Wales Bill

Lord Elis-Thomas Excerpts

3rd reading (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Lord Wigley (PC)]

My Lords, I wish to say a few words as we reach the end of the Bill’s passage through the House. Before I do, I have one question for the Minister on the amendments to which he has just spoken with regard to electricity. Will the changes that he has made have any effect whatever on the Swansea Bay project that is going forward? I hope that he will respond to that point.

We have given the Bill considerable scrutiny over recent weeks, which has led to some welcome adjustments but has also focused attention on many issues that we regard as missed opportunities. We feel that the opportunity to enact the carefully balanced Silk package as a whole has been partly lost because of the way it has been approached. The Bill is consequently a bit of a parson’s egg and, as the Minister knows, the reaction in the National Assembly reflects that.

[Lord Elis-Thomas (Non-Afl)]

I think that it is a curate’s egg. I am a Welsh Anglican; I know these things.

[Baroness Warwick of Undercliffe (Lab)]

It is a parson’s nose.

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[Lord Elis-Thomas]

My Lords, I add my thanks to the Minister, who is an old colleague of mine—sorry, not an old colleague but a former colleague—in the National Assembly. His great achievement then, which I have alluded to before, even in this place perhaps, was converting the Welsh Conservative Party into a Welsh Conservative Party and a pro-devolution Conservative Party, as we saw most firmly yesterday in the National Assembly vote. He has excelled that contribution in the way that he has taken this legislation through this House. If I may, I want to link him to what is a very important memory for many of us. He ranks up there with the late, great Gareth Williams QC, who took us through the very early stages of devolution in this House. I cannot pay him a higher compliment than that.

The Minister kindly referred to our debate yesterday. I am not going to rise to the bait and have a spat with my noble friend about the way that the parties voted. However, it did strike me as interesting that the United Kingdom Independence Party and the party of Wales ended up in electronic harmony—we do not have Lobbies in the National Assembly—voting against a measure of Welsh devolution, even if it was for different reasons. The debate we had there was reasonable and reasoned. It was necessary to have that debate and that vote because, as the Minister has told this House before, we could not have proceeded to complete our stages without that legislative consent Motion.

That leads me to another conclusion that we can, I hope, take from our proceedings on this legislation, both in the National Assembly and in this House. Last week, I ventured to mention that we had perhaps finished a chapter of doing things in a certain way in relation to Welsh devolution. I believe we have now, potentially, reached a level of consensus, certainly between the main parties of devolution, as we saw in yesterday’s debate in the Assembly.

Perhaps we can now move, in the spirit of the agreement for legislative consent and the agreement that this House has achieved through reasoned discussion with the Welsh Government and the Constitutional Affairs Committee of the National Assembly, towards a form of co-legislating. Certainly we should look for early drafts of any proposed future developments in devolution, rather than this hand-me-down form of Westminster legislating on behalf of Wales. I put that suggestion forward not in a spirit of controversy but because I believe it is the way to achieve the consolidation championed by one of the most distinguished former Secretaries of State for Wales.

On that point, the noble Lord neglected to include himself in the list of the promoters of devolution. Although he tries now to present himself as an anti-devolutionist, during his period as Secretary of State he achieved more Executive devolution than did any other Secretary of State. It is important that we remember those days because, without the Executive devolution led by the Conservative Party in Wales, we would never have had the basis for the powers now devolved further in this Bill. I am afraid I include him as well in the pantheon of devolutionists, where he likes it or not.

I add my own thanks to Geth Williams. I remember working with him and my right honourable friend the Secretary of State in a previous Government. I recognise the quality that he and the officers and lawyers of the Wales Office bring. I also thank the lawyers of the Welsh Government who participated in these discussions and the lawyers of the National Assembly Commission, particularly those advising the Constitutional Affairs Committee of the Assembly, of which I am proud to have served as a member in two Assemblies—although not for the whole time, for reasons which I will not go into tonight.

I pay tribute to the present Constitutional Affairs Committee in the Assembly for its rapid turnaround in producing those “critical friend” reports on the Bill; to its current chair, a former Member of the House of Commons, Huw Irranca-Davies; and to its previous chair, David Melding, who has been such a distinguished Member of the Assembly, and among the deep, caring, great Conservative constitutionalists of Wales. I thank the First Minister for his constant support on these matters and the Counsel General. In addition, I pay tribute to my noble friend Lady Morgan. It is not an easy job to work both sides of the railway line but we had the happy experience of sharing the same train this morning, so were able to congratulate each other, and the Minister in his absence, on the progress we have made together on this Bill. I link with that my friend the noble Lord, Lord Wigley, and the noble Lord, Lord Elystan-Morgan, whose contributions have always been philosophical and sometimes prophetic—a great Welsh tradition.

We thank all noble Lords for their contributions. We know that through the progress of this Bill we have achieved a further significant milestone in the progress of devolution. I am not here to speculate as to what will happen next but, whatever does happen, will be on the firm basis of the reserved powers model, which is constitutionally congruent even if not as extensive as what happens in the rest of the United Kingdom, and for that I thank the Minister and this Government deeply.

[Lord Thomas of Gresford (LD)]

My Lords, some 3,000 years ago, Homer wrote in the Iliad that after the battle men like to reminisce about their prowess in the fight. Some 10 or 15 years ago the tributes and thanks were getting so extensive that the decision was taken that such tributes would no longer be heard at Third Reading. However, just as referring to people at the Bar is now commonplace—any Member of Parliament or Minister who comes to the Bar tends to get a mention these days—so that tradition, in which I firmly stand, has been eroded. Therefore, I confine myself to thanking the noble Lord, Lord Bourne of Aberystwyth, who has done a brilliant job in listening to all the complaints, some of which were completely without foundation. He has reacted very well. Lastly, I thank my noble friend Lady Randerson, who was part of the team in the coalition Government when the Bill was in its infancy. She played an important part in framing the way it progressed.

Wales Bill

Lord Elis-Thomas Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 10th January 2017 Lords Chamber

[Lord Balfe]

Well, some see it as that. I see it as a clarification that was needed—something that became quite clear last year. I suggest that we resist this amendment. It will not take us anywhere further forward and I am not sure that it is useful. It will open up many further legal cases and I hope that the House will reject it.

[Lord Elis-Thomas (Non-Afl)]

My Lords, I will make clear my strong support for Amendment 90, for the reasons that have been made clear on both sides of this debate, and from my own experience as a trade union member and a manager in the public sector in Wales at different periods of my life. I will confine myself, as I have during the course of the Bill, to the constitutional principles—if I may use the term again—rather than discussing specific subjects.

This is where I have to disappoint three of my noble friends. The noble Lord, Lord Elystan-Morgan, is a very old friend—I mean old in terms of our association, since I believe I first met him in a Crown Court in Ruthin in the very early 1960s. I hasten to add that I was not the defendant; my father was a witness there. With the noble and learned Lord, Lord Morris of Aberavon, I had the pleasure of discussing issues as soon as I arrived in the other place as a very young Member of Parliament. The noble Lord, Lord Wigley, of course came in with me at that time. I shall disappoint all three by expressing my considered view that we no longer need working groups chaired by Secretaries of State—although I recognise that a Secretary of State is present at the Bar of the House today, along with one of his ministerial colleagues.

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[Lord Elystan-Morgan]

Does my friend, the noble Lord, Lord Elis-Thomas, accept that whatever might be said about the purity of the principles that he puts forward—principles which the late Professor Dicey might very well have approved of—there is nevertheless a huge gap to be made up between the situation that existed on the day in July 2014 when the judgment was given in the agricultural workers’ cases, and the consequences of the Bill? To my mind, the gap in terms of actual devolution might be 20%, 30% or 40%. It is massive and until that gap is made up the noble Lord’s theory, for all its general attractiveness, does not really apply.

[Lord Elis-Thomas]

I appreciate being given the authority of Professor Dicey but the real situation is that these issues will be resolved through the public political debate that will continue about the constitution of Wales and all other constitutions, because that is the sign of a vibrant democracy. It is therefore not an appropriate subject for a working group, led by a Secretary of State or whomever—and I would say the same thing about a working group led by the First Minister of Wales or the Presiding Officer of the Welsh Assembly or the Lord Speaker or the Speaker of the House of Commons. The issue is not about how that debate takes place: it is whether we need to place in statute, on the face of the Bill, the creation of a working group that would somehow have responsibility for delivering Wales from any constitutional weaknesses that it has as a result of the Bill.

[Baroness Finn (Con)]

My Lords, I speak against Amendment 90 in the names of the noble Lord, Lord Hain, the noble Baroness, Lady Morgan, and other noble Lords. The purpose of this amendment is to devolve in part legislative competence for employment and industrial relations to the Welsh Assembly. The noble Lord and others argue that this is consistent with the Supreme Court judgment in respect of the Agricultural Sector (Wales) Bill. In this instance, the court held that the case related to multiple subjects, and thus fell within the competence of the Welsh Assembly. It should be pointed out that the Supreme Court ruling concerned a situation where the devolved subject of agriculture was specifically in play. Indeed, in another Supreme Court case involving the Welsh Government’s competence in relation to recovery of medical costs, the court followed the same approach as in the agricultural sector but came to a completely different conclusion, deciding that the area in play was not devolved.

It would be unworkable to have different employment laws applying in different jurisdictions in Great Britain. As we have previously pointed out, the Smith commission in Scotland recently considered this issue and concluded that employment and industrial relations law should remain reserved. I appreciate that the noble Lord, Lord Hain, has argued that the amendment is not intended to change the reservation of employment law, and we all agree that employment and industrial relations law must remain reserved matters. However, in principle, “terms and conditions” derive from all aspects of employment law—for example, the national minimum wage, parental leave, and dismissal laws—and I believe that there is sufficient flexibility under the statutory framework of employment law for employers to configure their own terms and conditions.

The purpose of bringing in a reserved powers model for Wales to replace the conferred powers model is to bring greater clarity to the respective responsibilities of the UK Parliament and the Welsh Assembly. It is therefore somewhat dismaying that the noble Baroness, Lady Morgan, has told the House that the Welsh Assembly intends to pursue a Bill under the conferred powers model that will only diminish such clarity and cause legal wrangling. My fear is that Amendment 90 will reduce the very clarity that this Bill seeks to achieve. In effect, it could also create a two-tier system, with different employment and industrial relations legislation applying to public, as opposed to private, services in Wales, and, indeed, the whole public and private sectors in England and Scotland. I therefore support the Government in opposing the amendment. There is already a lot of flexibility for employers, but employment and industrial relations law must remain reserved matters to ensure clarity in the free flow of labour across Great Britain.

Wales Bill

Lord Elis-Thomas Excerpts

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

The Assembly Commission in particular has argued that the Assembly needs the same powers as the Scottish Parliament to legislate to make devolved Welsh authorities accountable for funds they receive that are derived from the Welsh Consolidated Fund. The Government have looked at this issue pragmatically and agree that this should be within the Assembly’s competence. Accordingly, having moved government Amendment 1, I shall move Amendments 9, 10, 11 and 105 in due course. I look forward to hearing from noble Lords and Baronesses on their amendments. I beg to move.

[Lord Elis-Thomas (Non-Afl)]

My Lords, perhaps I may respond positively to the amendment introduced in response to the discussion that we had during our first day in Committee on the notion of so-called Welsh law. I commend the Government on their simplicity as well as their inclusiveness by invoking the terms of the law that applies in Wales and pointing to the various bodies of law that apply in Wales, which include the growing body of Welsh law produced by the National Assembly and Welsh Ministers, the law of England and Wales as enacted in this Parliament, the context of European law and the law that is made by precedents and the decisions of the courts. All that is very welcome and I am grateful to the Minister for his response.

It coincides with an equally important statement made in the National Assembly yesterday by Mick Antoniw, the Counsel General, who indicated that to pursue the greater public understanding of the law in Wales, and Welsh law as defined, he intends to instigate a project of consolidation and codification as a pilot. I warmly welcome that statement as well. Therefore, there is a willingness on the part of the legal profession in Wales and its senior government officer in the form of the Counsel General to ensure that the Law Commission’s recommendations for the creation of a dedicated legislative code office and the greater consolidation and codification in an intelligible form of Welsh law are pursued. I particularly welcome as well the decision to publish on the Cyfraith Cymru/Law Wales website further discussion and evaluation of the advantages of consolidation and codification.

That brings me to the other issue I want briefly to touch on: the ongoing response of the UK Government and the Minister to how we progress the analysis and measurement of the effectiveness of the combined jurisdictions and the administration of justice in Wales. I have seen the letter from the Secretary of State to the Welsh First Minister and I had the benefit of a short discussion before I left Cardiff this morning with the First Minister about this, but it is not for me to stand up in this House and purport to represent the position of the Welsh Government. That would be severely out of order.

What the Minister has announced in response to the discussions we have had here and elsewhere has indicated a willingness to understand that there is a balance between the sovereignty of Parliament as understood historically and the increasing democratic accountability and lawmaking potential of the National Assembly. I am looking for a way in which we can move beyond a rather sterile debate where red lines are drawn between various approaches. I am not sure that the committee or commission that the Minister is outlining goes quite far enough on the kind of road I envisage.

I also point the Minister and this House towards the remarkable case presented to the Supreme Court by the Welsh Government which emphasises that, whatever the history of the United Kingdom has been historically, in terms of the relationship between the nations, the only way to operate is by treating the United Kingdom as an association of nations that is now not so hierarchical but more equal. Therefore, in looking for ways we can work within frameworks, is it not time to try to ensure greater equality of representation on commissions, committees or working groups that study these issues? I am not sure that the chairing of a committee by a senior person from the Cabinet Office meets the case. This requires equal representation from practitioners and stakeholders in Wales and in the United Kingdom, and an independent chair.

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[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in debate on this group of amendments. It was a debate of considerable weight. First, I thank the noble Lord, Lord Elis-Thomas, for his kind words and agree with him about the need for institutions in general to work together, but particularly in the context he mentioned of the legislatures in Wales and here, and his comments about the work of the Counsel General for Wales, Mick Antoniw—his work is much welcomed.

I turn to points made by the noble Baroness, Lady Morgan of Ely, about the committee—it is the Government’s view that it should be non-statutory—that will look at the judicial arrangements within the jurisdiction of England and Wales. Points were also made by the noble Lords, Lord Elis-Thomas, Lord Wigley and Lord Morgan, the noble and learned Lords, Lord Morris and Lord Hope, and my noble friend Lady Finn.

First, let me reassure noble Lords that, as I think I indicated, it is intended that this should be a permanent body. We await the recommendations of the working group as to how often it should report. It has been suggested that it could be annually; others have suggested every three or five years. Let us look to see what the committee says. The Government have an open mind on this; we will await the recommendation. The important point is that it will be permanent. I accept the point made by noble Lords that this is an evolving picture; indeed, this is an interim arrangement, as the noble Lord, Lord Morgan, said. In a sense, it is interim between different reports. When the reports come, they will come with advice. It is an advisory committee, but Governments, unless there is good reason, listen to advice—and this will be advice from people with expertise in this area.

I return to the point that there is good will between the UK Government and the Welsh Government as to how this should operate. My right honourable friend the Secretary of State is meeting the First Minister to discuss this. I hesitate to say that it is a reserved area or that we feel that there is some veto on it by the Welsh Government, but we can progress only by consensus. I think it is accepted that it needs willing participation by both parties—and that is there, so let us see what evolves.

I should perhaps remind noble Lords that the LCM has not yet been passed, so if the Welsh Government are not happy with it, it will be open to them to turn it down. The LCM is not just about the fiscal framework—although that is clearly an important part—but about the Bill in general.

Welsh law is different in many respects now from English law—I recognise and accept that, and have said so myself before—but the noble and learned Lord, Lord Hope, referred to the common law of England and Wales. It is a point worth making that this is not exclusively the property of England; the common-law system belongs to both countries and will no doubt remain a bedrock of the legal system. That is what practitioners in Wales want—and what the law schools there want, so far as I can tell from my conversations. However, they recognise that this is an evolving picture, as do the Government. We need the expertise of practitioners and academics as well as the views of the Welsh and UK Governments in moving this forward. We have sought to craft something balanced. There is a general desire to do something in this area and, although opinions may differ to a degree, we are in the same territory, so I hope that this is acceptable.

I turn to the points made by the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Hope, in relation to “normally”. I accept that putting something into legislation is very different from having it as a convention. Obviously, we await the judgment of the Supreme Court for all sorts of reasons, as noble Lords know. I indicated—perhaps I should have reiterated it earlier—that we are looking at guidance notes, which will be the focus of attention after the Bill has passed. In the light of the Bill, we will obviously need to look at them anyway. I give an undertaking that we will flesh out “normally” in the context of guidance notes, which is probably a better way of proceeding than legislation.

I hope that I have covered the main points in relation to the non-government amendments and thank noble Lords for participating in this debate. I thank my noble friend Lady Finn for welcoming some of the changes that we have made, and the noble Baroness, Lady Humphreys, for her points about permanence; I certainly give reassurance on that.

[Lord Elis-Thomas]

May I pursue the point that the Minister just made about the non-statutory proposal for this commission between the legislatures and the Governments of the United Kingdom and Wales? Would he like to reflect further on the nature of that proposal? When we come to Third Reading, he might be able to tell us a little more. Does he intend to publish a report from the working group in time for us to be able to discuss it further at that stage?

[Lord Bourne of Aberystwyth]

My Lords, I indicated on the latter point that I certainly intended that we would publish, in some form, the findings of the group on this matter. Yes, I will reflect on what has been said and say more on Third Reading, when we will be further forward in discussions, to provide extra reassurance. I come back to the point that obviously we want to move by consensus in talking with the Welsh Government and, more broadly, with the National Assembly for Wales. Again, I remind noble Lords that the LCM is a requirement before we can move to Third Reading, so the membership of the National Assembly has to be happy with what is proposed—otherwise, presumably, no LCM will be forthcoming.

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.

Wales Bill

Lord Elis-Thomas Excerpts

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

[Baroness Morgan of Ely]

My Lords, I shall speak briefly on the issue of devolution of S4C. In this rapidly evolving digital environment, it would not be sensible to attempt to devolve responsibility for broadcasting in its entirety to Wales. Broadcasting institutions play a vital role in creating that common cultural citizenship for people across the UK. That would not be strengthened by any attempt to define responsibility for them among its constituent parts. We should acknowledge that the broadcasting landscape is changing very rapidly and that there is no guarantee that the current structures will remain in future. In the meantime, it is vital that the UK role is reinforced by measures aimed at strengthening the particular contribution which broadcasters make in each of those constituent parts: improving the accountability of UK broadcasting institutions to the National Assembly and to Welsh viewers and listeners is vital. This improved accountability can best be delivered by strengthening the position of Welsh Ministers with regard to appointments made to the regulatory bodies governing broadcasting in Wales—I am sorry if I have veered off the point of S4C directly, but that is an important point to underline.

I now turn to the issue of devolving responsibility for S4C to the National Assembly. At first glance, it seems an absolute no-brainer. Like the noble Lord, Lord Wigley, I have worked for S4C: my first ever job was to be responsible for photocopying the “Fireman Sam” scripts. However, unless there are strong safeguards for the continued overall funding of the channel, devolution carries great risks. That overnight decision to remove the vast majority of S4C funding from the Department for Culture, Media and Sport to the BBC with absolutely no discussion with the channel was an immense insult. As the BBC is not devolved, S4C’s fate now lies to a large extent with the BBC. The current system is certainly unsatisfactory but, until we have a clear financial commitment from the Government to give the Welsh Government the money, it would be unwise to risk this great institution of broadcasting in Wales.

[Lord Elis-Thomas (Non-Afl)]

My Lords, as we have heard, we currently have substantial change in the structure of broadcasting. The BBC is going through major changes. The BBC Trust is moving out as a way of managing the BBC; personally, I welcome that. Ofcom is now playing a far stronger role in the whole question of content at the BBC. As part of the BBC structure, there will be from now on not only a director for Wales but also a member of the BBC board. So we have a new system of devolution internally inside the BBC. I was there at the time of the discussion with the noble Lord, Lord Crickhowell, and we were surprised at what we were offered by the then Government, which was the model of a traditional broadcasting authority. I have never believed that that was what was really required, and I still believe that we need to look at some stage at the governance of digital platforms in Wales and the rest of the UK, as well as internationally. We need to look at these issues in a new way.

I am anticipating what the Minister is going to say. Far be it from me to disagree with my noble friend on this issue, with his experience as someone who was a member of the S4C board, but now is not the time to disrupt relationships; now is the time to strengthen them—and to strengthen the relationship practically between S4C as a production body and BBC Wales and the other platforms active in digital production in Wales.

Wales Bill

Lord Elis-Thomas Excerpts

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

[Baroness Morgan of Ely]

My Lords, this amendment, which concerns sea fishing, is a little bit complicated, so I hope that noble Lords will bear with me.

The Welsh Government already have executive competence for fisheries functions in the Welsh zone. In other words, it is now up to Welsh Ministers to determine what happens in relation to fishing anywhere within the 12-mile zone of Wales. This power is now extended to allow Welsh Government Ministers to have executive powers over Welsh fishing boats, whether they are in Welsh waters or UK waters. Take a Welsh fishing boat that is fishing off the Norfolk coast, which is within British fishery limits and would currently be subject to the licensing rules set out by UK Ministers. In future, when this power is transferred, it will be up to Welsh Ministers, by their rules, to license those Welsh fishing boats, whether they are in Welsh waters or in UK waters—obviously excluding Scottish waters.

That is all very nice and dandy for Welsh Government Ministers. However, there will be no oversight of Welsh Ministers because the Assembly—not the Government but the Assembly Members, like me—would not have any say on or sight of what is happening because the Assembly lacks the legislative competence to regulate fishing activities beyond the area of the Welsh zone. These are currently UK Minister powers, and so we come back to the issue of the alignment between legislative and executive functions.

This will become increasingly more important with Brexit on the horizon, because fishing is, of course, an area of devolved competence. The executive powers that are being transferred are the powers to require Welsh fishing boats to have a licence before they can fish outside the Welsh zone. For example, the licence could specify that you cannot fish for certain types of fish or that you must use approved fishing methods. At the moment, these fall under the EU common fisheries policy. Scotland currently has the legislative competence in relation to both the Scottish zone and Scottish fishing boats outside that area. The proposed amendment seeks simply to bring the Welsh Assembly’s legislative competence in line with the Scottish legislative competence and help align the Assembly’s legislative competence with Welsh Ministers’ executive fisheries functions. I hope that that is clear. I beg to move.

[Lord Elis-Thomas (Non-Afl)]

My Lords, I support this amendment from my noble friend Lady Morgan. It is in line with a more general issue that I raised earlier about the relationship between the executive competence of Welsh Ministers and the parallel competence, where it currently applies, of UK Ministers, and the competence of the Assembly itself and its ability to legislate and scrutinise. This is a fundamental issue and flaw in the Bill that we are now discussing. It is particularly reprehensible in the case of fishing.

I had the proud duty of trying to represent the northern part of Cardigan Bay. This will be well known to the Minister because he was based in the middle of Cardigan Bay for a very long time and, as far as I know, may still have a bolthole somewhere in the region—I will not pursue that in this debate. He also had a role further south-west in Milford Haven and so will know well the nature of the Welsh fishing industry and how it has been denuded over the years as a result of the reduction in the number of vessels and, more recently, the activity undertaken by the Welsh fisheries association with strong support from the Welsh Government in restoring and developing inshore fishing in order to ensure that we have product to promote Welsh fisheries as part of the Welsh food and drink initiative, which is currently the flagship policy of the Welsh Government. Therefore, I ask the Minister to take a further look at this.

It is essential, in my view, that we should be able to have direct oversight of our natural resources and not be in a situation where the oversight of the natural resources of Wales—in this case, the increasingly important marine resources—is located elsewhere.

--- Later in debate ---

[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—

[Lord Elis-Thomas]

The Minister will remember of course that before 2006 Wales did not even have a sea.

[Lord Bourne of Aberystwyth]

My Lords, I am going on to tackle the point made by the noble Lord. The Assembly has no legislative competence as things stand although Welsh Ministers can exercise executive functions in that part of the Welsh zone beyond 12 nautical miles in so far as these have been conferred by United Kingdom enactments.

I take the points that have been made in relation to fishing, but as drafted we would need to look at the amendment. It proposes something fairly fundamental to the extent that it would vary the geographic extent of the Assembly’s competence. I would want to go away and have a look at that to see how it could be refined, if that is possible. This is not something that was considered by Silk or by the St David’s Day agreement and, as drafted, the amendment goes well beyond the issue of fishing licences.

My noble friend Lord Deben referred to some of the ramifications in relation to fishing policy as it exists at the moment through Europe and as it will exist in the future outside of Europe, but that is obviously still something to be refined. I want to reflect on that as well.

My noble friend Lord Crickhowell asked about the licensing of fishing vessels and the position in his former constituency of Pembroke—Preseli Pembrokeshire as it now is. I can well remember as an elected representative in the Assembly for that area going at about four o’clock in the morning to the fish market at Milford Haven to speak to electors. All the electors there were Spanish electors, although they did have vehicles that were licensed in Wales as part of the United Kingdom. I think that that remains the position at the moment, but how it will pan out post-Brexit I do not know.

If I may I will take the amendment away and look at it, but based on the fact that there are far more ramifications to this than just fishing, and even in relation to fishing there are of course considerable ramifications—beyond 12 miles it is an economic zone for the state of the United Kingdom and we would exercise powers in relation to that for the whole country. On the points made by the noble Lord, Lord Elystan-Morgan, I thank him for his always gentle and complimentary approach which has me doing things I would probably not normally agree to; I recognise the dangers. I hope that we have looked at things in relation to this legislation on a pragmatic basis because that is the way to approach it. Any general rule is going to have to give way to exceptions because as we can see there are always difficulties in these things. Sometimes they look much more straightforward than they are. My door is always open and we have set up meetings with many noble Lords. I am happy to do that, but as I say our approach to the legislation is a good British pragmatic one. I will look without prejudice at what I think is a much more difficult area than perhaps it looks on the face of it. With that, I hope that the noble Baroness will feel able to withdraw her amendment.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lords who have participated in the debate on these amendments, which relate to water. I particularly welcome the contribution of the noble Lord, Lord Wigley, who moved his amendment with sensitivity and fairness on an issue which I know is very close to his heart. The Government are determined that never again should there be a Tryweryn. That is at the back of all our thinking on this issue.

I welcome the contributions from around the Committee. My noble friend Lord Hunt of Wirral spoke with passion of his time in north Wales, and the noble Lord, Lord Morgan, talked of his home county of Meirionnydd. I also welcome the contribution of the noble Lord, Lord Elystan-Morgan. I could not agree more with the sentiments that they expressed. I also thank my noble friend Lord Crickhowell—with his background and experience as chairman of the National Rivers Authority—for bringing his authority to this issue: aligning the border is not necessarily straightforward.

Water is of symbolic importance as well as practical significance to Wales. It evokes more passion and debate than probably any other issue relating to Welsh devolution. It is not just about Tryweryn; as the noble Lord, Lord Thomas of Gresford, reminded us, it is about the Dulas Valley as well, and there have been other issues. I thank noble Lords for contributing to the debate from the viewpoint of their own experiences. The strength of feeling has been amply demonstrated in their speeches.

In announcing the Government’s intention to devolve pay, my right honourable friend the Secretary of State for Wales signalled that the Government were exploring other aspects of the settlement to ensure that it is as clear and fair as possible. Yesterday, my right honourable friend Alun Cairns announced the Government’s intention to remove the Secretary of State’s powers to intervene on water and to replace them with a statutory protocol on water between the United Kingdom Government and the Welsh Government. Work will be done on that, and we hope to have the detail ready for Report.

That is a highly significant announcement. Water has been a challenging issue, as anyone familiar with recent Welsh history will know. The replacement of the intervention powers with a formal protocol marks a step change in the history of Welsh devolution—one that resolves past differences and provides clarity for the future. The move also removes any last impediment that there may be—at least in terms of this Bill; I hope the noble Baroness will be able to clarify this—to the Assembly giving its approval to the Wales Bill, subject of course to agreement on the fiscal arrangements.

The existing intervention powers were put in place in the Government of Wales Act 2006, when Peter Hain—now the noble Lord, Lord Hain—was Secretary of State. Since then, there has been a great deal of development in relation to devolution. This Bill marks a move to a new, durable and lasting devolution settlement, underpinned by a recognition of the maturity of the Assembly and the Welsh Government. In keeping with this, it is time to replace the Secretary of State’s powers to intervene on the Assembly and Welsh Ministers in relation to water with a statutory protocol between the United Kingdom Government and the Welsh Government which defines how the two Governments will work together on water-related issues—in particular, cross-border issues.

I confirm that the Government intend to bring forward amendments on Report to put in place the requirement for a formal agreement and to remove the intervention powers. In doing so, it will be important to respect the interests of water users in both Wales and England. As my noble friend Lord Crickhowell exemplified, this is not necessarily straightforward in every respect.

[Lord Elis-Thomas]

I am excited not just by the environmental and political aspects of this but by the constitutional implications. Can the Minister help us by indicating whether establishing a protocol in relation to powers between the Assembly and this Parliament, and indeed between the Welsh Government and the UK Government, is something that he would consider in other areas of policy in the Bill?

[Lord Bourne of Aberystwyth]

My Lords, as I have indicated, working together between the Government in Cardiff and the Government of the United Kingdom is of interest to all of us who believe in an effective United Kingdom and an effective Wales. So, yes, I am certainly in favour of that, as I have indicated. In so far as we can provide for that, the Government are open to looking at it. With the excitement of that intervention, I have lost my place.

[Lord Elis-Thomas]

The temptation to intervene was too much.

[Lord Bourne of Aberystwyth]

I fully understand.

It will be important to put in place a protocol with bite. Both Governments will be subject to a duty to act in accordance with the new agreement and, once it is in place, both will need to agree any changes to it. The agreement will also need to include a process for resolving any disagreements that both Governments will sign up to.

It is as yet too early to say how soon the new arrangements will be agreed, but the Government will repeal the Secretary of State’s water intervention powers once an agreement is signed and sealed. This historic commitment to remove the intervention powers paves the way to conclude the Government’s consideration of the wider devolution issues relating to water and sewerage, including the sewerage intervention powers currently in Clause 46 of the Bill and the question of whether powers over water and sewerage should be aligned with the England-Wales border.

The Silk report recognised that water and sewerage devolution was complex and that further work was needed to consider the practical implications of implementing the commission’s recommendations. Following the St David’s Day agreement, the Government set up the joint Governments’ programme board with the Welsh Government to look at these issues and report on the likely effects that implementing the recommendations would have on the efficient delivery of water and sewerage services, on consumers and on the water undertakers.

That work has concluded and the Government have been considering the evidence that has been collected. In doing so, it has been particularly important to consider carefully the interests of customers and businesses on both sides of the border before reaching a decision on the recommendations. It remains the Government’s intention to bring forward provisions to implement the recommendations, if such a thing is achievable, and I hope to be able to return to this on Report.

I will now turn to other water-related amendments that are not Silk recommendations. Amendment 104, tabled by the noble Baroness, Lady Morgan of Ely, seeks to amend the Water Industry Act 1991 as it relates to Ofwat. Part of this amendment would require the Secretary of State to seek the consent of Welsh Ministers before making directions to Ofwat, outlining her priorities for keeping the activities of water companies under review. This would occur where these directions apply to Welsh water companies and licensees carrying out activities in the areas of those companies. This requirement for consent would cover all of Ofwat’s functions, including those applicable to policy areas reserved to the Secretary of State, such as those relating to competition law, insolvency and mergers. This would give the Welsh Ministers considerable influence over policy areas that are not devolved.

The noble Baroness’s amendment would also place a requirement on Ofwat to make its annual report to the Assembly rather than just send it a copy, as is currently the case. At present there is nothing to prevent the Welsh Ministers laying before the Assembly the annual report that Ofwat sends them or publishing it in any manner they see fit.

The amendment requires appointments to Ofwat’s board to be made jointly by the Secretary of State and the Welsh Ministers. Other amendments seek to grant Welsh Ministers joint powers with the Secretary of State over board members’ terms and conditions. Currently, the Secretary of State makes all appointments following consultation with the Welsh Ministers and consults them on some other aspects. In practice, this means that the Secretary of State writes to the Welsh Ministers to seek their views on an applicant before confirming the appointment. However, the Welsh Government are also invited to sit on the appointment panel, which is chaired by Defra. This, along with the various requirements to consult Welsh Ministers, already provides the Welsh Government with considerable influence over the process and final appointment decisions.

Amendment 105 in the name of the noble Lord, Lord Wigley, concerns the abstraction of water from Welsh reservoirs. As I think I have indicated, I share the views expressed by noble Lords today: the events of some 50 years ago which resulted in the flooding of Tryweryn were some of the darkest and most regrettable days in modern Welsh history. Never again.

In answer to the question raised by the noble Baroness, Lady Morgan—I am delighted to note that she did not wish to be churlish; I welcome that very much—decisions about the construction of new reservoirs and environmental controls are already devolved to the Assembly. However, we are going further—and rightly so. The Assembly exercises legislative competence in relation to both issues: construction and environmental controls. The Welsh Ministers would need to issue a compulsory works order to allow the construction of a new reservoir to take place. It is within the competence of the Assembly to give itself a role in the issue of consent orders.

Natural Resources Wales is the environmental body which regulates abstraction in Wales. Again, the Welsh Minsters and the Assembly can legislate to change or add to its powers. Nevertheless, as announced yesterday by my right honourable friend the Secretary of State, the Government intend to remove the Secretary of State’s powers to intervene on water and replace them with a protocol. I think that that is in the spirit of where we need to be in relation to this totemic and practically significant area of water. On that basis—

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I am happy to clarify that point. I believe that the existing powers in relation to the Welsh Government and Welsh Ministers are sufficient, but I am very happy to look at that issue and cover it in the protocol, which could extend to that if it is something that we should be doing. I will happily discuss that with the noble Baroness.

[Lord Elis-Thomas]

The Minister will recollect that we worked together in the National Assembly. I looked at this issue at the time and I can reassure him and the House that the way in which he described the current position in planning and environmental law is indeed the position. But of course that does not mean that we cannot strengthen it by making indications about the intervention powers of the Secretary of State. On that, I think we are all agreed.

[Lord Bourne of Aberystwyth]

I am very grateful to the noble Lord for reminding me of the years of co-operation we had in the National Assembly for Wales and for clarifying that issue in the way that he did. On that basis, I hope that the noble Lord will consider withdrawing his amendment.

--- Later in debate ---

[Baroness Morgan of Ely]

My Lords, this Bill proposes that the Assembly will gain competence over all renewable energy generating projects of up to 350 megawatts in Wales and in Welsh territorial waters. Amendment 55A suggests that the UK Government have gone too far in their intention to reserve their power to legislate over electricity, including the generation, transmission, distribution and supply of electricity. Although of course we recognise that it is important to have a single market in energy, ideally not just in the UK but across the EU as a whole, we contend that under the system proposed by the UK Government opportunities for the development of energy production in Wales will be stifled.

Here, I should probably declare an interest. It is not a current interest but an interest that I had in the past while I was working for an energy company in Wales. Part of my remit was to help develop a significant wind farm in mid-Wales. Let me tell you that the legislative process was chaos. The Welsh Government had more or less invited wind farm companies to develop wind farms in specific areas in Wales, but the decision as to whether permission could be given to develop a large wind farm was the responsibility not of the Welsh Government but of the UK Government.

On top of that, the wind farm needed to be connected to the grid. A 132 kV line—that is, a small electricity line on a pole—from the wind farm to the main national grid needed to be approved, not by the national Government but by the local authority. This could be called in by the National Assembly. These little electricity lines then needed to be connected to a large electricity substation—the places where you see the twirly bits in areas where the electricity goes in. That would convert the voltage from 132 kV to 400 kV, which is for the national grid. The responsibility to allow the building of the substation lay with local government, which again could be called in by the Welsh Government. Responsibility for the national grid and the decision as to whether to build the large power lines on pylons rested with the UK Government.

The whole system was chaos. It was no wonder that, in the end, the company threw up its arms in horror and walked away from the project, having already invested a not insignificant amount of money. Unless the associated consents for devolved electricity generation rest in Wales, the chaos is likely to continue.

I will touch briefly now on the limitation of the level at which Welsh Government approval in relation to electricity is set. The Bill proposes that the Assembly will gain competence over all renewable energy generating projects of up to 350 megawatts in Wales and in Welsh territorial waters. Our concern is that this figure is arbitrary. The Silk commission attempted to provide justification for this limit, but the situation in Wales has moved on considerably since those days. Since the Silk commission looked at the issue, we have seen ambitious projects such as the tidal lagoons progress and proposals for huge tidal lagoons introduced. I know that we are still waiting for the green light—and I will be extremely interested to hear what the strike price will be eventually on this project—but, whether you are a supporter or not, these plans are very far advanced.

In this amendment we suggest that the limit should be increased to 2,000 megawatts. I accept that that is just as arbitrary a figure. Therefore, will the Minister confirm why a level of 350 megawatts was suggested and why we cannot increase it? What is the rationale behind that? If we do not change it now, would there be any scope for us to change it in the future? What would the process for that be? I beg to move.

[Lord Elis-Thomas]

I am grateful to the noble Baroness, Lady Morgan, for moving this amendment. Her description of what happened with the history of substantial onshore wind projects in Wales was absolutely correct. For much of that period I had responsibility as chair of the environment committee of the National Assembly, which produced a substantial report on energy and planning. My difficulty is the difficulty to which she alluded; yet again we are placing a cap on the potential development of natural resources in Wales that does not make sense in terms of energy policy or indeed in terms of the potential for development of natural resources for the future.

There is a separation of generation capacity at different levels. There is the grid, as we have already heard, for the over 400 kilovolt—but there is also the separation of powers in relation to the internal grids provided by the electricity distribution companies. This affects potential smaller generation projects with individuals and small communities whether of hydro power, wind power, turbines, solar power or any other developing form of renewable energy. It means that the potential for development is being stifled because no one is taking a clear view of how these projects could be developed.

Unfortunately for the whole project, the Welsh Government intervention seeking to identify areas for development—mainly on land in public ownership—was not helpful. So for 10 years at least we lost potential capacity for energy generation and also capacity for having a proper grid connection throughout Wales. That is something that we shall have to revisit. I look enviously to Scotland, which has clear guidelines and clear demarcation in terms of the devolution of energy.

I have a particular interest in other forms of low-carbon energy, notably the potential development of small modular nuclear power that could replace the decommissioned nuclear power station at Trawsfynydd in my own part of the world. Currently nuclear power is with the UK Government in totality. But the actual capacity in terms of generation of a single modular power station is probably less than 350 megawatts. Obviously one would look for more than one unit at such a development where you have, as at Trawsfynydd, a full grid connection, land and water availability for coolant and of course a very skilled labour force that has worked in the energy industry. So the Minster needs to look again at the way in which these aspects of the Bill have been set out. In areas of natural resource, it is essential that we look to future capacity and not settle for arbitrary figures on present capacity.

I shall not ask whether the Minister is interested in introducing a protocol for energy policy, but if a protocol for natural resource in relation to water makes sense, it makes even more sense in relation to energy. I have not even mentioned the energy arriving increasingly now in Wales and as part of the Welsh grid from Ireland, where I am assured that the future development of renewable energy both onshore and offshore is likely to continue. That capacity can join the mainland European grid effectively only through Wales. All these aspects need to be considered. I hope that the Minister will be able to give the noble Baroness, Lady Morgan, me and others some optimism as to the potential for future development of this natural resource.

Wales Bill

Lord Elis-Thomas Excerpts

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

[Lord Elis-Thomas (Non-Afl)]

My Lords, my amendments in this group are all focused on attempting to ensure that the legislative competence of the Assembly is not reduced by the movement from conferred powers with exceptions, to reserved matters with even more exceptions.

I was always concerned about this matter when I had responsibility for presiding over the Assembly because I had to make decisions about the competence of legislation. I often found it difficult to assure myself that there was clarity about the boundaries, although I was advised by excellent lawyers. The current Presiding Officer of the Llywydd has published a series of amendments to enable us to study the question of the constitutional propriety of where we are heading. What particularly troubles me—I am sure the Minister will understand this—is that the UK Government seem to have no intention of publishing an explanation or rationale, if there is such a thing, across the whole 200 or so reservations that would help us to understand the constitutional principles at work here.

Although we were promised by a previous Secretary of State that the pause in the Bill would give an opportunity for these matters to be considered, and there would be a response, this does not seem to have happened. My amendments would restore or maintain the current competence of the Assembly by enabling it to legislate in an ancillary way in relation to reserved matters. I know the Minister will say that ancillary matters are a minority interest but they are of great constitutional import. In my view, this is a clear example of how the move from the current form of legislative powers to the new form is narrowing the Assembly’s competence.

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

My Lords, I am very grateful to the noble Baroness, Lady Morgan of Ely and to the noble Lord, Lord Elis-Thomas, for tabling the amendments. I am particularly grateful for the careful way in which they have spoken to them.

I understand the importance of the issues that have been raised, and I shall try to address them in general terms by giving some examples of how the purpose test should operate in practice. First, on the wording, I say to the noble Baroness that the legislative competence in proposed new Section 108A(3) is a dual test. It allows the Assembly to legislate if it,

“is ancillary to a provision of any Act of the Assembly or Assembly Measure or to a devolved provision of an Act of Parliament, and”—

so there is the additional requirement—

“(b) has no greater effect otherwise than in relation to Wales, or in relation to functions exercisable otherwise than in relation to Wales, than is necessary to give effect to the purpose of that provision”.

So, it is a dual test. It is not simply ancillary but has to be “necessary”, under proposed new subsection (3)(b) of the provision.

These are important issues but they are not novel. Exactly the same sort of questions arose in respect of the Scotland issue because both in Scotland and Wales we are relying on the so-called purpose test to help define the scope of the relevant legislature’s legislative competence. We now have the benefit of guidance, as has been stated, from the Supreme Court, on the proper interpretation of these provisions. The guidance, although given in a Scottish case, will be highly relevant to the Welsh matters provided for in the Bill before us.

The starting point is that whether a provision in an Assembly Bill could be said to “relate to” a reserved matter is dependent on its purpose. As has been pointed out in the Supreme Court,

“the expression ‘relates to’ indicates more than a loose or consequential connection”.

I stress that the application of the purpose test in a reserved powers model should be interpreted as meaning that a provision that merely refers to a reserved matter, or has an incidental or consequential effect on a reserved matter, will not relate to that reserved matter. In other words, to fail the “relates to” test, an Assembly Act provision must have a reserved matter as its purpose. The purpose of a provision must be established by having regard to its legal, practical and policy effects in all the circumstances. The Assembly Member bringing forward the Bill cannot simply assert a purpose for one of its provisions. The purpose must be assessed by considering how the provision has been drafted and what it actually does, as well as the wider context, including the other provisions of the Bill of which the provision under scrutiny forms a part.

It is also important to say that the move from the current conferred powers model to one based on reserved matters reverses the operation of the purpose test. It shifts the burden, which is important. Whereas under the current settlement an Assembly Act provision needs to satisfy the purpose test by positively demonstrating that it relates to one of the subjects conferred in Schedule 7 to the 2006 Act, the reserved powers model instead requires that such a provision must not relate to a reserved subject matter. In other words, the case would need to be made that an Assembly Act provision is outside competence because its purpose relates to a reserved matter. As I say, it shifts the burden of proof. If such a case could be made, the provision would satisfy the requirements of the proposed new Section 108A(2)(c) and would be within competence, provided, of course, that it satisfied the other legislative competence requirements of new Section 108A.

To demonstrate how the purpose test ought to be applied in practice, I thought it would be helpful to give some examples. However, it is important to bear in mind in each of these hypothetical examples that it would depend on how the provision was drafted and what it actually did. As I have mentioned, the purpose test requires assessment of the effect of the provisions, including all the circumstances, in the round. An Assembly Bill which required tenants to insure their residence could relate to the devolved subject of housing and not to the insurance limb of the financial services reservation in Section A3. Rather than aiming to amend the law of insurance, the provision’s purpose would be to ensure the quality of housing stock in Wales. I think that most people would appreciate that that was the purpose.

A further example is that an Assembly Bill provision creating competitive tendering requirements for local authorities would be to improve their efficiency and cost-effectiveness, and would therefore not relate to the competition reservation in Section C3. Furthermore, the jurisdiction of the Agricultural Land Tribunal is set out in the Agricultural Holdings Act 1986. This Act also specifically excludes certain matters from the jurisdiction of the ALT—for example, disputes between landlords and tenants of agricultural land. An Assembly Bill may seek to alter this position by bringing such disputes within the jurisdiction of the ALT and no longer subjecting them to arbitration. This would not engage the arbitration reservation in Section L4 because the purpose of the provision would be to facilitate the smooth and economic operation of the agricultural sector by providing a practical, accessible and cost-effective way of settling disputes about agricultural land. The effect on arbitration would be incidental to, or consequential on, that purpose.

Lastly, an Assembly Bill provision requiring information-sharing between schools and Estyn which supported more general provisions aimed at improving the operation of the education sector in Wales would not relate to the reservation for the protection of personal data in Section L6. I hope this explanation of how we see the purpose test working, and these hypothetical practical examples, are sufficient to reassure the noble Baroness and that she feels able to withdraw her amendment. It is not possible to go through every conceivable example. I think that lawyers would accept that, as drafted, this would serve to answer particular cases that may be brought forward.

Through his Amendments 39 to 41, the noble Lord, Lord Elis-Thomas, is seeking to broaden the circumstances in which the Assembly could legislate in relation to reserved matters, and in that respect he is probing similar issues to those raised in Amendment 38. I therefore hope that the explanation I have given is reassuring.

As I have said, unlike under the current settlement—where an Assembly Act provision needs to satisfy the purpose test by positively demonstrating that it “relates to” one of the subjects conferred in Schedule 7 to the 2006 Act—the reserved powers model instead requires that such a provision must not relate to a reserved subject, so that the burden is shifted. In other words, the case would need to be made that an Assembly Act provision is outside competence because its purpose relates to a reserved matter. If such a case could be made, the provision would satisfy the requirements of the proposed new Section 108A(2)(c), and would be within competence, provided, of course, that it satisfied the other requirements. I do not therefore see a need for the Bill to be amended in the way that these amendments propose. Indeed, a side effect of the noble Lord’s amendments would be to prevent the Assembly being able to legislate otherwise than in relation to Wales for ancillary purposes—currently an important part of its competence that allows for enforcement provisions to apply in England. This is something that I know the noble Lord does not intend.

Government Amendment 42A is a minor change to ensure that the wording of the test in Section 108A(5) coincides with the wording in paragraph 12 of Schedule 7B. Both provisions ensure that, when considering the legislative competence of the Assembly in the context of an Act of Parliament, any requirements for the consent of, or for consultation with, a Minister of the Crown, are not relevant. This makes sense on the basis that it would be clearly inappropriate to require a Minister of the Crown to consent to, or be consulted about, an Act of Parliament. This is a technical amendment ensuring consistency throughout the Bill.

I turn to Amendments 47, 75 to 78 and 81 and 82. Paragraph 6 of Schedule 7A reserves the core elements of the single legal jurisdiction of England and Wales. These include the courts, judiciary and civil and criminal proceedings. Sub-paragraph (2) provides an exception to this reservation to enable the Assembly to provide for certain appeals or applications in relation to a devolved civil matter where it is ancillary to a provision of an Act of the Assembly or an Assembly measure.

Amendment 47 seeks to remove the ancillary requirement from this exception and allow the Assembly to directly place devolved functions on to civil courts. This ancillary requirement is crucial in that it enables the Assembly to enforce its legislation and to allow appeal decisions on devolved matters to be heard in a court on civil proceedings, yet it maintains the clear boundary that the single legal jurisdiction is a reserved matter. Paragraph 1 of Schedule 7B restricts the Assembly’s ability to modify the law on reserved matters. This includes any enactment whose subject matter is reserved. Paragraph 2 sets out the exception to this restriction. It allows the Assembly to modify the law on reserved matters where the provision is ancillary to a provision on a devolved matter and has no greater effect on reserved matters than is necessary to give effect to the provision. This provides the Assembly with the flexibility to legislate with regard to the law on reserved matters in a limited way to give effect to provisions that are within its legislative competence. However, such a provision cannot go further than required to achieve its objective.

Amendments 75 and 76 seek to remove the second limb of this exception—that the provision must have no greater effect than necessary—from Assembly provisions that seek to modify the law in relation to paragraphs 6 and 7 of the new Schedule 7A. These are the reservations for the single legal jurisdiction and tribunals. Amendment 77 seeks to remove the necessity element of this test altogether. This would allow an Assembly, through on Act, to amend the law on reserved matters without a requirement for it to act proportionally to meet its objective. The law on reserved matters is, by definition, not an area of the law that should be open to wide-ranging alteration by the Assembly in this manner. This is vital to effect a clear boundary between what is devolved and what is reserved.

The matters within paragraphs 6 and 7 to Schedule 7A specifically are fundamental to the maintenance of the single legal jurisdiction of England and Wales. The Government’s position on the maintenance of the single jurisdiction is clear. Allowing the Assembly to modify these areas puts at risk the uniformity on which the single jurisdiction is based. Removing the requirement that Assembly modifications to the law on these matters should go no further than necessary would give the Assembly a significant increase in competence. The constraints represent an appropriate and balanced limitation on the Assembly’s competence. This gives the Assembly the same powers to modify the law on reserved matters as the Scottish Parliament has in relation to Scotland.

--- Later in debate ---

Moved by

[Lord Elis-Thomas]

43: Clause 3, page 3, leave out lines 5 and 6

[Lord Elis-Thomas]

I have always believed that constitutional legislation in any state should be intelligible, or as intelligible as possible, not only to the practitioners of public life but to the general public. This is particularly the case with the constitution of Wales. The episode that we are now involved in is a further obfuscation of the constitution rather than its opening out to intelligibility, which is why these amendments on consolidation are important. I am grateful for the support of the noble Baroness, Lady Finlay, who will no doubt want to speak to them.

The question of how a constitution is made accessible was highlighted in the outstanding judgment of the High Court last week. In their judgment, their Lordships said:

“The United Kingdom does not have a constitution to be found entirely in a written document. This does not mean there is an absence of a constitution or constitutional law. On the contrary, the United Kingdom has its own form of constitutional law, as recognised in each of the jurisdictions of the four constituent nations”.

But because the constitution of Wales is currently spread over four pieces of legislation, it hardly meets the test of being intelligible to the population or to any of those active citizens who wish to participate in understanding their constitution.

This has been a persistent theme of the National Assembly’s relevant committee dealing with constitutional matters. That is why the predecessor committee of the current one, of which I was also a member for a period, recommended that a clear commitment should be given to consolidating the constitutional legislation of Wales and to having this done in the current parliamentary term. If for good reasons of their own the UK Government did not feel able to undertake such consolidation, there should also be a clear provision—or at least there should not be any hindrance—in any Bill so that the National Assembly itself could undertake it. Amendments to this effect were tabled in another place and in the debate the UK Government said this was not necessary because the constitutional settlement for Wales is the Government of Wales Act 2006 as amended—a matter to which I alluded earlier. Quite simply, the urtext that is the basis for our understanding of the constitution of Wales is the Government of Wales Act 2006 as amended, but it does not meet the test of consolidation and intelligibility.

Is it not now time to give the people who are most concerned about this matter—those of us who must live and work through the constitution we are given by courtesy of the Houses of Parliament of the United Kingdom—responsibility to make that consolidation? It is not an attempt to amend legislation, merely to consolidate it. This approach should recommend itself to all who are concerned about constitutional clarity and democratic principles. All that Amendments 43 and 44 would do is permit the National Assembly to consolidate the devolution statutes relating to Wales in both its languages. This is not to blow my own trumpet because I happened to be born bilingual, but we are officially a bilingual legislature. We work actively and daily in two languages. To allow us to legislate and provide consolidation in this area would mean that we were able to serve our citizens much more effectively. I beg to move.

[Lord Howarth of Newport]

My Lords, I have huge sympathy with what the noble Lord, Lord Elis-Thomas, just said. Why have the Government not presented this legislation to Parliament in consolidated form? That would have greatly facilitated scrutiny and, more importantly still, as the noble Lord suggested, it would be for the benefit of the people of Wales and all our fellow citizens who are interested in and care about the development of our constitution, by enabling them much more readily to understand the Government’s constitutional proposals. I cannot see why we must wade through these thickets of legislative obscurity to try to get the measure improved and an adequate and comprehensible piece of legislation presented to the world.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I believe it means—and I will write to noble Lords if I am incorrect in this, as I may be—that, in determining what is necessary for the purposes of subsection (3), which relates to the test of ancillary and necessary, you cannot allege that it is necessary that the law is passed unless it is necessary that it is an Assembly law. It cannot be necessary for another legislative body. I think that is what it means. If I am wrong, I will write to the noble Lord and copy the letter to other noble Lords. I may be wrong.

[Lord Elis-Thomas]

I am, of course, disappointed by the Minister’s response, but I should be disappointed at least once in a debate in this Parliament. I am grateful for the support from the noble Lord, Lord Howarth, and the noble Baronesses, Lady Finlay and Lady Gale, and for the interventions by the noble Lords, Lord Thomas of Gresford and Lord Crickhowell.

The consolidation of the law is about the intelligibility of the law and the transparency of political activity. I will continue to pursue this with greater vigour and will call upon my distinguished academic colleagues throughout the Principality and beyond to get on and do it. I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Wales Bill

Lord Elis-Thomas Excerpts

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

[Lord Crickhowell (Con)]

My Lords, I spoke at Second Reading and earlier today about the need for clarity in the Bill, and I must say that I share the concerns about the word “normally”. Those concerns were reinforced earlier today by the remarks of the noble and learned Lord, Lord Judge, who produced what seemed to me a pretty devastating analysis and related it to a subsequent clause—I think it was Clause 53. It seems to me that the Government would do very well to ponder what has been said today very carefully. I also have some sympathy with the noble Baroness on the Opposition Front Bench about the use of the word “devolved” when we are dealing with reserved powers. It seems to me that that, too, is likely to be a cause of some confusion. I am not sure that I followed all her arguments, but I am not speaking about those; I am simply seeking clarity. I hope that my noble friend will not dig his heels in tonight, but will take these comments away and give them much careful thought before coming back at a later stage.

[Lord Elis-Thomas (Non-Afl)]

My Lords, I am pleased to follow the noble Lord, Lord Crickhowell, and I am confident that the Minister, whom I have known in another place—if I can call the Welsh Assembly that—at the other end of the line, is not someone who digs his heels in. He successfully danced a fine tune to move his party, the Welsh Conservatives, into a stance on devolution which brings us to where we are today.

I come to the amendments in my name, which I am pleased to share with my noble friend, Lord Wigley, and the noble Baroness, Lady Morgan, my sister in the Assembly. Amendment 9 attempts to define “devolved matters”. This is another issue that was addressed by the Constitutional and Legislative Affairs Committee in the National Assembly. The Minister will no doubt say that “normally” occurs in the Scotland Act and that the Welsh devolution settlement does not require any definition of “devolved matters”. I am not very enamoured of the argument that empowering the National Assembly to be able to legislate for devolved matters is somehow an overruling of parliamentary sovereignty, as if the traditional constitution of the United Kingdom, of Parliament assembled in these two Houses, could somehow be undermined or be in any sense overruled by legislative activity in Cardiff.

--- Later in debate ---

[Lord Wigley]

My Lords, the noble Lord, Lord Crickhowell, has certainly given us cause to consider this issue further. As I speak to my amendment, I will deal with some of the points that he raised. Amendment 22 standing in my name is grouped with Amendment 20 moved by the noble Lord, Lord Hain. As he said, my amendment has a similar purpose to his—namely, to ensure that those who legislate for the future of Wales and those who decide the priorities of public expenditure in our country should do so on the basis that they actually live in Wales, know the needs of our communities and genuinely represent the people among whom they reside. I would have thought that was a fairly fundamental principle. I go further and say that ideally each representative, both constituency Members and regional list AMs, should live within the area they represent. In that way, they know the feelings and priorities of their constituents, friends and neighbours and appreciate the tensions which sometimes arise. During the 27 years I represented Caernarfon, a fundamental element in the way in which I undertook the job was that I could feel I was part of the community. I realise that cannot always be achieved and that some people living a couple of miles outside the constituency may be fully integrated into the community they represent. I also realise that there will be times when boundary changes may work in a way that takes the home of a sitting AM or MP marginally outside the constituency in which they were previously living. These amendments do not address those circumstances. They arise from the incredible fact that there is an AM, as has been mentioned, elected to the Assembly by way of the regional lists, who not only did not live in the region when he stood for election, but did not even live in Wales. What is more, he has indicated that he has no intention of moving his main home to Wales. Frankly, that is appalling and should not be tolerated. If our country is good enough to give him a job and pay his salary and expenses, it is good enough for him to accept that he should live there in order to undertake the work. Nobody is forcing him to come to the Assembly. If he chooses to do so, conditions go with the job, and I believe this is one of them.

I have tabled a slightly different amendment from that of the noble Lord, Lord Hain, as I can see circumstances where his wording could cause difficulties. There has to be a date at which a residency requirement applies. It could be the date a candidate is selected to fight a constituency, the date of the election or the date on which the AM in question takes up his or her responsibilities. I personally believe that the date should be that on which the Member takes up the seat, and should be geared to the point at which he or she takes the oath of office, although the qualification date will need to be geared to some existing verifiable location and date—my amendment suggests the electoral register in force at that time—but I realise that that, too, has shortcomings. If the date is that on which the election is declared, in the circumstances of a by-election, candidates from outside the area would effectively be debarred. Applying the rolling electoral register could possibly overcome that. I am not sure how this might have worked in the Neath by-election in 1991, for example, in which the noble Lord, Lord Hain, was first elected.

[Lord Elis-Thomas]

It was a very good by-election.

[Lord Wigley]

Yes, it was a very good by-election. I enjoyed it very much but then I was not standing. I should declare a past interest in that when I fought the Meirionnydd seat in 1970, which was then taken over by my noble friend in the subsequent election, I was working for Mars in Slough and living in the Thames Valley. There are many similar cases where people who have had to leave Wales to seek work might want to return, whether to a non-political job or to stand for election. The danger is that by having a rule as suggested in the amendments of the noble Lord, Lord Hain, there could be widespread avoidance, with prospective candidates renting an address for the period of the election, with everyone knowing that the address is merely a scam to give the impression that they are highly integrated local people. The address on the nomination paper for election should be the one at which they are registered to vote and to pay tax. If that is outside Wales, so be it; the electors can take that into account. However, once they are elected, they would be in danger of not being paid their salary or expenses if they had submitted a fraudulent address. Remember, these days there is a need to note for council tax purposes whether one’s address is permanent or a second home.

Wales Bill

Lord Elis-Thomas Excerpts

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

[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.

[Lord Elis-Thomas (Non-Afl)]

I do not wish to anticipate any major contribution that I may have to make on my own amendment on the word “normally” later on, but I do not believe that the Minister has really answered the question from my colleague the noble Lord, Lord Wigley, who asked whether the Parliament of the United Kingdom could legislate for a referendum on the future of the National Assembly without the consent of the Assembly. It seems to me that if we are legislating, as we are in the Bill, for the convention relating to the legislative consent Motions to be part of Welsh law and devolution law, then surely, in a situation where the future of the Assembly were subject to a referendum, consent should be sought. Or is the Minister allowing a little room for the removal of the Assembly without the consent of its Members?

[Lord Bourne of Aberystwyth]

My Lords, I think the noble Lord knows me better than to think that that is on my mind at all. I was not the person who brought forward this amendment. I am unable to rewrite the rules on the sovereignty of Parliament; I was merely pointing out the legal position in relation to this. There is a very clear declaration that is consistent with the Silk recommendation which was discussed by the Silk commission. It is not to be anticipated in any way that this Parliament would wish to do anything relating to the National Assembly except celebrate its existence. I make that absolutely clear; it is my position and the position of my party, as the noble Lord knows. I just point out that this cannot overrule the rules of science and of parliamentary sovereignty that exist independently of the amendment.

[Lord Wigley]

My Lords, I am grateful to the noble Lord, Lord Elystan-Morgan, for his contribution and my noble friend Lord Elis-Thomas for his intervention—I nearly said my erstwhile colleague.

[Lord Elis-Thomas]

Call me whatever you want to.

[Lord Wigley]

I will not in this Chamber.

There seem to be two central points that have not been properly resolved. The first relates to a declaratory statement in legislation. I suspect that that is not something regarded as a strong principle in the systems we run because when we start pressing them we find they do not mean much more than the paper they are written on. Of course this place could pass laws that reverse the force of gravity, but they would not mean anything. The question is what they mean by this, especially, as my noble friend Lord Elis-Thomas said, in the context of the legislative consent orders required for all the legislation where the Assembly is involved. The Assembly is involved in this legislation because it is the Assembly that would be at stake and which would be involved in the undertaking of the practical aspects of a referendum. The legislation would therefore require a legislative consent order. If the Assembly said no, is the Minister then saying that that would be overruled? If it can be overruled in those circumstances, how does the principle apply in others when the Westminster Government might feel ill disposed towards policies put forward in Cardiff? This needs more clarification than the Minister has given so far. I invite him to clarify it.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My reason for speaking at all is that I had the privilege of sitting in the Supreme Court of the United Kingdom in the first devolution case that came before that court from Wales. I think I was the first judge ever to use the phrase “Welsh law” because it seemed to me, even at that very early stage, that a body of law was in the process of developing which deserved to be recognised as such. For that reason, I am glad to see new Section A2 inserted by Clause 1, which recognises that there is a body of Welsh law. I am entirely in sympathy with that.

I am also broadly in sympathy with the broad thrust of the points made by the noble Lord, Lord Wigley. I have sympathy with him partly because I come from Scotland, which has its own system of law which was guaranteed when we entered into union with England to create the United Kingdom. It was part of the deal between the two countries that the Scots law that had evolved would continue to exist. We had the advantage of our own body of law, which was developed largely with the assistance of jurisprudence in the Netherlands and France. It was a different system of law from that of England. It was recognisably different, and it required different judges. That is not a requirement for the kind of jurisdiction that the noble Lord, Lord Wigley, is asking us to consider. There is not that kind of difference between Northern Ireland and England; their common law is basically the same. But the fact that they are different jurisdictions recognises the important difference of outlook between these two countries in the way their laws are developed.

Although I have said I am in sympathy with what the noble Lord, Lord Wigley, has said, I am bound to say that I find his amendment goes too far and too fast. It is asking us to take an enormous step without any assurance that there exists yet enough Welsh law to justify what would be done and as to whether we have the manpower and womanpower to create the judicial positions being contemplated. My preference, in sympathy with what the noble Lord, Lord Crickhowell, said, is for Amendments 5 and 10—I am not sure I mind particularly which of them—which would be a step towards considering, in a little more detail and at more leisure, how this matter should be handled. The noble Lord, Lord Wigley, will of course say, “That’s going to mean another Wales Bill”, but I am afraid that might be the price to pay for moving at the proper pace to make sure that the systems are properly designed. I would like to see a development of that kind, but it needs to be very carefully worked out, bearing in mind all the things that other noble Lords will no doubt say about the difficulty of creating a Welsh Bar, which will provide the essential requirements for the judiciary to develop.

I would also like the Government to consider whether their recognition of the body of Welsh law as the law made by the Assembly and Welsh Ministers itself goes far enough. I do not have an amendment to that effect, but the fact is that judges help to make the law too. The Supreme Court of the United Kingdom, which after all looks at Wales through the devolution system and has had Welsh lawyers appearing before it, has its own part to play in creating Welsh law, as I attempted to say in my opening remarks. I intervened really to support the noble Lord, Lord Crickhowell, and I hope, in a way, to support the noble Baroness, Lady Morgan, and the noble Lord, Lord Thomas of Gresford, in what they are about to say.

[Lord Elis-Thomas]

My Lords, I am happy to follow the noble and learned Lord, Lord Hope, and his references both to the concept of Welsh law and to its meaning in the context of this Bill. I also say to him that I suspect there will be many more Wales Bills as a result of this Bill if it goes through in its present form. Our successors will be here debating these matters further.

The point of my small amendment in this group, Amendment 3, is to clarify that the law of Wales is more than what is made in the National Assembly for Wales, or indeed in this place as English and Welsh law, or by the decisions of the judiciary, since law is developed as the noble and learned Lord indicated. In this sense, the Explanatory Memorandum is much more informative than what is in the Bill itself. Paragraph 25 of the commentary on the provisions of the Bill makes it clear that:

“Subsection (1) confirms that there is a body of Welsh law made by the Assembly and Welsh Ministers. The law made by the Assembly and Welsh Ministers is … only part of the law that applies in Wales”.

I believe the noble and learned Lord, Lord Hope, made that point: the law of Wales is much broader, both historically and currently, than what is set out in the Bill. It is for that reason that I ask the Government to consider whether they can look for a wording that is more explanatory and of greater legal standing than that which they have currently adopted.

I will also quote, as I often do, my friend and mentor, the Reverend Professor Thomas Glyn Watkin. He told the National Assembly’s Constitutional and Legislative Affairs Committee, of which I was then a member, in evidence quoted as part of the committee’s report on the Bill:

“My own view is that there is now within the legal system of England and Wales three bodies of law that can be recognised: a body of law that applies only in Wales, a body of law that applies only in England and a body of law that applies in both countries. I think the legal system needs to adapt itself to that new reality, a reality that is growing as the body of law that applies only in Wales and the body of law that applies only in England increase in size”.

Turning again to the issue of jurisdiction, which my noble friend Lord Wigley so clearly set out in the context of his amendment, there is a link between the complexity of the Bill and the move to preserve a single and undifferentiated jurisdiction. It was made clear to us in the Assembly committee, both in a special seminar convened as part of our scrutiny of the Bill and in evidence, as we stated in our report at paragraph 28:

“It is clear to us that the UK Government’s policy to preserve the single jurisdiction has resulted in much of the complexity within the Bill”.

That is why I believe the Government will have to address this issue either tonight, next Monday or on Report. I absolutely agree with the noble Lord, Lord Crickhowell, that the complexity of the Bill is linked to the whole issue of the lack of flexibility on jurisdiction.