Wales Bill

Lord Elystan-Morgan Excerpts

Monday 13th October 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

We support Amendment 1. As the leaders of devolution as opposed to independence in Wales, we have always supported reserve powers. The Bill that I drafted in 1966 was for a Parliament for Wales on a reserved powers basis, including provision for criminal justice and the courts. I rather fancied the position of Chief Justice of Wales that I laid out in the drafting of that Bill. I was a lot younger in those days, of course, but not lacking in ambition.

The one part of Amendment 2A that I query, however, is on the Welsh constitution and electoral arrangements going to the Welsh Assembly. It is impossible to have a federal system of government and any form of devolution if the proposal is that those should be left to the Welsh Assembly itself. What has occurred to me over the past few weeks is the anomaly that would arise if there were to be English votes for English laws in the other place. English laws would be subject to the scrutiny of this House, and consideration and amendment in this House; whereas laws passed by the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly are not subject to such scrutiny. When one poses or considers that anomaly, it is obvious that there has to be a considerable constitutional discussion as to how the whole settlement eventually evolves.

For example, in my view, this House should be abolished and replaced by an elected—on a proportional basis, of course—federal body that would deal with scrutiny of legislation from all the devolved Governments. A very much more sensible route and settlement lies along those lines, although it would obviously take a considerable amount of time and we are dealing with this Bill at the moment. The reserved powers issue can be settled much more quickly and that is why I support Amendment 1.

[Lord Elystan-Morgan (CB)]

My Lords, there is a great deal of agreement in all parts of the House on many of the matters we are discussing. Although we are speaking on certain, limited planes, we are at the same time looking at the whole question of devolution.

Many people will say that devolution in Wales took off with the referendum of 1997. That is not strictly correct because no transfer of authority from Westminster to Wales was involved in that matter. The transfer proposed was a significant transfer from the executive authority of Welsh Office Ministers—of course democratised by that authority being an elected body, meeting in the name of the Welsh people. It was a great, historic event but not classical devolution as such.

Be that as it may, there have been in this discussion a few cautionary voices, as one would expect. I respect much of what has been said by the noble Baroness, Lady Morgan. In the case of the noble Lord, Lord Crickhowell, one could perhaps say that the voice was rather more than traditionally cautionary, and was somewhat Cassandra-like. However, that is not something that I wish to deal with in detail at the moment.

The thrust of what we are practically all agreed on is that there should be a reserved powers model. There are two excellent reasons for that. One is selfish, if I may say so as someone who has been a solicitor and barrister, and later a circuit judge. It is to avoid a whole generation of Welsh lawyers having constitutional neuroses. It means that if you want to be sure of whether something has been transferred in a particular field, you might have to look at not just a score of different legislative sources but perhaps much more than that. It is like confetti—all over the place—when it could so easily have been done in a different way by a total bulk transfer, subject to exceptions (a), (b), (c) and (d).

It would not be all that difficult if one were to tackle this straightaway on the basis of Part 4 of the Government of Wales Act 2006. Under the provision, the House will recollect that there were 20 areas of devolved authority ranging from agriculture to the Welsh language. What is referred to in each and every one of those paragraphs is just a heading. It might well be argued that although you could easily draft a Bill—you could write it out almost on the back of an envelope, and that seems to me to be the way in which some legislation has been proposed over the past few weeks—you could never be absolutely certain of what you were including if you dealt with it in that bulk umbrella way. However, I doubt whether the difficulties are as great as that, because when the Government of Wales Act was passed there was careful scrutiny as to the content of each and every one of those 20 categories. Thus I should think that successive Governments and those who advise them have a pretty clear idea in each case of exactly what has been devolved and what has not been devolved.

Therefore it seems to me that on a selfish basis, as far those who practise the great vocation of the law is concerned, there is much to be said for cleaning up in this particular way. In so far as constitutional maturity is concerned, there is everything to be said in favour of that model. I hope that the Government will not plead the vehicular defence and say that this is not the vehicle by which to do this, but will say that this is something that can be done quickly. I suspect that some thought has been given to it over the years. I suspect too that the Government may well have anticipated what Silk concluded in this particular context.

Turning to Amendment 2A, I am a great admirer and respecter of both the noble Lords concerned, the noble Lords, Lord Wigley and Lord Elis-Thomas. I have known them almost since boyhood. Both have been committed home rulers since boyhood. Few people now alive in Wales have contributed more to the effort to raise the constitutional level of this land and nation. They have cast a generously broad net. One might well say that if one looks in detail at some of what that net might contain, then clearly there might be certain difficulties. However, I do not think that the situation is as bleak as is suggested.

In fact, many responsible bodies in Wales, whose membership cuts across party loyalties of all sorts, have spoken for many years about the position of the police in relation to the Welsh Assembly. I speak as one with knowledge of the matters that come before the courts from time to time—or used to when I was in practice—and the general case is this. The matters relating to the police, youth justice, drugs and various other agencies—some of which have clearly been devolved and others which have not—make out a case for at least the transfer of certain police functions. I am not arguing for the total transfer of certain police functions that have not already been devolved to be devolved to the Welsh Assembly. Such arguments are found in Silk, and indeed many other responsible bodies have come to much the same conclusion. So it is not chimerical or irresponsible to mention that matter.

Let us take broadcasting again, for example. Paragraph 20 of Schedule 7 to the Government of Wales Act transfers all responsibilities in relation to the Welsh language, save and except the legal position of the Welsh language in the courts—nothing else. An intelligent layman would therefore be well excused if he said that broadcasting in Wales in the Welsh language must have been included within the umbrella of paragraph 20. That is not so, as we found very much to our cost some years ago when the issue of S4C arose. I shall not go into the detail of that now but something that was crucial to the very future and success of the Welsh language had not been devolved in the slightest degree.

I think that the 20 areas of authority included in Schedule 7 to the 2006 Act could easily and safely be transferred, and very little would need to be done in addition to the information that the Government already have in that regard. It would show good will on the part of the Government and responsibility, candour and integrity in relation to the promises made some weeks ago in the heat of the Scottish referendum. If they mean what they say—and I am prepared to accept that they do mean what they say—this could be in earnest of that good will and integrity.

Wales Bill

Lord Elystan-Morgan Excerpts

Monday 13th October 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I strongly support my noble friend Lord German and will speak to Amendments 15 and 16. Before I do so, I share a reflection. The noble Lord, Lord Elis-Thomas, was talking about his six year-old granddaughter, and I was reminded that when my granddaughter, Pip, was elected to a school council, my wife, my noble friend Lady Walmsley, commented—rather caustically, I thought—that she was the first member of the Thomas family ever to win an election. That was unfair.

I turn to Amendments 15 and 16. The system of election aimed at proportionality throws up a number of difficulties. In particular, it makes the election of a regional list candidate almost capricious. An example is the noble Lord, Lord Bourne, who served with distinction as a regional list Member as leader of his party—and I see that he has almost left the Chamber at the thought. He lost his seat not because his party did badly but because they did far too well and won a Montgomeryshire seat from us. Consequently, he ceased to be a regional list Member. It is clearly unfair that a person should be required to give up a public position, or even employment, simply to stand as a candidate in an election. There is not only the individual to consider; the pool of those willing and able to undertake public duties is not so large in Wales as to make it in the public interest to impose such a restriction.

The legal position is further complicated by an apparent conflict between the provisions of the Government of Wales Act 2006, which deals with disqualification, and the National Assembly for Wales (Representation of the People) Order 2007, which deals with aspects of electoral law. According to the 2007 order, a candidate should not be part of, or a member of, any organisations included on long lists set out in the 2006 Act and the relevant disqualification order made under it. The Act, however, refers to the disqualification as relating to “being an Assembly Member”, and not to being a candidate. These provisions are subject to the power of the Assembly under Sections 17(3) and (4) of the Government of Wales Act to resolve to disregard the disqualification of any person,

“if it appears to the Assembly … that the ground has been removed, and … that it is proper so to resolve”.

Further, if it is alleged that an Assembly Member is disqualified, costly High Court proceedings can be involved. It is well known that two regional list Lib Dem Members fell foul of these provisions in the 2011 election. One was a member of the Care Council for Wales, and he admitted that he had not read the 2010 order that contained a long list of public bodies. After anxious consideration, the Welsh Liberal Democrats decided to withdraw the motion that they had lodged with the Assembly to lift his disqualification, and the number two on the list took his place. The other was a member of the Valuation Tribunal for Wales. The Assembly Standards Commissioner, Gerard Elias QC, said that that Member had done,

“everything that he could have reasonably been expected to do in ensuring that he was not a disqualified person for the purpose of nomination or election”.

He had followed the Welsh language advice from the Electoral Commission, which had referred him to regulations on proscribed bodies from the 2006 order, which had been replaced by a new order in 2010. It was correct in English but wrong in Welsh. The Electoral Commission apologised for its error. The motion that was filed to disregard the disqualification was passed with some Labour opposition, which will not be forgotten because anecdotal evidence suggests that a number of non-elected Labour candidates would have failed the test themselves. The noble Lord, Lord Wigley, at the time wrote in the Daily Post very wise words, as usual:

“There is a saying that ‘Rules are for the guidance of wise people and the obedience of fools’ … The fiasco of blocking two Liberal Democrats … surely falls into this category”.

He said that the principle of disqualification should be reviewed by the Electoral Commission and added that it,

“should only apply for deliberate conflicts of interest”.

At the same time, a UKIP MEP put a complaint into the police about corrupt practices against that sitting Member. The complaint was duly investigated by the police and no further proceedings ensued.

Arising out of this controversy, the Constitutional and Legislative Affairs Committee, at the invitation of the First Minister, considered the issue under the chairmanship of David Melding the Deputy Presiding Officer, took evidence and obtained the legal opinion of the Counsel General. The Welsh Government’s attitude, as filed with the committee, was summarised in a memorandum attached to the report. In particular, it stated:

“The disqualifications are long and complex, and individuals may inadvertently fall foul (as two did in 2011) of apparently unjustified disqualifications … The complex nature of some of the disqualifications may require prospective candidates to seek legal advice in order to determine whether they are caught by the particular disqualification”.

The Welsh Government also said:

“However, we see the current requirements as a clear disincentive to candidates because a person must resign their post or employment in order to stand as a candidate and, if unsuccessful in that election, reinstatement would depend on the terms and conditions of employment that apply ... It is our view that the current structures for excluding persons from Assembly membership do not properly reflect their raison d’être. The disqualifications purport to prevent AMs from holding offices or employments deemed to interfere with the proper fulfilment with their duties. But it is our view that the rules pertaining to disqualifications are increasingly unfit for purpose to the point that, in some instances, they pose a disincentive to potential candidates and thus fall foul of the logic of empowering democratic participation”.

I may have said rude things about the Welsh Government in the past but I agree with every sentence that is expressed there.

The committee’s report, published in the middle of July 2014, made a number of recommendations which these amendments are designed to reflect. In particular, the committee felt that the disqualifications should be spelt out without reference to the legislation dealing with Westminster elections, hence the drafting of proposed new subsection (2) in Amendment 15. Since I have been asked why the various judicial offices are named, it is because as currently drafted the Government of Wales Act 2006 refers to disqualifications of the judicial officers mentioned in the schedule to the House of Commons Disqualification Act 1975, which cover, for example, the judges of the Court of Session in Scotland and judges of Northern Ireland. One would not expect them to be applying to be candidates to the Welsh Assembly in any event. As the committee recommended, I have spelt out those judicial offices in the amendment.

[Lord Elystan-Morgan (CB)]

May I make a very small, pettifogging legal point? As I understand it, there is no such judicial animal as a county court judge, and there has not been one since 1971. A circuit judge has practically all the powers of a High Court judge as the noble Lord knows, and those apply both to civil and to criminal matters. I think that I am right in saying that there has been no county court judge since that time.

[Lord Thomas of Gresford]

I am very grateful for that assistance from the noble Lord, because I wondered why it would be in the 1975 Act as a disqualification for standing for Parliament. Since this is Committee stage, amendments can always be made on Report to correct that. The nub of the matter is in proposed new subsection (5) in Amendment 15. This adds two additional subsections to Section 16 of the Government of Wales Act 2006. The committee put forward two ways of dealing with the issue: by requiring Assembly Members to resign a disqualifying office before taking the oath or affirmation of allegiance; or by deeming that an Assembly Member had resigned a disqualifying post at the moment that he was elected. It recommended the former course. It also suggested that the Law Commission might consider these issues as part of a wider review across all UK legislatures.

Kicking the issue into the long grass of the Law Commission is unnecessary. Devolution, as we have heard today, has not and almost certainly will not follow precisely the same pattern across the UK, and any short-term attempt to reach conformity is otiose. Such a course might delay changes welcomed by all sides beyond the 2016 election. The parliamentary processes here are surely robust enough to choose the proper mechanism. Amendment 15 suggests neither of the two methods proposed by the committee but follows the drafting of Clause 3 of this Bill, which deals with disqualification of persons elected to the House of Commons. It introduces an eight-day period following the election within which the Assembly Member can resign the post that would otherwise disqualify him.

The committee also accepted the advice of the Counsel General in relation to the power of the Assembly to disregard the disqualification. Your Lordships will recall that that was the process followed in relation to the Liberal Democrat Members. Paragraph 89 of the committee’s report states that Mr Bush thought that the ability of Assembly Members to relieve somebody of a disqualification was a “very unsound procedure”. Mr Bush added that,

“looking at it from general principles, if you have a clear and understandable list of disqualifications that are well publicised in advance and give people the opportunity to think carefully about them before they take the oath of allegiance, the rationale and the practical reason for having that power to disapply the disqualification seems to me to cease. Then, all of the arguments are in favour of getting rid of it, because, undoubtedly, it is constitutionally a very strange procedure indeed”.

I agree. Consequently, my second amendment would remove the power of the Assembly to lift the disqualification if it exists.

I appreciate that further amendments to the Bill and to the relevant order may be necessary if my amendment is successful, but I think that at Committee stage that suffices.

--- Later in debate ---

Moved by

[Lord Elystan-Morgan]

18B: After Clause 3, insert the following new Clause—
“Welsh Parliament (Senedd Cymru)
The National Assembly for Wales (Cynulliad Cenedlaethol Cymru) shall henceforth be known as the Welsh Parliament (Senedd Cymru).”

[Lord Elystan-Morgan]

My Lords, it is late at night. The amendment I move would have been tendered in a most tentative and humble way, which is the way that I allow the House at any time to consider anything from my direction. At the moment the name of the Assembly is the National Assembly for Wales, Cynulliad Cenedlaethol Cymru. “Assembly” is the sort of term that you can use to describe a whole range of different bodies, some of them very distinguished, some of them less so. It is all-embracing. I doubt very much whether the ordinary citizen is greatly affected or impressed by it. One can say that the title of the Northern Ireland body is again “Assembly”. However, without raising controversial matters at this late hour, one is well appreciative of the circumstances in which that body came into being. A line was drawn by Lloyd George on a map—actually a right angle. According to his memoirs, he thought that it created a wholly unviable entity. He suggested that he did not want to give the impression that it was a parliament. It does not say in so many words that that is why the title “Assembly” was chosen, but it seems reasonable to infer that that may well have been the case.

--- Later in debate ---

[Baroness Randerson]

My Lords, I thank the noble Lord, Lord Elystan-Morgan, for his amendment, which seeks to change the name of the National Assembly for Wales to the Welsh Parliament. Clause 4 of the Bill does amend the statutory title of the Welsh Assembly Government to Welsh Government. Since law-making powers were devolved to the Assembly in 2011, the Government have almost universally been referred to simply as the Welsh Government. Our clause reflects that reality. The same is not the case for the National Assembly for Wales, which is still commonly known as the National Assembly, the Welsh Assembly or the Assembly.

My view is that, once the Assembly has the powers of a Parliament, it should be called one. At the moment that is not the case. It is, however, worth pointing out that there are several national legislatures called assemblies. There is the Assemblée Nationale in France, the Quebec Assembly and the South African Assembly. So there is a swap-over in the use of the words.

Honourable Members will be aware that the Silk commission recommended that if the Assembly wishes to change its name to the Welsh Parliament, this should be respected. The noble Lord’s amendment goes further than Silk by simply changing the name of the Assembly in primary legislation—crucially, as the noble Lord, Lord Wigley, has said, without the Assembly itself what it feels about the issue. I think it is essential that such a change should not take place without consulting the Assembly. I therefore urge the noble Lord to withdraw his amendment.

[Lord Elystan-Morgan]

My Lords, I certainly shall withdraw my amendment. There is, however, an irrefutable logic in this situation. Where the name of the building is a Senedd, a person who is a member will be asked, “What are you doing down there in the Bay?” and he will say, “Rwy’n Aelod o’r Senedd”—“I am a Member of the Parliament”—and yet the name “Parliament” is not to be used formally. Anyway, this is a debate for another day, and I beg leave to withdraw the amendment.

Amendment 18B withdrawn.

Wales Bill

Lord Elystan-Morgan Excerpts

Monday 13th October 2014 Lords Chamber

To deny fair votes to the people of Wales while allowing a proportional system to continue in both Scotland and Northern Ireland is illogical and perverse and would result in a Labour Government in Wales in perpetuity. To ensure the continuation of proportional results, Wales needs an Assembly election in 2016 in which 40 Members are elected in constituencies and a further 40 are elected on regional lists. Further, as the legislation to cut the number of Welsh MPs is enacted and takes effect from 2018, Wales needs a 100-Member Assembly elected by STV, so ensuring an even fairer proportional result in the Assembly elections of 2021.

[Lord Elystan-Morgan (CB)]

My Lords, I wish to speak to Amendment 6 only, which I believe to be a model of draftsmanship, put together in such a way as to bring about as wide and substantial a coalition in favour of a principle as one can imagine.

I believe with retrospect that there are two essential questions facing the House. First, do noble Lords in their heart of hearts believe for a moment that the Welsh Assembly can conduct its important duties, including scrutiny of legislation in particular, on a basis of 60 Members? Secondly, if noble Lords do not—and I suspect that practically every Member of the House can see the force of that point—what are we prepared to do about it? Those are two very simple but, I believe, crushingly relevant questions.

The facts have already been set out very clearly. Scotland has 129 Members; Northern Ireland has 108; Wales has 60. Of course, even more important than that is the fact that only 42 Members in Wales are available to scrutinise legislation. In the case of Scotland there are 113; in the case of Northern Ireland, I am not entirely sure whether it is 90 or 92—I think it may be 92. In the case of the House of Commons, it is 522. However, the issue is not really how many Members you have in relation to the population. There may well be a proper argument in that respect that is deployed later; that is not the issue at the moment. The issue is the minimum critical mass. If you fall below that and fail to constitute a critical mass, you are not a legislature; you are a mock parliament and no legislature at all.

That has to be remembered against this background. It is a single cameral House. I am not for a moment arguing that we should have a second House, which might be very interesting to dissertate on some day. Be that as it may, we have plenty to worry about at the moment in this regard. It is a single cameral House. The scrutiny of legislation in Wales occurs in the Assembly or does not occur at all. That is the point.

This House does its work magnificently as a scrutinising body. Sometimes, we are given more to scrutinise than we should be. I feel that the House of Commons sends huge pieces of undigested legislation through which almost makes a mockery of the constitutional situation, but that is another story altogether.

Again, one has to remember the point already made by one or two Members. When we think of a critical mass, we should think not just of a number but of whether that critical mass is there, in the main, in the Opposition. If it is not—even if you increase the membership to, say, 80 or 100—if you have a strong coalition between party A and party B that is responsible for, let us say, 70% of the membership, you still fail to have a critical mass where it counts.

We are not talking about mathematical representation; nor, with the greatest respect to the noble Baroness, Lady Humphreys—with whose address I wholeheartedly agree in the main—do I honestly believe that it is a matter of trade-off with local government or the House of Commons. If I remember rightly, the noble Baroness was not a Member of the House when this matter was discussed three or four years ago, when the proposal was carried to reduce the number of Welsh Members of Parliament from 40 to 30. I do not want to spoil the splendid feeling of unanimity that we have had up to now, at any rate on this issue, but the Liberal Democrats could have done better than they did on that occasion. We had a vote to give the Isle of Wight two seats. Not one member of the Liberal Democrats spoke on the issue of Wales. The real condemnation came not from the Opposition but from the noble Viscount, Lord Tenby, the grandson of David Lloyd George, who said, “My grandfather would not be turning over in his grave; he would have been in the Dwyfor by now”. That says everything.

The only other thing I have to say about that, which is on the face of it an attractive argument but possibly a dangerous course to take, is that in 1993 a proposal was before the House of Commons to reduce the number of seats in Wales—indeed, I think, over the whole country. The Home Secretary at the time was Mr Kenneth Clarke. He said, “No, as far as Wales is concerned, I am not having it. Wales is a land and nation with characteristics of its own and circumstances which are so special and so unique that I will make it an exception”. I do not believe that Wales is any less of an exception than it was in 1993.

The question then is: what should the number be? The Electoral Reform Society, to which the noble Baroness, Lady Humphreys, has properly referred, has examined 42 countries which are comparable with Wales in various ways. It has come to the conclusion, taking all things into account, that the average number for such sub-parliaments as those countries have—perhaps I do them less than justice in calling them sub-parliaments, but that is the term used by the Electoral Reform Society—is about 100. It also concludes in relation to Wales that the ideal figure would be of the order of 100.

The noble Lord, Lord Richard, who has placed Wales eternally in his debt by his report of 2004, mentioned the fact that the committee animadverted on the question of whether the number should be 80 and said that it should, although it was not asked specifically to deal with the matter, nor did it deal with it scientifically or specifically. Nevertheless, it was a measured judgment. Now then: if it was 80 in 2004, bearing in mind the huge changes that have occurred since then, what would it be worth today? I hope that I do not take unfair advantage of the noble Lord, Lord Richard—I certainly would not wish to nor could I do that; he is well able to make his points for himself. If 80 was the genuine estimate that was appropriate in 2004, surely by today one should be speaking of 100.

I would speak myself of 120. Why? If you regard the curve of the development as a constitutional entity of the Welsh Assembly in the 15 or 16 years of its existence, one does not have to exercise a great deal of imagination to see where it might be in a few years’ time. The idea of aiming for 120 is not chimerical, irresponsible or populist—certainly not populist—in any way. It projects what one hopes and expects for in relation to Wales. I would be very surprised if the powers that have been given to Wales do not over the next few years amply justify that.

If we were holding this debate a month or two ago, I would still be making that point, but where do the promises and undertakings that have been showered on the people of Scotland, and the people of Wales and Northern Ireland, about devolution—those promises were falling like autumn leaves in Vallombrosa, as the quotation goes—bring us? If a quarter of what was promised solemnly will in fact be done, 120 could well be justified as the membership. However, it is not a question of numbers. It is more a question of prejudice: the vast storm of prejudice that anybody who argues for an increased number will have to face. That has to be done with courage and integrity. Edmund Burke famously said that for evil to triumph, it is necessary only for men of good will to do nothing. If you wish the Welsh Assembly to fail in its main purpose of being a legislature, all you have to do about the membership is nothing.

[Lord Anderson of Swansea (Lab)]

My Lords, the noble Lord, Lord Elystan-Morgan, made his proposal for 120. I thought that one was reaching the point of, “Any advance on 80? Any advance on 100? Any advance on 120?”. Where does one stop?

[Lord Elystan-Morgan]

I am deeply grateful to my friend for giving way. Perhaps I may make a point that I forgot to make. The real case for 120 is that it is very simple. It is exactly double the number now, and you can double both constituencies—the individual constituencies and the regional ones.

--- Later in debate ---

[Baroness Randerson]

The noble Lord makes an excellent point and anticipates part of my speech. There is an issue of ensuring that if the Assembly is to have more Members, and that is to have broad public support, it needs to be done either when there is a reduction in the number of Welsh MPs, as was referred to earlier, or there is a reorganisation of local government in Wales, when I anticipate that there would be a reduction in the number of councillors.

In the mean time, there is an important public debate to be had and an argument to be made by civil society. I am aware that a large number of organisations within civil society in Wales share the views that noble Lords have expressed today. There is an engagement with politics that these things should be done by civil society in order to ensure that any arguments on them are put forward with force and relevance for the people of Wales.

I am grateful to the noble Lords whose amendments have enabled this debate. Amendments 6, 9 and 11, and Amendment 14 in the name of the noble Lord, Lord Anderson, have formed a useful group and theme. Amendments 6 and 9 require the Secretary of State to introduce a Bill to increase the size of the Assembly to at least 80 Members—in the case of Amendment 6, from 2016. Amendment 9 provides that responsibility for deciding the number of Assembly Members should be devolved to the Assembly. Any subsequent change to the number of Members must be approved by a two-thirds majority.

We recognise in government the legitimate concerns about whether the Assembly has sufficient numbers to provide Ministers and the scrutiny that government through the committee system in the Assembly requires. This has been discussed since at least the time of the Richard commission and I pay tribute to the noble Lord, Lord Richard, on this issue. More recently, the Silk commission recommended in its second report increasing the number of Assembly Members, although it did not go into the detail of suggesting a number.

[Lord Elystan-Morgan]

The Silk commission was not allowed to consider the matter. With rather restrained mischief it made the point that there should be an increase. It produced this memorable line, which introduces a point that has not been considered in this debate. It said: good scrutiny leads to good legislation and good legislation pays for itself.

[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.

Wales Bill

Lord Elystan-Morgan Excerpts

Tuesday 22nd July 2014 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, this Bill well deserves the support that is obvious for it in all parts of the House, in the main because it is a Bill that takes Wales further along the road to home rule.

Many Members have meandered down memory lane in connection with the events of past decades. They reminded me of the feelings that I have, and always have had since I was a young boy, about the attainment of a Welsh Parliament. It has been something of an obsession for me, and I make no apology for that. For many years—years of disappointment and frustration—it seemed like a distant dream, which would probably never be achieved.

All that changed in 1964, with the establishment of the office of Secretary of State for Wales. Before then it seemed that nothing in the way of substantial constitutional development was possible: after that, everything has been possible—that is, in so far as it is the will and the determination of the Welsh people to achieve it.

To some extent, the devolution in the 1997 referendum, and in statute thereafter, was not classic devolution at all, because it did not, in the main, entail the transfer of any substantial new powers to Wales. The powers had already been transferred, but they had been transferred to Welsh Ministers. What it did bring about, of course, was a significant transfer of power from Ministers to the people of Wales. It meant that, for the first time, one had a body elected by the people of Wales, meeting on the soil of Wales, and with a moral and legal authority to speak for Wales. Obviously, with the greatest respect, that authority had to be on a broader basis than that which could be enjoyed by any Minister of the Crown as such.

In the referendum of 2011 we had a very considerable devolution. That created, essentially, a Welsh Parliament —a lawmaking Parliament with wide legislative powers, falling into 20 separate broad categories. That presents a massive challenge. This Parliament of Westminster has had many centuries to evolve slowly, deliberately and securely, and to mould its traditions to meet the needs of various ages. We in Wales will be expected to achieve a great deal of that process within a very short compass of time.

That must always be remembered in the context of what is now a new body. It is the Assembly, but it is essentially a Welsh Parliament. I not only recognise, but am charmed by the fact, that it should be called the Senedd. I believe that it was the noble and learned Lord, Lord Morris, who set the precedent with his Bill in the 1970s, in which the name of the body was the Senedd.

[Lord Thomas of Gresford]

My Lords, I know that the Bill presented by Lord Hooson in 1967 contained the name Senedd; I drafted it.

[Lord Elystan-Morgan]

It did indeed. A few weeks ago I had the great honour of contributing a chapter on the political life of the late Emlyn Hooson, in which I made that very point.

There is therefore a respectable precedent for the concept of a Senedd. The word may, of course, have embarrassing connotations. As noble Lords will know, it comes from the Latin word “senex”, meaning an old man. The same stem is in the word “senile”—and also in the word “senior”. But—and I speak with some fervour and commitment in this matter—there is a great deal to be said for old men in politics.

The generality of the Bill is very much in the track of everything that has happened in the past 40 years, and especially in the past 17 years, since the referendum of 1997. I have little doubt that it shows that the curve of expectations and the curve of confidence that the Welsh people have in their own destiny has nobly sharpened during that time. I think that it will continue to do so.

It is in that context, therefore, that we look not only at what the Bill contains, but at what it does not mention. The main part of it, as we all appreciate, deals with the varied rate of tax that will be within the jurisdiction of the Welsh Assembly. I have a canny approach to such a situation, perhaps because I am a Cardiganshire man, and in Cardiganshire we have the tradition of being extremely careful in relation to money—a very laudable trait, if I may say so.

Of course the proposal has its attractions. Of course we will never be a complete and full home rule parliament unless we take up such responsibilities. But after all, we are being asked to invest in a future that is very uncertain. We are being asked to buy stock, as it were, in a new enterprise—but the prospectus is very nebulous. What do I mean by that? I refer, first, to the lock-step. That could dominate the whole situation. With a lock-step imposed on the three bands of taxation, it might be difficult to impose a progressive tax. The Silk commission—I too applaud the efforts of people like the noble Lord, Lord Bourne, in this context—was strongly for that. It argued the case to the point where there was no answer to it. Nevertheless—due, no doubt, to influences from beyond the Tweed, and for reasons connected with Scotland—there is dubiety at this moment. Until that dubiety is resolved, we cannot really begin to think about the question of whether Wales should take up these powers.

There is also the question of Barnett. In passing, may I say that we hope that the noble Lord, Lord Barnett, will soon be restored to full health in this place; he is a gentleman of remarkable qualities, and I have enjoyed his friendship for more than 40 years. However, the losses under the Barnett formula have been enormous, as the noble Lord, Lord Wigley, has already proved. The commission chaired by Gerry Holtham made it abundantly clear that every year, Wales loses—or did lose when the report was published, three years ago—some £300 million. As the economy improves, that loss becomes greater. It is a disgraceful situation, for which Governments of both colours over the past 30 years are responsible, because they have been unwilling to look into the inequity of the arrangement. A small country like Wales simply cannot afford this massive haemorrhaging of assets, which will continue unless something drastic and radical is done about it.

As for the main proposal in the Bill—yes, there are possibilities, but there are also dangers. There are matters that have to be spelt out. I cannot for a moment see the Welsh people accepting it until they have some sort of reasonable guarantee that we will be no worse off if we take up those options. Hazlitt said that there are only two certainties in life: death and taxes. As for death, this House may very well do something about its certainty, but as for taxes, they will remain exactly the same, and for ever.

Of course it will be difficult for a referendum to be carried if there is still a tinge of uncertainty. Gerry Holtham said to the Welsh Affairs Committee that the referendum is very losable unless those guarantees are in place.

I turn to two other matters that are not in the Bill. One is the membership of the Assembly. I do not think that I can overemphasise that feature. The noble Baroness, Lady Humphreys, has already spelt out the case, a case set out excellently in the publication by the Electoral Reform Society Wales. The facts, briefly, are these. In Scotland, there are 128 Members of the Scottish Parliament; in Northern Ireland, there are 108 Members of the Assembly; in Wales, there are 60. Once you take out the Ministers, Deputy Ministers and Officers of those various Houses, you have this result: in the House of Commons, 525 Back-Benchers; in Scotland, 113 Back-Benchers; in Northern Ireland, 92 Back-Benchers; in Wales, 42 Back-Benchers. That is well below the minimum number that can form a reasonable critical mass to carry out that function.

Edmund Burke said that, for evil to triumph, it is necessary only for men of good will to do nothing. If anyone wants to bring about the evil of destroying the very future of the Welsh Assembly, and everything that is possible within its grasp, all you have to do is to do nothing in relation to that membership. It is simply impossible for it to carry on with that small number. The Electoral Reform Society has argued strongly the case for 100 Members. It has carried out surveys in all parts of the world and found that that is about the average for what might be called a sub-parliament of this nature.

For myself, I would ask people to exercise a bit of faith and imagination, to consider how that rising curve of expectation that we have seen in Welsh constitutional development over the past 15 years might continue, and to say that 120 might not be impossible. The beauty of the figure of 120 is that it is very simple: you simply double the number of Members that you have at present.

I turn briefly to the question of reserved powers. It is simply ludicrous that if a person wants to find out whether or not a particular function has been devolved to Wales, he or she might have to look at 600, 700 or 800 little pieces of constitutional confetti just to find out whether that matter has been transferred. That is no way to run a parliament. Indeed, by placing the situation on the basis of reserved powers, we place Wales in exactly the same position as Northern Ireland and Scotland. That would also save a whole generation of Welsh lawyers from acute constitutional neurosis.

Wales stands at a point in time where there are many challenges, many dangers and many possibilities. This House must have heard the quote from the Bard of Avon very often:

“There is a tide in the affairs of men

Which, taken at the flood, leads on to fortune;

Omitted, all the voyage of their life

Is bound in shallows and in miseries”.

There is a tide in the life of a small nation, as well, and we must do all we can to see that we do not miss that fateful opportunity.

--- Later in debate ---

[Baroness Gale (Lab)]

My Lords, it is a great delight and a pleasure to speak on behalf of the Opposition in this debate on the Wales Bill as we take our further steps on this journey of devolution which—as noble Lords who have taken part in today’s debate have outlined—we have been travelling along for many a long year. Many of those who have taken part in this journey—and some started way before I did, including my noble and learned friend Lord Morris and the noble Lord, Lord Elystan-Morgan—have shared with us their breadth of experience today. It has been said that we will have an exciting time as the Bill goes through, and I would not be surprised if we do. We have set the scene today for that.

We have had a good debate that has shown the breadth of experience that we have in Wales on all matters of devolution, and I thank all noble Lords who have taken part. I also thank the Minister for opening the debate and explaining so clearly what the Bill is about and the Government’s view on it. This is a small but important Bill. Its measures are important for Wales and devolution alike, and I am glad that today’s debate has provided testimony to that. However, we would like the Minister to answer a few points. As noble Lords have mentioned, the Bill has three parts: electoral arrangements, tax devolution and borrowing powers. We have five main points to ask the Minister on those areas and about how we can work to enhance the Bill, which we will want to examine further in Committee and beyond.

Labour’s five main asks are: first, that the Government accept the basic principle that Assembly elections are a matter for the Assembly itself—I will speak on that later; secondly, that the Minister explain why the Government are acting against their own and other evidence by removing the ban on dual candidacy; thirdly, that the Government make clear their position on tax competition and on whether, given recent changes in the Wales Office, for example, they still wish to start tax competition between the nations of the UK; fourthly, that the Minister explain how the Government arrived at the limit on capital borrowing and how that compares with the limit in Scotland; and, finally, that the Government consider enhancing the Wales Bill to include details of the next steps towards a model of reserved powers. I am sure that the Minister will deal with those points as we make progress during the Bill’s passage.

On Assembly elections, the Government have championed the greater responsibility that the Wales Bill will give to the Welsh Government. Yet, the very first part of the Bill is a change to Assembly elections that is being made through this Parliament and not through the Welsh Assembly. Many noble Lords have spoken on that, including the noble Lord, Lord Bourne, who gave his clear views; the noble Baroness, Lady Humphreys; and the noble Lord, Lord Thomas—who warned me this morning that he would attack the Welsh Government. He certainly lived up to that in his contribution. The noble Lord, Lord Wigley, also spoke about that issue. It was interesting that he also talked about the gender balance. I have previously heard the noble Lord, Lord Elystan-Morgan, say that it is impossible to carry on with the low numbers in the Assembly. In a previous debate he talked about 90 Members, but now he has mentioned 120. I was very interested that the noble Lord, Lord Roberts of Llandudno, said that we should have not a ban but the most outstanding candidates. I hope that we have outstanding candidates in Wales, whatever position they take and whatever the list or constituency. I have no doubt that we do, in all parties.

That poses a question. Why do the Government not allow the Welsh Assembly to set the parameters of their own election system? Why should the UK Parliament dictate to the Welsh Assembly what election method should be used? A number of noble Lords raised that issue in the debate. The Welsh Government believe that they should have the responsibility for this. In their response to the Wales Office Green Paper, they said that,

“no change to the Assembly’s current electoral arrangements should be made without the Assembly’s consent. This is the fundamental constitutional principle in issue”.

We agree with that fundamental principle, and it is disappointing that the UK Government do not share that view. We will continue to make what should be an uncontentious point—that Assembly elections should be a matter for the Assembly. We strongly believe that these matters should be decided in Wales by the Welsh Assembly.

A number of Members had views on dual candidacy. We think that the Government should explain why they are acting against their own evidence, and that of the Bevan Foundation, in removing the ban. Labour shares the wider concerns of the public that removing the ban is anti-democratic. Allowing losing candidates effectively to get elected by the back door is clearly not what voters want. At a time when voter engagement is low, having a system that allows losing candidates to be elected elsewhere will not instil confidence in the system.

It is not surprising that two significant surveys on dual candidacy found a clear majority in favour of the ban. One was the Government’s own consultation, the other a Bevan Foundation study. According to the Government’s consultation, a small majority was in favour of the ban on dual candidacy. The report states:

“In March 2013 the Secretary of State … announced the Government’s intention to remove the prohibition on dual candidacy at Assembly elections. A small majority of respondents to the consultation were in favour of retaining the ban, but the Government does not think that a strong enough case for this was made in the consultation responses”.

Why put the question, if the Government then ignore the answers?

The Explanatory Notes to the Wales Bill suggest that this change will benefit smaller parties in Wales:

“studies by the Electoral Commission and others … have demonstrated that the prohibition has a disproportionate impact on smaller parties who have a smaller pool of potential candidates to draw upon”.

That quote is from the Government’s own papers. We are changing the law because some parties cannot find enough candidates in Wales to field at election time. The only way round this is to allow them to stand in the constituency and in the list. Giving a helping hand to smaller parties is not a good enough reason for a change, as proposed in the Bill. Will the Minister explain why the Government are ignoring their own evidence by pressing ahead with what we believe is an anti-democratic change? Many noble Lords spoke about this and I know that there are strong feelings on both sides. We intend to pursue this in Committee, and I am sure that there will be further arguments and debate on it.

My noble friend Lady Morgan outlined our views on income taxation. As she said, it is probably the most controversial part of the Bill. We believe that the proposals outlined in the Bill on income tax devolution are not a priority and that there would have to be a referendum on it if it were brought about in the Welsh Assembly. Many noble Lords recalled today how we started on this journey. In 1979, no counties in Wales voted in favour. We made a progression as the years went by, after we recovered from that awful campaign— I think that both sides could use that term.

[Lord Elystan-Morgan]

I make one small correction: Cardiganshire was an exception. It did vote for it.

[Baroness Gale]

I thank the noble Lord for his intervention. He may be able to pull me up on other things. I know that he has a fantastic memory and experience in this field.

We believe that we should have a referendum on income taxation. Many noble Lords referred to the 1997 referendum. I worked hard on it, as did a number of other noble Lords. The Labour Party policy then was not like that for Scotland because Wales is not a mirror image of Scotland. We do not do things just because Scotland has done it. It might not suit our country. However, we do what is best for Wales. I am sure that others would agree that we probably would not have won the 1997 referendum if there had been a question on income tax in it. It was so close that we could not have included that. We have now progressed further and we will discuss it further. We agree with the Government that a referendum is needed on this. However, we support the other taxes—the landfill tax and the stamp duty land tax—as a means to give the Welsh Government borrowing powers. As my noble friend indicated, we will want to look at this again in Committee.

My noble friend Lady Morgan spoke about the borrowing limits and a number of other noble Lords have also referred to them. I have no doubt that we will debate them further as we progress through the course of the Bill.

It was interesting that many noble Lords felt that we should have the reserved powers. My noble friend Lord Rowlands said that he wished to explore this in Committee, and I know that we will. The noble Lord, Lord Wigley, my noble and learned friend Lord Morris and my noble friend Lord Howarth spoke about them, as did others. We want to amend the Bill to set in motion Wales’s move to a model of reserved powers.

The former Secretary of State was opposed to reserved powers. As a result, the Attorney-General referred Welsh legislation to the Supreme Court, at great cost to the taxpayer. The recent outright rejection of the UK Government’s challenge to the agricultural wages Bill by the Supreme Court made the case for reserved powers even stronger. With such a decisive ruling, we will once again be looking at ways in which we can persuade the Government to use this Bill to move to reserved powers. However, the next Labour Government will legislate to give Wales reserved powers. I look forward to what the Minister has to say on these matters, and I am sure that we will be discussing them at later stages.

This has been a very important debate and I am grateful for the opportunity to speak to the measures in the Bill. I hope that the Minister will be able to address the concerns that I have raised. We will continue to raise these concerns in Committee through to Third Reading in order to improve the Bill. We support a number of measures in the Bill but we believe that it can be improved. We will be tabling amendments which we hope will make the Bill more beneficial for the people of Wales.

I look forward to our further debates in Committee and at later stages. I am sure that we will have even more interesting and exciting debates and that we will conduct them in the spirit of today’s debate. I look forward to the following stages of the Bill and I now look forward to what the Minister has to say.

Northern Ireland: On-the-runs

Lord Elystan-Morgan Excerpts

Tuesday 8th April 2014 Lords Chamber

[Baroness Randerson]

My Lords, government officials will of course appear before the inquiry and will give evidence. Others will be invited to do so. It is entirely up to Lady Justice Hallett how she reads her remit in that regard, from whom she will request evidence and how far she takes the scope of her inquiry, but, for the reasons to which I have already referred, she is asked to report by the end of June at the latest.

[Lord Elystan-Morgan (CB)]

My Lords, I raise a matter which does not seek to touch on the merits or the demerits of the scheme: a purely technical, legal matter. Is any person who has received a letter as described in the Question in any way protected from the law of citizen’s arrest, or would it in fact need legislation to produce such a result?

[Baroness Randerson]

The intention of the letters was to present a statement of fact at a point in time. As such, they did not grant immunity, exemption or amnesty. To do that would have required legislation.

Wales: Silk Report

Lord Elystan-Morgan Excerpts

Tuesday 21st January 2014 Grand Committee

[Lord Elystan-Morgan (CB)]

My Lords, I join the tributes so genuinely and deservedly paid to our late friend Wyn Roberts. I, too, congratulate the noble Lord, Lord Bourne of Aberystwyth. How sweet the name of Aberystwyth sounds when it is not in the context of disaster from the sea. I am very grateful to him for having raised this matter.

The Silk commission was asked to report on two matters, as we remember. The first was the fiscal elements and how they could be reviewed and improved upon. The second was on non-fiscal matters and how greater powers could be deployed to the Welsh Assembly. It puzzled me, and still puzzles me, why they were in that order. Surely the first thing to do is to decide what functions a Government have and the second is how they pay for those functions. Be that as it may.

Perhaps I may digress for a few moments and speak not of Silk 1 but of Silk 2. In so doing, I project my remarks to the noble Lord, Lord Bourne, who, I know, will assiduously and religiously report on these matters to his colleagues in Silk. First, what is in a name? The answer is: a great deal when you are dealing with constitutional status. It may very well be that the term “Assembly” was in no way inappropriate when that body was set up in 1998, but nowadays I think that it is a misnomer. Following the referendum of 2011, we are three-quarters of the way to being a full home-rule Parliament. I accept the point made by the noble Lord, Lord Thomas of Gresford, that the residium may very well keep us back from that full status in the field of fiscal responsibility, but that is another matter. Certainly, by now it would be right and proper for Wales, as a legislating body, to have a parliament in exactly the same way as Scotland has.

Secondly, the challenges facing that body are immense. I believe and am confident that in Cardiff Bay there are people of spirit, ability, vision and determination, but it will be a very difficult task for that body within a few short years—that is all that it has—to build up the expertise that this House has had in the review and survey of legislation over many centuries. It will not be done overnight. It also means building up a cadre of civil servants with the expertise and, indeed, the distinguished qualifications for such a massive task.

However, above all there is the question of Members. We have 60 Members. The Richard report, which after all did not envisage a body as authoritative as this, talked of something much more modest and recommended 80. It seems that the minimum that we can do with is something of the order of 100. Let us call it 120 as that makes it very simple—it exactly doubles the representation in each constituency. One can argue as to which should be first past the post and how others should be elected, but that is not the issue for the moment. Without that, there is no possibility at all of development for the Welsh body in Cardiff Bay. If you want it to fail, all you have to do is nothing.

The third matter is one that I and many of us here have raised at various times—that is, the bulk transfer of authority to Wales, subject to specific exceptions, in the same way as is the case with Northern Ireland and Scotland. A Welsh lawyer, be he a solicitor or a barrister, has to chase through a labyrinth of hundreds of small matters to find out exactly what has or has not been transferred. In order to save Welsh lawyers from constitutional neurosis, there is an overwhelming case for such a transfer.

Lastly is the question of income tax variation. I respectfully disagree, not for the first time and no doubt in life, with the noble Lord, Lord Thomas of Gresford. If the Welsh people opt for these powers, with Barnett in its unreconstructed form we will be doing our nation a very great disservice. Why is that? At the moment, we lose something of the order of £350 million to £400 million each year on the Barnett formula. That is accepted. Nobody will stand up and say that it must be justified and kept. Mrs Gillan, our Secretary of State, said its time was up and everybody agrees, yet Her Majesty’s Government, twin-headed as they are, said, “We know that you are being cheated out of these monies year in and year out, but we are perfectly content to maintain that system”. That is entirely wrong. Therefore, Barnett has to be put right before we can contemplate a referendum.

Wales: Commission on Devolution in Wales

Lord Elystan-Morgan Excerpts

Monday 18th November 2013 Lords Chamber

[Baroness Randerson]

The noble Lord makes an excellent point; I, too, was a councillor a long time ago. We should bear in the mind that councils raise a significant amount of funding via what we nowadays call council tax. Therefore, their level of borrowing depends on their level of tax receipts. The UK Treasury is proposing exactly the same model for the Welsh Government.

[Lord Elystan-Morgan (CB)]

My Lords, while applauding those impactive and genuine matters of devolutionary significance which are contained in the Statement, may I tempt the Minister to a wider consideration? Does she not agree that in so far as fundamental constitutional changes in the United Kingdom are concerned they should be planned and administered on a comprehensive, and not a piecemeal or haphazard, basis? In other words, once the Scottish people have given their verdict on the issue of independence, a powerful body of the wise, the good and the great should be set up to consider, first, the relationship of the House of Commons to the House of Lords and vice versa and, secondly, the relationship of Westminster government to devolved authorities, whether they be two or three in number. Does she agree that that is the only way in which we can avoid the humiliating debacle of what was called an attempt to reform this place two years ago?

[Baroness Randerson]

The noble Lord maintains a keen interest in constitutional issues and I have a similar interest in them—I do not always share the same prescription or viewpoint, but I have a similar interest. It is important that once the changes that we have proposed today have worked their way into legislation and the referendum on Scottish independence is dealt with, whatever the outcome, those people who look at constitutional issues start looking forward again. I have always espoused this rather neat and tidy approach to the British constitution, but that is not the way in which it has developed.

Wales: Financial Powers

Lord Elystan-Morgan Excerpts

Monday 4th November 2013 Lords Chamber

[Baroness Randerson]

I thank the noble Baroness for her question. Regarding the aggregates levy, the noble Baroness will recall that the Silk commission referred to issues associated with that in relation to the European Union and permission for that. Therefore, until that is resolved, it is not appropriate that that goes forward. On long-haul air passenger duty, the Government are not yet persuaded of the case, but I urge noble Lords in general to await the full response in relation to the reasoning behind these recommendations to ensure that there is a full picture, which will come in the forthcoming weeks.

[Lord Elystan-Morgan (CB)]

My Lords, I would like to ask a general question with regard to the transfer of powers to Scotland, Northern Ireland and Wales. As the Minister will know, in relation to Scotland and Northern Ireland, transfer was on an all-embracing basis subject to a few specific clear exceptions. With Wales, the situation is very different. It is all piecemeal, sometimes involving hundreds of minor transfers over the years. Will the Government look kindly, therefore, upon a proposal that the situation in Wales should equate to that of Scotland and Northern Ireland, thereby bringing cohesion and simplicity and saving a whole generation of Welsh lawyers from constitutional neurosis?

[Baroness Randerson]

I am aware of the noble Lord’s continued interest in this issue. I am aware, too, that this point has been raised by a number of people. But I remind noble Lords that this is an issue for part two of the Silk commission, and something on which it is already working. I remind noble Lords that the remit of the commission was to look at modifications to the devolution settlement.

Empowerment and Responsibility: Financial Powers to Strengthen Wales

Lord Elystan-Morgan Excerpts

Tuesday 11th December 2012 Grand Committee

[Lord Elystan-Morgan]

My Lords, I, too, congratulate my noble friend Lord Wigley on achieving this debate. Few people in the past 100 years have contributed as honourably and richly to the cause of Welsh devolution as he has.

The referendum of March last year gave Wales limited but nevertheless very wide-ranging primary legislative powers. It seems to me that the Silk report gives the opportunity to complement those very considerable constitutional rights with fiscal power. Those twin sinews of authority would essentially give Wales a home rule Parliament, something which Thomas Edward Ellis and Lloyd George cherished over a century ago and, indeed, the noble Lord, Lord Roberts of Llandudno, referred to.

I reiterate everything that has been said about the Silk report being very much in the track of history in this context. One should see it in the context of the establishment of the Welsh Office in 1964, the Richard Commission, the 2006 Act, the Holtham report of 2010 and to some extent—we cannot be isolated or insulated from this—the Scotland Act 2012. It is in that devolutionary track that one should see the Silk report. The momentum that has been created is very considerable. I argue that it is a dynamic movement that cannot now be stopped, nor, indeed, essentially decelerated.

I wish to confine my few remaining remarks to the Barnett formula. Barnett, as we know, was a stopgap measure, intended to last perhaps only a year or two. It was a crude mathematical division which was calculated as follows: for any moneys that were invested in England, a sum would be allocated to Wales based on the percentage that the Welsh population bore to the population of England. It was crude and took no account of need. As we know, the Holtham commission clearly proved that as a result of that formula we have lost massive sums of money year by year. The estimated loss by now is £350 million. Indeed, today we have heard a figure of £400 million from the noble Lord, Lord Wigley. I am prepared to accept that figure. That, of course, is what we lose purely on the question of need. Our situation is very different from that of Scotland. In relation to Scotland, we lose more like £700 million per annum. Once Scotland gained a Secretary of State in 1885, the Goschen principles were applied. By various subterfuges all manner of weighting considerations were applied to Scotland, with the result, of course, that it was given massive subventions which Wales does not enjoy.

The First Minister of Wales has made it very clear that any question of varying income tax rates should depend first on the reform of the Barnett formula. That is the heart, core and kernel of the whole situation. It is an annual swindle to which Wales has been subjected for very many years and it must be brought to an end. How do we do that? We do it by exploiting this new feeling of unanimity and unity that has shown itself in relation to the creation and acceptance of the Silk commission. Mewn Undeb Mae Nerth—in unity there is strength. That is our prospect and our salvation. For too long we in Wales have been blighted by the curse of disunity. Now we have a chance to put that right. In relation to the Barnett formula, we must realise that justice delayed is justice denied. A stop has to be brought very quickly; there must be a concentrated campaign in Wales to bring it about.

Welsh Government: Tax-varying Powers

Lord Elystan-Morgan Excerpts

Tuesday 27th November 2012 Lords Chamber

[Baroness Randerson]

I draw the noble Lord back to my previous answer which related to the statement in October from the two Governments. That made it clear that in relation to the Barnett formula there was an agreement between the two that, if convergence were to start to occur again, there would be discussions with a view to establishing a mechanism to ensure a fair system for Wales.

[Lord Elystan-Morgan]

My Lords, I congratulate the Minister on her appointment and indeed, the Government on their enlightened approach to the issue of borrowing by the Cardiff parliament. Is it not the case that it would be indeed strange if a national parliament did not have borrowing powers that are enjoyed by the most menial of local authorities? Does the Minister agree that in light of the fresh and energetic dynamism that has been created for devolution in consequence of the referendum of March last year and now, of course, by the Silk report, it would be absurd if these powers were not to be given to the land and nation of Wales?

[Baroness Randerson]

My Lords, the agreement in October established the principle that borrowing powers could be given to the Welsh Assembly and that we should move towards those with all possible speed. I acknowledge, as the noble Lord has said, that it is completely out of line with the international situation for a legislature to have no powers of this sort. I am very hopeful that the report will be looked at in detail with all due speed, in a timely manner. It is important for the House to note that the Government have made it clear that we want to set in train issues that follow from Part I of the Silk report before the publication of Part II.