Public Bodies Bill [HL]
Lord Rowlands Excerpts(13 years, 7 months ago)
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Lord Rowlands
My Lords, I will speak to my amendment, which would delete Clause 13, and to Amendment 87A, which suggests that parliamentary consent should be added to that of the Secretary of State for powers under the clause. I will preface my remarks by saying that my record shows that I have been a fervent supporter of transferring legislative competence to the Assembly through the procedures that we have had in the past. I refer to the legislative competence orders that were in Part 3 of the Government of Wales Act and to individual framework clauses in Bills that have come before the House in the past two or three years. I supported them because this was an important and useful way in which to transfer legislative competence until the referendum decided that the Welsh Assembly and Government should have full legislative powers. I am not an opponent of such transfers.
However, when I saw Clause 13, I thought that it was a step too far. This House has many times reflected deep concern and uneasiness about sweeping, ill defined powers granted to Ministers. The report of our Regulatory Reform Committee stated that the powers in Clause 13 were “insufficiently limited”. The committee made the same objections that it had made to Clauses 1 to 6, which was that Minsters were given,
“unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process”.
There have been many changes to the Bill, but the fundamental issue of the sweeping nature of the powers in it has caused serious concern. Henry VIII looks like a parliamentary democrat when one considers the powers that we are giving to Ministers in the Bill. I still feel extremely uneasy that an Act of Parliament is bestowing these powers on Welsh Ministers. This should be the National Assembly’s responsibility now that it has the power to do so after the referendum; that would have been a better process.
My second point, to which the Minister made no reference even though it is the reason for yet another new clause in the Bill, is that our Regulatory Reform Committee also drew attention to an extraordinary aspect of Clause 13. The committee states:
“The net result of what is proposed here is that Parliament should delegate to Welsh Ministers the power to amend Acts of Parliament in matters as respects which Parliament has not delegated to the NAW the power to amend Acts of Parliament by enacting measures, and all subject to no Parliamentary control at Westminster whatsoever”.
In other words, we were seriously blurring in Clause 13 the division of responsibilities between devolved and non-devolved powers. I accept that, since then, amendments have been made that clearly define the nature of the devolved functions and the powers that Welsh Ministers will have in Wales in relation to this Bill. I welcome that. However, in the Government’s response to this fundamental criticism that they were blurring the division of responsibilities, lo and behold the only two precedents that could be dredged up to justify such a power were the European Communities Act 1972, which everyone recognises is unique to say the least, and a subsection from planning legislation of 1998. I have looked at both and I do not think that they are comparable in any shape or form. Fortunately, it seems that, as a result of the pressures that have been applied and the criticisms that have been made, the clause defining the devolved and non-devolved powers relating to Wales has now been reasonably satisfactorily resolved.
What is remarkable is that here we are, post referendum, with power having been transferred to legislate in Cardiff on this and other issues, yet in a Bill of this House we are writing out in detail the procedures that Welsh Ministers have to go through to justify and consult. In other words, we are writing into Welsh Ministers’ responsibilities the super-affirmative procedures that we are applying to UK Ministers. Putting aside the general merits of the issue, I think that it is quite extraordinary that at this moment in time we are seeking to write into a Bill a remarkable clause that lays out in great detail the responsibilities of Welsh Assembly Ministers to consult. Again, I respectfully suggest that that should be the decision of the Assembly.
The Minister’s reply is that on 8 March we suddenly had an approval of all these proposals by the Assembly. Although the powers in Clause 13 have been evident since last October, it is quite clear that Assembly Members have not endorsed the original clause. That is why I have sought to remove the clause. I accept that since then there have been changes. Obviously the conversations that have gone on between Welsh Ministers and UK Ministers and officials have clarified the position in a number of important respects since I tabled my amendment, but I think that we ought to be wary about offering such powers at this stage to Welsh Assembly Ministers. They should seek them themselves from their own Assembly. Having said that, I accept that at this stage in the proceedings it is going to be difficult to turn back. Miss Jane Davidson, the Environment Minister, has fulfilled that portfolio with vision and commitment. She has now retired but I understand her desire to have these types of powers.
Finally, I hope that, if nothing else, the Minister will accept my Amendment 87A. Changes to these bodies will have consequences across the border. Quite rightly there is a provision that the Secretary of State has to consent to any changes made, just as consent has to be sought from the Assembly Ministers and the National Assembly to any orders that could affect Welsh devolved powers in relation to these bodies. However, in this case, only the Secretary of State’s consent is required. I accept that that consent is necessary on any cross-border issues, but surely both Houses here should approve such changes as well. Just as Assembly Ministers and the National Assembly are expected to confirm their consent to changes that might be made by a UK Government, I honestly believe that we should also insist that both Houses of Parliament should approve any Secretary of State’s consent that could alter and change the role, functions and money of the bodies that are covered in these clauses.
I accept and understand that now, because Clause 13 has been transformed and additional safeguards have been put in place, there is a clear distinction between devolved and non-devolved powers in the Bill, but I press the Minister to agree to Amendment 87A, if nothing else, so that this House and the other House have to approve the consent of the Secretary of State in relation to the clauses.
Lord Wigley
My Lords, I pick up some of the points made by the noble Lord, Lord Rowlands, which will no doubt exercise the House again in future because they touch on the lack of symmetry with regard to devolution. The powers in Scotland and Northern Ireland are different from the powers in Wales, even after the referendum that took place on 3 March. One of the arguments in favour of the changes that came through that referendum was transparency: people must be able to see clearly where responsibility lies so that the Government taking the decision can be judged and held to account. As the noble Lord, Lord Rowlands, said, anything that blurs that question undermines the intent of the devolution settlement.
There is also the more general question of the way in which orders are used to effect changes. When one has the capability in democratic fora, such as the National Assembly for Wales, to do things more openly and transparently than when everything is done by order, that should be used. None the less, I take the noble Lord’s point that some concessions and changes have been made to try to meet some of those points as the Bill has progressed.
I believe that Ministers in the National Assembly are broadly content with the provisions and that the Presiding Officer, the noble Lord, Lord Elis-Thomas, is likewise content. I have not tabled any amendments, but two or three issues would benefit from further clarification. First, can the Minister give an assurance that in every instance where matters are devolved, it is the Ministers in Wales who have the full powers with regard to any implementation of the Bill applying to Wales? I believe that that is the case, but I would be grateful if we could have that confirmed from the Dispatch Box.
Secondly, where there are cross-border issues, to which the noble Lord, Lord Rowlands, referred, can we be assured not only that, when there is an initiative in Wales, Welsh Ministers should consult first with their Westminster counterparts, but that, likewise and equally, when Westminster Ministers propose changes that have a cross-border implication, they, too, will consult Welsh Ministers before taking any action? That again concerns symmetry and transparency and ensures that there is harmonious co-operation on such issues.
Thirdly, when Bills or orders before either Chamber in Westminster have an implication for Wales in matters that are devolved, can we have an assurance that consultation will take place much earlier in the process as the Bills or orders proceed through their scrutiny in Parliament? That earlier consideration would be very valuable, as it would have been in the context of S4C, for example, which we have debated under the Bill.
This applies not only to matters that are devolved; there are also matters that are not devolved or not fully devolved where there is specific relevance for Wales. I would imagine that, in the spirit of the co-operation described in the amendments, there will be full consultation on those matters also. I press that any such consultation should take place as early as possible so that there is full engagement and the response to consultation can be built into that process. With those few comments, I look forward to hearing the Minister’s response.
Lord Henley
My Lords, I start by making an apology to the House and correct something that I said in my opening remarks. I misspoke when I referred to Amendment 89A; I meant Amendment 86A. When I referred to Amendment 89 I meant Amendment 89B. I say this just for the sake of the record. Because so many amendments have been withdrawn and then redrafted, it is rather easy to make mistakes of this sort. I hope that the House will accept that apology and that minor correction.
I am relatively new to Welsh matters, but as always it has been a joy to be taking part in this debate. I hope that I can satisfy the various concerns that have been put forward by noble Lords. I will start with the noble Lord, Lord Rowlands. I accept that he is not averse to transferring greater powers to the Welsh Assembly Government, but does not like Clause 13. He feels that it goes too far and gives too much to the Welsh Assembly Government rather than to the Assembly. He also talked about a blurring of the lines but accepted that some of our amendments improved on that. I assure him that there has been considerable consultation between us and Welsh Assembly Government Ministers. Like the noble Baroness, Lady Gale, I pay tribute to Jane Davidson, who is retiring. I met her only recently on cross-border issues, and I wish her well in her new role.
There has been a great deal of consultation on these matters, importantly not just between us and the Welsh Assembly Government, but also the National Assembly itself. As the noble Lord, Lord Rowlands, will be aware, that National Assembly passed a Legislative Consent Motion for the Public Bodies Bill on 8 March, to which I referred. Such a Motion is required because some of the provisions of the Bill come within the legislative competence of the National Assembly rather than of Welsh Assembly Government Ministers. In passing the Motion, the National Assembly has indicated it is content for Welsh Ministers to have executive powers on the lines proposed in the Bill.
I do not quite understand the noble Lord, Lord Rowlands, objecting to the Welsh Assembly Government gaining too much power, but he also appears to object to certain constraints placed upon them by this Bill. These matters have been discussed and we believe, as does the National Assembly, that there is a degree of agreement.
The second amendment of the noble Lord, Amendment 87A, requires the approval of both Houses of Parliament following the consent of United Kingdom Ministers under the new clause that will come in under new Clause 14. This is unnecessary because of the procedures already outlined by my noble friend. I hope, therefore, that he would feel able to withdraw or not move that amendment.
I turn to the various concerns raised by the noble Lord, Lord Wigley, who raised three points. The first was the question on devolved matters and whether that would be a matter for Welsh Assembly Government Ministers; I can assure him that he is correct. Secondly, on cross-border issues, he asks whether there will be consultation between us and the Welsh Assembly Government Ministers, or the other way around. I can assure him there will be consultation going both ways according to how the cross-border issue happens to run. Thirdly, I can give no concrete guarantee about when consultation will happen on any given issue but we would always hope to get it started as early as possible. If consultation between the two sets of Ministers is going to be effective, it is important that it takes place as early as possible. All I can say is that we very much hope that this will happen and, having said so from the Dispatch Box, that we or our successors of whatever political persuasion or Government will bear this in mind.
From what has been said by the noble Baroness, Lady Gale, I have the impression that these amendments meet a great many of the concerns that have been put forward. I therefore hope that noble Lords will accept these amendments, which set out in greater detail the powers and duties of the Welsh Assembly Government Ministers in dealing with these matters.
Lord Rowlands
I listened to the Minister’s reply with great interest and I would like to put two points to him. First, on consent, Clause 9 provides that when UK Ministers want to make orders which could encroach on the Assembly’s legislative competence, they must seek the consent of the National Assembly for Wales, not just Welsh Ministers. If an Assembly Government issue orders which change or alter the law relating to those bodies and affect the cross border, is it not reasonable that not only should the Secretary of State’s consent be sought but also the consent of both Houses? If Clause 9 requires the approval of the Assembly, rather than the Ministers in the Assembly, would it not be a sensible procedure to require the reverse procedure? If, where the Assembly is making orders which could have considerable cross-border effects on the operation of that organisation and which therefore quite rightly require the consent of the Secretary of State, surely it should also require the consent of both Houses in just the same way.
My noble friend Lord Wigley asked about it. As he will see under Clause 9, there is a two-way process. UK Ministers have to seek the consent of the Assembly if they wish to bring in orders which could affect the performance of bodies in Wales. I would still like to press him on my Amendment 87A. I accept the changes that have now been made in relation to the other issues that I raised. He said that he could not quite understand why I seemed to object to the super-affirmative resolution. My objection is one of the principle of legislating in detail on the way in which Welsh Ministers should consult, when that should be determined by the Assembly. He says that that is covered by the 8 March decision. Before we conclude, perhaps he could tell us whether that decision included the reference to super-affirmative resolutions, because this clause has been introduced very late. Was it put before the Assembly? Was it part of the approval of the legislative consent process on 8 March? Before I decide what I will do about my Amendment 87A, will he respond to those points?
Lord Henley
My Lords, we are at a relatively late stage of this Bill. I appreciate that there is one further stage, Third Reading, and that there are limitations on what we can and cannot do. It probably would be right if I took away the points that the noble Lord has made on Amendment 87A and his secondary point. I am not sure whether I will be able to satisfy him but I am more than happy to consider these matters in consultation with colleagues in other departments. On his second point about the 8 March decision, I can certainly give an assurance that specific reference was made as part of the memorandum and that it did come up in the debate. On that, I think that he can be satisfied.
On his point in relation to Amendment 87A, it might be worth the noble Lord, colleagues in the Welsh Office and me having further discussions. I do not think that what he is looking for in Amendment 87A is necessary, so I make no promises. In the light of his generally very reasonable behaviour on these matters, I will give him those assurances for the moment. Therefore, I hope that he will accept that we can press forward with the amendments as they are.
Public Bodies Bill [HL]
Lord Rowlands Excerpts(13 years, 8 months ago)
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Lord Rowlands
I support this amendment. The noble Lord, Lord Wigley, was right to remind us of the situation before S4C was first created. The bitter, divisive nature of the arguments that surrounded Welsh language broadcasting in my days as a Member in the other place were some of the most violent and angry ones that I had ever heard from constituents. They were split right down the middle. It ended up with people taking extreme positions. There were those who did not want to see a single Welsh language programme on either BBC or what was then HTV, and those who wanted to see a lot more and realised that these channels were not going to provide it. The creation of S4C has been an extremely important aspect in developing a consensus around broadcasting in Wales. Even with the best of intentions, we would be very foolish to break that consensus unnecessarily by one means or another. First of all, the consensus was built in establishing S4C, as has been described by my noble and learned friend Lord Morris and by others, and gained enormous cross-party support.
Despite all the problems that S4C has had since, I believe that one of its successes has been to maintain or sustain a degree of consensus around broadcasting and that we have not had the divisiveness that accompanied some of the broadcasting of earlier times. The Government ought to be very careful, in the way that they handle all these issues, that they do not break the consensus and reopen some of the old divisive arguments that were injurious to Welsh broadcasting as a whole. That is the first point that we have to get across to Ministers: that they cannot take a blunderbuss approach to this issue because it is too important that it be maintained. The consensus was created and developed as a result of careful consultation and bringing everybody along together. This has not happened so far in relation to the proposals now being floated.
I hope noble Lords do not mind if I mention, in a personal sense, that I had an opportunity for quite a period to watch closely the affairs of the S4C Authority because my wife was a member for a number of years. I realise what my noble and learned friend Lord Morris has said and what the noble Lord, Lord Roberts of Conwy, has said about the more recent problems of the S4C Authority. However, I remember, over the whole period of S4C’s establishment, that independent members of the S4C Authority played a crucial role in developing the new provisions and making sure that the channel was trying to reach out to audiences and was not going to be an enclave just for Welsh-speaking communities. My wife and others spent a great deal of time promoting what the authority was about, what the channel was about and what the service was about in communities that were not Welsh-speaking, such as the constituents of Merthyr Tydfil, whom I represented. The consequence of that and, I believe, a factor that was promoted by the independent members of the authority was that people in Merthyr felt that it was just as much their channel as it was in Caernarvon or Ceredigion. That was the success of it. Members of the authority itself played a very important role in achieving that aim and purpose. It had amazing spin-offs, such as the growth of Welsh medium education in communities such as Merthyr. Ysgol Santes Tudful started out with 22 children. My eldest son was a founder member of the school, which now has more than 400 students. S4C’s role in promoting and linking up through its children’s programmes has been a vital part of that development. It is one of the most exciting things that has happened in the Welsh language scene—that in Merthyr we have such vibrant and thriving Welsh medium education arrangements.
All this is part and parcel of a very important situation. My fear is that, in an effort to try this or that solution, if the S4C Authority loses its measure of independence and is seen to be subsumed within the BBC empire in one form or another, that will do harm, not good, to the future of Welsh language broadcasting. I ask the Committee and Ministers to ponder on this: we created a consensus to establish the authority, and a consensus is needed now on essential changes that need to be made, but that consensus has to be worked at. A blunderbuss approach of this kind, trying to promote an order of this kind as a solution, is not the way forward. It is the most inappropriate process by which to develop the change necessary in Welsh language broadcasting. The Minister will not lose any face. He has already made amazing changes to this Bill, and I suggest that this could be one more change that the Government could accept.
Lord Elystan-Morgan
Everybody who has spoken in this debate already and very probably everybody present in the House would probably agree with the proposition that if the Government make a mistake in how they deal with this matter, a death blow could be struck at the very existence of the Welsh language. S4C is a unique body charged with a unique commission to safeguard the very existence of the Welsh language. Well, you may say, that is nothing very much—but I doubt whether many Members of this House would take that view. A living language with a living literature is a jewel in the treasury of human culture, and the Welsh language no more and no less than any other living language is such a jewel. It is 1,500 years old and was in existence at least 500 years before the French language came into being. The French language came into being only at the end of the first millennium; up till then it was a patois of Latin. That shows something of the pedigree of the language that we are talking about.
If anybody thinks that those of us who are Welsh-speaking or committed in some way or another to a loyalty to the Welsh language are overdoing the case, I ask humbly of each and every Member of this House whether, if the English language were in such jeopardy, they would not take up honourably and gallantly exactly the same position. If you thought that the language of Milton, Shakespeare and Chaucer was in jeopardy and that its very life was in doubt, I know exactly what you would do. We are prepared to say exactly the same of the Welsh language.
The next question is about how unique the circumstances were in which S4C was set up. They have already been dealt with in some detail. There was a very ugly situation in Wales; there had been massive civil disobedience, and I have no doubt that Gwynfor Evans would have given up his life. A very wise, statesmanlike Englishman who had great experience of conflicts not dissimilar to these, William Whitelaw, made an agreement with the Welsh people. He said that if they called off their protests he was prepared to give them this channel. That is exactly what happened, to his eternal credit. I think that we should be very careful with this legislation that we do not go back upon the word of that splendid statesman and gentleman.
Indeed it was an agreement. A very great jurist, many centuries ago, spelt out in Latin the principle of agreements: pacta sunt servanda—agreements are binding. This agreement is binding and I would have thought that is the strongest possible case that one could have for not including it in Schedule 4. There are two jeopardies that S4C faces: it could be starved of a sufficiency of funds so as not to allow it to be able to carry out its true purpose; and it could be so boxed in with any form of association with a greater, more powerful body, the BBC, that it would render its independence something utterly unreal.
We have heard regarding finance how a 24 per cent cut might very well reduce S4C to the point when its very existence is placed in jeopardy. I am sure I am not exaggerating the situation. The other side of it is what would happen if it was brought under the aegis of the BBC. I am not entirely sure under what authority the Government have in fact suggested that there should be such a merger—Clause 4 deals entirely with funding; nothing else. Clause 7(1)—I will not go into the detail of it—might touch upon that but I doubt it. Are there any other statutory authorities that allow the Government to do this? I doubt it. Maybe the Government are relying only on the financial pressures brought about—not in relation to S4C alone—by the general economic situation to box S4C into a corner that it would not wish to be in.
Baroness Rawlings
My Lords, I should like to make it clear that I am answering as the Minister from the DCMS, as this is the DCMS part of the Bill.
This has been an impassioned and eloquent debate. We all agree on the importance of Welsh-language television broadcasting. It is not in doubt, as we have heard from a very full debate this afternoon.
This Government remain committed to making certain that Welsh programming is a key part of the UK broadcasting landscape and that a dedicated channel for Welsh language broadcasting is maintained. The amendment of my noble friend Lord Roberts, Amendment 83, would remove S4C from Schedule 4. This would prevent us amending the funding formula. Following the point made by the noble Lord, Lord Wigley, that in the current economic climate it is not possible to have funding linked to the RPI, I say that the Secretary of State needs the flexibility to allow the funding settlements appropriate to the prevailing fiscal climate, so that all relevant factors are taken into account. The Government have had to make some difficult decisions about the organisations they fund directly, and S4C is no exception. The comprehensive spending review made a firm commitment to funding S4C. Subject to this piece of legislation, the funding levels are secure for the next four years, as I said to my noble friend Lord Roberts on 28 October 2010 in answer to his Question on funding for S4C, and to the noble and learned lord, Lord Morris. I give reassurance that there will be a review before the end of the four years.
Lord Rowlands
The noble Baroness mentioned the need for the particular order-making power to change the financial arrangements. Does that mean there is nothing in the original Act which would allow that?
Baroness Rawlings
I do not think there is. That is why it is in this Bill.
In relation to Amendment 113D in the name of the noble Lord, Lord Wigley, it is right that S4C should remain a responsibility of the Department for Culture, Media and Sport.
My noble friend Lord Roberts of Conwy is absolutely right in his well argued speech. As he started S4C, he rightly said that no order can be laid without consultation. Broadcasting is reserved as part of the Welsh devolution settlement and is, therefore, not devolved. This Bill does not represent an opportunity to reopen what was agreed as part of the devolution settlement—