Government of Wales (Devolved Powers) Bill [HL]
Friday 28th October 2022
(2 years, 1 month ago)
Lords ChamberGovernment of Wales (Devolved Powers) Bill [HL] 2022-23 View all Government of Wales (Devolved Powers) Bill [HL] 2022-23 Debates Read Hansard Text Watch Debate
Lord Wigley (PC)
My Lords, I thank all noble Lords who are down to speak today. In this, my 12th—and perhaps my last—full year in this Chamber, I feel that it is a timely duty to introduce a Bill which, if passed, would be widely welcomed in Wales’s Senedd across party lines and would lead to more harmonious working between the Senedd and the UK Government. The new UK Government are clearly aware of that need, as reflected by Prime Minister Sunak’s phone call to Mark Drakeford on Tuesday of this week.
The Bill’s purpose is to rebalance the relationship between Westminster and the Senedd by formalising a process which should be respected if, for any reason, there is a need to modify the devolved powers within which the Senedd operates. I appreciate that we work within the framework of a unitary state and do not have the checks and balances inherent in a federal constitution. There is an old saying that power devolved is power retained. That truism—if I may use that phrase without impugning the new Leader of the House—is what makes the provisions of the Bill necessary. The aim of the Bill is to provide greater stability than has existed over recent years, particularly since the Brexit vote, which led to the legislative powers of the Senedd being undermined by actions of the UK Government. On several occasions this was against the wishes of Wales’s Government, and at times appeared in conflict with the legislative framework within which the Senedd operates.
I speak on behalf of Plaid Cymru, but I know that my objectives are shared by Wales’s Labour Government, Labour and Liberal Democrat Senedd Members and Welsh colleagues in this House. I am particularly grateful to the noble and learned Lord, Lord Morris of Aberavon, a distinguished former Secretary of State and Attorney-General, who was down to speak when the Second Reading was scheduled for last month, but who apologises for being unable to be with us today. He has written to me to indicate his support for the Bill, citing our experience during the pandemic as exemplifying the need for intergovernmental co-operation mechanisms to be addressed. I also believe that there are some Welsh Conservatives who accept the case I make today, as it is in everybody’s interests to have both stability and clarity with regard to the Senedd’s powers.
Devolution in Wales has evolved since the referendum 25 years ago last month. Wales has gained greater self-confidence and a greater willingness to take responsibility for the government of our country within the devolutionary framework agreed by Parliament and ratified by two referenda. Of course, the 1997 referendum was carried by a whisker, which reflected feelings among voters that the proposed model of devolution provided a glorified county council. When the powers of the Assembly were augmented, they were confirmed by the 2011 referendum, with a 2:1 majority supporting primary lawmaking powers. Devolution is here to stay, so it is incumbent on us, in Westminster and Cardiff Bay, to make it work. That requires stability and transparency of powers.
The devolved powers to which I refer fall within the framework of the Wales Acts of1997, 2006, 2014 and 2017, but such legislation should not be regarded as tablets of stone. Devolution is a process, not an event, and it must be transparent and mutually respected. If major constitutional amendments are proposed, as with primary lawmaking powers in 2011, of course it is right that they should be subject to a referendum, as would be the case if a substantial body of opinion in Wales supported independence. Likewise, the Senedd can be abolished only if approved by a referendum. That safeguard is built into the 2017 Act.
However, it would be unreasonable to hold a referendum on every small change in the devolution settlement which may be triggered by other events, as was the case with the consequences of Brexit. If we are to accept that that is the case, we must provide a mechanism whereby changes to the existing powers of the Senedd must not be imposed without agreement. This goes to the heart of the devolution settlement. A failure to understand this is more likely than any other single factor to undermine the union in its present form. Westminster must surely accept that having effectively transferred sovereignty for prescribed areas of government to the Senedd, it cannot, on the pretext of the absolute sovereignty of Westminster, then choose to overrule the Senedd or impose its own policies regardless of the wishes of the devolved Parliament in matters that have been devolved. To do so would make a mockery of devolution. There is surely a need for Westminster to respect its own processes.
Sadly, this has not been our experience over the past decade of Conservative rule. From the early days of the Cameron Government, we saw a glaring example of wanton abuse of power. The Welsh Government had saved money by aggravating year-end departmental underspends to create a capital fund, which, if used properly, was to be used to build hospitals and schools. What did the Treasury do? It clawed back the entirety of the saved funds which had not already been committed. I ask in all seriousness: what message did that send to Wales? Then there was the Silk commission’s report set up by the Cameron Government, which recommended the devolution of police powers as is the case for Scotland and Northern Ireland. This was supported by leading Conservatives in Wales, including the noble Lord, Lord Bourne, yet it was rejected. On this, as on other matters, there is a culture of Westminster knows best—that nanny knows best.
This was seen most acutely during the Johnson years. Let me give some examples. First, there was the internal market Bill, which the Welsh Government described as an Act which
“impermissibly, impliedly repeals parts of the Government of Wales Act 2006 in a way that diminishes the Senedd’s legislative competence”.
That was undertaken by the use of Henry VIII-type powers. Then take the Trade Union (Wales) Act 2017. In June, the Government announced their intention to overturn that Act, passed by the Senedd. It was within the competence to legislate in this matter. It was an Act to constrain public bodies in Wales from using agency workers to break a legitimate industrial action by trade unions. Then there was the European Union (Withdrawal) Act, whereby, in circumstances where EU and devolved laws overlapped, powers will transfer to the devolved institutions at the end of the transition period. The Act passed by Westminster allows UK Ministers to freeze the devolved Government’s powers to legislate in those areas.
There are further examples of such undermining of devolved powers in the Elections Act, the Police, Crime, Sentencing and Courts Act, and the way in which the levelling-up fund and the shared prosperity fund are being managed without regard to the Welsh Government’s responsibilities for financial matters within devolved competencies. During the Tory leadership campaign recently, we heard Liz Truss announce that she would take steps to construct the M4 relief road at Newport, despite not having the legislative power to do so.
In all these areas, the UK Government may have a legitimate interest, but any action, particularly legislative action impinging on devolved responsibilities, should surely be taken by agreement between Westminster and the Senedd. The Bill provides such safeguards.
The provisions of the Bill are modest. Clause 2 requires that if there is a proposal to sidestep or override powers that have been devolved, that can happen only if there is a vote in which two-thirds of the Senedd’s elected Members endorse such action. There may well be times when it is necessary to revisit certain devolved powers because of changed circumstances. Where common sense dictates that there should be a pooling of powers for specific functions, either to the UK Government or to a unique mechanism for dealing with specific issues, I have no doubt that elected Senedd Members will be as sensible and prudent as would MPs, Peers and Governments at Westminster—indeed, perhaps more so. However, where there is a fundamental difference, let Westminster accept that it should not impose solutions on an unwilling devolved legislature, so the Bill requires a supermajority of all Senedd Members to endorse any such changes.
The Bill provides that devolved powers should not be amended or withdrawn without their approval by way of a consent procedure, specified in Clause 2, which would entail the need for the support of two-thirds of Senedd Members. Clause 3 requires a Minister who wishes to introduce a Bill, disregarding the supermajority requirement, to have the matter referred to the disputes avoidance and resolution process outlined in the Cabinet Office policy document, The Review of Intergovernmental Relations, published last January, and the Minister is required to lay a report before Parliament at least seven days before the issue in dispute is debated. Clause 4 provides for compensation to be paid, when appropriate, to Senedd Cymru arising from any modification of the powers without the Senedd’s consent.
This is a modest Bill to deal with a strongly felt grievance. It provides a framework to avoid the difficulties we have seen in recent years. The Bill may well need to be fine-tuned in Committee, but I ask noble Lords to give it a Second Reading and to do so in a positive spirit that conveys a message to the Senedd that Westminster is prepared to consider these issues constructively and to find a better way of dealing with them than that which we have seen in recent years. I beg to move.
Lord Hunt of Wirral (Con)
My Lords, I draw attention to my interests as set out in the register. While I recognise that the Bill is well intentioned, I believe it is at best unnecessary and at worst constitutionally meaningless.
May I start by adding a brief historical context? I served twice as Secretary of State for Wales, under both Margaret Thatcher and John Major, between 1990 and 1993, and then again, briefly, in the summer of 1995. Having been born in the Ceiriog Valley, I regarded my time in that job as the greatest possible honour and privilege. On St David’s Day 1979, 11 years before I became Secretary of State, the people of Wales had voted by almost 4:1 against the devolution proposals of the then Labour Government. Over a decade later, I would oft quote that overwhelming result as justification for the then status quo, but I have to say that in my heart of hearts, I knew that opinion was changing. The painfully narrow result in the 1997 devolution referendum left me disheartened. In all candour, I would have preferred a greater margin, even though, at that time, I was arguing against the devolution proposition. We all accepted the result, but I feared that the arrival of devolution would cause division and resentment, rather than the national awakening and sense of unity that its proponents wished to see.
A quarter of a century on, I think we all recognise that devolution is not a stable state of affairs but a process—a continuing process. Certainly, I think there is a stronger sense of nationhood, of national identity, in Wales now than has often been the case in the past. The strong support for devolved decision-making in the 2011 referendum shows that the new system is here to stay, with overwhelming public support.
I still think, however, that the most significant single advance for Welsh identity was not the creation of the Senedd but the introduction and application of the Welsh Language Act and the consequent resurgence, right across Wales, of the Welsh language, bolstered by its place in the national curriculum. It has been transformative.
Most of the credit, of course, should be attributed to my inspirational one-time ministerial colleague Wyn Roberts, the so-called “Bardic steamroller”, who graced these benches as Lord Roberts of Conwy, but I gladly also pay warm tribute to other colleagues who are still with us, most notably the noble Lords, Lord Wigley and Lord Elis-Thomas, for their assistance with that vital legislation.
All of which is highly relevant to the Bill we are discussing today. I understand the motives behind it. As devolution has evolved—separating the Senedd from the Executive, then devolving fiscal powers, then moving from “conferred powers” to “reserved powers” and ultimately recognising the legislature as a true national Assembly—so devolution has become increasingly advanced and entrenched. It saddens me that the noble Lord, Lord Wigley, does not really believe that UK Governments can be trusted to respect and support that process.
I therefore believe the Bill to be unnecessary because the new constitutional arrangements are now so widely accepted and supported, and will endure. The performance of the Welsh Government has been patchy at best, in particular in their handling of the NHS, but no one is looking to take their powers away. The 2011 referendum has clearly established that. If they did, they would pay a heavy political price.
As well as being unnecessary, the Bill also seems to me sadly futile, because, as noble Lords well know, Parliament can always change its mind, and no Parliament may bind its successor. The Bill could be just as easily annulled or rescinded as passed. So, much as I admire the noble Lord and his lifelong quest to raise the standing and pride of Wales and the Welsh people, sadly, I cannot support his Bill.
Lord Murphy of Torfaen (Lab)
My Lords, it is a very sad day in some ways, in that Northern Ireland is probably going to the people in elections. That is awful, because the position there will be polarised and solve nothing. At this point, I urge the Government to continue negotiations to try to avoid the difficulties that lie ahead.
But today, we talk about Wales. Like the noble Lord, Lord Hunt, I was Secretary of State for Wales twice, under Tony Blair and Gordon Brown, but I take a slightly different view from him, although I think that, generally, our positions are very similar. Devolution has, of course, evolved over the past 25 years. I have evolved over the past 25 years. In 1979, I was treasurer of the Labour “No Assembly” campaign. I changed my mind as the years went by and, in the end, I fully supported the extension of legislative powers to the Assembly when we had a referendum some years ago. However, since then, Wales might have changed but I am not convinced that Whitehall and Westminster have.
My experience over the years, both as a Labour Minister and in opposition, is that Governments of both parties, Conservative and Labour, have not really understood the intricacies and details of devolution. Basically, the Sewel convention is failing. That legislative consent Motions are brought forward but then ignored indicates that devolution and the relationship between the Governments here in Westminster and in Wales has failed, and that is proven by actions of the last few Prime Ministers. Boris Johnson, for example, had a rather cavalier attitude towards the devolved Administrations, particularly during the pandemic. Liz Truss had no attitude: she did not speak to them, so that was fairly simple to understand. The present Prime Minister, to his credit, phoned the First Ministers of Scotland and Wales on his first day in office, and I hope that presages a new relationship between Westminster and the devolved Administrations because, as the noble Lord, Lord Hunt, said, they are here to stay.
It is good that over the past few months, the Government have looked at the relationship between the devolved Administrations and Westminster and produced a report on intergovernmental relations. I hope the Government will stick by that, because my experience over the years is that, frankly, the institutions we established for dialogue between the devolved Administrations and Westminster did not work very well at all. That has to improve considerably.
But why this Bill? It is necessary in two ways, the first of which is to highlight what I just described—the bad situation that has arisen over 20 years between Westminster and Wales—and to try to improve it. Secondly, in itself it would mean, I hope, that the farce of legislative consent Motions being passed by the devolved Administrations and then being ignored by the Westminster Government would come to an end. If the Trade Union (Wales) Act 2017 is repealed, that will be a great sadness, not simply because of its intrinsic value but, again, because of the relationship between Cardiff, Edinburgh, Belfast, one hopes, and London.
The problem is that because devolution extends to just 10 million people and 60 million people are effectively under an English Government, that inevitably means that people forget about what happens in the devolved Administrations. Eyes glaze over. I have seen it many times in Cabinet: you talk about Wales and people say, “Yes, that’s Wales; they look after themselves”, but it is not like that any more. It is very different, because the lives of people in Scotland, Wales and, hopefully, Northern Ireland are determined in every respect domestically by their respective Parliaments and Governments.
I hope that, in dealing with this Bill, we look towards a new era of relationships between all the Governments in our country and that we look particularly at the need for what is effectively mutual respect between all those Governments and their public representatives.
Lord Thomas of Cwmgiedd (CB)
My Lords, I, too, warmly welcome this Bill, but I regret the circumstances which have necessitated it. I make just four short observations. As the noble Lord, Lord Murphy of Torfaen, said, part of the problem has arisen from the way in which the Sewel convention and legislative consent Motions have been treated. The genius of our constitution is to try to avoid Bills of this kind and to rely on conventions—they are our bedrock—and it is a sad day when something drives us towards such a Bill. Secondly, there can be no doubt whatever that the powers of the Welsh Assembly, the Senedd, are being gradually whittled away.
It is important to realise that when one is debating Bills relating to the Infrastructure Bank or to the control of subsidies, for example, they involve issues of great importance to the UK, and when one tries doggedly to raise points about the whittling away of Wales’s powers, it is difficult. It does our constitution no credit whatever that much of the success of that depends on the dinner hour. People are appalled to realise that our constitution changes on the basis of the happenstance of where the clause is in the Bill and when it is debated. There should be no whittling away of powers in this way.
Thirdly, there is no legitimacy for what is being done in whittling away the powers. It is interesting to look at the 2019 Conservative manifesto and the true statement in it that the Government had upheld the devolution settlements. It is to the credit of the then Secretary of State that the 2017 Act was a very sensible measure, but they did not, as they promised, strengthen the union or uphold the devolution settlements, so there is no legitimacy in the policy that has been pursued.
Finally, it seems that the Government have taken the view that they want to strengthen muscular unionism, as it is called—a better phrase than that used by the leader of the SNP: “aggressive unionism”. What we should be doing in a country of our kind is working co-operatively together, but absent that co-operation it seems that we are driven to a Bill of this kind. That is the reason, regrettable though it is, why I support what is being put forward. I do so because it is clear that, in increasing numbers, the younger generation—indeed, some of the older generation—is looking to the independence of Wales as a way out of this. I deeply regret that this is happening, but cast your minds back to what has happened in Scotland. We must not allow the same to happen in Wales.
However, there is a degree of hope, although I do not believe that it in any way dispels the necessity of considering the Bill. It is clear—at least it looks like it—that the new Administration believe in co-operative unionism and will return to what we saw prior to 2019. I warmly welcome the approach of the Minister in this House; I hope that her approach to these issues will be the kind of approach that the new Government will follow. I too welcome the telephone conversations that took place but, against the background of what has happened, can we trust telephone communications? I fear not. We need to move to a Bill of this kind. It is deeply regrettable that we have been driven to it but I very much hope that we will put it in place, because the mechanisms that our constitution has traditionally offered do not appear to be working. We are therefore moving inexorably towards what I think all of us in this House will regret: greater legalism rather than a spirit of co-operation.
Lord Hain (Lab)
My Lords, I strongly support the Bill and congratulate my noble friend Lord Wigley on bringing it forward. The devolution settlement in Wales is being systematically sabotaged by this Government. Their decision to bypass the Welsh Government and directly allocate funding for regional and local development via UK-wide funds is a clear assault on Welsh devolution and fails to meet repeated EU referendum promises that Wales
“will not be a penny worse off”
outside the European Union. Ministers plan to leave Wales with less say over less money in an era of aggressive centralisation. The UK Government’s financial assistance powers under the United Kingdom Internal Market Act are designed to usurp functions that sit within the competence of the Welsh Government and the Senedd. Although these powers should never have been enacted, surely they should be used only in a way that has been agreed with the Welsh Government.
Conservative Ministers have overridden the Sewel convention on several occasions in recent years, disrespecting the views of Senedd: first, over the then European Union (Withdrawal Agreement) Bill in early 2020, then through subsequent breaches without even seeking to offer a justification. An example of breaching Sewel was for the United Kingdom Internal Market Act, which, as constituted, means that laws made for England will—with some exceptions and exclusions to be negotiated—have the potential to undermine laws made in Wales applying to goods and services in the same sector, for example on food standards and climate emergency measures.
Economic development has been a clearly defined area of devolved responsibility at every stage of devolution in Wales from 1999 onwards; when I was a Welsh Minister, I helped to establish a Welsh legislature in the Government of Wales Act 1998, and subsequently did so as Secretary of State for Wales in the Government of Wales Act 2006. This area—economic development being devolved—has been respected by every Administration in London for more than 20 years. The current Administration, however, have chosen to use the powers in the United Kingdom Internal Market Act to intervene directly in the Welsh economy by means of the shared prosperity fund and the wider levelling-up agenda, with the express stated purpose of giving the UK Government a higher profile in Wales.
The Welsh Government were excluded from any meaningful involvement in the decision-making processes for these funds; such engagement as there was by the UK Government was superficial, late and limited in its scope. For example, the decision to bypass Welsh Ministers is an overt and deliberate disregard for the constitutional settlement approved by successive referenda and opens the door to progressive, incremental repeal of the devolution settlement with no debate and, more importantly, no consent from the people of Wales.
Moreover, under this Tory Government, Wales has been hit by a tsunami of cuts. According to Lords Library figures, there has been an 11.3% real reduction in the Welsh block grant from 2010-11 to 2018-19, going from £19.4 billion to £17.2 billion. This means that the 11.3% real cut in the Welsh block grant was proportionately much bigger than the 7.2% real cut in overall UK public spending over that period. Tory austerity hit Wales harder than it hit the UK as a whole. Between 2010-11 and 2019-20, the Welsh Government’s budget for day-to-day spending per head of the population fell by 6% in real terms, or more than £300 per person. Despite recent increases, the Welsh Government budget in 2024-25 will be £3 billion lower than if it had grown in line with GDP since 2010-11. Overall capital funding falls in cash terms in each year of the current three-year spending review period and will end up 11% lower in 2024-25 than in 2021-22.
However, the economic context against which the Welsh Government agreed earlier this year the budget and multi-year spending review for 2022-25 has changed profoundly, as we all know, and is now significantly worse. In real terms, and owing to inflation, the Welsh Government’s budget is now worth at least £600 million less than when they set out the spending plans. The Welsh Government have asked the UK Government to update their spending plans in line with inflation but they have so far declined to do so. I urge the new Prime Minister and Chancellor to provide significant extra emergency funding for the Welsh block grant.
Lord Davies of Gower (Con)
Can I just remind the noble Lord of the five-minute speaking time?
Lord Hain (Lab)
I will try to finish as quickly as I can.
The Welsh Government, together with the other devolved Governments, have also been pressing the UK Government for greater flexibilities to manage their budget. Their modest proposals include the automatic ability to carry forward late in-year block grant changes into the following financial year. This would provide more time for devolved Governments to adapt plans to accommodate those changes.
The devolved Governments have also called for increases to limits on borrowing and cash reserves. They face different risks to UK government departments and require more autonomy to act as controllers of their own public spending. The current arrangements can lead to very late changes in budget allocations to accommodate changes in funding driven by circumstances in England rather than in Wales.
Then there is the damaging impact of Brexit on Wales. It was allocated up to £2.1 billion between 2014 and 2020 by the EU’s European Regional Development Fund and European Social Fund. These would have been worth £1.4 billion between January 2021 and March 2025; in fact, there has been a massive shortfall of £772 million on that figure, so Wales has been short-changed in every respect—and that is without the impact of the loss in rural funding as a result of the shortfalls in EU structural funds, which add up to more than £1 billion.
All in all, the idea of making Brexit work for Wales has simply been a myth. It adds up to shabby and arrogant treatment of Wales by this Government; I appeal to Ministers to stop it.
Lord Empey (UUP)
My Lords, I think that I am the only non-Welsh Peer speaking in this debate, although I have Welsh antecedents on both sides of my family and am very proud of them.
It is important that Peers from throughout the United Kingdom participate in these debates, because my anxiety is that we have a patchwork quilt constitution. Devolution is not consistent throughout the United Kingdom. We need a look at our entire constitutional arrangements, including this House and other relationships. I hope that will be how things happen.
“Devolution” of course means what it says; powers are transferred to what is termed a lower level. But what is given can be taken away, and I understand that principle very clearly. As to the point about the Sewel convention and people legislating over the head of the Welsh Senedd, we have spent many hours in this House in the last two years legislating for matters that are devolved in Northern Ireland, even when it was clear that a majority of elected Members there opposed the legislation that was being dealt with in this House and by this Parliament. So there is no consistency in the way that we look on devolution. The Sewel convention is meaningless as far as we are concerned, and that requires a large look at by a proper constitutional review.
We have an attitude of “devolve and forget”. We give powers to these institutions, then Whitehall forgets about it. That has been a consistent problem since 1921, when we first had devolution. It was pushed to a desk at the back of the Home Office and forgotten about. Had this Parliament and Whitehall been watching things and participating properly, we could have avoided a lot of the trouble that we ended up in during the 1970s and 1980s and so forth.
I understand where the noble Lord, Lord Wigley, is coming from, but, rather than have bits and pieces of legislation bolted on, there must be an attitude, a change of mind, in Whitehall, as has been referred to. People need to take devolution seriously. If you do not like it, get rid of it; but if you do devolve, you must respect what you devolve, and that is a missing link. There is a lot of work to do in Whitehall to get the mindset right. I have seen it with my own eyes over the years. There is no institutional memory left about how these devolution settlements first arose. There is just a churn over of officials and Ministers, and nobody seems to have a thread of where we are going and where we have come from.
I cannot avoid the opportunity to make some comments on what has happened in the last few days back home, because it has a lesson for all of us. We are now confronted with an election that nobody wants and that will not achieve anything. Sadly, over the last few months, His Majesty’s Government have not convened any all-party talks and, from February until a fortnight ago, made no attempt at any negotiations with the European Union. Even then, our politicians, who have a role in administering this, were excluded. That is another example. You cannot have such negotiations over people’s heads and exclude them.
I appeal to the Minister to pass on to her colleagues that, instead of wasting millions of pounds coming up to Christmas, in the short term, the Secretary of State, the Government and the Prime Minister should convene talks with the parties and bring those parties into the negotiations with the European Union. We know roughly where the settlement is. We have ideas out there and, instead of punishing the people of Northern Ireland in the middle of the worst crisis that we have ever had, time and money would be better spent holding those discussions. Only negotiations will settle this. Everybody in this Chamber knows that and we should get on with it now. I appeal to the Minister to pass that on to her colleagues in the Northern Ireland Office. That is how we can avoid the crisis—because coming back afterwards, we will have one awful mess, and former Secretaries of State for Northern Ireland in this Chamber know that only two well.
Lord Anderson of Swansea (Lab)
My Lords, there was no need for the noble Lord, Lord Empey, almost to apologise for intervening in this debate, because it affects intergovernmental relations. I agree that there has been too much of an element of devolution à la carte between the regions and nations of the UK and, although there was a bad precedent in Kilbrandon, which died a death, there is a serious case for looking at the UK as a whole in the constitution.
Like many who were educated in Wales, I was brought up with the story about the encyclopaedia, where you looked up Wales and found “For Wales, read England”. If there is any merit in this Bill, it is about taking Wales seriously. Wales appears to be at the bottom, or near-bottom, of all the poverty indices in the UK. We talk so much in this Chamber about levelling up and north-south relations, but few talk about east-west relations and the problems there are in Wales on our doorstep. Yes, there have been cuts which have adversely affected Wales, and there is the effect of Brexit. All that is of interest, but in my judgment it is not relevant to this Bill. Although I respect the noble Lord, Lord Wigley, very much, and normally follow him down most of paths and share many of his prejudices, I do not think that this Bill will take us much further along the path which I favour.
Let us begin with this. As the noble Lord, Lord Hunt, said, Wales has changed massively over the past decades. Who can forget that in 1979 there was a 4:1 majority against establishing an Assembly, and that the 1997 referendum squeaked by only with the last vote in Carmarthen? It could have been very different. But my contention is that there is no serious voice in Wales, even among the Conservative ranks, which wishes now to reverse that devolution settlement. Yes, there are voices which quite properly say that this legislature should not legislate for Wales and that we should leave the devolution settlement intact. I agree, but where is the mischief which is aimed at in this Bill? Where are the serious elements who say that we should reverse the settlement which we have had? I do not see them. I see a general acceptance in Wales of the Assembly. No one would dare to start reversing that process. Therefore, this is somewhat misplaced.
The real argument is surely, as the noble Lord, Lord Empey, said, how to deal with intergovernmental relations. How do we have that respect, which we do not have at the moment, between the different component parts of the UK constitution? Much has been said about the attitude of the late lamented Liz Truss in relation to Wales and the settlement, and we welcome the initiative taken by the present Prime Minister on his very first day, in contacting the relevant ministers outside Westminster. We have come a long way.
I end on this note. There is surely a general acceptance now that this devolution à la carte has not been working well. There is a much stronger argument, which should be favoured, not for building a settlement with lots that will fail, nor even, as in this Bill, a one-way ratchet—that is not likely to happen—but for looking at Wales and the UK as a whole and building a settlement that will last and will have the capacity to move and to evolve, in the process hopefully leading to a much stronger UK.
Baroness Humphreys (LD)
My Lords, I thank the noble Lord, Lord Wigley, for presenting this Bill. These Liberal Democrat Benches extend a warm welcome to it and its contents. In essence, this Bill seeks to protect the powers of the Senedd, ensuring that the powers conferred on it by previous Government of Wales Acts cannot be amended or withdrawn without following either the consent procedure outlined in Clause 2 or the dispute process outlined in its Clause 3.
Why do we need such a Bill? Here is a list to begin with, a list provided by the Commons Library, which says it all: the European Union (Withdrawal) Bill, the European Union (Withdrawal Agreement) Bill, the European Union (Future Relationship) Bill, the United Kingdom Internal Market Bill, the Subsidy Control Bill and the Professional Qualifications Bill. These were all Bills for which the Scottish and Welsh Parliaments withheld legislative consent, indicating that they believe that the UK Government are challenging or usurping the powers of the devolved Parliaments.
All this has not gone unnoticed by the people of Wales. It is partly responsible for the rise in popularity of the YesCymru movement—a movement designed to inform the indy-curious, those who want to know more about independence. We have seen an increasing overreach of the UK Government into areas that are absolutely devolved, and the volume of LCMs the Senedd has considered over the last 12 months has put huge pressure on the Senedd and the Welsh Government’s capacity. The Senedd has only 60 Members at present and a small Civil Service to carry out the functions of both the Commons and the Lords, and with which to protect the powers it jealously guards. This is no easy task.
The consent procedure outlined in Clause 2 has merit. It prevents a Minister of the Crown introducing a Bill modifying the powers of the Senedd to Parliament unless it has been approved by a two-thirds majority of all Senedd Members. This would be a strong indication of the consent and approval of the Senedd and its Members. It could be argued that it would provide a mandate from elected representatives in Wales.
It is clear, however, that the UK Government do not have a mandate from the Welsh people to undermine the powers of the Senedd. The Welsh people have voted in favour of creating and extending the powers of the Senedd in two referenda—the last time in 2011, when 63.4% voted in favour of greater powers. Wales also consistently and overwhelmingly votes for pro-devolution parties, as it did in the local government elections earlier this year. It is also clear that consent is the foundation of trust in the political system, and the UK Government erode trust in our political system whenever they decide to undermine the will of the Welsh people against their consent.
From a Liberal Democrat perspective, this Bill is eminently sensible and there is nothing controversial about it. In a federal system, safeguards such as these would be enshrined in the constitution. My party has always been in favour of a federal UK, where the different nations have responsibility for their own affairs while working together on common issues. We recognise that, for even a federal system to work, a federal Government should not be able to remove the powers of devolved nations on a whim or to bind the union together, as our present settlement allows. I am very much in favour of the provisions in the Bill and, together with my noble friends on these Benches, will give it my support.
Baroness Wilcox of Newport (Lab)
I joined your Lordships’ House three years ago next week, 4 November, the anniversary of the Chartist uprising in Newport—an event of immense importance to parliamentary democracy, when working people demanded their say in how they are governed. Much has changed in the subsequent 183 years, but the principle of people wanting a more democratic and representative political system remains. The political maelstrom that we have seen over the past few months has underlined that need like no other time in our recent history. Our system of governance remains something to support, so that it does not become a platform for individual ambitions scattered at the expense of serving our countries.
I am afraid that successive Tory Governments in Westminster appear to have disregarded the devolution settlement that began in 1999 and has developed over the past 23 years. I am therefore pleased that the noble Lord, Lord Wigley, has tabled this Bill, so that we can bring these issues into the public domain. He has enumerated many salient points, alongside many noble Lords and my noble friends, to support the argument. The noble Lord indeed has a long record in public service, as do my noble friends who were Secretaries of State when I was merely working in a state school. The technical aspects of the clauses in the Bill that the noble Lord, Lord Wigley, has introduced make a great deal of sense in terms of their practical application, based on his lifetime of experience.
The 1 September edition of WalesOnline—one of our most widely read media outlets—reported that a Conservative ex-government Minister admitted that the Welsh public were deliberately misled about how replacement money for former EU funds would be spent in Wales. Quoted in a new book, Independent Nation: Should Wales Leave the UK?, former Welsh Secretary Alun Cairns admitted that the Conservative Government never intended for decisions on spending the replacement EU cash to remain in Wales. Wales used to receive a huge amount of money from the EU before Brexit but, in this book, Will Hayward argues:
“He had no idea how the Welsh Government planned to use this money, because the Welsh Government didn’t know themselves. He had no conversation, no engagement, no respect for devolution.”
The real problem here is a Tory Government who ride roughshod over devolution and are happy to disrespect convention. The Senedd already has the power to refuse legislative consent to UK legislation that affects Wales and it has used that power. Labour is the party of devolution. Unlike the Tory Government, a Labour Government will respect devolution and the Sewel convention. With the commission on the UK’s future, Labour is already exploring ways of modernising and updating our constitutional arrangements, improving the process of intergovernmental relations and putting more power in people’s hands.
Let me give the House one example of how Westminster has ridden roughshod over the Welsh Government with the EU exit regulations. This instance was the European Union (Withdrawal Agreement) Bill in early 2020. That decision was described as singular, specific and exceptional at the time but the Tory Government have proceeded to breach Sewel subsequently, without even seeking to offer a justification with the United Kingdom Internal Market Act. It created an internal market in the UK, but without shared sovereignty in the EU single market. In the UK internal market as constituted, the overwhelming preponderance of England means that laws made for England will have the potential to undermine laws made in Wales that apply to goods and services in the same sector.
Furthermore, the economy has been a clearly defined area of devolved responsibility at every stage of devolution in Wales. While Labour fundamentally respects this, the Tory Government have chosen to use the powers in the UK internal market to intervene directly in the Welsh economy.
For more than two decades, the Welsh Government have been responsible for assessing the merits of projects in Wales that could potentially receive EU money. They have experienced teams of people who, the Welsh Government say, are well placed to know what is needed in particular parts of Wales. The Welsh Government say that having control of this money minimises duplication of projects. The decision to bypass the Welsh Government is an overt and deliberate disregard.
In conclusion, Diolch yn fawr iawn i’r Arglwydd Wigley—my thanks to the noble Lord, Lord Wigley, for bringing this Bill here. However, this approach has been developed independently of the Welsh Government, rather than being something that they have specifically proposed. They have set out in the June 2021 document Reforming Our Union: Shared Governance in the UK their views on a wider set of constitutional reforms, which they believe would protect devolution and, in doing so, strengthen the union. However, the development of this Bill reflects the breadth and depth of concern in Wales around the need for greater protection to be given to the devolution settlements.
I began by quoting a media article and I will end with one. Back in February, the deputy editor of ConservativeHome articulated quite clearly a strategy for doing away with Welsh devolution. What the UK Government should do he said, was simply roll back devolution little by little in a way the public would not notice, and to do so very gradually “without the public perceiving” what the UK Government were doing. I can assure noble Lords that we have noticed very clearly what is being done to us, and the public are very strong about what they want in a Welsh Labour Government run by Wales, for Wales, as election victory after victory has shown.
I hope that the phone call from the latest Prime Minister will show that he is better than his predecessors and start that greater respect for and awareness of devolution, and that we see an immediate change of direction in how relations develop between the two Governments. The Welsh people will expect nothing less.
Baroness Bloomfield of Hinton Waldrist (Con)
Diolchaf i’r bonheddig Arglwydd Wigley am noddi’r Bil Aelod Preifat hwn, sydd wedi annog dadl mor eang ar ddatganoli yng Nghymru. I thank the noble Lord, Lord Wigley, for sponsoring this Private Member’s Bill, which has prompted such a wide-ranging debate on devolution in Wales.
Given the Bill’s subject matter, it is only fitting that we have heard contributions from no less than three former Welsh Secretaries, a number of whom have had more than one tenure in office. I welcome these contributions, along with those made by all other noble Lords. I hope I can do justice to them in the time available.
I am honoured to represent the Government on this matter in my role as spokesperson on Welsh affairs in this place. This is a Government who are placing the UK’s economic stability and confidence at the heart of their agenda. We are absolutely committed to levelling up all parts of our country, ensuring that we build an economy which attracts investment, innovation and new jobs across the UK.
I know that we all hope for more positive collaboration between the UK and Welsh Governments. Our joint work on city and growth deals in Wales, as well as the recent agreement to establish a freeport, are good examples of what can be achieved when both Governments work together. I therefore was also delighted that both the Prime Minister and the Secretary of State for Wales have hit the ground running by speaking with the First Minister this week. I know that they are keen to build on this over the coming months. I hope this perhaps represents a reset of the relationship between the UK Government and the Senedd.
The Bill before us would provide that the powers of the Senedd could not be removed or amended without the support of two-thirds of its Members, unless formal dispute resolution mechanisms were engaged. There is already an established practice of securing the consent of the Senedd for parliamentary Bills that modify its competence. The Sewel convention makes it clear that Parliament will not normally legislate with regard to devolved matters without the consent of the relevant devolved legislature. This includes instances where the Government may seek to modify the legislative competence of that legislature. The Government are firmly committed to this convention; indeed, the Wales Act 2017 recognises it in statute.
In line with this, the Government engage extensively with the devolved Governments on Bills that include provisions within, or that seek to modify, devolved competence, and have always sought the consent of the relevant devolved legislature in these instances. In the vast majority of cases legislation is passed with consent. This includes most recently the Energy Prices Bill, which, despite its expedited passage, received Royal Assent this week with the consent of the Senedd. This is testament to our determination to work constructively with the Welsh Government.
The inclusion of “not normally” in the convention is significant. It recognises that Parliament remains sovereign. The creation of the devolved legislatures was never intended to dilute this sovereignty. Indeed, the Government of Wales Act 2006, which in its original form was taken through Parliament by the noble Lord, Lord Hain, makes it clear that the powers of the Senedd do not affect the power of Parliament to make laws for Wales. So although Parliament would not normally legislate without the consent of the Senedd, or indeed any of the devolved legislatures, the convention recognises that the power to do so resides in Parliament, and it is for Parliament alone to decide whether it is appropriate to proceed with legislation in these circumstances.
When the UK left the European Union, for example, some legislation needed to be made on a UK or GB-wide basis. This included the Professional Qualifications Act and the Subsidy Control Act. Noble Lords will know that I worked on both of those. We worked constructively to manage the concerns raised by the devolved Governments on both Bills but were ultimately unable to secure their support for either. As a Government with responsibility for the whole of the UK, we had no alternative but to proceed without consent.
The noble Lord, Lord Wigley, also referred to various other pieces of legislation, including the United Kingdom Internal Market Act. The powers of Welsh Ministers and the Senedd are completely unchanged by this legislation. In the light of the Supreme Court’s decision to refuse the Welsh Government’s request for judicial review, I call on the Welsh Government to work with us now in safeguarding the UK’s internal market, which is so vital for the Welsh economy.
The noble Lords, Lord Wigley and Lord Murphy of Torfaen, mentioned the Trade Union (Wales) Act 2017. As they both know, employment and industrial relations are reserved matters. This was confirmed by the Wales Act 2017, which I remind noble Lords was passed with the consent of the then National Assembly. The Government made clear their intention in 2017 to remove the Trade Union (Wales) Act through primary legislation when parliamentary time allowed, to ensure that trade union legislation applies equally across Great Britain. That commitment stands.
We will continue to work constructively with the Welsh Government to ensure that Wales enjoys the maximum possible benefit from our legislative programme, and will of course seek the consent of the Senedd when necessary. In particular, I encourage the Welsh Government to consider the benefits of including Wales in some Bills shortly to come before your Lordships’ House. For example, we want Welsh farmers and researchers, including experts in the field at Aberystwyth University, to reap the rewards of the much-needed reforms contained in the precision breeding Bill to ensure that they are not left behind by their English counterparts. We want the Welsh Government to come onboard, although we still recognise the devolved nature of the reforms.
The noble Lord, Lord Hain, and the noble Baroness, Lady Wilcox of Newport, referred to the financial support that Wales has received. The 2021 spending review set the largest annual block grant in real terms of any spending review settlement since devolution. Over the spending review period, the UK Government are providing the Welsh Government with 20% more funding per person then the equivalent UK Government spending in other parts of the UK. The total block grant to the Welsh Government is £18 billion for 2022-23. As we all know, the Chancellor will make his Autumn Statement on 17 November.
In addition, the broad shoulders of the United Kingdom have enabled us to deliver unprecedented levels of funding to the Welsh Government, in particular through the furlough scheme, which protected more than 470,000 jobs in Wales, and the ground-breaking UK-wide vaccination programme. We also invested more than £167 million to level up communities in Wales through the levelling up community renewal and community ownership funds. This is in addition to Wales’s £585 million share of the UK shared prosperity fund, more than £790 million of UK government investment in the four city and growth deals in Wales, which I am delighted to see matches investment from the Welsh Government, and the £130 million fund to finance Welsh business run by the British Business Bank. I endorse the congratulations to the Welsh Government from the noble Lord, Lord Hain, on their commitment to green energy projects. I pay tribute to the leading role that the Senedd has played in achieving this.
The Bill from the noble Lord, Lord Wigley, would constrain parliamentary sovereignty by providing that the powers of the Senedd could not be altered without the support of a supermajority vote, unless formal dispute resolution processes are engaged. I should be clear that the Government have no plans to withdraw or amend the Senedd’s powers; I disagree wholeheartedly with the suggestion otherwise by the noble and learned Lord, Lord Thomas of Cwmgiedd.
The Government are firmly committed to devolution. Over the past decade we have delivered two Wales Acts. These were important moments for devolution and confirm our position that devolution is here to stay. The Acts provided further powers for Wales over transport, the environment and elections, as well as powers to introduce its own devolved taxes. As my noble friend Lord Hunt alluded to, this has seen the National Assembly for Wales mature into the Welsh Parliament—the Senedd—that exists today. Now is the time to end the debate about where powers lie and focus on using all the levers at our disposal to deliver for the people of Wales. The Government have significant reservations about the implications of the Bill for parliamentary sovereignty. We already engage extensively with the Welsh Government and the other devolved Governments on legislation that engages the Sewel convention and we seek the consent of the devolved legislatures.
The noble Lords, Lord Murphy of Torfaen and Lord Anderson of Swansea, referred to intergovernmental relations. I remind noble Lords that the UK Government, under the IGR review, now operate on the basis of the working arrangements agreed as part of that review. Between July and September there were 22 meetings, at which UK Government and Welsh Government Ministers were represented. These meetings—where relationships are built, ideas exchanged and decisions on joint approaches made—are important. Regular discussion about how policy changes in different Governments impact on others is essential for the use of mixed-competence levers to best serve all UK citizens. Indeed, collaboration with the devolved Governments is at the heart of our approach to strengthening the union and delivering the best possible outcomes for people across the UK.
I assure the noble Lord, Lord Murphy of Torfaen, that with the newly appointed Prime Minister’s PPS and three of the four Government Whips in your Lordships’ House having Welsh heritage, there is no chance of the glazing over of any eyes either in No. 10 or in this House. Further, aggressive unionism, as described by the noble and learned Lord, Lord Thomas of Cwmgiedd, is not a phrase that I either recognise or accept. Rather, we are absolutely committed to collaborative unionism.
The noble Lord, Lord Empey, mentioned the dire state of affairs in Northern Ireland and I undertake to alert my colleagues in the Northern Ireland Office to his comments. The people of Northern Ireland of course deserve an accountable, Executive-led Government.
In light of the issues that I have set out, I am afraid the Government are unable to support the Bill.
Lord Wigley (PC)
Diolch yn fawr iawn i’r Gweinidog am ei sylwadau ar ran y Llywodraeth. I thank the Minister for her comments on behalf of the Government. I particularly thank colleagues from all sides of the House for their contributions to this short debate, nine of whom are Welsh and one, the noble Lord, Lord Empey, from Northern Ireland. The noble Lord, whose words we always respect, has spoken on a rather ominous day for devolution in the Province. I noted his comments on the need for a comprehensive constitutional review, and I agree wholeheartedly with that. That sort of review could well address the issues that have been raised.
Clearly, I would be a bold man to expect universal agreement on the detailed contents of my Bill, but it is fair to say that there is agreement that steps need to be taken to deal with the issues and tensions to which I have referred. I am grateful to the noble Lords, Lord Murphy and Lord Hain, the noble and learned Lord, Lord Thomas, and the noble Baronesses, Lady Humphreys and Lady Wilcox, for drawing the attention of the House to the need for an improved system to deal with circumstances where there is disagreement between Westminster and the Senedd on the basis of mutual respect, and to avoid whittling away the powers of the Senedd. I note the outright opposition from the noble Lord, Lord Hunt, to the contents of the Bill, which I am sorry to hear, and the reservations of the noble Lord, Lord Anderson.
I thank the Minister for her response, although she fundamentally based her case on the perception that sovereignty rests here fundamentally and forever, and not in Cardiff. I suppose that is the reality of the situation. That is the problem that we in Wales have to face—is it not?—and it raises all sorts of other questions.
Clearly, being in a party of one in the Chamber, I would be ill advised not to accept that I need to be flexible in Committee, but I want to do so without losing the main thrust of the Bill, which addresses an issue that will not go away. On that basis, I beg to move that the Bill be read a second time.