Wales Bill

Baroness Morgan of Ely Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Howarth of Newport (Lab)]

I have one very naive question, in which I shall simply display my ignorance—but I am puzzled by the explanation given in the Explanatory Notes that Clause 18(1) inserts a new section into the Government of Wales Act which,

“confers common law type powers on Welsh Ministers”.

That is the passage that the noble Lord just quoted. I thought that the judges and the courts created common law; I did not think that the Ministers created it. I would be most grateful if someone, presumably the Minister, could educate me on that point.

[Baroness Morgan of Ely (Lab)]

We have quite a strange group of amendments here but, rather than uncouple them, I would like to suggest a degree of support for the points raised by the noble Lord, Lord Elis-Thomas, and the question from my noble friend. We believe that our amendments, notably Amendment 29 in the next group, will achieve the same result of a better alignment between the Assembly’s legislative competence and Welsh Ministers’ executive powers. I shall save my comments on the general principle of aligning legislative and executive powers until the next grouping.

I shall address the specific issue of fishing, addressed by one of the government amendments in this group. At present, Welsh Ministers have powers to exercise fisheries functions in relation to Wales and the Welsh zone. The Welsh zone includes a zone of 12 nautical miles next to the Welsh coast and the territorial sea, which, because Ireland is to the west of most of Wales, reaches beyond that point significantly only in the south-west of Wales, on the Pembrokeshire coast. Unfortunately, the extent of Welsh Ministers’ powers do not reflect the arrangements in England and Scotland, with those Administrations having executive powers in relation to their relevant areas. My understanding is that the Welsh Government have pursued a solution to this for several years, so it is encouraging that the amendment has been brought forward.

The amendment goes some way to addressing requirements, but it requires further work to work properly. For example, as currently drafted, the amendment would permit functions under Section 5 of the Sea Fish (Conservation) Act but not Section 5A, which permits functions to be exercised for “marine environmental purposes”. A number of other aspects need to be considered. It would be better if the amendment mirrored the scope of the Welsh Zone (Boundaries and Transfer of Functions) Order 2010, which covers the sort of functions required. It would help to achieve a degree of consistency around who controls fisheries management measures. While we support the Government’s amendment on fisheries as far as it goes, we hope that further work can be done on this matter before Report to ensure that the provisions are fit for purpose.

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

My Lords, I thank noble Lords who have participated in the debate on these amendments, and the noble Lord, Lord Elis-Thomas, for bringing them forward. I am well acquainted with his burning passion in relation to these matters, which I know we have discussed many times before.

I turn to the amendments, through which the noble Lord and the noble Baroness seek to extend the common law-type powers of Welsh Ministers. I shall break off and explain what I think that means to the noble Lord, Lord Howarth. The issue here is that, yes, common law grows up over a period of time, mostly, though not exclusively, from the contribution of judges—some of it would be by convention in other ways, I think. Here we are seeking to confer these types of powers on Welsh Ministers. We cannot do that by the effluxion of time, because time has not allowed that, so we are taking what is already the position in relation to the common law powers that exist for UK Ministers and saying that we believe that those types of powers should exist for Welsh Ministers. We are transposing them because we cannot build in the period of time element.

It is our view that these amendments would undermine the protection given to a very limited number of Minister of the Crown functions, which the Assembly may modify only with the consent of United Kingdom Ministers. Clause 18 is a key part of delivering the clear settlement that we are putting in place through this Bill. Ministers of the Crown and Scottish Ministers already exercise these common law-type powers. This clause would put Welsh Ministers broadly on the same footing as Ministers of the Crown and Scottish Ministers by ensuring that in future they too will be able to exercise such common law powers.

The noble Lord, Lord Elis-Thomas, asked a very fair question in relation to the royal prerogative. I am very willing to meet with him to discuss this further but, so far as we have been able to ascertain, the royal prerogative has not been conferred on Welsh Ministers. They derive their powers from transfer of function orders or under the legislation. The noble Lord probably knows more about the royal prerogative than I do; I am very happy to meet with him on this issue.

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[Baroness Morgan of Ely]

My Lords, I thank the noble Lord for setting out some of the issues relating to the transfer of Minister of the Crown functions and the need for an alignment of legislative and executive powers. Many of the amendments in this group make provisions for the executive competence of Welsh Ministers to be aligned with the legislative competence of the National Assembly; that is to say that Welsh Ministers would gain all the relevant executive functions in devolved areas. Given the Government’s intention of producing a Bill that is to provide clarity and coherence to the Welsh devolution settlement, it is difficult to understand why such a simple provision as the alignment of executive and legislative competence has not been included.

The Government have made it clear that they believe that the reserved powers model of devolution is superior to the conferred powers model—that is common ground between us. Why then does the Bill provide for a reserved legislative competence but continue to operate on the basis of a conferred powers model in respect of executive powers for Welsh Ministers?

The continued heavy reliance on transfer of functions orders, with their itemised listing of the statutory powers available to Welsh Ministers, is a relic from the past. I note that the Minister has said today that he will look again to see whether there are any more that he has left out. But it is the principle involved here that we are concerned with. We need now to fully accept the logic of the reserved powers model and align legislative and executive competence in the way set out in the simple and straightforward formula proposed in Amendment 29.

It has become clear that the Government have used the Scotland Act as a guide in developing this Bill. Again, it is therefore difficult to understand why a fundamental principle of the Scottish devolution settlement is not being replicated in this Wales Bill. The Bill provides for the extension of the competence of the National Assembly in a number of areas. Surely as the legislative powers of the Assembly expand, it is essential to align executive powers with them. We recognise that transfer of functions orders will still be needed where there is a proposal to transfer ministerial functions in areas that are reserved—emergency powers are a case in point. However, in the general principle, it is just not clear why the Government have taken this point.

My noble friend referred to the constitutional committee of the Assembly. I now want to refer to the House of Lords Select Committee on the Constitution, which said that:

“If the Government’s intention is to align, as far as possible, the executive and legislative competence of the Welsh Assembly and Government, we question why it is doing so via secondary legislation rather than in primary legislation—as was the case in Scotland”.

The general principle should be that executive powers in devolved areas should be exercised by Welsh Ministers. Why do the Government have such difficulty with this simple proposition? I hope that the Minister will be able to enlighten us.

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[Lord Bourne of Aberystwyth]

My Lords, the noble and learned Lord is absolutely right. I correct myself.

[Baroness Morgan of Ely]

The noble Lord has not clarified to me why he would object to the principle of this alignment between executive and legislative competence. He has told us that he has looked at all these different things, has brought most of them forward, that there is a long list and that he does not think there are many more. But why would he object to the principle of this alignment?

[Lord Bourne of Aberystwyth]

My Lords, with respect, for the reason I have given—namely, that it is fine as a principle but, because it on occasion throws up circumstances that cannot be foreseen, it is wise that we go through it with a fine-toothed comb. If we had not done so, it would create difficulties with the alignment we are seeking on water, for example.

[Baroness Morgan of Ely]

Would it not be possible to do it the other way round and make an exception to the principle? Would that not be easier?

[Lord Bourne of Aberystwyth]

Once we know what the exceptions are, of course, that is the case, but we need to go through them to make sure that there are none of those exceptions.

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Moved by

[Baroness Morgan of Ely]

35A: Schedule 4, page 99, line 46, at end insert—
“Functions exercisable concurrently or jointly with Welsh Ministers4A_ Functions of the Secretary of State under section 272 of the Transport Act 2000 (financial assistance for inland waterway and sea freight) so far as they relate to—(a) the carriage of goods by an inland waterway that is partly in Wales, or(b) the carriage of goods by sea where the carriage concerned is wholly or partly by sea adjacent to Wales (within the meaning of that section),are exercisable concurrently or jointly with the Welsh Ministers.”

[Baroness Morgan of Ely]

I can move it, if noble Lords would like that. Is that acceptable? The issue addressed by this group of amendments is that of the trust ports.

The Bill as drafted enables the Assembly to legislate on ports and harbours and transfers additional executive functions in respect of them from the Secretary of State to Welsh Ministers. This is in line with the Silk recommendations and the St David’s Day announcement. However, the Bill also creates a specific category of reserved trust ports which reach a certain turnover threshold on which the Assembly cannot legislate and over which Welsh Ministers cannot exercise any powers. Therefore, the Welsh Assembly is able to legislate on almost all ports, but a significant one is missing. This reservation was absent from both the St David’s Day Command Paper and the Silk report. Currently, the only Welsh port to reach the threshold stated in the Bill is Milford Haven in Pembrokeshire. The UK Government’s justification for this peculiar reservation is the strategic significance of Milford Haven as a key energy port. They point to the fact that 62% of all liquid natural gas that comes through UK ports is handled by Milford Haven and that the oil refinery and fuel storage facilities at the haven, which are dependent on the port, play an important role in securing supplies of road and aviation fuel.

That is especially odd considering that the UK Government declined to cite energy security as a policy driver for investment in Milford Haven to support the sale of the Murco refinery in 2014. It is worth noting that the trust port of Aberdeen, which could be seen to have a strategic significance equal to that of Milford Haven due to the importance of North Sea oil to the UK, is under the control of the Scottish Government. There is an element of double standards at work here. In Scotland, all ports and harbours are devolved, including Aberdeen.

Reserving the port also brings into play the danger that the UK Government could in future privatise the port authority against the wishes of the people and the National Assembly. Some have already noted their concern about the potential for asset-stripping and fragmentation, were that to occur. Removing any reservation regarding Milford Haven would safeguard from privatisation what some have called “The People’s Port”. It would also bring the Welsh Government’s devolved powers with respect to ports and harbours in line with those of Scotland, with the Silk report and with the St David’s Day announcement. I am therefore proposing amendments that would remove the concept of a “reserved trust port” from the Bill, which would enable the National Assembly to have competence in respect of all trust ports in Wales.

I should like to touch briefly on another amendment in this group, concerning coastguards. There is no rhyme or reason to discuss it here but it is included in this group. I think it is asking the Secretary of State very little to consult Welsh Ministers on the strategic priorities of the coastguard in Wales. This is done in Scotland and perhaps the Minister could comment on that.

[Baroness Randerson (LD)]

My Lords, I support the noble Baroness’s comments. I really cannot see any shadow of logic behind the exception being given to Milford Haven. It makes no economic sense to give the Assembly the power over all the other ports but to make this the one exception. Of course, the exception hurts all the more because, by some strange coincidence, it just happens to be the largest port in Wales.

I strongly believe that Welsh devolution should not be a slavish mirror of Scottish devolution. I accept that there is a long and well-populated border between Wales and England, and it is not always the case that what is good for Scotland is good for Wales. However, I can see absolutely no reason why Milford Haven, which is about as far from the border as you could possibly get, should not be subject to the same kinds of rules to which Aberdeen is subject. It is clearly inconsistent for the Scottish Government but not the Welsh Government to be given this power, and I fear that, yet again, it is a case of Wales being treated as second class.

I also fear that we are going to come across dozens of examples—if not today then certainly in next week’s debates—of the Government simply mirroring the existing messy settlement in the long list of reservations. That will not provide the stable settlement I had hoped the Bill would achieve, and which I believe many of the Bill’s architects had originally hoped for. Therefore, I very much hope that the Government will use the opportunity between Committee and Report to think again about this issue.

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[Lord Bourne of Aberystwyth]

I thank my noble friend for that intervention. He is absolutely right about the need for partnership working between the Government in Wales and the Government at Westminster—as happened in the past, I think he would acknowledge, in relation to disasters that happened in the port. As I said, I have also been involved with the port of Milford Haven through the enterprise zone. It is my understanding that there is co-operation with the Welsh Government at the moment, but there is certainly consultation on certain matters on the part of the port with the Government. It is, of course, important that they are fully engaged. As I have said, I will go and look at it, but without making any promises.

Amendment 98 would require the Secretary of State to consult with Welsh Ministers while setting the strategic priorities relating to the Secretary of State’s delivery, in Wales, of functions under two pieces of primary legislation: the Coastguard Act 1925 and the Merchant Shipping Act 1995. These functions are all reserved matters, exercisable by the Secretary of State for Transport, and are in practice delivered in the United Kingdom by the Maritime and Coastguard Agency, an executive agency of the Department for Transport.

The strategic priorities involved would cover decisions over subject areas such as the 24-hour search and rescue helicopter service provided by the coastguard, and the promotion of seafarer health and safety standards. “Strategic priorities” does not cover operational activities and incident response decisions, which remain the responsibility of the chief executive of the Maritime and Coastguard Agency. Such consultation would normally be effected through administrative arrangements. However, I recognise that the noble Baroness’s amendment mirrors the action taken by the Government through the Scotland Act 2016. Despite having said we will not slavishly mirror things, I will look at that and reflect on the issues raised by the noble Baroness in the amendment. In the light of that, I ask that she does not press her amendments in this group.

[Baroness Morgan of Ely]

I thank the Minister for that and welcome the amendments he put forward relating to the modal grants, the cross-border initiatives and the loans for harbour authorities. I note he said there was an exception and that trust ports would not be allowed to access those grants. I assume they would be allowed to access other UK grants. Perhaps he could clarify that.

[Lord Bourne of Aberystwyth]

My Lords, I think that related just to reserved trust ports, so it would only be those that are reserved in relation to the Milford Haven issue.

[Baroness Morgan of Ely]

I thank the Minister. I noted he said that Milford Haven was essential to the Bill. He then said that he would take another look. I ask him to think about the issues that people have underlined today. The integration of the economy, the environment and safety have all been touched on. The noble Lord was on the enterprise zone for that area. He will therefore be aware of how crucial that interactivity—the interaction between local communities and the local authority—is. All those things need to be co-ordinated. Would it not be a lot easier to co-ordinate that if that power were given to the Welsh Assembly? I appreciate that he will also look at the issue relating to the coastguard and I would be prepared to withdraw the amendment.

[Lord Bourne of Aberystwyth]

My Lords, on the point the noble Baroness raised on the enterprise zone, it exhibited that the current arrangements work very well, but I will have a look at it. In the meantime, I propose that the amendment be agreed to.