Lord Bourne of Aberystwyth
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Wales Bill
Lord Bourne of Aberystwyth ExcerptsWednesday 23rd November 2016
(8 years ago)
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“PART 2AWELSH TRIBUNALSThe Welsh tribunals
(1) In this Part “Welsh tribunal” means—(a) the Agricultural Land Tribunal for Wales or Tribiwnlys Tir Amaethyddol Cymru;(b) the Mental Health Review Tribunal for Wales;(c) a rent assessment committee constituted in accordance with Schedule 10 to the Rent Act 1977 (including a leasehold valuation tribunal and a residential property tribunal);(d) the Special Educational Needs Tribunal for Wales or Tribiwnlys Anghenion Addysgol Arbennig Cymru;(e) a tribunal constituted in accordance with Schedule 3 to the Education Act 2005 (registration of inspectors in Wales: tribunals hearing appeals under section 27);(f) a tribunal drawn from the Adjudication Panel for Wales or Panel Dyfarnu Cymru;(g) the Welsh Language Tribunal or Tribiwnlys y Gymraeg.(2) Her Majesty may by Order in Council amend subsection (1)—(a) so as to remove or revise a paragraph,(b) so as to add or substitute a tribunal whose functions— (i) are exercisable only in relation to Wales, and(ii) do not relate to reserved matters (within the meaning of the Government of Wales Act 2006), or(c) so as to make amendments (to provisions of this Part or other enactments) that are consequential on an amendment within paragraph (a) or (b).(3) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, the National Assembly for Wales.(4) Subsection (3) does not apply to a statutory instrument containing an Order in Council that only makes—(a) provision for the omission of a paragraph in subsection (1) where the tribunal concerned has ceased to exist,(b) provision for the variation of a paragraph in consequence of a change of name or transfer of functions, or(c) amendments within subsection (2)(c).Such an Order in Council is subject to annulment in pursuance of a resolution of the Assembly.”
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, the government amendments in this group demonstrate the pragmatic and progressive approach that the Government are taking in this Bill to the interface between devolved matters and the wider justice system of England and Wales. The amendments are designed to do two things. First, they will create a statutory office of President of Welsh Tribunals to oversee the work of the devolved Welsh tribunals. Secondly, they will allow for the movement of judges between different Welsh tribunals and between reserved Her Majesty’s Courts & Tribunals Service tribunals in England and Wales and the devolved Welsh tribunals, to share expertise in a way that cannot happen under current legislation.
These measures are the culmination of discussions with the Welsh Government, the Ministry of Justice and the senior judiciary. Although the clauses and accompanying schedules are fairly lengthy, reflecting some technical but necessary aspects of the provisions, the overriding purpose is simple: to improve the way in which the workload of the devolved Welsh tribunals is managed and to maximise flexibility in the deployment of judicial resources in the Welsh tribunals.
I will deal with the creation of the statutory office of President of Welsh Tribunals before moving on to discuss the flexible deployment measures in more detail. As noble Lords may be aware, there are currently seven devolved tribunals which are the responsibility of the Welsh Government. The full list is set out in Amendment 107C and includes, among others, the Special Educational Needs Tribunal for Wales and the Welsh Language Tribunal.
Each tribunal currently has its own chairperson, but Mr Justice Wyn Williams has undertaken an informal, presidential-style role in respect of the relevant tribunals, acting as a central point of contact for all leadership judges in them. By putting the role of President of Welsh Tribunals on a statutory footing in Amendment 107DA, we acknowledge the important work that Mr Justice Wyn Williams has done, while bringing greater consistency to operations and the provision of pastoral support to the leadership judges in the relevant tribunals. The fact that Mr Justice Wyn Williams has performed this role on an informal basis for some time is perhaps the best indication that there is a need for a permanent statutory position.
Noble Lords will be aware that the Lord Chancellor and Lord Chief Justice have legal duties to increase diversity in the judiciary. For that reason, the Government consider that the selection and appointment process should be as open and transparent as possible.
The new schedule inserted by Amendment 119AA provides for a two-stage process for the appointment of a person to this new statutory role. At the first stage, the Lord Chief Justice can recommend a candidate for appointment. If the person chosen is a current or former judge of the High Court or the Court of Appeal, and the Welsh Ministers and the Lord Chancellor agree with his recommendation, the appointment can go ahead. Where those conditions are not met, for example because there were two or more promising candidates, the Lord Chief Justice would be required to ask the Judicial Appointments Commission to recommend somebody for appointment. This is similar to the two-stage process that exists in relation to the Senior President of Tribunals, who carries out a similar role in relation to the First-tier and Upper Tribunals that exercise jurisdiction across England and Wales. If the Judicial Appointments Commission was invited to carry out a recruitment campaign, the new schedule created by Amendment 119AA makes it clear that its guiding principles of selection on merit and promotion of diversity would apply, just as they would in any other campaign carried out in England and Wales.
On flexible cross-deployment, the measures in Amendment 107FA are related specifically to members of the Welsh tribunals being deployed from one Welsh tribunal to another, giving the president greater flexibility in the way judicial resources are managed and the ability to respond effectively to peaks and troughs in the workload of the tribunals. In addition, the Welsh Government agreed with the Lord Chief Justice, the Senior President of Tribunals and the Lord Chancellor that it might be beneficial if judges could move between reserved HMCTS tribunals and the devolved Welsh tribunals, if this were needed to meet urgent business needs. Amendments 107GA and 107H would provide the legal basis for cross-deployment to occur. They would allow judges from the Welsh tribunals to sit in the First-tier Tribunal and for judges from the First-tier and Upper Tribunals to sit in the Welsh tribunals, subject to the agreement of the senior judiciary on both sides. In reality, the Government anticipate that it is more likely that judges would be deployed from HMCTS tribunals into the Welsh tribunals than vice versa, but these amendments would permit movement in either direction. I hope the Committee will agree that both the creation of the office of President of Welsh Tribunals and the measures on cross-deployment are worth while.
There is also an opposition amendment in this group. I look forward to hearing from the Opposition on that and will then respond to the points made. I beg to move.
Lord Wigley (PC)
My Lords, I shall speak to Amendment 108 in my name, which seeks to devolve the youth justice system in Wales. The amendment is perhaps slightly incongruously linked with this bank of amendments before the House.
The ineffective and complex mix of devolved and non-devolved bodies that manage the Welsh youth justice system means that a fragmented approach is the best we can hope to achieve. The argument for the devolution of the youth justice system has been made by many experts in both policy and practice, including former Youth Justice Board chair, Professor Rod Morgan, who noted that it is illogical to have a system where factors linked to youth offending are often related to devolved services, such as education and training, social services and health, while youth offenders are dealt with through non-devolved services such as the police, youth offending teams and youth courts.
My party colleague, North Wales Police and Crime Commissioner Arfon Jones, highlighted how a devolved youth justice system would provide an integrated and coherent children’s policy for Wales. Through a clear devolution settlement, the accountability, opportunities to innovate and the simplification of the way the youth justice system operates in Wales would lead to significant improvements for vulnerable children and young adults.
Understandably, the English youth justice system, on to which elements of the Welsh system continue to be tacked, is concerned with English problems, particularly gangs and urban violence. In Wales, rural issues and poverty underpin the challenges faced. By creating a clean break between the two systems, we could enhance outcomes for children at risk in both nations, allowing policies and practices to be targeted and focused on the issues of greatest importance in both places.
As another party colleague of mine, Liz Saville Roberts, highlighted in the other place, the Howard League for Penal Reform found out about our efforts to devolve youth justice and provided us with the following statement:
“When it comes to Welsh children in trouble with the law, Wales should be able to come up with a Welsh solution to a Welsh concern. This is particularly the case because both social services and education policy are already devolved and it is a welfare-led approach which will prove most effective for troubled children. The Welsh Youth Justice Board already recognise this in their ‘children first’ approach and there is an opportunity to build on that distinctiveness and protect it from any Westminster-led reforms that fail to take into account the specific needs of Welsh children”.
Coming from where it does, that quote ought to carry a lot of weight.
The practical benefits of devolving the youth justice system are clear. It is outlined in the recommendations of the Silk commission, as I am sure the Minister will readily recall. It is exemplified by the fact that it is already devolved to Scotland and Northern Ireland, and it is reinforced by the fact that the Government already said they are looking to devolve aspects of youth justice to areas of England. Can the Minister explain to the people of Wales why establishments such as the Greater Manchester Combined Authority are set to gain increased competence over youth justice but the established National Assembly for Wales, with a track record on closely related issues, is not?
I hope the Minister will listen to the advice of those involved in the sector and either support this amendment or bring forward an amendment on Report that will devolve the remaining aspects of the youth justice system to Wales.
Baroness Gale (Lab)
My Lords, this group of amendments relates to Welsh tribunals. We welcome the fact that the UK Government have brought forward these provisions. The new role of President of Welsh Tribunals will provide judicial leadership in support of the Welsh Government’s programme of tribunal reform. The ongoing reform of the Welsh devolved tribunals is designed to strengthen judicial independence and provide service improvement and consistent standards across England and Wales.
Another amendment in this group relates to youth justice. There is a great deal of good practice in terms of Welsh public services working closely with the UK Youth Justice Board for the benefit of the child affected, but it is worth noting that this is one of the few areas of policy relating to children and young people that is not devolved to Wales. There is a danger that services may be commissioned for young people generally in Wales, while those in the youth justice system will not be able to access them. This is one of the reasons why the Welsh Government would like to see the youth justice system devolved. But the view on our Benches is slightly different, in that we believe that we should wait for the full publication of the report by Charlie Taylor who is investigating this matter, and we believe that this is one of the areas on which our proposed justice commission should focus. I look forward to what the Minister has to say on these amendments.
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the debate on this group of amendments. I shall first deal with the points made in relation to Welsh tribunals and the President of Welsh Tribunals. I thank noble Lords for the general welcome for provisions that strengthen Welsh tribunals and their operation in Wales.
In relation to Amendment 107H, I say to the noble Lord, Lord Howarth, that I do not see anything irregular in this because the power to be exercised by the Lord Chancellor in relation to adding tribunals and so on to the list is subject to affirmative resolution in new Section 107H(3). So that would be entirely regular—but perhaps I misunderstood the noble Lord.
Lord Howarth of Newport
The provision to provide power for the Lord Chancellor by statutory instrument to amend primary legislation is—or ought to be —exceptional and needs some justification.
Lord Bourne of Aberystwyth
I stand to be corrected on this, but under new Section 107H(3) it is subject to an affirmative resolution of each House of Parliament, and that is entirely appropriate.
Opposition Amendment 108 was ably moved by the noble Lord, Lord Wigley, and supported equally ably by the noble Lord, Lord Thomas of Gresford. As we have discussed on many occasions during the passage of the Bill, the Government’s position is clear: the justice system, including youth justice, should be a reserved issue. I am sure the noble Lord will not be surprised by that response.
Under this model, the Assembly will continue to exercise legislative competence over key areas that impact on youth offending in Wales, such as health, children’s services and education. The Assembly and the Welsh Government will continue to be heavily involved in the management and rehabilitation of young offenders through partnership with the police—I note the comments made by the noble Lord, Lord Wigley, in relation to Arfon Jones the police and crime commissioner for North Wales—and devolved services under the Children and Young People First joint strategy, while a single system for managing young offenders across England and Wales is maintained.
In short, there is a very effective partnership at the moment. I appreciate that that is, to some extent, dependent on the chemistry of the people involved, so I will write on this issue to explain how it is operating at the moment—because it appears to be operating more than satisfactorily, as far as I can see. I note the comments by the noble Baroness, Lady Gale, in relation to the Charlie Taylor review. I agree that it is an important review that obviously the Government will look at.
The noble Lord, Lord Wigley, referred to the Silk commission and my role in it. The commission’s second report found that youth justice services work well and that there is close working between devolved and non-devolved partners. Its recommendation on devolution was aimed at promoting greater integration. It is quite true to say that there was a recommendation regarding devolution, but it was in the context of devolving more than youth justice. The noble Lord will know that the St David’s Day agreement that followed did not present any consensus on devolving justice. Accordingly, it is the Government’s position that all aspects of the justice system, including youth justice, should be reserved. However, we recognise the need for the close working relationship which appears to be working very well at the moment.
Lord Wigley
Will the Minister address my point that there is devolution of a different kind going on with youth justice being devolved to areas such as Manchester, yet they are not having a totally separate Home Office or judicial structure of their own? In these circumstances, and given the fact that the Labour Party, the Liberal Democrats, a lot of Cross-Benchers and ourselves support this movement and the Silk commission’s recommendation, will he look at this matter between now and Report to see whether there is room for greater devolution, at least of large parts of this, to the Assembly in order to get a coherent service in Wales?
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord for that contribution. I was coming on to deal with devolution to areas of England, to which the noble Lord referred, and to say that I will cover that in the letter that I am writing in relation to the current arrangements in Wales. My understanding—I have had a look at this—is that it does not involve devolution of policy issues in the way that this would to the Welsh Government. It will not allow English cities or regions to have separate policy arrangements, which I think is what the noble Lord is seeking. But I will cover that in the letter, as well as the arrangements that are likely to be in place in the areas of England where we are looking at devolution—Manchester, Liverpool, the West Midlands and so on. But, in short, I think that it is devolution of a different sort.
I shall move on and talk about some of the cost implications that would be involved in replicating some of the functions that appear to be working well, partly by the purchase of custodial places in England owing to the lack of, for example, secure establishments in North Wales and secure training centres across the whole of Wales. That would be a necessary part of any devolution package. Perhaps more importantly, reserving legislative competence for youth justice ensures that the Government can apply a coherent approach to criminal justice and the management of offenders across all age groups, while enabling the joined-up working that is happening at the moment in Wales on the issues affecting youth offending.
I recognise the significant and continuing role of devolved authorities in delivering youth justice services, as happens now, and the level of co-operation which already exists on the ground between devolved and non-devolved organisations. I put on record my thanks to the devolved and non-devolved organisations that are making it work. However, it is the Government’s view that not accepting the amendment will ensure that we have the most efficient, effective and consistent way to deliver youth justice services across England and Wales within the single legal jurisdiction.
“President of Welsh Tribunals
(1) The Lord Chief Justice of England and Wales may appoint a person to the office of President of Welsh Tribunals or Llywydd Tribiwnlysoedd Cymru.(2) The President of Welsh Tribunals is not a Wales public authority for the purposes of the Government of Wales Act 2006.(3) Schedule (President of Welsh Tribunals) makes further provision about the President of Welsh Tribunals and about appointments under subsection (1).(4) A holder of the office of President of Welsh Tribunals must, in carrying out the functions of that office, have regard to—(a) the need for the Welsh tribunals to be accessible;(b) the need for proceedings before those tribunals—(i) to be fair, and(ii) to be handled quickly and efficiently;(c) the need for members of those tribunals to be experts in the subject-matter of, or the law to be applied in, cases in which they decide matters;(d) the need to develop innovative methods of resolving disputes that are of a type that may be brought before those tribunals.(5) The President of Welsh Tribunals is responsible—(a) for the maintenance of appropriate arrangements for the training, guidance and welfare of members of the Welsh tribunals within the resources made available by the Welsh Ministers;(b) for representing the views of members of the Welsh tribunals to the Welsh Ministers and to other members of the National Assembly for Wales.”
“Directions as to practice and procedure
(1) The President of Welsh Tribunals may give directions as to the practice and procedure to be followed by the Welsh tribunals.(2) The president or chairman of a Welsh tribunal may give directions as to the practice and procedure to be followed by that tribunal.(3) A power under this section to give directions includes—(a) power to vary or revoke directions made in the exercise of the power;(b) power to make different provision for different purposes (including different provision for different areas);(c) (in the case of directions by the President of Welsh Tribunals) power to make different provision for different tribunals.(4) Directions under this section may not be given without the approval of the Welsh Ministers.(5) Subsection (4) does not apply to directions to the extent that they consist of guidance about any of the following—(a) the application or interpretation of the law;(b) the making of decisions by members of the Welsh tribunals. (6) Subsection (4) does not apply to directions to the extent that they consist of criteria for determining which members of the Welsh tribunals may be chosen to decide particular categories of matter; but the directions may, to that extent, be given only after consulting the Welsh Ministers.(7) Before the President of Welsh Tribunals gives directions under this section he or she must consult the president or chairman of each Welsh tribunal to which the directions relate.(8) Before the president or chairman of a Welsh tribunal gives directions under this section he or she must consult the President of Welsh Tribunals.(9) A person giving, varying or revoking directions under this section must publish the directions, or the variation or revocation, in whatever way the person thinks appropriate.”
“Cross-deployment of members of the Welsh tribunals
(1) In Schedule 9 to the Agriculture Act 1947 (Agricultural Land Tribunal etc), in paragraph 15A, after sub-paragraph (1) insert—“(1A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Agricultural Land Tribunal may, at the request of the Chairman of the Agricultural Land Tribunal and with the approval of the President of Welsh Tribunals, act as a member of the Agricultural Land Tribunal.”(2) In Schedule 10 to the Rent Act 1977 (rent assessment committees), after paragraph 5A insert—“5B_ A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of a rent assessment committee in Wales may, at the request of the president or vice-president of the panel and with the approval of the President of Welsh Tribunals, act as a member of such a committee.”(3) In Schedule 2 to the Mental Health Act 1983 (Mental Health Review Tribunal for Wales), in paragraph 5—(a) after sub-paragraph (1) insert—“(1A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Tribunal but who is eligible to decide any matter in a case under this Act may, at the request of the President of the Mental Health Review Tribunal for Wales and with the approval of the President of Welsh Tribunals, act as a member of the Mental Health Review Tribunal for Wales.”(b) in sub-paragraph (3), after “sub-paragraph (1)” insert “or (1A)”.(4) In section 333 of the Education Act 1996 (Special Educational Needs Tribunal for Wales), after subsection (4) insert—“(4A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Tribunal may, at the request of the President and with the approval of the President of Welsh Tribunals, serve as a member of the Tribunal.”(5) In section 75 of the Local Government Act 2000 (Adjudication Panel for Wales), at the end insert—“(12) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Adjudication Panel for Wales may, at the request of the president or the deputy president (if any) and with the approval of the President of Welsh Tribunals, act as a member of a tribunal drawn from the Panel.”(6) In Schedule 3 to the Education Act 2005 (registration of inspectors in Wales: tribunals hearing appeals under section 27), in paragraph 1, after sub-paragraph (3) insert—“(3A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of a tribunal constituted to hear an appeal under section 27 may act as a member of such a tribunal at the request of its chairman and with the approval of the President of Welsh Tribunals.”(7) In Schedule 11 to the Welsh Language (Wales) Measure 2011 (nawm 01) (the Welsh Language Tribunal), after Part 2 insert—“PART 2ACROSS-DEPLOYMENT OF TRIBUNAL MEMBERS9A A member of the tribunal listed in section (The Welsh Tribunals) of the Wales Act 2016 (the Welsh Tribunals) who is not a member of the Tribunal may, at the request of the President and with the approval of the President of Welsh Tribunals, act as a member of the Tribunal.””
“Cross-deployment of tribunal members and judges
(1) A member of a Welsh tribunal may act as a member of the First-tier Tribunal if—(a) the Senior President of Tribunals asks the member to do so, and(b) the President of Welsh Tribunals agrees to the request being made.(2) A judge or other member of—(a) the First-tier Tribunal, or(b) the Upper Tribunal,may act as a member of a specified Welsh tribunal if the President of Welsh Tribunals asks the member to do so and the Senior President of Tribunals agrees to the request being made.(3) Subsection (2) does not apply to a tribunal member who is a relevant judge.(4) A relevant judge may act as a member of a specified Welsh tribunal if—(a) the President of Welsh Tribunals asks the judge to do so, and (b) the Lord Chief Justice of England and Wales agrees to the request being made.(5) In subsections (2) and (4) “specified” means specified in the request.(6) In this section “relevant judge” means—(a) a judge of the Senior Courts;(b) a deputy judge of the High Court;(c) a Circuit judge;(d) a deputy Circuit judge;(e) a recorder;(f) a district judge;(g) a deputy district judge;(h) a District Judge (Magistrates’ Courts);(i) a Deputy District Judge (Magistrates’ Courts);(j) the holder of an office listed in—(i) the first column of the table in section 89(3C) of the Senior Courts Act 1981 (senior High Court Masters etc), or(ii) column 1 of Part 2 of Schedule 2 to that Act (High Court Masters etc).(7) A reference in this section to—(a) the President of Welsh Tribunals,(b) the Senior President of Tribunals, or(c) the Lord Chief Justice of England and Wales,includes a reference to an individual designated by that person to exercise the person’s functions under this section.(8) A designation made by a person under subsection (7) that is in force immediately before the person ceases to hold the office in question continues in force until varied or revoked by a subsequent holder of that office.”
“Power to amend section (Cross-deployment of tribunal members and judges)
(1) The Lord Chancellor may by regulations amend subsection (2) of section(Cross-deployment of tribunal members and judges)—(a) so as to add a tribunal to those listed,(b) so as to remove or revise a reference to a tribunal added under paragraph (a), or(c) so as to make amendments (to provisions of this Part or other enactments) that are consequential on an amendment within paragraph (a) or (b).(2) Regulations under this section may not add a tribunal whose functions—(a) are exercisable only in relation to Wales, and(b) do not relate to reserved matters (within the meaning of the Government of Wales Act 2006).(3) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.(4) Subsection (3) does not apply to a statutory instrument containing regulations that only make—(a) provision for the omission of a reference to a tribunal that has ceased to exist, (b) provision for the variation of a reference in consequence of a change of name or transfer of functions, or(c) amendments within subsection (1)(c).Such an instrument is subject to annulment in pursuance of a resolution of either House of Parliament.”
Lord Bourne of Aberystwyth
My Lords, I thank noble Lords who have participated in the debate on the amendments in this group. I shall first discuss Amendments 111 to 119, and thank the noble Lord, Lord Rowlands, for moving Amendment 111. I understand the points that he made. He was ably backed up by the noble Lord, Lord Elis-Thomas, the noble and learned Lord, Lord Judge, and others. I think that the arguments basically boil down to two strands. The first is the type of issue that is subject to this tidying-up exercise, as we see it. The second issue concerns equality of treatment of the Assembly in relation to Parliament. I will deal with both points.
First, it is not anticipated that the provision in Clause 53 will be used for anything more than minor consequential amendments. I urge noble Lords to be very careful about what they wish for in relation to this. I will double-check examples and write to noble Lords about them. But if, for example, the issue is one of tidying up an enactment to provide that a parish council in England is a community council in Wales, I suggest that that sort of issue is best dealt with in the way set out in the Bill. However, given the understandable concerns that have been raised, I will write to noble Lords giving examples in relation to that.
Lord Howarth of Newport
On the point the Minister has just made, would it be possible to amend the Bill to make it clear that this power is intended to deal only with minor, consequential amendments? If the Bill were able to say that in terms, it might be helpful. It might also be helpful to the courts in future if they found themselves attempting to construe the legislation.
Lord Bourne of Aberystwyth
My Lords, I am grateful for the intervention of the noble Lord, Lord Howarth. I also thank him for his very kind comments earlier. I will cover these issues in a letter, if I may, as I would like to go away and have a look at this. I am certainly not making any commitment on that but I would like to give examples of how this has been used and how we anticipate that it will be used in the future.
The second issue is in many ways a more serious concern, certainly for somebody who has been a Member of the Assembly and knows that it has to be dealt with in a proper constitutional and respectful way—so I listened very carefully to what was said there. This has been a very considered debate. However, if we were to provide a role in approving regulations such as was suggested, it would be anomalous and would introduce unnecessary complexity into the process. I will explain why that is the case. In reality, we would discuss with the Welsh Government any proposed changes that impacted on Welsh legislation.
To illustrate the anomaly, the Assembly acts in exactly the same way as Parliament does. For example, the Assembly has recently passed the Renting Homes (Wales) Act 2016. Section 255 of that Act includes a power for Welsh Ministers to make consequential amendments to any enactment. “Enactment” is defined in Section 252 of the Renting Homes (Wales) Act to include Acts of Parliament and secondary legislation made under Acts of Parliament. Further, in the last two years two-thirds of Assembly legislation has had similar provisions. So, in relation to the equality argument, we are dealing in exactly the same way here as in Parliament. Noble Lords may say that that does not answer the first point, and it does not—but it certainly answers the point about equality.
Lord Elis-Thomas
I do not think that it does. There is a difference between a legislature which is developing new legislation within the framework previously laid down by this Parliament because there is no other legislative framework, and making provision—which therefore distinguishes itself from the rest of the United Kingdom—and what a United Kingdom Parliament might seek to do, and for what reason, to intervene in the legislative process of what might be regarded as a subordinate legislature. Those are the differences, and that is where the concerns come from.
Lord Bourne of Aberystwyth
My Lords, much as I have the greatest respect for the noble Lord, that is not a tenable argument in law, as I am sure he knows. I take the point about the political dimension, as he knows, but on the legal aspect, the two bodies operate in just the same way. However, as I say, I will write to noble Lords on that. I understand the arguments being put forward, by the noble Lord, Lord Rowlands, in particular, as well as his point about the evolving devolution process, which makes this type of arrangement sensible where there is reciprocity. I will write to noble Lords on that point.
Amendments 120 and 120A were spoken to effectively by the noble Lord, Lord Hain, who took us through some of the financial aspects that have to be considered. I understand that. First, on something I have stated many times, although I will certainly state it again, we will not move to Third Reading—as I said at Second Reading—until there is a legislative consent Motion. So, if there is no legislative consent Motion—and there may not be; that is an issue for the National Assembly for Wales and the Ministers of the Welsh Government—we will have no Third Reading.
In relation to Report, I understand from discussions with officials—this may well be confirmed by Members of the Opposition Front Bench, who obviously have had discussions with Welsh Ministers—that there is a desire for us to move to Report so that we are closer to the sort of Bill that we will see at the end and so that the Welsh Government can then move to the legislative consent Motion, content that we are moving in an appropriate way. So we are keeping in touch on that, but I understand that there is a consensual element here to having Report, the first date of which is already public and will take place before Christmas.
We will have two days on Report to reflect on many of the important issues we have dealt with, and the second day will be soon after we come back in the new year. As I understand it—the noble Baroness pressed me on this issue—we are hoping for a legislative consent Motion in the middle of January before moving to Third Reading shortly after that. That is the suggested choreography, but of course we are in the hands of the Welsh Government and the National Assembly for Wales in relation to the legislative consent Motion. I cannot be definitive about that but I can be definitive, as I think I have been in the past, that we will not move to Third Reading until we have the legislative consent Motion. I should also say that there is pressure elsewhere in the legislative programme, as I am sure noble Lords will accept.
Lord Hain
Just briefly, given what the Minister has just said, does that mean that the fiscal framework will not be available to be scrutinised before the Assembly has given its legislative consent Motion? In other words, if he is promising it only by Third Reading, is he saying that the legislative consent Motion would have to be passed by the Assembly without the fiscal framework being agreed—or, indeed, without both Houses having had a look at it?
Lord Bourne of Aberystwyth
The noble Lord raises a point about my stating that we would not proceed until Third Reading. That is a restatement of what I said at Second Reading—I checked that before coming to the House. As I have indicated, the precise timing of the legislative consent Motion is not dependent on me, the Government, the House of Lords or on the House of Commons but on agreement between the Treasury and Welsh Government Ministers and then the agreement of the National Assembly for Wales.
On the fiscal framework document, the noble Lord will know that the Bill has already been through the other place and will go back there for consideration of government amendments—we have many government amendments that are measures that we all agree upon. But I am not sure that in any event that would give the opportunity for consideration of the fiscal framework as it will be only Commons consideration of Lords amendments: so they will only be able to consider any amendments we make on Third Reading.
I will endeavour through representations to see what additional information we can give on the discussions. Another meeting is due on 1 December, and from what we can gather, discussions are going well—I have heard this from both the Welsh Government side and our own Treasury side. I will endeavour to give an update as to where we are on 1 December. If we are able to give additional information, I will be happy to do that—but to some extent that will depend on the consent of the Welsh Government as well as our own Government. I do not foresee any problem on that, but obviously that is for them to determine. The date of the legislative consent Motion is dependent not just upon having the fiscal framework agreed, as I understand it; it then has to be considered by the Constitutional and Legislative Affairs Committee of the National Assembly—I can see that the noble Baroness, Lady Morgan, is indicating agreement to that.
Lord Elis-Thomas
My Lords, I understand that the committee is about to begin consideration.
Lord Bourne of Aberystwyth
I am most grateful to the noble Lord, who I know sits on that committee and plays a leading part in it. I assure the noble Lord that if I can help and be forthcoming with any information, it will be made available.
On the other issue raised by the noble Lord, Lord Hain—the fiscal framework and the discussions on it—first, it is not for me to enter into these negotiations. They are going on between the Treasury and Welsh Government Ministers, and whatever my political differences with Carwyn Jones, Mark Drakeford and others, I have no doubt about and in fact have the highest opinion of their abilities and insight. This is a consensual arrangement. If they do not want an agreement on proposed terms, they have the option of not saying so—and if there is no legislative consent Motion, there is no Bill. So there is no question of a pistol being applied to anybody’s head; the issue is for the National Assembly to determine.
Having been there, I have the greatest respect for the Ministers and officials. That is being hammered out, I gather that robust discussions are taking place and I am sure, and hope, that they are considering the best interests of Wales. But any representations by noble Lords opposite should be made to the First Minister, the Finance Minister and others in those discussions. It is not for me or for us to shadow manage what they are doing—and, I am sure, doing very effectively.
That probably summarises the Government’s position. I have given the undertaking sought; I will do my best to make information available on the fiscal discussions as they become available. I understand what noble Lords say about protecting Welsh interests, but under these devolved Administrations and in these devolved days, it is for the Welsh Ministers and the National Assembly for Wales to bring forward the legislative consent Motion. With that, and with those undertakings, I urge the noble Lord to withdraw his amendment and other noble Lords not to press their amendments.
Lord Rowlands
My Lords, I listened carefully to the Minister, as always, and I am fascinated by this concept of “reciprocal” and the promise of a letter that will describe to us how this will work or has worked. Does the Welsh Assembly exercise such power to intervene to change English legislation?
Lord Bourne of Aberystwyth
My Lords, I am not sure whether it has, but I will try to give the noble Lord that information. The material point is that it can, just as we can. I am not sure how many times that has been exercised, but I will endeavour to cover that in the letter.
Lord Rowlands
Again, I shall look forward to that letter. I do not know how other noble Lords feel but I just find it very difficult to believe that there should not be a provision of the kind we have been trying to introduce. If the United Kingdom Parliament chooses, unilaterally, to seek to amend legislation that belongs to the National Assembly, it has to have some form of consent or approval. That is a fundamental principle of constitutional propriety and property.
Lord Bourne of Aberystwyth
Another point that I had meant to mention—again, I will cover it in the letter; I appreciate that it does not fully answer the point but I shall try to give examples—is that the identical power exists in relation to Scotland.
Lord Rowlands
I am looking forward to this collection of letters—a few have already been mentioned. I am happy to beg leave to withdraw the amendment but I warn the Minister that we will come back to this issue on Report.
“PRESIDENT OF WELSH TRIBUNALSPART 1APPOINTMENTDuty to fill vacancies
1 (1) If there is a vacancy in the office of President of Welsh Tribunals, the Lord Chief Justice must appoint a person to that office.(2) Sub-paragraph (1) does not apply to a vacancy while the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers all agree that it may remain unfilled.(3) In this Schedule “the Lord Chief Justice” means the Lord Chief Justice of England and Wales.The two routes to appointment: agreement under this paragraph or selection under Part 2
2 (1) The Lord Chief Justice, before he or she may appoint a person to the office of President of Welsh Tribunals, must consult—(a) the Lord Chancellor, and(b) the Welsh Ministers.(2) Sub-paragraphs (3) and (4) apply if—(a) the outcome of consultation under sub-paragraph (1) is agreement between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers as to the person to be appointed, and(b) the person holds or has held office as—(i) an ordinary judge of the Court of Appeal in England and Wales, or(ii) a puisne judge of the High Court.(3) The Lord Chief Justice must appoint the person to the office of President of Welsh Tribunals, subject to sub-paragraph (4).(4) Where the person—(a) declines to be appointed, or does not agree within a time specified to him or her for that purpose, or(b) is otherwise not available within a reasonable time to be appointed,the Lord Chief Justice must, instead of appointing the person, consult afresh under sub-paragraph (1).(5) If the Lord Chief Justice has consulted under sub-paragraph (1) but sub-paragraphs (3) and (4) do not apply following that consultation, he or she must make a request to the Judicial Appointments Commission (“the Commission”) for a person to be selected for appointment to the office of President of Welsh Tribunals.PART 2SELECTION BY THE JUDICIAL APPOINTMENTS COMMISSIONEligibility for selection
3 A person is eligible for selection in pursuance of a request under paragraph 2(5) only if he or she satisfies the judicial-appointment eligibility condition on a 7-year basis.The selection process
4 (1) On receiving a request from the Lord Chief Justice under paragraph 2(5) the Commission must appoint a selection panel. (2) The panel must have an odd number of members not less than five.(3) The members of the panel must include—(a) at least two who are non-legally-qualified,(b) at least two judicial members, and(c) at least two members of the Commission.Contributions to meeting more than one of the requirements may be made by the same person’s membership of the panel.(4) The panel must—(a) determine the selection process to be applied;(b) apply the selection process;(c) make a selection accordingly.(5) As part of the selection process the panel must consult—(a) the Lord Chancellor;(b) the Welsh Ministers.(6) One person only must be selected for the appointment to which a request relates.(7) Sub-paragraph (4) applies to selection under this paragraph and to selection under regulations made under paragraph 7.(8) A selection panel is a committee of the Commission.Merit and good character
5 (1) This paragraph applies to any selection by a selection panel appointed under paragraph 4.(2) Selection must be solely on merit.(3) A person must not be selected unless the selection panel body is satisfied that he or she is of good character.(4) Neither “solely” in sub-paragraph (2), nor Part 5 of the Equality Act 2010 (public appointments etc), prevents the selection panel, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within—(a) the group of persons who hold offices for which there is selection by panels appointed by the Commission, or(b) a sub-group of that group.Encouragement of diversity
6 (1) A selection panel appointed under paragraph 4, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection.(2) This paragraph is subject to paragraph 5.Regulations about selection
7 (1) The Lord Chancellor must by regulations made with the agreement of the Lord Chief Justice and the Welsh Ministers—(a) make further provision about the process to be applied in a case where the Commission receives a request under paragraph 2(5);(b) make further provision about—(i) membership of selection panels appointed under paragraph 4, and(ii) the process that is to be applied in a case where a selection panel is required to be appointed under that paragraph;(c) secure, subject to paragraph 8 and any provision within paragraph (2)(d) that is included in the regulations, that in every case referred to paragraph (a) or (b)(ii) there will come a point in the process when a selection has to be accepted, either unconditionally or subject only to matters such as the selected person’s willingness and availability, by or on behalf of the Lord Chief Justice.(2) The regulations may in particular— (a) provide for process additional to the selection process applied under paragraph 4(4), including post-acceptance process;(b) make provision as to things that are, or as to things that are not, to be done—(i) as part of the selection process applied under paragraph 4(4), or(ii) in determining what that process is to be;(c) provide for paragraph 4(4)(c) not to apply where, or to the extent that, the Commission decides that the selection process applied under paragraph 4(4) has not identified candidates of sufficient merit for it to comply with paragraph 4(4)(c);(d) give powers to the Lord Chief Justice, including—(i) power to require a selection panel to reconsider a selection under paragraph 4(4) or any subsequent selection,(ii) power to reject a selection under paragraph 4(4) or any subsequent selection, and(iii) power to require the reconsideration of a decision mentioned in paragraph (c);(e) provide for particular action to be taken by the Commission or a selection panel after the panel has complied with paragraph 4;(f) provide for the dissolution of a selection panel appointed under paragraph 4;(g) provide for a person to cease to be a member of such a panel where the person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s members;(h) provide for a person to become a member of such a panel where another person ceases to be a member of the panel or where another person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s members;(i) make provision for or in connection with assessments, whether pre-acceptance or post-acceptance, of the health of persons selected;(j) provide for the Lord Chief Justice to nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise functions given to the Lord Chief Justice by the regulations;(k) make provision as to the meaning of “non-legally-qualified” and “judicial member” in paragraph 4(3).(3) Regulations under this paragraph—(a) may make different provision for different purposes;(b) may make transitory, transitional or saving provision.(4) The power to make regulations under this paragraph is exercisable by statutory instrument.A statutory instrument containing regulations under this paragraph may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(5) This paragraph is subject to paragraph 8.Withdrawal and modification of requests
8 (1) The Lord Chief Justice may withdraw a request under paragraph 2(5)—(a) with the agreement of the Welsh Ministers, or(b) if, after consulting Welsh Ministers, the Lord Chief Justice considers the selection process determined by the selection panel is not satisfactory, or has not been applied satisfactorily.(2) The Lord Chief Justice may modify a request under paragraph 2(5) with the agreement of the Welsh Ministers. (3) If a request is withdrawn in part or modified, the selection panel may, if it thinks it appropriate because of the withdrawal or modification, change any selection already made pursuant to the request, except a selection already accepted.(4) The Lord Chief Justice may not withdraw a request under sub-paragraph (1)(b) if a selection made pursuant to the request—(a) has been accepted unconditionally or subject only to matters such as the selected person’s willingness and availability, or(b) in exercise of power conferred by regulations under paragraph 7, has been rejected or required to be reconsidered.(5) Any withdrawal or modification of a request must be by notice in writing to the Commission.(6) In the case of a withdrawal of a request, the notice must state whether it is under sub-paragraph (1)(a) or (b).(7) In the case of a withdrawal under sub-paragraph (1)(b), the notice must state why the Lord Chief Justice considers the selection process determined by the selection panel is not satisfactory, or has not been applied satisfactorily.(8) If or to the extent that a request is withdrawn—(a) the preceding provisions of this Part of this Schedule cease to apply in relation to it;(b) any selection made on it is to be disregarded.(9) Withdrawal of a request to any extent does not affect the power of the Lord Chief Justice to make another request in the same or different terms.Effect of acceptance of selection
9 (1) Subject to the following provisions of this paragraph, where the Lord Chief Justice accepts a selection made under paragraph 4(4) he or she must appoint the person selected.(2) Before making the appointment the Lord Chief Justice may direct the Commission to make arrangements in accordance with the direction—(a) for any assessment of the health of the person selected that the Lord Chief Justice considers appropriate, and(b) for a report of the assessment to be made to the Lord Chief Justice.(3) Sub-paragraph (4) applies in any of the following circumstances—(a) the Lord Chief Justice notifies the Commission that he or she is not satisfied on the basis of a report under sub-paragraph (2)(b), having consulted the Welsh Ministers, that the health of the person selected is satisfactory for the purposes of the appointment;(b) the person selected declines to be appointed, or does not agree within a time specified to him for that purpose;(c) the person selected is otherwise not available within a reasonable time to be appointed.(4) Where this sub-paragraph applies—(a) the selection accepted and any previous selection for the appointment are to be disregarded;(b) the request pursuant to which the selection was made continues to have effect;(c) any subsequent selection pursuant to that request may be made in accordance with the same or a different selection process.PART 3TERMS OF OFFICETenure, removal, resignation etc
10 (1) If— (a) a person is appointed to the office of President of Welsh Tribunals on terms that provide for him or her to retire from the office at a particular time specified in those terms (“the end of the fixed term”), and(b) the end of the fixed term is earlier than the time at which the person is required by the 1993 Act to retire from the office,the person shall, if still holding the office at the end of the fixed term, vacate the office at the end of the fixed term.(2) Subject to sub-paragraph (1) (and to the 1993 Act), a person appointed to the office of President of Welsh Tribunals holds that office during good behaviour, subject to a power of removal by Her Majesty on an address presented to Her by both Houses of Parliament.(3) It is for the Lord Chancellor to recommend to Her Majesty the exercise of the power of removal under sub-paragraph (2).(4) In this paragraph “the 1993 Act” means the Judicial Pensions and Retirement Act 1993.11 A person who holds the office of President of Welsh Tribunals may at any time resign that office by giving the Lord Chief Justice notice in writing to that effect.12 (1) The Lord Chief Justice, if satisfied by means of a medical certificate that a person holding the office of President of Welsh Tribunals—(a) is disabled by permanent infirmity from the performance of the duties of the office, and(b) is for the time being incapacitated from resigning the office,may, subject to sub-paragraph (2), by instrument under his or her hand declare the person to have vacated the office; and the instrument has the equivalent effect for all purposes as if the person had on the date of the instrument resigned the office.(2) A declaration under sub-paragraph (1) with respect to a person is of no effect unless it is made with the concurrence of—(a) the Lord Chancellor, and(b) the Welsh Ministers.Remuneration, allowances and expenses
13 The Welsh Ministers may pay to the President of Welsh Tribunals whatever amounts they determine in respect of—(a) remuneration;(b) allowances;(c) expenses.Oaths
14 (1) A person appointed to the office of President of Welsh Tribunals must take the required oaths in the presence of—(a) the Lord Chief Justice, or(b) another holder of high judicial office (as defined in section 60(2) of the Constitutional Reform Act 2005) who is nominated by the Lord Chief Justice for the purpose of taking the oaths from the person.(2) Sub-paragraph (1) applies whether or not the person has previously taken the required oaths after accepting another office.(3) In this paragraph “the required oaths” means—(a) the oath of allegiance, and(b) the judicial oath,as set out in the Promissory Oaths Act 1868.”
“6A In section 116M (duty to disclose information on Welsh land transactions to HMRC), in subsection (1), for “A person who is a member of the Welsh Government” substitute “The Welsh Revenue Authority”.”
“Judicial Pensions and Retirement Act 1993 (c. 8)
48A In Schedule 5 to the Judicial Pensions and Retirement Act 1993 (retirement provisions: the relevant offices), after the entry for the Senior President of Tribunals insert—“President of Welsh Tribunals”.”
“52A In section 77 of that Act (adjudications) omit subsection (5).”
“Constitutional Reform Act 2005 (c. 4)
55A In section 109 of the Constitutional Reform Act 2005 (disciplinary powers: interpretation), in subsection (5), after paragraph (da) insert— “(db) President of Welsh Tribunals;”.”
“Commissioners for Revenue and Customs Act 2005 (c. 11)
56A In section 18 of the Commissioners for Revenue and Customs Act 2005 (confidentiality), in subsection (2)(j), for “the Welsh Ministers” substitute “the Welsh Revenue Authority”.”
“Tribunals, Courts and Enforcement Act 2007 (c. 15)
59A(1) Section 47 of the Tribunals, Courts and Enforcement Act 2007 (co-operation in relation to judicial training, guidance and welfare) is amended as follows.(2) In subsection (4)(a) and (b), after “the Senior President of Tribunals” insert “or the President of Welsh Tribunals”.(3) In subsection (5)(c)—(a) omit “or” at the end of sub-paragraph (iii);(b) at the end insert “, or(v) a judge, or other member, of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals).””
“Welsh Language (Wales) Measure 2011 (nawm 1)
82A In the Welsh Language (Wales) Measure 2011 omit section 124 (practice directions).”
“(e) section 41, and sections 37(4) and (6) and 40(4) for the purposes of section 41.”