Welsh Assembly Elections 2016

Lord Elystan-Morgan Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, I express my gratitude to all the noble Lords who referred so kindly to me. It is a great delight to be back here once again. The House is very much in the debt of the noble Baroness, Lady Randerson, as far as this Question is concerned. My few remarks will be confined to the issue of reserved powers, a matter about which one will hear a great deal over the next few months and years.

Over the years, particularly during the period from when devolution developed in Wales, from 1964, and the formation of the Welsh Office, there has been the belief that devolution really fitted into one of two mutually exclusive categories: either a reserved powers system, whereby there was a presumption that all other powers had been devolved, saving in so far as they were specifically reserved and excluded, or, on the other hand, a conferred or incremental system, whereby matters were devolved bit by bit, almost like confetti, and the devolution was valid only if they were specifically referred to—if there was an absence of reference to them, there was no devolution.

That was regarded as being the system up to July of last year, when, as the noble Baroness, Lady Randerson, has mentioned, there was the decision by the Supreme Court in relation to the Agricultural Sector (Wales) Act 2014 of the Welsh Assembly. The effect of that was that the Supreme Court, the highest court in the land, had to face this issue head on. The case for the Cardiff Assembly was that there had been, under Section 108 of, and Schedule 7 to, the Government of Wales Act 2006, a transfer of,

“Agriculture. Horticulture. Forestry. Fisheries and fishing”,

and that therefore one should not interpret “agriculture” in a narrow way at all; it should be something much more than the mere pursuit of husbandry. It should include agricultural wages as well. That was the Welsh case. The case put forward by the Attorney-General on behalf of Westminster was, “What you say is true, but it is very limited. Agriculture is one thing; agricultural wages are another. Agricultural wages belong to the realm of employment and employment has not been devolved; ergo, it is outside your powers”. The Supreme Court was faced with the choice of either a narrow interpretation of “agriculture” or a wider, more liberal understanding of the whole situation. To its eternal credit, the Supreme Court took the latter course.

The consequence is utterly historic as far as Welsh devolution is concerned. It means that even though there is no specific reference in the 20 categories of devolution that we have under the 2006 Act, if there is a general intention to transfer authority to Wales, matters that are consistent with and closely attached to that—which might be referred to as the silent matters—will also be transferred. What does that mean? In Wales it means that we are in a situation not very different from that French gentleman of fiction who in middle age realised that he had been talking prose all his life. We have had powers that we never appreciated were within our grasp.

The situation causes possibilities and problems. I have some sympathy with the Secretary of State for Wales. In a speech in March at Aberystwyth, a place well known to the Minister and me, he said this:

“the UK Government’s defeat over Agricultural Wages last July, blew wide open the true nature of the Welsh devolution settlement … vague, silent on many key subject areas, unstable, not built to last—a payday for lawyers”.

Maybe it was a pay day for lawyers, but it was probably a legislative precipice at the same time.

Where do we go from here? We go in one direction only: that devolution, whatever is defined by the Government, should never be less than what exists at the present moment. It would be ironic if we ended up with a reform of the system that greatly reduced the totality of the powers, legislated under the Executive, that have been transferred to Wales already. I appreciate that the Government face problems. What is their attitude towards these? They have set them out in the White Paper published in February this year. They say that we will certainly have a system of reserved powers, which they had flirted with for a long time. They are accepting Silk 2, to which the Minister has made a distinguished contribution.

However, I find the way in which they go about it extremely upsetting. This is what they say: they set out in Annex B to the White Paper a list of subjects that they regard as proper to reserve and accept. How many are there? I make the number to be 103. However, it does not end there, as they have this sentence in relation to Annex B.

“The list is not exhaustive, and reservations would also be needed in other areas”.

It reminded one of that line in Macbeth, speaking of Banquo’s issue—of the shades of many more.

I appreciate that these decisions are not of necessity in any way the Minister’s. He is a man of great wisdom, legal expertise and statesmanship. However, I ask respectfully of him: when is a reserved powers model not a reserved powers model? I suggest that the answer is that when the matters that have been reserved are so massive and all encroaching they make the concept of a general devolution a nonsense. My advice to the Government is, therefore, in the words of Corporal Jones, “Don’t panic”. Some people flirt with the idea that devolution should prove itself. One or two remarks made by the current Secretary of State might suggest that. I do not accept that for a moment. That would be to turn the issue of devolution on its head. The entire lifeblood of devolution is that it is for the other side to prove the case against it, if it possibly can. Devolution is the birthright of this nation.