Wales Bill

Baroness Morgan of Ely Excerpts

Monday 13th October 2014 Lords Chamber

[Lord Crickhowell (Con)]

My Lords, I have followed one basic principle fairly consistently: when one has had major responsibility, one should stand aside when one hands over and not be a nuisance by pursuing the matter much further. After eight years as Secretary of State for Wales, I have deliberately kept out of debates about Welsh affairs and left it to others, so I had not intended to say much during today’s proceedings. My second reason for not saying much is that I am in the middle of some uncomfortable medical tests this week and I will not be here for the whole of this evening’s proceedings, or the proceedings over the next couple of days.

However, I was struck by these amendments and thought that a few words might be constructive and helpful. I listened with a good deal of sympathy to what was said about Clause 1 and the report on reserved powers. That caused me no great difficulty and I shall listen with great interest to what my noble friend on the Front Bench has to say about it. I was, however, somewhat alarmed by Amendment 2A. I was rather relieved when, in his introduction to it, the noble Lord, Lord Wigley, at least qualified his enthusiasm for the proposed new clause. I think that he was suggesting that it was a testing amendment and might not be pursued too vigorously, at least at this stage.

Similarly, I sympathise with some of what the noble Lord, Lord Elis-Thomas, had to say on Amendment 3, particularly his final comments about the pace of change. There are important issues to be considered in the aftermath of the Scottish referendum. I am not unsympathetic to that. I was, however, a bit startled by the omission in the amendment of all the exceptions.

That takes me back, rather neatly, to my doubts about Amendment 2A. I confess that it is a long time since I have looked at the Government of Wales Act 2006. I must have done at the time, but it is not as familiar to me as it clearly is to the two noble Lords who have just spoken. I got it down from the shelf and read Schedule 7. I find the extent of what is proposed in Amendment 2A rather alarming. We see the proposed transfer of, essentially, the responsibilities of the Home Office, including youth justice, criminal justice and the courts, sentencing, legal aid, the Crown Prosecution Service and judiciary, and the prison and probation services. That takes us to some of the responsibilities of my right honourable friend Mr Grayling.

What struck me about these provisions is that many of them involve matters of constitutional significance. As a member of the Constitution Committee, I feel almost certain that if these matters were being pursued with vigour at this time, the Constitution Committee would want to examine them carefully and draw its thoughts and conclusions to the attention of the House. I am pretty certain that we would not want to go further along the road at this time without that kind of advice.

The same goes for Field 38, which refers to,

“the Welsh constitution and electoral arrangements”.

That is broad and sweeping, too. If you want to start on that, it would have implications not just for the constitution of Wales in electoral arrangements but almost certainly for other parts of the United Kingdom as well. Again, therefore, I am sure that those issues would need to be looked at much more closely before we pursued them further.

On the subject of broadcasting, I note only that now that I live about 500 yards from the border of Wales with England, I find myself in the extraordinary situation where my Sky set is directed to England rather than Wales, although I live in Wales. I have to have an adjustment on my set so that if I wish, as I often do, to look at the Welsh news in the morning, I have to switch to the appropriate item. I make that point only because it identifies the fact that broadcasting is not a simple and straightforward matter, confined to only England or Wales. Broadcasting has a much wider sweep and I think that we would want to think a good deal more carefully before we moved down that road.

My only point in rising at this time is to say that, yes, I will listen with sympathy and some interest to what my noble friend on the Front Bench has to say about the report on reserved powers and, possibly, the timetable. However, I urge caution about how far the other amendments may take us. It would be rash at this stage in proceedings on a Bill, which, after all, has already been examined in considerable detail by another place, if we were to sweep on to what would be a major set of changes to the devolution settlement. That might make progress on the Bill more difficult and not easier.

[Baroness Morgan of Ely (Lab)]

My Lords, many of us warned that the referendum vote in Scotland between Second Reading and Committee was likely to change the nature and tone of the debate on the Bill and it has very much turned out that way. The Scottish referendum has changed the tone of that discussion and the discussion of the constitutional development of the UK as a whole, with our hitherto ad hoc approach to constitutional reform found wanting. There is a desperate need now to review the entire constitutional structure of the UK—and Wales, of course, needs to be at the centre of that discussion.

We have to remember that the cri de coeur from Scotland was not just about constitutional arrangements but a cry from members of civil society and the public, who feel cut out of that political process. It was a plea from people to heed the fact that they do not feel as if they are being listened to. We have to recognise the depth of the disillusionment that has developed regarding the nature of government and its relationship with citizens. It is imperative that we now reach a new constitutional settlement that will lay the foundations for a new, reformed democracy throughout the United Kingdom. There has to be a wider process to draw a settlement reflecting the aspirations of all the UK’s constituent parts. It is time for our constitution to be put on a much more coherent footing. It is also important to respect and honour the promises that were made to Scotland during the referendum campaign. The appetite for more powers in Wales has also been stronger.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

Before the noble Baroness moves on from that point—I do not mean to interrupt her speech, in which I find much common ground from a Scottish perspective—perhaps I may offer her one observation, although not necessarily one for her to comment on much further. It is certainly the case that we found in the referendum in Scotland that a considerable number of Scots did not appreciate that the NHS had been devolved to the Scottish Parliament since 1999, under a different model. Perhaps it is not just the fact that the power resides in the institution but the continuing need to have citizenship awareness among the population that is vital. Whichever model is going forward for the Assembly, perhaps that reflection may be of assistance.

[Baroness Morgan of Ely]

The noble Lord makes valid points about clarity about where the powers are and the fact that information to the public is crucial so that they understand who is responsible for what. There is still a degree of confusion about this and we need to think it through in a very clear way if we are looking at a much more structured response to the devolution settlement within the United Kingdom as a whole.

I now turn to Plaid Cymru’s amendment to link the reserved powers to an immediate transfer of the recommendations of Silk 2. It is worth emphasising that the whole Labour Party feels quite positive about the vast majority of the recommendations contained in Silk 2. The case for further devolution of power has been well made by the commission. I thank the noble Lord, Lord Bourne, for his work on that commission and welcome him to the Front Bench. We are delighted to see him there. It is important that people understand that the Welsh Government have also responded positively to the recommendations.

With this amendment, Plaid has gone further than Silk in recommending, for example, the wholesale transfer of power over broadcasting, as was suggested, and energy, where the recommendations by Silk are far more nuanced. We are anxious to support many of the recommendations in Silk 2, but we feel that it would be more appropriate for us to include those recommendations within an election manifesto so that we can have the endorsement of the general public for this additional significant transfer of powers.

On Plaid Cymru’s Amendment 3, I do not blame them for attempting this power grab—that is what you would expect of nationalists—but to remove all current exceptions to current permitted areas of the Assembly would entail a huge extra amount of responsibility and the duplication of roles that are better shared at UK level. It would seem rather unnecessary that in the field of agriculture, where Wales already has legislative competence, we should establish our own legislation on, for example, scientific or other experimental procedures in relation to animals. Do we really want to establish our own agricultural import and export rules? Imagine the bureaucracy that that would entail. For every job that we would have to create to make that work, we would have to cut one from our health or education services or from another area that currently receives funding. We understand what the amendment is trying to do but think that it is going a bit too far.

[Lord Elis-Thomas]

This is about competence. It is the ability to do things, were one wanting to do them in that way. In the United Kingdom, we already have institutions, such as the Joint Nature Conservation Committee, which are virtually federal and in which powers and responsibilities are shared between Scotland, Wales and Northern Ireland. This is not about, of necessity, compelling the Welsh Government or the National Assembly to accept the competence; it is the indication, especially after the Supreme Court ruling of July, that the competence of the National Assembly in the current model is based on those definitions, made by subject in Schedule 7 of the 2006 Act, with exceptions. By deleting exceptions, I sought to highlight the nature of the competence and the possibility of using the reduction of exceptions as a way of translating further powers.

[Baroness Morgan of Ely]

I understand what the noble Lord is saying. The problem is probably that we need a much more detailed discussion about what those exemptions should be and to what extent they should or should not be duplicated. If this is a probing amendment, that is fine—we understand that that is the case. But taking this big step at the moment would be wrong.

Finally, I ask the Minister why an amendment on reserve powers has not been submitted if the Government have changed their position. Why cannot we now get on with the job? We know that there is cross-party consensus on this; let us not waste any more time.

[Lord Rowlands (Lab)]

I support Amendments 1 and 18A, but I do so from a rather different position. I am not a censorious critic of the conferred powers model. In the early days of the devolution settlement it was a reasonable and sensible way in which to confer powers. Indeed, in paragraph 4.3, even Silk acknowledges that there was value in the conferred powers model. The incremental argument made for additional powers made sense; it helped the Assembly and the Assembly Government to have greater competence and capacity in those fields.

However, I am now overwhelmingly in favour of moving to the reserve powers. The way in which additional powers have been granted, the whole issue of taxation and, down the line, the whole issue of Silk 2, make it imperative that we proceed and create the process to the greater reserve powers model. I do so not as a critic of the conferred powers model but from the realisation that, in fact, dramatic change has taken place and with that there is a need for the change of model that we have imposed. Therefore, I cannot quite understand why the Government, although they are not perhaps dragging their feet, have not been willing from the Dispatch Box to confirm that it is their objective, too, and that they agree with and support the processes described in Amendments 1 and 18A to proceed towards the reserve powers model. I hope that we hear a different tone from the Dispatch Box today.

Having said that, I, too, like the noble Lord, Lord Crickhowell, cannot support Amendment 2A—and nor does Silk. There is a much subtler discussion in Silk of the issues of criminal and civil justice than the rather bald list provided in that amendment. So unless it has been tabled with tongue in cheek, I cannot support that amendment. Silk did a very skilful job in assessing in detail, particularly in Chapter 10, the difficulties of transferring civil and criminal justice issues, even in police areas. In Silk one often reads that we will have to have cross-border co-operation—a real, meaningful co-operation between either side of the border—to make anything work in the criminal justice and civil fields. So I cannot possibly support Amendment 2A, but I certainly support Amendments 1 and 18A.