devolved responsibilities, such as community services, drug prevention and safety partnerships, with those currently held by the UK Government.

The Silk commission was established by the Tories and comprised all four main political parties in Wales, including the Conservative Party. Its members spent two years consulting the public, civil society, academia and industry experts on the powers necessary to strengthen Wales. It received written evidence, heard oral evidence and visited every corner of Wales. It heard evidence from the police themselves and from the Police Federation calling for the devolution of policing, and the report recommended accordingly.

Budget cuts to Welsh police forces have been severe. We have seen a reduction of 1,300 in police officer numbers in Wales since 2010. It is true that these cuts have been across the board, but, as Plaid Cymru has recently discovered, they may well have been more manageable had the formula used to fund the police in Wales been according to population and not to crime figures.

A policing grant consultation launched in July 2015 by the then Home Secretary, Theresa May, was abandoned earlier this year after Policing Minister Mike Penning admitted that there had been a “statistical error” on which several police and crime commissioners threatened legal action. Last year’s formula would have resulted in a £32 million cut to Welsh forces, which. as everyone can imagine, would have caused the Welsh police severe difficulties.

The 43 police forces of Wales and England often have different needs and challenges. Policing is a field for which sophistication and complexity are needed in the funding formula to properly account for the relative needs of each force. The review last year sought to place greater emphasis on socioeconomic data and more general crime figures. Such a formula does not properly consider the workload differences in each constabulary. Figures provided by Dyfed-Powys Police indicate that funding our forces in line with population would result in an additional £25 million for the four forces in Wales. That is the Dyfed-Powys Police figure, not mine.

Of course, if policing were devolved to Wales—a position supported by all four police and crime commissioners—the overall Barnett formula would be applied as for the funding of all devolved public services and based on our population. So by retaining police as a non-devolved service controlled from Westminster, Welsh forces face the prospect of these very significant cuts. This is particularly relevant when we consider that policing is devolved to Scotland and Northern Ireland. Consequently, that new formula will not apply to them. Policing is the only emergency service not to be devolved. I am yet to come across any convincing argument, even after listening to the Minister tonight, for not doing so.

Even at this late stage, I beg the Government to think again and show that they are sensitive to widespread feelings in Wales on the issue, particularly within the police forces themselves, and add this provision to the Bill. It would then start to garner a critical mass which parties in the National Assembly would see as a significant step forward and create a logical framework of devolved services that could better serve Wales. There is no point in me adding more now: the reply has already been given. I write that into the record and I emphasise that I am very unhappy about the way this debate has been handled.

[Baroness Randerson]

My Lords, I greatly regret that we are discussing one of the key features of the Bill at this very late hour but there are things that certainly need to be said on this issue.

I share the concerns of the noble Lord, Lord Wigley, about policing. My party has been firmly committed to the importance of devolving policing to the Welsh Assembly for many years. That is simply a recognition of the reality of the situation. If you talk to senior—and junior—police officers in Wales, you see and hear their feeling of identity with the Welsh Assembly. It is to the Assembly that they look for the structures within which they work on a day-to-day basis. Devolving policing would not prevent them from linking in with, for example, training facilities or on rules and regulations across Britain. I have observed the way in which the police force in Northern Ireland manages to do that very successfully in a very difficult situation, and at a much greater distance from England. It works well.

In addition, it is very important to remember that the funding of policing in Wales comes predominantly from local sources within Wales one way and another. Therefore, it is important that the Welsh Assembly has more than a guiding hand on that.

In addressing the amendments in my name, I also share the Assembly’s serious concern about the impact of reservation 37 on the prevention, detection and investigation of crime. That illustrates the complexity of this situation and the way in which these issues are interwoven. For example, think of the ability within the Assembly’s power to deal with domestic abuse and sexual violence. The Assembly passed its own violence against women Act so clearly has competence within that area. However, it seems that the reservation I just referred to would make it very difficult for the Assembly to act in that area. It is important that we bear in mind the responsibilities of local government in this area as well as those of the police. The whole thing is an interlinked whole, and by not devolving these responsibilities you make it difficult for work to be done as effectively as possible.

22:45

I will refer briefly to the issue of dangerous dogs. Earlier, the Minister referred briefly to the issue of heat and cooling—which I now realise is in a different group of amendments—and its strategic importance. I fail to see the strategic importance of control of dangerous dogs or the confusion there could be over devolving the control of dangerous dogs to the Assembly and hence to local authorities in Wales. The dogs themselves will not be confused by the border, and I dare say their owners have other things on their minds when they find themselves in owning of a dangerous dog.

Amendment 53B—I am slightly puzzled about why it is in this group—inserts fares and ticketing systems as an exception to the reservations on consumer protection. I put forward this amendment because the Bill contains a more detailed description of what the reservation called “consumer protection” means than the current Schedule 7 to the Government of Wales Act.

When the Assembly’s relevant committee looked at this, it was concerned that it is not clear whether the,

“supply of … services to consumers”,

referred to in the Bill applies only within the context of the Sale of Goods Act or whether it is intended to apply to the wider supply of services to consumers generally. If so, it seems that the Assembly would possibly not be able to exert powers on regulation of bus fares or the introduction of smart ticketing, for instance. I suggest that this cannot possibly be described as strategic either and that it is properly part of the Assembly’s powers over the control of bus services. The Assembly already has powers over transport and will have more in future, and it is important that it is given the full armoury of those powers. I would be grateful if the Minister could look at that and say whether clarity can be brought to this issue. It is important that it is confirmed that the Assembly would have powers over bus fares and ticketing systems as well as over other aspects of bus services.

Finally, I cannot sit down without drawing the Minister’s attention to the harsh judgment of the Delegated Powers and Regulatory Reform Committee of this House. It says on the vast list of reservations in the Bill:

“In our view, the dividing line between certain reservations and exceptions is very fine and gives rise to difficult questions”.

It refers to nine pages of detailed restrictions, even with regard to matters that are not reserved. It says that some restrictions are “dauntingly complex”. I note that the Government themselves have tabled eight amendments to the reservations, so they are clearly finding this dauntingly complex as well. The committee also says:

“It is unclear whether the combined effect of the changes will result in the Assembly gaining legislative competence … or losing competence”,

and suggests that all this will therefore be left to the courts to decide. We were trying to get away from all that. I believe that the Bill makes the fatal error of mirroring the current settlement, which was complex, flawed and imprecise.

By trying to mirror the current settlement and failing to give more powers—indeed, to go in reverse on pensions by taking the opportunity to tighten up on those powers—the Government are not going to provide with the Bill the certainty and long-term settlement referred to in the St David’s Day agreement. I therefore urge the Minister not just to look specifically at the amendments I have addressed here but to take a long look at many of the detailed reservations that could never be described as strategic.

[Baroness Finlay of Llandaff]

My Lords, I know that the hour is late. I want to endorse the sentiment expressed so clearly just now by the noble Baroness, Lady Randerson. Although it is late, we have to cover these topics because there is no other opportunity to do so and I am concerned. I have already heard that the Minister is not going to accept the amendment looking at alcohol licensing but I hope that he will at least listen to what I say and agree to meet me after this, because it is terribly important. The noble Lord, Lord Elystan-Morgan, eloquently described the moral geometry and the problem of an utterly local issue being held in a reserved power. I suggest that that applies exactly in terms of alcohol licensing because the health and well-being of the Welsh population require some control over the way that alcohol is sold and supplied. It is widely acknowledged that that is one of the most effective ways of tackling alcohol harms.

The wording of the Bill would appear to be even more restrictive than the current exemption, which would mean that the proposals in the draft Public Health (Minimum Pricing for Alcohol) (Wales) Bill would be a reserved matter, and therefore outside the legislative competence of the Assembly itself. It would seem only sensible to add the protection of health and well-being to the four points listed by the Minister in relation to licensing.

Alcohol remains a major cause of preventable death: the Public Health Wales Observatory has reported that:

“Every week in Wales alcohol results in 29 deaths; around 1 in 20 of all deaths”.

This impact of alcohol puts enormous pressures on health systems. Every week, hospitals handle as many as 1,000 admissions related to alcohol. Emergency departments are straining. When people in Wales go into those emergency departments and see them full of alcohol-fuelled harm and its effects, they ask: “Why isn’t the Assembly doing something about it?”. The answer is that it cannot because the thing that it wants to do—to look at the sale and supply of alcohol—comes outside its powers.

We know, sadly, that alcohol consumption in Wales remains a problem. In the latest Welsh Health Survey, 40% of adults still reported drinking more than guideline amounts in the previous week. There is a pressing need to tackle alcohol misuse, using every tool available to government. That means policies that control the licensing and supply, which are the only way that we can promote sensible drinking. It would also require licence holders to offer a ratio of non-alcoholic drinks to alcoholic drinks on their premises to give people a wider choice—to be social but not to get completely destroyed by the adverse effects of alcohol.

The Bill should provide an opportunity to address health and well-being. The sad thing is that Wales bears the costs of the alcohol abuse, particularly in expenditure on health and social care, yet it is not being allowed to have control over licensing and supply as part of its national strategy. When tackling alcohol harms in Wales, the Assembly is operating with more than one hand tied behind its back. It just seems a completely inexplicable state of affairs.

[Lord Howarth of Newport]

My Lords, it is simply demeaning for Wales that public order and policing should not be devolved. Why should Wales, which has a mature Assembly and is a nation anxious to take more responsibility for its own affairs, not be allowed the same level of responsibility as Northern Ireland and Scotland? I have not heard a good reason. I do not believe that there is any greater necessity to have a single system embracing England and Wales than there is for other parts of the United Kingdom.

If the Government would be a little bolder and allow devolution of responsibility in such matters as drugs and alcohol, everybody might benefit because Wales would have the opportunity to experiment with policy. In the field of drugs and alcohol, for example, we know very well that the existing orthodoxies, practices and policy are not working particularly well. Often they are working downright badly. We have huge problems with regard to drugs and alcohol. Surely it would be better to allow Wales to pioneer and develop policies of its own. Wales would obviously have to take responsibility and a degree of risk, but it is surely better that it should be able to take responsibility and to experiment than that we should simply carry on in Wales with orthodoxies that have failed in the United Kingdom as a whole. No harm has been done by Wales having a degree of independence in education policy—in schooling, for example—so surely that is the right principle.

There will, of course, be questions of resources if more responsibilities, particularly the major responsibility for public order and policing, are to be devolved. In consideration of that we have again to go back to the question of the devolution of income tax-varying powers. We debated that issue earlier this afternoon. I shall very gently make a point to the noble Lord, Lord Crickhowell, who disputed whether a manifesto commitment was being broken by the Government. If he looks at the Second Reading debate in the House of Commons on 14 June, at col. 1653 he will see his Conservative colleagues Mr David Jones, the former Secretary of State, and Mr Chris Davies, the Member of Parliament for Brecon and Radnorshire, bemoaning the fact that the Government have, in fact, broken a manifesto commitment in that regard. I do not want to labour the point, but it ought to be corrected for the record. Certainly we have to consider, in conjunction with the question of what reservations are appropriate and what reservations the Government may decide after all to abandon, the associated question of resources—because it is no good willing the end without enabling the Government of Wales to have the means.

[Baroness Morgan of Ely]

My Lords, I know it is very late, but this a critical group of amendments. This is the first time we have discussed the reservations, and it worth pausing a moment to think about them and the way the Government have approached this issue.

There are a number of reasons why I think the Government’s approach to how they have included certain reservations is lacking. I shall refer to some key quotations. The first comes from a letter from the First Minister to the then Secretary of State for Wales after the Secretary of State announced in November 2014 a programme of work designed to produce a new devolution settlement for Wales. The First Minister expressed his support and said that,

“previously, under administrations of both political colours, the development of a clear and robust settlement has … been hindered by a nit-picking reluctance on the part of particular Whitehall Departments to acknowledge the case for further transfers of responsibilities. It will be important that that reluctance should not re-emerge”.

However, I am afraid we have seen it again.

23:00

Secondly, there is the paragraph from the report published the week before last by the Constitution Committee of this place, which says that,

“further devolution should take place on the basis of appropriate principles, to ensure that the devolution settlements evolve ‘in a coherent manner’, rather than ‘in the reactive, ad hoc manner in which devolution has been managed to date’”.

Again, there is no response to that from the Government. There is no evidence of a clear rationale underlying the scope of the powers devolved by the Wales Bill. We would welcome an explanation from the Government of the principles that underlie and underpin the devolution settlement set out in this Bill—principles that are nowhere to be seen in the Explanatory Notes. The noble Baroness, Lady Randerson, referred to the excellent report by the Delegated Powers Committee, which also noted that there were no such principles and no reason why the Government had done it in this way.

Finally, there was the comment by the then Secretary of State when announcing that his initial draft of the Bill was to be paused. He said that during the pause period the number and scope of the listed reservations would need to be reviewed, and that the case for each one remaining in the Bill would need to be explained and justified. We have not seen that justification.

The difficulties with this schedule of reservations largely result from the failure to act in accordance with those observations. We see that nit-picking reluctance on the part of Whitehall departments to accept the case for transfers of legislative competence to the Assembly, and we see a failure on the part of the Government as a whole to provide an obvious rationale for the inclusion of certain reservations. The detailed explanations of why each reservation is appropriate are almost entirely lacking.

As I said in the Second Reading debate, I did not and do not want my noble friends on these Benches to challenge each and every reservation—even though we could have, because of the lack of a rationale. Many of them—for example those on the constitution, defence, foreign affairs, immigration—of course make perfect sense, as we all recognise, but there are many others that do not make sense. I have put down amendments in respect of some of the oddest of them, but I could have chosen many more.

For advocates of devolution, the argument is often made that devolved Administrations can provide a laboratory of innovation and of experimentation from which other Administrations can learn. The legislation to discourage the use of plastic carrier bags originated in the Welsh Assembly and has now been faithfully copied by all three other legislatures in the United Kingdom. That gives us a great example. But how can innovation flourish if the Assembly is bounded on every side by reservations jealously asserted by Whitehall departments determined to preserve their little empires of control?

We have before us amendments spanning a vast range of topics. We will come to a few tonight, but there are more ahead of us in future days. Many in this group pool the theme of anti-social behaviour, and I will move on to address these topics now. We have not decoupled a lot of them, because we recognise that we are under time constraint, but I will just make it clear that even if we do not speak to all the amendments tonight, we still want explanations on these issues. If we do not have them on the Floor of the House tonight, we want them in writing to the issues that are under review this evening. I reserve the right to return to all the amendments in this group on Report if necessary, as I feel that we have not given them justice at this time of the night. Why on earth are matters such as ticketing and bus services being reserved at a UK level?

To begin with, let us consider alcohol. As we have heard, the Bill as drafted would reserve the sale and supply of alcohol and the licensing of the provision of entertainment and late-night refreshments. The amendments tabled by the noble Baroness, Lady Finlay, propose deleting these reservations and allowing the Assembly to legislate on these matters. The noble Baroness covered this issue, and I agree with everything she said. Let us remember the connection between alcohol and the devolved responsibilities of the Assembly on public health and the NHS. There is a pressing need to tackle alcohol misuse in Wales, and the Government there need the tools to do it.

I shall touch on the issue of the Pubs Code. It is important to note that since its implementation in 2016 the code has attempted to improve relationships across the industry, helping tied tenants to get a fairer deal, providing prospective pub operators with information and enabling better decisions about the business and the agreements they are considering entering into. While the code provides welcome protection, we must recognise that the pub sector in England is different from that in Wales; what works in pubs in England does not necessarily suit the industry in Wales, especially in rural areas. The Minister has given us his answers already, which is quite useful, but we need—and I hope that between now and Report we will get—a better understanding of how the levy that the Minister mentioned works, so we can understand why it would not be appropriate. I did not have a clear understanding of how that levy will work but we will have an opportunity to look at that in the next few weeks.

Policing remains a sensitive issue. At present, policing is the only major front-line public service not currently under the responsibility of devolved Welsh institutions. There is a lack of consensus on this question. Whatever the outcome on policing, though, it is imperative that the Assembly’s existing competence for dealing with anti-social behaviour in the devolved context is not reduced. This is why we think that an amendment relating to anti-social behaviour should be introduced. As drafted, the Bill would reserve matters currently within the Assembly’s legislative competence, such as anti-social behaviour issues relating to nuisance and housing. This would represent a significant reduction in the Assembly’s existing competence. Will the Minister state that he is prepared to narrow the reservation to reflect the current devolution settlement?

The Minister talked about private security—the bouncers of the nightclubs of Swansea. I thank him for his explanation but I just do not buy it. What is all this about needing common standards and regulators? We have common standards for doctors across the whole EU, but health is still a devolved issue. There is no logic to the idea that these common standards cannot be recognised across borders. I contend that reservations such as this undermine the case for the Bill and reveal the Government’s underlying intention to constrain the Assembly’s powers in a way that they would not dare to attempt with the Scottish Parliament. This does not serve the Government’s case well, and I invite the Minister to agree that he should reflect on the many, many reservations we have set out in this group that we think should be deleted. I thank the Minister for setting out those ideas earlier, but I hope he will reflect on what everyone has said tonight because the Government have gone too far on most of these issues.

[Lord Bourne of Aberystwyth]

My Lords, once again I apologise to the noble Lord, Lord Wigley, in particular. I was a victim of the way in which the grouping was set out; because the government amendments were put first, that was the way I felt was appropriate to tackle it. I shall try to respond to points that have been made on these various amendments.

First, no noble Lord should have been taken by surprise by the Government’s attitude on policing. We made it very clear that we have a set agenda, which I have set out. I do not accept that this was somehow a surprise.

I am happy to meet the noble Baroness, Lady Finlay, about the alcohol reservation, to see whether we can meet her concerns. I have spoken to the noble Baroness, Lady Morgan, about the Pubs Code levy—so it did not just come up this evening—and explained that one reason why we do not think it appropriate for devolution is that the way that the levy operates would not be affordable in Wales. I said when speaking to those amendments that that would be to the detriment of Wales, but I am happy to look at it further with her if she wants to revisit it. I am very happy to speak to the noble Baroness, Lady Randerson, about the issue of ticketing and bus services that she raised, to see what we can do.

I accept that a lot of issues are involved here, from bouncers to alcohol the Pubs Code and so on. I accept that it is late at night and that we have covered a lot of territory, although there was considerable discussion on an issue where I think that virtually the whole House was united. We spent a great deal of time discussing that on an earlier amendment, which was certainly not of my choosing, although I was happy to respond for the Government on it.

I hope that noble Lords will feel able not to press their amendments in the group—which is, I appreciate, a considerable number of amendments. The reason for some of the government amendments is that we have been listening and are responding—on teacher’s pay, the community infrastructure levy and so on. I hope that noble Lords accept when they say that the number of government amendments indicates that it is a fluid area that that is because we have been listening. I am happy to indicate that we will listen further, and I hope that that has been my approach, but I am duty bound to let noble Lords know what are regarded as red lines for the Government, where we are unable to meet the wishes of some—perhaps a majority—of noble Lords. However, where we can help and where powerful arguments are being made—as I have indicated have been on a number of amendments this evening—we are happy to move.

With that, I ask noble Lords who have tabled amendments in this group not to press them.

Amendment 47A agreed.

Amendment 47B

Moved by

[Lord Bourne of Aberystwyth]

47B: Schedule 1, page 48, leave out lines 21 to 23

Amendment 47B agreed.

Amendments 48 to 51 not moved.

House resumed.

House adjourned at 11.12 pm.