Wales Bill

Lord Elis-Thomas Excerpts

Monday 7th November 2016 Lords Chamber

Moved by

[Lord Elis-Thomas]

25: Clause 18, page 17, line 33, at end insert—
“(e) those functions of a Minister of the Crown specified in paragraph 11(1)(b) to (e) of Schedule 7B.”

[Lord Elis-Thomas (Non-Afl)]

My Lords, we come to the end of our scrutiny of Part 1 and to the group of clauses subtitled, “Executive competence etc”. The Minister will not be surprised to know that I am particularly interested in the “etc”, because the issue of the competence of the Assembly and how it is defined in law is one that he and I have followed throughout our political careers in Welsh devolution—or should we now say “Welsh reserved matters”? The Assembly has developed away from a body that did not have an Executive: the notion of an elected body—that is, the legislature—and a Government—an Executive—were confused in the original Government of Wales Act 1998, which was really a rewritten version of the Wales Act 1978. But that was the form of constitution with which we had to work. It is not just a matter of what politicians work with but the understanding of the constitution outwith the political class and the ability of the electorate to engage with the constitution that I have always been deeply concerned about.

I am not sure where we are going in the detail of this Bill. In the attempts to define the functions of Ministers and the transfer of ministerial functions, which we are dealing with in these clauses, we have not moved much further in clarity of understanding of what devolved matters are about and how Ministers derive their functions. I pray in aid the Explanatory Notes, which in introducing us to the delights of Clause 18 tell us about new Section 58A, inserted into the Government of Wales Act 2006, which seems to be taken as the urtext of our constitution—I may come back to that later this evening with the question of consolidation. The Explanatory Notes emphasise that that new section inserted into the Act,

“confers common law type powers on Welsh Ministers; these powers are described as executive ministerial functions and they will be exercisable both in relation to devolved functions and ancillary to  executive functions conferred on”,

Ministers in reserved areas. It goes on to say:

“Subsection (5) defines what is meant by an executive function; this does not include any prerogative functions”.

Clearly, the earlier Statement in this House, repeated from the Commons, and the judgment of the High Court has been much about the definition of “prerogative” and its limits and potential in defining what Ministers can do. If we are being told that Welsh Ministers have no functions by virtue of any legislation or the prerogative, how do they derive their functions? There is no explanation known to me or my advisers for the exclusion to which I have just referred.

During the debate in the other place, the Government said that they intended to transfer,

“as many of these functions as we can”.—[Official Report, Commons, 5/7/16; col. 835.]

That is, they will transfer to Welsh Ministers pre-commencement functions and devolved powers. What is the present ministerial position on that, and on the draft transfer of functions order which was promised to be brought forward in later stages of the Bill? In particular, I would like a clearer explanation of why the approach adopted in the Scotland Act 1998 has not been adopted in how we define the functions of Welsh Ministers. I beg to move.

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[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.

[Lord Elis-Thomas]

My Lords, I will take up the Minister’s offer of a meeting, not that I want to add to his diary which is obviously very busy during the passage of the Bill. I know that he understands my concern about the general failure of the Bill to move us forward and provide a stronger basis for both the functions of Ministers and the operation of the National Assembly itself. I will not pursue that, because I am leading on the next amendment. I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

--- Later in debate ---

Moved by

[Lord Elis-Thomas]

28: Clause 18, page 18, line 4, at end insert—
“(6A) In this section and section 58AA, “within devolved competence” and “outside devolved competence” are to be read in accordance with subsections (7) and (8); but for the purposes of section 58AA no account is to be taken of the requirement to consult the appropriate Minister in paragraph 11(2) of Schedule 7B.”

[Lord Elis-Thomas]

We come to a further elaboration of the relationship between ministerial functions and those of the Assembly. This is a basic constitutional issue which we have failed to address throughout the years of the pursuit of the holy grail which United Kingdom Governments of both parties and one coalition keep calling a “settlement” of Welsh devolution. I think I have said in this House—I have certainly said it in the Assembly—that there is no such thing as a settlement of democracy or politics: it always evolves. If we are looking for something akin to what is available in Scotland and Northern Ireland, which is what I would look for in the context of the United Kingdom, then this Bill does not deliver it, particularly in the area of the relationship between the definitions of ministerial functions and the competence of the Assembly. In her evidence in July, the chief legal adviser to the National Assembly, Elizabeth Jones, referred the constitutional committee—to which, I am happy to announce, I have recently been re-elected following my change of description—to the position, put forward by the former Presiding Officer, that,

“the situation in Wales should be equivalent with Scotland; that is that all ministerial functions, functions of Ministers of the Crown, exercisable within devolved areas … should lie with Welsh Ministers. From a constitutional law point of view, that would be a very logical situation and would also increase the clarity of the settlement very considerably”.

I must pursue this. Perhaps I could discuss it with the Minister at the same meeting he gave me the option of having earlier when we discussed the royal prerogative. It seems to me that the aligning of executive functions of Welsh Ministers with the legislative competence of the National Assembly would address some of the complexity that will arise in relation to the Minister of the Crown consent in the current regime. If there was such an alignment, then UK government consent would not be needed before the National Assembly could affect UK Ministers’ functions in devolved areas because those functions would already have been transferred to Welsh Ministers. These are the issues that I am trying to pursue in this series of amendments. The Minister will, no doubt, be aware of and have read the report of the Constitutional and Legislative Affairs Committee of the National Assembly, whose work in this area is equivalent only to the work of the Constitution Committee of this House. We have been so exercised by the attempt to make sense of the devolution structure with which we have to work that I do hope it will be possible for the Minister to consider whether a move towards the alignment of legislative and executive competence would not clarify the devolution structure much more effectively. I beg to move.

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[Lord Bourne of Aberystwyth]

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

[Lord Elis-Thomas]

My Lords, I am grateful to the Minister yet again for his generosity in responding to the arguments. We await his further consideration and, no doubt, will have further discussions with him. As the former Member of Parliament and now the Assembly Member for a particular length of the River Dee, I certainly would not want to deprive customers anywhere on either side of the Marches of Wales of their water supply. It is a bit rich, when we revert to this exceptional issue, to suggest to the noble and learned Lord, Lord Hope, that because the rivers in Scotland apparently flow into the sea rather than into England, the situation in Scotland is somehow different. We need weightier arguments on that issue than we have had.

However, I am grateful to all noble Lords who have participated in the debate. The noble Lord, Lord Howarth, emphasised the need for clarity and accountability. That is exactly the clarity that all of us who have tried to build and rebuild the devolution settlement in Wales seek. I was particularly grateful, as always, to the noble Lord, Lord Thomas of Gresford, for his incisive questioning, and, of course, to the noble Baroness, Lady Morgan of Ely, whom I affectionately earlier called the red baroness. I hope that did not cause her offence. Perhaps I called her that in the Assembly; I keep confusing the Assembly and this Parliament. I will withdraw the amendment but I give way to the noble Lord.

[Lord Crickhowell (Con)]

I propose to speak later on the water issue but the noble Lord observed that the rivers in Scotland flow straight into the sea. As a former chairman of the National Rivers Authority, I can assure him that the Solway does not flow straight into the sea; it flows from Scotland through England. We had considerable difficulties when we tried to charge the Scots for the work we did on fisheries on one side of the border, so there is not even that exception to justify the treatment. I hope we can move to simplicity and clarity in the Bill, something I have urged all along. I am grateful to noble Lords who have spoken for their clarity and brevity on this constitutional issue, in contrast to the extraordinary verbosity with which a so-called constitutional issue was addressed earlier this evening.

[Lord Elis-Thomas]

I do not think it is for me to comment on that. I am grateful to the noble Lord, who was a very distinguished Secretary of State and took many initiatives from which we benefited in Wales. He was certainly an extremely distinguished chair of the National Rivers Authority. I can never forget that. I recognise that there are exceptions in Scotland and in Wales. Perhaps one day we will legislate in this House in a way that removes this notion of a border between England and Wales. As a late medieval scholar, I always thought that everywhere within a 40-kilometre band of the so-called political border was the Marches. I beg leave to withdraw the amendment.

Amendment 28 withdrawn.