Wales Bill

Lord Elystan-Morgan Excerpts

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

Moved by

[Lord Elystan-Morgan]

45: After Clause 3, insert the following new Clause—
“Working group on constitutional development
The Secretary of State for Wales shall, within the period of three years following the principal appointed day referred to in section 55(3), establish a working group to study the possibilities for Wales, as a land and nation, of constitutional development within the terms of and consistent with the principles of the Statute of Westminster 1931, and developments thereafter, and shall within the said period of three years present a report of its study to Parliament with such recommendations as it deems appropriate.”

[Lord Elystan-Morgan (CB)]

My Lords, these two amendments, Amendment 45 and Amendment 46, are intended to stimulate thought—particularly the first of those amendments, which relates to dominion status—and to try and deepen and broaden the whole issue of the constitutional future of Wales. The second, which deals with the constitution of reserved powers, is intended to seek to repair and ameliorate some very serious flaws which, in my submission, exist in this part of the Bill.

Dominion status is not about a rigid pattern of government. The principle is enunciated in the Statute of Westminster 1931 and has developed politically, broadly and indeed fruitfully over the 85 years thereafter. It is full of possibilities for meeting different situations in different parts of the world. Obviously, when one is speaking of dominion status in the context of Wales, one is not speaking in any way of a replica of the constitutional situation of New Zealand or Australia. Nevertheless, the common refrain which runs through it all is that it involves a territory that was once under direct British rule and which still accepts the sovereignty and the titular authority of the Queen. Beyond that, the possibilities are almost illimitable. Indeed, my appeal in this situation, when we are thinking of the future of Wales, is to think big. If you think big, you will achieve something worth while; if you think small, what you will achieve will be small, or even perhaps smaller than that which you have set out to obtain. That is the situation that confronts us now.

The possibilities of dominion status are almost illimitable. It is an open secret that about 10 years ago the Government of the United Kingdom and the Government of Spain almost came to an understanding—this is hardly believable—about the future of Gibraltar, with a plan for some form of dominion status. In other words, the concept is so flexible, so malleable and so adaptable that it was possible for the ancient conflicts there to come very near to a friendly settlement. That is an illustration of exactly how pliable dominion status can be. It is in that context that I would ask for imagination to roam and for the spirit to be broad and liberal and inspiring in relation to the possibilities here. There are endless plans and changes that can be considered, but within them there is the possibility of Wales playing a full, dominant, honourable and splendid part in the life of the United Kingdom. Who knows what the situation will be in five to 10 years’ time? It is a situation of total flux, and it is therefore incumbent upon us as Welsh people, and indeed upon all of us as British people, to consider exactly what this possibility should be, side by side with many other possibilities.

I turn to the second matter, the question of the creation of a reserved powers constitution for Wales. Normally I would jump with joy at this development because it places Wales upon the same constitutional basis as Scotland and Northern Ireland. It also tidies up a great deal of what is now in a state of confusion and, if I may so describe it, confetti. When you deal with a long period of transferring small powers, day in and day out, coming from hundreds of different sources, you create a situation that almost guarantees some constitutional neurosis on the part of many generations of Welsh lawyers. Avoiding that would in itself be utterly worth while.

However, I am far from happy with the situation because I believe it is deeply flawed and a blueprint for failure and disaster. The fact that there are 200 or more reservations—I am wrong, actually; it is about 198 or 199—and the very nature of the reservations themselves makes the matter a nonsense. Consider the matters that are reserved, though I touched on this at Second Reading so I will not go into all the detail: licensing, something that Wales had devolved to it in 1881; dangerous dogs; sharp axes and knives; hovercraft; prostitution; charitable collections—one could go through dozens of examples here of what are mere trivia, matters that are clearly domestic in their nature. The inclusion of them by way of reservation is to my mind an insult to the people of Wales.

It is on that basis that I ask the House to consider very carefully whether in any way this can fit in with what I have described as the moral and constitutional geometry of the situation. By that, I mean that when you have a settlement such as we are now seeking in relation to Wales, one that one hopes should last for a long time or at any rate be a basis upon which further development can be built, there has to be mutual trust and some sense of balance. The subsidiary parliament states straight away, “We are not concerned with the question of succession to the Crown, defence or foreign policy and perhaps three or four allied questions of that nature, but we are concerned with matters that are purely and classically domestic in their character”. If the current Parliament refuses to accept that, the whole moral geometry of the situation is affected.

How did this come about? Not, I think, on account of any mendacious conspiracy on the part of Ministers against Wales; I do not think there is any conscious machination at all in regard to it. It came from a long history of prejudice that has formed what you might describe as a permafrost of attitude towards Welsh devolution. I do not believe that the situation was anything different from this: the Secretary of State for Wales, perhaps rather deferentially, went to various colleagues and said, “What would you like reserved, my dear chap, from your department?”. Each one said, in his mind and his heart if not indeed in actual words, “Practically everything. It doesn’t matter how meagre, niggardly, small or utterly local it might be, we will reserve it if we possibly can”.

Why? I believe that it has a lot to do with the fact that Wales was England’s first colony. That was the situation in the 13th century. In the Act of Union of 1536, Wales was said to be part, inevitably and as it always had been, of the United Kingdom, and its affairs were to be assimilated, incorporated and included within the greater realm of England. We have not broken through that mould.

On Second Reading, I made this—I think, not invalid—point. When you think of some of these reservations—there are dozens which, to my mind, are utterly ludicrous—can you imagine the Colonial Office of the United Kingdom 60 years ago, particularly when James Griffiths was the head of that department, going to a British Caribbean or African colony and saying, “These are the reservations that I demand of you”? It simply could not happen.

It is against that template that one has to consider this matter. For that reason, I have drafted this new clause, which of course I shall not press to a Division tonight, but it could well be revisited before we finish with the Bill. It calls on the Secretary of State to be responsible for setting up a working party to report to Parliament within three years on the question of how the reserved powers are operating in each case. The purpose of that—allied, no doubt, with recommendations from the working party—would be, first, to narrow the gap between the situation now and that which existed on the very day in July 2014 when the Supreme Court gave its judgment in the agricultural workers case. The gap is immense. The powers that we have under the Bill are, strictly speaking, immensely inferior to what we had then, when it was discovered that silent transferred powers, which no one had ever appreciated, had given immense authority to Wales.

I think that the Government were reluctant to accept the reserved powers constitution that they had enforced on them; their hands were forced. I do not believe that there is even now a messianic commitment, and most certainly there is no incandescent enthusiasm for this reform. It is something to which they feel that they must surrender.

The effect will be, secondly, to get rid of many of these anomalies; and, thirdly, to set out a coherent pattern, for in fact there is no theme—no coherence—to this. For that reason, I beg to move.

[Lord Wigley]

My Lords, I support my friend, the noble Lord, Elystan-Morgan, on Amendment 45, which he moved so eloquently, and Amendment 46, which is coupled with it. The noble Lord has throughout his political life been a strong advocate of the merits of dominion status, as defined by the Statute of Westminster 1931. In his way, tonight, he has, even at this late hour, elevated the debate above the uninspiring contents of a rather unambitious Bill.

Since the United Kingdom became a member of the European Community in 1973 and now—at least for the time being—of the European Union, I must admit that I had tended to look at Wales’s future in European terms more than in terms of the Commonwealth. I had no difficulty in regarding Wales as both an historic nation in its own right and a European region. As the EU grew to its present strength of 28 member states, with eight of them smaller in population than Wales, now including in their own right small countries such as Slovenia, Estonia, Latvia, Malta and Luxembourg, I looked on our legitimate aspiration as being a member state of the EU in our own right.

That was not in any sense a separatist argument. If England, Scotland, Northern Ireland, and indeed, the Irish Republic, were also member states, we could co-operate within a new relationship covering Britain and Ireland. We would have our own presence in Europe. It was indeed the converse of a separatist approach. I regarded a pooling of sovereignty on a European level, subject to the principle of subsidiarity, where decisions are taken as closely as possible to the community on which they impact, as being most appropriate to the modern world, in which the physical barriers between nations should be regarded as a thing of the past.

--- Later in debate ---

[Lord Elystan-Morgan]

Will the noble Lord accept my word for it that I am not in any way advocating any jurisdiction for Wales over foreign policy or defence? The point I was seeking to make was that you can make dominion status whatever you wish it to be in the particular context and circumstances of that case. No doubt the noble Lord will, over the years, have studied the position of Newfoundland, which was a dominion for some years. It started off with direct rule, then became a dominion, then ultimately became part of the dominion of Canada. It is an illustration that you can make dominion status be whatever you wish it to be.

[Lord Howarth of Newport]

My Lords, I will not embark on a personal excursion into Welsh history. However, apropos the excellent Amendment 46, in the name of the noble Lord, Lord Elystan-Morgan, which would establish a working group to review the operation of Schedule 1, I hope that the members of that group would follow the example articulated by the Silk commission and the Welsh Affairs Committee, both of which recommended that, in determining what matters should be reserved and what not, principle guidance should be issued so that there are criteria against which all can judge whether a reservation proposed by a department in Whitehall could be justified. Unfortunately, that guidance as to principle, and the questions that departments should ask themselves, was not issued.

The consequence is that we have this ragbag of reservations which have been accumulated all around Whitehall, apparently on no better basis than what we have we hold or, if in doubt, we will hang on to. That is a very poor basis for the institution of a reserved powers model for devolution, so I hope that all of us welcome the proposition of the noble Lord, Lord Elystan-Morgan, that such a working group should be set up. I simply want to see added to its terms of reference as set out in his amendment that principle guidance should be provided for that working group, or that that working group itself should develop the principles. But we must have criteria against which judgments can be made on whether particular reservations are appropriate or not.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on this part of the Bill. I particularly thank the noble Lord, Lord Elystan-Morgan, for moving the amendment with such fluency and commitment, although he will know that I disagree with him fundamentally, particularly on the first of the two amendments in this group.

Through their Amendments 45 and 46, the noble Lords, Lord Elystan-Morgan and Lord Wigley, seek to place new duties on the Secretary of State for Wales to review the constitutional arrangements for Wales and the operation of the Wales Bill that we are putting in place. Indeed, through Amendment 45—at least on the wording, although I accept what the noble Lord, Lord Elystan-Morgan, has said—they seem to be proposing that the Secretary of State of State be required to review Wales’s readiness for independence. I can act only on the basis of how the dominion status has operated in the past. The Statute of Westminster 1931 is expressly referenced in the amendment. There is no appetite for this proposal in Wales. Both noble Lords will know that that is shown in opinion polls and at the ballot box.

The Statute of Westminster established the dominions as sovereign states and enshrined in law the principle that no legislation made in this Parliament could apply to the dominions unless a dominion requested it. We cannot possibly agree to that. It also provided that the Parliaments of the dominions would have the power to amend or repeal any previous legislation made by this Parliament. Therefore, we cannot possibly agree to what is proposed. As a representative of a London-based polity, as it is called, I do not believe this proposal is wanted in England and it is certainly not wanted in Wales either.

Through Amendment 46, the noble Lords are seeking to place a new duty on the Secretary of State for Wales to establish a working group to review Schedule 1, which sets out the reservations, as soon as possible after it comes into effect and to report on reservations that should be removed within three years of the principal appointed day—the day on which the new reserved model comes into force under Clause 55.

Once again, we have a measure in front of us to set up yet another commission or working party to look at constitutional arrangements. I do not believe that would be welcomed in Wales. We have a duty to get on with the job on this Bill. I ask the noble Lord, Lord Elystan-Morgan, to withdraw his amendment.

[Lord Elystan-Morgan]

My Lords, on the question of dominion status, I was tempted to make the mischievous point that for many centuries Wales was a dominion in law. The actual wording of the Act of Union of 1536 refers to the,

“dominion, principality, and country of Wales”,

so that wording has been there for many centuries. However, that is a mischievous point, probably made much too late at night.

Some years ago, a good friend said to me, “You could be a very nice chap if you did not tilt at the English so often”. I am not sure what a nice chap was intended to mean in that context, or whether I would ever qualify within that definition. However, as far as the second part of his proposition was concerned, I have never tilted at the English. I have immense respect and, indeed, often, admiration for our neighbours. I conceive nationalism in the context of Wales as being a patriotism that knows not the hatred of any other nation. That is what Welsh nationhood and Welsh nationalism at their very best should be and are. I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Wales Bill

Lord Elystan-Morgan Excerpts

Monday 7th November 2016 Lords Chamber

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

My Lords, I thank noble Lords who have participated in the debate on these amendments, and the noble Lord, Lord Elis-Thomas, for bringing them forward. I am well acquainted with his burning passion in relation to these matters, which I know we have discussed many times before.

I turn to the amendments, through which the noble Lord and the noble Baroness seek to extend the common law-type powers of Welsh Ministers. I shall break off and explain what I think that means to the noble Lord, Lord Howarth. The issue here is that, yes, common law grows up over a period of time, mostly, though not exclusively, from the contribution of judges—some of it would be by convention in other ways, I think. Here we are seeking to confer these types of powers on Welsh Ministers. We cannot do that by the effluxion of time, because time has not allowed that, so we are taking what is already the position in relation to the common law powers that exist for UK Ministers and saying that we believe that those types of powers should exist for Welsh Ministers. We are transposing them because we cannot build in the period of time element.

It is our view that these amendments would undermine the protection given to a very limited number of Minister of the Crown functions, which the Assembly may modify only with the consent of United Kingdom Ministers. Clause 18 is a key part of delivering the clear settlement that we are putting in place through this Bill. Ministers of the Crown and Scottish Ministers already exercise these common law-type powers. This clause would put Welsh Ministers broadly on the same footing as Ministers of the Crown and Scottish Ministers by ensuring that in future they too will be able to exercise such common law powers.

The noble Lord, Lord Elis-Thomas, asked a very fair question in relation to the royal prerogative. I am very willing to meet with him to discuss this further but, so far as we have been able to ascertain, the royal prerogative has not been conferred on Welsh Ministers. They derive their powers from transfer of function orders or under the legislation. The noble Lord probably knows more about the royal prerogative than I do; I am very happy to meet with him on this issue.

[Lord Elystan-Morgan (CB)]

My very short and technical question is whether it is humanly possible, in any event, for prerogative powers to apply to a Parliament of the nature of the devolved Welsh Administration. As I tried to say in a contribution earlier this afternoon, the royal prerogative derives from what started off as a monarchical diktat, curbed by Coke in 1610, very largely whittled away during the Civil War, and largely defined during the First World War—the noble Lord will remember the case of the Attorney-General v De Keyser’s Royal Hotel Limited. By now, there is hardly a remnant left, but I submit that that remnant can remain only with the mother Parliament.

[Lord Bourne of Aberystwyth]

The noble Lord jogs my memory on the Attorney-General v De Keyser’s Royal Hotel Limited which was a compulsory purchase situation. I believe that he is right and he speaks with great authority. I am always stunned by the noble Lord’s recall of these matters, without any note. I am confident that he is right on this issue, but nevertheless I am very happy to meet with the noble Lord, Lord Elis-Thomas, to look at it further.

I was also asked about the transfer of powers, which we are doing by transfer of function order rather than in the Bill. I have notified noble Lords of the functions that we have identified that will be transferred to Ministers. We are consulting with the Welsh Government in case they find any more that we have missed. I do not think that is the case, but if it is we will, of course, amend the transfer of functions orders.

The noble Baroness referred to and welcomed Amendments 31 to 35, which add a number of additional fisheries management functions to the licensing functions already being transferred to Welsh Minsters. These are management functions under the Sea Fish (Conservation) Act 1967. The noble Baroness has said that she is happy with this but it could go further. I will go away and take a look at it, reflect on what she has said and come back to it on Report. On that basis, I urge the noble Lord, Lord Elis-Thomas, to withdraw his amendment.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Wigley (PC)]

My Lords, this amendment goes to the heart of the Government’s intentions relating to the permanence of the National Assembly. The Bill as it stands contains the words:

“In view of that commitment it is declared that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum”.

But what is the Government’s intention, and what do they really mean by those words?

I am aware that the introduction of those words follows a similar declaration in relation to Scotland’s Parliament—that it is a permanent part of the governmental system of that country. In Scotland, the demand for that grew from the Scottish assertion of a claim of right: that sovereignty in Scotland comes from the people. That is fundamental to the developments in that country over the past 25 years. It was central, indeed, to the initiative taken by the late John Smith when Labour leader, and it was the background to the Scottish convention which brought the question of a Scottish Parliament back on to the political agenda in the late 1980s.

I believe that this principle should equally apply to the National Assembly. As it was established—and later emphatically confirmed—by referenda of the people of Wales, it is only right that the National Assembly can be abolished only by the democratic vote of the people of Wales.

My amendment deals with the circumstances in which such a referendum can take place. I believe that it would be totally unacceptable if Westminster were to decide, against the wishes of the National Assembly, to hold a referendum on its abolition. That would make a total nonsense of the provisions in Clause 1 about the permanence of the Assembly. It would be a creature only in existence at the behest of Westminster. Equally, if the rules for such a referendum were drawn up by Westminster, there is no knowing what impediments might be contained within them. One has only to think back to the 1979 referendum, with its 40% rule, which meant that on a 50% turnout, there had to be a four-to-one majority in favour of the Assembly for it to be established. That rule applied in Scotland too, where, unlike Wales, there was a majority in favour of the assembly, but it was overruled because of the 40% rule.

My amendment, therefore, does two things. First, it provides that the right and responsibility for holding any such referendum should lie exclusively in the hands of the Assembly itself. Secondly, Amendment 1 provides that the rules for that referendum should be drawn up by the Assembly in co-operation with the Electoral Commission. These two safeguards ensure that this Bill does indeed legislate for the permanence of the Assembly and recognises—as, I think, do all true democrats in this Chamber—that the future of the Assembly should lie in the hands of the people of Wales alone, and not be beholden to the whims and wishes of the Government of the day here in Westminster. As such, this is fundamental to our vision for the status and future of the Assembly. I ask the Government to accept this amendment or, if it is in any way technically deficient, to bring forward their own amendment on Report to reach these objectives. I beg to move.

[Lord Elystan-Morgan (CB)]

My Lords, I wholeheartedly agree with the submission made by the noble Lord, Lord Wigley. He has adumbrated all the arguments that I can possibly think of in support of this amendment. It goes to the very heart of the question that this is essentially a contract, not inter-institutional in terms of the mechanics of Westminster, but a contract with the people of Wales.

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

My Lords, I thank the noble Lord, Lord Wigley, for introducing this amendment, and the noble Lord, Lord Elystan-Morgan, for his contribution. The amendment seeks to define the trigger for a referendum to abolish the National Assembly for Wales and the Welsh Government, and would provide that the rules for such a referendum be drawn up by the Assembly in co-operation with the Electoral Commission. Clause 1 meets the Government’s commitment in the St David’s Day agreement and delivers the Silk commission’s recommendation that it should be recognised that the National Assembly is permanent so long as that is the will of the majority of the people of Wales. New Section A1(3), in Clause 1, states:

“In view of that commitment it is declared that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum”.

As matters stand, referendums are governed by the law relating to referendums, as passed by this Parliament, and I do not consider that there is any suggestion that that should be varied. The principle in the Bill establishes in statute what is already recognised to be the case—that the National Assembly for Wales and the Welsh Government are permanent parts of our constitutional fabric. The referendum provision strengthens this commitment and delivers on the second limb of the Silk commission’s recommendation. Although there has never been a question about whether these institutions are anything but permanent, it is only right that if they were to be abolished that would have to be on the basis of a decision by the people of Wales. Let me be clear that such a referendum is not envisaged, and so the noble Lord’s amendment deals with entirely hypothetical circumstances. I therefore believe that it is unnecessary. On that basis, I urge the noble Lord to withdraw the amendment.

[Lord Bourne of Aberystwyth]

My Lords, the noble Lord will know that I do not set out the rules on the sovereignty of Parliament. He will be aware, as I am, that very recently we have seen situations that demonstrate the sovereignty of the people and the sovereignty of this Parliament, so nothing I say could obviate the possibility of a Parliament coming forward subsequently and reversing that. For example, it would be open to any Parliament here to repeal the Government of India Act. That would not be a sensible move and would not be politically realistic, but in terms of the sovereignty of Parliament, of course, that remains the case. This is an important declaratory principle that has not existed previously, indicating the permanence of the institution and the fact that it is the belief of this Parliament that it should not be done without the consent of the people of Wales.

[Lord Elystan-Morgan]

Does the Minister agree that this matter would be caught by the words of new subsection (6) in Clause 2:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly”?

In other words, it is the Sewel covenant. The Government would fall foul of that, it seems, if they were to act in a cavalier way.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his assistance on this matter. He is right that this provision gives that convention statutory force but, of course, it does contain the word “normally”; therefore it is still subject to the will of the Parliament of the United Kingdom. He is right that in normal circumstances that would be impossible to do.

--- Later in debate ---

The amendment put forward by the noble Baroness, Lady Morgan, suggests a sitting commission that continues for all time, so that the issue is never put to bed. To my mind, this issue has been raised so it should be dealt with properly and considered, a report should be put forward, and if legislation follows from that so be it. However, from a purely practical view based on years of experience as a member of the Wales and Chester circuit and as someone who has dealt with the law on both sides of the border and had experience of other jurisdictions abroad, in the Far East, Jamaica, Trinidad and places like that, I believe that a separate and distinct jurisdiction for Wales is not necessary and should not be followed through.

[Lord Elystan-Morgan]

My Lords, I support the amendment in the name of the noble Lord, Lord Wigley, with all the Celtic fervour that I can muster. The principle is undoubtedly a proper one, but the technicality is narrow. Some arguments turn upon the existence of Welsh law—its distinctive character—and they are not without their merit. However, that to my mind is not the issue, which is the juxtaposition of a parliamentary jurisdiction and a court jurisdiction. I would go so far as to say that there is something wrong with the constitutional geometry of the situation where more than one parliament operates within the sphere of one legal jurisdiction. That is the essence of it.

Even if there was no difference whatever between Welsh and English law in this matter—and we know there is—it would still be the case, parliaments having the inimitable bent to go their own way, that to have two or more parliaments operating within a single jurisdiction was wrong. I think I heard the noble Lord, Lord Wigley, say that he doubted whether there was any situation in the whole world where that is so, but I ask the Minister—not perhaps in his ministerial capacity but in his capacity as a very distinguished professor of law—whether in any democratic system in the world there is an instance of two parliaments operating within a single legal jurisdiction.

Having said that, I appreciate that there are difficulties, and I have profound respect for what has been said by the noble and learned Lords, Lord Hope and Lord Judge. A great deal has already been started and been done. The Administrative Court has been referred to and it is undoubtedly a success. In addition—I think that the noble and learned Lord, Lord Judge, had a great deal to do with this—the civil and criminal divisions of the Court of Appeal were given every encouragement to meet in Wales, and they did so on many occasions.

There are many trends of that kind; nevertheless, the basic problem still has to be met. We have already heard of the situation in Scotland and Northern Ireland. The Isle of Man, Guernsey and Jersey have their own parliaments and their own jurisdictions. As a matter of legal purity, there should never be a situation where more than one parliament operates within one jurisdiction. Having said that, I appreciate that there are practical difficulties.

[Lord Carlile of Berriew (LD)]

My Lords, I joined the Wales and Chester circuit of the Bar 45 years and two months ago. I went to chambers in Chester, where my noble friend Lord Thomas of Gresford was already well established, and I confess that I learned a great deal from him, almost all of it good. It is therefore with a good deal of pleasure that I rise to support his amendment.

I have some sympathy with the noble Lord, Lord Wigley, in his aspirations for Welsh institutions, but I fear that I have to come to the same conclusion as my noble friend Lord Thomas—that what he proposes is not needed and nor would it work. Speaking only for myself, I suspect, I have long been in favour of the creation of a separate Wales division of the High Court to cover civil and criminal proceedings. Although a great deal has been done, which I shall mention in a moment, we still do not quite have that formal division. In my view, that would be an excellent measure, well understood, and it would possibly allow Wales to have some appointments that would be appropriate to such a division, such as a presidency of the division—there are presidents of the other divisions of our senior courts. I think that that would be met with approval throughout the legal profession in Wales, although, as I shall set out in a moment, it is not necessarily those in the legal profession who are the right people to decide these things.

I join in the tribute that has been paid to the noble and learned Lord, Lord Judge, who as Lord Chief Justice did a great deal to give the Welsh jurisdiction an identity which previously it had not had for several hundred years. Of course, as I think my noble friend said at Second Reading—I have certainly heard him say it in your Lordships’ House—there used to be a chief justice of Wales. Indeed, he and I appeared at the Chester city quarter sessions, in the building of which there is a large portrait of a former chief justice of Wales—the well-known Lord Jeffreys or Judge Jeffreys. He is not necessarily the best precedent for such an appointment; nevertheless, there is that precedent. There could be a president of a Wales division, although not in a Jeffreys-like way—who, by the way, was not half as bad as history has made him out to be. Of course I will give way to my noble friend.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Bourne of Aberystwyth]

My Lords, I do not think that I said that. I said that it signals that it is not justiciable. I am making the point that noble Lords have been making about the generality of the phrase and that it is difficult to define, and it means that if Parliament decides something it can decide that this is not normal. That is the point about it. As I say, I will take it back and see whether we can accomplish what noble Lords are seeking in guidance.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that there are two problems here? First, the bar is set at a very low level—a level of “normality”. Secondly, as far as the word “normal” is concerned, although of course it appears in the two Scotland Acts, it does not seem ever to have been judicially interpreted in the courts. That is a considerable weakness. I take the Minister’s point that in a way it is a matter for Parliament to define itself—to define its own metes and bounds—which bearing in mind its absolute sovereignty are untrammelled, but nevertheless it is a crucial word in an Act of Parliament and as such it must be interpretable by the courts. I am afraid that, if the matter were raised before the higher courts now, they would say that “normal” means something that is not abnormal and they would leave us in the mists of uncertitude in that way.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his comments and for clarifying what I was intending to say, and I apologise if I had not made that absolutely clear. I have taken on board the points that are being made. I said that we will look at this in guidance, but as I have indicated there is a need for room for manoeuvre here, so I will take the points back and look at them.

Wales Bill

Lord Elystan-Morgan Excerpts

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

[Lord Elystan-Morgan (CB)]

My Lords, I begin by wholeheartedly endorsing what has been said by way of tribute to the noble Lord, Lord Bourne, and the very constructive role he has played for a couple of years now in Welsh devolution. Whatever the Bill’s defects might be—and I believe them to be myriad—he is not responsible for them, and I would not wish him to think that anything I say by way of criticism of the Bill is in any way directed at him.

I shall concentrate my remarks on what might be described as the main constitutional timbers of the Bill. As has already been said, this is the fourth time within the short span of less than 20 years that a major piece of legislation has been introduced in relation to Wales. What distinguishes this Bill and differentiates it from the other three attempts is that, whereas they added to the constitutional powers that Wales had as a land and nation, it turns in the opposite direction. Whereas they were progressive, this Bill is regressive.

I have no doubt that we would not be discussing these matters in the context of this Bill were it not for the decision by the Supreme Court in July 2014. That is the fons et origo of the whole matter. It is not an incandescence of enthusiasm on the part of the Government for Welsh devolution that brings these matters to the fore, but the realisation that a crisis was created by that epoch-making decision.

The House will broadly remember the facts of the case. The Cardiff Assembly was proposing a measure to standardise and define agricultural wages in Wales. There was an immediate objection by the Attorney-General, who seized on this matter like a hungry piranha and said that it was something Wales must not touch. Why was that? It was because it was a matter not of agriculture but of employment. If the Attorney-General’s logic had been correct, that would have been the end of the matter, but the Supreme Court respectfully disagreed with him in a 5-0 decision. Whereas the impression had been carried for a long time that if there had been a transfer of a limited nature within any one of the 20 fields of devolution to Wales, that was it, the Supreme Court said that where there has been a substantial transfer of functions and there are other allied matters that reasonably go with them, unless they have been specifically exempted, they are transferred. In other words, there is a silent transfer mechanism, and that is what caused the whole problem.

Given the situation that confronted Wales the day that judgment was published, it is right that we should consider how the Bill compares with that template. My submission is that the powers that Wales has under the Bill are vastly diminished compared with the decision reached by the Supreme Court. That is the reality. This matter has been touched upon already by one or two noble Lords, and I have no doubt that they are absolutely correct: the gap is very considerable. Yes, the decision to transfer to a reserved powers model has achieved something—certitude, of a certain nature—but it is a certitude for which a high price is paid: the diminution of the constitutional status of Wales. That is the effect of the main parts of the Bill.

The Government reacted fairly swiftly to that decision of 2014 and decided that they would move to a reserved powers model, which was introduced by the St David’s Day agreement of last year. A draft Bill was published, which was scrutinised by a number of distinguished bodies, and following that we have today the legislation proposed in the House of Commons in June of this year. I believe that the Bill is flawed, first in that it does not achieve the purpose that it genuinely should have sought to achieve. Secondly, it is a Bill that is unworthy of the people of Wales. We have a far lower level of devolution now than that which was spelled out by the Supreme Court in July 2014. The consequence is that we are moving backwards when we could have been moving forwards.

The worst part of the Bill is not what is mechanically set out in the reservations—of which there are far too many; more than 190, as we have heard—but the mentality that lies behind them. It is a mentality of monumental negativism. Look at the reservations: the control of axes and knives; the control of charitable funds and philanthropic institutions; and the control of the sale of alcohol, which Wales had devolved to it in the 19th century. I see the noble Lord, Lord Hunt, who well appreciates the history of this matter, nodding. There are many other instances where one could say that these are simple, basic, minor matters, taken against the bundle of responsibilities a nation has. The question I ask the House to consider is this: had such matters as these been raised 50 years ago by the Colonial Office in relation to a colony belonging to Britain, either in the Caribbean or in Africa, would they have dared bring about such reservations? The answer must surely be no. We are placed in a neocolonial situation by this Bill.

My appeal is not so much for a change in the mechanics, but for a change in mentality. I can remember being shocked as a schoolboy—which was many years ago, believe you me—when reading of a decision made by Mr Attlee’s Government in relation to Wales. Herbert Morrison, the then Home Secretary, announced it in these terms: “We have considered the future of Wales very carefully. We have taken advice, broadly, from people who are in a position to give that advice, and we have come to the conclusion that the very best that we can do in relation to Wales is to have a nominated council”. Do your Lordships think that Mr Herbert Morrison and his Government would have suggested a nominated council for a British colony 50 years ago? Most certainly not. To my mind, such neocolonialism shows that the dead hand of Westminster still lies upon Wales.

My appeal is not just for a new mechanism but for a new mentality altogether: a change in the attitude of the mandarins of Whitehall—the Sir Humphreys, Sir Williams and Sir Rogers—who say, “Nothing shall come from my table at all”, and likewise in the dog-in-the-manger attitude of Ministers towards their own powers. There should be a spirit of partnership and mutual respect between Cardiff and Westminster.

The Welsh people should think big in this matter. A distinguished English poet of the 19th century wrote:

“a man’s reach should exceed his grasp,

Or what’s a heaven for?”.

We as a nation have been grasping for small things, but we must think big about the role we can constructively play within the UK. I believe that dominion status is a principle sufficiently supple and mobile to allow Wales, under the 1931 Act of Westminster, to play the most major and constructive part imaginable in the life of the UK. That is the opportunity we now have. Many matters in the field of government are in a state of flux. Wales must react positively to that, as this chance may not come again.

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.

Wales Bill

Lord Elystan-Morgan Excerpts

Monday 24th November 2014 Lords Chamber

[Lord Morgan (Lab)]

My Lords, I intervene very briefly and with a note of apology. I was ill, which no doubt saved your Lordships a lot of time in Committee and on Report, so this is just a last-gasp intervention to say that I support the amendment, which seems highly desirable and long overdue, and I congratulate the Government.

I want to make one point in relation to my very good friend, the noble Lord, Lord Cormack, who has raised the important question of whether this is the way to change the constitution. The truth is that we have no way of changing the constitution; it is a matter of an extremely haphazard nature. The last time that we changed the constitution was with the Act of Settlement in 1701, which took a synoptic view, but which is a little early for even this noble House to consider. There is no way of changing the constitution rationally, and there should be. I have always supported a codified, written constitution, and I profoundly hope that when the House of Commons Political and Constitutional Reform Committee reports, it will accept that, partly because I am one of the authors of the report that it is considering, so naturally I support that proposal.

There have been so many illogicalities in considering Welsh devolution such as—I understand that this was discussed when I was not here—why the Welsh Assembly should not have reserved powers, why the Welsh Assembly should be the victim of an asymmetrical form of devolution and why the Welsh Assembly did not have financial powers in the first place. No clear logical view was entertained for any of those questions, and we therefore proceed empirically and haphazardly. In this case, we are considering simply whether it makes sense, not whether it is in what you might call an agreed constitutional tradition or follows a convention. Clearly, it does make sense; it is not possible to have young people aged between 16 and 18 in Scotland able to vote but not in Wales—there is no rationality in that. Why should Wales yet again be the victim of constitutional illogicality in a country that prides itself on its constitutional illogicality, showing that its constitution is not therefore unwritten?

That is the settled view of the National Assembly, and it is clearly beneficial in itself, as many noble Lords have said. Young people are able to make a strong contribution, as indeed, as the noble Lord said, they did in 1886. Lloyd George, whom he knows about, is an example of a young Welsh schoolboy who took a very active part long before he was able to vote or enter the House of Commons. So on the merits of the case, on the merits of the value of an input from a thriving and important part of the Welsh electorate, and because there is otherwise no logical or constitutional rubric why we should exclude Wales from this change, I certainly support the amendment.

[Lord Elystan-Morgan (CB)]

My Lords, I rise on account of two matters about which I have strong feelings. One is the Act of Settlement of 1701. Although my respect for the noble Lord, Lord Morgan, of Aberdyfi, whom I may call my noble friend, is total and absolute, I still have doubts about whether that Act is indeed one that Parliament does not have in its sovereignty the right to repeal. The Act of course settled the succession of the Crown; it said that the succession should devolve upon the Electress Sophia and the heirs of her body, and of course the relevant heir of her body was George Lewis, the Elector of Hanover, George I. It seems to me that Parliament, being sovereign, could repeal the Act of Settlement any day, but that is by the by—I have said my piece.

The second matter is that I support the amendment, which seems to be based on very sound principles. One we have already have adumbrated, and that is the fact that it is a matter for the Welsh Assembly, which is the parliament for the land and nation of Wales, to decide on the right to vote and what age should dominate in such a situation. That is a healthy principle, and one that has been steadfastly upheld by my friends the noble Lords, Lord Elis-Thomas and Lord Wigley, as Members of the Assembly and indeed as Members of this House. When the voting age was reduced from 21 to 18 and jurors were entitled to sit at the age of 18, there were siren voices of caution. Looking fairly and objectively at the evidence, it seems that there was no justification for panic at all. It has worked well in the courts and in relation to Parliament.

The main point is one that has not been made: it is that age is relative to the situation you are dealing with. The age of 18 was decided, if I remember rightly, just before the 1970 election; in other words, 44 years ago. Could one not reasonably argue that a young person of 16 now is probably as mature mentally and physically as such a person 44 years ago? Society is changing rapidly all the time. Standards of health, learning and understanding are improving, and on that basis there is ample justification for this amendment.

--- Later in debate ---

[Baroness Morgan of Ely (Lab)]

As this is our final opportunity to discuss the Bill, I would like to thank the Minister for her co-operation on it. We knew when we started on the Bill back in July that the Scottish referendum could impact on the nature and tone of the debate, and that has indeed been the case. The very fact that we have so many people in here today talking about the Bill tells us something. The scope of the devolution debate across the whole of the UK has changed since September. It feels as if this Bill is slightly out of date even before the ink has dried. It is, however, another welcome step in the process of devolution for Wales. It is clear that it is not only the Scottish referendum that has changed the tone of this debate during its passage, but the appointment of a new and more conciliatory Secretary of State. We very much welcome the shift in tone since his appointment.

I take this opportunity to thank colleagues on all sides of the House, especially people on the Labour Benches, for their co-operation and support on the Bill. In particular, I thank my noble friend Lady Gale, of Blaenrhondda, for her sterling work and active support on the Front Bench. I also thank officials in the Wales Office and Catherine in the Labour office for their work. In particular, I applaud the co-operation afforded by the Government Front Bench, led by two extremely distinguished experts on the issue of devolution in Wales. In particular, we are extremely pleased that we have managed to find a resolution to the issue regarding the reserved model power of government, and we look forward to seeing the fruits of the department’s work on 1 March. Thank you for also agreeing to the issue of votes at 16 in the referendum on tax powers.

The devolution debate is far from over. The Labour Party is in favour of a constitutional convention to iron out some of the anomalies across the UK that many noble Lords have talked about today. If, and when, we form the next Government in 2015, the Labour Party has also committed itself to presenting a new Wales Bill, pushing the boundaries of the devolution settlement further. This obviously needs to take into account the changes across the UK. We know that the coalition Government have agreed to present a cross-party approach in March to further devolution for Wales. We would like a cast-iron assurance that both the Conservative Party and the Liberal Democrat party will, if they are through some terrible tragedy elected to run the country again after the next election, match Labour’s commitment and bring forward a new Wales Bill in the next Parliament.

[Lord Elystan-Morgan]

My Lords, I assume that we have already dealt with the amendment and are now dealing with the totality of the Bill on Third Reading?

[Lord Bourne of Aberystwyth (Con)]

I am sorry. The noble Lord should speak only once in this debate and we have not dealt with the amendment yet.

--- Later in debate ---

[Baroness Randerson]

My Lords, I beg to move that the Bill do now pass.

[Lord Elystan-Morgan]

My Lords, perhaps I may say how much I appreciated the tenor of the Minister’s remarks a few moments ago. It has indeed been rather revolutionary in the history of the land and nation of Wales that there should have been so much compromise, understanding and unity in relation to very many matters. We as a people in Wales have a reputation of fissiparous disaffection of a general nature, and nobody could gainsay that, but it may well be that with this Bill—in both Houses but particularly in this House and particularly due to the attitude of the Minister—we have shown a different approach. It is a small but impactive Bill and I believe it to be of very great historical significance in so far as the constitutional situation of Wales as a land and nation is concerned.

I want to raise one matter, and that is the question of the relationship of the Bill to the undertaking given by the Prime Minister on 19 September—that cold morning which followed the heavy events in Scotland the day before. He said that,

“there are proposals to give the Welsh Government and Assembly more powers. And I want Wales to be at the heart of the debate on how to make our United Kingdom work for all our nations”.

Those were his exact words and they could mean a very great deal or nothing at all. If by “powers” one means the powers contained in this Bill, for which I wish Godspeed, then those words are utterly meaningless because they were spoken in the heady atmosphere of massive undertakings given to Scotland and weighty undertakings given to Northern Ireland. However, if in fact they referred to nothing more than this Bill, then they meant that no additional powers in relation to Wales were contemplated than existed at that moment—in other words, there was no addition to the status quo. In my view, that would be a very unsatisfactory situation. At best, it would be misleading. It would mean that there was a negligent misrepresentation, to use a technical legal term, on the part of the Government. At worst, it would mean something much more serious than that.

For a number of reasons, I do not for a moment impugn the Prime Minister of any lack of integrity in this matter. First, this was an ex cathedra statement—not something that had been cobbled together in the wee small hours of the morning of 19 September but probably something that had been prepared a long time before when it was anticipated in the months preceding the referendum that the result might be much more clear cut than it was. Secondly, the second part of the statement reads:

“And I want Wales to be at the heart of the debate on how to make our United Kingdom work for all our nations”.

If no further devolution of a substantial nature were contemplated in relation to Wales, how could that possibly have any relevance whatever? It seems therefore that, with one additional factor, the Government must be contemplating powers well beyond those that we are considering in the context of this Bill. If a Cabinet committee is set up to consider the situation in relation to Scotland, Northern Ireland and Wales, and to report in January 2015 on the whole question of constitutional development, if there was to be no constitutional development in Wales, what would be the point of including Wales in such an arrangement?

Wales Bill

Lord Elystan-Morgan Excerpts

Tuesday 11th November 2014 Lords Chamber

Moved by

[Lord Elystan-Morgan]

12: After Clause 3, insert the following new Clause—
“National Assembly for Wales: increased membership
The total membership of the National Assembly for Wales (Cynulliad Cenedlaethol Cymru) shall be increased to 80 members.”

[Lord Elystan-Morgan]

My Lords, in moving this amendment that stands in the name of my noble friend Lord Wigley and myself, I can summarise the situation very briefly. The case for adding to the present 60 Members of the Welsh Assembly is irrefutable, because the Assembly is already badly understaffed as regards membership. That was the situation from the very start, but it did not matter a very great deal because in the first instance, in 1998, the Assembly was not essentially a legislature, as has already been mentioned in this debate. It dealt only with delegated legislation and spent only 4% of its time reviewing legislation; it had a tangential function with regard to legislation—but things are very different now. Since the referendum of March 2011, a wholly new situation has been developed.

Without wishing to overstate my case, I would say that it was ludicrous to consider that the small number of Members that constitute the membership of the Welsh Assembly can possibly carry out the task of scrutinising legislation properly. Put in other words, if we wish to limit the Assembly to nothing much more than an Executive and a talking shop, all we have to do is nothing. We will emasculate the possibilities of it being a legislature because it does not have the critical mass to be that.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, the noble Lord, Lord Elystan-Morgan, made his case in masterful fashion and has given a political explanation of why he confines his proposal for an increase in the size of the Assembly simply to 80, not a higher number.

As the noble Lord, Lord Cormack, said in the debate on an earlier amendment, in constitutional change form should follow function. A rigorous analysis is needed of the functions that the National Assembly for Wales already has to perform and the functions that are increasingly to be devolved to it. This legislation provides that the Assembly should take control to a significant degree of income tax and borrowing. The obligations that will fall upon the Members of the Assembly are not therefore solely in terms of additional legislative scrutiny but invigilation of public expenditure, authorising expenditure, and controlling and examining its quality. Whether the National Assembly for Wales would wish to replicate the sort of committee structure that we have in this Parliament, such as the Public Accounts Committee in the House of Commons, I do not know. That should rightly be a matter for the Assembly. However, what is beyond doubt is that the scale, range, complexity, difficulty and importance of the tasks that the Assembly has to undertake have been growing, are growing and will continue to grow.

Therefore, following the example already given by the Electoral Commission in Wales in certain respects, further analysis should be made of the membership required in order for the Assembly to manage to perform the tasks that the people of Wales, and indeed the United Kingdom, will expect it to carry out. For that reason, I very much welcome the spirit of the amendment. I would be happy if it were to be accepted but it would be seen only as a provisional step. It might be preferable that further work be carried out on this proposition, so that we can see exactly where, in practice, it should take the National Assembly for Wales.

The noble Lord, Lord Wigley, wisely and realistically observed that there is a constraint on physical space in the Assembly building. However, we should not be unnecessarily deterred by that factor. After all, when the House of Commons was reconstructed after the war, Winston Churchill, as Prime Minister, thought it appropriate deliberately to recreate a Chamber that would be a pretty tight squeeze for all its Members. That works rather well so we should not be worried.

[Lord Elystan-Morgan]

The words Churchill used were, “a sense of crowd and urgency”.

[Lord Howarth of Newport]

The noble Lord always has a sense of historical drama. He imports that even to these very proceedings. We are grateful to him.

--- Later in debate ---

[Lord Elystan-Morgan]

My Lords, for at least the second time today, the angel of good will and of progressive tolerance has been with us, and I am deeply grateful to all who have spoken and for the tone of each contribution. I appreciate, in the case of the noble Baroness, that we are clearly looking in the same direction. She does not challenge the basic tenets of the argument. I would respectfully suggest that once one does that there is an inevitability as to the conclusion that a person should eventually reach. It is not only a matter of absolute necessity for the future of the Assembly. The second Silk report of March this year has this sentence which encapsulates it all:

“Good scrutiny means good legislation and good legislation pays for itself”.

Be that as it may, I have no doubt that we shall, on many occasions in the future, be debating this matter, but I hope that it will be in a spirit of the near inevitability of progressiveness here and the acceptance of indisputable realities. I was not able to accept the undertaking so generously given by the noble Baroness today in relation to Amendment 1. I explained to her my reasons and I hope that she accepted my sincerity in the matter. However, on this occasion, I am very happy to withdraw the amendment.

Amendment 12 withdrawn.

Wales Bill

Lord Elystan-Morgan Excerpts

Tuesday 11th November 2014 Lords Chamber

Moved by

[Lord Elystan-Morgan]

1: Before Clause 1, insert the following new Clause—
“Reserved powers for the National Assembly for Wales
The Secretary of State shall, within six months of the passing of this Act, lay a report before both Houses of Parliament on further legislative steps needed to establish a model of reserved powers for the National Assembly for Wales, which shall include a detailed timetable for implementation of this new model.”

[Lord Elystan-Morgan (CB)]

My Lords, this amendment, which stands in my name as well as the names of the noble Lord, Lord Wigley, and the noble Baroness, Lady Morgan of Ely, is dedicated to streamlining the constitutional transfer of authority to Wales and to making clearer the boundaries which, to some extent at the moment, are obfuscated. The effect of the amendment would be to place the constitutional transfer of legislative and other parliamentary authority to Wales on a reserved basis, rather than a confirmed basis.

The meaning of that in lay terms is, as I am sure nearly every Member of this House appreciates, that there are two ways in which a sovereign parliament can transfer power to a sub-parliament. One is to transfer the totality of a subject heading and then say that there will be certain reservations, spelling them out—A, B and C—so that one knows exactly where that boundary is drawn. The other way of doing it is less simple and far more cumbersome: transferring piece by piece different legislative powers or, in a much wider way, describing certain subject areas but without setting out in detail exactly what they mean. The latter is what governs the situation in Wales, I am afraid.

Following the referendum of March 2011, and under Schedule 7 to the Government of Wales Act 2006, there are 20 subject headings ranging from agriculture to the Welsh language. They are not intended to be definitive of the powers that are transferred; they are more descriptive. Then, they are qualified—again, in a general way—rather than setting out exactly with ruthless correctitude what reservations and exemptions there are. One cannot overemphasise the difference between those two systems. One achieves the very best that devolution can achieve. The second brings out most of the weaknesses in the situation and guarantees great difficulties in future.

The Welsh Assembly has seen a number of developments over the past 16 years of its existence. It started off as, essentially, an executive body with very limited powers of delegated legislation. I think only 4% of the time of its plenary sessions was spent in the examination of legislation. Then, with the Government of Wales Act, things changed considerably. There was the provision under Schedule 3 that enabled what might be called the “salami slices” of authority to be conferred. Indeed, some such transfers did occur. But the fundamental change occurred, of course, following the referendum of March 2011 with those 20 areas of authority. They are very considerable in totality. The calculation of the Silk report is that they represent somewhere between 50% and 60% of the total expenditure of government in Wales. The area of jurisdiction is very considerable.

However, the system falls down on the question of ascertaining swiftly and clearly exactly what has been transferred and within what limits. I have used this expression before and do not apologise for it: it is such as to create a constitutional neurosis among those who practise the vocation of law in Wales. That of itself may not be a bad thing but it means that you have to chase little pieces of legislation almost like confetti. You have to trawl through various instruments and legislative provisions to get the truth. Even then, you may not be absolutely certain that you have covered everything that might be relevant. In addition, the exemptions are in such general terms as to be ineffective —and, indeed, perhaps downright dangerous, because of the dubiety created in such a situation.

The amendment therefore asks for a complete transfer, clearly and specifically, of a subject heading, and then a remorseless description of every exception that can operate. That is no more than the Welsh people deserve, and I believe that a solid body of consensus has grown around it by now. It would mark the further maturity of the National Assembly for Wales, and would remove the areas of dangerous dubiety that exist. It is on that basis, and with some confidence, that I ask for support for this most necessary amendment to the constitutional situation in Wales. I beg to move.

--- Later in debate ---

[Lord Elystan-Morgan]

The six months is not set in stone at all. I think it necessary to have some idea of a timetable to concentrate the mind, as Dr Johnson might have said. However, I do not think that six months is sacrosanct. If a manuscript amendment or any such change was appropriate, I would willingly be prepared to make such amendment.

[Lord Crickhowell]

But the fact of the matter is that this is a requirement, as the amendment is now drafted. It would be necessary to find some way, perhaps at Third Reading or in some suitable way, to give the flexibility that he is prepared to allow.

--- Later in debate ---

[Lord Elystan-Morgan]

My Lords, seldom have I been so proud to be a Welshman and a Member of this august House. It has been an excellent debate. Many issues have arisen—some of them bordering on the philosophical, if not the metaphysical. One could spend many hours on the matters raised by the noble Lord, Lord Deben. All I say to him on the issue of the survival of the Anglo-Saxons, as far as the parliamentary institutions are concerned, is that he can sleep quietly, peacefully and happily in his bed. There is no danger that they will be swamped by the Celts on the fringes of the United Kingdom. It is an old question. It was raised in Gladstone’s time in 1893. The difficulties then were regarded by him as being insurmountable—of dividing a purely English issue from those matters that were directly or indirectly relevant. That will be the whole question. However, that is a matter for another day.

We have had an excellent debate and I am very grateful indeed to everyone who has contributed to it. The hallmark of the debate was unity. The consensus on this matter transcends every political boundary. That has not come about by accident. I have already paid tribute to the noble Lord, Lord Bourne of Aberystwyth, and to the noble Baroness for the work that they have done over a long period in laying the foundations of such a consensus.

The Minister has graciously told the House of plans that the Government already have to bring about these changes. Clearly, work has been done already. It would not have been possible for the seventh schedule to the 2006 Act to be contemplated—the 20 different areas of authority—without considering with some care exactly where that left one. However, I still think, with the greatest respect to my noble friend Lord Elis-Thomas, that there are massive ambiguities. However, it is not for an ex-circuit judge to try and animadvert on the wisdom or otherwise of the attitude of very senior judges in this matter.

The offer made by the Minister is generous but turns on many contingencies. Presumably, the work will be done by 1 March—not 1 April—2015. Then it will be for the next Government to decide exactly when and how the proposals will be brought into law. Who will the next Government be? Is there a Delphic oracle who can tell us? Can anyone read the runes or look at the entrails and tell us who is likely to succeed? If we pass the amendment—I will ask the House to divide on the matter—we will be giving the noble Baroness strength vis-à-vis Her Majesty’s Government. We will be placing solidly and clearly, and with total resolution, exactly where we stand. I say “we” because I hope that I can speak for the people of Wales in this matter. There is unanimity and a sense of urgency. Time is of the essence. Therefore, I hope that the noble Baroness will not think me churlish. It is as much to strengthen her arm and in no way to frustrate her position that I ask the House to divide.

Wales Bill

Lord Elystan-Morgan Excerpts

Wednesday 15th October 2014 Lords Chamber

[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.

[Baroness Morgan of Ely]

My Lords, the Labour Party in 1997 made a promise in that first referendum which established the Assembly. In that promise we made it clear that we would not introduce income tax variations to Wales unless and until the people of Wales gave us permission to do so. Let us not forget that we won that referendum by a hair’s breadth. It would be a massive political mistake to go against that. I honestly believe that had there been a question about tax in that referendum we would not have an Assembly today. We have to honour that promise we made to the Welsh electorate. The referendum promise to the people of Wales is one of three locks we want to be sure are in place before tax raising or cutting powers can be used in Wales. If we have learnt anything from the Scottish experience it is that the public will get involved if it is something that impacts on them directly. There is nothing that impacts more directly than income tax so they are sure to get involved in this debate. We must do them the honour of respecting their views and we will not know what those views are unless and until we hold that referendum.

--- Later in debate ---

[Baroness Randerson]

The Bill does not give those reasons. The legal advice I was given related to tried-and-tested constitutional principles. Dare I say it, the noble Lord is now asking for more to go into the Bill and in the previous debate he was asking for it to be reduced.

[Lord Elystan-Morgan]

My Lords—

[Baroness Randerson]

I will just answer the noble Lord’s intervention and then I will certainly give way.

The noble Lord, Lord Wigley, asked, both in his speech and just now, about the 180 days. I remind noble Lords that the previous referendum in 2011 took 246 days, albeit with the intervention of a general election—but we have them quite regularly. It could be that another referendum would be interrupted in such a way. I am sure that the noble Lord, Lord Elis-Thomas, recalls that there was a tremendous scramble to make that timetable of 246 days. Our 180 days is therefore an amendment to take account of experience. I reassure the noble Lord that it is a limit, not a target.

[Lord Elystan-Morgan]

With great respect, I wholeheartedly agree with the noble Baroness that that is the only circumstance in which there could be any dubiety at all. My question is not irrelevant: who decides? Is it the Secretary of State who decides whether there has been a valid two-thirds majority, or it is the courts?

[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.