Wales Bill

Debate between Lord Thomas of Gresford and Baroness Morgan of Ely

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

[Lord Thomas of Gresford (LD)]

My Lords, the noble Lord, Lord Elis-Thomas, in introducing his Amendments 77 and 78, did not expand very much on what they mean. I support the Government on the necessary test for the law on reserved matters, and I think it is essential that it be confined in that way.

I would be extremely concerned if there were an attempt to have a different criminal law applying in Wales, save in matters concerned with the enforcement of regulations or Acts of the Welsh Parliament. However, any modifications to the criminal law that dealt with, for example, the meaning of intention, recklessness, dishonesty, and so on or “secondary criminal liability” would cause great conflict. I have to tell your Lordships that I was involved in the definition of “recklessness” in the House of Lords Judicial Committee 25 years ago. My argument was dismissed but 25 years later their Lordships overruled the previous decision. It was similar with secondary criminal liability. My argument about that many years ago was dismissed but in very recent times has been accepted. These are difficult concepts and they should not be interfered with in any way.

[Baroness Morgan of Ely)]

My Lords, I thank the Minister for his comprehensive answer. There is a lot to digest.

It gives me a degree of comfort to understand that the amendment will fail the relate test if it has reserved matters as its purpose—that was clearly underlined by the Minister. The shifting of the burden of proof is also useful. I find that examples tell the story more readily than heavy legalese. However, it would have been useful to have heard examples of where it would have failed. We may be able to look at that in future. We need to be clear about where the lines are.

It was useful to understand that there will not be a need for consent by a UK Government Minister in relation to reserved bodies if it relates to general duties. I am again comforted by that.

As I say, there is a lot to digest and we will need time to look in detail at the Minister’s answer to see whether it meets some of our concerns. At this point I reserve judgment on whether he has answered all of my concerns and beg leave to withdraw the amendment.

Wales Bill

Debate between Lord Thomas of Gresford and Baroness Morgan of Ely

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.

Wales Bill

Debate between Lord Thomas of Gresford and Baroness Morgan of Ely

Wednesday 15th October 2014 Lords Chamber

[Lord Thomas of Gresford]

Surely the distance between Bristol and Cardiff and the services provided from Bristol are such that Bristol sucks people out of south Wales to use the additional services that fly there. That is why it seems to be in competition. What we are after is the development, the building-up, of Cardiff. If it comes within the European definition, that must be good enough.

On the issue of fuel duty, I understand that provisions have been made in Scotland to reduce fuel duty—I stand to be corrected—if you are more than 100 miles away from an oil refinery. In Wales, we have rural areas and people who are very much dependent on the use of motor vehicles—almost exclusively so in parts of Wales. However, Milford Haven, which is not built to supply Wales, happens to be within that 100-mile area in the south; and, of course, we have Ellesmere Port in the north. Consequently, the reduction of fuel duty, as happens in Scotland, does not happen in Wales. However, that ignores reality. It ignores the fact that the needs of the rural population of Wales are just as great as those in the highlands of Scotland. They suffer the same impoverishment as they do in the highlands of Scotland, perhaps even more, and accordingly there is a case for taking fuel duty under the wing of the Welsh Assembly. That does not necessarily mean applying it to the whole of Wales, so that we have queues of English people in Gresford from across the border, which is not something that I would wish to see. That is not the idea at all. It would enable the Welsh Assembly to vary fuel duty with regard to the needs of the people of Wales, which I think is very sensible.

[Baroness Morgan of Ely]

It is worth putting on record the Labour position on some of these points. First, in relation to fuel duty, we think it will be impossible to organise separate fuel duties within the United Kingdom and probably very difficult to comply with European Union rules within countries. Those cross-border issues we have just heard about could be quite complex and difficult to police. That would be a problem for us. Of course we have genuine sympathy for the problems relating to the cost of fuel in rural areas, but we do not think that this is the mechanism by which we should be addressing it.

On natural resources tax-sharing arrangements, we do not agree that this is a good idea. Wales is not sitting on vast quantities of oil like Scotland’s and a key point to remember is that we do not tax energy production from wind, wave and water in the same way as we do barrels of oil, so there would probably not be much in terms of tax return anyway—we would probably have to invent new taxes. On the issue of corporation tax, one of the most disappointing aspects of the Scottish referendum campaign was to see Plaid Cymru members actively supporting independence for Scotland. It was not surprising but was a little disappointing, because we know that one key thing Alex Salmond wanted to do was to reduce corporation tax 3% below that of the rest of the UK. That would have done untold damage to Welsh companies. It would have adversely affected Welsh companies, so we did not understand why Plaid Cymru was quite so enthusiastically supporting independence.

--- Later in debate ---

[Lord Thomas of Gresford]

Does the noble Baroness agree that all the things we have been discussing tonight are levers—things such as airport taxes—that we can use to increase prosperity in Wales to an equality with the rest of the United Kingdom? These are levers that would achieve a balance between the various nations in the United Kingdom. That is what it is all about. If you have a power to vary corporation tax, for example, it may be something that you exercise for a certain period in order to pull in industry, and then you may feel that you face competition from elsewhere and you should drop it. These things are all economic levers to achieve equality of prosperity in the United Kingdom.

[Baroness Morgan of Ely]

I understand that, but I also think that we should be aware of the dangers of a race to the bottom. That is my real concern. We have already seen that it is hard enough to get many of these corporations to pay their taxes at all, so for us to encourage corporation tax competition within the UK would be very problematic. The problem is that if you reduce the tax take, you start to have to cut services, and that becomes a problem. It means that our schools and hospitals have to be reduced.

On the issue of air passenger duty, it is worth noting that this is another issue where there has been cross-party agreement on devolution, on the basis that if this is provided to Scotland and Northern Ireland in the same way as corporation tax is, then we should be allowed to review it in Wales as well. The point is that if they are going to do it, of course we want to be part of that game. What we cannot have is them going off by themselves. That would be problematic. It is why Scottish independence was a problem for us.

Wales Bill

Debate between Lord Thomas of Gresford and Baroness Morgan of Ely

Monday 13th October 2014 Lords Chamber

[Lord Thomas of Gresford]

I am very grateful for that assistance from the noble Lord, because I wondered why it would be in the 1975 Act as a disqualification for standing for Parliament. Since this is Committee stage, amendments can always be made on Report to correct that. The nub of the matter is in proposed new subsection (5) in Amendment 15. This adds two additional subsections to Section 16 of the Government of Wales Act 2006. The committee put forward two ways of dealing with the issue: by requiring Assembly Members to resign a disqualifying office before taking the oath or affirmation of allegiance; or by deeming that an Assembly Member had resigned a disqualifying post at the moment that he was elected. It recommended the former course. It also suggested that the Law Commission might consider these issues as part of a wider review across all UK legislatures.

Kicking the issue into the long grass of the Law Commission is unnecessary. Devolution, as we have heard today, has not and almost certainly will not follow precisely the same pattern across the UK, and any short-term attempt to reach conformity is otiose. Such a course might delay changes welcomed by all sides beyond the 2016 election. The parliamentary processes here are surely robust enough to choose the proper mechanism. Amendment 15 suggests neither of the two methods proposed by the committee but follows the drafting of Clause 3 of this Bill, which deals with disqualification of persons elected to the House of Commons. It introduces an eight-day period following the election within which the Assembly Member can resign the post that would otherwise disqualify him.

The committee also accepted the advice of the Counsel General in relation to the power of the Assembly to disregard the disqualification. Your Lordships will recall that that was the process followed in relation to the Liberal Democrat Members. Paragraph 89 of the committee’s report states that Mr Bush thought that the ability of Assembly Members to relieve somebody of a disqualification was a “very unsound procedure”. Mr Bush added that,

“looking at it from general principles, if you have a clear and understandable list of disqualifications that are well publicised in advance and give people the opportunity to think carefully about them before they take the oath of allegiance, the rationale and the practical reason for having that power to disapply the disqualification seems to me to cease. Then, all of the arguments are in favour of getting rid of it, because, undoubtedly, it is constitutionally a very strange procedure indeed”.

I agree. Consequently, my second amendment would remove the power of the Assembly to lift the disqualification if it exists.

I appreciate that further amendments to the Bill and to the relevant order may be necessary if my amendment is successful, but I think that at Committee stage that suffices.

[Baroness Morgan of Ely]

Perhaps I may make a couple of quick points but, first, I think it is appropriate for us to raise spirits this evening by mentioning that Wales is in the lead by two goals to one against Cyprus in the European qualifiers.

Returning to the amendment, it is important for us to look at the pros and cons of politically restricted positions. I thank the noble Lord, Lord Thomas of Gresford, for drawing our attention to this issue, which is worthy of consideration. It is worth asking whether we should distinguish between people who stand for election and people who win a position. That is something that we should consider. I shall give an example. Somebody from a ministerial advisory group would have to stand down from their position on the advisory group, effectively losing a job, but that is the kind of person whom we should be encouraging to go into the Assembly—people with real expertise and special knowledge in certain areas.

I want to touch on a couple of little points. On the list of people ineligible to stand, there was mention of the Regular Forces. I presume that that excludes members of the Territorial Army. The noble Lord, Lord Elystan-Morgan, was being picky, so I shall also be picky. Regarding members of “any police force”, I wonder whether special constables are considered to be part of the police force. If so, someone such as David Davies MP, who is a special constable, would not be allowed to stand. Some of us might think that that was quite a good idea but the principle is worth looking at.

[Lord Thomas of Gresford]

I believe that the territorials and special police are not disqualified.

Wales: Economy

Debate between Lord Thomas of Gresford and Baroness Morgan of Ely

Monday 7th April 2014 Grand Committee

[Baroness Morgan of Ely (Lab)]

My Lords, historically Wales has languished economically behind the rest of the UK for generations. Following the boom years of the coal era, harsh reality struck in the 1970s and 1980s when communities across the country were devastated by the loss of big industry—coal and steel, in particular. Wales has taken a long time to readjust to the new world, but at last we are seeing really positive signs of growth. That growth is currently outstripping the rest of the UK thanks in large part to a completely different approach in Wales using direct intervention—good, old-fashioned Keynesian economics by the Welsh Government. We moved to plan B rather than sticking to Osborne’s plan A for as long as he did and we are reaping the rewards quicker.

Rather than declaring a war on Wales the Conservatives should be looking to emulate the success of the Welsh Government on the economy. Unemployment rates in Wales have been tumbling, with the unemployment rate in Wales now lower than in England, Scotland and Northern Ireland. Can you believe it?

[Lord Thomas of Gresford (LD)]

What does the noble Baroness mean by a war on Wales? Who is supposed to be waging a war on Wales?

[Baroness Morgan of Ely]

It is pretty clear that there have been attacks and noises coming from Ministers, such as Grant Shapps, for example, who visited Wales and said that the Government are using Wales as a battering ram ready for the next general election.

Plan A by the UK coalition Government in large part has cut and cut public services white crossing their fingers in the hope that the private sector will take up the slack. The Welsh Government have deliberately taken a different approach and intervened in stimulating economic growth through a number of measures, standing by the struggling private sector in maintaining jobs through the tough times of the recession, stimulating economic activity through maintaining Welsh Government investment in infrastructure, and developing an aggressive approach to stimulating inward investment and boosting an export drive.

These measures are now paying off, which is, I suggest, the main reason why Wales is coming out of the recession quicker than other parts of the UK. The unemployment rate in Wales is now 6.7%, lower than the UK average of 7.2%, a 20% reduction in the past year. Despite the fact that there has been a 31% cut in real terms to the Welsh capital budget between 2009 and 2016, the Welsh Government have reserved £1.3 billion of investment in capital funding to improve Welsh infrastructure—more money for transport, housing and flood defences.

Wales will be one of the first countries in the world to ensure superfast broadband for 96% of properties. In England the figure is 90%. Upon completion, Superfast Cymru will make Wales the most connected country in Western Europe. Inward investment in Wales has increased by 200% and produced 7,000 new jobs. Who knows, though, what impact the ambivalent attitude of the Tory Government towards EU membership will have on inward investment in future?

One of the first things that the coalition Government did on coming to power was to scrap the Future Jobs Fund. Wales reacted by creating its own Jobs Growth Wales plan, which has created 11,000 job opportunities for unemployed 16-24 year-olds in Wales. However, while I think it was right for the Welsh Government to concentrate on unemployment because it is the key to better health, better education and better outcomes overall, we are still struggling in terms of wealth. Wales is still poorer relative to the UK as a whole, but the Welsh economy is growing at 1.6%, one of the fastest rates in the UK. The problem is that we are starting from a low base.

We need to continue our focus on driving up GDP levels, a much tougher task. This is about what kind of jobs we have in Wales and encouraging the export of Welsh goods. The Damocles sword hanging over the Murco oil refinery could reduce our export figures significantly. The oil refineries in Milford Haven are critical to the Welsh economy. The Valero refinery alone is responsible for 25% of all Welsh exports. So the closure of any refinery would not just have a devastating impact on employment in the area, but would have a disproportionate impact on Welsh GDP figures. I know that the Welsh Government are doing everything in their power to try to save the refinery. What is the Secretary of State doing to help to find a buyer for the plant? The Welsh Government have developed a programme of support that identifies and helps to build companies’ capacity to export. This is already paying dividends, with an increase of 11% in exports compared with a rise of just 0.4% for the rest of the UK.

Central to improving GDP is the need to build the skills of the Welsh people and to upskill the workforce, ensuring a good stream of graduates. Despite the fact that some Conservative MPs have suggested that applications to universities from people living in Wales are down, the truth is that when the Tory-led Government trebled tuition fees there were 42,000 fewer applications from English students while in Wales there was a fall of just 100. That was because the Welsh Government stood by students from Wales, capping the fees at £3,000. Welsh apprenticeships have seen completion rates rise from 54% in 2006 to 85% in 2012, beating England’s 73% completion rates. Some 90% of these have gone on to find sustained employment or engage in further learning.

There needs to be a particular focus on developing skills in the engineering sector, which will be key to the economic growth prospects of Wales in future. The Royal Academy of Engineering has suggested that there are 95,000 Welsh people who declare themselves as being engineers; 30% of those are over 50 years old and yet only 1,500 applicants were accepted on to engineering courses in 2012-13.

Given the profile of the engineering workforce in Wales, there are not enough young people coming through the system to replace the ageing workforce. That will ultimately result in skills shortages and we will have to recruit from outside Wales. A deliberate focus on that and on driving up the pool of those able to enter the field through better results in maths in school is imperative. Again, the Welsh Government’s focus on numeracy in schools should help with that.

The gap between Wales and London has now become a gulf. Although that has certain advantages in terms of the costs of living in house prices and childcare costs in Wales compared to London and the south-east, the coalition Government need to demonstrate to the country that they are in touch with the pressures that are still being felt outside the M25. We have not seen much evidence of that. The measures that they have taken to stimulate the economy have exacerbated the situation rather than helped it, as evidenced by research by the Centre for Cities, which recently suggested that for every public sector job created—yes, created—in London, two have been lost in other cities. The Help to Buy scheme has undoubtedly helped to cause a housing bubble in London, causing huge resentment outside the capital, where people watch as those who have already bought watch their wealth grow with no effort. That is not help for hard-working people; it is the luck of the draw on where and when you bought a property. It is also unsustainable in the long term.

In December, the UK Government announced their £375 billion infrastructure spending plan for the next two decades. If Wales were to get its 5% share, we should see £18.7 billion of investment coming to Wales. We know that the Wales Office boasts of £2.5 billion of investment that will come to Wales, but I ask the noble Baroness where and when we will see the rest of it and what we can do to speed up spending of the investment already promised. Will we see any of the infrastructure promised by the UK Government delivered during this Parliament?

Wales is absolutely on the right track in terms of the prospects for economic recovery, but more needs to be done to ensure that the two arms of government at UK and Welsh level co-ordinate their efforts to reduce the gap between Wales and London. That means more economic intervention from the UK Government and a more proactive regional approach further to stimulate the Welsh economy and to cool down the overheating that is occurring in London. I ask the Minister to ask her Government to stop the war on Wales and engage in more constructive politics with the Welsh Government. England could learn from Wales on the economy; and, yes, on aspects of education and health, Wales could and should learn from England.

--- Later in debate ---

[Lord Ahmad of Wimbledon (Con)]

The noble Lord’s time is up. This is a time-limited debate to 60 minutes. We can have a brief intervention, but my noble friend needs to conclude his remarks.

[Baroness Morgan of Ely]

Will the noble Lord comment on the fact that average costs of childcare in Wales are 10% lower than in England in every segment of care from under-twos to after-school clubs. So there is propaganda in his comments that is absolutely not true.

[Lord Thomas of Gresford]

I am quoting the Family and Childcare Trust’s 2014 survey. In conclusion, there is a massive agenda for the Welsh Government to tackle, but the truth is that the Labour Administration is failing not just the Welsh people but the whole concept of devolution for which we fought.