Wales Bill

Lord Thomas of Gresford Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Howarth of Newport]

My Lords, the call for the alignment of legislative and executive powers is not just a call for tidying-up: it is a call for clarity of accountability. Unless we have that alignment, in the same devolved matter, Welsh government Ministers will be accountable to the Welsh Assembly on some aspects and Ministers of the Crown will be responsible to this legislature on others. That makes for confusion and a political mess. Is not it far better to get some coherence and clarity of accountability, as my noble friend and other noble Lords are calling for?

[Lord Thomas of Gresford (LD)]

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

[Lord Bourne of Aberystwyth]

I thank all noble Lords who have participated in the debate on this part of the Bill and specifically the noble Lord, Lord Elis-Thomas, and the noble Baroness, Lady Morgan of Ely, who are seeking to broaden the definition of the Assembly’s legislative competence to include functions where consultation with a Minister of the Crown is required before modification, by virtue of paragraph 11(2) of new Schedule 7B.

Specifically in relation to the functions set out in that sub-paragraph, I should say first that they are very few. We should be clear that the great bulk of ministerial functions will be transferred by transfer of functions orders—that is the intention—but there are four here that need prior consent. I am willing to go away and look at these, but I have to say that some relate to circumstances that perhaps noble Lords have not taken account of. For example, the very porous nature of the border means that for water—noble Lords will know that we are still looking at this—the present position is that the National Assembly for Wales has some competence in relation to customers who are in England, and vice versa. Therefore, it is not quite as straightforward as it might be in Scotland, with respect to the noble and learned Lord, Lord Hope. That said, I will have another look at the functions as they are set out and be in a position to better inform noble Lords as to the precise thinking behind these.

However, in relation to, I think, Amendment 36, in the name of the noble Lord, Lord Elis-Thomas, or Amendment 37, in the names of the noble Lord, Lord Elis-Thomas, and the noble Baroness, Lady Morgan of Ely, the reason for the measure is specifically the evolving picture on water. We are still looking at that. That is why the measure is in the Bill. Having looked at it, I think it is probably wider than we need, because, if it is needed just for water and sewerage, I do not see why we cannot say so. Therefore, I will certainly take that back to see whether we cannot amend it. If the noble Baroness and noble Lord look at that provision, they may see that we need it because of the situation to which I have just referred of some English customers being subject to Welsh law and Welsh customers being subject to English law. We need to tidy that up.

The noble Lord, Lord Thomas of Gresford, asked about the transfer of functions orders. He will be aware that I wrote to noble Lords setting out those we intend to transfer. Because of the evolving nature of reserved matters—for example, on teachers’ pay—work on that is still going on. I assure him that work continues on that, perhaps not quite as we speak but pretty much as we speak. On the basis of these remarks, I would be grateful if the noble Lord would withdraw his amendment.

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[Lord Wigley (PC)]

My Lords, I shall be brief. It strikes me that it is for the Government to make the case for Milford Haven being an exception. The natural position would be for it to be within the competence of the Welsh Government and Assembly, and a case for it needs to be made—a case that I have not yet heard.

I support the points about Milford Haven made by the noble Baroness, Lady Morgan of Ely. As she said, it handles 62% of all the liquid natural gas, but it has had other strategic existences in the past and it may well do so in the future. At one point it had a strategic position in regard to fishing due to its deep-water facility. At the time, there was the possibility of Celtic oil off the Pembrokeshire coast. In that context, Milford Haven would have been important to the economic development of the area. Therefore, taking out what should be a focus for possible future growth in Pembrokeshire seems perverse, and a strong case needs to be made for allowing that to happen.

On coastguards, many other services in Wales come under the National Assembly—one thinks of the ambulance service, for example. One would have thought that the coastguard facility would naturally have the same sorts of conflicts. Again, I would be interested to hear the Government’s case.

[Lord Thomas of Gresford]

My Lords, Milford Haven is at the other end of Wales from me and I have never been there. However, I am very familiar with Aberdeen Harbour, having on a number of occasions rowed upstream from there as far as the main road bridge, and I have fished in the river very frequently.

There are differences and I can assist the Minister to this extent: I do not believe that oil or gas is discharged in Aberdeen Harbour, as it is in Milford Haven. However, that makes my point. It seems to me that the Welsh Government would control the standards and risks of pollution at Milford Haven in a much more hands-on way than could ever be the case in Westminster. The Minister should explain why such a distinction is made between Milford Haven and the other ports in Wales.

Wales Bill

Lord Thomas of Gresford Excerpts

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

[Lord Kinnock]

I say to the noble Lord, Lord Wigley, who I respect greatly, that it would be—without oversimplifying this—on the same basis as borrowings are undertaken now. He will know of the generous and immensely useful support given to a variety of projects in Wales by the European Investment Bank. Nobody has required the allocation of tax-varying or tax-raising powers to the Welsh Assembly to enable that support. Since there is also a guaranteed income for the Welsh Assembly—inadequate and stunted by the application of the Barnett formula, as he and I would agree—but nevertheless significant, as he and I would agree, nobody lending money for major capital investment projects in Wales, within reasonable limits and according to the required fiscal disciplines, should worry about it because they will be guaranteed a return on their investment. It is not necessary to add to the obligations of the Welsh Assembly to facilitate that—within limited confines, as I say. I will give him an example, which I will pluck out of the air.

If, for instance, a sensible proposal was made for establishing a link between Rhoose international airport and the main train line from London to Swansea, I would certainly support it, or, indeed a spur road from the M4 or even a direct road from the A48 into Rhoose airport in order to enhance the attractiveness of this major infrastructure advantage, substantially, and rightly, supported by the Welsh Government. There is no reason why a guarantee of return on the investment should not be made by the imposition of a small toll on the road or the railway line. It is not unprecedented across continental Europe. If we want to know how successful such arrangements can be, the noble Lord only has to look that the second Severn crossing. A huge capital sum, vastly in excess of anything that would be needed to link Rhoose airport, has been paid off with, in my view, excessive and unfair impositions—I am speaking of the degree, not the principle. The same thing could be done elsewhere. I am not advocating it; I am simply saying that there is a variety of ways of guaranteeing a reasonable return on long-term capital investment without requiring the allocation of fund raising through income tax-raising powers for the Welsh Assembly.

If this removal of a requirement for a referendum is to have a real justification, it has to have evident support from people across Wales. They have expressed no significant demand for, or preference for, the further allocation of such a power to the Welsh Assembly. The maxim employed earlier by the noble Lord, Lord Wigley, which was coined by a Welshman at the time of the American Revolution, “No taxation without representation”, bears an addition in this century. It is: “No further allocated powers of taxation without at least consultation, without at least deliberation, without at least endorsement and, finally, without at least agreement”. That brings us back to the referendum because where there is an absence of demand for this change in the way in which the people of Wales are governed, there has to be a supreme additional justification for allocating a power that is not only not demanded but that we have every reason to assume would not be exercised, a power that would not lend itself to extra accountability or enhance transparency or enrich democracy. I wait to hear from the Minister a justification of the dismantling of the undertakings previously given by all parties and enacted for a referendum as a prerequisite of the allocation of income tax-raising powers to the Welsh Assembly.

[Lord Thomas of Gresford (LD)]

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

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

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

[Lord Howarth of Newport (Lab)]

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

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

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

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[Lord Thomas of Gresford]

The noble Lord seems to think that this is about additional income tax but we are talking about tax-varying powers. They could go up or down or they could stay the same, but they would give a separate stream to the income of the Welsh Assembly, which would assist in borrowing. What disappoints me in the Minister’s reply is not to hear some idea of the fiscal framework. I wonder whether the Welsh Government have ever put forward a variation on the Barnett formula. We all oppose the Barnett formula in one way or another, but I have never heard the Welsh Government suggest an alternative way in which to raise money, other than the Barnett formula. Can the Minister say something about the broader picture?

[Lord Murphy of Torfaen]

I had not quite finished my remarks—I thought the noble Lord was intervening on me. The issue is about the principle of a referendum. Right from 1997, the people of Wales agreed on a devolution settlement. In 1979, my noble friend Lord Kinnock and I disagreed with the idea of a Welsh Assembly. Twenty years later, we agreed with it—and, as the Minister himself said, in 2011 there was a referendum to change that settlement. I approved of it, I agreed with it and I supported it. That gave legitimacy to the change, because at the end of the day the people of Wales agreed.

I suspect there has been a change in the past 18 months because, after all, this is about a change in the current law. It is not about introducing something but about abolishing something: the right of the people of Wales to have a referendum on income tax. My guess is that it has nothing to do with the spread of devolution or the other issues to which the Minister referred; it is about their thinking that they would not win it. But the principle of the referendum would give it that legitimacy. Indeed, if the Government and others thought it would be hugely popular, what is wrong with a referendum on it? If we had one on the powers, we can have one on income tax. The Minister has not explained why the Government have changed their mind about the principle of a referendum in under two years. That is a pretty rapid change, and there must be other reasons lying behind the Government’s views. At the end of the day, if the people of Wales want income tax variation—and, by the way, it is not extra money. I reject that idea; I do not think for one second that any income tax powers will produce a penny more for the people of Wales, because the block grant will be reduced. That imposition has been put on a country that is poorer than England. Having said all that, I shall not push this to a vote this evening.

[Lord Thomas of Gresford]

In Committee, I think I am entitled to speak as many times as I wish. I apologise to the noble Lord, Lord Murphy, for interrupting him in full flow, but I still look to the Minister to give us some idea at this stage of how he sees it. What is the future fiscal framework? What does he have in mind? Will it be a deduction from the block grant, as the noble Lord, Lord Murphy, suggests, or will it not?

[Lord Bourne of Aberystwyth]

My Lords, I am very happy to supply the information that I gave previously at Second Reading, when I said that I would update noble Lords, before Report, on the progress of the fiscal negotiations that are going on between the Welsh and United Kingdom Governments. As I indicated then, the discussions are progressing well. The ministerial Joint Exchequer Committee has met twice and, according to reports I have had from both the Welsh and UK Governments, it is going well. I am not all over the detail; it would be unwise to be so until they are nearer to a conclusion. There will obviously be a reduction in the block grant because 10p income tax will be raised at the Welsh level. So the discussion is about exactly how we do what is right for Wales and for the United Kingdom within that context. It is good news that progress is being made.

Wales Bill

Lord Thomas of Gresford Excerpts

Committee: 1st sitting (Hansard) : House of Lords
Monday 31st October 2016 Lords Chamber

[Baroness Morgan of Ely (Lab)]

My Lords, I tabled Amendments 4 and 5 to establish a justice commission for Wales. Like the noble Lord, Lord Wigley, I apologise for not having the legal background or brilliance of the noble and learned Lords, Lord Hope and Lord Judge, to speak as I would like on the amendments, but I will do my best.

The noble Lord, Lord Wigley, made some relevant and serious points which need to be considered. It is premature to establish a separate legal jurisdiction for Wales, but there is without question an issue that needs to be addressed. I shall briefly summarise the background and explain why the commission is needed and what it would achieve.

There is clear consensus among constitutional and legal experts that there is a problem here that must be addressed. The creation of the National Assembly as a legislature with primary legislative powers, operating within a single jurisdiction of England and Wales, creates a situation which will throw up difficulties in the medium to long term. That single legal jurisdiction, to quote from those who have promoted this Bill in the other place, “has served us well”. Yes, it may have done that, but it has served us well in different times. It served us well when the laws that applied across England and Wales were the same laws—when this place was the only legislature that could enact the laws of the jurisdiction. That is no longer the case and has not been for some time.

It is worth emphasising the point made by the noble Lord, Lord Elis-Thomas. There is no question but that the UK’s Government’s anxiety to protect the joint jurisdiction is the source of many problems in the Bill. We accept that some constraints have been removed, but there remain many reservations and restrictions whose primary purpose is to protect the consistency of law across England and Wales. The problem is that that consistency no longer exists: the horse has already bolted. The reality is that there is already a growing divergence of law which is the inevitable consequence of legislative devolution. The law on education, planning, the environment and social services is now fundamentally different in Wales. Without reform of the jurisdiction to reflect this divergence, there are risks to the rule of law and the administration of justice. By necessity, a single jurisdiction involves a single body of law that extends across its territory. A single jurisdiction implies that the law is the same across that territory. The laws of England and Wales—already vast—must now absorb the increasing divergence between laws that apply only to Wales and those that apply only to England. This is highly complex, so how can we be sure that the citizens will understand the law or even that solicitors, barristers and judges will apply the correct law? This is not a debating point: these are real practical risks and they are increasing.

This issue demands a serious response and the UK Government see no need for concern on the grounds that this single jurisdiction has served Wales well. That misses the point. The shared jurisdiction served Wales well for four and a half centuries when Wales did not have its own legislature. That is no longer the case. The single jurisdiction is out of sync with the way that Wales is governed. It has not caught up with reality. But it is okay, because we have a glimmer of hope. All is going to be fine because the Ministry of Justice has set up a working group—what in Wales we call a committee—of Whitehall officials. The noble Lord, Lord Crickhowell, referred to this. Its birth was not auspicious: it was a party to which the Welsh Government were apparently invited but had not received their invitation. Never mind: it has now met, but we and the Welsh Government are in the dark as to its progress. Will the Minister enlighten us on some key points in relation to that working group? How many meetings has the group held? What engagement has there been with legal practitioners who understand the day-to-day realities of practising law in Wales? What is the work programme and when can we expect to see the report? Will we have it before Report stage?

It is an incredible coincidence that today, when we are debating this, the Welsh Government have received an invitation to the working group’s second meeting. That is great news, but we should be concerned that that progress is not a serious way of demonstrating a commitment to the fundamental importance of this work. This is why we think it is important to bring forward a commission on which the Welsh Government have equal status and to which they are able to bring their expertise and that of those who have real knowledge of the Welsh justice system. We have no confidence that this informal working group will be capable of producing a serious response to the challenges I have outlined. Maybe it will: let us see if we can see something before Report stage. It is important to have a much more credible mechanism for taking this issue forward which will be independent of government and consist of senior judiciary and other practitioners who already have the authority and expertise required. Such a mechanism would provide a forum for developing solutions to problems that cannot be avoided and would be transparent in producing an annual report on progress against an agreed remit.

For all its flaws, one of the positive impacts of this Bill is that we have had to focus our minds on this key issue. It is clear that the single jurisdiction is no longer fit for purpose in its current form. What exactly should come in its place and how it should operate are questions that necessitate detailed analysis of the situation and the evidence of the problems caused. Much thought needs to be given to what is the right way forward. The relevant body should comprise those with most experience of the problems, and legal and constitutional experts adept at finding solutions. These problems will not go away. The proposed commission would provide a mechanism for addressing them. That is the purpose of this amendment. I hope that the Minister will support it.

[Lord Thomas of Gresford (LD)]

My Lords, those of your Lordships who were here at Second Reading will recall that I told the House that when I was in my 20s and full of ambition and great principle, I thought that it was necessary, when drafting a Bill for the parliament of Wales back in 1967, to have a separate Welsh jurisdiction to determine the laws that that parliament would pass. As I indicated at Second Reading, I have changed my view; I think it is a matter of complete practicality. I disagree with the noble Lord, Lord Wigley, who said that the joint jurisdiction has not served Wales well. There is no joint jurisdiction. There is a single jurisdiction and it has operated over four centuries to provide the same standard of justice in Wales as in England. When he was called on to give an example of where it goes wrong, he talked about courts, as though a Welsh parliament would create new Crown Courts west of Swansea or in mid-Wales and would have the funds, judicial power and practitioners to man such a system. It is purely a practical question. To demonstrate that, I quote from the noble Lord’s amendment. Under the heading “A6 Judiciary”, the amendment states:

“All of the judges, judicial office-holders”,

and others,

“become judges … of both … courts”—

that is, the existing judges would continue to operate in both England and Wales. The amendment then proposes:

“All of the persons by whom the jurisdiction of the Crown Court constituted by section 4 of the Courts Act 1971 is exercisable become the persons by whom the functions of both of the courts to which that court corresponds”.

In other words, practitioners and judges in criminal courts could operate in both England and Wales. Where is the separate jurisdiction in that? Proposed new Section A6(3) states that all the existing judges and others should become judges in the courts of both England and Wales. The same situation is proposed for family courts and the legal profession. Therefore, the proposal put forward by the noble Lord, Lord Wigley, is that existing judges and practitioners should operate in the courts of both countries. How could that be possible if there were such a distinct and arcane system of Welsh law that only Welsh practitioners could understand it? Lawyers are accustomed to dealing with separate parts of the law, whether it is Welsh law, administrative law, the law relating to trusts or whatever. Practitioners and judges deal with differences between the laws passed by the parliament in Wales and those passed by the Parliament in England. There is no problem with judges doing precisely that. At the moment an Administrative Court sits in Wales and deals with legislation passed by the Welsh Assembly quite adequately—the Lord Chief Justice and an old friend of mine, Mr Justice Wyn Williams, sat in such a case last week—and no problem arises from that. However, the hare has been started, and for that reason I have advanced, as a matter of practicality, my Amendment 10.

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[Lord Carlile of Berriew (LD)]

My Lords, I joined the Wales and Chester circuit of the Bar 45 years and two months ago. I went to chambers in Chester, where my noble friend Lord Thomas of Gresford was already well established, and I confess that I learned a great deal from him, almost all of it good. It is therefore with a good deal of pleasure that I rise to support his amendment.

I have some sympathy with the noble Lord, Lord Wigley, in his aspirations for Welsh institutions, but I fear that I have to come to the same conclusion as my noble friend Lord Thomas—that what he proposes is not needed and nor would it work. Speaking only for myself, I suspect, I have long been in favour of the creation of a separate Wales division of the High Court to cover civil and criminal proceedings. Although a great deal has been done, which I shall mention in a moment, we still do not quite have that formal division. In my view, that would be an excellent measure, well understood, and it would possibly allow Wales to have some appointments that would be appropriate to such a division, such as a presidency of the division—there are presidents of the other divisions of our senior courts. I think that that would be met with approval throughout the legal profession in Wales, although, as I shall set out in a moment, it is not necessarily those in the legal profession who are the right people to decide these things.

I join in the tribute that has been paid to the noble and learned Lord, Lord Judge, who as Lord Chief Justice did a great deal to give the Welsh jurisdiction an identity which previously it had not had for several hundred years. Of course, as I think my noble friend said at Second Reading—I have certainly heard him say it in your Lordships’ House—there used to be a chief justice of Wales. Indeed, he and I appeared at the Chester city quarter sessions, in the building of which there is a large portrait of a former chief justice of Wales—the well-known Lord Jeffreys or Judge Jeffreys. He is not necessarily the best precedent for such an appointment; nevertheless, there is that precedent. There could be a president of a Wales division, although not in a Jeffreys-like way—who, by the way, was not half as bad as history has made him out to be. Of course I will give way to my noble friend.

[Lord Thomas of Gresford]

Your Lordships will appreciate that I was born in Acton on the Jeffreys estate.

[Lord Carlile of Berriew]

I am delighted to hear that. My noble friend’s sense of justice certainly does not in any way imitate that of Lord Jeffreys of the Bloody Assizes.

However, what I am suggesting is that the presidency of a Wales division of the High Court would have real attractions within Wales.

I would also like—I know that the noble and learned Lord, Lord Judge, would associate himself with this—to praise the actions of the current Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, who was born in south Wales and has frequently reminded us of that fact. Indeed, the noble and learned Lord, Lord Thomas, has evolved what was introduced by the noble and learned Lord, Lord Judge, and given further credibility to the respect that is given to Wales as a jurisdiction where relevant and appropriate.

One group who have hardly been mentioned in this debate is the poor old litigants who go to law in Wales. I had the great privilege of representing Montgomeryshire as its Member of Parliament for 14 years. It sits on a long stretch of the Welsh border. It is quite common for a customer to walk into an estate agent in, say, Llanfyllin, and negotiate the purchase of a property in another branch of that estate agency in Shrewsbury. It is very common—I may have done it myself—to go and look at a new car in Welshpool, but negotiate the price of that new car with somebody in Shrewsbury or some other English town. It is important for Wales that we develop as strong a financial services industry and venture capital industry in Wales as possible, but we need those English and foreign investors who want to take part in such transactions to have the confidence that they work in a predictable legal environment.

This is my final example, although I could give dozens. We need to be sure that those who face a trading standards dispute that arises with a company that operates both in Wales and in England are not faced by someone like myself scratching their expensive head in chambers and saying, “Oh, we’ve got a private international law issue here; a conflicts of law issue on which I will have to write you an extremely learned opinion”—at whatever my hourly rate for the time being happens to be. I do not think that we should inflict those disputes and problems on litigants. Inevitably, that is what would happen after time.

There are many common law jurisdictions around the world and they of course pay enormous respect to the decisions of what was formerly the House of Lords and is now the Supreme Court, and pay lower levels of respect to senior courts as you go down the hierarchy of courts. But inevitably there would be judgments in a separate Welsh jurisdiction that would be inconsistent with judgments in the English jurisdiction or any other common law jurisdiction such as the Scottish jurisdiction—which, as the noble and learned Lord, Lord Hope, knows, has a different origin—or for that matter the jurisdiction in Northern Ireland.

While I would not wish to leave things necessarily as they are and I welcome the proposal made by my noble friend of a detailed and one-off review, creating a completely separate set of law for Wales would be to turn the clock backwards rather than forwards and would have damaging effects on potential litigants in Wales and on the economy of Wales

Wales Bill

Lord Thomas of Gresford Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 31st October 2016 Lords Chamber

The issue is the complexity of Welsh devolution, which remains unclear and undefined. The issue of what it is within the Assembly’s competence to do is made even more complex than it was before by the Bill. I speak as someone who was involved—for too long, I suspect—in trying to determine what was within the competence of the Assembly and what was not, but I was well advised by excellent lawyers in the National Assembly and assisted more recently by the Supreme Court. It is not for me to comment on the activities of the Supreme Court, but clearly what we are doing here by not specifying more clearly what “devolved matters” are is not providing the required clarity, not just for politicians, lawyers or interest groups, but for the public in Wales. This is my greatest concern about what we are legislating in the Bill: we are continuing the cawl—Hansard will know how that is spelt—of Welsh devolution. There is no clarity in this soup, Minister.

[Lord Thomas of Gresford (LD)]

My Lords, I was in this Chamber when this issue first arose in 1998 in the then Scotland Bill. I heard Lord Sewel produce his sentence, which was hastily cobbled together. There was no thought behind it. It was not part of the government programme at that time, but he was under great pressure from Scottish Peers to define when the Westminster Parliament would act where Scotland had competence. He came out with his phrase, using the word “normally”, in that context. It has found itself into the Scottish legislation and has been adopted for the purposes of this legislation.

It is an unsatisfactory solution. There are no doubt exceptional circumstances, such as a declaration of war or something of a really serious consequence, when the Westminster Parliament may wish to overrule the Welsh Assembly or act in its place, but the word “normally” does not cover that. It is open to huge misinterpretation and the sort of litigation to which the noble and learned Lord, Lord Judge, referred in his contribution before the adjournment. The Government ought to excise the word altogether. I seem to recall it was still in contention as to whether it was a satisfactory phrase in consideration on the recent Scotland Bill.

I also support Amendment 8 in the name of the noble Baroness, Lady Morgan of Ely. I prefer it to the amendment tabled by the noble Lord, Lord Elis-Thomas, because it is disjunctive whereas his is not. An “or” at the end of his proposed new paragraph (c) might have made it a bit clearer.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank noble Lords who participated in the debate on this amendment. I turn first to the comments of the noble Lord, Lord Wigley. Clause 2 places the existing convention on legislative consent on a statutory footing. As the noble Lord, Lord Thomas of Gresford, just indicated, this is not something that the Government have suddenly dreamed up. It is an existing convention and something we committed to do in the St David’s Day agreement. As has been noted by various noble Lords, it is also in line with Section 2 of the Scotland Act 2016. The convention states that Parliament will not normally legislate on matters devolved to the National Assembly for Wales without the consent of the Assembly, or in the case of Scotland the Scottish Parliament. These amendments seek to broaden the convention in two ways. They seek to remove the “not normally” requirement and also seek to expand the circumstances in which Parliament would not legislate without the consent of the National Assembly for Wales.

That said—the noble Lord, Lord Elis-Thomas, is right that I am going to refer to the doctrine of the sovereignty of Parliament—I can, nevertheless, understand the points that have been made. I am grateful for comments about this from other noble Lords, including my noble friend Lord Crickhowell, and earlier from the noble and learned Lord, Lord Judge, who is not in his place at the moment. I will go back and have a look to see whether we are able to do something by guidance, but the whole nature of the “not normally” is that that there will be circumstances that are difficult to foresee.

The nature of this signals that they are not justiciable, because it is left to Parliament. However, in line with comments from noble Lords and in the interests of ensuring that we look at this from all angles, I will go back and see whether there is something that we can do in relation to guidance on the two issues in relation to devolved matters as raised by the noble Baroness, Lady Morgan of Ely, and the noble Lords, Lord Elis-Thomas and Lord Wigley. I urge the noble Lord to withdraw the amendment.

[Lord Thomas of Gresford]

I understand the Minister is saying that it is not justiciable as to whether the word “normally” is applicable in a particular case. However, it could be subject to judicial review if a Minister brought forward a Bill that was the subject of contention as to whether the circumstances were normal or abnormal. To say that it is not justiciable is not, I think, correct.

[Lord Bourne of Aberystwyth]

My Lords, I do not think that I said that. I said that it signals that it is not justiciable. I am making the point that noble Lords have been making about the generality of the phrase and that it is difficult to define, and it means that if Parliament decides something it can decide that this is not normal. That is the point about it. As I say, I will take it back and see whether we can accomplish what noble Lords are seeking in guidance.

--- Later in debate ---

[Lord Murphy of Torfaen]

If I had my way I would change the whole system—probably not to what the noble Lord, Lord Wigley, wants, but to the alternative vote system, for example. The point I am making is that the people in that part of Wales did not get the opportunity to say, “I don’t want that person because they do not live in Wales”. They were voting for a party instead of an individual. I cannot see any reason why, when we set up a Parliament or an Assembly in one of our devolved parts of the United Kingdom, a person should represent it without living in it. All the arguments that have been addressed are valid and I hope that the Minister will look favourably on these amendments.

[Lord Thomas of Gresford]

My Lords, this debate takes me back to 1981, when I applied to be a candidate in a constituency not very far from my home. It was impressed on me that I should buy a cottage in this constituency, to which my reply was that I lived half an hour away and had a fast car. That was one factor that meant I was not chosen as the candidate. The other was that I was competing against my noble friend Lord Carlile of Berriew. That was much more important.

I support the amendment of the noble Lord, Lord Wigley. We had problems in my party in the Assembly election before last where two candidates could have been disqualified by being members of public bodies at the time they filed their nomination papers as candidates. One was in a paid office and one was not paid. But they could have been disqualified. One of them succeeded, as noble Lords will recall, in gaining entrance. The other did not.

My recollection is that in the last Wales Bill we adopted a similar provision to that of the noble Lord, Lord Wigley; namely, that they should have ceased to hold those public offices by the time they were sworn in as Members of the National Assembly for Wales. I think that is fair. A candidate does not know, particularly in my party, whether he is ever going to be elected. Accordingly, to ask him to move his house and family, even if it is only half an hour away and he has a fast car, is not a sufficient reason for disqualifying that person from being a candidate. Therefore, I support Amendment 22.

Wales Bill

Lord Thomas of Gresford Excerpts

2nd reading (Hansard - continued): House of Lords
Monday 10th October 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I congratulate the noble Baroness, Lady Bloomfield, on an excellent maiden speech. I was delighted to hear of her interest in green energy and that she is a supporter of the Swansea lagoon. But, more importantly, she is a harpist. I thought that I was the only harpist in this assembly. Having learned the instrument for some years, I hope that we can twang from the same legislative hymn-sheet over a number of years.

Fifty years ago, in the autumn of 1966, in a Wales rocked by the Aberfan disaster, I sat down and drafted the Parliament of Wales Bill, which Emlyn Hooson presented in the House of Commons on 1 March 1967. The noble and learned Lord, Lord Morris of Aberavon, will be delighted to know that I decided to call that Parliament a Senedd. It was to have 88 members, be elected by proportional representation, of course, and have powers to legislate,

“for the peace, order and good government of Wales”,

with powers to raise taxes, other than income tax and certain other taxes. The Bill reserved to the Westminster Parliament defence, foreign affairs, currency, international trade, law and order and social security.

I have been looking through the Bill before us in the course of this debate to try to work out how many of the 200 reservations in it could come under those much more simple headings that I put in my Bill. By Clause 9(5) I provided for elected members to be paid £2,250 a year. It happened to be £250 more than I earned at the time as a law lecturer, and I thought that that would suffice. It promoted a ministerial system of government.

The political context of 1966 was that Harold Wilson had won the election and the noble Lord, Lord Elystan-Morgan, had turfed the Liberals out in Ceredigion. I was a bit miffed about that, because I had voted for him in 1964, when he was the Plaid Cymru candidate in Wrexham. In July 1966, Gwynfor Evans won the Carmarthen by-election on a platform which called for Commonwealth status for Wales. How delightful it was to hear dominion status being argued again—Saunders Lewis wanted that when he first set up Plaid Cymru in the 1930s.

[A noble Lord]

The 1920s.

[Lord Thomas of Gresford]

I thank the noble Lord. I did not realise that it had such a long history. At the same time, a small group of us, led by Emlyn Hooson, formed the Welsh Liberal Party, and the first president was Sir Alun Talfan Davies, so I was delighted to hear the reference made by the noble Baroness, Lady Finn, to her relationship with my old friend and colleague. If she belongs to the Talfan Davies family, it is as though she were born into the crachach. Our first task, we thought, was to clarify the Welsh Liberal approach to devolution. That was the purpose of my Bill, and I gave evidence about it to the Kilbrandon commission in 1968, which was mentioned earlier.

Gwynfor was a supporter of our Bill, as was SO Davies from the Labour Benches. However, when in June it was listed for Second Reading, it was objected to by the Labour Government and the Conservatives and it fell. When introduced into the Lords by Lord Ogmore in January 1968, Labour and Tory Peers blocked it in the usual way, by an amendment that it should be heard six months hence. The noble Lord, Lord Murphy of Torfaen, was obviously born into that tradition. It will be no surprise, therefore, that we on these Benches support the reserved powers model contained in the Bill, although the principle could be much more easily expressed. Fifty years on, it is comforting if not a little frustrating, to find that the Constitutional and Legislative Affairs Committee of the Welsh Assembly, with Labour, Conservative and Plaid representation but no Liberal, have concluded in paragraphs 83 and 84 of its report that the words,

“make laws for the peace, order and good government of Wales”,

would indeed confer plenary law-making authority on the National Assembly. I agree. But in one area I disagree with the CLA committee: that of a single jurisdiction, which your Lordships have debated today.

Because I was a purist in 1966, Clause 19 of my Bill set up a separate Court of Appeal and revived the Court of Great Sessions, to which the noble Lord, Lord Morgan, referred, with its own judges and its own Attorney-General, and a single legal profession. This would obviously have involved the creation of a separate Welsh jurisdiction. I topped it with a Chief Justice of Wales, and to tell the truth, I rather fancied the position myself—it was something to work for. As the noble Lord, Lord Morgan, said, the Court of Great Sessions in Wales was set up in 1542 and lasted until 1830. It had full King’s Bench and Chancery civil jurisdiction and full criminal jurisdiction. My Bill proposed the abolition of the assizes, which at that time took High Court judges around Wales, and the creation in Wales of six permanent courts. That in fact happened in any event in the reforms of the court system in 1972.

However, since those halcyon days I have had practical experience of separate jurisdictions. I practised in Hong Kong, Singapore, Malaysia and the Caribbean, which have inherited the common law and the judicial system of the United Kingdom from their colonial past, and it works. Two or three years ago, I was anxious to appear pro bono in a Scottish court on behalf of neighbours in Scotland who were being sued in an intellectual property dispute. I discovered that admission to the Scottish Bar would be at the discretion of the Dean of Faculty and that I would have to pass an aptitude test, which involved—this is two years ago—a written examination paper in the Scots legal system, constitutional and administrative law, written examinations in two of three special subjects, and oral examinations in the criminal law and either contract or delict. Fortunately, the case was withdrawn, with the costs payable to my friends.

In Northern Ireland, the system is that temporary membership may be granted by the Northern Ireland Bar Council committee for a specific case but will be granted for a maximum of three occasions. A glance at the regulations governing the Irish Bar indicate that a European lawyer may have rights of audience before a court in Ireland but only if he appears in conjunction with a full member of the Irish Bar. Therefore the pattern of all these is that despite the EU lawyers establishment directive 1998, which attempted to make legal qualifications interchangeable across Europe, each jurisdiction in these islands is jealously guarded. The creation of a separate jurisdiction for Wales implies not just separate courts but separate qualifications and separate rights of audience. The noble Lord, Lord Howarth, referred to that. If they can, lawyers lose no opportunity to create an exclusive world. At some future point a zealot might even perhaps call for a qualification in the Welsh language for all lawyers licensed to practice in Wales. After all, there is a right to use the Welsh language in every Welsh court.

In my early years, the Wales and Chester circuit included the Birkenhead courts, because Cheshire then extended to Birkenhead. As a result, we charged any members of the Liverpool Bar who had the temerity to cross the Mersey £5 a case. With that money we built up a fine circuit wine cellar for the Chester Bar mess, which served us very well for years—and, of course, an enduring enmity with the barristers from Liverpool.

There is of course a distinctive body of Welsh law, not only the legislation passed by the Assembly but the inheritance of the common law and of existing acts which relate to areas of policy which are not reserved to Westminster. Current laws in those areas will continue to apply as at present in Wales, even though Westminster amends, updates, repeals or changes them. But there is no need for procedural change in the justice system. The principles of statutory interpretation will remain the same and, unlike Scotland, the language of the law will be the same. There will be nothing to confuse any lawyer qualified in the usual way.

Furthermore, as has been pointed out, there is already an administrative court to deal with judicial review and similar applications involving the interpretation of the legislation of the Assembly. The Lord Chief Justice and Mr Justice Wyn Williams are today sitting on an appeal against Welsh Ministers in Swansea Crown Court in the Administrative Court for Wales. No doubt a number of specialists in this limited type of work will emerge, but that is a very far cry from a wide, separate jurisdiction. Noble Lords should beware of lawyers and academics who might call for just such a jurisdiction simply to corner the market.

I would deplore any extension of legislative powers in criminal law and private law in a way that would create significant disparities with the law across the border. I am sure we will examine where the Assembly has a role to create offences or civil remedies to enforce breaches of regulations in areas which are devolved and not reserved, but it must be limited.

No doubt we will discuss the specific reservations of powers. I was interested in the discussion about the Sunday Closing (Wales) Act 1881. I recall emerging from my Welsh chapel Sunday school at an early age to see queues forming at the bus stop in Wrexham high street. Where were they going? They were going to the pubs in Farndon on the English side of the border. The noble Lord, Lord Howarth, said, “Well, if Wales wishes to be virtuous, so be it”. I have never knowingly relinquished my membership of the Band of Hope, so I will fight for the right of the Assembly to turn Wales dry again if that is what the people of Wales want.

The powers relating to water affect me very much. A member of my family comes from Tryweryn. The village was drowned, along with a nearby farm. Lord Hooson and I appeared for the local people when there was an attempt to drown the Dulas Valley. Lord Cledwyn announced at the end of that inquiry that no Welsh valley would again be drowned in order to provide water for England. So I am with anybody who wants to have the powers relating to water devolved to Wales.

I have always believed in, and campaigned for, a Parliament for Wales but we must keep a sense of proportion. We must resist the temptation, for the sake of purity, to grasp and grasp, and grasp again, for a quasi-independent state. This Bill should be about the practicalities of good government. I join in the tributes to the noble Lord, Lord Bourne, to Stephen Crabb and to my noble friend Lady Randerson for all the work that they did in bringing about the St David’s Day agreement. There will never be an end to the process unless we finally sort out the fiscal framework for Wales, and I hope that before the Bill is finished we will hear more about that from the noble Lord at the Dispatch Box.

Draft Wales Bill: Silk Commission

Lord Thomas of Gresford Excerpts

Monday 30th November 2015 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, it is not fair to say that progress is not being made on this issue. As the noble Lord is aware, the draft Wales Bill represents a move forward in favour of a reserved powers model. Work is continuing on that, as we speak, in discussions between the Welsh and UK Governments. It is not an easy thing to resolve, but significant progress is being made.

[Lord Thomas of Gresford (LD)]

Will the Minister explain why the Government are prepared to devolve air passenger duty to Scotland, notwithstanding the effect that may have on Newcastle, but will not do so to Wales? South-east Wales, and Cardiff Airport in particular, might benefit very much from this.

[Lord Bourne of Aberystwyth]

My Lords, devolution of APD is not a straightforward issue, as I am sure the noble Lord is aware. In Scotland, most people who travel by air do so from Glasgow or Edinburgh. In Wales, most people would not necessarily travel from Cardiff Airport. For example, people in the north would not think of doing so. In addition, the significant issue of state aid has to be looked at. Those are the two main reasons why it was not taken forward.

Draft Wales Bill

Lord Thomas of Gresford Excerpts

Thursday 29th October 2015 Lords Chamber

[Lord Thomas of Gresford (LD)]

The Constitutional Reform Act 2005 requires the Supreme Court selection committee to,

“ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom”.

Of the 12 Supreme Court Justices, two are Scottish and one is Northern Irish. The Lord Chief Justice—the noble and learned Lord, Lord Thomas of Cwmgiedd, with whom I am occasionally confused—stands in from time to time. Will the Minister undertake to amend the draft Wales Bill to ensure that one seat will always be reserved for a Justice with experience of the practice of the law in Wales and, since the laws are passed by the Welsh Assembly in two languages, knowledge of the Welsh language? Such a judge could act as a mediator in any dispute between the Welsh Government and the UK Government as to legislative competence.

[Lord Bourne of Aberystwyth]

My Lords, that almost sounded like a job application. I know that the noble Lord is very proficient in the law and in Welsh. At the moment, it is done on an informal basis, but the noble Lord has a serious point, which no doubt will be taken forward as the draft Bill proceeds.

Welsh Government: Fracking

Lord Thomas of Gresford Excerpts

Thursday 22nd January 2015 Lords Chamber

[Baroness Randerson]

The noble Lord should take into account the process that is under way. The Secretary of State has set great store by the fact that he wants to achieve political consensus across the four parties in Wales. The Welsh Government are involved, of course, and they have made it clear what their views are on the need to offer powers to the Welsh Government if they have been offered to Scotland. However, what is right for Scotland is not necessarily always right for Wales, and discussions are still ongoing.

[Lord Thomas of Gresford (LD)]

My Lords, within 10 miles of my home in Gresford in north Wales—its second mention this morning—there were in 1866 some 21 shale oil extraction plants, selling petrol at three shillings and four pence per gallon. Two years later it had fallen to 10 pence a gallon and the industry was completely wrecked. Is Welsh shale oil as sound a basis for Welsh independence—which 3% of the people of Wales want, including the noble Lord—as, for example, North Sea oil is for Scotland?

[Baroness Randerson]

My noble friend illustrates the volatility of energy prices, then as now. From current reports, the potential for significant amounts of shale gas in Wales is unclear. However, I agree with my noble friend: the recent big falls in the oil price have illustrated the shaky financial foundations on which the Scottish independence campaign was based.

Wales Bill

Lord Thomas of Gresford Excerpts

Monday 24th November 2014 Lords Chamber

[Lord Elis-Thomas]

My Lords, I have no wish to detain the House but I want to place on the record on behalf of my noble friend Lord Wigley and myself, both of us former Members of the National Assembly. In fact, I am still a Member—so far—dependent on the will of the electorate, as were the Minister and her colleague on the Front Bench. I thank the Government for their very positive response on all these matters. I should like to refer in particular to one great joy as regards this Bill, which is the passing of a phrase with which I have always had constitutional difficulty: the Welsh Assembly Government.

First of all we were the Welsh Assembly. That meant all of us—the whole family of legislators, officials and Ministers, or rather secretaries in those days. Then we went through a transitional period as the Welsh Assembly Government. Now, thank goodness, we are the Welsh Government for Plaid Cymru and the National Assembly for Wales, and long may we remain so.

[Lord Thomas of Gresford]

My Lords, I have been talking about devolution and independence with the noble Lord, Lord Elystan-Morgan, since around 1962 when we were both solicitors in Wrexham. Indeed, I even voted for him in 1964 when he was a Plaid Cymru candidate. The noble Lord, Lord Elis-Thomas, will be interested to know that. Thereafter we developed our ideas on devolution and it was those ideas, which we produced in 1967 in a Bill in the House of Commons and here that was taken up and considered by the Kilbrandon commission, to which I gave evidence. I say all this because of the history that everyone has been giving.

This Bill is just a step; it is not the end. I notice today that the Glasgow Herald says that the intention of the Smith commission is to introduce votes at 16 for the next Scottish Parliament elections. If that happens in Scotland, I am sure it is going to happen in Wales. Similarly, it has been said that Scotland may very well be looking for an airport tax. If that happens in Scotland, to the delight of the noble Lord, Lord Rowe-Beddoe, it will necessarily come to Wales as well. There are further steps to be taken before we have the complete and satisfactory home rule that the noble Lord and I dreamed of over 50 years ago.

[Baroness Randerson]

My Lords, I shall respond briefly to the salient points that have been made in this, our last debate. The noble Lord, Lord Elystan-Morgan, referred to the words of the Prime Minister. Perhaps I may point out to him the solid steps that have been taken since 19 September. The Cabinet Committee has been established under the chairmanship of William Hague. The Secretary of State is of course a member of that committee and, indeed, I attend as well when Wales is being discussed. I would also point to the establishment of cross-party discussions here in Westminster. My right honourable friend the Secretary of State will also be in discussions with the leaders of the Assembly groups. We have made the announcement which has been referred to on numerous occasions in our debates of the date of 1 March, St David’s Day, by when we expect to have resolved the issues to a sufficient extent to be able to produce a reserved powers framework for future legislation in respect of Wales. That will deal with the proposals for additional powers in Silk 2, in so far as there is cross-party agreement relating to the size of the Assembly. Silk 2 was accepted by the Deputy Prime Minister in his role of leader of his party. The long-standing devolution credentials of the noble and learned Lord, Lord Morris, are well known and respected by this House. The recent Supreme Court judgment has made it imperative that the issue of the reserved powers model is dealt with.

Wales Bill

Lord Thomas of Gresford Excerpts

Tuesday 11th November 2014 Lords Chamber

[Lord Crickhowell]

But the fact of the matter is that this is a requirement, as the amendment is now drafted. It would be necessary to find some way, perhaps at Third Reading or in some suitable way, to give the flexibility that he is prepared to allow.

[Lord Thomas of Gresford (LD)]

My Lords, I, too, was very much interested in the historical statement that we had from the noble and learned Lord, Lord Morris of Aberavon. His was a very important speech, which I am sure will find its way into the history books of the time.

I indicated in Committee that, in the Bill that I drafted in 1967, we had a reserved powers model which was presented by Lord Hooson in the Commons and by Lord Ogmore in this House. Shortly after that, I gave evidence to the Kilbrandon commission and called for a reserved powers model. When the Government of Wales Act was going through in 1998, I was calling for a reserved powers model. If this amendment today were for a reserved powers model, I would be in very considerable difficulty. However, the amendment tabled by the noble Lord, Lord Elystan-Morgan, is one of timing and, as he has just indicated, he is prepared to be flexible about that timing. In such circumstances, I am prepared to defer to the views of my noble friend the Minister, who I know shares my views on this issue.

--- Later in debate ---

[Lord Deben]

Well, it would seem the obvious answer, but the real question is that the United Kingdom matters too much for it to be the result of a series of random decisions about each bit of it. We ought to start the other way round.

[Lord Thomas of Gresford]

Does the noble Lord not agree that if it were not for the pressure for change in Scotland and Wales in particular, and perhaps in Northern Ireland, England would do nothing? Therefore, if we do not have that pressure, there is no incentive. Rationality is all very well, but you need to do something.

[Lord Deben]

I quite agree with my noble friend, but that pressure is there. It has been there, and it has meant that we have had to do things. I have always believed that we should have worked this out rationally before we were pressurised into it, but pressurised we have been. It is not going to stop now. Let us make the answer rational. Let us not just say that we will add another bit here and another bit there and hope that the result is something sensible. I believe the moment has come to grasp this nettle, not to say that it is too difficult. Let us do it as well as we can. It will not be perfect, but I suggest to the noble Lord that it is more likely to be closer to perfect if it has been thought through rather than if it happens accidentally.