Wales Bill

Lord Elis-Thomas Excerpts

2nd reading (Hansard - continued): House of Lords
Monday 10th October 2016 Lords Chamber

[Lord Elis-Thomas (PC)]

My Lords, it is a particular pleasure for me to be sandwiched between two Secretaries of State to whom I owe a great debt of gratitude. I worked with the noble Lord, Lord Murphy, twice, when he returned as Secretary of State in my period as Presiding Officer of the National Assembly in Cardiff. The noble Lord, Lord Hunt, who is to follow—I am merely a warm-up act for him—gave me my first public appointment, without which I would probably not be standing here today. He stands guilty as charged.

This has not just been reminiscence therapy for former Secretaries of State. All the contributions we have had from all noble Lords who have spoken have been a relevant contribution to today’s discussion. Those contributions show up the inadequacy of where we are now compared with where we were when we started. The lack of progress in the last 20 years and more, during my political life in the Assembly and in other places, is something that distresses me about this Bill.

I am not one of those “capital N” nationalists, as my colleagues often find to their chagrin. I used to call myself a Welsh European devolutionist autonomist but I am not sure whether one can use the adjective “European” any more in this House. The constitutional development of Wales is something that I have always sought to promote and to work for, often with great difficulty. Sometimes the context was not there and the politics were not right. However, I think that we should have got further than we have at this stage. It is for that reason that my latest contribution as an Assembly Member and a Member of the Constitutional and Legislative Affairs Committee of the National Assembly at the end half of the previous Assembly, and at the moment, has been an attempt to influence the debate in a new way.

We are not supposed to call ourselves noble friends across the House, but the noble Lord, Lord Bourne, who was a great friend of mine when I worked with him in the National Assembly and who is still a great friend, knows that what we have developed in the Assembly is a legislative body of competence and the ability to scrutinise in the same way that Parliament does. The Constitutional and Legislative Affairs Committee will meet later this week with a committee of this House to discuss these issues.

We have gone on at quite some length in this debate but I want to speak briefly about the constitutional principles that concern me and about where we are and why we have not been able to do better at this stage of our devolution pilgrimage, if I can say that, following on from the noble Lord, Lord Elystan-Morgan.

The Constitutional and Legislative Affairs Committee has Bills referred to it by the Business Committee of the Assembly. We operate in a similar way to other Assemblies and Parliaments. When we got this latest Bill we had already done work on the previous draft Bill. We took serious evidence. We opened a public consultation in June of this year and completed it in September and took serious evidence from the most learned legal opinion we could gather together on the constitution in Wales. All this evidence is in the committee’s report. I know that some noble Lords have already read it. My noble friend was complaining that it was not a parliamentary paper. I am not sure whether the Assembly Commission, although I am no longer in charge of it, has the resources to provide all its papers free and in print form. We are, of course, a paperless, digital Assembly, so all Members who do not have a copy can see me later and I will tell them how to print it off the Assembly website. I see that the noble Lord has already done so, and I am grateful to him for that.

We held the consultation, took evidence and had a stakeholder event in which practitioners were involved. The online Loomio platform is still there. That was an attempt to consult in the widest possible way, and we produced this report. I signed up to the report with sadness, because I thought that we should have done better.

We will come back to these issues in Committee and on Report, and there will be amendments. The early clauses of the Bill talk about the permanence of the National Assembly, but I want to know what the legal force of that is. What is the legal force of saying that an institution is permanent? We are here in transient times—we have the great 1662 prayer book, and Prayers at the beginning of our day. We know that we are transient, so what does it mean to legislate for permanence? Even more conflicting and difficult for me is the further clause recognising Welsh law. I am proud to have studied medieval Welsh law at the University of Bangor. I was taught by various scholars, so I know that there is such a thing as Welsh law, because I studied it. Suddenly, we are legislating in Parliament assembled to recognise such a thing as Welsh law. Professor Richard Rawlings is one of the most distinguished constitutional lawyers and persons who has studied devolution, and he told our committee that the clause was a “shocker”. It demonstrates the problem of trying to do something symbolic when you do not really want to do anything at all. I am not saying that that is the Government’s intention, but that is how it has been interpreted by the academic lawyers that we consulted.

I was grateful to my noble friend Lord Murphy for referring us back to the Wales Act 1978, which became the basis, in a reformed way, of the 1998 Act. That Act was an attempt to legislate in a way that did not recognise the clear difference between a legislature and a Government, although we did not use those words in those days. But now we have the reserved powers model, which has been much heralded to be the solution of devolution in perpetuity—yet we have reserved powers plus reservations or exemptions, which is exactly where we were before. For 12 years, which was probably too long, I worked as Presiding Officer, deciding the competence of legislation; it was all about ensuring that it was in the competence, which meant that we had to take decisions about where the boundaries were of the devolution settlement. Clearly, conferred powers with exemptions take us to the same place as reserved powers with further exemptions. So where are we 200 exemptions further down the road? There is no clarity and no constitutional intelligibility here. In particular, where is the intelligibility for the citizen and the electorate? This is what this is about—it is about writing the law of Wales in such a clear way that the people of Wales, in taking decisions about their political life from day to day, will understand what it means. We are nowhere near that.

Having spent all these years trying to legislate in this place and Cardiff, I stand here knowing that I have failed to deliver a reasonable constitutional system for the country that I sought to represent. That is not my fault and not the fault of the present Minister, nor the fault of the parties here. We have been labouring in this vineyard for many years—but there is a failure to realise that Wales deserves better than the present treatment within the family of nations of the United Kingdom. If we are a home nation, it is time that we came home.

Draft Wales Bill

Lord Elis-Thomas Excerpts

Thursday 29th October 2015 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, that almost sounded like a job application. I know that the noble Lord is very proficient in the law and in Welsh. At the moment, it is done on an informal basis, but the noble Lord has a serious point, which no doubt will be taken forward as the draft Bill proceeds.

[Lord Elis-Thomas (PC)]

My Lords, this is not a job application, as the Minister knows. Is he aware that the National Assembly for Wales’s constitutional and legislative affairs committee will continue to adopt subsidiarity, clarity, simplicity and workability as the scrutiny tests for this Bill? Will Her Majesty’s Government listen to the committee’s reports, as the First Minister of Wales has done?

[Lord Bourne of Aberystwyth]

The noble Lord is quite right about the role of that committee of the National Assembly for Wales. It does very good work and of course it will be listened to. As I understand it, the Secretary of State will be giving evidence to the committee to discuss the Bill. I emphasise that the Bill is in draft form at the moment.

Wales Bill

Lord Elis-Thomas Excerpts

Monday 24th November 2014 Lords Chamber

[Baroness Randerson]

I did not say to the noble Lord that this would be possible without taking on additional staff. It is important that the views of the Electoral Commission have been communicated to noble Lords because it is obviously involved in the discussions. The Assembly has made its views very clear on this and there are resource implications from its perspective as well because, as several noble Lords have made clear today, it is important to bear in mind that there has to be a period of awareness raising and education as well as the sheer issue of assembling a register.

[Lord Elis-Thomas (PC)]

The Minister is absolutely right. The National Assembly has resources in the Assembly Commission to promote its own activity, promote democracy generally and promote a particular referendum as we did prior to the previous referendum, which ensured that we have now proper law-making powers. I am certain that the present Assembly Commission will take the same positive view. Indeed, at an event that was part organised by the Assembly Commission last week, a vote was taken on this matter by young people. The young people were in a majority—a small majority—for generally reducing the voting age to 16.

[Baroness Randerson]

The noble Lord brings information from the front line, if I can put it that way, in far more detail than I could have provided to your Lordships. The noble Lords, Lord Rowlands and Lord Richard, asked detailed questions about the numbers of young people who voted in Scotland and the turnout. The turnout of 16 and 17 year-olds was remarkably high. It is my recollection that it was slightly lower than among the older sections of the population but it was remarkably high. I refer noble Lords to the fact that the Electoral Commission is, at this moment, undertaking a detailed study of the impact of the votes of 16 and 17 year-olds in Scotland. That report will be published in the relatively near future and I would recommend it as very important reading for those of us who are interested in these issues.

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[Lord Morris of Aberavon]

My Lords, it is not my intention to detain the House, despite this interruption, for more than a few minutes. I welcome very much the significant powers granted to Wales in this Bill, which has been so ably steered by the Minister. Perhaps of greater importance will be the conclusions of the consultations which will be produced, I hope, by 1 March. They will be groundbreaking. I also welcome very much the role being played the Secretary of State who is carrying out what I hope is the mandate given to him following the reshuffle by the Prime Minister in the words of my noble friend Lord Elystan-Morgan.

Following 7 May, my hope is that a Labour Government will bring forward proposals. By our votes in Committee, the Labour Front Bench underlined its commitment, as did my noble friends Lady Morgan of Ely and Lady Gale at Second Reading. They have provided the basis for a manifesto commitment. In the 1970s, when I set up the role of the Attorney-General to police the Assembly if it exceeded its powers, I never expected or contemplated one of my successors being so trigger happy and repeatedly trying to overturn the Assembly, and getting, for his pains, black eyes on two occasions. A simpler, cleaner, reserved powers model would be much better.

I close on the need for a high-power constitutional convention. In 1969, the setting up of the Kilbrandon royal commission by a Labour Government was the vital catalyst for the path that we have been treading over the years. I shall never forget the noble Lord, Lord Elystan-Morgan, coming up from the beach at Newquay in Cornwall one lunchtime and brandishing his idea for a royal commission as a way forward. It seems from the papers I have seen at Kew that other work along the same lines was also being done by Ministers. The announcement at the next Labour Party conference of a royal commission was the culmination of that work.

Today, something more profound and influential than even a royal commission is needed to map out the role for Scotland, Wales, Northern Ireland and England as partners in the future of the United Kingdom. I hope that there will be courage on the part of all the parties to work out a broad-based convention so that we can come to the end of piecemeal reform.

[Lord Elis-Thomas]

My Lords, I have no wish to detain the House but I want to place on the record on behalf of my noble friend Lord Wigley and myself, both of us former Members of the National Assembly. In fact, I am still a Member—so far—dependent on the will of the electorate, as were the Minister and her colleague on the Front Bench. I thank the Government for their very positive response on all these matters. I should like to refer in particular to one great joy as regards this Bill, which is the passing of a phrase with which I have always had constitutional difficulty: the Welsh Assembly Government.

First of all we were the Welsh Assembly. That meant all of us—the whole family of legislators, officials and Ministers, or rather secretaries in those days. Then we went through a transitional period as the Welsh Assembly Government. Now, thank goodness, we are the Welsh Government for Plaid Cymru and the National Assembly for Wales, and long may we remain so.

[Lord Thomas of Gresford]

My Lords, I have been talking about devolution and independence with the noble Lord, Lord Elystan-Morgan, since around 1962 when we were both solicitors in Wrexham. Indeed, I even voted for him in 1964 when he was a Plaid Cymru candidate. The noble Lord, Lord Elis-Thomas, will be interested to know that. Thereafter we developed our ideas on devolution and it was those ideas, which we produced in 1967 in a Bill in the House of Commons and here that was taken up and considered by the Kilbrandon commission, to which I gave evidence. I say all this because of the history that everyone has been giving.

This Bill is just a step; it is not the end. I notice today that the Glasgow Herald says that the intention of the Smith commission is to introduce votes at 16 for the next Scottish Parliament elections. If that happens in Scotland, I am sure it is going to happen in Wales. Similarly, it has been said that Scotland may very well be looking for an airport tax. If that happens in Scotland, to the delight of the noble Lord, Lord Rowe-Beddoe, it will necessarily come to Wales as well. There are further steps to be taken before we have the complete and satisfactory home rule that the noble Lord and I dreamed of over 50 years ago.

Wales Bill

Lord Elis-Thomas Excerpts

Tuesday 11th November 2014 Lords Chamber

[Baroness Randerson]

If the noble Lord is telling us here today that the Labour Government in Wales have already decided that under no circumstances would they call an income-tax referendum, I am very disappointed. The line I have heard from the Labour Party up to now is that it is open-minded to it as long as there is progress on other issues connected with devolution. I want to take this opportunity to repeat that the UK Government believe that there should be a referendum on income tax powers in Wales as soon as possible. That is something we would strongly encourage in Wales. We regard this as a significant step in Welsh devolution because we are planning to bring forward an amendment at Third Reading on this with the intention that it should be used.

[Lord Elis-Thomas (PC)]

The wording of the National Assembly’s resolution on the future of devolution emphasised that a referendum on tax-varying powers should reflect the view of the people of Wales. The Minister is as able to interpret that as myself and my noble friend, so I think the position is as the Minister described it.

[Baroness Randerson]

I thank the noble Lord for his intervention. I interpreted that phrase to mean that the decision should be made in Wales and that is what we will be seeking when we bring forward the amendment.

The Government do not accept that it would be right to impose on Wales a new franchise for elections to the Assembly or to local government as Amendments 3 and 11 seek to do, nor do we agree that this Bill should be the vehicle for devolving that power to the Assembly as Amendment 2 seeks to do. Devolving to Scotland the decision on whether 16 and 17 year-olds were able to vote in the referendum had no automatic read-across to the franchise for elections. As I have already mentioned, my right honourable friend the Secretary of State has made it clear that he intends to begin discussions to seek cross-party consensus on the way forward for Welsh devolution. Electoral arrangements in Wales will form part of those discussions. That is the appropriate context for discussing these issues.

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[Lord Anderson of Swansea]

My Lords, Amendment 4 stands in my name and that of my noble friend Lady Morgan. It states that all matters pertaining to National Assembly for Wales electoral arrangements contained in this Bill must be subject to Assembly agreement before implementation. It has been grouped with Amendment 5, in the names of the noble Lords, Lord Elis-Thomas and Lord Wigley. It is more comprehensive than my amendment in that it extends to its constitution, structure, membership and elections and suggests that they should be decided by a vote of the whole Assembly by a majority of no less than two-thirds of voting Assembly Members.

I make only this comment on the two-thirds supermajority. I know there is apparently precedent for this, but I call on the knowledge of the noble Lord, Lord Norton of Louth, that traditionally in jurisdictions that require a two-thirds supermajority it has been a recipe for inertia. It has led to gridlock and immobilism. In this sort of matter, to impose the necessity for a two-thirds majority suggests that there will be no reform at all as it is very difficult to find an issue on which there is that level of majority, but I defer it. Perhaps the noble Lord will write to me suggesting that it is almost certainly true.

I have been impressed by what the Minister has said thus far in respect of the two amendments which have been before us. She has shown a readiness to listen and, certainly, to respond. On the previous amendment, in particular, she argued that this is a matter that should be left to the Assembly because there is a consensus among the various parties in the Assembly. My submission in respect of this amendment is that it is certainly a matter that should be left to the Assembly. I would have thought that there is no doubt whatever that all parties in the Assembly would agree to this. If the Minister is prepared to say at this stage that she will follow what she said in relation to the previous amendment in relation to this one and that she will move an appropriate amendment at Third Reading to let the Assembly decide its own electoral arrangements, I can save this House a lot of time by sitting down and saying, “Thank you very much”.

[Lord Elis-Thomas]

My Lords, before the noble Lord sits down—

[Lord Anderson of Swansea]

I have given the Minister the opportunity to truncate my speech, but perhaps I should set out the terms of the amendment, otherwise I shall be truncating myself. My broad proposition is that we are devolutionists now. We may disagree on the pace of devolution and on the terminus, the end station, of devolution, but there is a broad spirit of agreement, particularly post the Scottish referendum, and a new spirit of seeking to allow the assemblies of the nations and of the parts of the United Kingdom to make their own decisions—or, as they would say in colonial times, to make their own mistakes. In some cases, central government has shown itself reluctant to relax the reins, and this matter has, thus far, been one of them, but I nurture the hope that, consistent with her previous responses, the Minister will make a more positive response to this.

The proposition is simple and clear. It is absurd that in Westminster we should be laying down rules on how the devolved Assembly in Wales should organise its own elections, irrespective of its views. Surely it is the expert in this field. It has the experience of fighting elections on the current rules and we should listen to it with respect. If decisions, at least for the moment, are not left to the Assembly, as is suggested in the other group, at least its agreement should be necessary to any proposals. Even our local authorities have a degree of discretion currently not left to the Assembly.

It is difficult to see how this can be opposed, save on grounds of inertia, as there would surely be no opposition in the Assembly itself. There is a taste otherwise of “Westminster knows best”, from high to low, delivering electoral arrangements like tablets of stone to a grateful Assembly. Surely we should all accept that we are dealing with a mature Assembly? I am sure that my friend, the noble Lord, Lord Elis-Thomas, would be the first to concede that there were some initial teething problems, but now the Assembly has settled down very well indeed, and has gained the support and approval of the overwhelming majority of the people of Wales. They should be allowed to decide for themselves how they wish to be elected. Currently there is not even the statutory obligation to consult them on these arrangements.

Do we really know best? Do we wish to continue to impose our wisdom on the Assembly? Have we no trust in the Assembly on such matters, which should be wholly within its own domain? I leave this question to the Minister and the House: how can it be reasonable not to allow the Assembly to make decisions on such electoral arrangements, not as a matter of generosity, but as a matter of law? I beg to move.

[Lord Elis-Thomas]

I thank my friend the noble Lord, Lord Anderson, for continuing to move his amendment. I was afraid at one moment that he was seeking to withdraw it before he had actually proposed it, and that would have been entirely disorderly.

I am delighted with the progress of our discussions today. I had a list of three issues that I wished to raise on behalf of myself and my noble friend Lord Wigley, and our colleagues of all parties in the National Assembly. This is the third issue. The response to the previous two has been extremely good, so I am expecting an even better response to this one.

In addition to the points that had already been covered on the reserved powers order and on the recognition for a decision involving tax-raising powers reflecting the agreement of the people of Wales, part of the resolution that was passed unanimously by the National Assembly two weeks ago was a call on the UK Government to give the National Assembly the power to determine its electoral arrangements. The Minister indicated in an earlier response that this might indeed be a matter that would be looked at in the great deliberation before St David’s Day. We are very keen that these arrangements should be agreed before the next Assembly elections so that we are able to benefit from any changes that will take place.

I will call in aid no greater authority than my friend in the Assembly, and a neighbour of my family in the Vale of Glamorgan, the leader of the Opposition. He is not yet the right honourable Andrew RT Davies, but no doubt will be at some stage. He argued strongly on this resolution and said:

“I find it bizarre that we have an institution that has primary legislative competence and that Ministers are appointed by the Crown, but, ultimately, the electoral arrangements for this institution do not reside in this institution. I do believe that that would be a relatively simple Act to undertake”.

I hope the government Front Bench in this House will agree with that analysis.

This issue was also discussed more recently last week, when we had the Constitutional and Legislative Affairs Committee’s report on the inquiry into the disqualification from membership of the Assembly. Both the First Minister and the very distinguished Deputy Presiding Officer, David Melding, agreed entirely with the view that the Assembly should indeed be in charge of its own electoral arrangements.

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[Baroness O'Neill of Bengarve (CB)]

My Lords, before we go any further, I might not be the only Member of your Lordships’ House who detects an ambiguity which we need to clarify before proceeding. Is the proposition that electoral arrangements shall be subject solely to the agreement of the Assembly, or are electoral arrangements for the National Assembly for Wales subject indeed also to legislation by this Parliament, and in addition to the agreement of the National Assembly for Wales? That has not become clear and I have been listening very carefully to both noble Lords who have spoken. If it is the case that it is to be solely subject to the agreement under the special provisions—which I hope I understand—then this amendment is probably pre-empted by the undertaking that the Minister has already given, and we should not be discussing it. If, on the other hand, the assumption is that it is to be understood that electoral arrangements are solely a matter for the National Assembly for Wales, it would be very helpful to have that clearly stated. Is the agreement of the Assembly additional to the agreement of this Parliament, or is it solely the agreement of the National Assembly for Wales?

[Lord Elis-Thomas]

What we have here are two amendments, appropriately grouped together, but with two different principles. The amendment in my name and that of my noble friend calls for powers on electoral arrangements and constitutional aspects to be devolved to the Assembly through Schedule 7 to the Government of Wales Act 2006. Under the subject National Assembly it becomes an additional action that the Assembly is unable to legislate upon in that area. That is the way that it is phrased in this particular discussion, although we had a different discussion on this principle in Committee.

The principle that my noble friend seeks is statutory consultation—

[Lord Anderson of Swansea]

Agreement.

[Lord Elis-Thomas]

Yes, agreement with the Assembly on the outcome—a need to negotiate an agreement. So there are two principles there. Indeed, the noble Baroness is right that this has been overtaken by the undertaking given earlier, but I did not even dream that we would have so many undertakings, so I tabled the amendment in expectation rather than in hope—and now my hope is about to be fulfilled.

[Lord Howarth of Newport]

My Lords, I would be disappointed if the more radical interpretation of Amendment 4 that the noble Baroness, Lady O’Neill of Bengarve, has adumbrated were not to be the case. The National Assembly for Wales should have power to determine the electoral arrangements for the people of Wales whom it represents, in exactly the same way as the Parliament of the United Kingdom, subject to experts and objective advice, determines electoral arrangements for the United Kingdom.

I do not understand this paranoid insistence on standardisation in electoral arrangements. It could be that using the Scottish Parliament, the National Assembly for Wales and the electoral body in Northern Ireland as laboratory experiments would enable us to learn how better to conduct our electoral affairs and democracy. After all, this Parliament has foisted, or intends to foist on the people of Wales, the most absurd reorganisation of constituency boundaries. It would be much better for the people of Wales as far as possible to be able to determine their own electoral arrangements.

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[Lord Elis-Thomas]

My joy is unbound.

[Baroness Randerson]

Then I very much hope that the noble Lord expresses his joy by not moving his amendment.

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[Lord Thomas of Gresford]

My Lords, mistakes were made by the Labour Government in the first place with the electoral system that they chose. First past the post had to be maintained under any conceivable circumstance and the only way in which proportionality could be introduced was by way of the list system. Certainly, you can abolish the list system and replace it with the single transferable vote. We, on this side of the House, who argued for that in the first place, would willingly go along with it. One of the consequences of the Labour Government choosing, in 1998, to put in the system that they did was that a person could then stand both as a list candidate and as a constituency candidate. It is all very well talking about being rejected by the electorate. Where you have a first past the post system, you can have a political party with substantial following throughout the country—I am thinking about an up and coming party at the present time—which may win no seats at all. The system that was introduced in 1998 of being able to stand in two places was simply as a result of the Government at that time rejecting our argument for the single transferable vote. The sooner we get to that system, the better.

[Lord Elis-Thomas]

My Lords, before the noble Lord sits down—perhaps he has already sat down—does he agree with me that, if we went for a single transferable vote system throughout Wales, that would immediately make the regions the constituencies rather than the present constituencies because, clearly, for STV to work there would have to be a broader area of representation?

[Lord Thomas of Gresford]

I accept the logic of that. We have always argued for it and will continue to do so.

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[Lord Anderson of Swansea]

My Lords, first, I welcome the noble Lord, Lord Bourne, to the Front Bench for the first time on a Bill. Let us warmly welcome him. He has made a major contribution, not least to constitutional matters in Wales.

On what the noble Lord, Lord Thomas of Gresford, said on STV, this is certainly worth debating. It would get around the dangers of dual candidacy. Of course, the problem is that people can identify with a constituency but are less able to identify with a region, but it certainly would be more democratic and would remove the dangers of this particular proposal from the Government.

On the evidence, I concede that it is not overwhelming, but the surveys that have been mentioned all point one way. There is no popular demand for this and there is a slight majority in the relevant two surveys showing that there is opposition to the dual candidacy—for good reason.

What puzzles me is that the Bill is broadly non-controversial and has been made even more palatable by the concessions made today by the Government. Yet, the Bill essentially puts into practice the recommendations of the Silk commission except for this provision. If you were a geologist you would call that eccentric and something outside that. One wonders why the Government have added this to what is essentially a non-controversial Bill.

This is not a partisan amendment in any way on my part. I have mentioned before that the leading spokespeople of both the Conservative and Liberal Democrat parties earlier opposed dual candidacy—for good reason. They had seen it in practice during the first Assembly. I gave quotations at Second Reading to show that, since this had been introduced by a Labour Government, the amendment could hardly be deemed partisan. As the rejection was supported by these two leading spokespeople, it again could hardly be deemed partisan. In my judgment, this is an unwise inclusion in what would otherwise be a non-controversial Bill. The Labour Party has pledged to reverse this when we get into government. Having made my point and looking forward to that reversal—

[Lord Elis-Thomas]

My main concern about this whole issue is the constitutional situation where the electoral system for the Assembly is to be changed whenever there is a change of United Kingdom Government. Quite frankly, I find that reprehensible. We require stability in an electoral system. Would my noble friend agree that it is better that this matter is devolved to the Assembly, so that we can create an electoral system that would be responsive to the people of Wales and would be established by only a two-thirds majority?

[Lord Anderson of Swansea]

I have argued in the past that all the electoral arrangements, including this one, should be devolved to the Assembly, but I am less inclined to accept the latter part of my noble friend’s submission that there should be a two-thirds majority. It would not be a two-thirds majority but a one-third blocking minority, so it would be minority rule. Given the fact that under the current system a third of the seats are on the list, I suspect that nobody on the list will vote for any change. On the whole, we should let the Assembly makes its own decision on this. I therefore wholly accept the view of my noble friend. I beg leave to withdraw the amendment.

Wales Bill

Lord Elis-Thomas Excerpts

Tuesday 11th November 2014 Lords Chamber

[Lord Richard (Lab)]

My Lords, I did not intend to speak in this debate until I heard the speech from the noble Lord, Lord Deben. I shall make two points. First, he is absolutely right that the constitution of the United Kingdom as a whole needs a good looking at. There is no question about that. It needs looking at rationally, sensibly and at a very high level. Therefore, I have for a long time been in favour of some kind of convention or royal commission which would do precisely that task. That is one issue.

The other issue is what you do about Wales now. You cannot mix the two up and pretend that the Welsh issue is not an issue that has to be dealt with before the royal commission begins to sit. The position with the Welsh Assembly at the moment is that it has—to use the noble Lord’s phrase—an irrational system whereby it is entitled to legislate. I would have thought that the noble Lord would agree that perhaps some rationality should be brought into the Welsh system. You would then at least have conformity between Wales and Scotland.

The relationship between the devolved Administrations and the centre is precisely the issue that then has to be looked at by a royal commission when it comes to consider the constitution as a whole. I do not think you can just pretend that the situation in Wales does not really exist and wait for the deliberations of a royal commission, which may take some time, as they usually do, and when it reports, the report usually takes a long time to be properly considered. I think there is a distinction there.

[Lord Elis-Thomas (PC)]

My Lords, I am a little reticent to enter the debate on the basis of rationality because I once had to resit an examination in logic, happily in the university of which I am now the chancellor, so some things work out. This has been an extremely illuminating debate for all of us, not least because we have had further highlights from the memoirs of the noble and learned Lord, Lord Morris of Aberavon, which I am sure many noble Lords have already read. I remember those days in the 1970s very vividly. I pay tribute to him for his consistency in this matter and for his consistency at that time. He has pointed out how he was so keen to ensure that there was not a flanker movement on the part of the Scots, as there always is in politics and occasionally is in sport. He ensured that the issue of Wales stood alongside the issue of Scotland at that time. We had a few cups of tea, and other things, at that time to discuss these matters, and we are where we are today because of the way that he stood firm.

If this is the day of the eulogy of the conferred powers model, I want to say some positive things about it. I was elected Presiding Officer in the Assembly, and I had to work with the three constitutions we have had so far: the executive period; the transitional period of the late lamented—perhaps not—requests for permission to legislate; and now the period post the 2011 referendum on the conferred model conferring full legislative powers with exceptions.

As I mentioned in Committee it is important to say that in constitutional theory, as far as I am concerned, conferred powers with reduced or no exception, bring us to the same place as reserved matters. It means that the subject set out in Schedule 7—the latest and most relevant model—and Clause 108 of the Government of Wales Act 2006 gives us those powers as defined. There is no ambiguity there.

Wales Bill

Lord Elis-Thomas Excerpts

Wednesday 15th October 2014 Lords Chamber

I trust that the Minister will agree that this is an urgent matter, bearing in mind that the general election is only a few months away and the Welsh Assembly elections are in 2016. Time is of the essence to encourage all people to register to vote, especially young people. There is all-party support in Wales for these amendments and I trust that the Minister will listen to the voice of Wales, as clearly expressed in the letter of 13 October. I look forward to what she has to say in her reply.

[Lord Elis-Thomas (PC)]

My Lords, I am very grateful to my colleague in the adjacent barony of Llandudno, along with my colleague in the barony of Llanrwst, for introducing this topic. I speak of course, as the Lord of Nant Conwy—a fine historic barony in the history of Wales—but we will leave that for today. Before the Minister responds to the debate, let me say that I would encourage her to respond positively.

As noble Lords will be aware today, for the feast of St Edward the Confessor holy communion in the abbey close to us occurs at his shrine, which unfortunately also includes the grave of Edward I—a place that I do not normally visit. But having visited that place this lunchtime has enabled me further to consider how appropriate it is that, at this time of the feast of St Edward the Confessor, we should continue our debate on the future of the nations of these islands. Such a debate is stimulated by the whole question of participation.

The Minister will be aware, because she and the noble Lord, Lord Bourne, were there at the time, that the Assembly is already empowered to spend money to promote its activities as a part of democratic participation. We did that alongside the Electoral Commission in the period before the last referendum. But these have been sporadic initiatives. What we want is a systemic way in which to ensure that there is automatic participation by the potential electorate before they get to voting age in democratic elections, by being clearly included and prompted. There is no coercion here; it should be seen as part of citizenship that the opportunity to participate is presented to the potential voter.

I remember an occasion when I took part in one of these promotion things when I visited my native county of Carmarthenshire and spoke to young people in primary school, whereupon we had a real vote in the classroom itself. At the end of the day, apparently, one of the young pupils went home and told her parents, “A man from Cardiff whom I had seen on television came to my school and told me to tell you that you have to come out to vote”. So there are dangers in these things. The more we can make this acceptable as a painless and democratic part of our electoral system, the better. This might be the first opportunity for the Minister to accept an amendment in principle and bring back an even better one on Report.

[Lord Tyler (LD)]

My Lords, I am delighted to add my signature to this group of amendments. Although I am very proud of my Celtic ancestry in a different part of the United Kingdom, I am not Welsh, not a lawyer and not even a Methodist local preacher. So I can be incredibly succinct in saying that what is so important about this group of amendments is that it is based not on any theory but on practical experience both in Northern Ireland and now in Scotland, as my noble friend Lord Roberts has said. I hope that, in that spirit, the Minister will be able to accept these amendments in toto because they do not in any way extend into a new area. They simply take advantage of the practical experience we have had in other parts of the United Kingdom.

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[Lord Elis-Thomas]

In the spirit in which the Minister has spoken, and in the spirit already referred to by colleagues of the all-party consensus emerging very strongly in the National Assembly—I draw the attention of Members of this House to the Motion that has today appeared on the Order Paper signed by the four party leaders, which will be debated in the Assembly on Tuesday—would it be possible for her to give an assurance that she will speak to the First Minister, the appropriate representatives, the Presiding Officer and so on in the National Assembly on this matter?

[Baroness Randerson]

The noble Lord has anticipated my next sentence. In the light of the letter that has been received, I will, of course, liaise with Members of the National Assembly, because it is very important to ensure that their views are taken into account. In the light of these points, I urge my noble friend to withdraw the amendment.

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[Lord Wigley]

My Lords, this amendment stands in my name and that of my noble friend Lord Elis-Thomas. I will also speak to the associated group of amendments on the Marshalled List. In doing so, I suspect that there may be differences of opinion across the Chamber on some of the matters involved in these amendments.

Amendments 41 to 48 are drafted to ensure that only the National Assembly can begin the process of calling a referendum on the commencement of the income tax provisions in the Bill. Amendment 41 would ensure that a referendum might be called if a two-thirds supermajority of Assembly Members approved it—and that, this being the case, the Secretary of State would be required to make the order within 30 days of it being approved. This is evidently a change from the 180 days in the Bill, which we believe to be an unnecessary delay.

Amendments 42, 43 and 44 are consequential and ensure that although an order would still need to be laid before each House of Parliament, only the Assembly would need to approve the referendum order. We believe that the responsibility should be fairly and squarely on the shoulders of the Assembly in this matter, as in other matters which we debated earlier.

Amendment 45 similarly ensures that there is no unnecessary delay in the proceedings. As currently drafted, Clause 12(6) allows the Secretary of State to consult on the draft order until whatever time he or she considers appropriate. Amendment 45 would remove that provision.

We have laid an amendment arguing that Clause 13 should not stand part of the Bill for the reason that, were our other amendments in this group carried, the provisions in this clause would no longer be necessary. It should be for the Assembly to determine whether a referendum is needed. This decision should not be subject to the approval of the Secretary of State.

Amendments 47 and 48 allow for a supermajority of the National Assembly to decide whether there should be a referendum on transferring income tax powers or whether—I emphasise this—simply to commence the provisions. We believe that if a cross-party consensus were reached in the Assembly, which would be needed in order to achieve a supermajority of Members, that institution should not be compelled to put it out to a referendum. If all the parties agree on these matters, why on earth go to the expense of holding a referendum? Scotland is apparently going to be given far-reaching new taxation powers without such a referendum. Why should we in Wales have one forced on us?

On Monday, I argued that the Assembly should have the power to hold a binding referendum on matters which are already within its competence. A referendum on tax matters should be an available option if the Assembly deems it necessary. That would be for the Assembly to determine. The principle contained in this group of amendments is the same: if the Assembly should determine for itself whether to put a question to the electorate, it should have the power to commence that process itself. Similarly, if it agrees that a referendum on a technical issue such as this should not be necessary, it should be within its power to commence the provisions itself and, at election time, to be held accountable to the Welsh electorate on that basis. I beg to move.

[Lord Elis-Thomas]

My Lords, this amendment follows the amendments to Part 1 that were debated on Monday. The intention is to establish the constitutional principle that it is by requiring a threshold of a two-thirds majority of Members of the National Assembly present and voting that we can maintain the checks and balances brought about by the change in devolution. Since we debated these matters on Monday there has been rapid movement in the interparty discussions both here in Westminster between the political leaders and, equally importantly—I was about to say more importantly—in Cardiff. Those discussions have resulted in the Motion on the Assembly’s Order Paper which will be debated on Tuesday. It will clearly set out the view of the four party leaders in the Assembly in relation to negotiating with the United Kingdom Government and to the interparliamentary negotiations on some aspects of the procedure that will be required to take these matters further.

The principle of interparty agreement in Cardiff leading to a request to the UK Government, and to the UK Parliament where relevant, should generally be welcome in this place and throughout the United Kingdom levels of government in response to the new times that we are in as regards devolution.

Interparty agreement has been the route that we have taken for the development of devolution in Wales since the conversion of the Welsh Conservatives—I see my friend from the Assembly, the noble Lord, Lord Bourne, sitting on the Front Bench—to a position of embracing devolution. My intention has always been that, regardless of what happened in Scotland or Northern Ireland, that should be the route followed in Wales. Therefore, when there are contentious matters, it is the Assembly, on a supermajority, that should decide these things. It does not need to have it imposed on it by Parliament or, indeed, by political parties outwith the Assembly.

I therefore ask the Minister to consider this amendment in a spirit of agreeing to serious discussions. The Prime Minister has said—we do not need to quote this continually—that Wales should be at the heart of the debate on devolution. If the Assembly’s making a request to the UK Government and Parliament is not the people of Wales speaking through their elected representatives and asking to be part of the discussion on equal terms, what is? How are we to express that will? The expression of that will is essential to the spirit of the new union, as the First Minister of Wales called it today in this city. In that spirit, I ask the Government seriously to consider the direction of our amendment.

[Lord Elystan-Morgan (CB)]

I endorse with very great enthusiasm everything that has been said by my noble friends Lords Wigley and Lord Elis-Thomas, particularly on the question of unity. We as a nation have been blighted by disunity for so long. That refrain was taken up over the years by my old and very dear friend Lord Elwyn-Jones: our predilection to fissiparous division. He had a marvellous story, and I hope the House will indulge me for a moment. A shipwrecked sailor was cast on a desert island, the only survivor of the tragedy. He was there for years, but ultimately a ship drew into the bay. A boat came ashore, and there was great jollification all round. Before leaving the island, the sailor showed the boat’s crew where he had been living: his living quarters, where he had kept the animals and a cave with a cross over it. He said, “That is the church in which I worshipped on Sundays”. Somebody among the boat’s crew said, “But there’s another cave with a cross on it”, and he said, “I wouldn’t be seen dead in that place”. That is the sort of people that we have all too often been in Wales, and unity is very greatly to be welcomed. I have already paid tribute to the noble Lord, Lord Bourne. The Silk commission tried to find a reasonable, meaningful, least common multiple. The chairman, the assessors and the four representatives of the various parties succeeded in doing that, and long may that continue.

I turn to the question now of the amendment itself. I accept the principle that it is healthy, proper and courageous for the Welsh people to take on themselves these heavy fiscal responsibilities and that the decision should essentially be theirs alone. On the other hand, I would not wish the situation to develop other than through a referendum because I think that a referendum would clarify the mind—as Dr Johnson might have said—and would allow these issues to be examined in very great detail. I was disappointed in 1997 when the Labour Government, having been elected, made it clear that they would proceed with the issue of some form of Parliament for Wales and then said at the same time that there would be a referendum. I was disappointed but I was enthralled that we managed to carry that referendum, albeit by a slim majority. It gave us a sovereignty and a moral certainty in relation to the matter and I think the same would be true in this connection.

I am sorry that I missed the beginning of this debate—I was upstairs in a sub-committee dealing with European matters and I apologise for that—but I believe I heard the Minister say, with regard to a referendum, that she wished that the matter would be dealt with fairly quickly by the Welsh Assembly. I see that she nods. This is my plea. This is a crucial matter that deals with the very essence of whether a Welsh Parliament can succeed in a credible way. Everything turns in the first place on the validity of that referendum in so far as it reflects the wishes and understanding of the Welsh people. There can be no question of meandering into the dark in this matter, marching possibly to the beat of a distant drum while looking at some faint point of light in the distance. It is the same as a jury contemplating a serious case. There has to be certitude over exactly what the issues are and what the main relevant facts are in relation to them.

Let me come to the point immediately. There are many issues but the most important one is Barnett. The Government have said in relation to Scotland, understandably and perhaps in a mode of panic, that they will not touch Barnett at all. Barnett shall be utterly inviolate. Having said that, it means that it is virtually impossible to contemplate a situation where they will be willing to discuss Barnett in the context of Wales. It is one and indivisible—the bubble is either pricked or it is not. As far as the losses under Barnett are concerned, I know that various figures are mooted. The probability is that the annual loss at this stage is of the order of £200 million to £300 million and will increase as prosperity increases. Be that as it may, I ask the Minister to give these undertakings. First, the Government should appreciate that it is the legal right of the Welsh Assembly, and no other body, to decide whether there should be a referendum and when there should be one. Secondly, they should not contemplate bringing any pressure to bear on the Welsh Assembly in that regard—it should have a free, unfettered choice. Thirdly, there should be no question of asking the Welsh people to determine this momentous matter of a referendum without the Barnett matter having being settled fully, comprehensively and once and for all.

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[Baroness Randerson]

That would depend on the circumstances, would it not? Someone may wish to test such a matter before the courts; I speculate here, but there might be objections lodged by certain Assembly Members. I emphasise to noble Lords that the driving seat is occupied by the Assembly in this process.

[Lord Elis-Thomas]

I will not pursue this matter, but I tell the Minister that if she has been given legal advice that procedures of the Assembly are in doubt, she must know that those matters are for the Presiding Officer and the Assembly itself, and must be so.

[Baroness Randerson]

That is exactly the view of the Government. The Assembly, as I have just said, is in the driving seat in this process.

I resume my response to the initial speeches in this debate. I point out that by opposing the question that the clause should stand part of the Bill and through Amendments 41 to 45, 47 and 48, noble Lords are of course seeking to remove important parts of a tried-and-tested mechanism which was recommended by the Silk commission. Silk is the basis of consensus. The noble Lord, Lord Elis-Thomas, referred to the importance of agreement, and so on, and the characterisation of consensus as something that the Assembly has sought on many occasions. Silk is the basis of the consensus behind the Bill. I ask noble Lords to recognise that we sometimes need a bit of choreography in order to maintain unity. That means that there has to be agreement to work in unison, although it may not always be exactly what we would prefer at any one time.

Amendments 41 to 45 would remove the need for Parliament to approve the draft order that sets out how a referendum is to be conducted, and the right of the Secretary of State to consult before such an order is laid. I repeat that all this is based on the experience of the 2011 referendum for lawmaking powers. It is the mechanism that has been agreed.

Through Amendments 47 and 48, noble Lords are seeking to provide a mechanism by which the Assembly could resolve to commence income tax provisions in this Bill without a referendum. I realise that there are those who do not believe that a referendum is necessary, but I recognise entirely the arguments put forward by the noble Baroness, Lady Morgan, that the original referendum did not include a tax question. It is therefore important that people are engaged in this debate and given the opportunity to make their voice heard. It is a fundamental, far-reaching issue and therefore the people of Wales need to be consulted.

The noble Baroness, Lady Morgan, was concerned that I had deliberately misunderstood her, which I find a distressing accusation. I invite the noble Baroness to reread what she said earlier in the debate; she might then understand why it is possible to have misunderstood her.

I therefore ask the noble Lord, Lord Wigley, to withdraw the amendment, and not to oppose the question that Clause 13 stand part of the Bill.

[Lord Wigley]

My Lords, I am grateful to every noble Lord who has taken part in this debate and to the Minister for her response. There has been clarification on some points, such as the 180 days and so on, which is useful.

There is, however, a central point here: whether or not this House trusts the National Assembly for Wales, the elected parliament of Wales, to take decisions such as this. I have every faith in its Members that, if there is doubt as to whether they can carry the people of Wales with them in their decision within the Assembly, they know that they may need to revert to a referendum. Of course, they have as much intelligence to provide that as we do in this House.

[Lord Elis-Thomas]

More.

[Lord Wigley]

More, my noble friend says. In many ways, he is right: they are in Wales dealing with the circumstances of Wales. With all the good will in the world, what is done here is done for Wales and what is done in Cardiff is done by Wales. We want to ensure that they take that responsibility on their own shoulders. That is one of the driving forces towards getting a consensus of approach.

The noble Baroness mentioned choreography in getting agreement. There must have been a lot of choreography in getting all four party leaders to sign up to the Motion that is coming before the Assembly next Tuesday. It is a substantial step in the right direction. The way in which we are doing these things in Wales is different to the way in which they are being done in other parts of these islands. I think that, in many ways, we are doing them better and they will stand the test of time. We have to trust the people in a referendum, yes, but also the representatives to come to a sensible decision in regard to such matters.

I accept what the noble Lord, Lord Elystan-Morgan, said about the Barnett formula. We will be coming on to that in a later bank of amendments. Of course there has to be an acceptable basis before one moves into the income tax provisions, but we are going to have to go there. Otherwise we are not going to get the answerability that we need. Any hurdle that we put between the present position and getting those powers means that we are imposing a delay, a built-in roadblock, that stops the movement towards a more responsible and transparent national parliament for Wales. That is the background to the tabling of the amendment, and the Government should take it on board not just in the context of this debate but in the generality of the Bill. On that basis, I beg leave to withdraw the amendment.

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[Baroness Morgan of Ely]

It is worth putting on record the Labour position on some of these points. First, in relation to fuel duty, we think it will be impossible to organise separate fuel duties within the United Kingdom and probably very difficult to comply with European Union rules within countries. Those cross-border issues we have just heard about could be quite complex and difficult to police. That would be a problem for us. Of course we have genuine sympathy for the problems relating to the cost of fuel in rural areas, but we do not think that this is the mechanism by which we should be addressing it.

On natural resources tax-sharing arrangements, we do not agree that this is a good idea. Wales is not sitting on vast quantities of oil like Scotland’s and a key point to remember is that we do not tax energy production from wind, wave and water in the same way as we do barrels of oil, so there would probably not be much in terms of tax return anyway—we would probably have to invent new taxes. On the issue of corporation tax, one of the most disappointing aspects of the Scottish referendum campaign was to see Plaid Cymru members actively supporting independence for Scotland. It was not surprising but was a little disappointing, because we know that one key thing Alex Salmond wanted to do was to reduce corporation tax 3% below that of the rest of the UK. That would have done untold damage to Welsh companies. It would have adversely affected Welsh companies, so we did not understand why Plaid Cymru was quite so enthusiastically supporting independence.

[Lord Elis-Thomas]

I spoke on this matter in this House during a debate in June. Let me make it clear that my support was for the right of the Scottish people to express their own self-determination. They have done so, with marvellous consequences for the rest of us. We would not be debating in the way we are tonight if they had not done that.

[Baroness Morgan of Ely]

That is great to hear, but there are some aspects of Salmond’s policy commitments that I think would have been problematic for Wales and it is worth noting those.

Wales Bill

Lord Elis-Thomas Excerpts

Monday 13th October 2014 Lords Chamber

[Baroness Morgan of Ely (Lab)]

My Lords, my noble friend Lord Anderson has correctly suggested that at the very least matters pertaining to the electoral arrangements for the National Assembly for Wales should be subject to agreement by the Assembly before implementation. That sentiment has been echoed once again by the Presiding Officer in Wales. He noted that,

“in the Scottish settlement, the power to make arrangements about Scottish Parliament elections is now divided between Scottish Ministers and the Secretary of State”.

Surely this is the very least we should ask for the Assembly. We echo that sentiment and therefore support the position of my noble friend Lord Anderson that the Assembly should agree to electoral changes and that these should not be imposed from Westminster.

[Lord Elis-Thomas (PC)]

Amendment 10, which is in the name of my noble friend Lord Wigley, my parliamentary leader, and myself, is drafted again with the support of the Electoral Reform Society Cymru, which has been widely trailed in this debate and which I am sure it appreciates. This is to find a way of ensuring that the electoral system of the National Assembly is determined by the Assembly itself. The Order in Council procedure would enable both Houses to debate this matter before the transfer of functions of responsibility happen.

As in our earlier amendment, this amendment would ensure that there would have to be a two-thirds majority of voting Assembly Members. I take advantage of this amendment to impress on the Government that there are more checks and balances in the regulation of democracy which can be established for a democratic body in terms of its autonomous function. The idea that legislation for elections can be regulated only by Westminster fails to recognise the importance of the two-thirds majority principle, which we have established significantly in the constitution of Wales over the past 15 years.

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson)]

My Lords, I thank the noble Lords, Lord Anderson, Lord Wigley and Lord Elis-Thomas, for tabling these amendments. I begin by discussing Amendment 7, which provides that the electoral provisions in the Bill should not be implemented until the Assembly has agreed them. Let us look at the electoral provisions in the Bill. The majority of the electoral proposals are widely supported within the Assembly. As I said earlier, the initial move to a five-year fixed term for the Assembly, set out in the Fixed-term Parliaments Act 2011, came about as a result of a vote in the Assembly. In the Government’s subsequent consultation on a permanent move to five-year fixed terms, there was also unanimous support from the parties in the Assembly for such a move.

The consultation also showed widespread support in the Assembly for the move to ban MPs from also sitting as Assembly Members, although the Welsh Government did not believe that there was currently a need for legislation on this. The Government consulted on these changes. We listened to the views of those who responded and included these provisions in a draft Bill, which was subject to extensive scrutiny by the House of Commons Welsh Affairs Committee. Therefore, the Assembly has had the opportunity to express its views even though I freely accept that it falls short of the legal obligation that the noble Lords are seeking.

Amendments 8 and 10 would require the Secretary of State to publish draft orders within six months of the passing of the Bill, for the approval of both Houses of Parliament, to provide for the transfer of responsibility for elections to the National Assembly for Wales. It is worth noting that the Silk commission did not make recommendations in relation to Assembly elections in its part 2 report. I also note that wholesale transfer of responsibility for elections has not been devolved under any of the devolution settlements. Therefore, at this moment the Bill is probably not the appropriate vehicle for making such a transfer on a piecemeal basis for only one part of the UK, at a time when a wholesale look is being taken at the whole shape of devolution. If there were not work going on in the Cabinet committee at this time, it would be a more appealing argument. Having said that, I go back to the point I made right at the beginning of my responses: this is a response to the provisions of the Silk 1 report in large part and the Green Paper.

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There is much support for the measure, and I trust that the Minister will agree when she replies.

[Lord Elis-Thomas]

My Lords, I am grateful to the noble Lord, Lord Tyler, and to the noble Baroness, Lady Gale. The noble Baroness has already set out how the Welsh Government have sought to increase democratic participation in existing public service structures, especially in the development of schools councils. I find that in my regular meetings with young citizens from schools and colleges who are interested in the development of democracy and who visit the National Assembly. We have a substantial programme, as I know that the noble Baroness, Lady Randerson, knows because she was there when all this was inaugurated, as was the noble Lord, Lord Bourne. Those programmes encourage people to participate by visiting but also by being electronically and digitally linked with the National Assembly and through school participation.

Before the Minister tells me that we should not do this in Wales because there is no precedent and that we should do it for the whole of the United Kingdom, I advise her that we are there already, as the noble Baroness, Lady Gale, said. We are already quite a few steps ahead in participation. I have received many representations from young farmers, youth groups, school students and college students who are 16 already and want to feel that they are the cohort now and that their successor cohorts can participate in the democratic process. I raise this as someone who once campaigned for votes at 18; I am very pleased to campaign for votes at 16; if I live long enough, I will campaign for a vote for my six year-old granddaughter.

The issue here is substantial. In the context of National Assembly elections, are we able, on the basis of the citizen programme and the democratic participation that we have encouraged, to take this further? I believe that we are.

[Lord Rennard (LD)]

My Lords, briefly, I support the principle of the amendments as a long-time supporter of the principle that 16 and 17 year-olds should be entitled to vote. It is now 45 years since a Bill was passed that lowered the minimum age for voting across the United Kingdom to enable 18 year-olds to vote. Nearly half a century since then, there have been great changes in how society sees 16 and 17 year-olds. We are no longer a society in which you get the key to the door at 21, or even 18.

Young people, perhaps through the use of social media, are often politically very aware. The excellent Youth Parliament debates, some of which have taken place in our own parliamentary Chambers, show that many 16 and 17 year-olds are as aware of many of the issues facing us today—if not more so—as many people who are rather older. I do not want this debate to be too stereotypical of UKIP voters, but I was amused by one man who voted for UKIP in the Clacton by-election last week because he was disillusioned with his MP, whom he had not seen since the previous election.

In contrast to this, some three weeks ago we saw 16 and 17 year-olds in Scotland considering very carefully what might be thought to be an even more important question than that at any General Election: whether Scotland should be an independent country. After significant deliberation, probably to the surprise of Mr Alex Salmond, this group of young people, according to the polling evidence, decided that it should not. Tonight we are considering whether young people in Wales could be as responsible, and I say: of course they are.

Thirty-eight years ago I watched a 16 year-old William Hague address his party conference. He told his audience that half of them would not be there in 40 years’ time. I am not sure that he realised then that neither would he. However, my point is that it seemed a shame that he could speak eloquently from his party conference platform but not be able to vote in an election. I am the same age as William Hague, and at 16 I was secretary of the Liverpool Wavertree constituency Liberal Association. I was able to organise elections, knock on doors and suggest how people should vote—but not mark a ballot paper myself, much to my annoyance.

These amendments do not, of course, suggest that 16 and 17 year-olds will be made to vote irrespective of their political knowledge and interests, just that they should have the opportunity to vote. There are those who do not wish to see 16 and 17 year-olds voting. Perhaps they fear how those votes may be cast. A few years ago, the much respected columnist Peter Riddell cited opinion poll evidence suggesting that the best hope for the Conservative Party in the future would be to raise the minimum voting age to about 56. The average age of our Members is 68, but we should be able to show appropriate understanding of people in their late teens, encouraging them to participate in our democracy and to engage in the process through which laws will be made in Wales and elsewhere.

Wales Bill

Lord Elis-Thomas Excerpts

Monday 13th October 2014 Lords Chamber

[Lord Richard]

My Lords, I strongly support this amendment. If one goes back 10 years to the report of the commission that I had the honour of chairing, we then identified this as one of the problems the Assembly had then and would face increasingly in the future. I will spend just two minutes on analysing where the Assembly is in this regard. We have 60 Members in the National Assembly in Wales; the Scottish Parliament has 129 and the Northern Ireland Assembly has 108.

At first sight, those numbers are a bit odd. I do not see why they should be quite as different as they are. If one then goes on to look at what the present 60 in the National Assembly of Wales do, only 42 of them are actually available to hold the Welsh Government to account and scrutinise legislation. Indeed, at one stage it was even worse than that. At the time of the Labour-Plaid Cymru coalition, there were 41 Members either from Labour or Plaid Cymru, leaving only 19 from a non-governing party to scrutinise the whole body of Assembly legislation. The noble Lord, Lord Bourne, who is sitting on the Front Bench opposite me will no doubt remember those days pretty well since he was one of the 19.

Can that many Members do that work? The short answer is no. They could not do it 10 years ago and they certainly cannot do it now. I recently came across a quote from Rosemary Butler, the Presiding Officer of the National Assembly. She put it like this:

“There are only 42 Members to scrutinise £15 billion of taxpayers’ money, and to scrutinise the government on the big issues of the day—the future of our health service, our education system and the economy. On top of that they have to make sound, thoroughly scrutinized laws for our nation. A quarter of those 42 members sit on three committees, half sit on two”.

She concludes with the comment:

“One would simply not find the same level of workload on Members in Westminster, Holyrood or Stormont”.

That is clearly true.

Over the years, we have given the Assembly greater powers. We have not increased the number of people available to deal with those powers and scrutinise the way they are used. In this Bill, we propose to give them more powers. We will no doubt, in the not too distant future, have proposals to give the Assembly further powers again. To keep the limit at 60 is frankly ludicrous. It hobbles the way in which the Assembly works and means that laws are not sufficiently scrutinised. It means, too, that the way money is spent is not sufficiently looked at. Quite honestly, it breeds inefficiency. The argument for increasing it from 60 to 80 is, frankly, irrefutable.

The only argument now is whether it should be 80 or go up to 100. I have an open mind on that. As a first step, going up to 80 would satisfy me for the moment. If you are to give the Assembly more powers, and if it is to become a Parliament in the sense that the Scottish Parliament is one, 80 may not be enough. Assuredly, if you are to do that, 60 will not be. I support this amendment.

[Lord Elis-Thomas (PC)]

My Lords, it is always a delight to follow a debate proposed by the noble Lord, Lord Rowe-Beddoe, and spoken to by the noble Lord, Lord Richard—to whom I owe a great debt of gratitude for having defined an ideal model in 2004 of what the National Assembly could have been.

My Amendment 9 has a whiff of relative autonomy about it, which will not surprise noble Lords. Although I deny being a separatist and I am not an upper-case Nationalist, I am certainly an avid, totally committed, complete devolutionist. My amendment—which my noble friend supports—proposes that the Assembly should decide its own size. No doubt many constitutional objections will be put forward to this notion. However, the amendment proposes that the decision should be subject to the very important principle of a majority of not less than two-thirds of voting Assembly Members on a vote of the whole Assembly. That is a feature we have already in our constitution—and use regularly. It applies to dissolution Motions and other Motions within our procedures.

My amendment has the support—and I had the assistance in drafting it—of the Electoral Reform Society Cymru. I will not detain the Committee by quoting from Size Matters—I know the Government have read it. However, it provides a comparative analysis of the size of national Assemblies—that is Parliaments; we will come to this at a later stage this evening, perhaps with the noble Lord, Lord Elystan-Morgan. The key issue is the ratio of Members to the size of the electorate in a given constituency, and the relationship between the two. It also looks at the legislative Assemblies of other comparable European regions or nations— whatever you wish to call them. Again, it looks at their size in relation to function. What is relevant in this analysis is the functional level. In other words, with the amount of devolutionary power that the National Assembly for Wales already has, we are reaching the norm of the European Union—and the Canadian provinces, another comparator. However, we are nowhere near the norm in terms of the number of Members.

Therefore, this amendment would give the National Assembly the ability to decide its own membership subject to the agreement of a two-thirds majority of Members. This is a proper devolutionary measure for the nature of the constitution itself. I know that that is a difficult concept for the Committee to understand. I am sorry to say that the United Kingdom is still an extremely centralist state. It is not a unitary state and never has been. It is a state of unions and those unions are different, for historical reasons. But the nation of Wales, despite the great time we had during the Tudor ascendancy, is not well placed in the pecking order of UK devolution. This amendment seeks to redress that. I know the Government will not be able to accept the amendment because it is too autonomous—but it is a constitutional principle that it is important to present in this discussion.

[Baroness Humphreys (LD)]

My Lords, I welcome this opportunity to return to a theme I referred to briefly at Second Reading: the issue of the size of the Assembly. I am also pleased that our debate today may inform opinion in Wales on the number of AMs needed to run our Assembly effectively. My amendment recognises that the Assembly has too few Members to carry out its present functions. It also recognises that there is a simple way to increase its size to 80 Members for the next Assembly elections to be held in 2016, and further recognises that an Assembly of 100 Members at the 2021 elections is possible but dependent on a reduction in the number of MPs that Wales sends to Westminster.

In its publication, Size Matters, the Electoral Reform Society, drawing on the work of the Wales Governance Centre at Cardiff University, the Institute of Welsh Affairs and Cymru Yfory/Tomorrow’s Wales, argues that the size of the Assembly is a matter that is,

“too important to be left to politicians”.

However, politicians, whether here or in Cardiff Bay, will ultimately have to make a decision: a decision that will give the National Assembly the tools that it needs to make it the accountable and efficient institution we desire it to be, or leave it overburdened and struggling to cope with its powers.

We are urged, in all our deliberations, to come to evidence-based decisions, and Size Matters provides us with the unbiased evidence we need to guide those deliberations. Of course, it is and would be difficult for Assembly Members themselves to make the case for an increase in their numbers. Fear of criticism from the media and the electorate results in their remaining silent in public. However, privately many will confess that there are too few of them to hold the Welsh Government to account or to scrutinise the volume of legislation for which they are responsible.

The noble Lord, Lord Richard, has already referred to the fact that with only 60 Members—and only 70% of them, 42 Members, available for scrutiny work at present—their ability to undertake this work is seriously compromised. In the UK Parliament, 85% of Members are available to undertake scrutiny and legislative functions; in the Scottish Parliament, 88%; and in the Northern Ireland Assembly, 85%. There are too few Assembly Members to populate the committees where scrutiny takes place, and because of time constraints arising from other duties they are less able to develop the specialist expertise needed to optimise their effectiveness. Because of this, and the increase in the number of plenary sessions, the Assembly’s own remuneration board has increased the staffing allowance for AMs to allow them three staff members to support their research, policy and constituency work, and is even now giving further consideration to increases that will allow each Assembly Member to appoint a senior adviser.

However, appointing more support or research staff misses the main point. It does not address the issue of AMs being unable to find the time to read papers, however well prepared by their staff, and to prepare for committees. That has led to a strengthening of the Executive, with well briefed Ministers apparently able to run rings around AMs who do not have time to read their briefings.

In these times of austerity, proposing an increase in Members to the National Assembly for Wales is hardly likely to be popular. Arguments we make about workload, efficiency, effective scrutiny, accountability and holding the Executive to account will all seem insignificant to an electorate more concerned about costs. However, the truth is that we get our Assembly on the cheap compared to other legislatures. The average annual cost of an Assembly Member, including pay, travel and other expenses, support staff and equipment is £225,000. The annual cost of an MP is £590,000 and that of an MEP is £1.8 million. Based on those figures an 80-Member Assembly would cost an extra £4.5 million per annum and a 100-Member Assembly an extra £9 million. The Electoral Reform Society’s publication argues that this,

“would be a small price to pay”,

given the benefits that would flow from increased accountability and better scrutiny.

That cost could, however, be offset by the better use of existing resources if Wales had fewer MPs and Peers at Westminster, fewer paid councillors and more AMs instead. The case has long been made for a reduction in Welsh MPs. Each Welsh MP has an average electorate of 76,000 while the figure for the UK is one Member per 97,000. While Scotland cut its number of MPs from 72 to 59 in 1999, Wales did not.

--- Later in debate ---

[Baroness Randerson]

I think that it was not a case of the Silk commission not being allowed to consider the matter; the issue was that this was not within the specific remit of the commission. It was certainly something that it considered and discussed, and on which it made a recommendation.

While all of us here today seem to have an agreement that there is an issue to be considered, the First Minister confirmed in his evidence to the Welsh Affairs Committee in the pre-legislative scrutiny of the draft Bill that the Assembly could undoubtedly cope with all its new powers with the 60 Members. Reference has been made to the Presiding Officer’s views. I think that it would be useful if the Assembly itself considered this issue.

[Lord Elis-Thomas]

I would counsel the Minister not to quote the First Minister or any first minister in any legislature as the authority on scrutiny.

[Baroness Randerson]

The noble Lord makes a very good point.

The size of the Assembly is a vital issue that goes to the heart of democracy in Wales and the inter-relationship between the legislature and the Executive. The key issue—the noble Lord has just drawn our attention to it—is that with a small Opposition, particularly in the case of a coalition, scrutiny is very difficult. The noble Lord, Lord Anderson, said that everyone has a job. The problem is that everyone has two or three jobs in the Assembly, so the difficulty is with Assembly Members being busy. MPs and your Lordships are busy too, but Assembly Members are spreading themselves across several subjects and committees, which makes it difficult to establish expertise. This is a live issue. It needs to be considered as part of the Silk 2 recommendations and after the appropriate level of public debate.

A recent Electoral Reform Society report found that nearly 80% of Assembly Members believed that changes should be made to the way in which plenary time is used within the Assembly, with a view to making the time that they have available more effective. I am sure that that will have been considered within the Assembly at various times. As our debate today has demonstrated, this is a complex issue with a number of strands of opinion.

I wish now to turn to Amendments 11 and 14. Amendment 11, in the name of my noble friend Lady Humphreys, specifies that from 2021 the Assembly should be elected via the single transferable vote system. That would bring greater proportionality than the current system. We have discussed proportionality this evening. It would replace the current mix of first past the post and the proportional system that we have in the Assembly at the moment. Although we have an element of proportionality in the Assembly, it is not complete proportionality. A change in the electoral system is once again properly the domain of manifestos. I would also like to note a recommendation by the Richard commission report that was accepted at the time by several of the parties in the Assembly but has not been implemented.

--- Later in debate ---

[Baroness Randerson]

I can certainly undertake to relay the points of view put forward this evening within government discussions on the future of devolution in Wales. I understand that there are very clear and strong views. Although I cannot promise action on this issue in this Bill, I can guarantee that I will ensure that the views are widely known within government. I fully understand the issues that have been raised.

[Lord Elis-Thomas]

That means that we go into the 2016 election without an increase in Members.

[Baroness Randerson]

The noble Lord is possibly being a little on the cautious side in his estimate of how fast a future Government could produce a further devolution settlement. I cannot give any guarantees about anything that a future Government might do, but if this debate is taken forward and undertaken rigorously within Wales within the next few months, and if parties put something in their manifesto on the increase in the size of the Assembly that they believe is required, we can have a debate on the future shape of devolution during the general election that would enable a future Government to take this forward with considerable speed. I regret that there are a number of “ifs” in that answer, but there is no need for the noble Lord to despair of the outcome.

This debate must continue. It must include civil society and seek to engage the general public if the Assembly is to change as a result of the further devolution of powers so that there can be more Assembly Members. I hope the noble Lord will withdraw his amendment.

Wales Bill

Lord Elis-Thomas Excerpts

Monday 13th October 2014 Lords Chamber

[Lord Elis-Thomas (PC)]

My Lords, I did not realise that this would be merely a double act, so I hope I shall say a few things that will excite other people to take part in the debate.

Amendment 3 in this group, which stands in my name as well as that of the noble Lord, Lord Wigley, gives the Government another simple option, which is within the existing structure of the Government of Wales Act 2006, in the relevant clause, Clause 108, and the relevant schedule, Schedule 7. This is not the place for me to discourse at any length on the convoluted—or “crablike”, as it was called by the Electoral Reform Society Wales—forward movement of devolution in Wales. The noble Baroness, Lady Randerson, was part of all this and knows it as well as I do. However, it may be an opportunity to remind the House how far we have come in so short a time.

We moved from an executive Assembly, which was in essence a corporate body and therefore a type of local government structure, established at a time when local government was already moving to a cabinet and a scrutiny system. In effect it was the 1978 Act, taken off the shelf of the library of the old Wales Office, dusted down and put forward as a new Bill. I will not say who told me that; it would not be fair to him, because he is now a distinguished retired public lawyer in Wales—I have just given away his identity.

The effect of that was that we were set on a development that was unworkable. The first important and essential act of the Members of the Assembly, when they arrived there in 1999, was to take over the function of debate for themselves. The key outcome, early on in 2000, was a resolution passed by the Members of the Assembly to seek the maximum possible powers within the Act: the maximum possible opportunity to act as a parliamentary-type body.

The first First Minister was called the First Secretary, but when the right honourable Rhodri Morgan came to power, by a change of leadership within the Labour Party and a vote of the Assembly—it is still a matter of dispute; I recollect very clearly what happened, but I will not bore noble Lords with my version—he decided to call himself First Minister. He also decided to call his colleagues in the Cabinet not Cabinet Secretaries but Ministers and to call the Government—previously, we did not really have a Government, although there was a Cabinet—the Welsh Assembly Government.

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[Baroness Morgan of Ely]

The noble Lord makes valid points about clarity about where the powers are and the fact that information to the public is crucial so that they understand who is responsible for what. There is still a degree of confusion about this and we need to think it through in a very clear way if we are looking at a much more structured response to the devolution settlement within the United Kingdom as a whole.

I now turn to Plaid Cymru’s amendment to link the reserved powers to an immediate transfer of the recommendations of Silk 2. It is worth emphasising that the whole Labour Party feels quite positive about the vast majority of the recommendations contained in Silk 2. The case for further devolution of power has been well made by the commission. I thank the noble Lord, Lord Bourne, for his work on that commission and welcome him to the Front Bench. We are delighted to see him there. It is important that people understand that the Welsh Government have also responded positively to the recommendations.

With this amendment, Plaid has gone further than Silk in recommending, for example, the wholesale transfer of power over broadcasting, as was suggested, and energy, where the recommendations by Silk are far more nuanced. We are anxious to support many of the recommendations in Silk 2, but we feel that it would be more appropriate for us to include those recommendations within an election manifesto so that we can have the endorsement of the general public for this additional significant transfer of powers.

On Plaid Cymru’s Amendment 3, I do not blame them for attempting this power grab—that is what you would expect of nationalists—but to remove all current exceptions to current permitted areas of the Assembly would entail a huge extra amount of responsibility and the duplication of roles that are better shared at UK level. It would seem rather unnecessary that in the field of agriculture, where Wales already has legislative competence, we should establish our own legislation on, for example, scientific or other experimental procedures in relation to animals. Do we really want to establish our own agricultural import and export rules? Imagine the bureaucracy that that would entail. For every job that we would have to create to make that work, we would have to cut one from our health or education services or from another area that currently receives funding. We understand what the amendment is trying to do but think that it is going a bit too far.

[Lord Elis-Thomas]

This is about competence. It is the ability to do things, were one wanting to do them in that way. In the United Kingdom, we already have institutions, such as the Joint Nature Conservation Committee, which are virtually federal and in which powers and responsibilities are shared between Scotland, Wales and Northern Ireland. This is not about, of necessity, compelling the Welsh Government or the National Assembly to accept the competence; it is the indication, especially after the Supreme Court ruling of July, that the competence of the National Assembly in the current model is based on those definitions, made by subject in Schedule 7 of the 2006 Act, with exceptions. By deleting exceptions, I sought to highlight the nature of the competence and the possibility of using the reduction of exceptions as a way of translating further powers.

[Baroness Morgan of Ely]

I understand what the noble Lord is saying. The problem is probably that we need a much more detailed discussion about what those exemptions should be and to what extent they should or should not be duplicated. If this is a probing amendment, that is fine—we understand that that is the case. But taking this big step at the moment would be wrong.

Finally, I ask the Minister why an amendment on reserve powers has not been submitted if the Government have changed their position. Why cannot we now get on with the job? We know that there is cross-party consensus on this; let us not waste any more time.

Wales: National Assembly Elections

Lord Elis-Thomas Excerpts

Monday 18th June 2012 Grand Committee

[Baroness Randerson]

My Lords, I begin by declaring an interest as I am in receipt of an Assembly pension. I am also on the board of the Wales Governance Centre, which is part of Cardiff University and is partly funded by the Assembly Commission.

The point I start from is diametrically opposed to that expressed by the noble Baroness, Lady Morgan. As a Liberal Democrat, I continue to support the recommendations of the Richard commission for the single transferable vote in Wales. However, at the start of the Assembly, we as Liberal Democrats accepted the compromise of the list system as being the furthest we could get towards an element of proportionality, and I certainly accept that we are not going to get STV in the near future. Therefore, in general I welcome the proposals in this Green Paper.

I particularly welcome the acceptance of what will become the 30:30 split under the new boundaries, which is the preferred option of the Secretary of State. That is an acceptable compromise. It produces more proportionality, which is very welcome, but I accept that it maintains the dual system that Liberal Democrats do not believe is ideal.

I was an Assembly Member for 12 years. I am pleased to see three former colleagues here today—in fact, we are in danger of this becoming the old group discussing things again. I was a constituency Assembly Member and it is true to say that the role of a regional Assembly Member is very different. Those differences can cause friction, but there is no proposed change in the system here; we are simply looking at the split between constituency and regional lists.

As well as being more proportional and therefore fairer, I believe that 30:30 would be very much easier administratively. Differing boundaries are very complex, particularly for electors but also for political parties and people who run elections. Incidentally, a longer list in each region would also help gender balance. It would increase the number of women and ethnic minority candidates coming forward. STV lists tend to do that and in this case the list for the Assembly would operate in a similar way. It is obviously easier for political parties but it is important to remember that having coterminous constituencies for Parliament and the Assembly particularly would help civic society and electors by removing an element of confusion. In this I agree wholeheartedly with Peter Hain who was entirely right when he said:

“Having different boundaries creates a great deal of confusion for voters, for parties and for the wider public”.

It would also reduce the cost—more than £2.5 million over 10 years—of having to review different sets of boundaries, first for Parliament and then for the Assembly, making it almost an endless treadmill of boundary reviews.

I totally reject the idea that the 30:30 split could possibly be two-Member wards. That is a Labour Party idea which is designed to remove the element of proportionality. Proportionality was inherent in the offer made to the people of Wales in the vote that they took in the referendum at the end of the last century—a vote that was won very narrowly and that I am pretty certain would not have been won if proportionality had not been there. I believe that 30:30 would be fairer in proportional terms as it would reduce the chances of a party winning a majority of seats on a minority of votes in the ballot box. It is worth noting that in 2011, under the current 40:20 split, the Labour Party won 50% of the seats on just short of 40% of the vote. So when the noble Baroness, Lady Morgan, asks us which party would benefit from a 30:30 split I would answer that no particular party would benefit but one party certainly benefits from the current system and that benefit would be lost under the new one.

I want to talk now about process. The voting system is a reserved matter—that was decided by the previous Labour Government when the Government of Wales Act was drafted. The power to decide the electoral system could have been devolved to the Welsh Assembly but it was not. The Assembly had no say in the previous changes, such as the ban on dual candidacy which came in in the 2006 Act. I know that the Assembly feels it should express an opinion. It is absolutely right that it should do so, but it is important to remember that there are no legally binding results to that opinion. As a strong devolutionist, I would have preferred the system to be written differently but that is the system that the Labour Government gave us.

[Lord Elis-Thomas]

I am grateful to the noble Baroness for giving way. Would the noble Baroness, Lady Randerson, agree that, despite the fact that there are no legal powers within the Government of Wales Acts for the Assembly to have organised consent, the devolution principle and its constitutional basis must surely point to consent being obtained in one way or another from the National Assembly for changes to its own structure?

[Baroness Randerson]

That sets an interesting train of thought. As the legislation currently stands, we would move to 30:30 under the current Government of Wales Act. Would consent be needed to adhere to the current legislation? I do not think that would necessarily be the case. The concept of Assembly consent—which has never come up before in this context, so far as I can recall—is desirable and I would hope it would happen, but it does not necessarily follow that it has to be because of the status of the current legislation.

I want to deal with the other issues of significance in this paper. A really important issue is the end of the ban on dual candidacy. In 1999 and 2003, I was a candidate for the list and for constituency seats, along with members of all other parties—including the Labour Party. Dual candidacy ensured vibrant energetic campaigns in individual constituencies. Candidates who knew that they were not likely to win a constituency would nevertheless fight hard in an individual constituency because it contributed to the list campaign. The loss of dual candidacy reduced the level of campaigning, particularly as regards the list vote. As a result, we had a loss of democracy in Wales.

The ban came out of the ether, as far as I could see. It seemed to be a purely political measure introduced in 2006 by the Labour Party, and it clearly penalised smaller parties. Think about the mathematics. A party has to have 40 constituency candidates; and now, under the current system, with a ban on dual candidacy, it probably has to have another 25, with five candidates for each of the five regions. Under the old system, if you stood as a candidate in both a constituency and for the list, you could, as a party probably get away with a slate of 40 candidates. Now you have to have effectively 65. That makes the situation difficult for small parties, and the system was designed to do that.

--- Later in debate ---

[Lord Roberts of Conwy]

The Opposition, as always, put forward their own independent case and I would have to consider what the noble Lord, Lord Elystan-Morgan, has just said. The main drive towards separation has come from the National Assembly. I do not think it has been particularly beneficial to Parliament, the Assembly or Welsh electors. The Assembly has gained more powers following a positive referendum—provided, after all, by central government and on a low turnout with little or no opposition to speak of. Most of us now recognise that, whatever our earlier views, the Assembly is here to stay and our duty is to make the best of it.

There is much more to be gained by collaboration between the National Assembly and this Parliament than from the mock tug of war for more powers than has been the feature of the past. The willing establishment by the Secretary of State of the Silk commission, its membership and remit proves that there is a new, pro-devolutionary spirit abroad and the National Assembly should welcome it. It could begin to reciprocate by improving its communication with this place. I give just one example: last month, the Assembly Government published their first annual report for the Assembly term 2011-16 with a foreword by the First Minister. I obtained a 19-page summary of the report entitled Programme for Government. I was not able to get the full 600-page document: it was not available to us here in the Library or the Printed Paper Office, although I am glad to say that it is available today thanks to the indefatigable industry of Mr Quin at the Printed Paper Office. When I have finished perusing this somewhat substantial document, I shall make sure that it is in the Library for other Members.

Even the summary refers to a number of White Papers, draft measures and strategy documents. They were not available either and I doubt whether they are available now. They may be on the web but they should be as available—and in the same form—as the Green Paper we are discussing now. The least we should have is a list of Assembly publications and their whereabouts.

[Lord Elis-Thomas]

I am afraid I have been provoked, because we go back a long time in this discussion. Will the noble Lord accept that the National Assembly for Wales is an electronic democracy in which everything is digitally available?

[Lord Roberts of Conwy]

I agree. Even this tome, which I can barely lift, is available on the web but even the website reference is complex enough. Also, I really do not think that you can read 660 pages easily on the web.

My real point is this. As a consequence, most of us—of course I speak for myself—are pretty ignorant about what goes on in Cardiff Bay, which begs the question: is it right for this Parliament to devolve powers and then wash its hands of the use made of those powers? I do not think it is right. Those powers involve the use of British taxpayers’ money, and we are accountable for how that money is spent. It is irresponsible on our part. We should know what is being done and the National Assembly should be proud to tell us. It may be that we require a sub-committee of the Constitution Committee as the equivalent, as it were, of the Welsh Affairs Committee, to consider developments in Wales. Better communications and a ready supply of documents are only one aspect of improved relationships. There could be more official visits to Cardiff Bay, and I commend the Assembly Government Minister, Edwina Hart, who has been assiduous in cultivating informative relationships with Members of this House through the good offices of the noble Lord, Lord Touhig.

Finally, I turn to the Government’s proposal to restore the right of an Assembly constituency candidate also to be on a regional list, which was the original position. I am in favour of this not only because Arbuthnott found nothing against it in Scotland but because it will help to ensure that the best candidates a party can offer—I am thinking particularly of the smaller parties—have the best chance of securing Assembly membership. We want only the best in the Assembly, and they are not all that plentiful in any party. I am aware of how rivalries between some candidates in Wales led the Labour Government to abolish in 2006 the right to dual candidacy but, as we all know, rivalry is inherent in political life and only to be expected.

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[Lord Elis-Thomas]

My Lords, we are due to finish at around six o’clock and some of us have trains to catch because we are double-jobbers. That is only a passing reference and I do not intend to spend any time on it. However, I do not think that this House should be accused of having people who are double-jobbers if they are also Members of the National Assembly for Wales. Perhaps the noble and learned Lord, Lord Wallace, might have a word with the Secretary of State about improving the quality of the language used in Wales Office Green Papers.

Today we have the advantage of meeting after the National Assembly has debated this issue. I know that the noble and learned Lord, Lord Wallace, will have read carefully on the National Assembly website the record of proceedings. A Motion was debated and there was a clear vote: 43 were in favour, with one abstention and six against the proposition that the National Assembly,

“believes that no change to the current electoral arrangements should be introduced by the UK Government without the consent of the National Assembly for Wales”.

That is the issue I want to pursue in my contribution because we started a very interesting discussion during the exchange at the beginning of this debate. The First Minister made it the main theme of his rather philosophical speech in the National Assembly debate. He linked the idea of the consent of the Assembly to the nature of devolution. He takes a rather different view from that of some of the Labour Members in your Lordships’ House who are taking part in the debate today. He invited the Assembly to agree that there should be no change without consent because he regarded it as a fundamental constitutional principle, as a necessary consequence of a constitution based upon the principle of devolution. My noble friend Lord Wigley quoted similar remarks published in the Daily Post this morning, a fine newspaper for which my noble friend is himself a fine columnist. But we will move on.

I ask the Minister what consideration has been given by the UK Government to the way in which they should proceed when they make changes to the electoral arrangements or other constitutional aspects of a sister institution—an elected legislature. Here we are not dealing even with a local authority, which is the creature of a statute of another place. Of course, the National Assembly for Wales is the creature of a statute of Westminster and could be abolished. However, in reality, because of the way in which elected bodies are established and powers laid upon them, they begin to take on a democratic life and identity of their own. They have powers and affiliations on that basis.

What was interesting and even exciting for me about the debate last week in Cardiff was that there was cross-party agreement on these issues in all the speeches, if not in the final vote. The leader of the Welsh Conservatives, a good friend of mine from the Vale of Glamorgan, said that the Assembly should determine its own boundaries. As one would expect, similar views were expressed by the leader of the Welsh Liberal Democrats, Kirsty Williams, on the importance of the consent of the Assembly. There was a very interesting exchange between the former leader of Plaid Cymru and Deputy First Minister Ieuan Wyn Jones and First Minister Carwyn Jones on an issue that was brought up in your Lordships’ House—the point was made just now by the noble Lord, Lord Foulkes—about how we could ensure that a party with an overall majority would not use a majority of one to change the electoral system against the wishes of the other parties. When Ieuan Wyn Jones asked whether there should be a two-thirds majority of Members of the National Assembly to make any change to the electoral system, the First Minister made a very considered reply. He stated:

“Ieuan asked”—

this is how we speak to each other in Cardiff—

“whether it would be appropriate to have a two-thirds majority of Assembly Members. Better that than no vote at all. Better that than that the Assembly should express an opinion without that opinion being taken into account in any way by the UK Government. I think that that is something that should be considered in the future and that it is something that is crucial and fundamental in terms of the Assembly”.

The First Minister of Wales and leader of Welsh Labour gave an assurance that he would allow consideration of a change to the electoral system only by a two-thirds majority in the National Assembly, in order to ensure that all the views in the Assembly were considered. We should contrast that with what is likely to emerge here. The UK Government will take it upon themselves to make the decision regardless of the views of the National Assembly. We have had no assurance on the meaning of consent. One of the first words that I heard from the Secretary of State and from the Prime Minister when I was in another job in the Assembly was a reference to respect for the Assembly. I am afraid that I do not hear that very often these days. I invite the Minister to use it this evening and to confirm that respect for the Assembly will include no changes to any system in the constitution of Wales without the agreement of the Assembly. If that requires a two-thirds majority, it is clear that the present First Minister of Wales is such a democrat that he is prepared to put the interests of the Welsh constitution well above those of his own party.

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[Lord Wallace of Tankerness]

My Lords, it is my understanding that the commission was not consulted, but that was because what this Green Paper is about is beyond its remit. Questions have been raised about these deliberations, and I am aware of the debate last week in the National Assembly for Wales. The fact—one that has been reflected by a number of contributors to the debate—is that the electoral arrangements of the Assembly are a non-devolved matter. The matter is reserved to this Parliament. Indeed, the noble Lord, Lord Foulkes, made the point that Wales has two Governments: it has a Government in Wales in the National Assembly and also has a Government here at Westminster. The devolution settlement agreed in the Government of Wales Acts 1998 and 2006, and the distribution of powers that was approved only last year in a referendum, retain the electoral system and arrangements for the Assembly as being matters for the Westminster Parliament.

I accept that those in Plaid Cymru who aspire to much greater powers for the National Assembly for Wales would argue the case that electoral arrangements, and possibly the system, should be devolved—albeit with a two-thirds majority—and clearly that case can be made. The Silk commission does not have within its remit the current electoral arrangements but it does have within its remit the distribution of powers between the Westminster Parliament and the Welsh Assembly. I have no doubt that representations to that effect will be made, but that is not the current devolution settlement.

[Lord Elis-Thomas]

Will the Minister accept that I was not arguing on behalf of Plaid Cymru—I very rarely do, according to some of my party colleagues—but that I was reflecting the agreed consensus of the National Assembly on Tuesday? The UK Government at Westminster ignore such views at their peril.

[Lord Wallace of Tankerness]

If I did suggest the noble Lord was expressing a party view, I did not intend to—although I think I rather know where he will come from in terms of the distribution of powers. Of course Her Majesty’s Government will have regard to the views of the Assembly, and of all who contribute. We are very keen for people to contribute. It is not the position at present that we should subcontract to the Assembly—as I think the noble Lord, Lord Anderson, put it—given that there is a settlement that has been voted by Parliament and supported in a referendum. But I repeat that we will have regard to the views of the Assembly.

There is no way we are going to change the constitutional arrangement for responsibilities when I have indicated from the outset that there is a need to do something: either have the 40 seats with the new boundaries, which would require the Boundary Commission to be given responsibility for doing that, or move to the 30:30. Of those who expressed a view, the balance was that there were merits in the 30:30 arrangement. The noble Lord, Lord Elystan-Morgan, said that otherwise there could be conflict or a lack of cohesion. My noble friend Lord Roberts of Conwy said there would be less confusion for electors or party organisers. I think we would all accept that at the end of the day the electors are more important than the party organisers, but let us not forget that the parties and the party organisers help the wheels of democracy to turn and it is important that these wheels are properly oiled. The noble Lord, Lord Wigley, made the point that whatever we do, it should not be less proportional. Clearly 30:30 would not be less proportional, but if 30:30 was doubled up with Members elected by first past the post, that would be less proportional.

The point was made about the position in Scotland. It is fair to say that in Scotland the boundaries for the Westminster constituencies are different, principally because the link was not broken between the parliamentary constituency and the Scottish Parliament constituency. When the Westminster Parliament reduced from 72 to 59 pre-2005, there would have been an automatic reduction in the size of the Scottish Parliament, as intended by the 1998 legislation—I remember the debates—but by the time we got there, there was a view that that was not right, that the parliament should not decrease in size, and therefore the link was broken. That was the history of that. In 2006, the Arbuthnott commission reported that,

“most individual voters surveyed ‘claimed not to care’ about whether constituency boundaries were coterminous, and that it was ‘not an issue which would dissuade them from voting’”.

I appreciate that people have strong views on this issue and that is precisely why we are consulting on it.

On the position of the five-year fixed term, I think that there was a consensus across the Committee, given what has happened and the recognition that it was not desirable in 2015 to have elections on the same day, that the arguments that were persuasive then remain persuasive. With regard to my noble friend Lady Randerson, it is my understanding that local elections in Wales are a devolved matter, but Welsh Ministers have moved the 2016 local elections in Wales to 2017 to avoid a clash with the Assembly election. That matter has clearly been addressed.

As regards the ban on double candidacy—and the quality of any democracy is how it considers a range of parties—the point was made that it impacts more heavily on the smaller parties. The noble Baroness, Lady Morgan, and my noble friend Lady Randerson mentioned the position of the Leader of the Welsh Conservative Party who was rewarded for his party’s success by losing his seat, which seems to be somewhat ironic. It was the noble Lord, Lord Wigley, who said that if international comparisons are to be made, it is probably only the Ukraine that does this. The point was also made by the Arbuthnott report in Scotland that the electorate did not have a problem with people standing in both the individual constituency and the regional list.

On the question of double jobbing—I will certainly report the angst about the terminology—again it is quite clear that there are issues on both sides, and that is why the Government are consulting on this. I was struck by what the noble Lord, Lord Wigley, said about how difficult he found it. We are all declaring interests and, after the Scottish Parliament was established in 1999, I served for two years as both the Member of Parliament for Orkney and Shetland and the Member of the Scottish Parliament for Orkney. I managed to do that because I knew that I was not going to do so beyond 2001. There is an issue as to whether, if we were to go down that road, there should be some flexibility whereby people could see out a term of office to avoid a by-election, particularly if they have only one year left. However, I hear what the noble Lord, Lord Wigley, said about perhaps there being an automatic election; and that is clearly a relevant consideration to take into account in a consultation.

I realise that I have probably not done justice to everyone’s comments, but I hope that I have addressed the main points raised. I assure the Committee that the contributions to the debate will be taken into account, as indeed we will pay proper respect to the views expressed in the National Assembly for Wales.