Government of Wales Act 2006 (Amendment) Order 2021

Lord Thomas of Gresford Excerpts

Wednesday 27th January 2021 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

My Lords, this is a complex order, and although I have been involved in all the devolution legislation since 1998, it is not easy to follow. This is a problem in Wales, but not in Scotland or Northern Ireland, as the noble Lord, Lord Hain, just explained. I entirely concur with his comments on the internal market Act.

To try to define the problem, the consequence of the proposed repatriation of powers from Brussels was a lorry-load of legislation pushed through at breakneck speed in Westminster. We all suffered for it. The Welsh Government co-operated in giving consent in devolved areas where it was necessary, but the result was that the Minister of the Crown in Westminster acquired from Brussels concurrent powers with Welsh Ministers in devolved areas. As a result, Welsh Ministers are restricted in the exercise of their devolved powers, long established by a number of Government of Wales Acts since 1998. In a wide area of policy where there are concurrent powers, the consent of the Minister of the Crown would now be required for Welsh Ministers to exercise their long-established powers, if it were not for this order.

The original purpose of the order was limited. Originally, it was intended to correct a number of deficiencies arising from the UK’s exit from the European Union and to change some drafting errors in the 2006 Act, as amended in 2017. However, the order has been extended to provide a carve-out from the consent requirements, mainly in respect of current and concurrent- plus functions created by the EU exit legislation, but also by the swathes of coronavirus legislation through which we have been wading.

My understanding, therefore, is that the order removes the need for the Minister of the Crown’s consent to the exercise by Welsh Ministers of their powers where concurrency is caused mainly by Brexit. I hope I am right in that.

The illustration of the purpose of the order given in the report of the legislative committee of the Senedd was in relation to fisheries. Power over British fisheries was taken back from Brussels so that British Ministers could exercise full powers over UK fishing—pause for a sea shanty or two, followed by a chorus of “Rule Britannia” by those British fishermen who are now expressing such delight at the predicted failure by the Prime Minister in the negotiations.

In Wales, those ex-Brussels powers run concurrently with the powers of Welsh Ministers—for example, for the regulation of Welsh fishing vessels in the so-called Welsh zone. Will the Minister confirm that, as a result of this order, the British Fisheries Minister will not interfere with Welsh Ministers in regulating Welsh fisheries and that Welsh Ministers will be able to get on with their job without needing Westminster consent? I understood her to say that the Westminster Government will concurrently control British fish in Welsh waters. I do not know what will happen if there is a clash; I am not sure which side the Royal Navy will be on.

This principle of non-interference applies not just to fisheries but to the whole range of Welsh devolved competences. The Senedd report referred in particular to the Trade Bill going through Parliament, but there will be others, as the Minister has pointed out. In giving evidence to that committee, the Welsh Counsel General said there would be a need for a further order after the end of the transition period. Was he right? Is there another order now on the stocks?

Is it the Government’s policy in future to ensure that Welsh Ministers do not require the consent of a Westminster Minister to legislate in any devolved matter? If the answer to that question is yes—and I note that the noble Lord, Lord Hain, seems to think it is—and that such permission is not required, a large number of concerns in Wales will be assuaged. If the answer is no, or is qualified in some way, it will mean that Westminster Ministers have a power of veto over the exercise by Welsh Ministers of their devolved powers. Further, it will mean that central government envisage exercising their newly acquired concurrent powers derived from Brussels in Wales. It is obvious that there is a vital constitutional question wrapped up in this order. It gives meaning to the charge of power grab, which the Government have so hotly resented and denied. I hope to be enlightened.