Wales Bill

Lord Howarth of Newport Excerpts

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

[Lord Howarth of Newport (Lab)]

My Lords, this Bill should not have been placed before Parliament in the state it is in. For all the work of the Silk commission, of which the noble Lord, Lord Bourne, was a distinguished member, three successive Secretaries of State, pre-legislative scrutiny of a draft Bill and then scrutiny of this Bill by the House of Commons, it is a mess. It is confused and opaque. The opacity is not just because this legislation is not consolidated, although it is very unhelpful that that is the case. The Bill is based on no discernible constitutional principles. It expresses no clear or convinced vision for Wales or for the United Kingdom or for the relationship between the two. With the fractures exposed by the EU referendum, such a vision has never been more needed.

The Bill is not the product of a concordat between the Governments of Wales and of the United Kingdom. It will not fulfil the aspirations of the people of Wales for full law-making powers vested in the National Assembly as expressed in the referendum of 2011. It will not,

“put Welsh devolution on a stable footing for the long term”,—[Official Report, Commons, 14/6/16; col. 1644.]

which at Second Reading the Secretary of State described as the ambition of Ministers. There is a lack of ambition here for Wales. Rather than seeking to provide for Wales devolutionary parity, or near-parity, with Scotland and Northern Ireland, Ministers have tried to get away with the minimum they can. Power, instead of being shared generously between England and Wales, is being grudgingly contested in a zero-sum game.

My noble friend Lord Hain famously said that devolution is a process, not an event. The process to which this Bill will consign us will be one of frustration for Wales, legal uncertainty and continuing friction. Yet another round of legislation—a fifth go—will soon be needed. That phrase, “a new constitutional settlement”, which the noble Lord, Lord Bourne, used in his peroration—is peculiarly inapplicable to this measure.

The Secretary of State insists that his underpinning principles in preparing the Bill have been clarity and accountability. Whatever accountability there may be for the Welsh Government if they should avail themselves of the new power to vary rates of income tax, there will be no clarity in the absence of a commitment by the Government of the United Kingdom to extend the minimum funding pledge beyond this Parliament and to compensate for the loss of European payments to Wales following Brexit. Without that commitment the Government of Wales are being offered a pig in a poke. Why would they impose an income tax increase on the hard-pressed people of Wales when the Chancellor’s response may be to cut the grant to Wales? I think we should reflect very carefully on the thoughtful speech in this regard about the fiscal framework by the noble Lord, Lord Crickhowell. This Government, like their predecessors, are too scared of Scottish voters to reform the Barnett formula, so they are leaving Wales disadvantaged while giving a meaningless new power to the Welsh Government. They are also scared of Welsh voters and are reneging on their manifesto promise of a referendum in Wales on devolution of powers to raise income tax.

While providing extensions to the legislative powers of the National Assembly, the Bill does not concede a distinct legal jurisdiction for Wales. The noble Lord, Lord Bourne, set his face emphatically against that in his speech. Here I part company with the noble Baroness, Lady Bloomfield, whose maiden speech I enormously enjoyed and admired. After more than 15 years of devolution there is now, as the Bill recognises, a substantial body of Welsh law that has been created within Wales. That body of Welsh law will grow with use of the powers to be newly devolved. Already there are practical problems, with English counsel and judges being insufficiently versed in the parallel corpus of Welsh law. The Ministry of Justice and the courts in England are more than hard pressed to deal with the challenges they face in England alone. It is not sustainable to have two legislatures making law in one jurisdiction. The time has come at least to legislate to provide the ability to accord to Wales the respect and dignity of having its own jurisdiction.

My noble friend Lady Morgan of Ely was generous in her assessment of important aspects of the Bill. She described it as a considerable improvement on the provision for devolution that has so far been in place. Of course we should be grateful for the small mercies that the Bill does provide: powers to develop small ports and small energy projects, and control over aspects of transport and environmental policy as well as over equalities policy and arrangements for elections. While I welcome the Government’s conversion to the reserved powers model of devolution, the version offered in this Bill is, frankly, absurd and insulting to Wales. A studied vagueness in the drafting makes it impossible to be sure of the precise number, but the new Schedule 7A contains 190 or 200 reserved powers—different noble Lords have totted up different totals. Whatever the total may be, it is vastly more than the powers reserved in relation to Scotland. The imprecision of the schedule makes it inevitable that the two Governments will again have to resort to the courts to rule on what precisely is devolved. After the agricultural wages saga, that is what sensible people want to avoid.

It appears that the Wales Office ignored the advice of the Welsh Affairs Committee that it should issue guidance to other Whitehall departments as to the principles and considerations that they should apply in deciding what powers they wished to reserve, and instead has accommodated a dog-in-the-manger stance department by department. The Secretary of State claims that there is a clear rationale for each of the reservations, but what constitutional principle causes the Government to refuse to devolve to an experienced and—as the noble Lord, Lord Bourne, acknowledged—mature Welsh Assembly powers over crime, public order and policing, including specifically such matters as anti-social behaviour, knives, drugs and prostitution? If the Home Office thinks it has a monopoly of wisdom, nobody else does. These are responsibilities devolved to Scotland and to be devolved to city regions in England. Why not to Wales? There is no principled basis for this reservation; it is simply a case of the Home Office saying, “What we have, we hold”.

If the Welsh Government should wish to improve access to justice—fundamental to a liberal society—by reversing some of the UK Government’s disgraceful cuts to legal aid, why are they forbidden to do so? On what principle is Wales not to be allowed competence in the licensing of entertainment or the sale and supply of alcohol, or for betting and gaming? Why should Wales not take responsibility for its own sins? If Wales wishes to be virtuous, why is it not entitled to take that decision? What about advertising, charities or adoption services? Do we need uniform policies on such matters across England and Wales? Are Welsh legislators unfit to determine them for Wales? If Wales can take charge of its planning policy, for what good reason will it not be allowed to determine its own policy on the community infrastructure levy? How can it make sense to separate competence for the two? Why on earth is policy on industrial development in Wales reserved to Whitehall and Westminster? The noble Lord, Lord Bourne, spoke of the responsibility of the Government of Wales to ensure that the Welsh economy performs well.

If the National Assembly is to determine electoral law for Welsh elections, why is it to be precluded from exercising powers in relation to the funding of political parties—an issue which, lamentably, for many years politicians at Westminster have failed to grasp? Since, pace the Secretary of State, the rationale for these and large numbers of other reservations is not clear, we may have to table amendments to delete each reservation individually, so that in the debate on each one the Minister can explain the reason. My noble friend Lady Morgan may or may not seek to strong-arm me to prevent me doing that, but she will have a good wrestle.

It is not just that Whitehall begrudges reasonable freedoms for Wales. Even as the Government are slashing parliamentary representation of Wales at Westminster, they are taking powers from the Welsh Assembly. Bizarrely, in a measure paraded as taking devolution a stage further, Whitehall is actually retracting devolved powers. This is partly because so-called silent areas, where hitherto powers were not specified or were specified ambiguously, and Wales exercised them de facto, are now included in reservations. Of course what the noble Lord, Lord Elystan-Morgan, had to say about the judgment in the Supreme Court in 2014 is highly pertinent here. It is also partly because the vague drafting of reservations, by reference for example to the “subject matter” of large amounts of preceding legislation, enlarges the scope for reservation. With better, more precise drafting, the reserved powers model could have been introduced with no diminution of Assembly competence. As it is, Assembly competence is reduced in regard to, for example, aspects of employment rights and criminal offences against young people, as well as through the tests of competence in new Schedule 7B on modifying the law on reserved matters and Minister of the Crown consents. All this is helpfully discussed in the excellent report of the Constitutional and Legislative Affairs Committee of the Assembly, on which the noble Lord, Lord Elis-Thomas, served. The Bill gives with one hand while it takes away with the other. It gives new meaning to the phrase “take back control”. The Minister should at least tell the House which powers the Government are deliberately removing from Wales and why, and which powers they are removing inadvertently.

Brexit is a new ghost at this devolutionary feast. We now have before us a huge agenda of repatriation of European Union law to the United Kingdom, and then of examination and modification of its components. It will not be enough for the Government and Parliament in London to handle all this on behalf of Wales. The Government of Wales must be a champion for Wales, and the Assembly must play its part in legislation for Wales. The Bill began its passage through Parliament before 23 June, and Clause 19 on implementation of EU law does not appear to meet the point. How will the Government reframe their devolution policy to take account of Brexit?

I have been severe about the Bill because bad law will make good government in Wales more difficult. We must seek, in consultation with the Assembly, and as far as possible consensually in this House, to improve the Bill.