Wales Bill

Debate between Lord Bourne of Aberystwyth and Lord Elystan-Morgan

Report: 1st sitting: House of Lords
Wednesday 14th December 2016 Lords Chamber

[Lord Bourne of Aberystwyth]

That is a drafting point. The noble Lord makes a fair point, but I can give the reassurance that there is certainly no intention on the part of the Government that this should not happen. It is something that is proceeding. I can confirm that it is the Government’s intention. We want this to happen and I believe that it will happen. I am not taking a pessimistic view of this. The noble Lord makes a fair point about the drafting, which I had not picked up—but sometimes these things are referred to as “may” and sometimes as “must”. From our point of view, we regard this as imperative.

[Lord Elystan-Morgan]

From what the Minister says, it seems pretty obvious that the protocol will not be in existence before the Bill receives royal assent. So one will be left with some sketch on the part of the Minister. That is not the ideal way of doing things, but I am sure that we would be prepared to accept the word of the Minister on what the basic content of the protocol will be.

Wales Bill

Debate between Lord Bourne of Aberystwyth and Lord Elystan-Morgan

Committee: 3rd sitting (Hansard): House of Lords
Tuesday 15th November 2016 Lords Chamber

[Lord Elystan-Morgan (CB)]

I support the amendment for the reasons that have been placed before the House. I raise one question that is common to this and to all the other matters involving the reserved elements of the Bill. I ask the Minister not so much as a Minster of the Crown but also as a distinguished professor of law who understands these issues well. Harken back to the undertaking that was given solemnly, and I have no doubt sincerely, by the then Prime Minister on the day after the Scottish referendum result when he said that Wales was at the very heart of devolution. To my mind, those were not intended to be empty words of adulation but to be an undertaking solemnly given to the people of Wales. I take them in that spirit. My question applies to this and to all the matters reserved that we regard as being trivial and unworthy of reservation. It is this: how does being at the heart of devolution square first with the principle of home rule, secondly with the concept that every decision should be taken at as local a level as possible and thirdly with a healthy interpretation of the concept of devolution? Those are not three different matters at all. At some point they seem to coalesce.

Ships in olden days took their position at noon, but nowadays with sophisticated technology that is no longer necessary. I would like to know what the position is at noon, as it were, in relation to Welsh devolution. I put that to the Minister with very great respect knowing that he will react reasonably to it.

[Lord Bourne of Aberystwyth]

My Lords, I thank all noble Lords who have participated in the debate on Amendment 53, in particular the noble Baroness, Lady Morgan of Ely, who moved it. It seeks to reserve sea fishing outside the Welsh zone but makes an exception to that reservation for Welsh fishing boats. The notional effect of the amendment would be that the Assembly would have legislative competence for Welsh vessels outside the Welsh zone. However, in practical terms the amendment would have no effect because it seeks to reserve a power which the Assembly could not have. Under the Government of Wales Act 2006 and under this Bill, the Assembly’s legislative competence extends to the landmass of Wales and the sea adjacent to Wales out as far as the seaward boundary of the territorial sea; that is, 12 nautical miles, so as drafted it could have no effect. The Assembly has no legislative competence beyond that 12 miles—

Wales Bill

Debate between Lord Bourne of Aberystwyth and Lord Elystan-Morgan

Committee: 3rd sitting (Hansard - continued): House of Lords
Tuesday 15th November 2016 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I greatly appreciate the kind and generous words of the noble Lord, Lord Thomas of Gresford, on S4C. I support the amendment completely, but there is a possible compromise, if I may be so bold as to suggest it. Many months ago, when the question of the BBC charter was mentioned, I asked the Government whether they would be prepared to have in-built in the charter a guarantee on the adequate financing of S4C as well as on its independence and future. The reply that I received was somewhat anodyne, but I was assured that so great was the affection of Her Majesty’s Government for the Welsh language that I had nothing to fear at all. It may be that that is a compromise that would guarantee effectively the future of S4C, its independence and its finance, and I commend it to the noble Lord.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for moving this amendment on Welsh language broadcasting and other Welsh language media—and I note that that is the exception that is set down. I do not think that it is limited to S4C, as some noble Lords have assumed. It is not. I join other noble Lords in applauding the work of S4C; it is an extraordinarily strong and effective institution that does marvellous work for Wales in relation to the language and more broadly, and it has totemic significance and real significance and generates jobs in the Welsh media sector, which is important.

As the noble Lord said, it is absolutely right that the Silk commission recommended that funding the public expenditure element for S4C should be devolved to the Assembly. It was part of its recommendations but was not taken forward in the St David’s Day proposals: I understand that it was considered in that process but there was no consensus round it. It is also worth noting that as recently as June last year, the Welsh Government said, through Minister Ken Skates, that they could not support the devolution of broadcasting. Admittedly, that was said across the piece but it was the general position.

Where does that leave us? I will try to give an update on the financial commitments made by the Government, in response to the noble Lord, Lord Elystan-Morgan, and other noble Lords. The Government have agreed that funding for S4C—as opposed to Welsh language broadcasting—would be protected in 2016-17 at its current level of £6.8 million. The settlement for Exchequer funding in following years was set out at the 2015 spending review, and in September the BBC confirmed that it will protect licence-fee funding for S4C at £74.5 million until 2022. That is beyond the length of this Parliament, as noble Lords will be aware. The Government then committed to a comprehensive review of S4C in 2017, covering its remit, funding and governance to ensure that the broadcaster can continue to meet the needs of Welsh-speaking audiences in the future. I will endeavour to find out if we have any further details on the process and will write to noble Lords to update them on what the timetable is.

Broadcasting is different from almost any other area of activity in that it is international, national UK and national Wales. I am conscious of the fact that, historically, many people have been quite keen to see S4C’s budget settled in Westminster because they thought it was safer here that it would be in Wales—I had better be careful what I say. I notice a change of tenor in that position. Given that the Welsh Government do not seem to be seeking this, and given that there was no consensus in the St David’s Day process, I will have a look at it. I am very content to discuss this with the noble Lord, Lord Wigley, and others to see if there is anything we can do to strengthen the position of S4C and the involvement of the Welsh Government—a point raised by the noble Baroness, Lady Morgan. I appreciate what the noble Baroness, Lady Randerson, has said on the issue of the difficulty of broadcasting. As I said, it is internationalised in many ways so is unique among activities.

I am very conscious of the fact that the noble Baroness, Lady Morgan, was photocopying “Fireman Sam” scripts at S4C, so spoke with great authority. My first job in life was loading Britvic bottles on a production line. We had very different experiences: the noble Baroness was more clerical and managerial than I was in those heady student days. I appreciate that this is an important area and I will have another look at it and speak to the noble Lord, Lord Wigley, to see if there is anything we can do to strengthen this position. I hope that, with that, he will be content to withdraw the amendment.

Wales Bill

Debate between Lord Bourne of Aberystwyth and Lord Elystan-Morgan

Monday 7th November 2016 Lords Chamber

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

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

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

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

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

[Lord Elystan-Morgan (CB)]

My very short and technical question is whether it is humanly possible, in any event, for prerogative powers to apply to a Parliament of the nature of the devolved Welsh Administration. As I tried to say in a contribution earlier this afternoon, the royal prerogative derives from what started off as a monarchical diktat, curbed by Coke in 1610, very largely whittled away during the Civil War, and largely defined during the First World War—the noble Lord will remember the case of the Attorney-General v De Keyser’s Royal Hotel Limited. By now, there is hardly a remnant left, but I submit that that remnant can remain only with the mother Parliament.

[Lord Bourne of Aberystwyth]

The noble Lord jogs my memory on the Attorney-General v De Keyser’s Royal Hotel Limited which was a compulsory purchase situation. I believe that he is right and he speaks with great authority. I am always stunned by the noble Lord’s recall of these matters, without any note. I am confident that he is right on this issue, but nevertheless I am very happy to meet with the noble Lord, Lord Elis-Thomas, to look at it further.

I was also asked about the transfer of powers, which we are doing by transfer of function order rather than in the Bill. I have notified noble Lords of the functions that we have identified that will be transferred to Ministers. We are consulting with the Welsh Government in case they find any more that we have missed. I do not think that is the case, but if it is we will, of course, amend the transfer of functions orders.

The noble Baroness referred to and welcomed Amendments 31 to 35, which add a number of additional fisheries management functions to the licensing functions already being transferred to Welsh Minsters. These are management functions under the Sea Fish (Conservation) Act 1967. The noble Baroness has said that she is happy with this but it could go further. I will go away and take a look at it, reflect on what she has said and come back to it on Report. On that basis, I urge the noble Lord, Lord Elis-Thomas, to withdraw his amendment.

Wales Bill

Debate between Lord Bourne of Aberystwyth and Lord Elystan-Morgan

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

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on this part of the Bill. I particularly thank the noble Lord, Lord Elystan-Morgan, for moving the amendment with such fluency and commitment, although he will know that I disagree with him fundamentally, particularly on the first of the two amendments in this group.

Through their Amendments 45 and 46, the noble Lords, Lord Elystan-Morgan and Lord Wigley, seek to place new duties on the Secretary of State for Wales to review the constitutional arrangements for Wales and the operation of the Wales Bill that we are putting in place. Indeed, through Amendment 45—at least on the wording, although I accept what the noble Lord, Lord Elystan-Morgan, has said—they seem to be proposing that the Secretary of State of State be required to review Wales’s readiness for independence. I can act only on the basis of how the dominion status has operated in the past. The Statute of Westminster 1931 is expressly referenced in the amendment. There is no appetite for this proposal in Wales. Both noble Lords will know that that is shown in opinion polls and at the ballot box.

The Statute of Westminster established the dominions as sovereign states and enshrined in law the principle that no legislation made in this Parliament could apply to the dominions unless a dominion requested it. We cannot possibly agree to that. It also provided that the Parliaments of the dominions would have the power to amend or repeal any previous legislation made by this Parliament. Therefore, we cannot possibly agree to what is proposed. As a representative of a London-based polity, as it is called, I do not believe this proposal is wanted in England and it is certainly not wanted in Wales either.

Through Amendment 46, the noble Lords are seeking to place a new duty on the Secretary of State for Wales to establish a working group to review Schedule 1, which sets out the reservations, as soon as possible after it comes into effect and to report on reservations that should be removed within three years of the principal appointed day—the day on which the new reserved model comes into force under Clause 55.

Once again, we have a measure in front of us to set up yet another commission or working party to look at constitutional arrangements. I do not believe that would be welcomed in Wales. We have a duty to get on with the job on this Bill. I ask the noble Lord, Lord Elystan-Morgan, to withdraw his amendment.

[Lord Elystan-Morgan]

My Lords, on the question of dominion status, I was tempted to make the mischievous point that for many centuries Wales was a dominion in law. The actual wording of the Act of Union of 1536 refers to the,

“dominion, principality, and country of Wales”,

so that wording has been there for many centuries. However, that is a mischievous point, probably made much too late at night.

Some years ago, a good friend said to me, “You could be a very nice chap if you did not tilt at the English so often”. I am not sure what a nice chap was intended to mean in that context, or whether I would ever qualify within that definition. However, as far as the second part of his proposition was concerned, I have never tilted at the English. I have immense respect and, indeed, often, admiration for our neighbours. I conceive nationalism in the context of Wales as being a patriotism that knows not the hatred of any other nation. That is what Welsh nationhood and Welsh nationalism at their very best should be and are. I beg leave to withdraw the amendment.

Wales Bill

Debate between Lord Bourne of Aberystwyth and Lord Elystan-Morgan

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

[Lord Elystan-Morgan (CB)]

My Lords, I wholeheartedly agree with the submission made by the noble Lord, Lord Wigley. He has adumbrated all the arguments that I can possibly think of in support of this amendment. It goes to the very heart of the question that this is essentially a contract, not inter-institutional in terms of the mechanics of Westminster, but a contract with the people of Wales.

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

My Lords, I thank the noble Lord, Lord Wigley, for introducing this amendment, and the noble Lord, Lord Elystan-Morgan, for his contribution. The amendment seeks to define the trigger for a referendum to abolish the National Assembly for Wales and the Welsh Government, and would provide that the rules for such a referendum be drawn up by the Assembly in co-operation with the Electoral Commission. Clause 1 meets the Government’s commitment in the St David’s Day agreement and delivers the Silk commission’s recommendation that it should be recognised that the National Assembly is permanent so long as that is the will of the majority of the people of Wales. New Section A1(3), in Clause 1, states:

“In view of that commitment it is declared that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum”.

As matters stand, referendums are governed by the law relating to referendums, as passed by this Parliament, and I do not consider that there is any suggestion that that should be varied. The principle in the Bill establishes in statute what is already recognised to be the case—that the National Assembly for Wales and the Welsh Government are permanent parts of our constitutional fabric. The referendum provision strengthens this commitment and delivers on the second limb of the Silk commission’s recommendation. Although there has never been a question about whether these institutions are anything but permanent, it is only right that if they were to be abolished that would have to be on the basis of a decision by the people of Wales. Let me be clear that such a referendum is not envisaged, and so the noble Lord’s amendment deals with entirely hypothetical circumstances. I therefore believe that it is unnecessary. On that basis, I urge the noble Lord to withdraw the amendment.

[Lord Bourne of Aberystwyth]

My Lords, the noble Lord will know that I do not set out the rules on the sovereignty of Parliament. He will be aware, as I am, that very recently we have seen situations that demonstrate the sovereignty of the people and the sovereignty of this Parliament, so nothing I say could obviate the possibility of a Parliament coming forward subsequently and reversing that. For example, it would be open to any Parliament here to repeal the Government of India Act. That would not be a sensible move and would not be politically realistic, but in terms of the sovereignty of Parliament, of course, that remains the case. This is an important declaratory principle that has not existed previously, indicating the permanence of the institution and the fact that it is the belief of this Parliament that it should not be done without the consent of the people of Wales.

[Lord Elystan-Morgan]

Does the Minister agree that this matter would be caught by the words of new subsection (6) in Clause 2:

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

In other words, it is the Sewel covenant. The Government would fall foul of that, it seems, if they were to act in a cavalier way.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his assistance on this matter. He is right that this provision gives that convention statutory force but, of course, it does contain the word “normally”; therefore it is still subject to the will of the Parliament of the United Kingdom. He is right that in normal circumstances that would be impossible to do.

Wales Bill

Debate between Lord Bourne of Aberystwyth and Lord Elystan-Morgan

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

[Lord Bourne of Aberystwyth]

My Lords, I do not think that I said that. I said that it signals that it is not justiciable. I am making the point that noble Lords have been making about the generality of the phrase and that it is difficult to define, and it means that if Parliament decides something it can decide that this is not normal. That is the point about it. As I say, I will take it back and see whether we can accomplish what noble Lords are seeking in guidance.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that there are two problems here? First, the bar is set at a very low level—a level of “normality”. Secondly, as far as the word “normal” is concerned, although of course it appears in the two Scotland Acts, it does not seem ever to have been judicially interpreted in the courts. That is a considerable weakness. I take the Minister’s point that in a way it is a matter for Parliament to define itself—to define its own metes and bounds—which bearing in mind its absolute sovereignty are untrammelled, but nevertheless it is a crucial word in an Act of Parliament and as such it must be interpretable by the courts. I am afraid that, if the matter were raised before the higher courts now, they would say that “normal” means something that is not abnormal and they would leave us in the mists of uncertitude in that way.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his comments and for clarifying what I was intending to say, and I apologise if I had not made that absolutely clear. I have taken on board the points that are being made. I said that we will look at this in guidance, but as I have indicated there is a need for room for manoeuvre here, so I will take the points back and look at them.