Wales Bill

Baroness Randerson Excerpts

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

[Lord Morris of Aberavon (Lab)]

My Lords, I rise to make a brief point which I believe will be of practical importance. Some three years ago I gave evidence to the Constitutional Committee of the Welsh Assembly. It was my view that while there was undoubtedly a growing body of Welsh legislation the time was not yet ripe to deal with it in the way proposed by the noble Lord, Lord Wigley. There will come a time when we will have to grapple with it but it is certainly not a matter of urgent importance now and there are serious practical points of difficulty in moving in that way.

I say this against the background that much has been done in an administrative way; I join in the tributes paid to the former Lord Chief Justice, the noble and learned Lord, Lord Judge, who moved so much of the work of the higher courts to Wales, followed by the present Lord Chief Justice, Lord Thomas of Cwmgiedd. The work has been done and it has met many of the problems, one of which is that more cases of this kind should be set down in Wales. The process should start there as opposed to being started in London.

The serious issue is the consolidation of legislation already passed by the Welsh Assembly. Over the years that the Assembly has been in existence, Act after Act has been passed, particularly during the most recent period. Any practitioner, be they in Wales or in England, who has to advise a client in Wales on a matter arising in Wales concerning property, employment and so on has to turn up a whole host of literature in order to give proper and responsible advice, otherwise he will be accused of being negligent. I hope that before it is too late the Welsh Assembly will use its powers and resources to consolidate the existing legislation and thus make it easier for practitioners and ordinary litigants.

[Baroness Randerson (LD)]

My Lords, I rise with some trepidation among so many distinguished lawyers to make two brief points about the argument we have been having. The Government have acknowledged that there is a problem by setting up this working party, but I am not persuaded that they have done anything other than offer the working party as a sop to those who are concerned about this issue. If the working party was going to be rigorous and reach any kind of useful conclusion for us, it would have met several times by now. Otherwise it is up to the Government to say to us today that it will not be reporting this autumn but, rather, at some point in the distant future because it has discovered that there is a great deal of work to do. I therefore support the amendment tabled by my noble friend Lord Thomas because I believe that three years is a reasonable timescale for a commission to look rigorously and thoroughly at all the aspects of this.

I also endorse the comments of the noble and learned Lord, Lord Morris of Aberavon. The consolidation of Welsh law is becoming increasingly urgent. I know that the Minister is aware of it, having been a Member of the Welsh Assembly. Because the Assembly puts things on its website on the internet, they are not available in the printed format in which most law is available. People can find it difficult and complex to seek out legislation in order to find out which is the most recent version of the law. That issue needs to be discussed. Moreover, something that no one has mentioned so far in the debate is EU law, much of which has been incorporated into Welsh Assembly legislation. Once we have the great repeal Bill, I would ask the Minister how it is anticipated that this will be recognised within the single jurisdiction and whether the working party is considering the issue of EU law.

[Lord Bourne of Aberystwyth]

My Lords, this has been a wide-ranging debate on what is clearly an important matter. I turn first to the contribution of the noble Lord, Lord Wigley, who put his case very passionately, as he always does. He addressed some of the important issues in this. Perhaps I may make several points, the first of which relates to a matter he raised and which, I think, was touched on by the noble Lord, Lord Carlile, or perhaps it was the noble Lord, Lord Thomas of Gresford. The administration of the courts is quite separate, I think, from the issues of the actual sources of law and separate jurisdiction. The second point I would put to him and indeed to other noble Lords is that to some extent this is a question of semantics. We can say now that we have a separate jurisdiction because we have separate arrangements in relation to Wales. That is undoubtedly the case and some of them are already in place. So I appreciate the points that are being made, but there are shades of grey here. It is not as if it is all or nothing or as if separate arrangements are not being made for Wales now in relation to cases and judicial process; that is certainly the case.

I should also say that what the noble Lord is putting forward represents a massive change which I do not think is necessary. If you speak, as I have done, to people in the law schools of Wales and ask them how many students are actually opting to study devolved law as it is at the moment, you will find that it is a handful. I was stunned because I thought that far more would do so. I do not say that with any pleasure, but it is an indication of the fact that this is an evolving situation and as things stand we do not really have a pressing need for a separate jurisdiction in the way that he has talked about. I do not think that that is the case. Having spoken to practitioners and independent members of the Silk commission, I know that they, too, believe that there is a danger of throwing out the baby with the bathwater. The law schools of Wales recruit students not only from England but from overseas, which is a massive market for them. I know that the noble Lord would not want to jeopardise that. Practitioners, too, talk about the importance of the legal system that we have at the moment. That was exemplified by the noble Lord, Lord Carlile, in talking about the porous nature of the border and the fact that we have to recognise that.

It is right that the working party has met only once so far—I think that it is in Cardiff as we speak and is meeting legal practitioners and lawyers tomorrow. That was not suddenly set up; one cannot suddenly issue invitations in that way. The noble Baroness, Lady Morgan of Ely, was right to say that there is a forthcoming meeting—I think that it is on 7 November, although I am not absolutely certain of that date. The Welsh Government are invited to it, as they were to the first meeting—I think that they attended the first meeting, but I stand to be corrected on that . I will endeavour to ensure that ahead of Report—I will come back to the question of Report in a minute—noble Lords have a summary or details of what has happened so far and of the people on the working party.

All I can say about Report is that we do not know when it will be. I was rightly pressed to say that we would not get to Report because of the need for an LCM from Cardiff. I am not a magician; I cannot say with absolute certainty when Report will be, but I will endeavour to ensure that insofar as we have information, noble Lords are apprised of it as soon as possible and ahead of Report.

Turning to points made by others, I am grateful for the contribution of my noble friend Lord Crickhowell on the complex and detailed nature of the proposal, and to the noble and learned Lord, Lord Hope, who spoke of sympathy with the general point but acknowledged that we are not at this stage in a situation of wanting a separate jurisdiction. We need to ensure that separate arrangements exist for cases that have a Welsh dimension and that practitioners and judges are steeped in Welsh law if such cases involve Welsh law. I accept that and we are looking at it. I take the point that we should look at this matter on a continuing basis, because it is right that it is an evolving picture. I do not think that we are currently at the stage of wanting a separate jurisdiction, but we need those separate legal arrangements and to make sure that the interests of Welsh litigants, Welsh witnesses, Welsh practitioners and Welsh law schools are all taken care of.

I will take away the points made about the commission. I do not think that a statutory commission is the right answer, but we need a body that looks at this matter on an ongoing basis—I have sympathy with the point made by the noble Baroness, Lady Morgan, that it is an evolving picture. I have sympathy, too, with the points made by the noble Baroness and the noble Lord, Lord Elis-Thomas, about the sources of Welsh law. I shall take those away and reflect on them before Report.

I thank the noble and learned Lord, Lord Morris of Aberavon, who has vast experience not just of Wales but of the law, for his comments about the need for administrative arrangements and the consolidation of legislation—it was a point well made. My noble friend Lord Deben assured me that he was not being mischievous in putting forward his point; I did not think for a minute that he was. It is absolutely right that we need the evidence from the working party ahead of Report. As I have said, we know that Report is a little way ahead because of the need for an LCM from the Welsh Government before we can proceed, so I hope that we have that in place. The noble Lord, Lord Elystan-Morgan, speaks with great experience, both judicial and political. I take his point about the symmetry of a separate judicial system where one has a separate Parliament and can understand his cri de coeur as a Welshman, but, as he rightly said, we have to recognise that we need to address practical issues in relation to ensuring proper protection for Welsh practitioners, As to Welsh students and Welsh lawyers, we want the best Welsh lawyers to be able to serve in Wales rather than be encouraged over the border because they feel that a separate system has been set up. All those points need to be taken into account and I do not want to shy away from them in any way. We have to do what is right for Welsh law, but, as I have said, it is an evolving picture at the moment rather than one that demands a separate jurisdiction. With the assurances that I have given, I urge noble Lords not to press their amendments.

Wales Bill

Baroness Randerson Excerpts

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

[Baroness Randerson (LD)]

My Lords, I shall speak to Amendments 13, 14 and 17. I must declare an interest as a governor of Cardiff Metropolitan University and an honorary fellow of Cardiff University.

As the Minister has outlined, these amendments reflect concern expressed by Universities Wales, which represents the Welsh higher education sector, about inclusion in the list. It gave evidence of that concern to the Assembly’s Constitutional and Legislative Affairs Committee, whose report has been circulated to noble Lords. The basis of the concern is that this may lead to inclusion as a public sector body by the ONS. Noble Lords may recall that a reclassification of this kind occurred for Network Rail. That reclassification was undertaken with the full agreement of the Treasury but its impact on Network Rail has been to have a huge effect on its ability to borrow.

Higher education institutions are clearly concerned about their ability to borrow. They are currently classified by the ONS as non-profit institutions serving households; they are therefore part of the private sector and, along with most other charities, enjoy that status. This reflects the extent of public sector control, as set out in EU accounting requirements. I must stress that universities regard themselves as independent organisations. They value their academic and institutional autonomy and are treated as public bodies for only a small number of very specific purposes—for example, for freedom of information purposes. It is true that higher education provision and fees are highly regulated but in Wales, less than 10% of university income comes from direct public funding. The ONS is already reviewing the classification of Welsh universities in the light of the Higher Education (Wales) Act 2015.

In England, the proposed higher education and research Bill will address complexities for those higher education institutions established as corporations, but that Bill will not affect Wales. So the potential reclassification by the ONS will badly affect higher education in Wales because all Welsh HEIs are charities. The Charity Commission is clear in its guidance, which says that a charity,

“must exist in order to carry out its charitable purposes, and not for the purposes of implementing the policies of a governmental authority”.

A breach of this rule could of course impact on governors as well, who could be held personally liable. It would obviously have a massive impact on Welsh higher education’s ability to raise funding for research and to assist poorer students, and on those institutions’ tax status.

Understandably, Welsh universities do not welcome their inclusion as public authorities, but neither should the Welsh Government nor the UK Government. If they are reclassified by the ONS, their debts and spending will go on the Government’s balance sheet. They will go first on the Welsh Government’s balance sheet and affect their ability to borrow because universities in Wales have a significant borrowing requirement of their own, which would of course detract from the ability of the Welsh Government to borrow in addition to that. In turn, it would go on the Treasury’s balance sheet.

I am surprised that the Welsh Government have indicated that they do not feel this is a problem and are not concerned about the inclusion of universities in this list. When I think of it, it is perhaps not entirely surprising because there has been a tendency over many years for the Welsh Government to seek greater control over the public sector, which the Minister will be aware of as an ex-Assembly Member. However it is important to remind noble Lords that the international reputation of our universities rests on their independence from government. Many were established as charitable foundations, and all continue to rely on charitable funding and on funds that rely on their charitable status. Universities in Wales are part of the devolved settlement, as the Minister said, and are hence subject to rules that are slightly different from those in the rest of the UK, but they are very definitely part of a UK-wide sector and of an international market, so they must not be undermined by incorrect classification in the Bill. This is a probing amendment, and I am glad to hear from the Minister that he will consider this matter further. I will be grateful for his further comments when he has time.

Finally, and briefly, the further education sector was also established autonomously in the 1990s. The FE sector has higher levels of direct government funding, but it values its independence, its ability to respond to the market and its flexibility. I will be grateful if the Minister looks at both sectors in detail before we discuss this issue again.

[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.

--- Later in debate ---

[Lord Norton of Louth (Con)]

My Lords, my noble friend Lord Crickhowell has raised practical objections to the amendment. I do not wish to raise practical objections but I have an objection of principle. Amendments like this immediately concern me in so far as they restrict the choice of electors. Any amendment that places a restriction on candidates is in effect a restriction on the choice of those who have to do the election. It may be that, as the noble Lord, Lord Hain, said, candidates may not know the problems of the local area or may not know the culture. That is for the electors to decide and not elect them as their representatives. It is not for us to say to the electors, “Sorry, you can’t elect them because we think they aren’t suitable to represent you”. That is fundamentally an issue for the electors. I am for widening choice for electors; if they want to elect whoever, that is entirely a matter for them. It is not for us to impose a statutory requirement.

I accept the point that the noble Lord, Lord Wigley, made about the problems that derive from the particular electoral system in respect of some candidates, but the problem there is the electoral system. My point is one of principle; therefore, one would need to look at the structure and the process of the electoral system to enable the electors to have a better choice, so that they are choosing those whom they wish to represent them. If one wishes the candidates to live within the area, that is a political issue. It is for them to promise electors, rather like Members here can say to their constituents, “If elected, I will live in the constituency”. However, this is fundamentally a relationship between electors and those they choose to represent them. I am therefore wary of any amendment that restricts choice; various amendments have come up in different contexts that do that, and in the Bill I am particularly wary of moving in this direction. I hope the Minister will resist it.

[Baroness Randerson]

My Lords, I have great sympathy with the amendment in the name of the noble Lord, Lord Wigley. Although I understand the principle of the amendment in the name of the noble Lord, Lord Hain, I fear that it takes rather too hard-line an approach to an important issue of principle. I disagree with the noble Lord, Lord Crickhowell. The principle here is not the individual convenience of candidates who stand for the Assembly or those who are elected to the Assembly, but the fundamental principle that you should not be a member of a legislature to which you are not subject yourself. You should not pass laws that you yourself do not have to obey and take heed of. That supersedes anything that can be said about the practical problems, which undoubtedly exist, for people who live on the border. I think the amendment of the noble Lord, Lord Wigley, deals with that issue in that you do not have to go through the upheaval of moving to Wales if you live a couple of hundred yards over the border. Indeed, if you live in the middle of Surrey, you do not have to go through that upheaval until you are elected.

Until this Assembly term, it has always been taken for granted that you would live in Wales. I recall that when the current Assembly Member for Cardiff Central was first selected as the Labour candidate, she lived in Islington, but she felt obliged to obtain a small flat in Cardiff when she became the Labour candidate—and rightly so. It is important that people feel obliged to live in Wales, that they feel part of the Welsh culture and that they understand Welsh media and Welsh issues. Without living in Wales, that cannot be so. Therefore, I support the amendment of the noble Lord, Lord Wigley.

[Lord Murphy of Torfaen]

My Lords, I agreed to put my name to the amendment of my noble friend Lord Hain because it is both timely and relevant as the Wales Bill passes through this House. It is not all about Neil Hamilton but it is a bit about him in the sense that he is, as far as I am aware, the very first Member of the National Assembly for Wales who has not lived in Wales. Not only has he not lived in Wales but he lives a long way from Wales, and it highlights why we, as a Parliament, should address this issue—it is different from the franchise that we have known in our country for generations. We are talking about a country; we are not talking about a constituency. I think it is important that you live in your constituency but that is another issue; sometimes it is not practicable or reasonable to do so. However, we are talking about a country that now has a legislative Assembly which passes primary and secondary legislation for that country and which runs the country in many different ways.

The noble Lord, Lord Crickhowell, asked, very relevantly, what happens if you live in a town or village bang on the border. Of course, the border between England and Wales is very different from, for example, the Northern Ireland and Ireland border and it is different from the Scottish/English border, which has lots of built-up areas on it. However, there is a big difference between being a few hundred yards away in Monmouth and being in Wiltshire, and that in a way—

Wales Bill

Baroness Randerson Excerpts

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

[Baroness Randerson (LD)]

My Lords, we welcome the arrival of the Bill, which is in much better shape than the original draft Bill presented last year.

To those of us closely associated with the devolution process the journey towards an effective settlement—towards my party’s aim of home rule for Wales—is achingly slow. I disagree with the noble Baroness, Lady Morgan; there has not been enough rush over devolution. We are certainly not yet in a situation where we can say that we have a firm, decisive devolution settlement, but we are shuffling steadily down the road towards it. Therefore noble Lords will forgive me for becoming somewhat impatient with what I regard as a slow process. However, I acknowledge that in the big scheme of history, the 17 years since the establishment of the Assembly are just the blink of an eye, and therefore as ever I am pragmatic. Any step forward must be welcomed and built upon.

However, I am disappointed that the Bill still does not provide the clarity, coherence, stability, workability and sustainability set out by the previous Secretary of State for Wales, the right honourable Stephen Crabb. Looking back over the last 17 years, the Assembly that I was elected to in 1999, along with my noble friends Lady Humphreys and Lord German, is almost unrecognisable in comparison with today’s institution. The Minister is well aware of this because of his history in that place and his part in the Silk commission.

I am proud that my party, the Liberal Democrats, has played a fundamental role in the transformation of those powers. In the first Assembly, I was a Minister in the partnership Government formed between my party and the Labour Party. As part of our agreement, the Liberal Democrats insisted on the establishment of the commission led by the noble Lord, Lord Richard. It put forward some bold and imaginative proposals, but several of those remain to be implemented to this day. Sadly, it took far longer than it should have done to implement the recommendation for full legislative powers, which now exist, due to the indignity and bureaucratic nightmare of the legislative competence order system imposed on Parliament and the Assembly. I welcome the indication from the noble Baroness, Lady Morgan, that the Labour Party as a whole is now much more convinced about the importance of devolution than appeared to be when it was in government.

When the Liberal Democrats came to form a coalition here with the Conservatives in 2010, we again made constitutional progress in Wales a priority. The Silk commission was born and many aspects of this Bill owe their origin to the Silk reports. By that time, I was seeing the story from the other side of the fence. As a Minister in the Wales Office it was obvious to me how easy it was to kick reports, such as the Silk reports, around Whitehall and to make frustratingly little progress. No Whitehall department and few Ministers are willing and happy to surrender power, however small and inconsequential that power may be.

However, the ship of devolution in Wales was then blown along in the slipstream of the Scottish independence referendum, and I was confident that we were poised for a big stride forward by St David’s Day 2015. The St David’s Day declaration, on which I worked with the then Secretary of State, was bold, clear and ambitious, and I pay tribute to his sterling efforts to create a cross-party consensus on many aspects of devolution. Of course, there was not 100% agreement—indeed, my own party wanted to go further on some aspects such as devolving powers over policing—but there was a firm basis for agreement.

This Bill fulfils some of the criteria needed to establish the sustainable settlement envisaged in that agreement. The move to a reserved powers model is obviously fundamental but it has not proved to be the easy step that so many imagined. The complex and vague Welsh devolution settlement of 1999, based on conferred powers, has been translated into a less vague but still complex set of reserved powers. I believe that they are still unnecessarily complex and many of them are illogical as well. So, as the Bill goes through the House, I will examine the list of reserved powers and test out why some of those powers are there.

On the issue of the distinct and separate jurisdiction, I do not believe we have come to the point where a separate jurisdiction is desirable or needed. However, we need it to be distinct, and so I am interested in the progress made in the joint working group and what commitments there are on taking forward the outcomes of its deliberations. I am anxious that it will not be used to simply distract us from the main issue. It has to have concrete outcomes that are implemented.

The elephant in the room whenever we discuss Welsh devolution is the issue of fair funding and the Barnett formula. This has been the case ever since the Assembly was established in 1999. I look forward to hearing details of progress on this issue because significant progress is key to the effectiveness of the Bill.

I welcome the additional powers set out in the Bill, but there are more powers that we would like to see. I have already mentioned policing because, after all, the cost of policing is more or less shared equally between the Home Office, the Welsh Government and local government in Wales. It is not unreasonable, therefore, to expect the powers over policing to be devolved. There is no constitutional reason why air passenger duty should not be devolved. If Scotland and Northern Ireland can handle it, it is unjust to say that Wales cannot have that power simply because Bristol airport has run an effective lobbying campaign. We cannot see, for example, why Milford Haven is excluded from the list of devolved ports. I know it is a trust port—that is the technical aspect of it—but I cannot see why it is the exception among all Welsh ports.

We believe that the Assembly’s powers over energy will still be too limited. The 350 megawatts limit is an artificial one. It is based on a Silk commission recommendation, but nevertheless it has possibly been overtaken by events. The figure was picked because it was based on the size of the Swansea tidal lagoon, which I regret to say this Government seem to have abandoned anyway.

There is much to support in the Bill such as the permanence of the Assembly, giving it powers over its own affairs and elections, its size, its name and so on, thus treating it as a grown-up body. I welcome strongly the powers to vary income tax without the need for a referendum, behind which it was clear that the Welsh Government were going to hide. Having worked within the UK Government, I understand some of the caveats. However, I also understand that some of those caveats can be misused and need to be tested in this House.

This Bill is the product of a previous, pro-devolution Government. I do not believe the same can be said of the current Government, with the exception of the noble Lord the Minister sitting opposite. As a pragmatist, I am keen to support the Bill and to push devolution as far as possible, because, after all, this is all we are going to get for a while at least. It brings via the reserved powers model greater clarity. However, it does not bring greater simplicity to the Assembly and Welsh Government’s powers, and it does not widen their powers to the extent that we as Liberal Democrats would wish.

Draft Wales Bill

Baroness Randerson Excerpts

Thursday 29th October 2015 Lords Chamber

[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.

[Baroness Randerson (LD)]

My Lords, the issue of Crown consent has already proved very controversial. The Schedule to the draft Bill reveals how complex the current settlement has been from the start. Does the Minister agree that there is a strong case for simplifying Welsh devolution, and in the process allowing some additional powers for the Assembly beyond those already specified in the Bill, which are very welcome?

[Lord Bourne of Aberystwyth]

My Lords, the noble Baroness has great experience and has done a tremendous amount in relation to this Bill. I recognise that and pay tribute to her. If there is one thing I have learned over the last generation, it is this: Welsh devolution is not simple.

Welsh Assembly Elections 2016

Baroness Randerson Excerpts

Tuesday 23rd June 2015 Lords Chamber

Asked by

[Baroness Randerson]

To ask Her Majesty’s Government what steps they plan to take to ensure that the 2016 Welsh Assembly elections provide an opportunity to reflect recent and planned changes to the Welsh devolution settlement.

[Baroness Randerson (LD)]

My Lords, I start by saying how pleased I am that the noble Lord, Lord Bourne, is the Minister replying to the debate today. I was delighted when I heard of his appointment to the Wales Office. I believe that we worked well together during the previous Government and I know that his understanding of Welsh devolution is unparalleled. Indeed, as he is a former member of the Silk commission I look upon him as the fount of all wisdom on such issues.

My purpose in tabling this debate today is twofold. First, I wish to press the new Government on progress and preparations for the new Wales Bill. I welcomed the inclusion of the Bill in the gracious Speech and I am mindful of the Chancellor of the Exchequer’s promise, made when he was campaigning in Wales, that a new Bill would be brought forward within 100 days. So I hope that the Minister will take this opportunity to update us on progress. My second reason for wanting this debate is unashamedly to press the Government to think more widely and to be bolder than I fear is currently their thinking.

There are very good reasons why we need this Bill as soon as possible. Assembly elections will be held in May next year and it is important that electors know the extent of the Assembly and Welsh Government powers when they go to vote. More than that, the political parties need to know about that when they write their manifestos. I would argue that we need to move on from a Welsh politics which is defined by an endless refrain demanding more powers; we need instead a political campaign which debates what should be done with those powers.

The St David’s Day agreement gave us some clues as to what is likely to be in the Bill. For example, it said that the Assembly should have control over its size, the system and timing of elections, and ways of working. Now this will be a pretty fundamental change if and when it happens. The forthcoming Assembly elections should be an opportunity to debate, for example, how many Assembly Members are needed and how they are to be elected, rather than focusing on whether those powers will actually be devolved. The St David’s Day agreement also confirmed the intention to move to a reserved powers model of devolution. This is very welcome and I realise that it is a complex issue, but since the Supreme Court judgment on agricultural wages it is also an urgent issue, so I would like to ask the Minister to update us on progress there, too.

In response to the debate tabled by the noble Lord, Lord Wigley, last week the Minister, the noble Lord, Lord Dunlop, said:

“The Government intend to discuss an early draft of the reserved powers model we are preparing with the Welsh Government in the coming months”—

so far, so good. He goes on to say,

“before publishing a draft Wales Bill for pre-legislative scrutiny in the autumn”.—[Official Report, 18/6/15; col. GC 67.]

Do I understand from this that we are no longer looking at a Wales Bill itself this Session, and instead only at a draft Bill?

The St David’s Day agreement also committed the Government to the introduction of a Barnett floor. The Prime Minister has said that this is in the “expectation” that the Welsh Government will call a referendum on income tax powers. Is it still the Government’s view that these two should be explicitly linked?

Like the Minister, I am keen for the Assembly to have greater fiscal responsibility, but I doubt the enthusiasm of the Labour Party for this. I fear that the Labour Welsh Government will not be keen to call a referendum. The need for a referendum was enshrined in the Wales Act 2014, and based on a Silk recommendation. It has been controversial from the start, not least in the Minister’s own party. We all know that the Silk reports have been overtaken by events in a number of respects. The Minister knows above all of us that there were elements of compromise in the Silk reports. What seemed bold in 2012 does not necessarily seem bold now. So I will be interested to hear whether the Government still feel that a referendum is needed.

Returning now to the commitment made by the coalition Government to introduce a Barnett floor, do the Government intend to entrench and define this in the Bill? If not, how will it be incorporated into the funding structure in a way that gives us confidence that it cannot be dismantled simply at the behest of new occupants in the Treasury? We need detail on this and we need certainty. The noble Lord, Lord Dunlop, said last week that there was no need to update Holtham as Wales is not currently underfunded. I accept that Wales is not currently underfunded. Government funding is at a rate of £116 in Wales for every £100 in England, which is clearly within the region that Holtham identified as fair. However, there was a past history of underfunding under the Labour Government. Labour failed to admit to this, or to address the issue, of course, until it was no longer in power in 2010.

These two factors mean that the presumption of underfunding is still out there, even among politicians. The First Minister, for example, continues to refer to unfair funding. I believe that the Government need to provide absolute clarity on funding, even if Holtham’s calculations still have validity today. The issue of funding has had a corrosive effect on Welsh politics. The perception of unfairness in funding for Wales strikes a much stronger political chord with electors than the issue of more Assembly powers, for example. If the Government are sensible, they will address this issue head on by entrenching it in the Bill.

I want to encourage the Government to broaden the scope of the Bill. I was pleased to hear from the noble Lord, Lord Dunlop, that the Government are considering other non-fiscal elements of the Smith agreement. There are, of course, other powers already and long since devolved to Scotland and recommended in Silk, but not included in the St David’s Day agreement, such as, for example, policing. The Government appear to have set their face resolutely against devolution of policing, despite there being very good arguments for devolving it. In this financial year, the Welsh Government are providing just short of 40% of total police funding. They therefore have a big financial stake in it.

This Government have proudly boasted of their decentralising credentials that local decisions are best made locally. We agree with them, and I would suggest to the noble Lord that policing is just the sort of service which varies most according to the problems in each locality. The police work closely with many partner organisations that are devolved—for example, health services and local government services such as education and social services. Therefore, it is highly logical that it should be devolved. Policing is already devolved not just in Scotland but in Northern Ireland. If it can work successfully in a sensitive situation such as Northern Ireland, which has the added complication of a land border with a separate state, then I am sure it can be made to work in Wales.

There are other powers that the Liberal Democrats would like to see devolved—for example, an investigation into a separate legal jurisdiction and the devolution of youth justice. These seem such modest steps beside the giant leap that Scotland is taking. Although we welcome additional energy powers, we believe that more can be done.

The establishment of the Silk commission in 2010 seemed a great leap forward. It was a great step forward, as was the referendum on full lawmaking powers for the Assembly. The Silk recommendations on fiscal responsibility were another really big step, enshrined in the Wales Act 2014. However, there is a long way to go before we can have any hope that the political debate in Wales will settle down to a discussion of what we do with those powers instead of what powers they should be.

May I remind the Minister that, despite the coalition Government’s excellent and progressive record on devolution, time and again their plans were overtaken by enthusiasm for reclaiming power, both in Scotland and in Wales? The St David’s Day agreement has already been overtaken by the success of the SNP in the general election. The baton has already passed over the Government’s head. What suits Scotland does not necessarily suit Wales. The history and geography of the two nations is very different and it means that their paths will diverge. There has been no rise of nationalism in Wales as there has been in Scotland, with only 3% support for independence. However, I would say to the Minister that Scottish devolution has not developed in a vacuum. People in Wales look north and they will draw lessons from what happens there.

Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 2015

Baroness Randerson Excerpts

Tuesday 10th March 2015 Lords Chamber

Moved by

[Baroness Randerson]

That the draft orders laid before the House on 21 and 29 January be approved.

Relevant documents: 21 and 22nd Reports from the Joint Committee on Statutory Instruments, 25th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 4 March.

Motions agreed.

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

Baroness Randerson Excerpts

Wednesday 4th March 2015 Grand Committee

Moved by

[Baroness Randerson]

That the Grand Committee do consider the Human Transplantation (Wales) Act 2013 (Consequential Provision) Order 2015

Relevant documents: 21st Report from the Joint Committee on Statutory Instruments, 25th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, the order was laid before this House on 21 January 2015 and is made under Section 150 of the Government of Wales Act 2006, which allows for amendments to be made to primary and secondary legislation in consequence of provisions made by an Assembly Act. The order is made as a consequence of the Welsh Government’s Human Transplantation (Wales) Act 2013, which was passed by the National Assembly for Wales on 2 July 2013. I shall refer to this as the 2013 Act.

The 2013 Act changed the way in which consent for the purposes of transplantation is to be given for the donation of organs and tissue in Wales. From 1 December 2015, after death, a person’s consent will be deemed to have been given in most cases, unless they had expressed a wish for or against donation. The notion of “appropriate consent” from the Human Tissue Act 2004, which I shall refer to as the 2004 Act, is therefore replaced by two concepts in Wales: “express consent” and “deemed consent”.

The order makes provision to amend the 2004 Act to allow for organs and tissue donated in Wales under the deemed consent regime of the 2013 Act to be used in transplantation procedures undertaken in England and Northern Ireland. It will also ensure that a person appointed to act as a representative for the deceased, under either the 2013 Act or the 2004 Act, will be recognised whether the transplantation activity takes places in Wales, England or Northern Ireland. Finally, the order also amends the Quality and Safety of Organs Intended for Transplantation Regulations 2012, to make reference to the deemed and express forms of consent that will soon take place in Wales.

In preparing the order, the Wales Office has worked closely with the Department of Health as well as the Welsh Government. We are all agreed that the provisions in this order are necessary to ensure that the new Welsh organ donation regime interacts with the existing regime in other parts of the UK. The order is therefore important to the UK. Without the order, when the deemed consent system comes into force in Wales at the end of this year, it would not be possible to use organs, tissue and cells donated under deemed consent in Wales for the benefit of patients in England and Northern Ireland. The order does not extend to Scotland. The Scottish Government have confirmed that no amendments are required to Scottish legislation for organs, tissue and cells taken under the deemed consent regime of the 2013 Act to be transplanted in Scotland. Deemed consent is not being introduced in England or Northern Ireland as a result of this order.

The order demonstrates the UK Government’s continued commitment to work with the Welsh Government in order to make the devolution settlement work. I hope noble Lords will agree that the order is a sensible use of the powers in the Government of Wales Act 2006 and that the practical result is something to be welcomed. I commend the order to the Committee.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the Minister for the way that she succinctly introduced this important order.

I must declare an interest as president of the BMA. Since 1999, it has been BMA policy that we should move to what is often called an opt-out or deemed consent process. Indeed, I was also part of the move to create the opportunity for preferential donation to a relative in the event of there being a family member in need of an organ when there was a tragedy within that family. I understand from NHS Blood and Transplant that that is now being used approximately three or four times a year and actually working very well. My other interest is that I tried to introduce a Bill for a single kidney deemed consent, which did not get anywhere but did, I think, push the process further down the road.

The order is obviously important. We know that, every day in the UK, three people die waiting for a donated organ. The change under the 2013 Act should hopefully change the situation in Wales. But of course there is concern that Wales may become, if you like, a net donor of organs to the rest of the UK. My questions relate to that possibility.

First, what steps are the Government taking to increase the number of donors in England? Secondly, are the Government planning to review the Human Tissue Act 2004? Given that we now have these developments in the legislation in Wales, are the Government willing to facilitate an informed public debate about opt-out in England?

My other concern relates specifically to the cost, which will be borne by Wales. For the 2013 Act in Wales to work well, it will increase pressure on intensive care beds and it has been predicted that there will be a need to increase intensive care provision as a result of pushing up the number of donors and holding patients while the processes are gone through. That cost will be borne by NHS Wales. Is that increased cost going to be considered by NHS England and reimbursed in some way to NHS Wales? The cost-saving of somebody receiving an organ for transplant will be a cost-saving to NHS England, not NHS Wales. We know that there are significant cost-savings, quite apart from quality of life and life expectancy, if there is a successful transplant. I am grateful to the Minister for having met me and discussed this previously and understand that the cost of restructuring the donor register will be shared between England and Wales. But that is a one-off cost and will be quite small, whereas the relative cost to Wales for organs may be much higher and ongoing over many years, until such time as England and Northern Ireland follow suit.

Can the Minister also confirm that there will be no adverse effect on the use of organs donated in England, Northern Ireland or Scotland for patients in Wales if there is a very good match? Will the fact that we will have a different consent procedure, which will allow organs to go from Wales, also allow organs to come into Wales? That will become particularly important in paediatrics, where the size of the organ is important, as well as the tissue match of the organ.

Finally, last week I was privileged to host the signing of a memorandum of understanding between NHSBT and the MOHAN Foundation from India. The MOHAN Foundation has been working to push up the consent rate when families are approached and has done it very successfully. It has consent rates consistently over 60%, whereas in the black and minority ethnic community, particularly the Asian community—which has a very high demand for organs because of damage from diabetes; there are a lot of Asians on the transplant register awaiting transplant—the number of organs donated is remarkably low and at best hits 40% at times of agreement; in many areas it is much lower than that. Will the lessons that have been learnt over recruitment be supported and actively rolled out in a campaign aimed at those communities in England and Northern Ireland, but particularly in England, where the majority of those communities are, to make sure that the consent rate within those communities, where the genetic match would be much better, does go up, at least to equal the consent rate in the rest of England?

[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.

Motion agreed.

Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 2015

Baroness Randerson Excerpts

Wednesday 4th March 2015 Grand Committee

Moved by

[Baroness Randerson]

That the Grand Committee do consider the Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 2015

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, I beg to move that the Committee should consider the draft Protection of Freedoms Act 2012 (Northern Ireland) (Biometric data) Order 2015, laid before the House on 29 January 2015. The main purpose of this order is to provide the Police Service of Northern Ireland with the ability to continue to use biometric data, including DNA, footprints and fingerprints, in the interests of national security and for the purposes of a terrorist investigation. The order also makes a transitional provision which permits the Chief Constable of the PSNI additional time to consider whether material held by the PSNI should be retained for an extended period for the purposes of national security, and makes some amendments to the Terrorism Act 2000 and to the Protection of Freedoms Act 2012. I shall refer to this as the 2012 Act.

The 2012 Act made new provision for the retention, destruction and use of biometric data taken in the course of a criminal investigation in England and Wales. The new provisions, which are now in force in England and Wales, require the destruction of biometric data of those individuals who have not been convicted of a criminal offence, subject to a number of statutory exemptions. Such new provisions were necessary in the wake of the judgment of the European Court of Human Rights in the case of S and Marper v the United Kingdom. In that case, the court ruled that the provisions in Part 5 of the Police and Criminal Evidence Act 1984, which at that time permitted the “blanket and indiscriminate” retention of biometric data from individuals who had not been convicted of a criminal offence, violated Article 8 of the European Convention on Human Rights. The equivalent provisions relating to Northern Ireland, contained in the Police and Criminal Evidence (Northern Ireland) Order 1989, were thus similarly considered to violate Article 8.

The 2012 Act did not provide for an equivalent new biometric retention framework for the police in Northern Ireland. While the Northern Ireland Department of Justice sought a legislative consent Motion from the Assembly for the inclusion of Northern Ireland-specific clauses within the 2012 Act, this was not granted. This was largely because the majority of the provisions to be made had by then fallen into the devolved space following the devolution of policing and justice to the Northern Ireland Assembly in April 2010. The devolved Administration therefore took forward a separate but broadly similar provision to that contained in the 2012 Act. This was done under the cover of the Criminal Justice Act (Northern Ireland) 2013. I shall refer to this as the 2013 Act. It was recognised, however, that the Northern Ireland Assembly did not have the legislative competence to make provision in the excepted field, in particular to permit the biometric data obtained under the PACE NI order to continue to be used for national security purposes and in terrorist investigations.

An order-making power was therefore inserted into Part 7 of Schedule 1 to the 2012 Act to allow the Government to make excepted provision regarding biometric data in Northern Ireland. This power was consequential on the devolved Administration making similar provision to that contained in the 2012 Act by the end of 2012. In the event, it was the following year before the devolved Administration’s Bill containing the equivalent provision received Royal Assent, in the 2013 Act. It was therefore necessary to amend the order-making power in the 2012 Act via primary legislation. That was done in the Northern Ireland (Miscellaneous Provisions) Act 2014, which received Royal Assent in March 2014.

An amendment to the 2013 Act is currently being taken through the NI Assembly via a separate Bill. The devolved Administration advises that this amendment is necessary to prevent the inadvertent requirement to destroy a large volume of material which was intended to be capable of retention. It is expected that that Bill will receive Royal Assent by this summer, following which the provisions in the 2013 Act will be commenced. This order will be brought into force on the same date that the provisions of the 2013 Act are commenced. That is in order to avoid any gap arising in the powers of the PSNI to retain biometric data for national security purposes or in terrorist investigations.

Following the approach for England and Wales in the 2012 Act, paragraph 6 of Schedule 1 to the 2012 Act provides for the making of a “national security determination” by the chief constable of the PSNI in respect of the biometric data of a given individual. That allows the material to be retained for up to two additional years for the purposes of national security. The order provides for a transitional period during which the new destruction regime will not take effect in respect of material identified as requiring consideration as to whether it should continue to be held for national security purposes. That is to allow the chief constable of the PSNI sufficient time to consider whether to make a national security determination in respect of such material. The provision permitting the chief constable of the PSNI to make the national security determination is not yet in force, but will be commenced by order later this year on the date identified for the commencement of the new destruction regime in Northern Ireland.

The Biometrics Commissioner, appointed under Section 20 of the 2012 Act, will have an important oversight function in that connection. The commissioner will have the power to review every national security determination made by the chief constable, and will be empowered to order the destruction of any material made the subject of such a determination if he concludes that it is not necessary for the material to be held on the grounds of national security.

Finally, the order makes two minor consequential amendments. First, paragraph 15 of Schedule 8 to the Terrorism Act 2000 is amended to ensure that the correct definition of the term “sample” is adopted in relation to the use of police powers under the Act. Secondly, the order removes some remaining references in Schedule 1 to the 2012 Act to samples and profiles which are redundant in consequence of the 2013 Act.

Part 7 of Schedule 1 to the 2012 Act provides my right honourable friend the Secretary of State for Northern Ireland with an important order-making power. With this order she duly exercises that power to ensure that the PSNI remains able properly to investigate terrorist offences and make use of biometric data in the interests of national security. Moreover, the provisions of the order are a vital part of the new legislative framework, which is necessary to secure the Government’s compliance with our obligations under the European convention. I commend the order to the Committee.

[Lord Empey (UUP)]

My Lords, the complicated nature of the order that the Minister just outlined to us illustrates that it operates at the twilight zone between the excepted and the devolved matters. Of course, the fact that both are going at a different pace makes matters even more complicated. Nevertheless, we understand that this flows directly from an ECHR ruling and we must deal with that.

Can the Minister assure us on one point? Many members of the public frequently become concerned if there is a risk that material that could subsequently find its way into the evidential process will be disposed of prematurely. We now know of cases emerging many years after offences were committed. We see that on a regular basis and, as the noble Baroness knows, the Historical Enquiries Team is about to commence more work—just as it has previously operated, going back over very difficult terrorist cases. Of course, sadly, in the current circumstances in the modern world, many risks to national security come from all sorts of directions, and not ones that we have been used to traditionally in this part of the world. Therefore, there is quite a significant issue here. I would like the Minister to assure the Committee that the risks posed to successful prosecutions will not be significant and that there are sufficient powers available to ensure that appropriate material is retained in the reasonable prospect that further evidence would justify a prosecution.

The Explanatory Memorandum also raises a number of issues that affect the Police Service of Northern Ireland, not least of which is cost. I refer to paragraph 10, on impact. It says that there is,

“a cost to the PSNI in configuring computer systems for their use in managing the new regime and in staff training”.

Are sufficient resources available to the PSNI to undertake this work? The Minister will know that the PSNI has faced a very difficult budget settlement. We understand the reasons for that but the work that must be undertaken by the PSNI is, far from reducing, at a very significantly high level. That is not simply because of the ongoing terrorism threat. There are other threats out there, for example through smugglers and illicit trade.

I am pleased that at long last, after a two and a half year delay, the National Crime Agency will function in Northern Ireland. However, there is clearly a cost and resource issue here. It is not only cost. Part of the problem that the PSNI faces is that it has so many people working on historical cases and also an ongoing terrorist threat level that the Chief Constable described as “severe”—it is certainly substantial. He will have to review every piece of evidence and that is a massive piece of work. If officers’ time is taken up with that, with training and so on, there is a resource implication. Can the Minister assure the Committee that the effectiveness of the PSNI is not going to be diminished as a result of the substantial workload that is going to be forced upon it?

I hope that the Minister will address one other matter. Can she explain in a little more detail paragraph 12 of the Explanatory Memorandum covering the monitoring and review process:

“An independent Biometrics Commissioner has been appointed to keep under review the retention and use by the police of DNA samples”?

Given the fact that the role of the commissioner is currently limited to the oversight of the making of national security determinations, can the Minister elaborate on how this process is going to operate under the new circumstances?

In summary, the necessity for this has been more or less forced upon us as a result of the court ruling, and of course even though the legislative framework is different in England and Wales from Northern Ireland, the case has the same effect as it would have under the different legislation that exists in Northern Ireland. Those are the issues and I would appreciate it if the noble Baroness would address them in her response.

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for her exposition of the order and the staff in her office for keeping me informed. This is another sensible step, albeit that it may be forced on us, in the devolution process that was first started by a Labour Government. Anything that arms the PSNI and the forces of law and order with the necessary requirements to combat potential acts of terrorism can only be welcomed. I want to make it clear that the Official Opposition welcome this addition to the PSNI’s powers. This order does not deal with national security outwith the legislative context of the Northern Ireland Assembly, but it does bring the PSNI into line with other forces. The ability to use evidence that is gathered is particularly useful.

I echo the comments made by the noble Lord, Lord Empey, about the potential costs and use of resources. We all know that the budget of the PSNI is under considerable strain, especially given the circumstances in north Belfast. There are reports that the efforts of some of the historical inquiry teams have had to be reduced or abandoned because of a stated lack of resources. I assure the Minister that we will be paying particular attention to this because any weakening in the resources available to the PSNI makes it less able to tackle potential acts or planned acts of terrorism. However, despite the problems around the need for this order, we welcome and support it.

[Baroness Randerson]

I thank noble Lords for their comments and their support in principle for the order. The noble Lord, Lord Empey, asked whether there was a risk that biometric data that could still lead to the conviction of those who have not yet been brought to justice for their crimes might be destroyed. The purpose of the order is to allow the PSNI to continue to use biometric data in the interests of national security or for the purposes of a terrorist investigation. It does not impose any destruction requirements on the PSNI.

The Criminal Justice Act (Northern Ireland) 2013, which was of course debated and approved by the Assembly, provides for the exemptions to the legal requirement to destroy an individual’s biometric data that have been introduced in response to the Marper judgment. During the Marper case, the European Court of Human Rights rejected the argument that the indefinite retention of biometric data was justified for the purposes of preventing crime. The court ruled that the blanket and indefinite retention policy of the UK did not strike the appropriate balance between public interest and the rights of the individual. The noble Lord will know that we are bound by that judgment.

Both the noble Lord, Lord Empey, and the noble Lord, Lord McAvoy, referred very rightly to the issue of resources. As the purpose of the order is to allow the PSNI to continue to use biometric data in the interests of national security or for the purposes of a terrorist investigation, no resource burden is imposed by virtue of the order that is before the Committee. However, the implementation of the new legislative regime for the retention of biometric data, provided for by the Criminal Justice Act (Northern Ireland) 2013, has of course created a significant resource burden, as is noted in the Explanatory Memorandum, which noble Lords have referred to. It has been necessary to allocate resource to reviewing all biometric data currently held by the PSNI, the configuration of IT for their use and staff training. This is an inevitable consequence of the ruling of the European Court.

The noble Lord, Lord Empey, asked about the mechanisms to be put in place to ensure the oversight of police retention of biometric data, which is not subject to the destruction requirements. The independent Biometrics Commissioner, to whom the noble Lord referred, will have the power to review the making of every national security determination, including those made by the chief constable of the PSNI. If the commissioner is not satisfied that the retention of any material is necessary on national security grounds, he can order the material to be destroyed. The Biometrics Commissioner’s first annual report was laid before Parliament in November 2014. In his report, the commissioner reveals that relatively few national security determinations relating to England and Wales, where his powers currently lie, have been received by his office to date.

I hope that those responses are helpful to noble Lords. I commend the order to the Committee.

[Lord Empey]

Will the Minister clarify one point for me? Is she saying that, if the chief constable designates a “sample” as one that is essential, in his or her view, for anti-terrorism or national security purposes, that protects the sample from the ruling of the court, subject to the oversight of the commissioner? Is that effectively where we are?

[Baroness Randerson]

The short answer is yes; that is the process. The chief constable makes the decision and it is reviewed by the commission.

Motion agreed.

Northern Ireland

Baroness Randerson Excerpts

Thursday 29th January 2015 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government how they have fulfilled their commitment in The Coalition: our programme for government to “work to bring Northern Ireland back into the mainstream of UK politics”.

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, this Government have worked hard to ensure that Northern Ireland is fully involved in United Kingdom affairs and that UK policy fully reflects Northern Ireland interests. Therefore, when it fell to the UK to host the G8 summit, we chose Fermanagh. The economic pact with the Northern Ireland Executive, the Stormont House agreement, the accompanying financial package and the corporation tax legislation all demonstrate our commitment to rebalance the Northern Ireland economy and promote peace, stability and prosperity.

[Lord Lexden (Con)]

I thank my noble friend very much. Can she give an absolute assurance to the House that the Government will continue to stand robustly by their commitment to bring Northern Ireland into the mainstream of UK politics? What are they doing to ensure that their devolution of further powers to the Northern Ireland Assembly does not take the Province away from the mainstream, in breach of their commitment? Finally, has any progress been made on an issue that has been of grave concern to the House—namely, the need for action to ensure that the National Crime Agency can carry out its work more fully in the Province?

[Baroness Randerson]

I assure noble Lords and my noble friend that the Government stand four-square behind the commitment made in the coalition agreement. Of course, devolution has to work very much within the interests of Northern Ireland—that is the point of it—but it is very possible to see a very close link between our politics and that that is developing within Northern Ireland. On the National Crime Agency, some very promising discussions are under way between the Justice Minister, members of the SDLP and the Home Secretary on these matters, and there is optimism that real progress is being made. I urge all involved to work towards a successful conclusion on this because it is important that NCA services are provided in full throughout Northern Ireland, which is not getting the full benefit of protection.

[Lord Maginnis of Drumglass (Ind UU)]

My Lords, can the noble Baroness explain why the Secretary of State for Northern Ireland, who claims to be a unionist, has colluded with the Irish Government on strand 1 issues? Is it not illogical that the Prime Minister, who allegedly wants less interference in UK affairs by Brussels, seems happy to concede to Dublin a greater role in the internal affairs of my part of the United Kingdom?

--- Later in debate ---

[Baroness Randerson]

In accordance with the Belfast agreement there is a role for the Dublin Government in strand 2 and strand 3 issues, and that was the way in which the recent Stormont House talks were conducted.

[Lord Alderdice (LD)]

My Lords, coming from Wales, my noble friend will know very well that there is quite a difficult balance between the devolved regions on the one hand having their own say and taking their own responsibility, and on the other having a proper relationship with Westminster and London. However, is she aware that, despite these difficulties, the Office of the First Minister and Deputy First Minister in Northern Ireland has complained that it is easier for them to get a meeting with President Obama than with our Prime Minister? Will she convey to the Prime Minister’s Office that that is not the best way to show a full engagement with the rest of the United Kingdom?

[Baroness Randerson]

I am sure that the Prime Minister’s Office will take note of my noble friend’s comments. However, it is absolutely clear that the Prime Minister was fully engaged in the Stormont House process and went to Northern Ireland to push the process along; indeed, a successful conclusion was reached very soon after that visit. I therefore reject the idea that the Prime Minister has not been engaged.

[Lord McAvoy (Lab)]

My Lords, will the Minister accept that the best form of integration is economic and social integration? Child poverty in Northern Ireland is set to rise, and the Joseph Rowntree Foundation has found that Northern Ireland’s labour market and poverty rates have deteriorated over the past five years. Inequality and intergenerational deprivation is corrosive in any society, but in Northern Ireland it becomes an environment to exploit people’s fears. The Labour Party has established the Heenan-Anderson Independent Commission, which is a ground-breaking attempt to tackle inequality in Northern Ireland and make recommendations to the next Labour Government. Can the Minister outline what specific economic measures have been brought in by the Government to help conditions in Northern Ireland?

[Baroness Randerson]

My Lords, Northern Ireland has been subject to the same attempts at economic stimulus that the UK Government have made throughout the land. It is important to bear in mind that in addition to the strenuous efforts that we have made to deal with the particularly strong problems in Northern Ireland, we have, for example, ensured that the G8 summit, the Giro d’Italia and the World Police and Fire Games were held there. There has of course been a very generous financial package of nearly £2 billion as part of the recent Stormont House agreement. That should set Northern Ireland on the step towards recovery, but it remains important that a peaceful society develops there because the Troubles caused so much economic poverty.

[Lord Bew (CB)]

My Lords, at the heart of the question of equal citizenship throughout the United Kingdom is the question of freedom of expression. The Minister will be aware that in this Parliament we have passed a reform of our libel law enhancing freedom of expression in the rest of the United Kingdom, but not in Northern Ireland. This is indeed a matter for the Northern Ireland Assembly, but will she take this opportunity to remind the House that the Government’s view is that it is desirable to have the maximum possible freedom of expression, as embodied in that recent reform?

[Baroness Randerson]

My Lords, the Government greatly regret the fact that that law has not been introduced in Northern Ireland, and urge those in the Assembly to work on this so that it can be.

[Lord Dykes (LD)]

Does my noble friend agree that one disturbing fact about Northern Ireland is that it is the single most heavily subsidised small area in the whole of the European Union, even including some of the new member states from 2004? What do the Government intend to do about this, to redress the balance and make Northern Ireland more competitive?

[Baroness Randerson]

My Lords, the Government share my noble friend’s concern about the level of subsidy that has been necessary. The public sector, for example, constitutes around 30% of the economy in Northern Ireland, whereas it constitutes around 20% elsewhere. Therefore we have made strenuous efforts to encourage inward investment in Northern Ireland, and we hope that the corporation tax legislation will be a key issue in making Northern Ireland more competitive.

Northern Ireland: On-the-Runs Scheme

Baroness Randerson Excerpts

Tuesday 27th January 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, with permission, I will repeat in the form of a Statement the Answer given by my right honourable friend the Secretary of State for Northern Ireland to an Urgent Question in another place on the on-the-runs scheme. The Statement is as follows.

“On Monday 26 January, the coroner conducting the inquest into the death of Mr Gareth O’Connor, who disappeared in May 2003, directed that the inquest would be stayed, pending an investigation by the PSNI into one of the suspects in Mr O’Connor’s murder. The suspect was part of the administrative scheme dealing with so-called on-the-runs, and was in receipt of a letter from the Northern Ireland Office informing him he was not wanted for arrest by police forces across the United Kingdom. This case is specifically covered on pages 107 and 108 of the Hallett report into on-the-runs, where it is described as ‘error 2’. The fact of the error has been in the public domain for some time and this case is not a new development.

The Police Service of Northern Ireland is investigating the suspect’s case and will be considering whether charges can be brought against the individual. I spoke to the chief constable of the Police Service of Northern Ireland yesterday, and I understand from him that this is a live police investigation. I also briefed the Justice Minister on the case. The police will investigate where the evidence leads them. Under the circumstances, it would not be appropriate to comment further on the specifics of the case.

In relation to the OTR administrative scheme, I set out the Government’s position in full in my Statement to the House on 9 September. This followed detailed consideration of the report by Lady Justice Hallett that was published in July. I made clear in my Statement that the scheme is at an end and that there is no basis for any reliance on letters received under the scheme by so-called OTRs in the past. There is no amnesty, immunity or exemption from prosecution. Those who received letters under this scheme should be in no doubt. If there is considered to be evidence or intelligence of their involvement in crime they will be investigated by the police, and if the evidence is sufficient to warrant prosecution, they will be prosecuted”.

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for repeating the Secretary of State’s Statement in the House of Commons. The revelation yesterday regarding the collapse of the inquest into the murder of Gareth O’Connor has caused further justifiable concern and anxiety in Northern Ireland. Our thoughts today must and should be with the O’Connor family. Like so many of those left behind, they sought truth and justice about what happened to Gareth in 2003. They have waited 12 long years for an inquest into the death of their son. The thought of preparing for a week-long inquest would have been harrowing for the family. This development has made a highly stressful situation even worse. News of another error from the administrative scheme for the on-the-runs is devastating, following the catastrophic error in the Downey case last year.

We have apologised for the Downey error, and do so again for the error in the O’Connor case. In the same way as this scheme never offered amnesty, it was also never intended to cover alleged offences committed after the signing of the Good Friday agreement. The delay in the coroner and the family being made aware of the error is deeply troubling. The Northern Ireland Office and the police knew about the case, and indeed—as the Minister has indicated—it was referred to in the Hallett report.

I have some questions for the Minister. Why did the Northern Ireland Office not ensure that this family were told of the error in the immediate aftermath of the Hallett report? How many other potential specific errors identified in the Hallett report are the Northern Ireland Office currently investigating? In view of the financial pressures facing the Police Service of Northern Ireland, what is the Minister’s estimate of the time it will take to review all the cases covered by the on-the-run scheme? Finally, in a related matter which has caused similar concerns, can the Minister give the House an update on investigations on the missing information as regards the royal prerogative before 1997?

[Baroness Randerson]

The noble Lord made a number of important points and asked a number of questions. I am very pleased to hear that the noble Lord has echoed the apologies already made by the PSNI and by the Secretary of State to the family concerned. Why were they not told of the error earlier? It is a very complex situation in terms of the independence of the judiciary and of the inquest service. However, it is important to bear in mind that the Secretary of State and the PSNI have apologised to the family for the impact of this new development on them. We fully understand the problems it raises for them.

The noble Lord asked for the number of errors that were identified in the Hallett report. The Hallett report identified the Downey case and two other errors, of which this is one, and there are 36 cases where there is concern. All these are being reinvestigated by the PSNI as part of Operation Redfield.

The noble Lord asked how long this will take. I can be no more satisfactory in my answer than to say a number of years, in the estimation of the PSNI. He also asked for an update on the information relating to the royal prerogative of mercy. Following the Hallett report, the Northern Ireland Office has taken steps to improve its administrative systems. Work is ongoing with stakeholders to identify if there is any more material to be found.

[Lord Alderdice (LD)]

My Lords, I am grateful to my noble friend for repeating the Answer. I recall some elements of this case because Mr O’Connor disappeared shortly after the IMC was formed and we reported as much as we knew at that time in the very first report of the IMC. What puzzles me a little at this stage is, the mistake having been made and having been reported on some time ago, was the coronial service not informed so that it would have known that bringing forward an inquest at this stage was not going to go anywhere? If it was informed, it seems puzzling. If it was not informed by the PSNI, surely that is a serious gap that adds insult to injury in terms of the disadvantage that the family have been put at, not to mention the coronial service itself.

[Baroness Randerson]

My noble friend refers to the interlinking between the PSNI and the coroners service. It is important to bear in mind the independence of the PSNI. It must be free to pursue investigations. It is also important to bear in mind that this inquest has been ongoing for a number of years. Beyond that, it is not appropriate for me to comment on an individual case.

[Lord Rogan (UUP)]

My Lords, will the Minister confirm that the letter to the suspect in the Gareth O’Connor case was delivered to him by Gerry Kelly? If this is so, why was Gerry Kelly used as the postman, and how did he know the name and address of the suspect? How many other OTR letters have been given to Kelly for delivery? Further, how many other OTR letters have been given to the IRA/Sinn Fein leaders, Gerry Adams and Martin McGuinness, for delivery?

[Baroness Randerson]

The noble Lord asked about the issues associated with the OTR administrative system in general. I can do no better than to refer him to the Hallett review, which set out in detail a description of the situation. This was a system set up under the previous Government. In so far as we are able, this Government have given the full information that we are aware of in relation to the Hallett review.

[Lord Browne of Belmont (DUP)]

My Lords, will the Minister explain how a suspect received an on-the-run letter in error relating to a murder that took place post the 1998 peace agreement? Who was responsible for the error and who signed it off?

[Baroness Randerson]

I am sorry to disappoint the noble Lord. I really cannot comment on the details of a specific case.

[Lord Empey (UUP)]

My Lords, will the Minister explain what metaphysical forces were at work that allowed a member of Sinn Fein to deliver a letter to a person who he did not know at an address that he did not know? Will she also confirm to the House that no blank letters were given to Sinn Fein for it to distribute to persons of its choosing? Will she give a categorical assurance from the Dispatch Box that no letters of that character were issued at any stage?

[Baroness Randerson]

I understand the general concern that noble Lords are expressing about this scheme. I can say to the House only that, once we identified the scheme we brought it to an end in an orderly manner. We certainly are not of the view that the scheme has been operated in an efficient and acceptable manner. I once again refer the noble Lord to the Hallett report, which gave a very detailed description of the way in which those letters were issued and the way in which errors were made.

[Lord Lexden (Con)]

Would my noble friend not agree that a postman who takes possession of a letter and then says that he does not know the address to which that letter was delivered strains credibility?

[Baroness Randerson]

The noble Lord has his own view. In speaking to the House today, I can deal only with the facts as I know them about events that took place a considerable number of years ago.

[Lord Hylton (CB)]

My Lords, on the wider question, we can all understand the grief, the sense of loss and sometimes the bewilderment of families who were the victims of ancient crimes. However, would it not be very much better for all concerned if prosecutions were to cease for offences committed before 1994, when the two major ceasefires came into force?

[Baroness Randerson]

This Government take the view— the same view as the two parties of this Government took when we were in opposition—that it was inappropriate for there to be amnesties for people who had committed crimes at that time.