Wales Bill

Baroness Morgan of Ely Excerpts

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

We should come clean to the people of Wales. They should be offered a package. They need to know what the future fiscal framework will be. We need to see the reform of Barnett, and to see the structures of funding and transfer payments across the UK clarified and in place. We need to know what the scope for borrowing will be, taking into account the possibility that interest rates will be higher and that it may not be at all easy to service that borrowing. In that context, the people of Wales should be allowed to take the decision about whether or not they wish to be made subject to an income tax-varying power exercised by their own legislature within Wales.

[Baroness Morgan of Ely (Lab)]

My Lords, I was 12 in 1979 when we had the first referendum on whether we wanted devolution to come to Wales, and I have had a little taster this afternoon of what it must have been like during that campaign. But we have had a different result from that in 1979; the Assembly has been established for 19 years and it is maturing and developing.

I thank my noble friends Lord Murphy and Lord Hain for tabling this amendment because this issue is worthy of debate. I am afraid the people of Wales were told when we established the Assembly that we would put the issue of income tax-varying powers to them in a referendum. We have heard today what a risky business referendums are; I concur—I also have the scars from the recent referendum—and, let me tell you, I am no longer a fan of referendums.

It is worth repeating the question asked by my noble friend Lord Murphy: what has changed since the last Bill that the noble Baroness, Lady Randerson, brought through the House, and what is the difference between that Bill and this one? What has made the Government change their mind on this issue? It is worth drawing attention to the fact that Wales is not a rich country. My understanding is that only about 6,000 people in Wales pay the highest rate of income tax, those who earn over £150,000, while only one in 16 pay the 40p higher rate of income tax. We are not talking about people that it is easy to tax, so it is worth remembering and understanding that this is not going to be a power that is easily exercisable.

However, I beg to differ with my colleagues on this issue, because times have changed. As the noble Baroness, Lady Randerson, said, the Assembly has moved a long way during those 19 years. On top of that, we have the issue of austerity. The IFS said recently that, by 2020, there will have been an 11% cut since 2010 in funding coming to Wales. That is hitting some of the poorest members of our society. Austerity is hitting not only our revenue budgets but our capital budgets. It is all very well to talk about borrowing money from the European Investment Bank, but we do not even know whether we will be able to access that kind of funding in future.

Why do I support the amendment? I support the amendment because, at this difficult time, borrowing against this income stream will be essential if we want to invest in our infrastructure in Wales. There is demand for better infrastructure. People want improvements in Wales. That demand is there. However, it is important to understand—we will come to this in the next amendment—

[Lord Bourne of Aberystwyth]

I am grateful to the noble Baroness for giving way. I do not think that she is speaking in favour of the amendment; she might want to clarify that.

[Baroness Morgan of Ely]

I am not speaking in favour of the amendment because of the next amendment. We need an increase in the borrowing powers because of the funding stream and the devolution of taxation. That is critical to investment in Wales.

We know that the Welsh Government and the UK Government have an understanding and that there will be an agreement on the fiscal framework before we enter the next phase of the Bill. It is important that, in that fiscal framework, we have an offset to the block grant in return for that tax revenue. We need to see how that offset will interact with the Barnett formula, and we need the funding floor to be made permanent. It is critical that we should not accept a situation where Wales will be materially worse off as a consequence of devolving taxation. That would not be good for the people of Wales?

We expect the Minister to negotiate that with the Finance Minister in the Assembly, but can he can assure us that that fiscal framework will be resolved before we have an understanding? We will come in the next amendment to the amount that may be borrowed, but can he assure us that we will be able to have an increase in borrowing powers as a result of the fiscal autonomy that will be coming to Wales?

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in this debate. For the sake of clarity—I correct myself as well—this is a clause stand part debate rather than a debate on an amendment to Clause 17.

I thank the noble Lords, Lord Murphy and Lord Kinnock, for moving and speaking to the Motion that the clause do not stand part. I disagree with their intent. As the noble Lord, Lord Murphy, said, we have been here for nearly 20 years since the first successful referendum in 1997. Circumstances massively changed in that time, as the noble Baroness, Lady Morgan of Ely, said.

Let me try to deal with some of the points. Circumstances have changed since the Silk commission’s first report. The noble Lord, Lord Wigley, has been consistent on this topic, as has the noble Lord, Lord Kinnock. I confess that I have not. I am more like the brother-in-law of the noble Lord, Lord Thomas of Gresford: I have changed my mind on some of these issues. I should set that out first. In the Silk commission, all four parties recognised the need for income tax powers for the National Assembly for Wales. If it was to become a full legislature in the proper sense, it was accepted that it needed income tax powers. Some noble Lords have used the phrase as if it meant all income tax powers; of course, it does not; some income tax powers remain with the United Kingdom. We should make it clear that this is not transferring all income tax powers; it is transferring some. It is a significant change, I agree, but the suggestion made by the noble Lord, Lord Kinnock, for example, that it is a fundamental, apocalyptic change to the way things happen but that it will not be exercised is somewhat inconsistent. It cannot be both apocalyptic and not be used.

I very much hope that it will be used. We cannot necessarily draw conclusions from what has been happening in Scotland. I hope that the National Assembly for Wales will be more imaginative. I was there for 12 years, and there was evidence of a lot of free thinking on many issues, not least in this area, so I do not accept that the power will not be used. We must realise that it is a limited power; it is not transferring all income tax powers to Wales.

I agree with the points made by the noble Baroness, Lady Humphreys, and the noble Lords, Lord Wigley, Lord Crickhowell and Lord Morgan, about circumstances having changed, that perhaps we make use of referendums too freely, and that they are not always appropriate. I feel that if we were to insist on a referendum, it is arguable that we would be holding Wales back. In some quarters—I certainly exempt the noble Lord, Lord Kinnock, from this—it is being put forward as a means of trying to defeat the proposal or slow things down. We would not be doing Wales a great service if we did that. This is a power for a purpose, as was identified by the Silk commission. It is bringing in accountability. It is making what I hope becomes the Welsh Parliament, in name as well as reality, a real Parliament with this element of tax-raising power on income tax.

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Moved by

[Baroness Morgan of Ely]

24: After Clause 17, insert the following new Clause—
“Lending for capital expenditure
(1) In section 122A of the Government of Wales Act 2006 (lending for capital expenditure), in subsections (1) and (3), for “£500 million” substitute “£2 billion”.(2) In section 161(2) of the Government of Wales Act 2006 (commencement), after “120(3) and (7)” insert —“section 122A(1) and (3),”.”

[Baroness Morgan of Ely]

My Lords, to me this is one of the key clauses in the whole Bill. I have made no secret of my lack of enthusiasm for the way the Bill has been written, but we are now living in very difficult financial times. The IFS has claimed that there will be a 3.2% cut, in real terms, in the Welsh budget over the next three years. We have little confidence that the UK Government are going to make up the losses that Wales will face as a result of Brexit. The IFS has said that if they do not make up the losses, that will lead to a doubling of those cuts if EU aid is not replaced after Brexit. I am aware that there has been a promise until 2020, but nothing beyond that.

The devolution of tax powers through the Wales Act 2014 will also enable the Welsh Government to borrow in order to invest in capital infrastructure. That will benefit the economy and communities across Wales. The current level of capital borrowing permitted to the Welsh Government is £500 million. That is based on the devolution of two fairly minor taxes: stamp duty land tax and landfill tax. In the Command Paper published alongside the Wales Bill in March 2014, the UK Government committed to reviewing the level of capital borrowing available to Wales if income tax is partially devolved. This Wales Bill will result in the transfer of an additional £2 billion in tax revenue to the Welsh Government, and so will significantly increase the size of the independent revenue stream available to the Welsh Government. In line with the commitment given in 2014, the Bill provides an opportunity to give Welsh Ministers a more meaningful degree of borrowing power to reflect the significant increase in devolved tax revenues under their control.

The Silk commission, of which the noble Lord, Lord Bourne, was a member, recommended that the Welsh Government’s capital borrowing limit should be at least proportionate to the limit agreed for Scotland, taking into consideration the relative lack of exposure to PFI in Wales. With comparable devolved tax powers, the UK Government agreed a capital borrowing limit of £2.2 billion in the Scotland Act 2012. In line with the recommendation from the Silk commission, a capital borrowing limit of £2 billion would therefore be proportionate to that agreed for the Scottish Government, after taking into account the Welsh Government’s lower exposure to PFI. The UK Government’s position that a limit of £500 million is appropriate, as set out in the Government of Wales Act, is contradictory to the approach taken for the Scottish Government in the Scotland Act. At a time when there are significant economic uncertainties, the ability to bring forward additional capital investment would provide a much needed economic stimulus to Wales. With a capital borrowing limit of £2 billion, the Welsh Government would have the fiscal tools available to support the level of investment needed in Wales.

The Welsh Government and Assembly are anxious to grow up, but it is as if the UK Government still want to treat them like children, telling them how much money they can spend and that they are allowed to borrow only if they tell “daddy” what they are going to spend the money on. An increase in the Welsh Government’s borrowing capacity is absolutely critical, and I for one would find it very difficult to support the Bill without that increase. We understand that this will form part of the discussions on the financial framework, but we strongly recommend that both the Welsh Government and the UK Government come to an agreement on this critical area. I ask the Minister to give a commitment that there will be a revision of the amount that is currently in the Government of Wales Act.

[Lord Wigley]

My Lords, I will speak briefly to Amendment 24 moved by the noble Baroness, Lady Morgan of Ely, which seeks to raise the limit on capital expenditure lending from £500 million to £2 billion. We touched on this issue in our debate on the previous group of amendments.

In the economic climate we find ourselves today, with further uncertainties ahead of us, it is more necessary than ever to have available to the Welsh Government a facility to boost jobs and stimulate growth by way of capital investment—in particular, in capital expenditure on infrastructure projects. Many expect the Chancellor to reflect that sentiment in his Autumn Statement later this month. The Bill imposes on capital borrowing the disappointing limit of only £500 million, which is not enough even to pay for the Welsh Government’s M4 relief road scheme—unless they were to adopt a more sensible route than that currently being advocated.

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[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lords who have participated in the debate on Amendment 24, and I thank the noble Baroness, Lady Morgan of Ely, for moving it.

The amendment seeks to quadruple the Welsh Government’s capital borrowing limit set in the Wales Act 2014 from £500 million to £2 billion. As the noble Baroness is of course aware, borrowing falls within the scope of the funding discussions between the United Kingdom Government and the Welsh Government that are proceeding alongside the Bill. As we know, the Bill cannot proceed without the legislative consent Motion, which is dependent on those discussions being successful.

I refer noble Lords to the communiqué published following the Joint Exchequer Committee meeting in September. The two Governments discussed the rationale for the existing capital borrowing arrangements and agreed to consider changing them. Therefore, I can give the noble Baroness the undertaking that she seeks, and I think it is consistent with what I said in the previous debate. It is unthinkable that the matter would not be raised. However, I think she will understand that I cannot give a specific figure. Indeed, the comments of the noble Baroness, Lady Randerson, perhaps indicate that we do not want to constrain the figure in case the discussions lead to it going higher than that. I have given noble Lords an undertaking, which I will repeat: ahead of Report I will give a summary of where we are on the fiscal discussions, which are going well—including, as I understand it, in this area.

As noble Lords have indicated, there are two key considerations in relation to the borrowing limit. The first is ensuring that borrowing is affordable for the Welsh Government. Of course, the transfer of the taxation powers that we have just been looking at will certainly help in that regard, as will the smaller taxes that have already been transferred. The second is ensuring that borrowing is appropriate within the funding arrangements for the United Kingdom as a whole. I am sure that those two points are being borne in mind during the discussions—which, as I said, seem to be going well.

In relation to Welsh Government affordability, as I have indicated, we need to ensure that the Welsh Government have sufficient independent revenues to manage their borrowing costs. As I said, the new taxation powers that are being carried forward by the Bill will help in that regard. In relation to the wider United Kingdom funding arrangements, it is important to recognise that, within any given fiscal position, additional Welsh Government borrowing will mean less spending in the rest of the UK, including in relation to some of the issues funded for Wales from United Kingdom taxation.

Those are the issues being looked at, and I can give two undertakings: first, we will not get the legislation without the LCM; and, secondly, I repeat the undertaking that I gave at Second Reading—I appreciate that not all noble Lords were here for that—to give a summary of where we are so that noble Lords will be aware of it ahead of Report.

I understand the points that are being made and I think all noble Lords who have spoken—the noble Lord, Lord Wigley, my noble friend Lord Crickhowell, and the noble Lords, Lord Howarth and Lord Berkeley—recognise the need for these powers in order that the Welsh Government can borrow. Of course, it is then for the Welsh Government to decide how they borrow and how they spend the money—that is within their devolved competence.

Given the undertakings I have given, I ask the noble Baroness to withdraw her amendment.

[Baroness Morgan of Ely]

I thank the noble Lord for those undertakings. I was particularly pleased to hear that the amount could even go above £2 billion. We will certainly underline and take note of that. I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Wales Bill

Baroness Morgan of Ely Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Wigley (PC)]

My Lords, the amendment stands in my name and that of the noble Lord, Lord Elis-Thomas. As your Lordships can well imagine, it is a probing amendment which, depending on the response that we receive in this short debate, may escalate into something more substantial. The Bill reads:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly”.

So what does “normally” really mean?

I have searched through the Bill and have failed to find any definition. I am not aware that the term is so commonly used in other legislation that there is a generally accepted meaning as far as use in legislation is concerned. In an attempt to seek clarification, my colleagues in the other place contacted the House of Commons Library, which confirmed that there is no legal status for “normally”. In this instance, it is inherently vague and asking for trouble, because it leaves every interpretation open to the courts—at least potentially so.

I am aware that questions on this matter arose also in the Commons and that the only response which Ministers were able to give was:

“The ‘not normally’ element of both the convention and clause”—

in relation to legislative consent—

“is essential as it acknowledges parliamentary sovereignty”.—[Official Report, Commons, 5/7/16; col. 784.]

Following a further check with the Library, it confirmed that every Act which requires the assent of the Assembly already contains a clause that confirms parliamentary sovereignty. Including “normally” here achieves nothing but confusion. That is simply unsatisfactory. We cannot make a law on such a basis. “Normal” is an immensely subjective term. What is deemed normal by one person may be regarded as highly abnormal by another.

Noble Lords may be aware of my work in the field of learning disabilities. At one time, people with such disabilities were referred to as “mentally abnormal” or “educationally abnormal”. That carried a huge stigma and was rightly consigned to the dustbin of history. The concept of normality is loaded with preconceptions and it should never be enshrined in law, certainly not without a very tight definition.

The word “normally” is a Trojan horse at the heart of this legislation. It is totally at the whim of Ministers at Westminster as to what it means. It enables them to use this loophole exactly as they might wish. It would have been more honest to write into the Bill that a Westminster Minister may intervene just when and how he or she wishes on matters falling into this category of Assembly powers.

This is just not good enough. I ask for the support of the House in removing the term if the Government cannot bring forward an acceptable term or some believable explanation for its existence in the Bill. I beg to move.

[Baroness Morgan of Ely (Lab)]

My Lords, I shall speak to Amendments 7 and 8. These amendments are designed to clarify the circumstances in which the National Assembly’s legislative consent is required for parliamentary Bills. As drafted—as the noble Lord, Lord Wigley, has suggested—the Bill provides that Parliament will not “normally” legislate with regard to devolved matters without the Assembly’s consent. He has just pointed out the difficulties in the definition of “normally”, but neither is there any definition of “devolved matters”. Indeed, elsewhere, the Bill speaks of “reserved matters” or matters that are “not reserved”. It does not use the language of “devolved matters” at all.

This provision closely follows an equivalent in the Scotland Act 2016. Your Lordships might recall that the equivalent provision in the Bill leading to that Act was the subject of rather anxious debate. The concern was that the provision was incomplete in specifying when the Scottish Parliament’s consent was required for UK parliamentary legislation. The provision had been included, following a recommendation from the Smith commission that the Sewel convention be given statutory underpinning. Unfortunately, the Government, in implementing that recommendation, gave the narrowest possible interpretation of the convention in writing it into the Bill.

While it is true that, as originally formulated, the convention proposed that a devolved legislature’s consent was required only in respect of a provision within its devolved legislative competence, it soon came to be accepted that consent should also be required if a parliamentary Bill proposed a modification of that very competence. I will simplify this: if the UK Government wanted to bring in a law on an issue where the Assembly already had the power to legislate—so on agriculture or education—the understanding is that that would not be possible without the Assembly’s agreement. However, if the UK Government proposed to change the Assembly’s powers to legislate, it is not clear that that Assembly agreement would be necessary.

Demonstrating that this was not a matter of controversy, the Government have repeatedly said—and the Minister himself has said on this Bill—that a Bill that radically modified the National Assembly’s legislative competence could not be passed without the Assembly’s formal consent, even though that might not appear obvious from the language of devolved matters. This issue is highlighted in the report on this Bill by the Constitution Committee of this House:

“There were important differences between the Sewel Convention as referred to in the Bill and the Sewel Convention as understood in practice. The Bill framed the Convention in terms narrower than those in which it is usually understood, by failing to refer to that limb of the Convention that is concerned with UK legislation that adjusts the scope of devolved competence”.

It should not be a matter of dispute between the UK and Welsh Governments. The difficulty is that, although the two Governments agree on the circumstances in which the Assembly’s consent is required for parliamentary Bills, the Bill does not reflect that common understanding. The purpose of the amendment, therefore, is simply to define what is meant by “devolved matters”. In so doing, it sets out the agreed circumstances in which the Assembly’s legislative consent is required for parliamentary Bills. Those circumstances importantly include the situation of the present Bill, which modifies the Assembly’s legislative competence.

This is quite a useful clarification that could be achieved without raising any new issues of principle that might be of concern to the Government. I hope at least that the Minister will be able to reaffirm that when a parliamentary Bill comes forward with proposals for modifying a devolved legislative competence, such a Bill—as he has promised with this Bill—can proceed only with the relevant legislature’s formal consent.

[Lord Murphy of Torfaen (Lab)]

My Lords, I support both the noble Lord and my noble friend in their remarks. My noble friend Lady Morgan has outlined very well what “devolved matters” means in the Bill, and the noble Lord, Lord Wigley, quite rightly spoke about the sloppiness of the term “normally”. I think that it opens up huge possibilities for rift between Cardiff and Westminster unless there is a proper definition, if the Government want this, as to when the Assembly is not allowed to pass its comments upon legislation going through this Parliament which affects so-called devolved matters. Is it for the Secretary of State for Wales or a Cabinet committee to decide what is “normal”? No, this is an absolute recipe for conflict between the Assembly and Parliament, and between the two Governments. I hope that the Minister will take this back and either strike it completely from the legislation or, if they insist that there should be qualifications as to when the Assembly cannot utilise its powers, these should be defined very precisely indeed.

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[Lord Murphy of Torfaen]

My Lords, I understand what the noble Baroness said about the charitable status of Welsh universities, and it is important that the Minister goes back and examines whether it is put at risk by this part of the Bill.

I cannot for the life of me understand Amendment 14, which excludes the Higher Education Funding Council for Wales from the Welsh public authorities list. It is not a university; it is a body that administers funding to the universities. It gets all its money from the Welsh Government, so I cannot quite understand the amendment, particularly because a recent review of non-compulsory post-16 education in Wales indicated that this body will be replaced by a new body dealing with funding for higher education and further education, which is a good thing. The amendment is an incongruous insertion when the argument is about universities and, to a certain extent, further education colleges somehow losing their charitable status, independence, right to borrow and so on. I would value the Minister’s comments on why the Higher Education Funding Council for Wales is part of this scene.

[Baroness Morgan of Ely]

My Lords, Schedule 3 will provide some welcome clarity about competence in relation to Welsh public authorities. So long as Assembly Bills meet the competence tests in the Wales Bill, the Assembly will be able to legislate in relation to Welsh public authorities without needing to seek the consent of the UK Government.

Most of the UK Government’s amendments add to or clarify the list, and we support them. We are also very content with the removal of special health authorities. I understand that they will be treated differently and need not be in Schedule 3. I beg to differ with Liberal Democrat Peers who suggested removing from the list of institutions in Wales a reference to the further or higher education sectors, the Higher Education Funding Council for Wales and the regulated institutions under the Higher Education (Wales) Act, to which my noble friend referred.

We do not think it appropriate to support any amendments which might act in such a way as to restrict the legislative competence of the National Assembly in respect of these further and higher education bodies. Having said that, I am very grateful to the noble Baroness, Lady Randerson, for outlining the real concerns of the institutions, which need to be addressed. I thank the Minister for agreeing to clarify this issue and for looking at attempting to reflect that special position and ensure that they can continue with their current status.

However, I am afraid that removing these institutions could create uncertainty in the future over the need for ministerial consent where a provision of an Assembly Act confers functions on such a body or removes them from it. No such uncertainty exists in relation to the current legislative competence of the Assembly, and the uncertainty would not arise in the future if these bodies remained on the list.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords for participating in the debate on this group of amendments. In response to the noble Baroness, Lady Randerson, and the noble Lord, Lord Thomas of Gresford, I will just perhaps restate some of the points I made earlier. Very much on the basis that we will still cover these institutions, if there is a way of looking at the nomenclature, such that we can seek to ensure that they have the continued strength and independence that they enjoy at the moment, we will do that, as that is very much in the best interests of Wales. We have first-class educational institutions at university and further education level, and we want to maintain that but at the same time ensure that they are brought within this part of the legislation.

I take the point that the noble Lord, Lord Murphy, made about the Higher Education Funding Council for Wales and agree it does not seem to be in the same category as the universities. I think the noble Baroness, Lady Randerson, agrees with that. That is different in nature, but if there is a way of protecting the universities and the further education bodies and their charitable status, at the same time as covering them within the Welsh public authorities, universities and so on, I am keen to do that, and will ensure that we look at the Bill in that regard. I thank noble Lords who brought forward these amendments but urge them not to press them at this stage.

Wales Bill

Baroness Morgan of Ely Excerpts

Committee: 1st sitting (Hansard) : House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Judge]

The Minister may well be right, but I listened to the noble Lord, Lord Elis-Thomas, talking about “normal” in the context of Clause 2. At some stage I want to make the point, so perhaps I may just finish making it, because I do not want to take long about it. Please can we look at the matter in the context of Clause 53 and, in particular, Clause 53(6) concerning statutory instruments, powers vested in the Secretary of State, affirmative resolution, and so on:

“unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”?

It totally omits reference to the National Assembly for Wales, yet in Clause 2 we are told that the Government will not normally legislate without the consent of the Assembly. Somewhere along the line, this bridge has to be crossed.

[Baroness Morgan of Ely (Lab)]

My Lords, I tabled Amendments 4 and 5 to establish a justice commission for Wales. Like the noble Lord, Lord Wigley, I apologise for not having the legal background or brilliance of the noble and learned Lords, Lord Hope and Lord Judge, to speak as I would like on the amendments, but I will do my best.

The noble Lord, Lord Wigley, made some relevant and serious points which need to be considered. It is premature to establish a separate legal jurisdiction for Wales, but there is without question an issue that needs to be addressed. I shall briefly summarise the background and explain why the commission is needed and what it would achieve.

There is clear consensus among constitutional and legal experts that there is a problem here that must be addressed. The creation of the National Assembly as a legislature with primary legislative powers, operating within a single jurisdiction of England and Wales, creates a situation which will throw up difficulties in the medium to long term. That single legal jurisdiction, to quote from those who have promoted this Bill in the other place, “has served us well”. Yes, it may have done that, but it has served us well in different times. It served us well when the laws that applied across England and Wales were the same laws—when this place was the only legislature that could enact the laws of the jurisdiction. That is no longer the case and has not been for some time.

It is worth emphasising the point made by the noble Lord, Lord Elis-Thomas. There is no question but that the UK’s Government’s anxiety to protect the joint jurisdiction is the source of many problems in the Bill. We accept that some constraints have been removed, but there remain many reservations and restrictions whose primary purpose is to protect the consistency of law across England and Wales. The problem is that that consistency no longer exists: the horse has already bolted. The reality is that there is already a growing divergence of law which is the inevitable consequence of legislative devolution. The law on education, planning, the environment and social services is now fundamentally different in Wales. Without reform of the jurisdiction to reflect this divergence, there are risks to the rule of law and the administration of justice. By necessity, a single jurisdiction involves a single body of law that extends across its territory. A single jurisdiction implies that the law is the same across that territory. The laws of England and Wales—already vast—must now absorb the increasing divergence between laws that apply only to Wales and those that apply only to England. This is highly complex, so how can we be sure that the citizens will understand the law or even that solicitors, barristers and judges will apply the correct law? This is not a debating point: these are real practical risks and they are increasing.

This issue demands a serious response and the UK Government see no need for concern on the grounds that this single jurisdiction has served Wales well. That misses the point. The shared jurisdiction served Wales well for four and a half centuries when Wales did not have its own legislature. That is no longer the case. The single jurisdiction is out of sync with the way that Wales is governed. It has not caught up with reality. But it is okay, because we have a glimmer of hope. All is going to be fine because the Ministry of Justice has set up a working group—what in Wales we call a committee—of Whitehall officials. The noble Lord, Lord Crickhowell, referred to this. Its birth was not auspicious: it was a party to which the Welsh Government were apparently invited but had not received their invitation. Never mind: it has now met, but we and the Welsh Government are in the dark as to its progress. Will the Minister enlighten us on some key points in relation to that working group? How many meetings has the group held? What engagement has there been with legal practitioners who understand the day-to-day realities of practising law in Wales? What is the work programme and when can we expect to see the report? Will we have it before Report stage?

It is an incredible coincidence that today, when we are debating this, the Welsh Government have received an invitation to the working group’s second meeting. That is great news, but we should be concerned that that progress is not a serious way of demonstrating a commitment to the fundamental importance of this work. This is why we think it is important to bring forward a commission on which the Welsh Government have equal status and to which they are able to bring their expertise and that of those who have real knowledge of the Welsh justice system. We have no confidence that this informal working group will be capable of producing a serious response to the challenges I have outlined. Maybe it will: let us see if we can see something before Report stage. It is important to have a much more credible mechanism for taking this issue forward which will be independent of government and consist of senior judiciary and other practitioners who already have the authority and expertise required. Such a mechanism would provide a forum for developing solutions to problems that cannot be avoided and would be transparent in producing an annual report on progress against an agreed remit.

For all its flaws, one of the positive impacts of this Bill is that we have had to focus our minds on this key issue. It is clear that the single jurisdiction is no longer fit for purpose in its current form. What exactly should come in its place and how it should operate are questions that necessitate detailed analysis of the situation and the evidence of the problems caused. Much thought needs to be given to what is the right way forward. The relevant body should comprise those with most experience of the problems, and legal and constitutional experts adept at finding solutions. These problems will not go away. The proposed commission would provide a mechanism for addressing them. That is the purpose of this amendment. I hope that the Minister will support it.

[Lord Thomas of Gresford (LD)]

My Lords, those of your Lordships who were here at Second Reading will recall that I told the House that when I was in my 20s and full of ambition and great principle, I thought that it was necessary, when drafting a Bill for the parliament of Wales back in 1967, to have a separate Welsh jurisdiction to determine the laws that that parliament would pass. As I indicated at Second Reading, I have changed my view; I think it is a matter of complete practicality. I disagree with the noble Lord, Lord Wigley, who said that the joint jurisdiction has not served Wales well. There is no joint jurisdiction. There is a single jurisdiction and it has operated over four centuries to provide the same standard of justice in Wales as in England. When he was called on to give an example of where it goes wrong, he talked about courts, as though a Welsh parliament would create new Crown Courts west of Swansea or in mid-Wales and would have the funds, judicial power and practitioners to man such a system. It is purely a practical question. To demonstrate that, I quote from the noble Lord’s amendment. Under the heading “A6 Judiciary”, the amendment states:

“All of the judges, judicial office-holders”,

and others,

“become judges … of both … courts”—

that is, the existing judges would continue to operate in both England and Wales. The amendment then proposes:

“All of the persons by whom the jurisdiction of the Crown Court constituted by section 4 of the Courts Act 1971 is exercisable become the persons by whom the functions of both of the courts to which that court corresponds”.

In other words, practitioners and judges in criminal courts could operate in both England and Wales. Where is the separate jurisdiction in that? Proposed new Section A6(3) states that all the existing judges and others should become judges in the courts of both England and Wales. The same situation is proposed for family courts and the legal profession. Therefore, the proposal put forward by the noble Lord, Lord Wigley, is that existing judges and practitioners should operate in the courts of both countries. How could that be possible if there were such a distinct and arcane system of Welsh law that only Welsh practitioners could understand it? Lawyers are accustomed to dealing with separate parts of the law, whether it is Welsh law, administrative law, the law relating to trusts or whatever. Practitioners and judges deal with differences between the laws passed by the parliament in Wales and those passed by the Parliament in England. There is no problem with judges doing precisely that. At the moment an Administrative Court sits in Wales and deals with legislation passed by the Welsh Assembly quite adequately—the Lord Chief Justice and an old friend of mine, Mr Justice Wyn Williams, sat in such a case last week—and no problem arises from that. However, the hare has been started, and for that reason I have advanced, as a matter of practicality, my Amendment 10.

Wales Bill

Baroness Morgan of Ely Excerpts

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

[Baroness Morgan of Ely (Lab)]

My Lords, I am a little overwhelmed and daunted by the fact that I am speaking on the Wales Bill from the Front Bench with no fewer than five former Secretaries of State going to participate today, on top of other Welsh constitutional experts who have been involved in Welsh politics since before I was born.

I am also aware that the Minister leading for the Government was the principal architect in ensuring that the Conservative Party dropped its opposition to devolution in Wales and engaged constructively in the process, and for this he deserves to be commended. In addition to this, he made a distinguished and valuable contribution to the Silk reports, which of course were supposed to have served as the basis for this Wales Bill. Because of my great respect for the Minister, I will make every effort to resist the temptation to ask him why he has changed his mind on so many issues since his transformation from being a key member of the Silk committee to becoming a Welsh Minister.

I declare my interest in this Bill as an elected Member of the National Assembly for Wales. I will start by being kind: the Minister is correct that this Bill is a considerable improvement on the draft Bill introduced in October 2015, which was so fundamentally flawed that the Government had to withdraw it in the face of almost unanimous criticism of its viability. The necessity test in relation to private and criminal law has now been removed, there has been a reduction in the number of reserved areas and there is improvement in the system for Minister of the Crown consents. We welcome the fact that the National Assembly for Wales will be permanent, and that it will now have power to determine its own electoral processes, its size and the electoral system for National Assembly elections. We welcome the fact that, among other things that the Minister outlined, the Assembly will have enhanced powers in energy projects, including fracking, and new transport responsibilities. We are also pleased that the changes were made in response to scrutiny of the draft Bill, and I am particularly pleased that social care regulation and inspection will be under the control of the Assembly, following my call for the establishment of a national care service for Wales last week.

But—and this is a huge but—the Bill in its current form is complex, inaccessible, unclear and will not settle the devolution issue for Wales as was the intention. There has been a failure to incorporate any fundamental or firm constitutional principles within the Bill, such as clarity, stability, legitimacy and subsidiarity. It is poorly drafted and ill conceived. The opportunity to introduce a consolidated Bill, which would have meant that there would no longer be a need constantly to refer to previous Government of Wales Acts, has been missed. The lack of clarity means that there are some significant points where there will still be a need to refer to the Supreme Court to seek clarity on where power should lie—a costly and unnecessary exercise.

We believe that the Bill has been rushed, to no clear purpose, and goes against the spirit, expressed in the Bill, of “collaborative working”. It also fails in its aspirations, which were set out in the St David’s Day proclamation, for a durable and lasting settlement. The unwillingness of the UK Government and Whitehall departments to deliver a settlement that matches the clarity and accessibility of other devolution settlements, in Scotland and Northern Ireland, is also disappointing. I am sure that the Minister will have taken note of the severe criticism of the Bill published by the Constitutional Affairs Committee of the National Assembly, most notably, perhaps, its assertion that for the first time ever there is a rollback of current powers vested in the National Assembly.

We are living in extremely turbulent political times. The EU referendum has thrown the whole legislative framework of this country into turmoil. The pressures on the unity of the union will be tested severely in the next few years as we extract ourselves from the European Union. This constant piecemeal approach to constitutional developments in Wales is disrespectful, and the Government need to call a constitutional convention to prepare a route map in order to keep our United Kingdom together. This constant nibbling away at the constitution will ultimately erode the unity of the United Kingdom and will create divisions more emphatic than the ones which we have just witnessed with the EU referendum.

Integral to the Bill is a recognition that Bills proposed by the UK Government which will impact on National Assembly legislative competence will no longer be allowed to pass in both Houses of Parliament unless they receive the consent of the Assembly by means of a legislative consent Motion. Let me be as clear as I can be: the Government absolutely must respect the view of the National Assembly in relation to this Bill, and in particular the outcome of the legislative consent Motion. We know that central to this will be the need to come to a definitive position on the fiscal framework for Wales. This fiscal framework will need to give an absolute reassurance, not just to Assembly Members but to the public in Wales, that the country will not be worse off financially, now or in the future, if we were to adopt some of the measures suggested in the Bill. This is particularly true in relation to the devolution of income tax. We need an assurance that we can borrow significantly against any income tax devolved, and that we would not get a worse deal than Scotland. It would give us a great deal of reassurance if the Minister could today assure us that the opinion of the National Assembly will be respected in relation to this Bill.

Some parts of the Bill require additional work. There is no point in the Assembly being able to make laws if it then has difficulty enforcing them. It would be useful to have greater clarity on the scope of the Assembly’s ancillary powers to enable it to make laws which are effective and enforceable. Areas in the Bill where unnecessary potential interference is suggested simply seem heavy-handed. This will require intensive intergovernmental working with additional bureaucracy and administration, which contrasts with the Government’s own commitment, and that of the Silk commission and the Richard commission, to the need to cut constitutional red tape. There is an urgent need to strengthen intergovernmental and interparliamentary relations, as has been suggested on more than one occasion.

It is a shame that the Bill has not aligned legislative and executive competence more closely, and that there continues to be reliance on transfer of functions orders. We cannot understand this, and we look forward to the Minister justifying why all functions currently exercisable by a Minister of the Crown within devolved areas cannot be devolved and transferred to Welsh Ministers.

I am aware that there is real disquiet on our Benches about the introduction of income tax powers without the need for a referendum. I know that many noble Lords will want to pursue this issue with vigour.

As the Minister suggested, England and Wales share the same legal jurisdiction. Since 2011, however, a body of Welsh law has already been built which is distinct from that of England and Wales. Given the very low number of Welsh-only laws, we believe that currently it is unnecessary to establish a separate legal system. However, we believe that in time complexities relating to the training of judges and lawyers will need to be considered. The accessibility of the law to ordinary citizens is also paramount. We believe, therefore, that it is necessary to insert a clause requiring the UK Government and the Welsh Government to keep the situation under review.

The move to a reserved powers model is something which in principle we welcome. We had hoped, however, that this would deliver the “clarity, coherence and stability” which the Government had announced was the intention of the settlement. While I believe that we have to accept that there are some areas where introducing a reserved powers model would smooth out the creases of the current devolution settlement and give clear lines, the system is more difficult to accept if the consequence is the rolling back of the powers of the Welsh Government in areas which have hitherto been “silent” areas, where the Welsh Government have consequently been able to act.

One of the worrying aspects of the move to the reserved powers model is that, if a matter “relates to” a reserved matter, it is not within the Assembly’s power to legislate. The question of how a provision will be assessed when deciding whether it “relates to” a reserved matter will be determined using a “purpose test”—in other words, whether the purpose of the provision is devolved or not. We will seek a great deal more clarity on the issue of the purpose test in Committee.

As I suggested, while in principle we agree with the move to a reserved powers model, the next question is, inevitably: do we agree and accept all the areas where the UK Government have insisted on retaining power to themselves? We accept and welcome that the list has been reduced since the draft Bill, but we have noted some attempts to reduce the list by lumping some subjects together which were previously counted individually. For example, architects, auditors and health professionals were previously three categories; now all three are included in one category.

We were promised a more comprehensive rationale and justification for why certain areas were reserved, and we do not believe that the Explanatory Notes currently provide the reasoning that we seek. I will do what I can to stop Members on the Labour Benches from putting amendments down on every reservation so that the Government will have to justify each one on the Floor of the House. However, noble Lords might have noticed that I have some pretty heavy hitters on my side, and I may not be able to stop them. Therefore, if the Minister can come up with better justifications for those reservations prior to Committee, we will be grateful.

It is also worth emphasising that it is not simply a matter of reducing the number of reservations on the list in new Schedule 7A; we should like to see some of the reservations redrafted or exceptions added so that the breadth of the reservations is limited, creating more legislative space for the Assembly in which to act. At this stage I will give just a few examples of where we have some concerns: employment matters with regard to devolved public services; licensing and the sale of alcohol; the community infrastructure levy; railway franchises; and water, which I need not emphasise the sensitivity of since the construction of the reservoir at Tryweryn.

In its current form, the Wales Bill is wholly unsatisfactory. We are disappointed that it has been rushed, both in drafting and in the depth of scrutiny, and in some instances we are seeing powers being taken away from Wales. The people and the businesses of Wales have the right to know and to understand the constitutional and legal framework under which they live and work. In these uncertain and unstable political and economic times, now, more than ever, people need a clear understanding of where responsibility lies. The Bill does not give us that clarity. It is a real shame that the democratic will of the people of Wales, as expressed in particular in the 2011 referendum, has been missed, that the opportunity to produce an aspirational settlement has been missed, and that the chance to produce a vision for the future direction of Wales has been missed.

Despite this, I reassure the Minister that we are well disposed to working with him during the passage of the Bill, and we hope that he will accept our interventions in the spirit of ensuring that we produce the best possible Bill for the people of Wales.

Draft Wales Bill: Silk Commission

Baroness Morgan of Ely Excerpts

Monday 30th November 2015 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, my noble friend is perhaps aware that the draft Wales Bill gives power over this issue, and over elections to the Welsh Assembly in general, to the Welsh Government. That being the case, this is a matter for Cardiff and for Wales to determine.

[Baroness Morgan of Ely (Lab)]

My Lords, tomorrow Wales will become the first UK country to adopt the soft opt-out approach to organ donation. This was approved by the National Assembly for Wales, after a long and comprehensive debate and widespread public consultation. Will the Minister clarify whether the Assembly could have introduced such a Bill under the new measures proposed in the draft Wales Bill; or would it have been forced to go cap in hand to a Minister in Westminster to ask permission because, as the First Minister has claimed, the Government are trying to roll back the devolution settlement for Wales?

[Lord Bourne of Aberystwyth]

My Lords, the First Minister has recently acknowledged that significant progress is being made on the draft Bill. In terms of the consenting provisions, if there is an aspect of legislation from this House to apply in Wales, it needs a legislative consent Motion and vice versa. It is not one-way traffic. Because we are a United Kingdom, it is important to preserve the consenting process. Discussions are going on on the precise scope of that process.

Draft Wales Bill

Baroness Morgan of Ely Excerpts

Thursday 29th October 2015 Lords Chamber

[Lord Bourne of Aberystwyth]

The noble Lord is quite right about the role of that committee of the National Assembly for Wales. It does very good work and of course it will be listened to. As I understand it, the Secretary of State will be giving evidence to the committee to discuss the Bill. I emphasise that the Bill is in draft form at the moment.

[Baroness Morgan of Ely (Lab)]

My Lords, the Welsh Government suggest that only five of the 19 Welsh Government Bills that are now Acts could have proceeded to Royal Assent had the new draft Bill’s provision been in place, either because they would now be outside the limits of the Assembly’s power, or because new UK ministerial consent obligations would have had to be satisfied first. Does the Minister accept that, as the draft Bill stands, the newly proposed reserved powers model of governance has been written in such a restrictive way that it will curtail the Assembly’s current power and lead to an even greater potential for legal conflict between Westminster and Wales?

[Lord Bourne of Aberystwyth]

My Lords, the noble Baroness will not be surprised to hear, as we had a brief discussion on this issue, that I do not accept that. I do not think that that is the case. The First Minister and the Secretary of State are looking at this very closely. It is the case that if a piece of legislation in Wales has an effect in England—for example, adoption agencies set up in England—then it will need the consent of this House. Similarly, if we wanted to do something in Wales in a devolved area, we would need the consent of Wales. That is not unreasonable. Discussions are ongoing; this is in only draft form.

Welsh Assembly Elections 2016

Baroness Morgan of Ely Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Baroness Morgan of Ely (Lab)]

My Lords, I, too, welcome the Minister to his post. I do not think that anybody in Wales—certainly not in the Conservative Party—understands the journey of devolution better than he does. There were those heady days when we both worked together on the advisory group, setting up the standing orders of the Welsh Assembly. It has been very interesting to watch the development of the Minister to where he sits today. I should perhaps introduce my remarks to this debate by declaring an interest, because today I have announced my intentions to the Labour Party: I shall be seeking selection and election as an Assembly Member in next year’s election. I know that I can rely on many Members of this House to give me some great tips on what to expect in that chamber, if I am lucky enough to be selected and then elected. Your Lordships can rest assured now that any changes to the Assembly’s powers and responsibilities will be watched by me like a hawk—as if I was not doing that before.

This debate follows a similar debate that we held in the Lords last week, where I acknowledged that there was an increasingly positive attitude towards devolution in Wales but that we were far from having the kind of appetite for devolution demonstrated by the Smith commission. So on devolution, for Wales do not read Scotland. Wales has to establish its own path to devolution and the gradualist approach to it is one with which the Labour Party wholeheartedly agrees. This is not a never- ending process; there are limits to how far we are prepared to go in the devolution of power, as a party absolutely committed to the future of the union.

Many aspects of the first Wales Bill, which reflected to a large extent the views of the Silk commission, on which the Minister served, will be implemented in time for the Welsh Assembly elections next year. While there are experts in universities and political institutions—and, dare I say it, this House—who are fascinated by issues of constitutional settlement, it is worth remembering that the vast majority of the public who will cast their votes in next year’s elections will be determining their choice on the basis of who best stands up for Welsh public services and who can best deliver jobs and growth. It is of course the Labour Party. I do not know whether I am allowed to say that in the Lords, but there we have it. The constitutional debates remind me of some sailors I see when I visit the lovely harbours around Wales. There are always people fixing or painting their boats, or repairing their sails. At some point, it would be nice to see them actually sail somewhere; well, the Welsh Government are going somewhere. They have, through intervening and not letting the markets determine everything, created 17,000 job opportunities through the Jobs Growth Wales fund and 500 police support officers to mitigate against police cuts. They have funded free breakfasts for schools, making sure that children from the poorest homes are able to concentrate in their classes. But as this House excels in constitutional debates, I shall return to that theme now.

Following the passing of the Act, for the first time the Welsh Government will have the power to raise their own taxes. The consultation on the collection and management of stamp duty and landfill tax is well under way. In addition, an immense amount of work has already been undertaken to establish a Welsh revenue authority. Funding is of course an issue that still needs to be addressed. I do not buy into this idea that we are at the right place on funding at the moment. However, today I want to focus my comments on other aspects of devolution and to look at Silk 2, which made 61 recommendations. Many of these have been taken up by the St David’s Day agreement that was the precursor to the Wales Bill. Perhaps the Minister could let us know what we can expect on the timing, as he has suggested. Is it a full Bill or a draft Bill and what is the timetable, so that I might know whether I will be here or not?

One of the key issues that was recommended, and which thankfully has been taken up by the St David’s Day agreement, was the proposal to move towards the reserve power of government. The pros and cons of this system have been well rehearsed in this Chamber but I return to the theme that I alluded to in the debate last week since we now have the right Minister in place, who might understand the issues better. It is about whether in the process of drawing up the reserved powers list, the Minister can give a categorical assurance that there will be no grab for power by Whitehall of powers that have already been devolved.

I gave the example last week of the fact that in Annex B of the St David’s Day agreement, civil law and procedure is a subject listed as a reserved matter but the Human Transplantation (Wales) Act is legislation which has amended civil law. Will civil law be reserved or devolved? If it is reserved, as suggested in Annex B, will there be an attempt to pull back powers such as those in the Human Transplantation (Wales) Act? It would be good to hear what the thinking is here. I will give another example. Aspects of equality legislation have already been devolved but others have not. Will we therefore see all aspects of equality law being devolved or will they all be reserved? I have to warn that any attempt to haul back powers to the centre will be fiercely resisted.

A further concern is the implication of the Supreme Court’s decision against the introduction of an asbestos Bill for Wales and how that reflects judicial attitudes towards devolution. I am aware that I could get into some hot water, with my learned friend on the Cross Benches, the noble Lord, Lord Elystan-Morgan, being such an expert. I am so pleased to see him back in his place. However, it is worth considering the implications of the judgment for the devolved settlement in Wales and the constitution of the UK as a whole. The asbestos Bill was an attempt by the Welsh Government to recover medical costs from past employers, and their insurers, whose staff or members had contracted asbestosis in order to compensate the NHS in Wales for treatment. This was knocked down by the Supreme Court, by a judgment of three to two. The court decided that the Bill was outside the subject matter competence of the Government of Wales Act.

On the issue of competence, the question was whether the Bill related to organisation and funding of the National Health Service, which is one of the subjects in Schedule 7G. The noble and learned Lord, Lord Mance, and the majority of the Supreme Court interpreted the meaning of the subject under consideration by reference to the other subjects under the same heading. If the same approach were adopted in respect of other headings, it could result in a substantial clawing back of the Assembly’s competence. It is worth contrasting this view with the minority view expressed by the noble and learned Lord, Lord Thomas. In his view, the Bill had two objectives. The first was to,

“withdraw the requirement that the Welsh NHS continue the delivery of the benefit to employers and their insurers of not having to meet the cost of medical treatment and care of an employee where the employers are responsible for causing asbestos diseases as tortfeasors”.

I am sure my learned friend could tell us what that means, but I looked it up and it means:

“A civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act”.

Secondly, it created a mechanism to collect the costs.

The noble and learned Lord, Lord Thomas, argued that these were clearly within the subject matter competence. The more worrying aspect for the Assembly of the judgment of the noble and learned Lord, Lord Mance, is that it appears to suggest that it is legitimate for the court to investigate the extent to which Assembly legislation is in the public interest, and also to investigate the sufficiency of the consideration given to legislation by the Assembly before it is passed. This approach does not hold true for England. The noble and learned Lord, Lord Thomas, powerfully suggested that each democratically elected body must be entitled to form its own judgment about public interest and social justice under the structure of devolution, and there is no logical justification for treating the views of one such body differently from others.

The asbestos case had implications of a commercial nature—who knows whether this might have had a bearing on the judgment? Will the Minister respond to that judgment and tell the House whether it will be a consideration when formulating the Wales Bill that we can expect in this place?

Human Transplantation (Wales) Act 2013 (Consequential Provision) Order 2015

Baroness Morgan of Ely Excerpts

Wednesday 4th March 2015 Grand Committee

[Baroness Morgan of Ely (Lab)]

My Lords, I thank the Minister for outlining the order. The Welsh Government have for a long time rightly been concerned about the number of people who have been critically ill and died while waiting for a suitable organ to be donated.

The UK as a whole has not had a great record in the past in terms of organ donors, and despite a huge push by the Organ Donation Taskforce to increase significantly the number of donors, the UK continues to have one of the highest family refusal rates in Europe. After detailed research and investigation, the Welsh Government decided to change the law in Wales, as the Minister outlined, so that the public were deemed to have given their consent to use their organs unless they had opted out of the system. Obviously, there are exceptions to this and these are outlined in detail in the Human Transplantation (Wales) Act.

The rights and wrongs of whether it is a good idea to have this system of presumed consent are not under scrutiny today, although I agree with the noble Baroness, Lady Finlay, that it is worth looking at how successful this is going to be in Wales. Of course, this is a matter on which the Assembly has decided to legislate. My understanding is that the need for this SI is due to the fact that Wales is anxious—correctly, in our view—to ensure that there will continue to be a cross-border flow of organs and tissues across the UK. The change proposed means that organs from Wales will continue to be able to be used in England and Northern Ireland. It is worth noting, as the Minister pointed out, that the law does not need to be changed in relation to Scotland.

I would like to underline some of the points made by the noble Baroness, Lady Finlay. If Wales is introducing this, presumably we are proportionately going to be doing more heavy lifting in terms of organ donation than the rest of the country. That is good—we in Wales are helped out by the rest of the country very often—but as the noble Baroness, Lady Finlay, underlined, there is a cost to this and it would be useful to know whether there will be an additional contribution from the NHS in England. Has any negotiation been undertaken with NHS England in terms of additional help as a result of that cost? We know that Wales could do with the help in financing the NHS.

The Labour Party is in agreement with this order and we give it our support.

[Baroness Randerson]

My Lords, I thank the noble Baronesses, Lady Finlay and Lady Morgan, for their comments and for their support for this order. I will do my best to answer them in detail.

The noble Baroness, Lady Finlay, asked about preferential donation. As she knows, with her considerable expertise and experience, organs are donated unconditionally and allocated to sick patients on the basis of their clinical need. You cannot name an individual or individuals to whom you would like your organs donated when you join the NHS donor register, but a requested allocation could be possible at the time of your death if there was someone close to you who was waiting for an organ transplant. The noble Baroness made reference to a potential increase in the number of donors as a result of the deemed consent system. On the basis of statistical probability, approximately 15 extra donors a year are likely to become available. Donors tend to donate several organs, so it is estimated that this would help between 45 and 60 recipients.

There has been a considerable increase in the efficiency and co-ordination of organ donation and transplants in recent years, partly because of the efforts that the Government have made to increase the number of organs available. There is a commitment to ensure that organs continue to flow across the border; indeed, the whole purpose of this order is to ensure that that continues. I know that the Welsh Government are committed to that, as are the UK Government.

The noble Baroness, Lady Finlay, asked what England is doing to increase the number of donors. Since 2008 and up to April last year, there was a 60% increase in the number of organs donated in the UK and a 47% increase in transplant rates. That is significant progress, although the UK Government firmly acknowledge that there is more to be done. A new, seven-year UK-wide organ donation and transplantation strategy was jointly published by the four UK Health Ministers and NHS Blood and Transplant in July 2013. I hope that this reassures noble Lords that the Government are committed to working closely with the three devolved Governments and to increasing consent rates.

The UK continues to support work to increase donation and transplantation rates further, particularly promoting collaborative work among organisations to raise awareness of donation in the black, Asian and minor ethnic populations. The noble Baroness made reference to that. I was interested and pleased to see in the Commons Lobby yesterday a stall from Transplant 2020, with literature and an expert clinician available to encourage Members of this House and of the other place to sign up but basically to discuss the issues associated with organ transplantation. The literature given to me referred to the need for greatly improved rates of organ donation among BME communities.

The noble Baroness asked whether the UK Government would move in any way towards a similar scheme, or discuss that. I think we would all acknowledge that the debate in England is at a much earlier stage than the debate in Wales, which has gone on for a significant number of years and has been subject to very wide consultation, but I can commit to the fact that the UK Government will look closely at the impact on donor numbers of the work that Wales has been undertaking.

The noble Baronesses, Lady Finlay and Lady Morgan, referred to costs. The increase in the number of beds required will, I am told, be minimal, and the Act will not increase the need for critical care beds. The increase in the number of donors will pay for itself over 10 years because the organ donation system is efficient and reduces hugely the costs of care for people suffering from organ failure. It will take some years for that to work through, but it is important to bear in mind that organ donation reduces the costs not only of healthcare but of social care in many cases, as well as the impact on families and the individuals concerned.

The noble Baronesses asked what England will do to reimburse Wales for the increased costs of intensive care beds. Each UK hospital receives up to £1,000 for every donor or potential donor in order to help with intensive care costs. Discussions are already under way across the four countries on the best way in which to fund the increase in the number of donors and transplants.

I hope that with those comments I have satisfactorily addressed the concerns of both noble Baronesses, and I join them in the concerns that they have raised about the need to, by whatever method, ensure that we increase the number of donors and particularly concentrate on the two issues that they outlined—first, the high family refusal rates, which have proved to be extremely difficult to deal with, and, secondly, the low donation rates among BME communities. I commend the order to the Committee.

Government of Wales Act 2006 (Amendment) Order 2015

Baroness Morgan of Ely Excerpts

Tuesday 13th January 2015 Grand Committee

[Baroness Morgan of Ely (Lab)]

I thank the Minister for outlining the changes proposed. When the National Assembly for Wales was established, it was one of the first legislatures in the world to have sustainable development as a duty within its founding principles.

The Welsh Assembly has already established a reputation as a pioneer in the area of sustainability. It successfully introduced a 5p charge for carrier bags in 2011—a brave yet successful move that has led to a 76% drop in bag usage. In fact, you feel very guilty going to the shops today in Wales if you do not carry a reusable bag. This legislation is being copied by other legislative bodies across the UK. Charging for plastic bags is just one symbol of what can be done in the area of sustainability. Recycling rates have rocketed in Wales and there is a commitment to encourage public bodies to buy local food.

The Welsh Government are currently required to promote sustainable development in their policies and to produce a scheme on how this will be achieved. Wales retained the independent commissioner role when the UK Government decided to end the UK Sustainable Development Commission and has since established the post of Commissioner for Sustainable Futures, ably and competently led by Peter Davies and supported by a strong team in Cynnal Cymru.

However, it is clear that embedding sustainability as the central organising principle when it comes to policy development and delivery at Welsh Government level has not occurred to the extent that was hoped. It is generally agreed that there is a need to strengthen the procedures and governance structures to ensure that sustainability is seen not just as a reporting process but a central theme in policy development. On top of that, it is worth noting that the duty to act sustainably applies only to the Welsh Government and does not have any traction across the wider public sector. To that end, the Welsh Government have introduced a Well-being of Future Generations (Wales) Bill. Ambitious it may be, but there is nothing wrong with ambition.

Whether they give it the kind of resources that may be necessary is obviously a matter for the Assembly. That Bill is due to be agreed, as I understand it, in the spring of this year. It will establish a new statutory sustainable development body with legal powers. It will also ensure that not just Assembly bodies but wider public sector organisations make progress to contribute to the well-being of a sustainable Wales. In addition, the new Bill will be in step with global developments being aligned to the UN process of establishing global sustainable development goals, which will be set this year and will apply to all nations.

We therefore wholeheartedly agree to the request to allow the National Assembly of Wales to amend Schedule 7 to the Government of Wales Act 2006, which will enable the Assembly to make modifications to Section 79, relating to sustainable development. It is important that this right is given to allow amendments to ensure that the new legislation does not simply add a layer of requirements on government but will contribute to the formation of a holistic, clear framework that does not duplicate but builds on the experience of applying the original requirement of sustainable development in the Government of Wales Act.

[Baroness Randerson]

My Lords, I strongly welcome the support that there has been for the concept behind the order before us today. I remind noble Lords that it is of course our job to facilitate the Bill that several noble Lords have referred to, rather than to discuss the Bill itself—but I will of course answer noble Lords’ questions.

The noble Lord, Lord Wigley, referred to the unelected nature of this House, which is something that might divide opinion here. I entirely understand his comments but will say to him that there is considerable expertise in the House—a lot of it in relation to Wales—gathered here this afternoon. We have a very valuable role to perform in scrutinising legislation, and it is important that we continue to take that role very seriously.

The noble Lord asked whether the Bill was currently outside the competence of the Assembly. What we are doing is enabling the Welsh Government to bring forward an amendment that would allow them to change their competence. The Bill, as it currently stands before and is being discussed by the Assembly, is within its competence. The Welsh Government want to amend it to extend the competence very slightly—I emphasise “very slightly” because this is marginal. The noble Lord, Lord Rowlands, referred to that very point in his comments.

There was a previous order in 2010, and indeed one in 2007, when the second Government of Wales Act came in. However, like the noble Lord, I hope that we will get to a reserved powers position soon and that that will create a tidier devolution settlement that will make such orders unnecessary in future. However, whether or not we have to pass another order like this is entirely up to the Welsh Government. This is being done at their request, and if they identify in any other legislation that they are taking through at the moment that they need those additional powers, or a change in powers, it will behove us to facilitate that and to enable it to happen by passing these orders through both Houses.

The noble Lord, Lord Rowlands, said the Bill was ambitious. I will point out that the Assembly has always been ahead of the curve on sustainability, because when it was established it was given a sustainability duty, which was exceptional at that time. The noble Lord also asked about costs. There are already local service boards that will fulfil much the same functions, although they do not have the sustainable development duty in the same way as is proposed now, so the costs might not be as great as one might assume. Having said that, this issue is not for us but for the Assembly.

My noble friend Lady Humphreys asked about the stage the Bill is at. It is currently at stage two of the scrutiny process in the National Assembly and is expected to be completed in March. The noble Lord, Lord Rowlands, asked about the Wales Sustainable Development Charter, which all sectors can sign up to and adopt. It follows the principles of sustainable development and currently there are private/public and third sector signatories to it.

The noble Lord, Lord Anderson, expressed concern about the resources involved. Once again I say to noble Lords that this is an issue for the Welsh Government and the Assembly. The 2006 Act was indeed passed in a different context, and I would point out to the noble Lord that the reason the section has to be amended by this order is a hangover from the days when the Assembly had only executive powers and did not have legislative competence. The Wales Act 2014, which we have just passed, does not affect this directly and it is hoped that, assuming we move as this Government intend—and for which we have support across the House—to a reserved powers model, there will be a fresh start with a clearer set of powers for the Assembly.

The noble Baroness, Lady Morgan, pointed out the interesting culture change we have all undergone in Wales as a result of the 5p plastic bag charge. Over the Christmas Recess I found myself explaining to some friends in England how extraordinary that culture change has been. It is a small but very important example of the importance of ambition for sustainability —but, once again, our job here is to facilitate that ambition by enabling the Welsh Government to amend the Bill so that they can promote the responsibility and the duty towards sustainability rather than observe it. I commend the order to the Committee.

Wales Bill

Baroness Morgan of Ely Excerpts

Monday 24th November 2014 Lords Chamber

[Baroness Morgan of Ely (Lab)]

As this is our final opportunity to discuss the Bill, I would like to thank the Minister for her co-operation on it. We knew when we started on the Bill back in July that the Scottish referendum could impact on the nature and tone of the debate, and that has indeed been the case. The very fact that we have so many people in here today talking about the Bill tells us something. The scope of the devolution debate across the whole of the UK has changed since September. It feels as if this Bill is slightly out of date even before the ink has dried. It is, however, another welcome step in the process of devolution for Wales. It is clear that it is not only the Scottish referendum that has changed the tone of this debate during its passage, but the appointment of a new and more conciliatory Secretary of State. We very much welcome the shift in tone since his appointment.

I take this opportunity to thank colleagues on all sides of the House, especially people on the Labour Benches, for their co-operation and support on the Bill. In particular, I thank my noble friend Lady Gale, of Blaenrhondda, for her sterling work and active support on the Front Bench. I also thank officials in the Wales Office and Catherine in the Labour office for their work. In particular, I applaud the co-operation afforded by the Government Front Bench, led by two extremely distinguished experts on the issue of devolution in Wales. In particular, we are extremely pleased that we have managed to find a resolution to the issue regarding the reserved model power of government, and we look forward to seeing the fruits of the department’s work on 1 March. Thank you for also agreeing to the issue of votes at 16 in the referendum on tax powers.

The devolution debate is far from over. The Labour Party is in favour of a constitutional convention to iron out some of the anomalies across the UK that many noble Lords have talked about today. If, and when, we form the next Government in 2015, the Labour Party has also committed itself to presenting a new Wales Bill, pushing the boundaries of the devolution settlement further. This obviously needs to take into account the changes across the UK. We know that the coalition Government have agreed to present a cross-party approach in March to further devolution for Wales. We would like a cast-iron assurance that both the Conservative Party and the Liberal Democrat party will, if they are through some terrible tragedy elected to run the country again after the next election, match Labour’s commitment and bring forward a new Wales Bill in the next Parliament.

[Lord Elystan-Morgan]

My Lords, I assume that we have already dealt with the amendment and are now dealing with the totality of the Bill on Third Reading?