Wales Bill

Lord Elis-Thomas Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 23rd November 2016 Lords Chamber

I therefore have very great pleasure in moving the amendment.

[Lord Elis-Thomas (Non-Afl)]

My Lords, it is a delight to follow my noble friend Lord Rowlands, whom I first met as an extremely enthusiastic Welsh Office Housing Minister in 1974. He is as enthusiastic as ever, and his enthusiasm for devolution and for protecting and developing it and everything to do with Welsh administration has not waned since that time.

As is often the case with our parliamentary Bills, the description of Clause 55 and Part 4 as “consequential provision” is totally inappropriate. I shall mainly address the amendments in my name in the group. Whenever I see the name of the Secretary of State for Wales—the name of the office, I should say, because there are distinguished former Secretaries of State present—referred to in devolution legislation, as a former Presiding Officer, I always ask why. I particularly ask why here for the reasons already set out and on the basis of the evidence given not just to committees of this House—we have heard about the Constitution Committee report—but to the Constitutional and Legislative Affairs Committee of the Assembly. As I announced in the previous debate, I am now returned to that committee, although with a different affiliation.

As we know, it is the responsibility of such committees to look at legislative proposals from a constitutional point of view and assess their validity and constitutional propriety. The discussions of the National Assembly committee included one with the erudite and experienced Constitution Committee of this House. I was delighted that we met together, because it confirmed everything we had thought for ourselves. Therefore, we have the full support and authority of this House in what we are saying, and the authority of the distinguished lawyers I have cited before and will no doubt cite again when we debate these issues.

Professor Thomas Glyn Watkin, in evidence to the Constitutional and Legislative Affairs Committee of the National Assembly on 22 June this year, emphasised that he was just as concerned about the provisions that now appear in Clause 53 as he was when they first appeared in the draft Bill; they have continued or been revived in the current Bill. It is a basic constitutional principle that a United Kingdom Secretary of State should not change legislation made by the elected Assembly of Wales. I would argue that Clause 2 is contrary to that principle. To go back to a discussion that the noble and learned Lord, Lord Judge, and I had in a previous sitting in Committee, how can we state that normally, Parliament will not legislate on behalf of the Assembly on matters which are in the competence of the Assembly, and yet give powers to a Secretary of State to change legislation?

Professor Thomas Watkin’s view is very clear: any power which changes the law of the Assembly should be exercised in the Assembly. It is the Assembly that should be able to say whether it is acceptable to change the law. He goes further: he says that the approach in the clause,

“highlights the fact that the powers of Westminster—even in devolved areas—are still superior in terms of their voice”.

That was said by a senior legal academic in Wales, and those views are shared by Professor Rick Rawlings. There should be further amendment to this clause, as I seek in the amendments in my name, to ensure that the consent of the National Assembly is always required when such a power is exercised. These amendments have the support, as I indicated, of the Constitutional and Legislative Affairs Committee; the imprimatur, if I may so describe it, of the Llywydd, the Presiding Officer; and the advice of the Assembly legal services.

We have to emphasise that in this House we are dealing with absolutely clear constitutional principles. Regulations that seek to change the law but which apply only in Wales and are made by the National Assembly must always be approved by the National Assembly. That is a simple case of constitutional propriety, as has been argued so eloquently already by my noble friend Lord Rowlands. I would regard any attempt by another legislature to change National Assembly law without consent as constitutionally unsound. As I have already said, it goes against the principles of Clause 2.

I know what the Minister will say because we have discussed these matters. He will not accept my amendments, but I ask him to consider whether it is appropriate sometimes that he should apply his well-known constitutional skills and excellence as an academic lawyer to his practice of politics—even in this House—as he used to apply them so effectively when we both developed devolution in those early days together. I know that this is an unfair argument. It is an argumentum ad hominem, which is inappropriate, but I plead with him, even at this stage of our discussions, and certainly between now and Report, to reconsider. I will not say to him what I said once to a senior politician in Wales—“Go and pray”—but I ask him to pray in aid all the legal advice that we have given him in this House.

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[Lord Howarth of Newport]

My Lords, I would like to ask a question of the noble Lord, Lord Elis-Thomas, about his Amendment 117. I am puzzled as to why in the last line of that amendment he has used “or” and not “and”. As drafted, his amendment would allow either House of this Parliament a veto on a statutory instrument made in Wales, and the role and power of the Assembly would be discretionary. That would seem to frustrate his own purpose. I am the more puzzled because in his Amendment 114 he uses “and” and not “or”. I would be intrigued to know why he has altered the drafting between one amendment and the other.

I turn to the amendments just now proposed by my noble friend Lord Hain. I say simply that I strongly support his proposition that the Bill should not become law until a legislative consent Motion has been passed by the Welsh Assembly. It would be ironic in the extreme if these powers were to be imposed upon the Welsh Assembly. I know that the legislation is the product of an enormous amount of consultation between the Government here, the Government in Wales and the National Assembly. None the less, it would seem at the very least a courtesy and clearly appropriate, within the proper spirit of devolution, that the legislative consent Motion should be expected and required from Wales to endorse this legislative enactment.

I also want to say a word about my noble friend Lord Hain’s Amendment 120A. He has given a very serious, important and compelling warning as to the dangers for Wales of being charged with income tax-altering powers—and perhaps coming under pressure actually to use them—without there being a reliable guarantee by the Government of the United Kingdom that Wales will have the resources to enable it to take advantage of those powers towards rates on income tax, without it leading to the fiscal impoverishment of Wales and the wider impoverishment of the Welsh economy and people. I give my strong support to my noble friend’s suggestion that none of the legislation that we have been debating in the Bill should come into force until that fiscal framework is in place. Indeed, I would go further. I suggest to the Minister that we should not proceed to Report on the Bill until we have that fiscal framework, because it seems very difficult for the House rationally to take decisions about what powers should be reserved and devolved in the absence of any clear picture of what resources will be available to Wales from 2020 onwards, following the expiry of present undertakings.

In our debates on the reserved powers, the Minister has been highly constructive and very generous again and again in his willingness to take away the proposals made in various amendments and consider them further. We know that he seeks to provide a decent, generous and sustainable provision for devolution in Wales and it would be helpful to the House, and I dare say even helpful to him, if we did not proceed to a further stage in the passage of this legislation until the Government have also resolved these internal discussions that are taking place. In my view, the Bill was introduced prematurely to Parliament. A huge amount of work had gone into it: there have been many iterations and radical revisions of legislative proposals for devolution to Wales in this phase, and the Minister has always played a constructive part. It would be better, if there is time within this Session of Parliament, if we did not move hastily to Report until both issues have been clarified. What will be the fiscal resources in the longer term and what will be the formula or pattern of fiscal resourcing for Wales? We should not proceed further with the legislative process until the Government are much clearer than they have been hitherto on what exactly it is that they want to devolve.

[Lord Elis-Thomas]

May I extend to the noble Lord the courtesy of responding to his question relating to the amendment standing in my name? In the absence of an effective form of co-legislating between this House and the National Assembly for Wales, what I have sought to do in the process of Committee is to present to this House under my name—because there was no other way of doing it—a series of amendments which have been debated within the work of the constitutional affairs committee. They emanate from the Presiding Officer and in some cases I have even borrowed wording from the Welsh Government, with their permission, and wording from within the committee itself. We are thereby offering the Minister, as he sits before me, a whole choice—a menu—of alternatives to deal with the issues that he has created for himself. I hope that he will be able to take some of them up and that that answers the question.

[Lord Howarth of Newport]

The noble Lord, Lord Elis-Thomas, is not only a master of procedure both in the Welsh Assembly and in this Parliament; he is also most ingenious politically.

[Lord Murphy of Torfaen (Lab)]

My Lords, I support my noble friend Lord Rowlands on his tidy amendment, which comes from a tidy friend. I have had the great pleasure of knowing my noble friend for 46 years; in fact, I was still in the sixth form when he first became a Welsh Member of Parliament. I know that the Minister has been hugely constructive during proceedings on the Bill. I hope that he will listen carefully to the points made by my noble friend, the noble and learned Lord, Lord Judge, and others with regard to Amendment 111.

I also support my noble friend Lord Elis-Thomas on his amendments, particularly on what he said about the role of the Secretary of State for Wales having changed dramatically. When he was a new Presiding Officer and I was a new Secretary of State, I had a desk and a seat in the National Assembly. I also had an office there. When I had finished some years later in 2009, I had lost both my seat and my office. That was a measure of the Assembly growing up and beginning to understand that we do not want Secretaries of State interfering any more in what it does.

[Lord Elis-Thomas]

I am sure that my noble friend will want to explain to the Committee that this happened with the full consent of the holder of the office of Secretary of State, and that our relationship was always one of positive development.

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[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 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.