Housing: Shared Ownership

Lord Howarth of Newport Excerpts

Tuesday 6th November 2018 Lords Chamber

[Lord Bourne of Aberystwyth]

The noble Lord is right in seeking to identify the problem; what we do about it is another issue. But we are looking at issues around land value, such as compulsory purchase. These are part of the mix, but if it were a simple problem, it would have been solved by Governments long ago.

[Lord Howarth of Newport (Lab)]

My Lords, if Help to Buy drives up house prices, how does it help the people to whom the Minister referred to realise their aspiration? Why do the Government not admit that they got it wrong with this policy?

[Lord Bourne of Aberystwyth]

My Lords, anything that increases demand for housing drives up house prices. People already aspire to own their own homes; it is not that they are adding to the total of people seeking a home—they want to own their own home. We should recognise that that is a widely held aspiration among people. Not all people—many will want to rent, and we seek to provide for that as well. However, home ownership is something that many people want.

National Planning Policy Framework

Lord Howarth of Newport Excerpts

Tuesday 6th March 2018 Lords Chamber

[Lord Shipley (LD)]

My Lords—

[Lord Howarth of Newport (Lab)]

My Lords—

[Lord Bourne of Aberystwyth]

If I may just finish—it is good to know that this subject has excited so much interest—it is important that we recognise that there is diversity of supply, and that is central to what we are seeking to do.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to my noble friend for a very constructive suggestion, which builds on our discussion of the question asked by the noble Lord, Lord Stunell. He is absolutely right that it is important to learn the benefit of timber-framed homes. This type is used a lot in Scotland and many other countries. It is sometimes appropriate to look elsewhere, and this may be so for housing design. As he rightly said, they are carbon neutral, which helps with climate change issues. Giving help for self-build and encouraging smaller builders is also part of it. I thank the noble Lord and will take his points back to the department.

[Lord Howarth of Newport]

Is the Minister aware that, according to Oxford Economics, the number of dwellings in London rose faster than the number of households in the period 2001 to 2015, yet house prices continued to inflate? Does he accept that encouraging more housebuilding, necessary as it is, will not be sufficient to create a market that works for everyone, not just those who are asset rich? Will he discuss with the Treasury ways to reduce the attractiveness of housing as a speculative investment, working gradually and purposefully towards the removal of subsidies and tax breaks, taxing speculative foreign investment entering the UK housing market and penalising owners of empty homes, while doing more to increase the relative attractiveness of investments that actually increase productivity in the real economy?

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord for that question. I am certainly aware of some of the problems relating to London. The noble Lord, Lord Kennedy, referred to money going back to the Treasury, and I think I am right in saying that £64 million was handed back to the Treasury by the GLA and the mayor. The noble Lord might not have been aware of that. In the recent Budget, we raised the cap on borrowing by councils by £1 billion in 2019, which will help. The noble Lord is right that these things cannot be done without finance, but I think he would accept that, in a market system, ensuring that we are building more in the areas of greatest need and highest prices will have a market effect and should deliver over a period of time, though not overnight.

National Policy for the Built Environment

Lord Howarth of Newport Excerpts

Tuesday 24th January 2017 Grand Committee

[Lord Howarth of Newport (Lab)]

My Lords, the Select Committee report is a very good one indeed. It is a comprehensive analysis of the challenges that we face as we aspire to a high-quality built environment. The Select Committee rightly castigates the Government for their lack of ambition and of political leadership and for the incoherence of policy across Whitehall. The committee has an unequivocal commitment to high-quality design and place-making, and something that I like very much about the report is the unabashed commitment to beauty in ordinary lives.

“Ideas of beauty are among the noblest which can be presented to the human mind”,


wrote John Ruskin, and noble Lords on the Select Committee have written their report in that spirit. They found opinion research showing that 81% of people think that everyone should regularly experience beauty in their lives—one is left wondering who the 3% are who disagree, but I assume they are volume housebuilders. Sadly, the B-word is not in the Government’s lexicon.

The committee, of course, recognises that planning must not obstruct growth and that we need, rather urgently, to have more houses in this country—but it says not at any price, and in this it is surely in tune with the values of the British people. I fear that the Government are not in tune with those values. I was dismayed to see the reference at paragraph 102 in the Government’s response to “UK PLC”. What a spiritually demeaning metaphor for our country. The Government make no apology for having sacrificed on the altar of productivity their policy on zero-carbon homes. Of course, good design makes for good productivity.

The committee discusses the crises of planning: both the crisis of the planning profession and the crisis of place-making capacity. The status and the numbers of planners available to local planning authorities have declined, and there are insufficient skills available. I believe that it is the case that there are now more qualified planners working for developers than working for local planning authorities—the gamekeepers have become poachers. Long gone is the era when the Buchanan report, Traffic in Towns, reissued as a Penguin book, was a bestseller and when the planning profession appealed to the idealism of the ablest in their generation.

It is fair to say that there was a period in the 1960s and 1970s when planning perhaps became too arrogant a profession, and indeed sometimes prone to megalomania. Wholesale redevelopment imposed upheaval on communities of a kind that bred great resentment. Estates were too often poorly designed and constructed and then poorly maintained. So there was public hostility to the planning profession and to planning, and it is incumbent on planners to have a little humility, as I am sure they do as they think back on those times.

We then had the cult of the free market, with the disempowerment of planners, local authorities and the public sector in the 1980s and 1990s, a period when developers more or less ran riot and when much development was anarchic and dispiriting. In places where there was money, degraded building environments were created, while the places where there was no money were left behind, with repercussions that we now feel in the life of the nation. It is one of the factors behind the Brexit vote—although let me say, in favour of Brexit, that it will allow us to have our own, rational policy on VAT where heritage is concerned.

We are entering a period of new politics with a different ethos, and I am very pleased that the leader of the Conservative Party and Prime Minister of this country is telling us that public intervention may be benign. I hope that this is a prelude to the rehabilitation of planning. However, there is a very long way to go. The report tells us of 46% cuts to planning departments between 2010-11 and 2014-15. The government response seems to be in denial about many of the criticisms in the report. Paragraph 20 tells us that the Government consider,

“that there is strong policy co-ordination on matters that affect the built environment”.

The Government pay lip service to the duty of leadership but in the response they dump the responsibility on the chief planner. Unless I missed it, there is nothing at all about raising the qualifications and status of planners. I do not think that they responded to the excellent recommendation from the Select Committee that there should be bursaries for planners and that we should look across the channel to the ambitious policies in France to ensure that there is a strong planning profession and a strong role for planning.

Paragraph 64 of the Government’s response blandly and disingenuously evades the issues of funding for local planning authorities. It states:

“The Government acknowledges that local authorities need to give planning the priority it needs, to support and safeguard the quality of both existing and new environments. We agree with the thrust of this recommendation but while the Government are continuing to discuss the future resourcing of planning services with a range of interests, it is for local authorities to decide how to deploy their resources to deliver a quality service for their communities”.


I do not think that that is good enough. Indeed, implicit in government policy and in the response is a contempt for planning. As my noble friend Lady Andrews said, we have no planning at a national level, and we now have no regional planning. It is true that the Government introduced neighbourhood plans in the localism legislation. They seem to be an excellent thing, but those neighbourhood plans have to be part of a larger jigsaw. The National Planning Policy Framework is a vapid and vague document—a boneless wonder unstiffened by any detailed planning policy guidance.

The Town and Country Planning Association, like the Select Committee, advocated a humane and socially responsible approach in its report Planning out Poverty and in its Planning4People manifesto. It has inveighed against what it terms,

“weak, deregulated planning policy that is dominated by economics, not people’s needs”.

Where is the vision for housing? There is none that I can see on the part of the Government. The vision of the volume housebuilders is one of meanness, mediocrity and exploitation, as they hoard land to keep supply limited and prices high. However, some people have a vision and I should like to quote from Lynsey Hanley’s wonderful book Estates:

“The true test of a successfully housed population”,


will be,

“when everyone has a home that suits their circumstances, regardless of tenure: affordable, solid enough to last but fluid enough to adapt to the identities and habits of its inhabitants, easily accessible and capable of conferring feelings of security, steadiness, civic pride and self-worth”.

That is a fine statement, but the configuration of policy at the moment is very far from that. The whole thrust seems to be to build houses fast and not to mind if they are trashy. We see this impetus coming in Help to Buy, in the policy on starter homes, where any capital gain in the future will accrue to the lucky starter and not to the community, and in the obligation laid on housing associations to sell their properties.

Where can we hear the call for quality and beauty? Not in this miserable, downbeat government response. There has been a retreat from the proper ambition of government. In 2000, the Labour Government published Better Public Buildings, with a foreword by the Prime Minister. I should like to quote Tony Blair. He said:

“I have asked ministers and departments across government to work towards achieving a step change in the quality of building design in the public sector … leaving behind a legacy of high quality buildings that can match the best of what we inherited from the Victorians and other past generations. And I am determined that good design should not be confined to high profile buildings in the big cities: all of the users of public services, wherever they are, should be able to benefit from better design”.


He went on:

“Over the last few years Britain has benefited from a host of new landmark buildings, many of them funded through the lottery. Now we need to apply the same energy and imagination to improving the tens of thousands of everyday public buildings which play such a vital role in our lives”.


That point about the duty in our own time to create a heritage for the future was very powerfully made in the quotation in the Select Committee’s report from Sunand Prasad, the former president of the RIBA, who has been such an eloquent and consistent advocate for the best values in architecture. There is a barbarism about current policy. The DCMS has been cut out of any responsibility for architecture, and the Government seem to have forgotten, if they ever knew, that Sir John Soane, who created great plans for Whitehall, which were marvellous designs, even if they were not eventually carried though, said that architecture is the queen of the arts.

The All-Party Parliamentary Group on Arts, Health and Wellbeing, which I co-chair and of which my noble friend Lady Andrews is an invaluable member, heard a plea at a recent meeting from a distinguished planner, Andrew Simpson, who asked us to accept that planning is an art. If that proposition raises eyebrows in our time, it certainly would not have done in Renaissance Italy when, for example, Rossellino and Alberti, acting for Pope Pius II, designed the new city of Pienza, when Michelangelo replanned St Peter’s and the Capitoline Hill for Pope Paul III and when Vespasiano Gonzaga, an enlightened prince and a follower of Vitruvius, designed Sabbioneta. They were great artists and great patrons, and for them of course town planning and place-making were an art.

Pienza and Sabbioneta are now world heritage sites. They were conceived as ideal cities. We have garden cities and new towns. I am not aware that on the occasion of its 50th birthday Milton Keynes was awarded world heritage status, but perhaps it will get a statue of the noble Lord, Lord Framlingham, as a consolation prize. The great thing about Milton Keynes is that the people who live and work there like it, which is perhaps the most important consideration of all. It is fashionable among some cognoscenti to sneer at Poundbury, but it is a serious, creative effort to establish a place which is good for the people who live there and will continue to be good for the people who live there in future, and it should be praised. I praise the Government for promising 14 new garden towns or villages.

I was much taken by an article in the Times on 19 January by Clive Aslet, the former editor of Country Life. He said that the great obstacle to good quality development is the cost of land, because developers then say they have no money left to spend on quality design. He suggests that private owners and charities which are going to be there for the long term should not sell their land but should develop it themselves. As they will not have to spend money on land, they will have the resources to spend on the premium—a small premium really—that good design costs, better materials, more generous space and more green in the local environment. He recommends that local authorities should set up housing charities and use compulsory purchase powers to buy retail parks and other desolate and failing developments. Since then, I have been very pleased to see that the owners of Blenheim Palace, Burghley House and Rockingham Castle have said that they want to develop on their estates housing of a quality that they and their tenants in perpetuity will find consonant with the remarkable architectural traditions of those great houses.

Of course, we can build fast if we are clever, but we must always seek to build well and to build for the long term. The additional cost of investment in the near term is abundantly rewarded by better value for money over the medium and longer term. I wonder whether the Government could not have a role in developing new accounting conventions which would better incentivise and encourage all concerned to build for the longer term and not simply to seek immediate reward. When Jane Duncan, the current president of the RIBA, spoke to the all-party parliamentary group, she reiterated the RIBA’s call for post-occupancy evaluation. She suggested that architectural prizes should not be given until a building has been up and in use for at least five years, and that prize juries must get away from their obsession with the image of buildings and the iconic building and preoccupy themselves more with the reality of buildings—how they work for the people who live and work in them. I was surprised that in their response the Government said nothing about their Better Public Building Award, which is a great lever for good and has been used as such. It is strange that in their discussion of prizes they said nothing about that.

The committee deplores the destruction of CABE. I declare an interest as the Minister who established CABE and I still grieve for what has been done to it. The Government rather jauntily want us to think that CABE, as a subsidiary of the Design Council, is still doing a splendid job but, as I understand it, all the witnesses to the Select Committee said that it had been a very bad mistake to downgrade CABE. I see it as an act of political vandalism—a tribute offering to the Treasury, with its institutional philistinism. The Treasury is a curious case of group psychology. I do not doubt that Treasury officials, as individuals in their private lives, are members of conservation societies, where they live in Stoke Poges or Hassocks, but when they turn up to work at Great George Street a dark night embraces them. When I was Minister, I did not have any difficulties with what was then the DETR, now the DCLG; my difficulties were with the Office of Government Commerce in the Treasury, whose values were exclusively economic and commercial.

The report describes very well the achievements of CABE. I would add that it was remarkable value for money and did not leach taxpayers’ money, as the government response suggests. I pay my tribute of praise to the leaders of CABE: two chairs, Sir Stuart Lipton and Paul Finch; and two chief executives, Jon Rouse and Richard Simmons. The series of guidance publications issued by CABE—and, I believe, drafted by Richard Simmons—were of remarkably high quality, and the training programmes that CABE initiated were so valuable. It brought design review to almost all parts of the country, and at almost no cost, because CABE persuaded architects to give their services to design review more or less pro bono as a matter of civic responsibility.

I very much support the committee’s view that CABE should be reincarnated, and I strongly endorse its endorsement of the recommendation from the RIBA that there should be a new office of chief built environment adviser created in government; a unit, which would be the new CABE, based in the Cabinet Office; and an annual report on the built environment to be presented to Parliament. The Government are willing to look at this but suggest that it can all be done by the chief planner. The chief planner has very great personal merits and is much committed to good design but you need an architect, I think, with that imaginative and expert range—whether it is a new Sir John Soane, Rick Mather or Sir Terry Farrell.

Finally, I am very pleased that stress is laid by the Select Committee on the essential link between the built environment and health and well-being. That was well understood by the post-war Labour Government, when Aneurin Bevan was Minister for Health and also responsible for housing. The APPG that I co-chair will draw strongly on what the report has said on this matter. I support its view that there needs to be closer integration between planning policies and health policies, and more use of health impact assessments and health indicators as evidence. I very much endorse what it says about green infrastructure, as my noble friend Lady Whitaker has just insisted. I would add that we want to see much greater use of natural materials in construction. Of course, part M of the building regulations should not fall below the lifetime homes standard.

The Government recognise the case for seeing an important connection between the quality of the built environment and health and well-being—for example, in the context of obesity—but I stress that it is in the field of mental health that this can yield so much. We need environments that support health and help to heal not only the individual but society. When the sun shines, it lifts our spirits. When we are in a beautiful built environment, we feel better. We are happier, saner and more secure—we are more optimistic, and our lives are better.

Wales Bill

Lord Howarth of Newport Excerpts

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

[Lord Griffiths of Burry Port (Lab)]

My Lords, I will intervene for a short moment, with real apologies for not having been here at earlier stages in these discussions—I fear that I have duties that do not make it possible to be here all that often. I take the definition of the £10 bank very seriously to heart, but that is not the issue for me. I congratulate the Government and the Minister on recognising that there is a problem and bringing forward a government amendment that reflects that. The curious paradox for me is that having recognised there is a problem, on the basis of fixed-odds betting machines as they currently exist, the one area that devolved responsibility does not address is the very part of the problem that creates the discussion in the first place. To have an amendment that provides powers for the Welsh Assembly to look after what happens in the future, when the problem that has generated the debate cannot yield a similar level of control, seems to me a curious paradox. So while thanking the noble and genial Lord the Minister, who has handled things so magnificently in these debates, I just urge him to think about something that is paradoxical but could be tidied up. If retrospective responsibility could be introduced, that would make it a much better amendment from the Government.

[Lord Howarth of Newport (Lab)]

My Lords, my noble friend Lord Griffiths of Burry Port is rather charitable, indeed flattering, to the Government in referring to their creation of a paradox. I would say that this is simply confused and bad policy-making and endorse what my noble friend Lady Morgan of Ely said at the outset. First, it is not a good way to treat the House for the Government to insist on mixing up, in one group, amendments on this variety of topics—energy, the Crown Estate and gambling. This is not a basis for rational scrutiny of legislation and it should not have happened.

I want to dwell on the gambling issue for only a moment, as much more important is the confusion in the handling of it. To make this distinction between different sizes of bank or stake—I am grateful to the noble Lord, Lord James, for his elucidation of the issue—and to attempt to make a distinction between responsibility for supervision of machines that are already in Wales and for machines that may in future be in Wales is to fragment responsibility. If the Government are going to devolve responsibility for a very important social issue, they should devolve it properly and produce a coherent solution. Fragmenting responsibility can only make for confused and ineffective policy-making. This issue matters far too much to Welsh society, and in particular to the prospects for significant numbers of young people in Wales, and we need a coherent and proper policy for it.

[Lord Bourne of Aberystwyth]

My Lords, I will address the remarks on this group of amendments and I thank noble Lords who have participated in the discussion. First, I will deal with a point raised by the noble Lord, Lord Howarth, in relation to the grouping of amendments by pointing out that it is entirely possible through the usual channels to decouple amendments. That has happened in at least one other group, so I do not think the accusation was entirely fair. It is open to other parties to challenge that.

Initially, I will address government Amendment 38 to Clause 37, as well as Amendments 36 and 37, tabled by the noble Lord, Lord Wigley. The government amendment is a technical one to address concerns raised by the Welsh Government. Consistent with the principle of establishing a lasting settlement, it simply acknowledges that future Acts of the Assembly may prove relevant factors in the exercise of consenting powers under the Electricity Act 1989. This addition simply amends that Act accordingly to allow for that possibility.

The noble Lord’s amendments seek once more to reopen the basis on which the Government endorsed a key recommendation of the Silk commission. I note what the noble Lord said about the commission, but he will know that the legislation is essentially based on the St David’s Day agreement, which took forward a lot of the Silk commission recommendations but not all of them. What is in the Bill is essentially based on the St David’s Day consensus rather than on the Silk recommendations, although in this context they are the same.

As I said in Committee and have subsequently reiterated in writing to your Lordships, the Bill has been carefully drafted to give effect to that political consensus around the devolution of new powers which will give Wales a substantially greater degree of autonomy in determining the shape of its future energy structure. To use a word that has been used recently, it would be paradoxical if the Government ignored that consensus and came up with a figure that was not part of it. Key to that consensus was recognition that Wales and England are, and will remain, intrinsically linked through a common electricity transmission system which depends on the inputs from a broad range of generating sources.

The Government continue to be firmly of the view that the larger the capacity of those sources, the greater their significance beyond Wales and to the United Kingdom as a whole. Consensus was reached around 350 megawatts being the appropriate watershed, and I do not believe that the landscape has changed to such a degree since then as to necessitate exploring an alternative approach. The noble Lord, Lord Wigley, I think, and possibly others asked whether we already have the powers if we were to subsequently seek to increase that. Yes, we have the powers, without fresh primary legislation, under, I think, the Electricity Act. It might be under a planning Act, but I can assure the noble Lord that those powers exist in relation to upping the figure. That is not to say that factors might not emerge in the future which would give us pause for thought on this front. I do not believe, however, that now is the time to alter the 350 megawatts figure, but as I have indicated, the power is there if it should be needed.

Government Amendments 117, 118 and 119 relate to generating stations and provide Welsh Ministers with greater flexibility for the future around the exercise of their new electricity generation consenting functions in Welsh waters and in relation to the amendment of existing onshore consents up to 350 megawatts under the Electricity Act 1989. They simply and sensibly provide Welsh Ministers with the ability to delegate the exercise of their new functions to a person they appoint for the purpose. This is a flexibility which the Welsh Government have asked for, and I am happy to provide it.

Government Amendments 56 and 83, and opposition Amendments 57 and 58, relate to fixed-odds betting terminals. I confess that I am not acquainted with these either, although I understand that the noble Baroness, Lady Morgan of Ely, has been experiencing them in the last week or so to see how they work, in addition to Nessa’s Slots in Barry Island. In Committee last month, I committed to reflect further on the arguments in favour of devolving powers over fixed-odds betting terminals. Having done so carefully, I am pleased to bring forward Amendment 56, which will transfer the power on fixed-odds betting terminals in exactly the same way as has been done for Scotland. I am very grateful for the intervention from my noble friend Lord James, indicating that the amount relates to a bank rather than a stake. I hope that gives some reassurance to the noble Baroness opposite and ties in with her experience on this issue.

The noble Baroness, quite fairly, raised the issue of whether, if the amount were to change in England, it would translate across to Wales. I can confirm it would. As she rightly says, this is a serious problem which has been exercising the all-party group and others. If it were to be altered in England, that would have the effect of transferring that same amount to Wales. I thank the noble Lord, Lord Griffiths, as well for his contribution. I know he feels strongly about these issues and has spoken on them forcefully and persuasively in the past.

The amendments would devolve legislative and executive competence to the Assembly and Welsh Ministers to regulate the number of high-stakes gaming machines authorised by new betting premises licences in Wales. It is right that they are new betting premises, as the noble Baroness confirmed. Once again, I think the Government have been given rather a raw deal here; having come up with something that has been welcomed, we have then been accused of not going as far as noble Lords thought we had gone. I thought I was absolutely clear that we have gone as far on this as we did with Scotland. I note the comments and this is a serious issue, but I hope I have given some reassurance that if there is some movement in England, that would affect the position in Wales as well.

The Silk commission made no recommendations on the devolution of betting, gaming and lotteries, but we agreed as part of the St David’s Day process to consider non-fiscal recommendations by the Smith commission and it was in that context that we decided it would be appropriate to take this forward in relation to Wales. We reflected on it and mirrored the provisions in the Scotland Act 2016. The noble Baroness, Lady Morgan, has proposed going much further than the position in Scotland in the Scotland Act but I am afraid we cannot agree to that. I take issue with her on one point on which she spoke passionately in relation not just to gaming machines but to the SNP. The Scotland Act is not an SNP Act—it is an Act of Westminster to which we all contributed. I think we can all reflect on that.

Amendment 60, tabled by the noble Lord, Lord Wigley, seeks to devolve the management functions of the Crown Estate commissioners in relation to Wales to Welsh Ministers or a person nominated by them. This broadly reflects a provision in the Scotland Act 2016 that devolves management functions of the Crown Estate commissioners in relation to Scotland to the Scottish Ministers or a person nominated by those Ministers. The devolution of the Crown Estate in Scotland was recommended by cross-party consensus in the Smith commission report. It was not part of the Silk recommendations and I am not aware that such a consensus exists in respect of Wales.

The Crown Estate works closely with devolved services in Wales; for example, it has agreed memorandums of understanding with the Welsh Government and Natural Resources Wales. I believe the Crown Estate commissioners are doing an excellent job. Last year the Crown Estate recorded a record profit of £304 million, which was returned to the Exchequer. This is not revenue retained by the Crown. The revenue from the Crown Estate is used to fund public services across the UK, including in Wales. This means that Wales is already directly benefiting from the management of Crown assets by the Crown Estate. I urge the noble Lord, Lord Wigley, to withdraw his amendment.

Wales Bill

Lord Howarth of Newport Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 23rd November 2016 Lords Chamber

[Lord Wigley (PC)]

My Lords, I shall speak to Amendment 108 in my name, which seeks to devolve the youth justice system in Wales. The amendment is perhaps slightly incongruously linked with this bank of amendments before the House.

The ineffective and complex mix of devolved and non-devolved bodies that manage the Welsh youth justice system means that a fragmented approach is the best we can hope to achieve. The argument for the devolution of the youth justice system has been made by many experts in both policy and practice, including former Youth Justice Board chair, Professor Rod Morgan, who noted that it is illogical to have a system where factors linked to youth offending are often related to devolved services, such as education and training, social services and health, while youth offenders are dealt with through non-devolved services such as the police, youth offending teams and youth courts.

My party colleague, North Wales Police and Crime Commissioner Arfon Jones, highlighted how a devolved youth justice system would provide an integrated and coherent children’s policy for Wales. Through a clear devolution settlement, the accountability, opportunities to innovate and the simplification of the way the youth justice system operates in Wales would lead to significant improvements for vulnerable children and young adults.

Understandably, the English youth justice system, on to which elements of the Welsh system continue to be tacked, is concerned with English problems, particularly gangs and urban violence. In Wales, rural issues and poverty underpin the challenges faced. By creating a clean break between the two systems, we could enhance outcomes for children at risk in both nations, allowing policies and practices to be targeted and focused on the issues of greatest importance in both places.

As another party colleague of mine, Liz Saville Roberts, highlighted in the other place, the Howard League for Penal Reform found out about our efforts to devolve youth justice and provided us with the following statement:

“When it comes to Welsh children in trouble with the law, Wales should be able to come up with a Welsh solution to a Welsh concern. This is particularly the case because both social services and education policy are already devolved and it is a welfare-led approach which will prove most effective for troubled children. The Welsh Youth Justice Board already recognise this in their ‘children first’ approach and there is an opportunity to build on that distinctiveness and protect it from any Westminster-led reforms that fail to take into account the specific needs of Welsh children”.

Coming from where it does, that quote ought to carry a lot of weight.

The practical benefits of devolving the youth justice system are clear. It is outlined in the recommendations of the Silk commission, as I am sure the Minister will readily recall. It is exemplified by the fact that it is already devolved to Scotland and Northern Ireland, and it is reinforced by the fact that the Government already said they are looking to devolve aspects of youth justice to areas of England. Can the Minister explain to the people of Wales why establishments such as the Greater Manchester Combined Authority are set to gain increased competence over youth justice but the established National Assembly for Wales, with a track record on closely related issues, is not?

I hope the Minister will listen to the advice of those involved in the sector and either support this amendment or bring forward an amendment on Report that will devolve the remaining aspects of the youth justice system to Wales.

[Lord Howarth of Newport (Lab)]

My Lords, there is a mass of important material in this substantial group of amendments but I draw attention to one particular issue arising from government Amendment 107H, which would introduce a new clause. It appears that that would allow the Lord Chancellor to amend a section of primary legislation, so this clause would create a new Henry VIII power. Parliament ought always to be on the alert when new Henry VIII powers are proposed by the Government. It would be appropriate and helpful if the Minister explained the Government’s justification for this. I see the noble and learned Lord, Lord Judge, in his place but do not know whether he is minded to deploy his forensic powers in examination of this particular amendment. If he is, it would be otiose for me to say more.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on this group of amendments. I shall first deal with the points made in relation to Welsh tribunals and the President of Welsh Tribunals. I thank noble Lords for the general welcome for provisions that strengthen Welsh tribunals and their operation in Wales.

In relation to Amendment 107H, I say to the noble Lord, Lord Howarth, that I do not see anything irregular in this because the power to be exercised by the Lord Chancellor in relation to adding tribunals and so on to the list is subject to affirmative resolution in new Section 107H(3). So that would be entirely regular—but perhaps I misunderstood the noble Lord.

[Lord Howarth of Newport]

The provision to provide power for the Lord Chancellor by statutory instrument to amend primary legislation is—or ought to be —exceptional and needs some justification.

[Lord Bourne of Aberystwyth]

I stand to be corrected on this, but under new Section 107H(3) it is subject to an affirmative resolution of each House of Parliament, and that is entirely appropriate.

Opposition Amendment 108 was ably moved by the noble Lord, Lord Wigley, and supported equally ably by the noble Lord, Lord Thomas of Gresford. As we have discussed on many occasions during the passage of the Bill, the Government’s position is clear: the justice system, including youth justice, should be a reserved issue. I am sure the noble Lord will not be surprised by that response.

Under this model, the Assembly will continue to exercise legislative competence over key areas that impact on youth offending in Wales, such as health, children’s services and education. The Assembly and the Welsh Government will continue to be heavily involved in the management and rehabilitation of young offenders through partnership with the police—I note the comments made by the noble Lord, Lord Wigley, in relation to Arfon Jones the police and crime commissioner for North Wales—and devolved services under the Children and Young People First joint strategy, while a single system for managing young offenders across England and Wales is maintained.

In short, there is a very effective partnership at the moment. I appreciate that that is, to some extent, dependent on the chemistry of the people involved, so I will write on this issue to explain how it is operating at the moment—because it appears to be operating more than satisfactorily, as far as I can see. I note the comments by the noble Baroness, Lady Gale, in relation to the Charlie Taylor review. I agree that it is an important review that obviously the Government will look at.

The noble Lord, Lord Wigley, referred to the Silk commission and my role in it. The commission’s second report found that youth justice services work well and that there is close working between devolved and non-devolved partners. Its recommendation on devolution was aimed at promoting greater integration. It is quite true to say that there was a recommendation regarding devolution, but it was in the context of devolving more than youth justice. The noble Lord will know that the St David’s Day agreement that followed did not present any consensus on devolving justice. Accordingly, it is the Government’s position that all aspects of the justice system, including youth justice, should be reserved. However, we recognise the need for the close working relationship which appears to be working very well at the moment.

--- Later in debate ---

For that reason—and I conclude on this; I apologise for my argument being at some length, but I think the issues it raises are substantive and need to be put on the record—I have tabled this amendment requiring parliamentary scrutiny of the fiscal framework and, most importantly, agreement to its detailed terms by the Welsh Government before the Bill can come into force. Given the spirit in which the Minister has responded to many of the amendments moved and tabled in the last few weeks, I very much hope that he will be able to accept this amendment. If there is a technical question around it, he may well be able to come back on Report to achieve the same effect; namely, that we will have the chance to scrutinise in some detail—perhaps by the committees of this House as well—the nature of the fiscal framework and what it will mean in view of the concerns that I have expressed, and which the Holtham report and the Wales Governance Centre have flagged up.

[Lord Howarth of Newport]

My Lords, I would like to ask a question of the noble Lord, Lord Elis-Thomas, about his Amendment 117. I am puzzled as to why in the last line of that amendment he has used “or” and not “and”. As drafted, his amendment would allow either House of this Parliament a veto on a statutory instrument made in Wales, and the role and power of the Assembly would be discretionary. That would seem to frustrate his own purpose. I am the more puzzled because in his Amendment 114 he uses “and” and not “or”. I would be intrigued to know why he has altered the drafting between one amendment and the other.

I turn to the amendments just now proposed by my noble friend Lord Hain. I say simply that I strongly support his proposition that the Bill should not become law until a legislative consent Motion has been passed by the Welsh Assembly. It would be ironic in the extreme if these powers were to be imposed upon the Welsh Assembly. I know that the legislation is the product of an enormous amount of consultation between the Government here, the Government in Wales and the National Assembly. None the less, it would seem at the very least a courtesy and clearly appropriate, within the proper spirit of devolution, that the legislative consent Motion should be expected and required from Wales to endorse this legislative enactment.

I also want to say a word about my noble friend Lord Hain’s Amendment 120A. He has given a very serious, important and compelling warning as to the dangers for Wales of being charged with income tax-altering powers—and perhaps coming under pressure actually to use them—without there being a reliable guarantee by the Government of the United Kingdom that Wales will have the resources to enable it to take advantage of those powers towards rates on income tax, without it leading to the fiscal impoverishment of Wales and the wider impoverishment of the Welsh economy and people. I give my strong support to my noble friend’s suggestion that none of the legislation that we have been debating in the Bill should come into force until that fiscal framework is in place. Indeed, I would go further. I suggest to the Minister that we should not proceed to Report on the Bill until we have that fiscal framework, because it seems very difficult for the House rationally to take decisions about what powers should be reserved and devolved in the absence of any clear picture of what resources will be available to Wales from 2020 onwards, following the expiry of present undertakings.

In our debates on the reserved powers, the Minister has been highly constructive and very generous again and again in his willingness to take away the proposals made in various amendments and consider them further. We know that he seeks to provide a decent, generous and sustainable provision for devolution in Wales and it would be helpful to the House, and I dare say even helpful to him, if we did not proceed to a further stage in the passage of this legislation until the Government have also resolved these internal discussions that are taking place. In my view, the Bill was introduced prematurely to Parliament. A huge amount of work had gone into it: there have been many iterations and radical revisions of legislative proposals for devolution to Wales in this phase, and the Minister has always played a constructive part. It would be better, if there is time within this Session of Parliament, if we did not move hastily to Report until both issues have been clarified. What will be the fiscal resources in the longer term and what will be the formula or pattern of fiscal resourcing for Wales? We should not proceed further with the legislative process until the Government are much clearer than they have been hitherto on what exactly it is that they want to devolve.

[Lord Elis-Thomas]

May I extend to the noble Lord the courtesy of responding to his question relating to the amendment standing in my name? In the absence of an effective form of co-legislating between this House and the National Assembly for Wales, what I have sought to do in the process of Committee is to present to this House under my name—because there was no other way of doing it—a series of amendments which have been debated within the work of the constitutional affairs committee. They emanate from the Presiding Officer and in some cases I have even borrowed wording from the Welsh Government, with their permission, and wording from within the committee itself. We are thereby offering the Minister, as he sits before me, a whole choice—a menu—of alternatives to deal with the issues that he has created for himself. I hope that he will be able to take some of them up and that that answers the question.

[Lord Howarth of Newport]

The noble Lord, Lord Elis-Thomas, is not only a master of procedure both in the Welsh Assembly and in this Parliament; he is also most ingenious politically.

[Lord Murphy of Torfaen (Lab)]

My Lords, I support my noble friend Lord Rowlands on his tidy amendment, which comes from a tidy friend. I have had the great pleasure of knowing my noble friend for 46 years; in fact, I was still in the sixth form when he first became a Welsh Member of Parliament. I know that the Minister has been hugely constructive during proceedings on the Bill. I hope that he will listen carefully to the points made by my noble friend, the noble and learned Lord, Lord Judge, and others with regard to Amendment 111.

I also support my noble friend Lord Elis-Thomas on his amendments, particularly on what he said about the role of the Secretary of State for Wales having changed dramatically. When he was a new Presiding Officer and I was a new Secretary of State, I had a desk and a seat in the National Assembly. I also had an office there. When I had finished some years later in 2009, I had lost both my seat and my office. That was a measure of the Assembly growing up and beginning to understand that we do not want Secretaries of State interfering any more in what it does.

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[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on the amendments in this group. I shall first discuss Amendments 111 to 119, and thank the noble Lord, Lord Rowlands, for moving Amendment 111. I understand the points that he made. He was ably backed up by the noble Lord, Lord Elis-Thomas, the noble and learned Lord, Lord Judge, and others. I think that the arguments basically boil down to two strands. The first is the type of issue that is subject to this tidying-up exercise, as we see it. The second issue concerns equality of treatment of the Assembly in relation to Parliament. I will deal with both points.

First, it is not anticipated that the provision in Clause 53 will be used for anything more than minor consequential amendments. I urge noble Lords to be very careful about what they wish for in relation to this. I will double-check examples and write to noble Lords about them. But if, for example, the issue is one of tidying up an enactment to provide that a parish council in England is a community council in Wales, I suggest that that sort of issue is best dealt with in the way set out in the Bill. However, given the understandable concerns that have been raised, I will write to noble Lords giving examples in relation to that.

[Lord Howarth of Newport]

On the point the Minister has just made, would it be possible to amend the Bill to make it clear that this power is intended to deal only with minor, consequential amendments? If the Bill were able to say that in terms, it might be helpful. It might also be helpful to the courts in future if they found themselves attempting to construe the legislation.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful for the intervention of the noble Lord, Lord Howarth. I also thank him for his very kind comments earlier. I will cover these issues in a letter, if I may, as I would like to go away and have a look at this. I am certainly not making any commitment on that but I would like to give examples of how this has been used and how we anticipate that it will be used in the future.

The second issue is in many ways a more serious concern, certainly for somebody who has been a Member of the Assembly and knows that it has to be dealt with in a proper constitutional and respectful way—so I listened very carefully to what was said there. This has been a very considered debate. However, if we were to provide a role in approving regulations such as was suggested, it would be anomalous and would introduce unnecessary complexity into the process. I will explain why that is the case. In reality, we would discuss with the Welsh Government any proposed changes that impacted on Welsh legislation.

To illustrate the anomaly, the Assembly acts in exactly the same way as Parliament does. For example, the Assembly has recently passed the Renting Homes (Wales) Act 2016. Section 255 of that Act includes a power for Welsh Ministers to make consequential amendments to any enactment. “Enactment” is defined in Section 252 of the Renting Homes (Wales) Act to include Acts of Parliament and secondary legislation made under Acts of Parliament. Further, in the last two years two-thirds of Assembly legislation has had similar provisions. So, in relation to the equality argument, we are dealing in exactly the same way here as in Parliament. Noble Lords may say that that does not answer the first point, and it does not—but it certainly answers the point about equality.

Wales Bill

Lord Howarth of Newport Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Tuesday 15th November 2016 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, I have listened to so many speeches and suggestions on this Bill. Mine is a tiny contribution to that debate. I make even my tiny contribution with some perplexity; I find it difficult to consider, or to hear being considered, proposals that will have considerable costing elements to them while we are being told that a fiscal framework is being debated somewhere else. That makes the nature of the contributions that we make a little recondite. Nevertheless, we carry on.

I have read a few Bills since I have been a Member of your Lordships’ House and this one seems so extraordinary—a bit of a dog’s breakfast—with all these reserved powers, enumerated one after the other, 10 after 10 and almost 100 after 100, which makes us wonder whether there is any coherence at all at the heart of this Bill. Others will debate significant and large issues before we exhaust the consideration of these reserved powers. Mine is a very small issue, as I say, yet it will test the good will of the Government and allow us to test whether the Government are prepared to consider these issues at all. If they cannot for the issue that I shall present in a moment, I cannot see how they will begin to deal with some of the bigger things under discussion.

We recognise that gambling is a prevalent aspect of contemporary culture and takes many forms. There is no suggestion in this humble amendment of ours that we should take powers to the devolved Government stretching across all the complex picture that represents the gambling industry in this land of ours. But when I look at the Gambling Act 2005 to identify the major thrust that it seeks to put out by way of policy, I see that there are three points—and they are quickly enumerated. First, it mentions,

“preventing gambling from being a source of crime or disorder”.

There is no problem there. Secondly, it talks about,

“ensuring that gambling is conducted in a fair and open way”.

Again, surely that is not problematical for any of us. But it is the third,

“protecting children … from being harmed or exploited by gambling”,

that concerns me here.

The amendment relates to gaming machines. Of all the gambling opportunities available to people, threatening them and tempting them, gaming machines are the most obviously accessible forms of gambling and might be the most obvious temptation for children. That is where children might be most vulnerable; when they go into a premises either licensed or licensed for a different activity, but having machines within it, there might be a danger that we should seek to mitigate as far as possible.

The amendment does not seek even to control gaming machines of all descriptions. Some noble Lords will remember, from the debate in 2005, that there are four categories of gaming machine, ranging in financial levels at which gambling can take place from A to D. Here, we are referring to those where the maximum charge for use is more than £10, which is perhaps more than most children have as pocket money. However, we are not only concerned about children; we just cite them as being likely to be in the presence of these alluring machines as much as adults are. Why should this aspect of gambling not be controlled by the devolved Government of Wales, since it is so easy to identify where they are, recognising that the application for licensing premises to include and use them is a fairly mechanistic affair? There is nothing complicated here. Nor would this complicate any issues that would imperil a coherent policy across the United Kingdom. Scotland has such powers already; why not Wales?

For this humble part of the gambling industry, some sort of oversight might be devolved to the Welsh Government. In 2012, the Gambling Commission gave a lot of statistics about gambling, including some that one can extract as applying to Wales. It seems that billions of pounds are spent on gambling in Wales every year. I say “it seems” because there is no real, empirical evidence that we can tie down convincingly in a debate such as this. The Welsh Government have felt that there were other priorities than conducting statistical research in this area. However, anecdotally—and in my experience of visiting a number of communities across Wales where I hear people talk—this is a real social problem. Consequently, it seems logical to invoke the principal of subsidiarity so that control of this aspect of gambling should be as near to where the gambling takes place as one can conceive of. It is not rocket science: this is a fairly easy conclusion to reach. The problem is whether Her Majesty’s Government will be prepared to single this aspect out from the welter of other gambling activities that take place in order to allow it to be controlled elsewhere than here at Westminster.

I hope that the gentle way in which I have moved this amendment will be heard. Gentle though it is, it may be a test of the Government’s readiness to take into consideration activities which are part of the prevailing culture in Wales, where ordinary people involved in ordinary activity are sometimes easily taken out of their depth and run into danger. I beg to move.

[Lord Howarth of Newport (Lab)]

I support the amendment and, indeed, only wish that my noble friends had gone further and tabled an amendment that would have devolved legislative powers and policy-making on gambling in its entirety to Wales. Gambling is a social and moral issue and of its essence should be determined by the local community which is affected. Will the Minister say why it is the Government’s view that they must hug gaming machines to their bosom? Why are they not willing to allow the people of Wales their will, as expressed by their own Assembly in Cardiff, to go to perdition or to grace in the way of their own choosing?

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, in this group there are government amendments and non-government amendments. To try to ensure the proposers of the non-government amendments have an adequate opportunity to present their cases, I will try to extrapolate the two, although I appreciate that for Amendment 65 and government Amendment 65A it might be a little difficult as they are very much in the same territory. That apart, if I stray into non-government amendments, I would be grateful if noble Lords could gently tell me.

Government Amendment 53D modifies Section C14 of new Schedule 7A to set a more accurate devolution boundary relating to the Export Credits Guarantee Department, the ECGD. The department, acting as UK Export Finance, is the United Kingdom’s official export credit agency supporting United Kingdom exporters. Amendment 53D makes the ECGD a particular authority, thereby prohibiting the Assembly from legislating about it in any way. It replaces the existing wording, “subject-matter of” reservation, removing any uncertainty about how that reservation relates to the devolved matter of economic development, including providing advice and assistance to Welsh businesses. Its effect, therefore, is to allow the ECGD to continue to offer support, which we would all welcome.

On government Amendment 65A, the Government recognise that the Assembly has legislative competence over council tax reduction schemes. We accept that council tax reduction schemes are an integral part of the local government finance system, which is devolved. To that end, the Government have tabled Amendment 65A to remove the words,

“or liabilities for local taxes”,

from sub-paragraph (c) of the “social security schemes” definition under Section F1 of new Schedule 7A. This would remove any reference to local council tax and have the same effect as the amendment proposed by the noble Baroness, Lady Morgan.

We are content to devolve legislative competence to the Assembly as it is now an integral part of local government finance. I trust the amendment will satisfy the noble Baroness, but I look forward to hearing from her on that point.

[Lord Howarth of Newport (Lab)]

It is a good thing that the Government have decided to devolve powers relating to council tax benefit, but are they also proposing to devolve the financial resources necessary to enable the National Assembly and, if the National Assembly chooses to do so, local authorities in Wales to exercise these powers usefully and constructively?

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[Baroness Randerson (LD)]

My Lords, I shall speak to Amendments 66A, 67A and 67C in my name. Amendment 66A refers to job searches and careers. Paragraph 141 of the new schedule relates to “job search and support” and,

“arrangements for assisting persons to select, train for, obtain and retain employment, and to obtain suitable employees”.

Careers services are an exception to this reservation, which are devolved to the Welsh Assembly.

The Delegated Powers and Regulatory Reform Committee of this House queried what this means and how it would work in practice. It asked:

“Does this mean that the Assembly will have power to legislate as regards the provision of a service to assist persons in choosing a career, but that service could not include helping persons find a job in their chosen career?”.

This is clearly nonsensical. The Minister is undoubtedly well aware of this criticism in the committee’s report, so I look forward to his clarification, but I point out to everyone that there has been a long-standing issue of lack of connectivity and co-operation between the Welsh Government’s services and the UK Government’s services on job search and benefits, and a confused situation is not in the interests of people searching for careers or jobs.

Amendment 67A leaves out reservation 161 on the safety of sports grounds. It seems that the safety of sports grounds is currently within the Assembly’s competence, so this is the Government reducing the competence of the Assembly in the Bill. Why are the Government doing this? What is the key strategic reason that the Government feel ensures that they have to keep the safety of sports grounds in Wales within their control? After all, sports issues are devolved and have been since 1999. Through the Sports Council, through local authorities and through lottery funding, over which the Welsh Government have considerable influence via the Sports Council for Wales, the Assembly and the Welsh Government can fund sports facilities, right up to the level of the Principality Stadium. However, they are apparently not now considered capable of dealing with safety at those grounds. Once again, there is a lack of thinking through here—after all, who are you co-operating with in dealing with safety issues? Obviously, with the police, but also with the local authority on issues such as road closures and other facilities for crowds at sports grounds.

Finally, Amendment 67C relates to adoption. Reservation 175 relates to parenthood, parental responsibility, child arrangements and adoption. There is a lack of clarity about what this means generally, but I am specifically concerned about adoption. This is clearly a reduction in the Assembly’s current legislative competence. Other than intercountry adoption, adoption services are currently entirely devolved. This includes the recruitment of adopters, their training, matching and post-adoption support. As written, the only function that the Assembly would retain on adoption would be in relation to adoption agencies. Why have the Government decided to reduce the Assembly’s powers in this field? It is a field where it is essential that the various agencies work really closely together and that there is a seamless service for adopted children and those who are adopting. It is important that those services—social services, local authorities, education and the health service—are overwhelmingly part of the devolved picture. Adoption goes along with that very clearly.

[Lord Howarth of Newport]

My Lords, this group of amendments gives the Minister the opportunity, if he chooses to take it, to explain to the Committee what consistent principles have animated the choice of reservations that the Government have made in drawing up this legislation. We have a ragbag of reservations—as has been noted in previous debates, some 200 different reservations across an extraordinarily diverse range of policy areas—and in this group of amendments we have dealt with a miscellany of topics, including council tax benefit, careers services, sports grounds, libraries and adoption. It may be difficult to achieve consistency of principle in considering such a range of topics.

As I mentioned in an earlier debate, the Welsh Affairs Select Committee recommended that as the Government came to draw up this legislation providing for further devolution to Wales and introduced the reserved powers model, guidance should be issued to Whitehall departments as to the principles they should adopt in deciding what powers they wished to reserve to the centre—to the Government of the United Kingdom —and what questions they should ask themselves as they were judging these matters. I know that the Minister always seeks to achieve the best devolution settlement that he can for Wales. He cares about good government in Wales. He is a good representative and champion of the people of Wales and he wishes to achieve a devolution settlement that is coherent, commands wide acceptance and will endure. But it is difficult to achieve that if there is, apparently, no basis of principle for the reservation of powers.

It would be helpful if the Minister could tell us something about the process that has been adopted by the Government, partly in consultation with the Government of Wales—but I am thinking particularly of the process of consultation within Whitehall—as they came to decide that these 200 or so different powers should be reserved. Why have they chosen them? Is there any consistent principle lying behind that choice? If not, why not? Of course, the pressures of pragmatism are always very strong and one respects and understands that, but it may also be that there has been, as has also been said before in our debates, something of a dog in the manger attitude at work—that departments have not thought through with any thoroughness or care what is appropriate to devolve and what is appropriate to reserve but rather have said, “I think we’ll hang on to this”; essentially, “What we have we hold”. It would be a shame if we were driven to conclude that that was the basis on which the reservations have been chosen by the Government.

I hope the Minister can tell us about the process and encourage us to think that this has been done on a considered and principled basis and, for that reason, that these are decisions that should be respected and will stand the test of time for good, practical reasons.

[Lord Hain (Lab)]

My Lords, in supporting the persuasive case made by the noble Baroness, Lady Randerson, I want to press the Minister on the question of job searches, which are automatically part of the careers service—careers being devolved, as has been mentioned. Has the Bill been drafted with a view to DWP questions, which of course are reserved? Jobcentres, in managing benefits, are also concerned with getting people into work and therefore job searching and providing skills and so on. Are the Government looking at this matter from a DWP and therefore a reserved perspective, but not taking account of the fact that careers are devolved and job searches are by definition part of a supportive, active, flexible careers service?

Perhaps the Minister could clarify this when he responds. If the DWP dimension is the reason that this is not being devolved in the way that the noble Baroness, Lady Randerson, has argued should be the case, will he look at it again to see whether it is possible to reconfigure this part of the Bill?

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[Baroness Randerson]

My Lords, I support the noble Baroness in those comments; the amendment is in my name as well. I should declare an interest as someone who has solar panels on their roof and has therefore benefited from policy on renewable heat incentive schemes. That illustrates how locally we are talking now; we are at the other end of the scale from the previous debate, when we were wondering whether 350 megawatts was the right level for strategic national developments. We are now looking at schemes that are very local indeed.

I am particularly concerned that the reservation on heating and cooling has suddenly popped up. It was not in the draft Bill, so perhaps the Minister will explain why the Government have suddenly become concerned about such developments. My experience of combined heat and cooling networks as defined in the interpretation in Section D5 of the new schedule relates to the Llanedeyrn district heating system in Cardiff, which existed back in the 1960s. It was not terribly effective, being a pioneering system. People were either boiling hot or freezing cold because it was not sensitive to flexibility. It was therefore abandoned and the boiler house in which it was based was turned into a very useful community centre. That system was installed on what was then the council estate of Llanedeyrn at the initiative of the local council, which is where such a power should lie. It is very much a local thing.

On incentive schemes for renewable heat and for energy conservation, the policy has diverged within the UK between Scotland, Wales and England, and will continue to do so even more than now. Renewable heat incentive schemes and the encouragement of energy conservation are appropriate for local action and local schemes, because when they work best they engage the local community. It is difficult for large-scale, national schemes to appeal to and work effectively within local communities. In the USA, such incentives are provided at local council level. However, because in the UK we do not normally do these things at local council level, the Scottish Government have had a different policy. My reading of the outcome of that is that they have made significant progress, particularly in engaging communities to work effectively together on such schemes. I urge the Minister in his usual understanding manner to agree to look again at this aspect of the Bill.

[Lord Howarth of Newport]

My Lords, the Government’s contention that energy policy-making powers, even on such intrinsically local issues as heating and cooling and energy conservation, should be reserved to the Government of the United Kingdom, because they are essential to our country having a national energy strategy, would be the more impressive if our country had a national energy strategy, but the truth of the matter is, notwithstanding the no doubt valiant efforts of the noble Lord, Lord Bourne, when he was a Minister at the Department of Energy and Climate Change, we do not have a national energy policy.

Since 2010, energy policy has consisted of prolonged dithering in the face of major decisions that it was necessary to take, particularly on nuclear power, and on the creation of incentives for renewables, which were then removed as the Government did a complete volte-face in their attitude to green issues and green values. The consequence is that we now have unaffordable energy prices, a dangerous dependence on energy imports from politically unreliable parts of the world and energy insecurity. If the Government of the United Kingdom have proved themselves incapable of developing and maintaining an energy policy for England and Wales together, why will they not at least allow the Government of Wales to develop and maintain an energy policy for Wales?

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who participated in the debates on heat and cooling and on energy conservation. Amendment 56 seeks to remove the reservation that deals with the supply of heat and cooling. It is important to be clear that the reservation is concerned with policy on heat supply, which is analogous to the supply of every other type of energy. Heat is strategically significant and represents almost half of our energy use and around one-third of carbon emissions. I can tell the noble Lord, Lord Howarth, that the Government have a very definitive energy policy—not just when I was Minister, I hasten to add—very much signing up to the climate change targets internationally, along with many other countries, as he will know; a commitment to nuclear, which I do not think is shared, certainly, by his party leader; and a commitment to diverse sources of energy. Let us put that canard to rest: there is a very definitive energy policy.

The policy in relation to heat is significant. Heat represents, as I say, almost half our energy use and around one-third of carbon emissions. The reason that we are seeking to reserve this is because it is a relatively new technology; it is about supplying heat, through policies such as the renewable heat incentive, the heat networks investment project, the combined heat and power quality assurance scheme and innovation support, and through initiatives such as the smart systems and heat programme, all of which are part of the United Kingdom’s energy policy. I accept that rollout and delivery will always be at a local authority level, but it is question of how the framework is set. These policies already exist and benefit the people of both Wales and England. It seems clear that devolving this area would increase costs, due to a loss of economies of scale, and would add complexity and confusion for businesses and householders and add to bills. The noble Lord, Lord Howarth, touched on affordability, which is certainly a prime concern of the Government, along with security of supply and ensuring that energy is green.

Heat is not simply a local issue. There are strategic decisions to be taken over the coming years, including options that would require action at a national level, such as decarbonisation, possibly even decommissioning, of the existing gas grid. These emerging national-level heat issues mean that it would be far more effective to maintain consistency between England and Wales, and it is why grid and infrastructure issues relating to oil, gas and electricity are also reserved in Scotland as well as in Wales. I hope I have explained the Government’s reasons for this reservation and why I am not able to accept the amendment.

Amendment 57 seeks to remove the reservation that deals with energy-efficiency requirements. The reservation uses the term “energy conservation” to reflect the language in the existing devolution settlement. It is our contention that energy efficiency is a subset of energy conservation. I will write to the noble Baroness, Lady Morgan of Ely, with some of the technical detail on that, if it would be helpful. The settlement provides for the Assembly and Welsh Government to have powers on energy efficiency, except via the use of regulation or prohibition. It is not as if there is no power in relation to energy-efficiency; it is just in relation to regulation or prohibition. For example, it would allow schemes to advertise energy-efficiency measures—I think that is probably something the Welsh Government already do, although I stand to be corrected on this.

The reservation in this amendment, however, covers home and business energy-efficiency measures that are imposed by regulation, and so have been implemented by, or under, legislation or equivalents, such as licence conditions imposed on gas and electricity suppliers. Having separate energy-efficiency obligations for England and Wales would be likely to increase the complexity and costs for organisations involved in delivering the obligations, with an impact on consumer bills. That is something the Government cannot sanction and, on that basis, I urge the noble Baroness to withdraw her amendment.

Wales Bill

Lord Howarth of Newport Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Tuesday 15th November 2016 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, in warmly endorsing the case made by my noble friend Lady Morgan of Ely on the three amendments in this group, I shall add a word on Amendment 73 concerning the regulation of the design and construction of buildings. I shall illustrate why it would be unfortunate if this reservation were to be retained and why my noble friend is right to propose that this should be devolved. We have seen extraordinary vagaries in building regulation policy on the part of the Government of the United Kingdom. For example, the Government committed themselves to a requirement that all new homes should be designed to be lifetime homes by, I think, 2013. That was a commitment made in 2008, but when the moment came in 2013 and it had not been met, when the change to the building regulations was announced in 2015, the lifetime homes criteria were so diluted as to be rendered almost useless and ineffectual.

Let me explain what this is all about. Originally the Joseph Rowntree Foundation and subsequently the Habinteg Housing Association developed 16 design criteria to ensure that the design and construction of new homes is such that they can be easily adapted at minimal cost to become more accessible to people as their lives go on, as they become older or as they become disabled. It makes eminently good sense economically and socially, yet we have seen a reneging on the commitment that had previously been made. The same has happened with another commitment by government to require that new homes should be designed and constructed so as to be carbon neutral; this was to be achieved by 2016. It was hailed as a very progressive and excellent policy in the interests of the environment, but again in the same set of announcements in 2015 the Government reneged on the commitment, and of course it was a turning point that was deplored by everyone who cares about the environment. So what we have seen is a set of decisions on housing design made in Whitehall and at Westminster which have been detrimental to the environment, the construction industry, the architectural profession and surveyors, and detrimental to the interests of disabled and elderly people, all of which will add costs to social services and the health service because the longer you can keep people in their own homes, the better.

I do not want to elaborate on or labour the point any further except simply to say that whereas it is clearly the right of the Government of the United Kingdom, but regrettable when they use it, to march people up the hill and down again and to do these about-turns on policy, and to retrogress in terms of social and environmental policy, I cannot see why these processes should be inflicted on Wales. If Wales wishes to pursue a project to create carbon-free homes and build lifetime homes for the people of Wales, why on earth should it not be entitled to do so? This is just an instance of where I think it would be greatly to the detriment of Wales if the Government insist with the rigour they are applying at present on denying Wales sensible discretion on matters that on any reasonable basis could well be devolved and where we have actually seen the practical effect of policy as made in London being seriously detrimental.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Baroness, Lady Morgan, for proposing these amendments.

Amendment 71 would devolve to the Assembly competence to legislate for how infrastructure funding should be collected in relation to development. This is currently accomplished through the community infrastructure levy, which applies across England and Wales, and the mechanisms we use to raise funding for infrastructure to support development are undoubtedly important. I appreciate the points made by the noble Baroness and I am aware of the issues raised on the matter in the other place. In addition, the Welsh Government have argued persuasively in discussions with the UK Government that the community infrastructure levy should be devolved. I can therefore confirm that, as the Secretary of State announced on 31 October, we are content to devolve competence over the levy to the Assembly and I expect to table a government amendment on Report to achieve this. I hope that that is reassuring to noble Lords.

The noble Baroness, Lady Morgan, made some interesting points, when speaking to Amendment 72, about why she believes that the compulsory purchase law in its entirety should come within the legislative competence of the National Assembly and not be reserved to the United Kingdom Parliament. The debate has highlighted the lack of clarity that exists in the current devolution settlement. As compulsory purchase is a so-called “silent subject”, the United Kingdom Government and the Welsh Government have formed different views on the extent of the Assembly’s legislative competence in this area.

This reservation has been the subject of detailed and productive discussions between the United Kingdom Government and the Welsh Government. The United Kingdom Government consider that legislating on the general rules and framework of the compulsory purchase system, such as the compensation regime in the Land Compensation Acts, falls outside the Assembly’s current legislative competence. However, we accept there are arguments that the Assembly could confer or modify powers in legislation for bodies to acquire land by compulsion for devolved subjects. These would include powers for local authorities to acquire land for housing, planning or education purposes, among others.

I assure the noble Baroness that discussions between the two Governments on this reservation are at an advanced stage and appear to be going well. Discussions are fruitful. I would therefore like to reflect further on her points as the Government conclude their consideration of the extent of this reservation.

Amendment 73, also tabled by the noble Baroness, Lady Morgan, seeks to remove the reservation concerning building standards and building regulations. The noble Lord, Lord Howarth, also spoke with effect on this. Before responding to the amendment, I note that, through earlier transfer of functions orders and Clause 47 of the Bill, Welsh Ministers will have powers to make building regulations in respect of almost all buildings in Wales. There will now be parity in England and Wales as to buildings for which building regulations may be made by the Secretary of State and Welsh Ministers respectively. As drafted, the noble Baroness’s amendment goes considerably wider than this to devolve competence to the Assembly over building standards. I am aware that this devolution is being sought by the Welsh Government. There are some genuinely difficult issues here in terms of organisations currently exempted from the application of building standards in England and Wales. I am none the less happy to reflect on this further, with a view to returning to it on Report.

I hope I have been able to provide reassurance to the noble Baroness and I ask her not to press her amendments.

Wales Bill

Lord Howarth of Newport Excerpts

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

[Lord Crickhowell (Con)]

My Lords, a good many years ago I and my wife visited the Welsh settlement in Patagonia. We were greatly impressed and moved by what we found there. We met a large number of people with Welsh names. Indeed, we stopped to picnic by the roadside and an individual in a truck drove up and asked what we were doing. We told him why we were there. He said, “Oh, he’s Welsh”, pointing to the nearest farm, the owner of which had a Welsh name. He pointed at another farm and the owner of that one had a Welsh name. We found wonderful examples of Welsh culture and the Welsh language, and an enthusiasm for Welsh culture and language that I, for one, found greatly moving and was very impressed by.

I know that, a good time after our visit, the support described by the noble Lord began. It has continued and has been very successful and influential. I hope it can be continued. It may be that my noble friend will be able to tell us that the amendment is not needed, but if by any chance it is it has my warm and wholehearted support.

[Lord Howarth of Newport (Lab)]

My Lords, while I share the aspirations of the noble Lord, Lord Wigley, I would like to ask him a couple of questions. The condition of his amendment is that the provision should have,

“the agreement of the UK Government and the Government of Chubut”.

Can the noble Lord tell us that he has squared the Government of Argentina, or is that not necessary because competence in this matter has been devolved from Buenos Aires to Chubut?

[Lord Wigley]

Indeed. Education in Chubut is a wholly devolved matter in Argentina. The state legislature of Chubut has been very positive on these matters. It contributed to the opening of Ysgol yr Hendre 10 years ago, which I mentioned. It is now actively involved in the possibility of expanding the school at Gaiman. In other words, there is a good working relationship between the Government of Wales and the Government of Chubut. The central Argentine Government have been very supportive. Indeed, they have provided funds to safeguard all 16 of the Welsh chapels in Patagonia to ensure they all remain open, provided there is one service once a quarter in each of the chapels. In other words, whatever other dispute there may be—disputes do arise in Argentina on various matters—on this issue there is harmony that is well worth building on because of its interest not only in Argentina and to Wales but to the United Kingdom in our relationship with Argentina.

--- Later in debate ---

[Lord Elis-Thomas]

I have always believed that constitutional legislation in any state should be intelligible, or as intelligible as possible, not only to the practitioners of public life but to the general public. This is particularly the case with the constitution of Wales. The episode that we are now involved in is a further obfuscation of the constitution rather than its opening out to intelligibility, which is why these amendments on consolidation are important. I am grateful for the support of the noble Baroness, Lady Finlay, who will no doubt want to speak to them.

The question of how a constitution is made accessible was highlighted in the outstanding judgment of the High Court last week. In their judgment, their Lordships said:

“The United Kingdom does not have a constitution to be found entirely in a written document. This does not mean there is an absence of a constitution or constitutional law. On the contrary, the United Kingdom has its own form of constitutional law, as recognised in each of the jurisdictions of the four constituent nations”.

But because the constitution of Wales is currently spread over four pieces of legislation, it hardly meets the test of being intelligible to the population or to any of those active citizens who wish to participate in understanding their constitution.

This has been a persistent theme of the National Assembly’s relevant committee dealing with constitutional matters. That is why the predecessor committee of the current one, of which I was also a member for a period, recommended that a clear commitment should be given to consolidating the constitutional legislation of Wales and to having this done in the current parliamentary term. If for good reasons of their own the UK Government did not feel able to undertake such consolidation, there should also be a clear provision—or at least there should not be any hindrance—in any Bill so that the National Assembly itself could undertake it. Amendments to this effect were tabled in another place and in the debate the UK Government said this was not necessary because the constitutional settlement for Wales is the Government of Wales Act 2006 as amended—a matter to which I alluded earlier. Quite simply, the urtext that is the basis for our understanding of the constitution of Wales is the Government of Wales Act 2006 as amended, but it does not meet the test of consolidation and intelligibility.

Is it not now time to give the people who are most concerned about this matter—those of us who must live and work through the constitution we are given by courtesy of the Houses of Parliament of the United Kingdom—responsibility to make that consolidation? It is not an attempt to amend legislation, merely to consolidate it. This approach should recommend itself to all who are concerned about constitutional clarity and democratic principles. All that Amendments 43 and 44 would do is permit the National Assembly to consolidate the devolution statutes relating to Wales in both its languages. This is not to blow my own trumpet because I happened to be born bilingual, but we are officially a bilingual legislature. We work actively and daily in two languages. To allow us to legislate and provide consolidation in this area would mean that we were able to serve our citizens much more effectively. I beg to move.

[Lord Howarth of Newport]

My Lords, I have huge sympathy with what the noble Lord, Lord Elis-Thomas, just said. Why have the Government not presented this legislation to Parliament in consolidated form? That would have greatly facilitated scrutiny and, more importantly still, as the noble Lord suggested, it would be for the benefit of the people of Wales and all our fellow citizens who are interested in and care about the development of our constitution, by enabling them much more readily to understand the Government’s constitutional proposals. I cannot see why we must wade through these thickets of legislative obscurity to try to get the measure improved and an adequate and comprehensible piece of legislation presented to the world.

[Lord Crickhowell]

My Lords, I have every sympathy for what has been said about consolidation. My difficulty is more fundamental. I am not a lawyer, and I know I am a bear of very little brain, but quite frankly, I do not understand what lines 5 and 6 mean. I should be grateful if the Minister could tell me, in simple language, what on earth they mean, because it is far from clear to me.

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[Lord Elystan-Morgan]

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

[Lord Howarth of Newport]

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

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

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[Baroness Finlay of Llandaff]

My Lords, I know that the hour is late. I want to endorse the sentiment expressed so clearly just now by the noble Baroness, Lady Randerson. Although it is late, we have to cover these topics because there is no other opportunity to do so and I am concerned. I have already heard that the Minister is not going to accept the amendment looking at alcohol licensing but I hope that he will at least listen to what I say and agree to meet me after this, because it is terribly important. The noble Lord, Lord Elystan-Morgan, eloquently described the moral geometry and the problem of an utterly local issue being held in a reserved power. I suggest that that applies exactly in terms of alcohol licensing because the health and well-being of the Welsh population require some control over the way that alcohol is sold and supplied. It is widely acknowledged that that is one of the most effective ways of tackling alcohol harms.

The wording of the Bill would appear to be even more restrictive than the current exemption, which would mean that the proposals in the draft Public Health (Minimum Pricing for Alcohol) (Wales) Bill would be a reserved matter, and therefore outside the legislative competence of the Assembly itself. It would seem only sensible to add the protection of health and well-being to the four points listed by the Minister in relation to licensing.

Alcohol remains a major cause of preventable death: the Public Health Wales Observatory has reported that:

“Every week in Wales alcohol results in 29 deaths; around 1 in 20 of all deaths”.

This impact of alcohol puts enormous pressures on health systems. Every week, hospitals handle as many as 1,000 admissions related to alcohol. Emergency departments are straining. When people in Wales go into those emergency departments and see them full of alcohol-fuelled harm and its effects, they ask: “Why isn’t the Assembly doing something about it?”. The answer is that it cannot because the thing that it wants to do—to look at the sale and supply of alcohol—comes outside its powers.

We know, sadly, that alcohol consumption in Wales remains a problem. In the latest Welsh Health Survey, 40% of adults still reported drinking more than guideline amounts in the previous week. There is a pressing need to tackle alcohol misuse, using every tool available to government. That means policies that control the licensing and supply, which are the only way that we can promote sensible drinking. It would also require licence holders to offer a ratio of non-alcoholic drinks to alcoholic drinks on their premises to give people a wider choice—to be social but not to get completely destroyed by the adverse effects of alcohol.

The Bill should provide an opportunity to address health and well-being. The sad thing is that Wales bears the costs of the alcohol abuse, particularly in expenditure on health and social care, yet it is not being allowed to have control over licensing and supply as part of its national strategy. When tackling alcohol harms in Wales, the Assembly is operating with more than one hand tied behind its back. It just seems a completely inexplicable state of affairs.

[Lord Howarth of Newport]

My Lords, it is simply demeaning for Wales that public order and policing should not be devolved. Why should Wales, which has a mature Assembly and is a nation anxious to take more responsibility for its own affairs, not be allowed the same level of responsibility as Northern Ireland and Scotland? I have not heard a good reason. I do not believe that there is any greater necessity to have a single system embracing England and Wales than there is for other parts of the United Kingdom.

If the Government would be a little bolder and allow devolution of responsibility in such matters as drugs and alcohol, everybody might benefit because Wales would have the opportunity to experiment with policy. In the field of drugs and alcohol, for example, we know very well that the existing orthodoxies, practices and policy are not working particularly well. Often they are working downright badly. We have huge problems with regard to drugs and alcohol. Surely it would be better to allow Wales to pioneer and develop policies of its own. Wales would obviously have to take responsibility and a degree of risk, but it is surely better that it should be able to take responsibility and to experiment than that we should simply carry on in Wales with orthodoxies that have failed in the United Kingdom as a whole. No harm has been done by Wales having a degree of independence in education policy—in schooling, for example—so surely that is the right principle.

There will, of course, be questions of resources if more responsibilities, particularly the major responsibility for public order and policing, are to be devolved. In consideration of that we have again to go back to the question of the devolution of income tax-varying powers. We debated that issue earlier this afternoon. I shall very gently make a point to the noble Lord, Lord Crickhowell, who disputed whether a manifesto commitment was being broken by the Government. If he looks at the Second Reading debate in the House of Commons on 14 June, at col. 1653 he will see his Conservative colleagues Mr David Jones, the former Secretary of State, and Mr Chris Davies, the Member of Parliament for Brecon and Radnorshire, bemoaning the fact that the Government have, in fact, broken a manifesto commitment in that regard. I do not want to labour the point, but it ought to be corrected for the record. Certainly we have to consider, in conjunction with the question of what reservations are appropriate and what reservations the Government may decide after all to abandon, the associated question of resources—because it is no good willing the end without enabling the Government of Wales to have the means.

[Baroness Morgan of Ely]

My Lords, I know it is very late, but this a critical group of amendments. This is the first time we have discussed the reservations, and it worth pausing a moment to think about them and the way the Government have approached this issue.

There are a number of reasons why I think the Government’s approach to how they have included certain reservations is lacking. I shall refer to some key quotations. The first comes from a letter from the First Minister to the then Secretary of State for Wales after the Secretary of State announced in November 2014 a programme of work designed to produce a new devolution settlement for Wales. The First Minister expressed his support and said that,

“previously, under administrations of both political colours, the development of a clear and robust settlement has … been hindered by a nit-picking reluctance on the part of particular Whitehall Departments to acknowledge the case for further transfers of responsibilities. It will be important that that reluctance should not re-emerge”.

However, I am afraid we have seen it again.

Wales Bill

Lord Howarth of Newport Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Howarth of Newport (Lab)]

I have one very naive question, in which I shall simply display my ignorance—but I am puzzled by the explanation given in the Explanatory Notes that Clause 18(1) inserts a new section into the Government of Wales Act which,

“confers common law type powers on Welsh Ministers”.

That is the passage that the noble Lord just quoted. I thought that the judges and the courts created common law; I did not think that the Ministers created it. I would be most grateful if someone, presumably the Minister, could educate me on that point.

[Baroness Morgan of Ely (Lab)]

We have quite a strange group of amendments here but, rather than uncouple them, I would like to suggest a degree of support for the points raised by the noble Lord, Lord Elis-Thomas, and the question from my noble friend. We believe that our amendments, notably Amendment 29 in the next group, will achieve the same result of a better alignment between the Assembly’s legislative competence and Welsh Ministers’ executive powers. I shall save my comments on the general principle of aligning legislative and executive powers until the next grouping.

I shall address the specific issue of fishing, addressed by one of the government amendments in this group. At present, Welsh Ministers have powers to exercise fisheries functions in relation to Wales and the Welsh zone. The Welsh zone includes a zone of 12 nautical miles next to the Welsh coast and the territorial sea, which, because Ireland is to the west of most of Wales, reaches beyond that point significantly only in the south-west of Wales, on the Pembrokeshire coast. Unfortunately, the extent of Welsh Ministers’ powers do not reflect the arrangements in England and Scotland, with those Administrations having executive powers in relation to their relevant areas. My understanding is that the Welsh Government have pursued a solution to this for several years, so it is encouraging that the amendment has been brought forward.

The amendment goes some way to addressing requirements, but it requires further work to work properly. For example, as currently drafted, the amendment would permit functions under Section 5 of the Sea Fish (Conservation) Act but not Section 5A, which permits functions to be exercised for “marine environmental purposes”. A number of other aspects need to be considered. It would be better if the amendment mirrored the scope of the Welsh Zone (Boundaries and Transfer of Functions) Order 2010, which covers the sort of functions required. It would help to achieve a degree of consistency around who controls fisheries management measures. While we support the Government’s amendment on fisheries as far as it goes, we hope that further work can be done on this matter before Report to ensure that the provisions are fit for purpose.

--- Later in debate ---

[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 Thomas of Gresford (LD)]

My Lords, on 5 July, in the House of Commons, the Government promised to produce draft transfer of functions orders. Have those been produced so far—and if not, why not? Is the noble Baroness, Lady Morgan, right when she says that they will be conferred functions rather than reserved functions?

Wales Bill

Lord Howarth of Newport Excerpts

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

[Lord Thomas of Gresford (LD)]

My Lords, I wonder whether I can assist the noble Lord, Lord Kinnock, in his final question by telling your Lordships about my brother-in-law, who is Welsh, but who has lived in Aberdeenshire since the 1970s. In 1979, like the noble Lord, Lord Kinnock, he was wholly against devolution to Scotland. In 1998, he had not changed his mind, unlike the noble Lord, Lord Kinnock, and in the referendum he voted no to devolution to Scotland, but yes to tax-raising powers if a Parliament should be formed. At the time, we thought this was slightly odd. But what he was saying was that you should not have a parliament unless it is accountable—fully accountable. That is the point.

A lot of water has flowed under the bridge since the Welsh Assembly was constituted, and the Labour Party has, one way or the other, exercised power in Cardiff since its inception—it still does. The purpose of a proper Government is to raise taxes and to spend them, and to be accountable to the people from whom they raise those taxes as to how they handle their money. It is a perfectly simple proposition, but for the last 20 years, we have heard from the Labour Government in Cardiff that if they are incapable of providing adequate services in Wales—for example, in the health service or in education—it is because they do not have enough money sent to them from Westminster.

It does not require a referendum now. The reason why a referendum was provided for in the last Bill and why it appeared to be a good idea was that we were following the Scottish practice of 1998. But we moved on; devolution has moved on. We were tired, as my noble friend Lady Humphreys said, of the excuse that we are failing as a Government because Westminster does not give us enough money. It is time that income tax is devolved to Wales and that proper accountability should occur.

[Lord Howarth of Newport (Lab)]

My Lords, I will briefly emphasise a point strongly implied by my noble friend Lord Kinnock but perhaps not yet made fully explicit in this debate, which is that there is an issue here about trust between people and their politicians. As has been noted, the Labour Party, the Conservative Party and others have promised a referendum on this question of income tax-varying powers over many years. Indeed, if I am not mistaken, it was a manifesto pledge by the Conservative Party at the last general election, and we need to look at that question of whether it is acceptable and politically prudent for a Government to slide away from a manifesto commitment that was so very clearly made.

I understand, and in large measure agree with, the point made by my noble friend Lord Morgan about the unsuitability of the referendum as a device for resolving technical and complex political issues. I also accept what has been said about income tax-varying powers being a mark of the maturity of the Welsh Assembly, which may call itself a Welsh Parliament. It is desirable in principle that a parliament should have those powers and be held accountable to the people on whom it would propose to levy income tax. It is perhaps desirable that these powers should be created, but one must also recognise that if the people of Wales are asked in a referendum whether they favour the introduction of powers that they would anticipate will be used to raise income tax, they might well say no. Taxable capacity in Wales is decidedly limited, and people on the whole do not vote for higher taxes. But none the less, if they have been offered the opportunity to make that choice for themselves, it may well be rash and improper to take that choice away from them.

The alternative will be that this legislature will impose on Wales an income tax-varying power for the Welsh Assembly. It has been assumed in this debate that that power to raise income tax would be most unlikely to be used in the foreseeable future. But I do not entirely share that confidence, because we have no long-term fiscal framework and no settlement. The Barnett formula has not been reformed, and I agree with those who have said that to wait to move on this until that formula is fully and satisfactorily reformed is to wait for ever. It is not beyond the bounds of possibility that, after 2020, we could see a future Government of the UK reducing the block grant for Wales—indeed, if the Government have their way in this Bill, we will see borrowing powers for Wales very severely curtailed—and in those circumstances Wales would need to increase the proceeds of income tax and to use those powers.

--- Later in debate ---

[Baroness Randerson]

My Lords, undoubtedly £500 million is an anachronistic figure. As has been said several times this afternoon, devolution has moved on, and time has moved on. However, I draw noble Lords’ attention to another aspect of the Silk recommendations—namely, the fact that the report said that the borrowing limit should be subject to review at each spending review. Therefore, it is my view that, rather than putting a bald figure in the legislation, we need not just a figure but a mechanism in law which requires the regular review of that figure. Further, the Explanatory Notes should at the very least give some kind of rationale for how the figure was arrived at as the appropriate figure. I ask the Minister to address that issue in his reply.

Having said that, the key point is that borrowed money has to be paid back out of future spending—so the more the Welsh Government borrow, the more they eat into their spending capability in future years. I am rather cautious about this figure of £2 billion, because the Scottish Government have a right to borrow £2.2 billion. Therefore, to balance this properly, we need to look in great detail at other borrowing obligations that the Welsh and Scottish Governments have.

Given that the Bill clears the way for income tax powers, it is obvious to me that the £500 million figure needs to be looked at—but we need more clarity on the figure that is there and a proper mechanism for future revision.

[Lord Howarth of Newport]

My Lords, the figure of £500 million, set as the limit for borrowing by the Welsh Government, is so small as to be well inside the margin of error in any computation of UK Government borrowing. Will the Minister say what £500 million is as a percentage of the UK Government’s present borrowing requirement? To set the figure so low is contemptuous of Wales. With the powers to vary income tax devolved, the Welsh Government will have the capacity to service a higher level of borrowing, even if interest rates rise. I agree with those who have said that it seems very odd to fix a figure in legislation. Will the Minister also explain why that fixed figure of £500 million is in the Bill? I think that the Government should be more generous towards the people of Wales and allow them the opportunity to invest as they need for the future of the economy of Wales.

[Lord Berkeley of Knighton (CB)]

My Lords, if EU investment in south Wales suffers, as some of us fear it might, we could find ourselves with some very dire unemployment problems. Therefore, we will need every penny possible to reinvest in that area.