Non-Domestic Rating (Public Lavatories) Bill [HL]

Lord Hope of Craighead Excerpts

2nd reading (Hansard): House of Lords
Wednesday 10th July 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I am sure that the House is very grateful to the Minister for the helpful and encouraging way in which he introduced this debate. I am particularly grateful to him for reminding us about the public convenience which lies in the underpass at the southern end of Whitehall. It is of interest to lawyers, some of whom engage in legal tourism, discovering places that are mentioned in celebrated cases and spending their holidays going from one to the other. The Westminster convenience is very easy for those who study at London universities to reach, unlike some places much further afield.

The point that interests me, and which led me to contribute to this debate, relates to my past. I once practised in the valuation for rating field and was the editor of a textbook on the subject. The fact that interests me is that public lavatories appear in the valuation list at all—but, on reflection, there is no doubt that they should be on the list and that they are chargeable to non-domestic rates.

This is the result of two basic rules: first, that every hereditament or structure that is capable of separate occupation should be entered in the valuation list; and, secondly, that the annual value attached to it for rating purposes is in theory the rent that the hereditament might reasonably be expected to let for from year to year, assuming that the tenant undertakes to pay all the rates and bear the cost of repairs and other expenses necessary to maintain the structure in a state that commands that rent. Nowadays, in practice, that figure is determined by a formula which probably does not bear much relationship to actual rents—but it is the formula that determines the rates that are chargeable for the hereditament.

As the Minister mentioned, not all lavatories that are available for public use are in separate occupation. Those found in railway stations and airports, for example, and those in other publicly funded buildings, are part of a larger hereditament. The problem is that it is the larger hereditament which forms the entry in the list and is valued, with each part of it contributing to the total annual value. As I understand it, we are concerned with the relatively simple position of self-standing hereditaments, but I recognise the point that the noble Baroness raised about lavatories and changing facilities in larger buildings. That would require separate treatment and is not as easy to deal with as what is being dealt with in this case. That is not to say that it is not a very important point—but how one deals with it is a bigger problem.

We are concerned with the self-standing public lavatories that one might hope to find in a town centre, in a public park or in or near a children’s playground. I have to confess that I never encountered one in my valuation practice and they are not mentioned in my textbook—perhaps they should have been. Nor can I remember when I last visited one. However, I have no doubt that they exist and they certainly are rateable.

As the noble Baroness forcefully explained, there is a very real problem, because they are increasingly difficult to find. This is not just a matter of convenience but a health issue, particularly for people with special lavatory requirements or other health problems which mean that they simply cannot risk going to places where one might hope to find them if they know that there is no public convenience there within easy reach. So something needs to be done. Removing the burden of rates is undoubtedly one way of addressing the issue, as the cost of maintaining these premises is not immaterial. Therefore, like the noble Baroness, I entirely support the principle behind the Bill.

Exempting the subjects from rates altogether by this mandatory relief is quite a big step. I am reminded of a similar decision, taken during the depression of the 1920s, to introduce, under the Rating and Valuation (Apportionment) Act 1928, a system of rating relief to encourage investment in industrial and freight transport hereditaments. The relevant legislation provided that the annual value of these subjects was to be determined by dividing by two the figure on which the rates would be levyable if the Act had not been passed. That measure was designed to encourage people to invest in factories and workshops, and no doubt also to discourage them from closing them down, in order to increase opportunities for employment at a time of acute difficulty and depression.

It was a sensible system, but it lasted beyond its useful time and was abolished in the 1960s. Since then, I have sometimes wondered whether a system of de-rating might be introduced to help the occupiers of premises suffering from depression in hard times. In a way, what we are dealing with today is a very good example of that. Here we have subjects that are clearly suffering from the economic problems of keeping them open. The closures which the noble Baroness referred to are dramatic and disturbing. It is a subject which requires similar treatment. Here, the relief is even more generous than that given in 1928. It is not just 50% off but 100% off, which is most welcome.

My only concern is whether giving this mandatory relief will achieve the desired result. I hope it is not just a matter of closing the stable door. Of course, there is no way of knowing what the effect of the Bill will be until it is enacted, but it will certainly help. I hope that it will go as far as the noble Baroness and the Minister indicated. I agree that this Bill should receive a Second Reading, and I hope that it will pass into law as soon as possible.

Wales Bill

Lord Hope of Craighead Excerpts

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

[Lord Morgan (Lab)]

My Lords, I think this is an occasion on which we should not speak for more than a minute and a half, and that is my intention. I support the Government’s amendment, and I thank the Minister for his consideration, but I make it clear that I regard it as an interim statement—something that will not stand the test of time. As Welsh law develops, the case for a Welsh jurisdiction will become overwhelming. There is an old Welsh song that asks, “Who will be here in a hundred years’ time?”—“Pwy fydd yma mewn can mlynedd?”—and perhaps that is the view that one should take.

At the moment we have a Bill that gives the Assembly reserved powers. The legislative competence of the Assembly is growing, yet we have two different legislatures passing laws for the same small territory. That is a situation unique in the UK and in Europe, and it seems bound to result in confusion and perhaps, in due course, conflict.

The idea of a distinct Welsh jurisdiction is supported by the legal professions in Wales. University law departments see Wales as lacking a legal identity, which actually it had for 300 years after Henry VIII’s Act of Union, so we have to catch up with Henry VIII. The idea is supported strongly by the Lord Chief Justice, Lord Thomas of Cwmgiedd; his wording is careful but he has said that it is perfectly possible to have a single justice system with two separate jurisdictions within it. Similar views were expressed by the great Lord Bingham in his work The Rule of Law.

So this is a well-meant interim settlement, a stopgap, that will not last. There is a void in the devolution settlement and eventually we will need a permanent principal settlement, both for the sake of devolution in Wales and, frankly, for the sake of the union of the UK.

[Lord Hope of Craighead (CB)]

My Lords, I shall raise two short points. One is to commend the Government’s Amendment 1 and the skilled drafting that is revealed by it. However, there is no doubt that the wording that it seeks to replace was too tightly drawn. It looked only at the legislative part of the body of law that makes up, if one likes to put it this way, the body of England and Wales and, looking into the future, following the point by the noble Lord, Lord Morgan, it was designed to follow the law of Wales itself as it built up its own common law. What was missing was an acknowledgement that there is a body of law outside legislation that applies in both jurisdictions as part of the great heritage of the common law that England and Wales has exported around the world. It would be very sad if the common-law element was not accepted. So the word “include”, as the noble Lord, Lord Elis-Thomas, pointed out, carries with it a great deal. That is not expressed at length, thank goodness, because, as he put it, the simplicity and exclusivity of the language chosen does it all for us. It is very nice to see simple language being used so effectively in legislation, so this is an excellent amendment and I warmly support it.

As for Amendment 3, I recall long arguments during discussion on the Scotland Bill—which the noble Lord, Lord Wigley, may have listened to but I am not sure took part in—when we tried to persuade the Minister, the noble and learned Lord, Lord Keen, to drop the word “normally”, but he refused. The passage that the noble Lord, Lord Wigley, quoted from what was said in the Supreme Court last week was just a repetition of the points the noble and learned Lord made in response to those who were seeking to effect that change in the wording.

Wales Bill

Lord Hope of Craighead Excerpts

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

[Lord Kinnock (Lab)]

My Lords, in a tiny way this is a historic occasion: it is the first time in my recall that I diverge ever so slightly from the view of my noble friend Lord Morgan, and it is on the issue of the relevance and applicability of referendums. It is clear from what several noble Lords have said that bruises are borne as a result of the fact that we in this country having recently been through a referendum—indeed, I have not only bruises but scars to show for the experience. Nevertheless, the reality is that in a parliamentary democracy referendums are justifiable when there is a proposal to change the way in which we are governed.

That was the basis for the justification of the 23 June referendum, just as it was for those of us who campaigned for a referendum on entry to the European Communities and those of us who campaigned for referendums on Scottish and Welsh devolution back in 1979 and greeted with satisfaction the proposal in the 1990s that referendums should determine whether a Welsh Assembly and a Scottish Parliament were introduced. The same joy stirred our hearts when we saw an enacted proposal for referendums to determine whether major conurbations in England should have elected mayors. I use these references only to demonstrate the realism and the relevance of using referendums when there is a proposal to change the way in which a democracy or part of a democracy is governed.

Such is the case if there is a proposal to offer to the Welsh Assembly the power to levy income tax. That would profoundly change the way in which Wales was governed. It is on that basis that there is a straightforward justification for a referendum on such a fundamental constitutional and economic decision that has immense social, commercial and personal implications for every family, every community, every business and every employee in the whole of Wales.

Left at that, it could be dismissed as an academic, almost arcane argument—but it is not. It is much more prosaic than that. I join with my noble friends in objecting to the removal of the undertaking to give a referendum on the issue of the introduction of income tax-raising powers for the Welsh Assembly. That undertaking was not only given by several political parties representative of and represented in Wales, it was the subject of statute. It remains the subject of statute unless and until this Bill is enacted. For many years—indeed, decades—most political parties offered to the people of Wales the utter reassurance that they would have the final determining word on whether the elected Welsh Assembly is to have the power to levy income tax. Clause 17 should be removed from the Bill to ensure the continuity and integrity of those previous, voluntarily offered undertakings to the people of Wales.

There is a further consideration: we have a model to consider. It has been referred to already. It is, of course, the fact that the Scottish Parliament, from its inception, has had the power to vary income taxation in Scotland and has never seriously considered—let alone debated or proposed—in any formal manner such a variation. Why is that? Because of the utter unacceptability and impracticality of such an idea, even for a substantially devolved institution in a unitary state. I will certainly give way in a moment but will just finish this particular reference. The proposal that the Welsh Assembly should have this additional power in the absolutely certain and cynical knowledge that it would not be exercised is like offering me a car with the capacity to travel at 200 miles per hour and I buy it in the knowledge that the speed limit in the United Kingdom is 70 miles per hour.

[Lord Hope of Craighead (CB)]

It might be helpful to recollect that when the referendum on devolution took place in Scotland, there were two questions. One was on the principle of devolution but the other was whether a devolved Assembly, as it was called in those days, should have tax-varying powers. That was separated out in the case of Wales but in Scotland, where I was, we had a vote on both at the same time. On exactly the point that the noble Lord was making, we had the democratic decision with a substantial majority that the Assembly, as it was then called, should have tax-varying powers. We got it all achieved in one.

[Lord Kinnock]

I am grateful to the noble and learned Lord. At the time, I almost rejoiced in the full implementation of the long-standing Labour Party policy—developed under my leadership, as it happens, on the basis of continued representation from my comrades in Scotland—that a specific opportunity should be given to the people of Scotland to decide on that issue. Equally, and with substantial force, there were representations from Wales that that offer should not be made. Influences, parties and opinions in Wales suggested that that should not be the case. But their views were set aside—while undoubtedly being recognised and respected, as is our manner in Wales—and the issue was never put, and it never generated the merest scintilla of a spasm of objection.

Almost on the contrary, at that time in the 1990s and at this time in the second decade of the 21st century, there was and is no evident support among the public for the idea of income tax-raising or income tax-varying powers to be allocated to the Welsh Assembly. In this era, when all of us, if we have any sense at all, must be aware of the feeling of distance that exists between the general electorate and those who are elected to govern them, we should be sensitive to the idea that when there is no measurable support for a proposition that is as significant as the varying of taxation powers, and yet the recognised elected authority and the Executive go ahead and grant that power, on the best day it will be greeted as an irrelevance. On a less good day, it will be greeted with cynical dismissal.

--- Later in debate ---

[Lord Hope of Craighead]

Perhaps I might correct the noble Lord on a point of slight detail. The Scottish National Party, which is the governing party in Scotland, has made it clear that it intends not to follow the Chancellor of the Exchequer in England on the level at which the 40% tax rate comes in. I think that the proposal in England, and indeed in Wales for the moment, is that there should be a rise of that level at which 40% becomes payable. The Scottish Government have said that they are not prepared to go along with that, so for the Scots the level will remain as it is at present. I grant the noble Lord that this is under a different power which has been given in a later enactment but to say that there is no desire by the governing party to make changes is a little excessive, with great respect.

[Lord Kinnock]

I accept the point entirely. I can respond to it only by saying that I await, without bating my breath, for the implementation of this proposition. I can see the attractiveness of it, especially to a party which is self-confessedly populist and has gained great strength by means of offering simple answers to complex questions. That has served that party well for several years—astoundingly well. I await that exercise of the variation under the supplementary powers granted to them and on that occasion, I will withdraw all speculation about Scottish inclinations to vary taxation powers.

Wales Bill

Lord Hope of Craighead Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I want to add just a word or two from the Scottish perspective to what has just been said. I was involved in the consideration of the Scotland Bill that became the Scotland Act 1998, some considerable number of years ago. One of the groups of sections, which is now to be found in Sections 52 to 56 of the Scotland Act 1998, dealt with ministerial functions. The critical section, which is closely aligned with what is proposed in this amendment, is Section 53, which says in subsection (1) that:

“The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence”—

those critical words—

“be exercisable by the Scottish Ministers instead of by a Minister of the Crown”.

That was part of the whole structure of the Scotland Act, which, as the noble Baroness, Lady Morgan, has noted, was designed on a reserved powers basis but is very much relevant to what has been designed for Wales today, dealing as it does with the idea that anything to do with devolved competence so far as Ministers are concerned should be within the functions of Scottish Ministers in place of Ministers of the Crown.

The functions listed in subsection (2) were three. The first is,

“those of Her Majesty’s prerogative and other executive functions which are exercisable on behalf of Her Majesty”.

I do not think it is being suggested that that should be done in this case. The second is,

“other functions conferred on a Minister of the Crown by a prerogative instrument”.

The third and important one for the present purpose is,

“functions conferred on a Minister of the Crown by any pre-commencement enactment”.

Those are the words we see echoed in subsection (1) of proposed new Section 58B. We then have a definition in the Scotland Act of what a pre-commencement enactment means, which is exactly as set out in the amendment.

So far as Scotland is concerned, the effect of Section 53 was to achieve complete clarity and make it very simple for those who were designing statutory instruments to give effect to the transfer of functions to find a solid base for what they were proposing to do. Again, I was quite closely involved in observing the way in which the functions were transferred. It seemed to me that the matter went very smoothly, given the clarity set out in the Scotland Act.

Although I certainly am not as fully aware of the position in Wales as those who have already spoken are, I think, with great respect, that there is great force in the idea that an amendment of this kind should be made. It is part of the development that the noble Lord, Lord Thomas of Gresford, mentioned earlier of progressing the Welsh Assembly and its Ministers into the modern structure that suits the evolving nature of what is now taking place in Wales.

[Lord Howarth of Newport]

My Lords, the call for the alignment of legislative and executive powers is not just a call for tidying-up: it is a call for clarity of accountability. Unless we have that alignment, in the same devolved matter, Welsh government Ministers will be accountable to the Welsh Assembly on some aspects and Ministers of the Crown will be responsible to this legislature on others. That makes for confusion and a political mess. Is not it far better to get some coherence and clarity of accountability, as my noble friend and other noble Lords are calling for?

[Lord Bourne of Aberystwyth]

I thank all noble Lords who have participated in the debate on this part of the Bill and specifically the noble Lord, Lord Elis-Thomas, and the noble Baroness, Lady Morgan of Ely, who are seeking to broaden the definition of the Assembly’s legislative competence to include functions where consultation with a Minister of the Crown is required before modification, by virtue of paragraph 11(2) of new Schedule 7B.

Specifically in relation to the functions set out in that sub-paragraph, I should say first that they are very few. We should be clear that the great bulk of ministerial functions will be transferred by transfer of functions orders—that is the intention—but there are four here that need prior consent. I am willing to go away and look at these, but I have to say that some relate to circumstances that perhaps noble Lords have not taken account of. For example, the very porous nature of the border means that for water—noble Lords will know that we are still looking at this—the present position is that the National Assembly for Wales has some competence in relation to customers who are in England, and vice versa. Therefore, it is not quite as straightforward as it might be in Scotland, with respect to the noble and learned Lord, Lord Hope. That said, I will have another look at the functions as they are set out and be in a position to better inform noble Lords as to the precise thinking behind these.

However, in relation to, I think, Amendment 36, in the name of the noble Lord, Lord Elis-Thomas, or Amendment 37, in the names of the noble Lord, Lord Elis-Thomas, and the noble Baroness, Lady Morgan of Ely, the reason for the measure is specifically the evolving picture on water. We are still looking at that. That is why the measure is in the Bill. Having looked at it, I think it is probably wider than we need, because, if it is needed just for water and sewerage, I do not see why we cannot say so. Therefore, I will certainly take that back to see whether we cannot amend it. If the noble Baroness and noble Lord look at that provision, they may see that we need it because of the situation to which I have just referred of some English customers being subject to Welsh law and Welsh customers being subject to English law. We need to tidy that up.

The noble Lord, Lord Thomas of Gresford, asked about the transfer of functions orders. He will be aware that I wrote to noble Lords setting out those we intend to transfer. Because of the evolving nature of reserved matters—for example, on teachers’ pay—work on that is still going on. I assure him that work continues on that, perhaps not quite as we speak but pretty much as we speak. On the basis of these remarks, I would be grateful if the noble Lord would withdraw his amendment.

[Lord Hope of Craighead]

I take up the noble Lord on one point. If I heard him correctly, he said that the amendment was concerned with legislative functions. Strictly speaking, it deals with executive functions, certainly from the perspective of the Scotland Act. Looking at it against that background, I see this as dealing very definitely with the functions of Ministers, which is the executive branch, rather than the powers of the Assembly.

[Lord Bourne of Aberystwyth]

My Lords, the noble and learned Lord is absolutely right. I correct myself.

Wales Bill

Lord Hope of Craighead Excerpts

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

[Lord Crickhowell (Con)]

My Lords, I am enormously grateful to the noble Lord, Lord Wigley, for putting forward his amendment in the form that he has. He has produced a very long and complex amendment to be added to a very long and complex Bill—too long and complex, in the view of many of us. It is interesting that, by doing this in Committee, he did not attempt to do as one normally would when introducing a matter of this complexity: to go through the detail of the proposal he was putting forward and the wording that has been suggested, which he told us originated with the Welsh Government.

I am glad that one of the things the present Government have decided to do is to revert to a system where we have Green Papers, White Papers, draft Bills and pre-legislative scrutiny. That is the proper way to proceed with legislation.

Clearly, it is quite impossible in a short Committee stage in this House to go through any process of that kind, so while I understand why the noble Lord wants to put the case for a separate jurisdiction of this kind, I suggest to him and to the Committee that it cannot possibly be sensible to proceed in the manner he suggests. Indeed, the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Thomas of Gresford, have each tabled amendments which seem to try to place in legislation the working party which has already been established by the Government to look at this matter with calm deliberation and come forward with proposals for the future. That seems a sensible way forward. Translating the undertaking already given by the Government into some form of legislative commitment, as suggested by the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Thomas of Gresford, may well be a possible solution, and I am not coming out against that.

I note that in Committee in the other place the Minister replying on behalf of the Government confirmed that the working group had been established and said that it would report in autumn 2016. We are well into autumn 2016. Surely if there is to be a report, it should be produced to this House during the Committee stage, not when we have completed it.

While I understand the fervour and enthusiasm with which the noble Lord, Lord Wigley, has advanced his case, it seems to me that he has produced compelling evidence for why we should not proceed in the way that he suggests in this amendment and that we should follow the line set out by the Government in their working party and possibly consider the proposals put forward by the noble Baroness and the noble Lord to which I have already referred.

[Lord Hope of Craighead (CB)]

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

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

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

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

[Lord Elis-Thomas]

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

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

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

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

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

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

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

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

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

Energy Bill [HL]

Lord Hope of Craighead Excerpts

Monday 19th October 2015 Lords Chamber

[Lord Bourne of Aberystwyth]

We are setting up a separate body. The analogy the noble Baroness is pursuing is not perfect. Obviously, there are variations in salary at the moment, as there would be going into the future. The OGA will be given some operational freedom because we have set up a separate entity, which I think is entirely sensible. As I understand it, since the pension scheme operates on a percentage basis, that, too, would be variable. Essentially, it will be the existing one, and I think that is wholly defensible.

I believe that I have dealt with the relevant points. If I have missed any, I apologise, and I will pick them up after I have looked at the record. With that, I commend these amendments to the House.

[Lord Hope of Craighead (CB)]

I return to the point, which I believe the noble Baroness, Lady Worthington, responded to, of an apparent inconsistency between Amendment 6, which we have just been discussing, and Clause 1(2)(b), which says that

“members, officers and staff”

of the Oil and Gas Authority,

“are not to be regarded as Crown servants”.

There is a difference between somebody who is a Crown servant for the purposes of the law and somebody who is being paid as a civil servant. I cannot put my finger precisely on the point, but it would be helpful to be reassured that there is no such inconsistency, which, at first sight, rather springs off the page when you read these two provisions side by side.

[Lord Bourne of Aberystwyth]

I thank the noble and learned Lord. It is my understanding that there is no inconsistency. We are seeking to ensure that these people are treated in an analogous way where there is a transfer of staff and that they are not, going forward, civil servants, as I understand it.

Wales Bill

Lord Hope of Craighead Excerpts

Tuesday 11th November 2014 Lords Chamber

There is nothing party-political about this, even though it was Liberal Democrats who fell foul of the provisions. There are upward of 60 or 70 bodies for which disqualification exists under the 2007 order and I understand that other candidates who were not successful at the last election would have fallen foul of the same provisions, because those provisions are so widespread and not very clear. I am endeavouring, through this amendment, to clarify the position completely. I hope that the Minister will be sympathetic to my aim. I beg to move.

[Lord Hope of Craighead (CB)]

The disqualification list includes judges in subsection (2)(a). We understand perfectly well from the provisions in the Constitutional Reform Act that members of the Supreme Court, for example, cannot speak, sit or vote in the House. That is well understood. However, there is something much more fundamental about this. It is not simply the practicality of holding a judicial office and serving as a Member of the Assembly, which has all the important work that the noble Baroness, Lady Gale, reminded us about a few moments ago. It is also the issue of principle. I cannot imagine any member of the senior judiciary engaging in party politics at all, because of the great risk of compromising his or her independence. I know of at least one case in which a judge in Scotland who was a Member of this House and was involved in presenting legislation was regarded as disqualified from sitting on a case that involved that legislation because of his previous involvement in debates in this House on related issues. Judges in the senior judiciary tread into great danger if they engage in politics at all and even more so if they become a Member of an Assembly. I cannot imagine any of them wanting to compromise their judicial position by doing so. I am open to correction about whether this is really necessary, but I express great surprise at seeing members of the senior judiciary in this list.

[Lord Thomas of Gresford]

I assure the noble and learned Lord that they appear in the schedule to the House of Commons Disqualification Act 1975. Indeed, Scottish judges are listed in that schedule, none of whom I would have thought would have had the least intention of standing for Parliament, but they are there, and that is why the list has been repeated in this amendment, without the Scottish judges.

[Lord Hope of Craighead]

I am grateful for that intervention. I noticed the absence of the Scottish judges. I wondered whether perhaps there was a message that they would be welcome in Wales. I am afraid that distance might make it rather difficult for them to participate, but I think that there is a much more fundamental point, which is the extent to which we now understand the importance of judges remaining completely separate from legislatures, wherever they happen to be.

[Lord Thomas of Gresford]

I entirely agree with the noble and learned Lord’s point of view.

--- Later in debate ---

[Lord Bew (CB)]

My Lords, I support Amendment 12 in the name of my noble friend Lord Elystan-Morgan and the noble Lord, Lord Wigley. I am compelled to do so as a matter of natural justice because I come from a region of the United Kingdom where the local Assembly has 108 members on the basis of a significantly lower population than that of Wales. Even if it is the case, which is widely rumoured in Belfast, that the Assembly will be reduced in size to 90 before too long, there will still be a significant anomaly in relation to Wales.

I have never been an uncritical admirer of the Northern Ireland Assembly. I am currently the chairman of the Committee on Standards in Public Life. As has been referred to by the noble Lords, Lord Bourne of Aberystwyth and Lord Norton, that committee has made significant criticisms of some of the practices of the Northern Ireland Assembly. Those criticisms are nothing to do with its size. The better features of the Northern Ireland Assembly are its greater size and, I submit, a greater variety of opinion and debate. It also has a greater representation of parties and politicians who would not normally find their way to that Assembly in the face of the large battalions of local politics.

The argument has been eloquently made in favour of the need for the Welsh Assembly to have more members in order for it to deal with the volume of business in a more effective way. That is not the only argument, although I fully support it. There is also the argument that the larger Assembly will contain more variety of opinion—and therefore more vitality—and that can only be to the benefit of the people of Wales.

[Lord Hope of Craighead]

My Lords, I want to add a few words in support of the amendment. With great respect to the noble Lord, Lord Elystan-Morgan, I do not think that he overstated the case in moving the amendment. I say that against the background of such experience as I have of the Scottish Parliament which is operating under the reserved powers model. If we cast our minds back to 1998, when these figures were being devised, the structures of these various legislatures played a part in deciding the numbers of members that were thought to be appropriate to staff them. One can well understand how the figure of 60 was arrived at for Wales. We have watched how the powers of the legislature have expanded and, no doubt, if it moves to the reserved powers model, we shall find that these will be built on even further, as they are being in Scotland.

There may even be a case for thinking that the membership of the Scottish Parliament is too small, given the immense pressures on the committee structure within which it operates. The more powers that are devolved, the more these committees are being stretched. One cannot simply live with the expanding system and increased powers of these legislatures without remembering that the figures were struck in a different world. It is quite absurd to be stuck with those figures which were devised originally under a different system.

There is an immense amount behind what the noble Lord has said and behind the other points that have been made. Like others, I hope that serious consideration will be given to a way in which that figure may now be increased to recognise the reality of what is going on and the requirements that it imposes on the individual members.

[Baroness Gale]

My Lords, once again we have had an interesting debate, as we did in Committee. There was general consensus then that the number of Welsh Assembly Members should be increased. Indeed, over the 15 years of devolution, many calls have been made to increase the number. Different reports have been produced, including by the Electoral Reform Society Cymru. The 2004 Richard commission supported an increase, and we know that the current presiding officer, Dame Rosemary Butler, has said the same. The Richard commission said that there should be 80 seats, while the Silk 2 report said that the,

“size of the National Assembly should be increased”.

In 2013, the Electoral Reform Society and the Changing Union project published a report recommending that the number of AMs should be 100. The noble Lord, Lord Elystan-Morgan, asked how many Members we should have. He also pointed out the small number of Back-Benchers, at 42. It means that the ability to scrutinise legislation is curtailed, as is holding the Government to account, which is really important in a democracy. As legislation becomes more complex, it is necessary for politicians to develop areas of specialist expertise, but that is difficult for most of the Back- Benchers because they are spread so thinly and they have to do lots of different things. The Minister will have experience of that and obviously she understands everything we are saying in this debate.

The debate today shows that there is consensus around increasing the number of AMs. I do not think that the Minister will be able to make a commitment because we need more discussions in order to decide exactly what would fit the bill, as it were. The Senate was built to cater for 80 Members, so someone must have been thinking ahead, but I do not think that that would be a restriction if the consensus declared it should be 80 or whatever number we come up with. However, I am sure the Minister will agree that there is consensus on this point and generally there is a feeling in Wales that we need to increase the number of Members of the Welsh Assembly.

Northern Ireland (Miscellaneous Provisions) Bill

Lord Hope of Craighead Excerpts

Tuesday 25th February 2014 Lords Chamber

As noble Lords have pointed out, there is no substantial political opposition in Northern Ireland, so in no other part of the United Kingdom is it so important that the media scrutinise the actions of politicians, yet this is the very place where they find it so hard to do so. I say to the Minister: now is the time to ensure that the major provisions of the Defamation Act are implemented in Northern Ireland, in the interests of transparency and democratic accountability.

[Lord Hope of Craighead (CB)]

My Lords, I hesitated as to whether or not to intervene, as my experience of devolution is in regard to matters relating to Scotland, but I have also had experience in the UK Supreme Court of devolution matters relating to Wales. I think it is right that I add a word of caution in support of what the noble and learned Lord, Lord Carswell, said. The amendment seems to me to raise a constitutional issue not quite in the terms suggested by the noble Lord opposite. The issue is really how one balances the structure of the devolved legislature’s powers between what is reserved and what is devolved.

In Scotland, the language is different. As noble Lords will know, the position is that matters open to any legislation are called reserved matters. In Scottish parlance, what we have been talking about here is a devolved matter, which would be a matter for the Scottish Parliament. It is well established by convention that it is not open for Westminster to enter into legislation relating to devolved matters unless there is a Sewel convention which permits that. It is arranged with the Scottish Parliament and a Motion is passed through the Scottish Parliament that approves of the measure that this House or the other place seeks to pass. That is well established and happens quite frequently. It helps one get over the difficulties of demarcation, if there be any.

I am certain that north of the border—I am talking about Scotland, on this side of the Irish Sea—to use the word alarm would be to put it rather softly. It would be regarded as quite offensive for Westminster now, having devolved matters, to tell the Scottish Parliament how it should deal with an issue such as this. I make absolutely no comment on the nature of defamation law in Northern Ireland; that is not the issue. The question is whether it is really properly open to this House to engage with the matter, given the nature of the devolution arrangement which both Houses have approved and which is in legislation. As was suggested, there are other mechanisms for bringing about reform of the law. It may be extremely frustrating that it would take so long, but the law commissions exist to take these matters on board. Unpalatable though it may be, I would respectfully suggest that the advice of the noble and learned Lord, Lord Carswell, is absolutely sound. It would be most unwise of this House to disregard it.

[Lord Lester of Herne Hill]

Before the noble and learned Lord sits down, I wonder whether I could just ask this question. Given that the European convention limits the powers of the devolved institutions in Scotland and Northern Ireland and given that it expressly empowers the Secretary of State to require action if inaction would lead to a breach, would it not therefore be the case that it is within the competence of the Executive in London, and if necessary the Parliament in London, to secure compliance with the convention rights to free speech and a good reputation?

[Lord Hope of Craighead]

The noble Lord is quite right that the powers of the Executive are controlled by convention rights. The legislative competence of the Parliament is controlled in the same way and it is open to a court to pronounce an affirmative order requiring a member of the Executive to do something. There are mechanisms, and these would be put into place through the existing devolved system. This is something that could be arranged, but that is quite different from what is being suggested here, which is, without that background and without that attempt being made, to simply legislate from this House. I underline the caution which is being properly urged on the House by the noble and learned Lord.

[Lord Bew]

My Lords, I rise to support a central point made by the noble Lords, Lord Lester and Lord Black, concerning the way in which the current arrangements contain the possibility of great unfairness and difficulty for the Northern Ireland judiciary. I am a supporter of the Defamation Act 2013 and, as noble Lords have said, I served on the Select Committee of both Houses. Put aside for a minute the wisdom or otherwise of that Act—and I do believe it is a wise Act—the problem for the Northern Ireland judiciary is that it is now stuck with the interpretation of an antiquated law, while the rest of the United Kingdom, in particular the media, will be operating fundamentally according to a rhythm set by the Defamation Act 2013.

I want to make a further point concerning the issue of forum shopping, or, as it applies in the Defamation Act, libel tourism. The Northern Ireland judiciary in recent cases—I am thinking particularly of the ruling by Mr Justice Deeny in the Sean Quinn case on 10 January 2012—has clearly set itself against what we might call forum shopping. Mr Justice Deeny argued that that key, very important bankruptcy case was not suitable for Belfast on the grounds that Mr Sean Quinn had had his being and his residence in the Republic of Ireland for the previous 32 years. That is a clear indication of the broad thinking of the Northern Ireland judiciary on this question of forum shopping. In the case of the libel law, it is the issue we used to know as libel tourism, which the Act is designed to deal with. So we know to some degree where the thinking of the Northern Ireland judiciary is on this question.

There is a sense within European law in general that forum shopping is not something to be encouraged, and yet Northern Ireland is stuck with legislation—our old libel law—which actually encourages forum shopping. I am just trying to bring home to the House that the point made by the noble Lords, Lord Lester and Lord Black, is actually a profound one. The judiciary of Northern Ireland is being placed in an extremely difficult position by the current arrangements. I understand the point made by the noble Lord, Lord Browne. I have already been approached by the Law Commission and I assure him that I will give as full evidence as I possibly can to it.