Selection of the President of Welsh Tribunals Regulations 2017

Lord Thomas of Gresford Excerpts

Wednesday 29th November 2017 Grand Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

By way of background, there are seven devolved tribunals that are the responsibility of the Welsh Government: the Mental Health Review Tribunal for Wales, the Special Educational Needs Tribunal for Wales, the Agricultural Land Tribunal for Wales, the Adjudication Panel for Wales, the Residential Property Tribunal Wales, the Welsh Language Tribunal, and a tribunal covering the registered school inspectors appeals panels and the registered nursery education inspectors appeals panels.

There are 41 judges currently appointed to those tribunals. Each tribunal has its own judicial lead but these judges have limited access to senior judicial leadership within Wales, which is inconsistent with other judicial officeholders in England and Wales. Sir Wyn Williams, a retired High Court judge, has been undertaking an informal leadership role, but he does not have any statutory powers.

To address this, Part 3 of the Wales Act 2017 created a new post: the President of Welsh Tribunals. The president has responsibility for making arrangements about the training, guidance and welfare of Welsh tribunal members, as well as for representing their views to Welsh Ministers and other Members of the National Assembly for Wales. The president will also be able to give practice directions and will be responsible for deploying tribunal members between the different Welsh tribunals, as well as between the UK-wide tribunals and the Welsh tribunals.

The president will also be responsible for establishing and communicating the judicial strategic direction for the Welsh tribunals. He or she will provide leadership and build effective relationships with the judicial leads of the Welsh tribunals, as well as with the Welsh Government’s Welsh Tribunals Unit, the Lord Chief Justice, the Judicial College, and Ministers and officials in the Welsh Government, relating to policy issues affecting the Welsh tribunals.

Paragraph 2 of Schedule 5 to the Wales Act 2017 provides two routes for the appointment of the President of Welsh Tribunals. The first is by agreement between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers with regard to a person who is, or has been, a judge of the Court of Appeal or the High Court. The second route, in default, is following selection by the Judicial Appointments Commission.

If agreement cannot be reached between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers on the appointment, paragraph 2 of Schedule 5 to the Wales Act 2017 requires the Lord Chief Justice to make a request to the Judicial Appointments Commission for a person to be selected for appointment to the office of President of Welsh Tribunals.

Elements of the procedure for appointment by the Judicial Appointments Commission are set out in the Act itself. These include that the Judicial Appointments Commission must appoint a selection panel which must include at least two members who are non-legally qualified, at least two judicial members and at least two members of the Judicial Appointments Commission.

The Lord Chancellor is also required to make additional provision about the process to be applied. That is what these regulations do. In particular, they specify that the selection panel should consist of five members and make further provision about the appointment of people to that panel, including that the chairperson of the panel is to be a person designated by the Lord Chief Justice who holds, or has held, office as a judge of the Supreme Court, a Lord Justice of Appeal or a puisne judge of the High Court.

The regulations also make further provision relating to consultation during the process and to the reporting of the panel’s selection to the Lord Chief Justice and the Lord Chief Justice’s options when deciding on that selection. In order to be consistent with the relevant primary legislation and the nature of the new office, the appointment process closely reflects that which applies to the selection of the Senior President of Tribunals.

The Wales Act 2017 established the role of the President of Welsh Tribunals and the requirements for the appointment of a judicial officeholder to that office. These regulations allow that appointment to be made. I therefore commend the regulations to your Lordships and beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I very much welcome these regulations, although I hope that the machinery that they set up will not be used, because of course the alternative way is by agreement between the Lord Chancellor, the Lord Chief Justice and Welsh Ministers.

At a time when the independence of the judiciary has been under attack, when we have heard expressions in the press such as, “Enemies of the people”, and when the press has questioned the impartiality of judges in many ways and the degree to which they are in touch, it is very important that the independence of the judiciary in Wales should be emphasised. In most of these tribunals, one of the parties concerned will almost certainly be the Welsh Government or local government, and it is very necessary that the administrative tribunal should be seen to be impartial.

I am very pleased that my old friend Sir Wyn Williams has been acting in an informal capacity as President of Welsh Tribunals—we used to meet on many a rugby field in our youth. Hopefully, he will continue in that role, and maybe he will be a candidate for president. I could not imagine the independence of the judiciary being in better hands to give leadership and direction. So many of the 41 judges who are sitting on these tribunals are lay persons without necessarily any lengthy experience in the law, so it is important that they should be properly trained and properly led. I am sure that that has been done under Sir Wyn Williams and that it will continue under these regulations.

Civil Procedure (Amendment) Rules 2017

Lord Thomas of Gresford Excerpts

Wednesday 13th September 2017 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I congratulate the noble Lord, Lord Marks, on bringing this regret Motion. I am always conflicted by regret Motions, because they are extremely weak, which of course infuriates somebody like me. However, at the same time they do two things. First, they send a message to the Government—they have to sit and listen and, perhaps, do something good for a change; but secondly, they allow people like me to get up and rant, and I would like to rant for a minute, because I am furious about this. I cannot see how any Government can reduce justice for all, and that is the principle at stake here. The principle is that justice is for everybody, however rich or poor. The noble Lord, Lord Marks, raised a case where a political party wanted to bring an environmental case and did not have the money for it. This will happen more and more.

We can look at some of the things that the Government are doing at the moment—for example, HS2, which is the most incredibly wasteful, stupid, unnecessary piece of infrastructure they could possibly have devised. That will raise all sorts of issues. It is already steaming through sites of scientific interest, and there will be huge environmental problems. By removing the cap, the Government are reducing the hassle they will experience in pushing this through. I therefore urge the Lords to vote for this Motion and show the Government that what they are doing is completely wrong. This Chamber has a real opportunity to make life better for people—and of course, people who are on a low income, and charity and community groups who do not have the money, will suffer because of this.

[Lord Thomas of Gresford (LD)]

My Lords, I will continue with the issue of community and talk about my community, Gresford, where I live. Many years ago, I was involved in a judicial review. There was an application for opencast mining at Gresford colliery. Members may recall that that was the scene of a terrible mining disaster in 1934, when 266 men lost their lives underground and only 12 bodies were ever recovered—the rest remain there. Therefore, the issue of opencast mining was clearly one of considerable concern. The county council, in considering a planning permission, did not adequately advertise it, and there was not proper consultation.

I appeared pro bono for the Gresford amenity society to take the county council to court to challenge its decision. The court of two judges decided that I was quite right—it had not been properly advertised and there had not been proper consultation. However, one judge was prepared to give us a remedy, which was to quash the decision, while the other judge was not. It is a question of discretion for each judge as to what remedy should be given, even if you are successful on the facts. When this small group, who were not wealthy, had to decide whether to pursue the matter and ask for a second hearing—with, of course, counsel involved on the side of the county council and possible liability for costs—they were not prepared to take the matter further. However, the county council properly readvertised and there was proper consultation, and as a result of submissions made by that group and others, proper safeguards were put into consent to the planning application. Today, one can see that at Gresford colliery the workings have all been renewed and it looks very pleasant. However, that was the limitation of judicial review as it was then.

Therefore, when in 2005 the United Kingdom ratified the Aarhus convention, I felt a sense of relief. As appears from the declaration made by the UK Government upon signature and confirmed on ratification, the United Kingdom recognised the right of every person to live in an environment adequate to his or her health and well-being. The United Kingdom guaranteed the right of access to justice in environmental matters by the declaration it made on ratification, yet only five years later, in 2010, the European Commission took the United Kingdom to the European Court of Justice to determine whether it was fulfilling its obligations under the convention, specifically on the obligation that its judicial proceedings must not be prohibitively expensive.

--- Later in debate ---

[Lord Keen of Elie]

Let us be absolutely clear about what the position is. When a claimant begins the proceedings, there is a default cap, but on seeing the schedule of means, the court may vary that cap, downwards or upwards—downwards to the benefit of the claimant, upwards to the benefit of the defendant, potentially. Therefore, that is appropriate.

[Lord Thomas of Gresford]

The regulations as drafted suggest that there can be alteration depending upon the court’s view of the merits or demerits of the case as it goes along. Am I wrong in that?

Magistrates: Sentencing Powers

Lord Thomas of Gresford Excerpts

Tuesday 8th November 2016 Lords Chamber

[Lord Keen of Elie]

I am not in a position to comment on “revelations” in Private Eye and do not intend to do so. So far as the modelling of any increase in sentencing powers is concerned, that is presently under review, and we will come to a decision on it in due course.

[Lord Thomas of Gresford (LD)]

The noble and learned Lord talked in his first Answer this afternoon about the importance of rehabilitation. Short sentences are, without doubt, hopeless for that purpose. Should not the emphasis be on developing better and more intensive non-custodial sentences and on training magistrates, including the Magistrates’ Association, in the value of such sentences?

[Lord Keen of Elie]

Clearly, magistrates have the training and skill to consider a wide variety of sentencing powers and to impose a wide variety of sentences. We have no hesitation in acknowledging that. Whether they should or should not be custodial sentences, at the end of the day, must be a matter of judgment in each individual case.

Scotland Bill

Lord Thomas of Gresford Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I may be the only person present in the Chamber who was here when Lord Sewel issued these words. Maybe the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Duke, the Duke of Montrose, were there at the same time. As I recall, we were debating these matters late into the night, and at 1 am or 2 am, when we came to Scottish and Welsh matters, there was a blockage. The words that Lord Sewel spoke were a very welcome resolution of a particular problem that had arisen. I recall afterwards that when it was referred to as the Sewel convention we used to rib Lord Sewel that he had unwittingly added his name to something that seemed to have become a great constitutional principle.

I intervene in this debate to refer to the problems in Wales as illustrative of the problems that your Lordships face. We have had three trips to the Supreme Court between the Welsh Assembly and the Wales Office in a very short period of time because we have not had the ability to pass primary legislation until quite recently. Legislative competence is always at our fingertips in Wales. We talk about it all the time. Indeed, the Welsh Labour Government talk about it all the time in holding up the consideration of the current draft Wales Bill. This issue seems to require either a mechanism that resolves the problems or something that is absolutely solid and certain in this particular piece of legislation.

Those who served as my colleagues during the coalition Government in the Wales Office tell me that legislative competence was a weekly discussion and deals were done between the Wales Office and Cardiff in order to solve where the parameters were. Of course we do not have reserve powers devolution in Wales; it is rather different from Scotland. We have been rather envious that Scotland has not so far had to go to the Supreme Court to sort things out in this way. It seems to me, in following my noble friends, that the way it is expressed in the Bill is such that Scottish lawyers will become very wealthy in their trips to the Supreme Court to sort things out. At the moment I am trying to work on a mechanism in Wales that will resolve these difficulties if that cannot be done between Governments in a simple way, not the way that has been arrived at so far. So, go carefully: canny down the brae, as they say, when it comes to consideration of this particular part.

[Lord Mackay of Clashfern (Con)]

My Lords, some time ago I indicated to the noble and learned Lord, Lord McCluskey, that I support his approach to this clause. It is vitally important to consider the question of whether it is intended that the clause, whatever its terms, should be subject to decision by a court of law. The situation so far as Wales is concerned—and I think it would be true for the Scottish Parliament—is that in some cases its powers are subject to judicial scrutiny. The Parliament of the United Kingdom is not of that kind. It has never had its principal functions subject to judicial scrutiny. If a term is put into this Bill, which will then become an Act, that determines when the United Kingdom Parliament can act, that will be a complete innovation. It does not matter what the terms are, however precise and well drafted, I cannot see how that could be excluded unless provision is made in the Bill which states that the decision on this point is to be a matter for the United Kingdom Parliament. This I regard as an extremely serious point which the Government have to decide.

It is not a question of agreeing with the Scottish nationalists. The amendment tabled by the noble and learned Lord, Lord Hope, seems to be in accordance with what they would like to see; that is, the furthest stretch of the convention, which is called the Sewel convention for various reasons, amounting to what is really a complete ban. That is what I think the amendment of the noble and learned Lord, Lord Hope, does, but that does not cut out by itself the idea that a court of law could determine whether the United Kingdom Parliament had acted lawfully in making an Act which could affect Scotland. That is why I strongly support Amendment 12 tabled by the noble and learned Lord, Lord McCluskey. That concept must be put into this clause at some point in order that the matter be not justiciable.

--- Later in debate ---

[Lord Davidson of Glen Clova]

I am slightly surprised that the noble Lord offers such support for this amendment. I will explain my surprise. I do not see this as an exact simulacrum of what Smith proposes. This is an attempt to change the sovereignty of this Parliament. I do not understand that the Smith commission was quite so ambitious in the way it wished to proceed. I hope that that answers that question.

[Lord Thomas of Gresford]

I am attempting to follow the noble Lord down the tortuous passes of his philosophical musings, but does he not realise that there is conflict and tension today between the Welsh Labour Government and the Conservative Welsh Office because the areas of legislative competence are frayed, or overlap, or whatever? We must have something that is certain and he is defending something that is clearly utterly uncertain and ripe for the Supreme Court.

[Lord Davidson of Glen Clova]

There is a view, of course, that the Supreme Court is developing a constitutional role and that that is a matter that might be an adornment to the developing UK constitution. The noble Lord, Lord Thomas, suggests that these are philosophical musings, but the philosophical musing comes entirely from the other side. I am looking at the political reality of how this can be dealt with in relation to Scotland. There may be many interesting and complicated issues in Wales, and I would be fascinated to hear more about these in due course, but at the moment I am trying to put forward our position on these amendments.

Considerations of political imperative, therefore, are very much to the fore and we will accordingly not support these amendments. I hope I have dealt with the various issues that have been raised, but I see the noble Lord, Lord Tebbit, shaking his head. If there is a particular point he wishes me to address, or there is any issue that troubles him, I would be happy to do so.

Scotland Bill

Lord Thomas of Gresford Excerpts

Monday 22nd February 2016 Lords Chamber

[Lord Turnbull (CB)]

My Lords, I support Amendment 75A moved by the noble Lord, Lord Kerr, on debt and borrowing. The amendment is founded on the principle that the UK is a union, constitutionally and financially. There is a common currency, single monetary policy, single exchange rate and a banking union. We have some banks that pretend their headquarters are in Scotland, but they are not really. The public finances of Scotland and the rest of the UK are inextricably intertwined. A large part of public services has been financed—even under the new arrangements, when they are unveiled—by grants from the UK or assignment of revenues. Departments of Her Majesty’s Government have large budgets that they spend directly in Scotland.

The SNP may not like the fact that the union exists, but it does, and certain consequences follow. When the Economic Affairs Committee took evidence on post-referendum arrangements, there was little appetite by then for full fiscal autonomy. It was always an illusion, but it was thoroughly punctured by the gaps in the oil price. Some witnesses argued that, in addition to sensible arrangements to deal with short-term fluctuations, Scotland could operate a separate borrowing regime, financed by borrowing in its own name. In effect, that would be policed by financial markets and underpinned by a no bail-out rule. As noble Lords have mentioned, debt issued by the Scottish Government would have its own credit rating with its own risk assessment, and if debt issuance was thought to be excessive its cost would rise and the Scottish Government would be forced to respond. However, most witnesses did not believe this model, given the extent to which the two economies are interlinked, and no one really thought that a no bail-out clause was plausible. Most notably, the noble Lord, Lord Darling, told the Committee that the eurozone has a no bail-out rule that we can see “works very well”. I think he was being ironic, but I cannot be absolutely sure. He thought that a no bail-out rule would be,

“unnecessary and downright provocative and actually sound very patronising … I am part of the UK as well; do not tell me I cannot be bailed out by a country that I happen to be a citizen of”.

That was strongly endorsed by the Committee.

During the course of the referendum, there was some loose talk that said, in effect, “Vote for us and we will put an end to austerity”, but even now in Holyrood there is a recognition that although borrowing policy does not have to be identical to that of the UK, it nevertheless has to be consistent with it and supportive of policy for the UK as a whole. Two things follow from that. First, the amount of borrowing year by year cannot be such as to undermine the Government’s overall borrowing objective. Secondly, the stock of debt, relative to some measure of capacity to repay, cannot be such as to raise the spectre that the UK Government might have to intervene. As the noble Lord, Lord Kerr, stated, this amendment does not seek to specify what those various ratios should be. They should rightly be in secondary legislation. Why, then, is the amendment needed? It is needed to entrench the principle that Scottish fiscal and debt policy cannot be decided unilaterally in Scotland. It has to be related to the policy of the UK as a whole and the limits must be set by the Treasury, after consulting the Scottish Government, and should be approved by Parliament. In that way, the amendment fills one of the holes in the Bill, although many are left.

The noble Lord, Lord McFall, mentioned an article, “Sleight of Hand”, by Jim Gallagher, who, as many noble Lords will know, is a former Scottish civil servant and is now a professor. However, the noble Lord did not read the last paragraph:

“So I wonder if this is less about fiscal formulae and more about nationalist politics. It’s becoming pretty clear that the SNP won’t promise another referendum after the next Holyrood election. They think they’d lose. But without it they’ll have nothing to talk about. So maybe their aim is to reject the fiscal framework, whatever is offered and so derail the new powers in the Scotland Bill. Then they can spend the next five years arguing about power, not exercising it”.

[Lord Thomas of Gresford (LD)]

My Lords, I feel obliged to intervene for Wales for a moment, because there is a very solid Welsh dimension in this. I also feel that I can do so because I was married for 39 years to a lass from West Lothian and I have always known the answer to the question—which is, “Yes, of course, dear”. The point that really concerns me is that a deal is being done in secret in Scotland, involving the fiscal framework, which will have implications in Wales. As the noble Lord, Lord Forsyth, said, the Welsh deal on the Barnett formula is rubbish. Every political party in Wales recognises that. The Welsh Labour Government refuse to exercise their tax-raising powers until that formula, or some formula, is revised. I fear that this secret formula or framework that is being arrived at in Scotland will be used as a precedent in Wales when we come to deal with tax-raising powers under the draft Wales Bill, and that we will be stuck with the same sort of system, arrangements and mechanisms as there are in Scotland—but it will be entirely different.

Therefore, I urge Ministers, as my noble friends have done, to allow transparency, so that we may actually have some input. Many speakers in this debate have said that it is unfair on other parts of the United Kingdom. Certainly, it may very well be unfair on Wales: the impact of this fiscal framework in Scotland could devastate Welsh funding for the future. I hope that your Lordships will excuse me for putting in a Welsh voice.

[The Earl of Kinnoull (CB)]

My Lords, I support Amendments 76 and 79G. Like many other noble Lords, I have found much that is attractive in many amendments in this debate, but I am confining my remarks to those two. I note that all the amendments and speeches have been wholly consistent with the Smith commission report.

I support Amendment 76 totally, of course, but I fear that it is something that is needed more than once; in fact, I would repeat it every five years. I see it as part of what, in commercial terms, one would call a feedback loop, which I think one needs to set up for every single devolved Administration. It could be well-structured and formal and allow for a frank examination of every aspect of devolution between Westminster and those devolved Administrations. If we do not set up a feedback loop now, as sure as eggs are eggs, when things go wrong we will set one up in the future. I feel strongly, and I think this will come back in further debates, that a feedback loop is required.

Secondly, I was much attracted by the thinking behind Amendment 79G. However, I would not in fact set up a Scottish fiscal commission; rather, I would expand the OBR to include this. As we expand the number of devolved deals, the problem is that we could potentially end up with a massive number of these commissions, all of which would essentially be umpires and all of which, one assumes, would umpire according to slightly different rules. There would be a great advantage to having one umpire in the UK—it has been pleasing to read today in the press how the OBR has resisted political interference in the recent past—which used one set of rules to examine figures and to report generally to the United Kingdom.

Scotland Bill

Lord Thomas of Gresford Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Keen of Elie]

There is no express reference in the Smith commission agreement to a referendum. As my noble friend is aware, that provision was brought into the Bill in the belief that it would strengthen the political statement contained in Clause 1 with regard to the permanence of the Scottish Parliament.

[Lord Thomas of Gresford (LD)]

My Lords, I believe that this introduces the Welsh element. There would be a profound disinterestedness in Gresford about whether the Scottish Parliament exists or not, save in so far as the Barnett formula gives them so much more money than we get. On the other hand, we would resent it hugely if the noble Lord, Lord Forsyth, had a vote in a referendum for the abolition of the Welsh Assembly, or, indeed, any successor.

Scotland Bill

Lord Thomas of Gresford Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Norton, and to agree with him that we have perhaps got to the end of piecemeal devolution. It is time to look at the devolved legislatures as a whole. Perhaps a Welsh voice may be heard in this, although I have to tell your Lordships that my three sons, Andrew, Gavin and Jamie, were all entitled to Scottish passports under the SNP proposals, although curiously my three grandchildren, Angus, Finley and Murray, were not.

Immediately before the Scottish Referendum, the no campaign ran scared. The vow set out in that hallowed constitutional document referred to by the noble Lord, Lord Forsyth, the front page of the Daily Record, contained no pledge to maintain the Barnett formula. In the context of the SNP’s false complaint that the coalition Government intended to slash expenditure on the NHS, the vow was a pledge that the final say on how much was spent by the NHS in Scotland would be a matter for the Scottish Parliament—as, indeed, it already was. The words,

“because of the continuation of the Barnett allocation for resources and the powers of the Scottish Parliament to raise revenue”,

were added. That is the only reference to the Barnett formula in the vow.

On 28 September, on the BBC’s “Sunday Politics”, the Prime Minister said that the Barnett formula would become “less relevant over time” as Scotland’s block grant from Westminster would be cut in proportion to the extra tax-raising powers being devolved. Of course, in the days that followed, before the referendum, Alex Salmond said that the vow was a last-minute offering of nothing. After the referendum, as the noble Baroness, Lady Quin, pointed out, he described it as a trick, a deception and the crucial factor in swinging more than 10% of the votes. This claim was later dismissed as rubbish by Gordon Wilson, the former leader of the SNP, who said that the vow had had “zilch” influence on the result. That conclusion was later backed by all the independent polling evidence.

According to Professor Tomkins of Glasgow University, in his evidence to the Economic Affairs Committee, the Smith commission, of which he was a member, took it as a given that the Barnett formula would survive the process,

“because it was in the Vow, and the Smith Commission was meeting and working in the shadow of the Vow”.

I think we are all in the shadow of the vow in this debate and that is very unfortunate. The Smith report simply said of the Barnett formula, in paragraph 95.1, that,

“the block grant from the UK Government to Scotland will continue to be determined via the operation of the Barnett Formula”.

That is all it said. Of course, it was signed up to by the leaders of the political parties, who no doubt did not give their minds to the implications of it all.

The First Minister, Nicola Sturgeon, last week promised to block the Scotland Bill at Holyrood by refusing to introduce a legislative consent motion unless the United Kingdom Treasury agrees a “satisfactory and fair” settlement to underpin the Bill. So, we have these protracted talks on the fiscal framework. Her decision as to what is satisfactory and fair no doubt requires the maintenance of the Barnett formula, because it provides 20% more funding for public spending per capita in Scotland than the UK average.

Let us look at Wales. The Wales Act 2014 permitted the partial devolution of income tax to Wales, subject to the endorsement of the people of Wales in a referendum. The First Minister, Mr Carwyn Jones, has refused to hold that referendum until there is a “fair funding settlement” for Wales. By that he means the abolition of the Barnett formula and the introduction of a block grant based on need. He has also complained that as the devolution of income tax on earnings in Scotland does not require a referendum, Wales should not have to put up with one.

The noble Lord, Lord Kerr of Kinlochard, referred to the Select Committee on the Barnett formula, chaired by the noble Lord, Lord Richard, which concluded that,

“the Barnett Formula should no longer be used to determine annual increases in the block grant for the United Kingdom’s devolved administrations”,

and:

“A new system which allocates resources to the devolved administrations based on an explicit assessment of their relative needs should be introduced”.

I think the noble Lord, Lord Forsyth, was a member of that committee and no doubt he signed up to that conclusion.

The need, therefore, for a constitutional convention to look at the constitutional arrangements for the devolved Administrations is essential. It has been referred to by my noble friend Lord Shipley, my noble and learned friend Lord Wallace of Tankerness, the noble Lord, Lord Foulkes, and others. There will be anomalies, particularly if a fiscal framework agreement for Scotland is based on the retention of the Barnett formula. Those anomalies may be overwhelming. Are we to have a different fiscal framework for Scotland, Wales and Northern Ireland and, as the noble Baroness, Lady Quin, would have it, for the north-east of England, should devolution ever come to those parts? Or are we to have a formula that makes sense wherever it is operated within the United Kingdom?

My late wife Nan came from the mining village of Fauldhouse in West Lothian—she had the answer to the question, as it happens. She would have called this a real stushie. But it can run and run. The Economic Affairs Committee has suggested a delay between Second Reading and Committee. I understand why but what it has failed to grasp is the political imperative of next May’s elections—elections that give the people of Wales and Scotland an opportunity to consider the record of their respective Governments and the outcomes of their policies. It is now to be turned into a wrangle over powers. It is very much in the interests of Labour in Wales and the SNP in Scotland to keep the pot boiling until those elections are over. I say to the noble Lord, Lord Forsyth, that the no-detriment principle is simple: it means whatever you want it to mean. I am sure the Mad Hatter would have approved of that definition.

The target of the Welsh Government in 1999 was to raise the level of the economic indicator of gross value added per capita in Wales from 73% of the UK average to 90%. The latest figures show that the level has declined to 72.2%. We remain bottom of the league. As the noble Baroness, Lady Liddell, pointed out in a passionate speech, the latest Scottish survey of literacy and numeracy finds that the education system, which was the pride of my mother-in-law, Dux of Bathgate Academy in her day, is in decline. Performance in reading dropped in primary schools between 2012 and 2014, and there is a dramatic decline in standards of numeracy. This is the Scottish education of which you were proud and the situation matches my feelings about the state of Welsh education. It is the records of these Governments that we should be attacking before the May elections, not which powers are being granted or what the fiscal framework should be.

The essential thing is that the Bill be subject to proper scrutiny in this House, but also that it be passed. If the SNP does not wish to exercise the powers this Bill presents to it on a plate, its demands for full fiscal autonomy will be hollow. The people of Scotland should not be diverted by wrangles over a fiscal framework, which is a smokescreen for the record of that Government, which fails Scotland as the Labour Government fails Wales.

Finally, I was delighted to hear the maiden speech of the noble Baroness, Lady McIntosh of Pickering. I hope we hear a lot more from her. I was completely impressed by the assertion of the value and the values of the United Kingdom by my noble friend Lord Campbell of Pittenweem. He calls for a new act of union and a federal United Kingdom. I have been asking for that since 1964.

Devolution: Wales and Scotland

Lord Thomas of Gresford Excerpts

Thursday 18th June 2015 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, when my noble friend Lady Randerson referred to the glacial pace of reform, I was taken back to an evening at Rhyl Town Hall in 1964, when I addressed for the first time, in my first election, the voters of the West Flintshire constituency. I called for a parliament for Wales, with proportional representation. I also called for the abolition of the hereditary principle in the House of Lords, if the noble Earls will forgive me. I was very young then.

I was starting off on a long road towards devolution. I cherished a belief then that, given significant power over the decisions that affect their lives, the people of Wales would make innovative, better-informed and targeted decisions. The question was what structure of devolution would provide that result. I led for my party on the 1998 Bill and on the subsequent Wales Bill. It is quite apparent, however, that the structure is not working. A motley crew is indeed in charge, as my noble friend said.

Today—my noble friend referred to the report out today—the Welsh Assembly’s Communities, Equality and Local Government Committee’s inquiry into tackling poverty in Wales has been scathing about the Welsh Labour Government’s ineffective efforts to get to grips with the issue. The committee says that it is,

“deeply concerned by the Welsh Government’s lack of progress in reducing poverty, particularly given its long-term commitment and investment in the issue”.

Poverty rates in Wales have barely changed since the beginning of this century. The number of people who rely on food banks has doubled within a year; 23% of the Welsh population live in poverty, compared to 17% of the United Kingdom population as a whole. The position has remained static despite the fact that the Welsh Government have a Minister specifically responsible for targeting poverty. It happens to be the Assembly Member for my home town of Wrexham. Today she helplessly held up her hands and said that,

“we have to be very honest about what we can achieve. I think that we have to recognise that there are a lot of factors that are outside our control. I do believe that our policies and programmes are making a difference”.

It is very interesting that the excuse is that,

“there are a lot of factors that are outside our control”.

That brings the framework of devolution into question.

It is quite apparent, however, that the policies and programmes are not making a difference. On unemployment, Wales stagnates, with 99,000 people out of work. While the United Kingdom rate of joblessness steadily declines, the Welsh figures remain completely static. There was a year-on-year decline of 0.01% last year, compared to Scotland’s 0.5% and England’s 1.4%, according to the Office for National Statistics.

In the Welsh Government’s annual report, it is claimed that 48 of their 49 commitments relating to education either have been delivered or are on target. That is too much guff. The claim to achievement contrasts sharply with the PISA international rankings and the Estyn annual report, which both point to serious concerns about schools. The Welsh school inspectorate says that standards in our primary schools are slipping; PISA results show that Wales is behind every other part of the United Kingdom; compared with the top-performing countries in the world, we have very few high achievers; and children in every corner of Wales are not being helped to achieve their full potential. The only bright side is the introduction of the pupil deprivation grant—pupil premium—which was achieved by Welsh Liberal Democrats in return for agreeing to allow the Labour Government’s overall Budget through, which is helping to close the attainment gap.

The Wales Audit Office reported earlier this month on the four regional education consortia which are responsible for school improvement. It said:

“The governance of regional consortia is developing but we found progress was hindered by limited capacity, incomplete management structures, inadequate scrutiny of overall consortia arrangements, weaknesses in financial and performance management and insufficient openness and transparency”.

Estyn said that all regional consortia had struggled to fill senior posts, which,

“adversely affected their capacity to direct and manage work and highlights the lack of a national strategic approach to develop senior leaders.”

In my part of the world, many bright pupils, including my own grandson, are voting with their feet and going over the border for their sixth-form studies after they have completed their GCSE examinations.

The record on health is dire. The hospital which serves Wrexham, where I live, is part of the Betsi Cadwaladr group, which last week was put into special measures. I understand that the police are investigating. It has been given Welsh Government cash of £20.6 million to help pay its bills. The chief executive has been suspended. This week, Cardiff and Vale University Health Board is reported to have overspent by £21.4 million and Hywel Dda University Health Board by £7.5 million. On 5 June, the Royal College of Physicians, representing 1,100 doctors in Wales, said that there could be an “unprecedented” funding gap of £2.5 billion within the NHS in Wales by 2025-26. It has launched an action plan calling for more investment, a patient-centred and clinically led approach to change, a national medical workforce and training plan, and leadership on improving public health.

I am still an optimist and do not believe that the principle of devolution has failed, but for the last 15 years we have been landed with a Labour Government of one sort or another—sometimes in coalition but now on their own. In my view, they are by now an exhausted animal, totally devoid of energy and ideas, and utterly incapable of tackling the problems which they are facing.

I applaud the noble Lord, Lord Wigley, for securing this debate and I am very happy to discuss with him comparisons with Scotland, the extent of powers and funding, the Barnett formula, the d’Hondt system of proportional representation, the ideal number of AMs and scrutiny committees. Indeed, federal constitutions are my bread and butter. As chairman of the Lloyd George Society, I was very disappointed that my noble friend did not read out a quotation from that great man, who demanded home rule all round in the 1910s. I would prefer to join the noble Lord, Lord Wigley, in a movement to sweep the Labour incumbents out of power. We missed our chance with the rainbow coalition. Two of the three are here—the noble Lord, Lord Bourne, is not at the Dispatch Box, unhappily—but we have to get rid of them. Labour lost in Scotland and it is time it lost in Wales.