Wales: Financial Powers

Lord Morris of Aberavon Excerpts

Monday 4th November 2013 Lords Chamber

[Baroness Randerson]

I thank the noble Lord for his Question. Undoubtedly the continued interest in this issue from all sides of the House and well beyond it will have had an influence on ensuring that we had a positive response to the Silk commission’s first report. The Silk commission made 33 recommendations but the announcement on Friday did not go into detail on many of those. A full response to the Silk report will be issued in the next couple of months so that we will be able to deal with this by the end of the year. The intention is that a draft Wales Bill will incorporate Silk recommendations that the Government have accepted, where legislation is necessary. The Government intend to pursue that, if possible, in the fourth Session of this Parliament.

[Lord Morris of Aberavon (Lab)]

My Lords, I was glad to hear the Prime Minister say on Friday that he believed in devolution. I was hoping for the Welsh Secretary to say something on his visit too. Does he also believe in devolution? In the absence of a more equitable allocation of financial resources by Westminster to Wales, do the Prime Minister’s proposals mean that to fund matters such as a Newport road development, Wales will be expected to pay for them out of new Welsh taxes?

[Baroness Randerson]

The noble Lord has asked two essential questions. My colleague the Secretary of State for Wales has worked extremely hard to ensure that this report has had a positive response from the UK Government. I remind the noble Lord that there was an agreement in October 2012 between the Welsh Government and the UK Government on the future of the Barnett formula. The agreement was that there would be a review process at each spending review, and that if there was future convergence—if that started again—then it would be dealt with by the two Governments working together.

Justice and Security Bill [HL]

Lord Morris of Aberavon Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I can assure the House that we are aware of the concerns expressed not just by Mr Tyrie but by a range of people during the consultation and subsequently. We have sought to wrestle with those concerns. I indicated that it is the age-old challenge between trying to balance the interests of security and liberty. I can assure the House that in presenting the Bill we have sought to wrestle with these issues and to come forward with a set of proposals that are sensible, proportionate and targeted at a genuine and serious problem.

I begin with the important matter of improved parliamentary and independent oversight of the security and intelligence agencies. The Intelligence and Security Committee does an excellent job of overseeing the administration, expenditure and policies of the agencies. I know that members of the committee are present here today and have put down their names to speak in the debate. However, the ISC operates within arrangements that were established by Parliament in 1994. In the past 18 years, and particularly since 9/11, the public profile and budgets of, and indeed operational demands on, the agencies have significantly increased, but there has been no change to the statutory arrangements in place for oversight.

Although in the past the ISC has overseen operational matters, it has done so relatively infrequently. The ISC has no explicit statutory locus to oversee such matters. Its statutory remit is also limited to oversight of the security and intelligence agencies, although it has long heard evidence from the wider intelligence community. The ISC currently reports only to the Prime Minister, who appoints its membership, and there are some limitations to the way it works. The heads of the security and intelligence agencies can, in certain circumstances, withhold information from it. The ISC is wrongly perceived by some to be a creature of the Executive, not least as it is funded and staffed by the Cabinet Office. We believe it is time to put the ISC on a much stronger footing and enhance its independence to strengthen the very valuable work it has done so far and give Parliament more effective oversight of the intelligence and security agencies.

Part 1 of the Bill extends the ISC’s statutory remit, clarifying that it will in future be able to oversee the agencies’ operations. It will also in future report to Parliament as well as to the Prime Minister. Its members will be appointed by Parliament, after nomination by the Prime Minister. In parallel, the Government intend to press ahead with the Green Paper proposals that the ISC is funded by Parliament, accommodated on the Parliamentary Estate and that its staff will have the status of parliamentary staff. Finally, the power to withhold information from the ISC moves to the Secretary of State responsible for that agency; in other words, to a democratically accountable representative. These may sound like technical changes but together they will help to ensure that we have effective, credible and genuinely independent oversight of the activities of the security and intelligence agencies, renewing public confidence that someone is watching the watchers on their behalf.

The provisions of the Bill that have to date probably prompted the most comment are in Part 2, including the use of closed material procedures. The Government are strongly committed to open and transparent justice. However, the courts have long accepted that sensitive intelligence material—for example, the names of security agents or information about techniques used by intelligence agencies—cannot be disclosed in open court. In the famous case in the last century of Scott v Scott, Viscount Haldane in the House of Lords acknowledged that exceptions to that principle of open and transparent justice,

“are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done ... As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield”.

Under current rules, the only available way of protecting sensitive intelligence material which would otherwise be disclosed, and which would damage the public interest if disclosed in open court, is to apply for public interest immunity. If such an application is successful, the result is the exclusion of that material from the court room. An example of the difficulties which may arise is where a case is so saturated in this type of sensitive material that the PII procedure removes the evidence that one side, either defendant or claimant, requires in order to make its case. The options, then, are not attractive. In judicial reviews, the Government may find themselves unable to defend an executive action taken to protect the public—for example, the exclusion from the United Kingdom of a suspected terrorist or gang lord—simply because they cannot explain their decision when defending it. Equally, claimants may find themselves unable to contest a decision taken against them. This is what Mr Justice Ouseley observed in the recent case of AHK and others where claimants were challenging decisions to refuse naturalisation. His Lordship noted that if the alternative to a CMP is,

“that the claimant is bound to lose, no matter how weak the grounds against him, there is obvious scope for unfairness towards the claimant”.

In claims for civil damages, typically against the Government, the defendant is either forced to seek to settle the case by paying out compensation, assuming the other side is willing to agree to settle, or it has to ask the court to strike out the case as untriable. The result is that these cases are not heard before a court at all. There is no independent judgment on very serious allegations about government actions. The recent settlement of the civil damages claims brought by the former Guantanamo Bay detainees underlines this point. The evidence on which the Government needed to rely in order to defend themselves was highly secret intelligence material, which could not be released in open court.

[Lord Morris of Aberavon]

I am grateful to the noble and learned Lord. The use of public interest applications is familiar to many of us, even in quite ordinary run-of-the-mill cases brought before a recorder. What is the best estimate the noble and learned Lord can give of the volume of applications where something more is required such as the closed material procedures now proposed?

[Lord Wallace of Tankerness]

My Lords, I am cautious about hazarding the estimate that the noble and learned Lord asks of me. In the Green Paper, we indicated that the kind of cases that we were looking at were 27 current claims. The most recent figures that I have, as of yesterday, show that the numbers have fluctuated somewhat since October 2011 at the publication of the Green Paper. Currently, there are estimated to be 29 live cases, which were of the type cited in the Green Paper. To give an estimate of the number of cases where sensitive information was central to the case, based on current cases handled by the Treasury Solicitor, there are 29 live cases but they exclude a number of appeals against executive actions that are currently stayed. There are 15 civil damages claims; three asset-freeze judicial reviews; seven exclusion judicial reviews; four lead naturalisation judicial reviews; and around 60 further naturalisation judicial reviews stayed behind these cases. I hope that gives the noble and learned Lord and the House an idea of the kind of figures that we are dealing with where we believe that sensitive information is central to the case, based on the estimate of the Treasury Solicitor at this time.

The recent settlement of the civil damages claims brought by the Guantanamo Bay detainees underlines the point that I was making. The evidence which the Government needed to rely on in order to defend themselves was highly secret intelligence material, which could not be released in open court. One option open to the Government would have been to claim PII over that material. If the PII claim had been successful, the Government would have succeeded in excluding a very large quantity of material, but material that they would have wanted to rely on to defend their position. The only practical option was to settle the claims for significant sums without admitting liability.

Although the numbers of these cases are small, they often contain extremely significant allegations about the actions of the Government and the security and intelligence agencies. There is a real public interest in being able to get to the truth of such allegations. Indeed, I think it is arguable to say that the rule of law is supported by courts being able to reach determinations on such matters. Although such settlements are often made without any admission of liability being made, as we all know, mud sticks. Allegations have been made in public that have never been examined or rebutted, and many people choose to believe that they are true. The damage to the reputation of this country can be immense and those unrebutted allegations can be used by individuals seeking to garner support for terrorism in retaliation for perceived wrongdoing by this country.

This is the backdrop against which our plans to allow material to be heard in court via CMPs should be seen.

Fixed-term Parliaments Bill

Lord Morris of Aberavon Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, that Government will require a confidence vote of Members of the House of Commons. It is the House of Commons that will determine the matter. That is an important point. If you have a fixed term but there is a clear consensus for a dissolution, there is a provision to trigger that. But if the House of Commons wishes to place its confidence in a Government, that is a matter for the House of Commons.

[Lord Morris of Aberavon]

My Lords—

[Baroness Taylor of Bolton]

My Lords—

[Lord Wallace of Tankerness]

I am trying to make some progress, because I have been speaking for a while. I am sure that we will have plenty of opportunity to come back to this.

[Lord Morris of Aberavon]

I am grateful to the Minister. This is an intrinsically important point. In all our experiences, a vote of confidence in the House of Commons is a rare event of crucial importance. We all know what it means: we are summoned back from the end of the earth to take part in it. As has been pointed out by the noble Lord, Lord Richard, why should a Government, having lost a vote of confidence, have a second chance at all?

[Lord Wallace of Tankerness]

My Lords, the House of Commons would determine this. As the noble Lord, Lord Richard, said, the Government might then be of a different composition, but they would come from those who have been elected to the House of Commons for a term of five years. If they cannot form a Government and no Government can command the consent to a majority in the House of Commons, there would be an election. If that could not be done within 14 years—I mean, within 14 days. [Laughter.] That is probably wishful thinking on some people’s part. If that could not be done within 14 days, there would be an election.

Clause 3 makes the key necessary changes to electoral law and the law concerning the meeting of Parliament in light of fixed days for elections. It provides that Parliament dissolves automatically 17 working days before the polling day, which has been fixed for the general election under the Bill. It means that Her Majesty the Queen will no longer be able to dissolve Parliament in exercise of the prerogative. This is a safeguard against a Prime Minister deciding that he wishes to ignore the requirements of the Bill and advising Her Majesty to exercise her power to dissolve Parliament.

Clause 4 deals with certain supplementary and consequential matters. It preserves the Queen’s power to prorogue Parliament. Subsection (2) preserves the traditional way in which the sealing of a proclamation summoning a new Parliament under the great seal of the realm is authorised, which is by Order in Council rather than by warrant under the royal sign manual.

Clause 5 sets out the short title of the Bill and the schedule contains consequential amendments to a number of Acts of Parliament. I do not intend to go through them all, but included among them is the Septennial Act 1715, which, after amendment by the Parliament Act 1911, set the current five-year term for Parliament.

The Fixed-term Parliaments Bill will be seen as a stabilising measure. It will reduce opportunities for partisan game playing. In a situation where we are so often told that the Executive are trying to gather power to themselves, under the Bill they will give power to Parliament, and it is right that they do so. I look forward to the debates that we will have in your Lordships' House. The points raised by the noble and learned Lord, Lord Morris, will undoubtedly be ones to which we can return in Committee. I look forward in the course of this debate to hearing a maiden speech from my noble friend Lord Cormack, with whom I was privileged to serve for many years in the other place.

It was quite obvious from reading the record that the Bill was the subject of some lively debates in the other place, where—I should put on record—extra time was provided for consideration in Committee.

Parliamentary Voting System and Constituencies Bill

Lord Morris of Aberavon Excerpts

Wednesday 26th January 2011 Lords Chamber

Rebuild confidence in the political system? Respect? This Bill as we have it shows disregard for Wales as a nation; it shows contempt for the people of Wales as citizens of our democracy; and it shows a reckless willingness to alienate the people of Wales from the union.

[Lord Morris of Aberavon]

My Lords, save for a short intervention of about one minute, I have not so far taken part in debates on this Bill. My short intervention was on the speech of the noble Lord, Lord McNally—whom I wish well—when, in a fragile mood in the early hours of the morning, he reminded the Committee that the other place had lost its freedom of unlimited debate at the time of the Fenians in the 19th century. Whether the purpose of his remarks was a gentle hint, a threat—which was denied—or just a Freudian slip, I know not, but I was not surprised when, in a very short time, government supporters trooped into the Lobbies, in a very illiberal step, to force a closure not once but twice on the debate. Was that a sheer coincidence of comment and action, or was it something else?

I shall be very brief and I shall not go into the detail of the admirable speech of my noble friend Lord Touhig, who has broadened the canvas and dealt with most of the points. However, I shall return to his main issue: our proposal that the number of parliamentary seats should be 35, rather than the 25 per cent reduction from 40 to 30 as proposed by the Government.

The figure of 35 has a long, almost entrenched history. In 1918, the number of seats in Wales was 36; in 1954, it was not less than 35. The figure remained at 36 through each review until it reached 39 in 1986, as recommended by the Boundary Commission in order to take account of geographical considerations in the county of Gwynedd. The fifth periodical review, operating under the same rules, determined that the number of seats should not be less than 35 and, in fact, it allocated 40.

I have been in politics more than 50 years, I have to confess—I have been in Parliament for more than that period. I had it always in mind that the figure of 35 is, somehow or other, entrenched so far as political representation for Wales is concerned. The reason for that goes back to the basic point made by the noble Lord, Lord Touhig: that Wales is a nation within a larger country. We need go no further than that. It is because we desire and need good representation as we are a small part of the United Kingdom. That is the basis on which our distinctive voice should be heard, in the way that it has been heard over the centuries.

We need within that very small number of 35 Members of Parliament of all political persuasions from north Wales, mid-Wales and south Wales to articulate the needs of Wales. Its distinctiveness as a nation is exemplified in one way—it may be a small way, but it is important—by the fact that no one in his senses would dream of chopping off bits of either Wales or England and adding it to the other. Why? Because England is a nation and Wales is a nation, and you would not go over the boundary of either country to make a brand new seat which straddled the two countries. Our basic case is that our need as a nation for strong representation at Westminster has in the past been recognised. If there is concern about the Tamar, the Tyne and the Isle of Wight—I have heard the debates about them—how much more concern there is when a nation is concerned. We are dealing not with counties in England but with the nation of Wales, hence our need for our traditional representation.

I understand the case for arithmetic equality across the whole country, but it is a fact that, in the past, Boundary Commissions have been allowed—indeed encouraged—by Parliament to take into account a whole host of other factors. Arithmetic equality is not the beginning and the end and it has never been thus. If it were, we could draw straight lines and squares across the whole of the United Kingdom. Allowing for the coast, we could parcel England and Wales into neat little squares. That is what relying solely on arithmetic equality would result in. Indeed, we would be behaving like our colonialist forefathers in Africa, drawing straight lines and creating new countries regardless of tribes one way or the other. It was my privilege as a young Minister as long ago as the early 1960s to help draw up plans for sharing the wealth of the North Sea. Well, that was very easy to do by drawing squares, because it was only water that stopped you from extending the square one way or the other, but you cannot do it when countries are involved and without having regard to strong community ties.

In the past, valleys and large areas such as Brecon and Radnor and Gwynedd have had to be taken into account by Boundary Commissions. People in the valleys do not often cross from one valley to another—I can count almost on the fingers of one hand how much I went over from my valley, the Afan valley, into other adjacent valleys. Some people did—there was some community of interest—but, generally, people went up and down, and the community of interest was north and south. The imagination boggles at the thought of trying to create maps in the north of Glamorgan and the north of Gwent to meet the needs of those different communities and of the poor, eventual, long- suffering Member of Parliament having to attend to those needs time and again.

--- Later in debate ---

[Lord Harries of Pentregarth]

My Lords, the noble and learned Lord has made some very helpful points about Wales as a whole and about the valleys, the language and a certain number of counties. In view of his familiarity with west Wales, in particular Ceredigion, perhaps he could help the House by saying something about the special needs for representation in those areas.

[Lord Morris of Aberavon]

I do not want to detain the House. I have made the point that there is a long association between a Member of Parliament and a constituency. If anyone knows anything about west Wales, and I venture to suggest that I do, other Members of this House also do; I see the noble Lord, Lord Crickhowell, nodding.

[Lord Elystan-Morgan]

My Lords, we have had an excellent debate already, and nearly all the salient points in favour of these amendments have been made with great force and eloquence by earlier speakers. I endorse, adopt and applaud everything that has been said. I am deeply flattered by the noble Lord, Lord Touhig, quoting from an intervention of mine. Was it some days or weeks ago? I am not sure; time now seems to have lost its significance. I believe it goes to the very heart of truth. The most important contributions that have been made have centred on the nationhood of Wales. I do not believe that there is anyone in this House who does not accept the fact of Welsh nationality and respect that as an historical and incontrovertible fact. TS Eliot, I think, says that a,

“Rose is a rose is a rose”.

It says everything. We could say, “A nation is a nation is a nation”, which means that surrounding that concept of nationhood there is respect for, and indeed an acceptance of, that entity, and that is the basis on which we should approach this question tonight, as I am sure we will.

Wales is one of the oldest nations in Europe. Noble Lords will remember that Milton, who was not only a great poet but the Principal Private Secretary to Oliver Cromwell for many years—in many respects the spin merchant of the Government of that day—spoke of Wales as an ancient “nation, proud in arms”. That was three and a half centuries ago. David Lloyd George, as I am sure his distinguished grandson will recollect, said once in the House of Commons that we in Wales were a land of poets and kings when the Anglo-Saxons were on the shores of the Baltic subsisting on piracy and periwinkles. I do not necessarily adopt that historical theory as the basis of my case, but one thing is certain and it has been said so clearly and eloquently; what is proposed here is not just a marginal change but a savage amputation of Welsh representation in the House of Commons. That is no exaggeration. It means that Wales, with 5.3 per cent of the population of the United Kingdom, has to bear 20 per cent of this surgery.

To put this another way, in the whole of the United Kingdom there is a diminution of seats to the tune, I calculate, of about 7.6 per cent. In Wales it is 25 per cent. We can bandy figures around, but the fact is that Wales is disproportionately dealt with to a very cruel degree as far as this part of the legislation is concerned. Do we deserve that? Is that right? Is that just? Is that inevitable? Those are the questions which I think that the House would wish to exercise in relation to this matter.

I believe there to be real sincerity in the attitude of many Members on the Conservative and Liberal Democrat Benches, who believe that they can achieve fairness by a slavish adherence to arithmetical consistency. I respectfully suggest that they are wrong. Of course, some idea of a norm that would apply generally, all other things being equal, to constituencies as a whole would be utterly admirable. I have no doubt, and I accept, that in every consideration arithmetical consistency has some part to play. However, my first submission is that it is entirely chimerical. It does not achieve fairness because of so many other factors, with which we have dealt earlier. For example, the accessibility of a Member of Parliament to each and every constituent is far more important.

Secondly, mathematical correctitude cannot be achieved. Let us think of it in these terms. The register will be inaccurate, so far as the population and the possible electorate of a constituency are concerned, to the tune of about 3.5 million. As for Wales, my calculation on the basis of 5.3 per cent is roughly 185,000. That is a considerable totality of votes, which can of course completely affect this philosophy. It is as if the Government are saying, “We are aiming at a target through telescopic sights, and once we have that target in the crosshairs, we will be satisfied that we have done everything”, but they forget that the barrel is bent. That bullet will never reach the spot at which the crosshairs are aiming. It will be a long way away. What possible validity can there be, therefore, for the theory that arithmetical correctitude governs all? There can never be.

I know that the noble and learned Lord who will reply to the debate will inevitably turn to devolution. In many public statements, he has already done so in relation to Wales and Scotland, but in Wales in particular devolution is linked with this considerable diminution in the number of seats. With great respect, I challenge that completely. Just before the Summer Recess, I asked the noble Lord, Lord McNally—I join everyone in wishing him a speedy return to this House—whether the culling of seats in Wales and Scotland would be affected by devolution. His answer was clear and to the point. He said, “No”.

I know that the noble and learned Lord, who is a man of high intelligence and total integrity, will consider this argument very carefully. It can be tested in this way. Let us pretend for a moment that there had never been devolution in Wales and that no Wales Office had been created in 1964. Let us assume that no Welsh Assembly had come into being in 1998 and that there had been no Government of Wales Act 2006. Wales would still be losing 10 out of 40 of its constituencies. Therefore, the noble Lord, Lord McNally, must have been right; this problem has nothing to do with devolution.

Further corroborative evidence, were it necessary, comes from the report of the Select Committee on the Constitution. The Deputy Prime Minister gave evidence before it and was asked why the diminution should be so great in Wales? All he said was, “Either you apply the same rules to Wales in order to bring about a commonality of electors or you do not”. Not a word was mentioned about devolution. I am sure that the noble and learned Lord would accept that, but from the way in which I have looked at that, whatever can be said about devolution I see that it has nothing to do with the reduction of seats from 40 to 30.

The case is simple. For a long time, Wales has enjoyed generous overrepresentation. There is no doubt about that. I think it was in 1377—I am sure the noble Lord, Lord Touhig, will correct me—that the figure of 24 was decided upon. Some centuries later it went up to 28. In 1832, it was 32. We know—indeed, we have had the benefit of the researches by the noble and learned Lord, Lord Morris of Aberavon, into the latter period—that there is considerable overrepresentation.

National Assembly for Wales: Referendum

Lord Morris of Aberavon Excerpts

Thursday 17th June 2010 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I know from the time that my noble friend and I spent together in the other place that he is a very determined and doughty campaigner both in establishing the National Assembly for Wales and, since then, in enhancing its powers. I make it clear that I am well aware of the importance that the Secretary of State for Wales attaches to this referendum taking place, implementing the coalition agreement. In her letter to the First Minister, she indicated that the date that the First Minister had indicated before the general election should not be considered until after the general election. That has meant that the consultation work on the question has only now begun and that there will be a further reference to the Electoral Commission for it to research and approve the question. Orders will have to be debated and approved in the Welsh National Assembly and both Houses of Parliament and submitted for approval by Her Majesty in Council. Thereafter, the Electoral Commission has indicated that the statutory period of 10 weeks is the minimum that it believes necessary to allow for all the processes required leading up to polling day. With the best will in the world, it was not possible to do that by October, but we have made the commitment that we wish that to happen by the end of the first quarter of next year.

[Lord Morris of Aberavon]

My Lords, the Conservative Party in Wales has a long record of opposing any Welsh constitutional advance, whether it be the setting up of the Welsh Office or a devolved Assembly. Has it now abandoned this posture and will it now campaign wholeheartedly for more powers for the Welsh Assembly? If it has not, how do the coalition Government reconcile that stance with the Answer in the other place by the Minister for constitutional reform, Mr Clegg,

“Yes, the Government do support a yes vote”.—[Official Report, Commons, 7/6/10; col. 41.]

in the referendum?

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord for giving me the opportunity to make it clear that my right honourable friend the Deputy Prime Minister subsequently made it clear to the House of Commons that that was not the position. The Government will not have a particular view on the outcome of the referendum. Our coalition commitment is to ensure that the referendum takes place. The referendum is not the plaything of any one political party. It is for the people of Wales to decide and we will respect their decision.