European Union (Withdrawal) Bill

Debate between Lord Wallace of Tankerness and Lord Wigley

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, if an Act of Parliament gives the Scottish Parliament power to say no and refuse its consent, what I am asking is whether that affects what might happen in other parts of the United Kingdom, so that you would not be able to get the common UK framework which people might otherwise think is necessary and desirable to be able to sustain a single market within these islands. At the moment, we have to some extent a form of competence at a different level—the European level—which is being brought back down to the United Kingdom. I ask these questions because it possibly means that there is a difference between the procedure which has been used if you wish to modify Schedule 5 or change Schedule 4 and one where we are returning the laws which hitherto have been subject to the European Union.

The amendments in my name, which I know are supported by my noble friend Lord Thomas of Gresford, are Amendment 89DAF in respect of Scotland, Amendment 89DAJ in respect of Wales and Amendment 89 DAK in respect of Northern Ireland. These amendments would, as the noble and learned Lord, Lord Keen, indicated, change the sunset—although it is not really a sunset in this respect—overall from seven years to five years, and they do that by changing the period during which the frameworks must be established from five years to three years. I did not seek to change the two-year period during which these orders have to be made, because that is consistent with other provisions in the Bill.

If my understanding of the situation is correct, if an order is not made that would identify the area for a framework and freeze, the power would automatically flow back to, let us say in this case, Edinburgh. Is it therefore to be expected that all these orders will be made, identifying the areas for freezing to establish common frameworks by the time we leave the European Union? Otherwise, it might appear that, within a period of days, weeks or months between our leaving the European Union and the order being made, there could be divergence between the different parts of the United Kingdom. After the order is made, I suggest that there should be a three-year period for the frameworks to be established rather than a five-year period.

I welcome the fact that time limits have been put in at all—that was a step forward, and the Government have obviously been listening on that. But I have not heard why it should be five years rather than three. That figure may have been plucked out of the air. The noble Lord, Lord Foulkes, is not in his place, but he did have an amendment in Committee in which five was suggested. It may be that that commended itself to the Government because it came from the noble Lord, Lord Foulkes. I would like to hear a rationale as to why five years is to be preferred to three. The noble and learned Lord said that they had agreement from the Welsh Government on this. It would be interesting to hear the Minister’s views on whether the Welsh Government thought that a shorter period of time would be ideal but they were prepared to accept this.

No one disputes the amount of work to be done but we are potentially in a Parkinson’s law situation, where work expands to fill the time available for its completion. If we say five years, it could take up to five years; if we say three years, it would focus the mind and we could possibly do it in three. That is not least because we are dealing with dynamic issues, and if we are to freeze retained EU law in areas where there might be need to update the law—I assume that in these circumstances we would seek to do so by agreement—three years would allow progress to be made faster.

Also in this group is Amendment 90, which again provides a sunset. However, I think it is superseded by what we are debating and so I will not seek to press it. But it is important that the Government give us a rationale as to why they have chosen this period of time.

On a very specific point, Amendment 92AD—on page 19 of the Marshalled List—talks about the reporting that is to be made by Ministers to Parliament:

“After the end of each reporting period, a Minister of the Crown must lay before each House of Parliament a report which … (b) explains how principles … (i) agreed between Her Majesty’s Government and any of the appropriate authorities, and (ii) relating to implementing any arrangements which are to replace any relevant powers or retained EU law restrictions, have been taken into account”.

I rather suspect that these are the principles that were agreed at the Joint Ministerial Committee back in October or November, which have certainly been discussed before. However, it is slightly odd to have reference to “principles” which, as far as I can see, will not actually appear in the Bill. Because we have debated this often enough, we perhaps know what the principles are, or at least know where they can be found, but to anyone coming to this fresh it would not necessarily indicate where these principles are. Will the Minister confirm that these are the principles that are being referred to—the ones agreed at the Joint Ministerial Committee—and explain whether there is any reason that they should not be added as an annexe to the Bill?

In conclusion, the noble and learned Lord, Lord Hope, quoted a letter from the First Minister, which was very measured in its terms—slightly more measured than her writings in last week’s Sunday Herald, in which she said that the Tories would “completely demolish” Scottish devolution. I immediately thought of the many debates we had during the passage of the Scotland Act 2016, in which the Conservative Government extended devolution to cover almost all of income tax and a substantial amount of social security. This could be a very cunning plan, if they assume that the Scottish Government will—I was going to say “screw it up”, but I am not sure whether that is parliamentary—act in such a way that it would end devolution, but I do not think that that was the plan. This Government have shown a very strong commitment—and I say this from the opposition Benches—through the number of things that they have devolved to the Scottish Parliament. Take one example from the 24:

“EU regulations on the classification, labelling and packaging of substances and mixtures (CLP); the placing on the market and use of biocidal products (e.g. rodenticides); the export and import of hazardous chemicals; the registration, evaluation, authorisation and restriction of chemicals (REACH); and plant protection products (e.g. pesticides)”.


I cannot honestly believe that trying to establish a common framework on that somehow undermines devolution, given that the Government transferred, almost entirely, income tax to the Scottish Parliament. It is a degree of hype that does not serve the debate well.

I rather hope that, as we go forward, we can recognise that what we are trying to do is seek a position so that, when we are no longer part of the European Union, we can in many important areas where it is thought necessary—indeed, the Scottish Government have accepted that in some areas it is necessary—establish a common framework throughout the United Kingdom. There will be further arguments as to the content of these frameworks, but for the moment we need to identify what they are. I would welcome a response to the points that I have made.

[Lord Wigley (PC)]

My Lords, in addressing Amendment 89DA, I will, as did the Minister, cover the broader ground contained in the amendments in the group. Some of my misgivings with the new proposed settlement dealt with in this group will arise in later amendments, 91 and 92, which for some reason have not been coupled with these.

While I welcome the progress that was made in the joint discussions on resolving some of the difficulties between Westminster and the devolved Governments—a welcome that has been expressed by both Mike Russell of the Scottish Government and Mark Drakeford, Wales’ Brexit Minister—I am acutely aware that not all the difficulties were resolved, and I beg the indulgence of the House for a few minutes in setting these issues in their context. I realise that some of my points may seem to be Second Reading ones, but in these amendments—there are 21 in this group alone—we have matters before us which were not in the Bill at Second Reading. I noted in particular the Minister’s invitation in his speech for us to contribute positive ideas in this context.

The adjustments before us tonight are in the context of what many people in Cardiff and Edinburgh, across party lines, regarded as a power grab—to use the term that was used then—by Westminster, in taking unto themselves powers returning from Brussels, including powers in what had previously been regarded as devolved functions such as agriculture. The fact that the Labour Government in Cardiff held out so long before agreeing reflected that fear; as did the fact that members of all parties in the Assembly—including initially Tory and UKIP AMs—supported having a continuity Bill to withstand that perceived power grab. The recent debate in Edinburgh reflected similar cross-party support for its continuity Bill. Rather than just scream “power grab” and hurl abuse at those we see as the authors of our difficulties, I will try to put forward what I see as a considered case and implore, even at this late stage in the Bill’s passage, that noble Lords appreciate the complexity of these issues—some of which have already emerged tonight—and rise to the challenge of finding a positive way forward, if not in this Bill then in some parallel or future legislation.

There have been calls from all sides for greater mutual respect in this process—for a mutuality that is not reflected by one side having a veto but other partners being denied that facility. The difficulty, repeated time after time by those involved in the recent negotiations over several months, is that there seems to be a basic lack of trust between Westminster and the devolved regimes. That is not so much a personal lack of trust but rather a lack of trust in the respective institutions.

Part of the lack of trust felt in Wales arises, perhaps, from different social values and from historic experience. There has been a growing lack of trust in Wales during my lifetime, emanating from difficult issues such as the Tryweryn Valley flooding in the 1960s, the S4C debacle of 1980 and, more recently, the Barnett formula. Devolution was meant to help avoid at least some such difficulties, but power devolved is power retained—a truism of which we have become acutely aware in these recent experiences. The underlying issues, which recent difficulties in the context of Brexit have highlighted, are not going to go away. They will continue to plague us until a proper constitutional settlement is reached. I suggest that the sunset clauses define a timescale within which this has to be sorted out.

In the wake of Brexit, the sorts of issues that will arise, and which will strain our constitutional settlement, perhaps to breaking point, include for Wales state aid for threatened industries like steel, the establishment in place of the CAP of a viable sheep-meat regime, and an acceptance that procurement rules can be used to ensure maximum community benefit from public expenditure. Sheep meat is an excellent example of the different perspectives of Westminster and Cardiff. Westminster tends to see it in terms of consumer needs; the Assembly sees it as the cornerstone of our rural economy and of local communities and their attendant culture. Quite frankly, I do not begin to see such considerations being addressed, and if Westminster insists on having a veto over such policies as agriculture, it will be seen as a constraint on devolved ambitions. There has to be give and take or the whole edifice will crumble under the strain of its own self-inflicted tensions. We are in fact trying to constrain the needs of a quasi-federal system within the straitjacket of a unitary state, and it just will not work; four into one will not go.

European Union (Withdrawal) Bill

Debate between Lord Wallace of Tankerness and Lord Wigley

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, at the request and with the consent of the noble Lord, Lord Foulkes of Cumnock, I shall move Amendment 311. For clarification, the noble Lord, Lord Foulkes, did not wish me to move Amendment 310 because he felt it had been superseded by our discussions last week. I shall be brief in moving Amendment 311 because a number of amendments were grouped for our wider debate on Brexit and devolution issues last Wednesday that related to sunset clauses, and this is another example.

It appears that here, as in a number of other areas of the Bill, particularly when powers are to be conferred on United Kingdom Ministers, a sunset clause is attached to them. However, for those in relation to devolution and the exercise of powers by UK Ministers in respect of making orders on the devolved settlement, there is no such sunset clause. As has been said by others, not only in regard to this Bill but on other occasions, there is nothing as permanent as a transitory provision. Although this is intended to be just a temporary move pending the solution of the arrangement between the powers that will go directly to Cardiff, Edinburgh and Belfast and those where we may wish to follow up on what was debated last week with regard to the UK frameworks, it nevertheless appears that there should be some incentive to get on with it and have a time limit.

We debated these issues last week, particularly whether the period should be two, three, four or five years, which is a matter for further discussion, and it is fair to say that this is more about the principle of having a sunset clause. When we debated it last week, the noble and learned Lord, Lord Keen of Elie, helpfully indicated in his reply that the Government’s mind was not closed on this matter and there could be an opportunity to put in some form of sunset clause in relation to this and the other amendments that we look forward to seeing on Report. I hope this amendment allows the Government to give further thought to what was said in our debate last week, and I would certainly encourage that positive thinking with regard to a sunset clause. I beg to move.

[Lord Wigley]

My Lords, I shall speak to Amendment 313 in this group, which is in my name. The amendment again returns to the question of making progress by consent. The words in the amendment in the context of Wales provide that the relevant provisions will not come into effect until,

“the National Assembly for Wales has passed a resolution approving the provisions in subsection (2)”.

The convention of gaining legislative consent is of course flawed since it is held to be just that—a convention and no more. This amendment attempts to rectify that flaw, albeit just for one clause of what is in so many ways a problematic Bill. None the less, given our debates earlier this afternoon and last week, it appears that the Government are starting to become a little more sensitive to these issues and may be thinking of finding a way to bring people together on them.

As I say, the proposed new subsection would require the UK Government to seek consent from the devolved legislatures before implementing Clause 11, which may help to break the negotiations deadlock. It may help the devolved legislatures to regain some trust, and this is very much a question of trust. It could go a long way towards proving to Wales and Scotland that their voices matter in these issues.

There are clear constitutional problems with the Bill, which over recent months have been raised vociferously by both the Scottish and Welsh Governments. The UK Government have conceded that the Bill inevitably overrides the devolution settlement. I understand that in the conceptual context, but it is only right that the sitting devolved legislatures are given a statutory legislative opportunity to sign off the final product. The UK Government have rationalised our leaving the EU with the unforgettable soundbite “Taking back control”. Surely to deny the sitting devolved legislatures their fair say on Clause 11 goes against that very reasoning.

European Union (Withdrawal) Bill

Debate between Lord Wallace of Tankerness and Lord Wigley

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, the Committee is indebted to the noble and learned Lord, Lord Hope of Craighead, for his detailed analysis of the Bill as it originally stood, and the points arising. My name is on the amendment, but I would be happy to deal with the important issues of principle that prompted me to sign some of these amendments, in an attempt to honour the spirit of the original devolution settlement, when we deal with the group containing the government amendments. Obviously, however, I support the amendment that the noble and learned Lord has moved.

[Lord Wigley (PC)]

My Lords, I too support the noble and learned Lord’s amendment, and I entirely agree with his approach—that it is best to focus on a couple of larger debates rather than going through all the minutiae at this point. However, it is important to underline the principle—that matters coming back from Brussels that deal with devolved subjects should go to the devolved authorities. It is on that principle that I hope we shall concentrate as we move forward.

--- Later in debate ---

[Lord Wigley]

Indeed—the very point that the noble Lord, Lord Foulkes, was making earlier; I agree. Given the current role of EU law regulating action in all parts of the UK in such subjects, partly to facilitate a single market with a level playing field—the point that the noble Lord was making—and partly to ensure that in matters which by their nature cannot be constrained by political borders, there is a coherent common approach. I accept this. Indeed, last week I proposed an amendment to provide a framework agreement for environmental policy—which, quite amazingly, the Government rejected. However, if there are to be such frameworks, the devolved Administrations and the devolved legislatures, whose legislative competence is being constrained by such frameworks, must surely agree the proposed steps jointly with the UK Government. I have tabled an amendment to an amendment in the name of the noble and learned Lord, Lord Mackay, providing a mechanism to this end. That will be debated later so I will not anticipate that debate now.

Let us be clear: unless there is agreement between Westminster and the devolved Governments on these matters, the continuity Bill will be enacted by the Assembly and will take precedence in Wales. Surely it is time for the UK Government to reconsider what is seen as an obdurate stance and agree a sensible, balanced and respectful way forward.

[Lord Wallace of Tankerness]

My Lords, I had not intended to speak in this debate because in many respects government Amendment 302A answers the initial point of concern—that the current limitation on competence in the Scotland Act under European Union law would be replaced by a restriction on retained EU law. Of course, under the new amendment that has gone, but there is a wider point on which the Minister could perhaps assist the Committee, which arises from the draft agreement on the transitional period.

As I understand it, during the transitional period basically the acquis will still apply. I have looked at Articles 4 and 82 of the draft agreement. Article 4 says:

“Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States”.


Article 82 says:

“The Court of Justice of the European Union shall continue to have jurisdiction for any proceedings brought before it by the United Kingdom or against the United Kingdom before the end of the transition period”.


We will have a lot of debates this afternoon about whether UK Ministers, Scottish Ministers or Welsh Ministers will be exercising powers after exit day, but can the Minister indicate how the United Kingdom Government see the position? If we are going to have to abide by European Union law having the same legal effect as it produces in the Union, is there any room for movement at all? How is effect going to be given to that if, under Clause 1 of the Bill, the European Communities Act 1972 has been repealed?

European Union (Withdrawal) Bill

Debate between Lord Wallace of Tankerness and Lord Wigley

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Wigley]

Not only do I agree with my noble friend but I will surprise the Committee by reminding him that Penderyn whisky was in fact formulated as a result of devolution itself. It was on the evening of the setting-up of the National Assembly that people came together and thought, “Now we have to start doing something to help ourselves in Wales. What shall we do?” They concluded that a whisky would be one way forward. As they say, the rest is history—a very enjoyable and successful history. I thank my noble friend for reminding me of that.

[Lord Wallace of Tankerness (LD)]

The noble Lord, Lord Forsyth, correctly said that the European Commission objected. But in fact the Court of Justice of the European Union found that the Scottish Government’s proposals were actually consistent with the rules of the single market, principally because the minimum unit price was based on health reasons.

[Lord Wigley]

Indeed—which shows the importance of the health and social agenda that underpinned the initiative.

Scotland: Constitutional Settlement

Debate between Lord Wallace of Tankerness and Lord Wigley

Tuesday 10th March 2015 Lords Chamber

[Lord Wallace of Tankerness]

My noble friend is right to remind us of what we might have been facing if Scotland had voted yes and of the black hole which would have emerged. It is also important that we continue that engagement; certainly, at the stakeholder event which I attended in Aberdeen there was considerable enthusiasm for the proposals that have been put forward. People very much welcomed the fact that the United Kingdom Government were engaging but it is important that the Scottish Government engage as well.

[Lord Wigley (PC)]

My Lords, to what extent does the noble and learned Lord accept that opinion polls in Scotland are a reflection on the reaction to this document? Have the Government ruled out any form of federal solution that brings stability with it and if there is to be a convention, can he give some assurance that it will not take as long as the investigation by the Kilbrandon commission, which took more than five and a half years and just kicked the problem into the long grass?

[Lord Wallace of Tankerness]

My Lords, the noble Lord knows the position of my own party with regard to federalism but we are not there yet. However, I believe that by implementing the recommendations of the Smith commission in these proposals, we will ensure that we are honouring our commitment. I take his view that a constitutional convention should not be an excuse for kicking this issue into the long grass. I was a member of the Scottish Constitutional Convention, which produced the blueprint for the Scottish Parliament that was legislated for by the Labour Government in 1997.

Scotland: Devolution Commission

Debate between Lord Wallace of Tankerness and Lord Wigley

Wednesday 22nd October 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, on my noble friend’s latter point, the Government have indicated that they will bring forward draft clauses and, indeed, will do so by Burns Night, 25 January 2015. My noble friend makes an important point about the importance of ensuring that people in Scotland know what these proposals will be. We have sometimes undersold the very significant additional powers that have been made available to the Scottish Parliament under the Scotland Act 2012.

[Lord Wigley (PC)]

My Lords, does the noble and learned Lord accept the words of the Prime Minister at Question Time today when he confirmed that full fiscal autonomy and full control of Scottish taxes were within the options of the Smith commission? If that is so, how can it be achieved within a unitary state, and does it not beg the question that, inevitably, we must move towards a federal or quasi-federal structure?

[Lord Wallace of Tankerness]

The noble Lord knows what my party’s position on federalism has been for the last 100 years-plus. However, the important thing is that the noble Lord, Lord Smith of Kelvin, and his commission are allowed to get on with their work on the basis of the submissions made to them and do not feel in any way that they are being hidebound by the views of either the Scottish Government or the United Kingdom Government.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Wallace of Tankerness and Lord Wigley

Tuesday 21st January 2014 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, the Government signalled during Report that they would bring forward a number of technical, clarificatory amendments for Third Reading. Amendments 1 and 17 are such technical drafting points. These amendments relate to Amendment 38 debated on Report, which adjusts the code of practice defence for third parties. As I indicated on Report, there were two points of detail we wished to put right. The defence should also apply to a situation where expenditure may have been incurred on behalf of the third party. It should also apply for a charge in relation to a targeted expenditure offence. These amendments do just that.

This group of amendments also includes amendments relating to the use of Welsh translation and the Welsh language. I am not sure whether the noble and learned Lord, Lord Morris of Aberavon, is present, but I will leave it to him and the noble Lord, Lord Wigley, to speak to those amendments. I should just put on record that we are very grateful to the noble and learned Lord and to the noble Lords, Lord Wigley and Lord Elystan-Morgan, for their constructive engagement on this. I think that we have arrived at a satisfactory outcome. I beg to move.

[Lord Wigley (PC)]

My Lords, I apologise that I arrived in the Chamber slightly late due to the crush of noble Lords seeking to leave it. I thank the Minister for the movement that he has made on the interpretation of the amendment that was put down by the noble and learned Lord, Lord Morris of Aberavon. Clearly, the Minister’s intention—and our intention with our amendments put forward earlier—was to ensure that not only the literal translation costs but also the costs of implementing that translation were allowable; otherwise, it would not be meaningful. The Minister has now accepted that principle, for which we are very grateful. It will be welcome in Wales.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Wallace of Tankerness and Lord Wigley

Wednesday 15th January 2014 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, first, I thank those who have contributed to this debate, in particular those who have welcomed the government amendments. We certainly sought to listen and take on board comments from a wide range of those engaged in campaigning. I pay tribute to my noble friend Lord Wallace of Saltaire, who met far more groups than I did. These meetings and deliberations, and indeed the contributions made in Committee in your Lordships’ House, have very much informed the proposals that we have come forward with today. Again, I thank the noble and right reverend Lord, Lord Harries of Pentregarth, and the other members of the Commission on Civil Society and Democratic Engagement for their contribution to this debate.

The purpose of Schedule 3 is to extend the range of activities for which a third party incurs controlled expenditure. It takes forward a recommendation from the independent Electoral Commission to align the range of activities for which third parties incur controlled expenditure with that for political parties. The Electoral Commission has highlighted that there is no clear reason why controlled expenditure for third parties applies only to election material. This difference means that a potential gap arises in the rules governing elections in our country.

The Government and the Electoral Commission believe it is important that this potential gap in the regulatory regime is addressed. However, the Government also acknowledge some important issues that have been raised, not only by noble Lords but a number of campaigning groups. As such, we have tabled a number of amendments to Clause 26 and Schedule 3. I will take the opportunity to explain what they do.

Currently, the regime under the Political Parties, Elections and Referendums Act 2000 outlines specific activities that do not incur controlled expenditure. These include volunteers, publications which are not advertisements in newspapers, broadcasts on certain channels such as the BBC or S4C, and certain reasonable personal expenses. Government Amendment 37 removes these exclusions from Section 87 of PPERA and Amendment 44 inserts them into new Schedule 8A and expands the types of expenses that are excluded from incurring controlled expenditure.

The full range of exclusions that the Government have brought forward includes amendments to expenses in respect of the translation of materials from English to Welsh or Welsh to English. I shall say something about the important points made by the noble and learned Lord, Lord Morris, and the noble Lords, Lord Wigley and Lord Elystan-Morgan. At present, controlled expenditure is incurred on the production and publication of election materials, such as leaflets. The Bill retains this, but costs associated with translating these materials from English to Welsh or vice versa will be excluded. The noble and learned Lord, Lord Morris, said he hoped that this was an oversight and that it was not there in the first place. If there was an oversight, and I think there probably was, it was probably also an oversight in the 2000 Act, because election materials are covered by the provisions in that Act. I hope, albeit belatedly, that there is considerable cross-party and non-party consensus that it is something we should be doing.

The Government believe that this highlights the importance of the Welsh Language Act 1993, which treats the Welsh and English languages as equal. It follows the practice of producing election material and ballot papers in Welsh. We are grateful to the noble and learned Lord for raising this issue in Committee. He asked about production costs. When we are giving something it is easy to say that it is not as much as you thought we were giving, but we believe that extending the exemption further than the cost of translation would go too far. It would allow campaigns to print different material for different addresses without being regulated. For example, if a campaigner prints 100 leaflets in English, he can then print 100 leaflets in Welsh for an entirely different purpose. Therefore, we thought it important that this amendment should relate to the cost of translation, rather than the production of material.

Indeed, that is what we thought was intended by the noble and learned Lord’s amendment, when it says that production,

“shall not include costs incurred by the translation of those materials from English into Welsh or from Welsh into English”.

Indeed, the Government’s amendment refers to,

“expenses incurred in respect of the translation of anything from English into Welsh or from Welsh into English”,

which may even go further—there may be expenses other than translation expenses. I want to make it clear that we think, having considered this, that to relate it to the publication costs—to the printing of the leaflets—goes further than is needed to address the important point about Welsh translation.

[Lord Wigley]

Surely the Minister accepts that if an organisation—say, the NSPCC—requires a leaflet to be put out in England and in Wales, in England it might be in other languages but it need be only in English to meet the law. In Wales, it would be in Welsh bilingually with English. Sometimes that can mean double the size of the leaflet. Sometimes it might be constrained to six instead of eight pages in the way that bilingualism can be laid out, but the cost of producing something in a bilingual format for the customers is significant because of the print and the paper, not just the time taken to translate a leaflet. That is relative peanuts in the operation. If the Minister is excluding the other parts, there is a very serious implication.

[Lord Wallace of Tankerness]

My Lords, as I have indicated, we thought that the amendment that the noble Lord, Lord Wigley, has signed did not actually go further than we were going. I think there has been a proper debate on this. I do not want to mislead the House into thinking that we are willing to countenance in the Bill an opportunity to exploit it and to double up on the number of leaflets. I hear what the noble Lord says and, subject to what I have already said about not wanting to incur a loophole, I am prepared to consider whether the wording reflects what might be called a marginal cost of translation but not costs that might allow more leaflets to be published. The noble Lord is nodding his head; perhaps he agrees that that is not an unreasonable position.

I hope that the noble and learned Lord, Lord Morris, will agree that it is not entirely clear that these additional production costs were covered by his amendment either. Certainly, we did not think they were.

Scotland: Independence

Debate between Lord Wallace of Tankerness and Lord Wigley

Thursday 28th November 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, clearly, membership of the European Union, in the event of independence, is a very important issue. The novel proposal made by the Scottish Government is one which we will look at but we do not think that it accords with how any other member state has interpreted Article 48 of the TFEU. In any event, even under the Scottish Government’s analysis, it would require other member states to sign up. We certainly note the comments of the Spanish Prime Minister with considerable interest.

[Lord Wigley (PC)]

My Lords, in accepting that this is a substantial document, as indeed has been recognised by the editorial of the Times, will the Minister assure the House that the Government will bring forward an equally substantial document indicating the prospects for Scotland if there is a no answer in the referendum? In particular, will he spell out the Government’s intentions for the future of the Barnett formula in those circumstances?

[Lord Wallace of Tankerness]

My Lords, I think each of the United Kingdom parties has its own arrangements for looking forward to what would happen in the event of a no vote, but first we have to campaign and win a no vote. The United Kingdom Government have already published, and will continue to publish, some substantial documents analysing Scotland’s place in the United Kingdom, the benefits we derive from being in the United Kingdom and the problems and difficulties that would arise if we became independent.

Scotland: Referendum

Debate between Lord Wallace of Tankerness and Lord Wigley

Tuesday 26th March 2013 Lords Chamber

[Lord Wallace of Tankerness]

I certainly agree with my noble friend, and I think I made it clear that the Prime Minister believes in the integrity of the United Kingdom. I believe it was others who suggested that he was a London-based politician. I also hear what he says about so-called devo-max, which is a brand without a product at the moment. I also recognise that that has implications for the other parts of the United Kingdom and that, were we to go down such a road, it would be very important to secure buy-in from those other parts of the United Kingdom.

[Lord Wigley]

My Lords, will the Minister please confirm that the conduct of the referendum in Scotland is now entirely a matter for the Scottish Parliament, and one for which this place has no responsibility?

[Lord Wallace of Tankerness]

My Lords, as noble Lords will recall, we agreed to a Section 30 order under the Scotland Act in January of this year, which transferred powers to the Scottish Parliament to determine the nature of the referendum. A Bill has been brought in for a referendum; indeed, another Bill has been brought in to determine the franchise for that referendum.

Wales: Devolution

Debate between Lord Wallace of Tankerness and Lord Wigley

Thursday 19th July 2012 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I start by joining others who have contributed to the debate in congratulating my noble friend Lady Randerson on securing it. It has been a welcome debate with welcome contributions from all sides of the House. I certainly know from recent debates in the Moses Room that there has been an appetite among a number of noble Lords who have contributed today for a debate on a Welsh issue in your Lordships’ Chamber. I therefore welcome this particular debate, which is very timely. I also welcome the constructive tone of my noble friend Lady Randerson, who herself had distinguished service in the Welsh Assembly, and in the contributions from noble Lords in all parties and the Cross Benches.

The Commission on Devolution in Wales, commonly known as the Silk commission, was set up by my right honourable friend the Secretary of State for Wales in October 2011 to review the present financial and constitutional arrangements in Wales. The commission has met nine times to date, most recently last week in Cardiff.

The noble Lord, Lord Howarth, queried the commission’s terms of reference. It is fair to point out that the Government sought to work collaboratively—indeed, succeeded in doing so—with the party leaders in the Assembly to establish the commission. It is supported by all four parties in the commission. The terms of reference were agreed by all four party leaders in the Assembly. They are similar in many respects to many of those of the Calman commission on devolution, on which I was privileged to serve during the previous Parliament. However, the Silk commission has a considerable benefit over the Calman commission as it has buy-in from all parties in the Assembly. Rather regrettably, the Calman commission did not have buy-in from the SNP Government in Scotland when it deliberated.

As has been indicated, the first part of the commission’s remit concerns improving the financial accountability of the National Assembly. The commission is looking at the case for devolving tax-raising powers to the Assembly and the Welsh Ministers. While Members of the Assembly are accountable to the electorate via the ballot box every four years, the Welsh Government and the Assembly as a whole are not accountable to Welsh electors for the money that they spend. They simply spend what they are given. This point was very graphically made by a number of contributors to the debate, not least my noble friend Lord Thomas of Gresford and the noble Lord, Lord Rowlands, who talked about representation without taxation.

The public, it is fair to say, have placed their trust in the devolved institutions in Wales in the 13 years since they were established. During that time, the Assembly has been seen to mature, culminating in the overwhelming yes vote in the referendum on further law-making powers in March 2011. However, as my noble friend Lord Roberts of Llandudno graphically reminded us, the original vote in 1997 was on a knife edge. I remember watching it on television in the small hours of the morning. The point made by the noble Lord, Lord Rowlands, is important: over time a consensus has emerged. That is probably reflected in the fact that all four parties were able to agree on the terms of reference and the setting up of the Silk commission.

However, the financial accountability of the devolved institutions in Wales has not changed. That cannot be right. My noble friend Lord Roberts of Conwy drew attention to the fact that existing bodies such as the National Audit Office and the committees of Parliament already exist. Obviously there is a role for them, and perhaps it is a role that has not been developed as much as it could be in achieving greater accountability for the way in which money is spent. With power comes responsibility. With the powers that the Assembly has acquired, Welsh Ministers should be responsible not just for spending the money but for raising some of the money needed to pay for the decisions which they make.

A number of comments have been made about the survey carried out by ICM on behalf of the commission and published earlier this week. It appears that the Welsh public agree with the need for greater accountability. I share my noble friend Lord Roberts of Conwy’s view that it is not always clear precisely what was said, given that a number of the findings do not seem to quite add up. Nevertheless, there was quite a clear finding that 66% of those surveyed were positive about the Welsh Government having the right to change the level of taxation in Wales, and 56% believed that doing so would make the Welsh Government more accountable.

The commission itself has a wealth of experience, being chaired by Paul Silk, a former clerk in both the Assembly and this Parliament, and comprises nominees from each of the four political parties in the Assembly: Sue Essex, the Welsh Labour nominee; Nick Bourne, the Welsh Conservative nominee; Rob Humphreys, the Liberal Democrat nominee; and Dr Eurfyl ap Gwilym, the Plaid Cymru nominee. In addition, there are two independent members, who are equally experienced: Dyfrig John CBE, chairman of the Principality Building Society; and Professor Noel Lloyd CBE, former vice-chancellor and principal of Aberystwyth University.

As we have debated, the commission has been looking at the possible tax and borrowing powers that could be devolved to the Assembly and the Welsh Government. These include powers in relation to landfill tax, air passenger duty and stamp duty, but they are in no way limited to those taxes. The commission’s terms of reference require it to make recommendations that are likely to have a wide degree of public support. In announcing the commission, my right honourable friend the Secretary of State for Wales acknowledged that it would have to consult widely to secure that support, not just in Wales but throughout the United Kingdom.

The commission’s call for written evidence closed in February this year and there has been a series of public meetings throughout Wales, starting in March in Swansea, ending in Flint in May and including every local authority in Wales in between. The commission has received written and oral evidence from a number of cross-border bodies—some referred to by the noble Lord, Lord Rowe-Beddoe—such as the Confederation of British Industry, the Institute of Directors and the Federation of Small Businesses. It has also held drop-in sessions to allow representations from Members of your Lordships’ House and of the House of Commons.

Further afield, the commissioners have met legislators and interest groups in Scotland and Northern Ireland to discuss the implications of ongoing developments in these countries on the commission’s work. These included, in Scotland, Sir Kenneth Calman, Scottish Government officials, members of the Scottish Parliament’s Finance Committee; and in Northern Ireland, the First Minister and Deputy First Minister and the Committee for Finance and Personnel.

I have no doubt that, in addressing its work, the commission will take into account some of the very important considerations that have been raised during our debate: issues such as tax competition and—as mentioned by my noble friend Lady Randerson and graphically illustrated with figures by the noble Lord, Lord Rowlands—the practical problem of the percentage of the population living very close to the Welsh-English border. This is much greater than the equivalent on the Scottish-English border, which itself brings its own implications and considerations when looking at tax. Indeed, the noble Lord, Lord Rowlands, mentioned the impact of using a tax-varying power of 3p in the pound on the purchasing power of poorer communities. That is the sort of consideration that one would expect that the commission might take into account.

As I said, the commission is expected to report on part 1 in late autumn this year, and the Government will consider its recommendations very carefully. The noble Baroness, Lady Gale, asked for a further debate. As she knows, that is not in the gift of Ministers, but no doubt the usual channels will look at this. My own view, and clearly that of the opposition Front Bench, and I am sure others in the Chamber too, is that it would be useful. Once we have some concrete proposals, having a debate would be a useful part of considering them.

My noble friend Lord Roberts of Conwy asked about a referendum. We think that this is probably jumping the gun at the moment, given that we do not actually know what the proposals might be. However, it is obviously an issue that would have to be considered in view of any decisions which the Government came to on the commission’s findings. Certainly at the moment, we believe it is premature.

After publication of part 1, the commission will begin work on part 2, which will look at the powers of the Assembly and modifications that may be needed to the boundary between what is devolved and what is non-devolved. The aim here is to simplify the settlement where possible and to make it work better. Again, the commission will need to consult widely and make recommendations only where they are likely to have a wide degree of public support. As we know, the Assembly has powers in 20 devolved areas, and it is for the commission to decide where there is a requirement to tidy up the boundary of the settlement. Any further changes to the settlement must be right for Wales and for the United Kingdom as a whole. In the course of this debate, we have heard references to water, prisons, police, local government finance and broadcasting. I do not think that there will be a shortage of matters for the commission to consider, but it would certainly be inappropriate to comment on these at this stage.

My noble friend Lady Randerson also talked about the structures of the different devolution Acts. There was a difference between the Scotland Act and the original Wales Act, subsequently the Government of Wales Act; and a different settlement again in the Northern Ireland Act. I did not wholly agree with the noble Lord, Lord Elystan-Morgan, when he said that the reservations in the Scotland Act were all relatively simple. Part of my job is to look at these regularly, and sometimes it can be quite difficult to interpret them. Indeed, a case has recently been referred to the Supreme Court on the extent of some of the reserved functions, so it is not straightforward.

[Lord Wigley]

The Minister will have noticed that several noble Lords raised the issue of borrowing powers. He is coming to that in a moment, I gather. When he does, will he address the question of the Welsh Assembly’s existing powers to borrow via the Welsh Development Agency Act? The problem is that the full sum is placed against the DEL allocation by the Treasury. If that could be lifted, it would enable that power to be used as it is now available in Scotland.

[Lord Wallace of Tankerness]

Almost on cue, I was about to turn to a number of the specific points that noble Lords raised in the course of this debate. What was described by at least one noble Lord as the elephant in the room is the Barnett formula. This, of course, is not part of the remit of the Silk commission, nor of the Calman commission.

I know it will disappoint noble Lords, but the Government made it very clear in the coalition agreement that the priority is to stabilise the public finances and that no replacement to the Barnett formula will be considered until the nation’s finances are back on track. However, I could not fail to hear the comments of everyone who contributed to the debate, I think without exception. Someone pointed out, although admittedly not in the context of what appears in the coalition agreement, that the Secretary of State for Wales had said that the Barnett formula was coming to the end of its life. However, I reiterate that the Government’s position is that the priority must be the stabilisation of the public finances.

Wales: National Assembly Elections

Debate between Lord Wallace of Tankerness and Lord Wigley

Monday 18th June 2012 Grand Committee

[Lord Wallace of Tankerness]

My Lords, I have heard of that before today. I can confirm that the Prime Minister and the First Minister have met on a number of occasions and it is my belief that, among other matters, this issue has been discussed, but I am not aware of any firm commitment on the part of the Prime Minister. I know that the issue has been raised, but I am not aware of the nature of any firm commitment. I cannot go beyond that because it is not a matter within my knowledge. I am aware that the matter has been raised, but I am not aware of any commitment having been made.

[Lord Wigley]

I am very grateful. The Minister will be aware of the tenor of the representations that have been made not just from this side, but also from certain colleagues on the other side. It should be the wishes of the people of Wales as expressed in the National Assembly that determine the outcome. Will he therefore give an undertaking to those noble Lords who have taken part in the debate today that he will take the message back that this is the expectation of Wales, and that we would like a response to that representation?

Scotland: Independence

Debate between Lord Wallace of Tankerness and Lord Wigley

Thursday 1st March 2012 Lords Chamber

[Lord Wallace of Tankerness]

I thank my noble friend for drawing attention to that poll, which shows that the wish for independence in Wales is very much a minority interest. He is right to draw attention to the Silk commission. The first part of it will look at the fiscal powers and whether there should be greater accountability in the way in which money is raised by the Welsh Government and the Welsh Parliament. Thereafter, it will look at the other powers. I cannot accept that devolution will lead to independence. Rather, I think it is important that, where people have their own domestic agenda, they should be able to order its priorities, be it in the Welsh Assembly, the Northern Ireland Assembly or the Scottish Parliament.

[Lord Wigley]

My Lords, is the Minister aware that an opinion poll published by the BBC today shows that some 80 per cent of the people of Wales support the independent NHS policy being followed by the Government of Wales, and does he accept that it is in the context of the substance of policy that these matters should be judged? Is he aware that the First Minister of Wales suggested at the British-Irish Council meeting of 13 January in Dublin that there might be a role for this second Chamber of Parliament in a quasi-federal United Kingdom? Can he say whether the Government have ruled out that possibility in the Bill that may be forthcoming in the next Session and whether the Long Title of that Bill could facilitate such a consideration?

[Lord Wallace of Tankerness]

My Lords, I have seen a number of the details of the poll published this morning by the BBC, which shows an overwhelming opposition to independence. As I indicated in answering questions on Tuesday, your Lordships’ House will continue to give the scrutiny that it has given since 1999 to non-devolved matters, and I expect that to be the case in any reformed House.

Devolution: Wales

Debate between Lord Wallace of Tankerness and Lord Wigley

Tuesday 28th February 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, there are regular exchanges at official and ministerial level where information is given as to legislation passing through this Parliament which has relevance for Wales, Scotland and Northern Ireland, and there are close links the other way. With regard to parliamentary and assembly exchanges, the Calman commission, on which I sat, thought that it would be advantageous if there was a greater flow of information between parliaments and assemblies, but recognised that that would be a matter for the parliaments and assemblies and not for government. On the role of your Lordships' House in relation to Scotland, Wales and Northern Ireland, it clearly has a role in examining matters which in the case of Wales are non-devolved. We have done so since 1999 and I can imagine that we will continue to give it the scrutiny that we would expect of a revising Chamber.

[Lord Wigley]

My Lords, will the Minister accept that, whereas the outcome of the referendum almost a year ago to this week was quite clear-cut, the degree of devolution in various portfolios remains more unclear? In Wales, unlike Scotland, a portfolio is not devolved in its entirety but is dependent on interpretation of legislation. In order for people to understand better how the devolution settlement is working, will he arrange for this to be reviewed so that we might have more clear-cut devolution that is better understood by civil servants, by the press and media, and particularly by the electorate?

[Lord Wallace of Tankerness]

My Lords, I recall taking through your Lordships' House prior to the referendum an order in which we sought to try to bring together all the different parts which had been the subject matter of legislative competence orders over a number of years with the objective of achieving greater clarity. However, I note what the noble Lord said. The Silk commission perhaps gives an opportunity for some of these issues to be aired. Obviously, the Government will have to consider what that commission proposes in due course.

Scotland Bill

Debate between Lord Wallace of Tankerness and Lord Wigley

Tuesday 28th February 2012 Lords Chamber

[Lord Wigley]

My Lords, I apologise profusely to the noble Lord, Lord Foulkes, for missing the opening of the debate. I was quite distraught, actually. There was a ministerial meeting on another matter. I had looked forward to being here for this debate.

I only rise because my name was mentioned and my presence here without opening my mouth would be looked at askance. I do not want to go into the fighting with regard to the profile taken by the SNP Government; I want to follow the question of when it is legitimate for a devolved Government to try to have their own voice. Clearly there are opportunities to deal with other countries—for example, in education, in getting students from other countries to come to your universities—where the circumstances may be different in Scotland or Wales, and those opportunities can be taken. Likewise, with regard to industrial development, Wales did very well indeed in combining with the motor regions, including Baden-Württemberg, and there is industrial benefit to be had from the bilateral relationships.

Sometimes it can get a little bit more complicated. The former First Minister of Wales, Rhodri Morgan, led a delegation to Patagonia, where there is of course a Welsh community. The interests of the Welsh community in Patagonia, if one considers them in the context of some recent developments, may not be exactly the same as the interests perceived in this Chamber. Therefore, a balance has to be struck. I do not think that anyone would say for a moment that the First Minister of Wales should not have those links with Patagonia; it is a question of how the thing is then undertaken.

We have also seen it working the other way round. Because of the existence of the National Assembly—and I suspect this is true in Scotland with the Scottish Parliament—there are opportunities for people coming from overseas to link up with people with whom they can do business on a bilateral basis. That is not a problem at all in terms of the UK.

The last two or three contributions have touched on the European Union, and that of course is where problems can arise. In Wales we have had the opportunity to lead the UK delegation from the National Assembly in matters such as the sheep-meat regime, which was led by Elin Jones, the Minister for Rural Affairs; Wales has also led in minority-language meetings. There are opportunities like that. However, the problem arises—and we do not do ourselves any favours if we hide away from it—that there will be some circumstances where the interests of Scotland or Wales may not be identical to the interests, as perceived from London, of the UK as a whole. Fisheries may be one; I am not close enough to that to know. Colleagues from Scotland are much closer to that.

It may be that even on party-political balances—we in Wales have a Labour Government now; there is a Conservative-Liberal Democrat Government here—the perception will be different and the profile that people want to project to the outside world may be different because of that. The question is: how can the line be drawn within a devolved settlement that is reasonable in all circumstances? That is what we need to address, to get the balance right there, rather than perhaps fearing that the thing can go to an extreme that causes difficulties for all concerned.

[Lord Wallace of Tankerness]

My Lords—

--- Later in debate ---

[Lord Wigley]

I understand the practicalities and that it is desirable, if at all possible, to have a united line, but does the Minister not understand that there may be a genuine difference of aspiration and that the needs of Scotland may be different from the perceived needs of the United Kingdom? Does that not put the representative from a Scottish Government in a difficult position? They will either speak against the interests of Scotland, which they represent, or speak up for Scotland and go against the agreement.

[Lord Wallace of Tankerness]

My Lords, that is the stuff of the negotiation that takes places ahead of these Council meetings. It is important that there is that good co-operation. It would not be sustainable for someone in the United Kingdom Government seat at the table to articulate a policy contrary to the United Kingdom view. Obviously, one can imagine that if a Minister from the devolved Administration did not like it, he would not be jumping to be at the meeting speaking on behalf of the United Kingdom Government.

However, these negotiations take place and I recognise enough noble Lords here from my days in the Commons who took part in the fisheries debates. The noble Lord, Lord Sewel, was the Fisheries Minister and knows full well what the run-up to the December Council meeting in particular, and others, can be like. There is a negotiation to take place and a line has to be agreed in advance, not just between the United Kingdom Government and the Scottish Government but between the Welsh and Northern Irish Administrations as well.

Parliamentary Constituencies and Assembly Electoral Regions (Wales) (Amendment) Order 2011

Debate between Lord Wallace of Tankerness and Lord Wigley

Tuesday 22nd November 2011 Grand Committee

[Lord Wallace of Tankerness]

Quite simply because the Explanatory Memorandum is a statement of the effect of the order as the law currently stands, not a statement of policy. I hope that in presenting the order I made it very clear—I think I have repeated it twice now—that that is subject to the commitment that my right honourable friend has made. Just to be clear, the Explanatory Memorandum is a statement of what the effect of the order would be as a matter of law; it is not intended to be a statement of policy. I hope that clarifies the position. The Secretary of State is doing what she said in that exchange that she would do and considering what the effect is of the fact that there are implications of the disjunction.

My noble friend Lady Randerson asked me to confirm that that was the case in Scotland. It is indeed the position that the UK parliamentary constituencies do not match the Scottish parliamentary constituencies. I would be brave to say that the political parties necessarily find it easy but I rather suspect that individual members of the public, who at the end of the day matter most, have little difficulty in identifying their Member of the Scottish Parliament and their Member of the UK Parliament.

Perhaps for clarity, I should say that there is nothing at the moment in law or in any arrangements that would look at how Welsh Assembly constituencies would change. I say purely as a matter of fact that when the disjunction took place in Scotland, primary legislation was brought in in Scotland to make provision for a separate boundary review of the Scottish parliamentary constituencies. Let us not interpret that as in any way a commitment that we are about to bring forward legislation, but that is factually how that position has been addressed in the longer term in Scotland.

[Lord Wigley]

I am grateful to the noble and learned Lord, Lord Wallace. The question that arises is how we ensure a mechanism for setting the constituency boundaries for the Assembly within the context of the rules and values on which they are based, which are more community values, in that there are more individual seats and they are geared to the old communities that they used to represent. At the same time, the boundaries for Westminster are based on the totally different principle—what might be called a republican principle—that it is from the people up that the rights and legitimacy of Parliament come. That is an old established principle; whether it works well in other countries is another question. Those two sets of values and analysis are totally different.

What I am really asking is: are we going to have two boundary commissions to do this or different people in the same commission? Are we going to have more resources to enable us to do it?

[Lord Wallace of Tankerness]

My Lords, I cannot answer that question because there is no answer to it at the moment, other than that, having established boundaries, clearly they cannot go on for ever. The very nature of our system is that the boundaries should be regularly updated. We now say that UK boundaries should be done on a regular basis every five years; previously, as I have indicated, it was done every eight to 12 years. It is clear that at some stage some mechanism will need to be put in place to allow an update of the boundaries, but it would be presumptuous and premature of me to speculate now on when that would be, and indeed on whether we will use the same people to do it and what the criteria would be for these boundaries. That is a debate for another day. There are no proposals. However, the noble Lord was right to identify the fact that, as there is a disjunction, there has to be a mechanism at some point for updating the boundaries for the Assembly.

UK: Union

Debate between Lord Wallace of Tankerness and Lord Wigley

Thursday 3rd November 2011 Lords Chamber

[Lord Wallace of Tankerness]

My noble friend makes a very interesting and very constructive suggestion. He will understand that I am not in a position to accede to it from this Dispatch Box, although I will consider it. In the mean time we will not wait for the setting up of any commission that might come along. We will continue to make the case for the United Kingdom.

[Lord Wigley]

My Lords, I can see that I am in a minority in this House. I want to press the Minister on the reply he gave a little earlier that he was fully in support of a single-question referendum in Scotland. If that was the case and there were a single-question referendum in Scotland and the people of Scotland voted yes, would his Government accept that as the outcome?

[Lord Wallace of Tankerness]

Well, my Lords, it would depend on what the question was. It is important that we have clarity on this. There is an idea that you could have two questions. For example, the First Minister has indicated that if what he describes as “devo max”—perhaps even less defined than independence—was to get 98 per cent of the vote and “independence” got 51 per cent, independence would trump devo max. I do not think that that is the sort of basis on which we should go into any referendum campaign.

Wales: Council Tax

Debate between Lord Wallace of Tankerness and Lord Wigley

Thursday 27th October 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I can readily understand where my noble friend is coming from in asking that question. The consequentials were made available because of the funding made available in England to freeze the council tax to help hard-pressed families. Indeed, many Welsh families might wonder why they are the only households in Great Britain that will not be having their council tax frozen. But the essence of devolution in the Acts that were passed by this Parliament in devolving power to Wales, including power over local government finance, means that it must be a matter for the Welsh Ministers and for the Welsh Assembly to determine what their priorities are. Importantly, Welsh Ministers will be accountable to the Welsh Assembly for their spending decisions and through the Assembly to the people of Wales. That is where the proper accountability should lie.

[Lord Wigley]

My Lords, does the Minister not agree that while the Barnett formula may have been fairly generous to Scotland, it has been shown to be some £300 million light in Wales in meeting the level of expenditure to keep services up to the same standard as in other parts of these islands? Given that, is it not totally reasonable that the Welsh Government should use these resources to spend on health and education, which are very much in need of further resources in Wales?

[Lord Wallace of Tankerness]

My Lords, as I made clear in answer to my noble friend on the consequentials and the block grant given to the Welsh Government, it is a matter for the Government there to determine their priorities and to be accountable for these priorities. If they choose to spend it on health and education, they will clearly be accountable for that expenditure. Separate bilateral discussions are continuing between the UK Government and the Welsh Government on all proposals arising from the Holtham commission, including the idea of a funding floor and the commission’s wider proposals for reform.

Fixed-term Parliaments Bill

Debate between Lord Wallace of Tankerness and Lord Wigley

Tuesday 29th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

I hope this will be a helpful way to proceed, because Amendments 55B and 55C standing in my name implement agreements reached with the Scottish Parliament and the National Assembly for Wales in relation to the coincidence of elections in 2015. It is important to say from the outset that this Bill has not created the possibility that elections to the UK Parliament and the devolved institutions coincide—that could have happened anyway. However, the Bill has given us prior warning and has allowed us an opportunity to plan for the eventuality.

The Government believe that there can be tangible benefits from combining elections, in terms of voter convenience and cost. These were factors which led to the decision to combine the voting systems referendum with other polls on 5 May. However, combining elections for two legislatures arguably poses issues which did not arise from the combination of the polls with a referendum. I have outlined to your Lordships’ House previously—both at Second Reading and in one of our earlier debates in Committee—that concerns have been expressed by the Scottish Parliament, by the Welsh Assembly and in the other place that if the two sets of elections coincide it could be difficult to ensure that voters are able to differentiate between the manifestos for each election for each separate parliament, and that might inhibit the candidates’ ability to campaign effectively. There is also the added complication of different voting systems in the different elections; the 2015 UK general election could be held using a new electoral system, if the referendum on 5 May has an affirmative outcome, and will in any event use different boundaries.

This set of circumstances meant that it was not appropriate to combine the polls to the devolved institutions and the House of Commons in this instance. To that end, we have been in lengthy discussions with the Presiding Officers of both the Scottish Parliament and the Welsh Assembly. I made it clear at Second Reading that we wrote to the Presiding Officers on 17 February proposing that if the Scottish Parliament or Welsh Assembly passed a resolution, with the support of at least two-thirds of all Members, agreeing that the 2015 Scottish Parliament or Welsh Assembly general elections should be moved up to one year earlier or later, the Government would then table an amendment to this Bill which would seek to set the dates of these elections on a one-off basis. Copies of the letters to the respective Presiding Officers have been placed in the Library of the House.

The Scottish Parliament passed a unanimous motion on 3 March confirming that it wished the United Kingdom Government to bring forward a provision to defer its 2015 general election to 5 May 2016. A similar motion was passed by the Welsh Assembly on 16 March. To this end, the amendments in my name will provide that the general elections to the Scottish Parliament and the Welsh Assembly currently scheduled for May 2015 will be deferred by one year in line with the motions passed by the Scottish Parliament and the Welsh Assembly. That will ensure that the two sets of elections do not coincide in 2015.

[Lord Wigley]

Before he sits down, can the noble and learned Lord, Lord Wallace, confirm that the Government’s amendment covers everything that had arisen in discussion with the National Assembly for Wales and in the debate that took place on this matter there? When he says that this is a one-off solution, how might this be handled in future? Does it mean going through all this again every time there might be a coincidence or is there some agreement to get some stable basis ongoing for however long?

[Lord Wallace of Tankerness]

My Lords, I was not about to sit down. I was about to address how we might proceed in the future. I point out that this was not a question of the Assembly Members or the Scottish Parliament awarding themselves an extra year—the motions were passed unanimously by the outgoing Assembly and Parliament. A new Parliament and a new Assembly will be elected on 5 May but we believed it was important to bring forward provisions now so that, at least when people go to vote on 5 May, they will know the period of the Parliament or the Assembly which they are electing.

--- Later in debate ---

[Lord Wallace of Tankerness]

People will know our intentions. I stand corrected by the noble and learned Lord. We thought it was important that we flagged up that intention, subject to these amendments being carried this evening and in the Bill itself. If the Bill is not passed there will not necessarily be a coincidence but there still could be a coincidence of elections on 7 May 2015.

Subject to these amendments being accepted, in the longer term we would then need to carry out a detailed assessment of the implications of the two sets of elections coinciding at a later date. In the light of this we would consider whether to conduct a public consultation in Scotland and Wales on whether the devolved institutions should permanently be extended to five-year terms. While the 2015 general elections to the Scottish Parliament and Welsh Assembly will be deferred by one year, these will be treated as ordinary elections and subject to the usual rules. For instance, a subsequent ordinary general election will be scheduled to be held on the first Thursday in May in the fourth calendar year following the deferred election. Additionally, the power to vary Assembly or Holyrood general elections by one month earlier or later under Section 2(5) of the Scotland Act 1998 or Section 4 of the Government of Wales Act 2006 will apply. In both instances Holyrood and the Welsh National Assembly may still vote for an early dissolution with the two-thirds majority, in line with the existing provisions in the respective devolution Acts. Such an early general election does not affect the subsequent ordinary general election unless the extraordinary election was in the six months prior to the scheduled election.

A number of noble Lords have expressed the view that if the Government had proposed a four-year term for this Parliament then the problem would never have arisen. We have debated at length the Government’s reasons for preferring the five-year term and I do not propose to rehearse them now. It was recognised when the debates took place that we were willing to look at future possible coincidence of elections and, on the back of that, to look at the possibility of extending to five years the lifetime of the devolved Parliament and Assembly. We do not believe that it would be proper to do that on a permanent basis without having that further discussion. I also ask your Lordships to bear in mind that there is always the possibility of the coincidence happening in any event. This has allowed an opportunity to address the possibility now rather than finding ourselves in April, May or March 2015 seeing that a coincidence was about to happen.

Following correspondence with parties in Northern Ireland on this issue, Northern Ireland Office Ministers concluded it would be better to await the outcome of the combined polls scheduled for May this year before taking a decision on whether special provision would be needed for Northern Ireland.

I am happy to stop there and allow the noble and learned Lord to speak to his amendment before going on. I simply observe that it is possible at the moment for the Presiding Officer of the Scottish Parliament or the Secretary of State for Wales to move the election by 30 days. Whether 30 days would be enough to get a proper disjunction of the different election campaigns remains to be seen. I look forward with interest to what the noble and learned Lord says about that. The problem was identified. We engaged with the respective institutions and sought their views on what they would wish their response to be, and these amendments deliver on the way forward agreed with the respective Parliament and Assembly.

[Lord Wigley]

In the first place, I thank the Minister and the Government for moving on this, following the discussion that took place in another place and the misgivings expressed quite widely. It is very helpful that these changes are proposed. None the less, there is an issue with regard to the 30 days. There would be considerable complications if two elections took place within that time, not least for those who have to organise the elections. In the context of Wales and, I suspect, Scotland the elections would be on different boundaries, as well as the possibility of there being different electoral systems. I hope that the Government will look again at the 30 days and see whether it could be elongated to two or three months. Can the decision be put in the hands of the National Assembly and not just the Secretary of State so that there is no question of any political tension arising out of this?

[Lord Falconer of Thoroton]

I have two or three difficulties with the Government’s proposal. First, if Parliament decides that it should be a four-year fixed term rather than a five-year one, the extension of the lives of the Scottish Parliament and the National Assembly for Wales would have been entirely unnecessary and not justified. What then are the Government going to do in relation to it? That suggests to me that the issue should have been dealt with only once it was known what the length of the fixed-term Parliament was, which you could not know until after the Bill had passed—which suggests that the Bill is coming at the wrong time in the cycle.

Secondly, it strikes me as wholly unsatisfactory that this provision deals only what the first of the elections and none of the subsequent elections. If there is always a five-year cycle, there will not be a coincidence again for a long time. However, as the noble and learned Lord, Lord Wallace of Tankerness, acknowledges, this could happen at any time. In those circumstances, while I fully accept what the noble Lord, Lord Wigley, is saying, and maybe my proposal to separate the elections by at least 30 days does not leave long enough, a mechanism needs to be properly addressed in the Bill for going forward and ensuring that when the clash occurs there is some process by which it can be dealt with. The Bill does not deal with that. This looks like a rather unsatisfactory sticking plaster to deal with something that had not been thought through before the Bill was introduced. What are the Minister’s proposals going to be for dealing with the problem as a permanent problem? Will there be another Act of Parliament in addition to the Acts of Parliament that we can expect to deal with the boundary revisions from the Parliamentary Voting System and Constituencies Bill, to which the noble and learned Lord referred earlier in the evening? Is this another loose end left flapping in the wind? Is it intended that the Scottish Parliament and the Welsh Assembly should have five-year terms only on this occasion, or for ever?

Thirdly, why has Northern Ireland been treated differently from these other two institutions?

Wales: Organ Donation

Debate between Lord Wallace of Tankerness and Lord Wigley

Wednesday 23rd March 2011 Lords Chamber

[Lord Wigley]

To ask Her Majesty’s Government what representations they have received from the Welsh Assembly Government concerning possible changes to the law in Wales relating to organ donation.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

The Welsh Assembly Government made clear to the Government their intention to proceed with proposals on organ donation in Wales, and the Government worked closely with the Assembly Government to enable the proposed legislative competence order to be put forward to Parliament for pre-legislative scrutiny earlier this year. Following the result of the referendum in Wales on 3 March, the Government have now received notification from the Assembly Government that they have withdrawn the proposed legislative competence order relating to organ donation.

[Lord Wigley]

My Lords, I am grateful for that reply. Does the Minister accept that the reason for withdrawing the order was because the Assembly now has full legislative competence in areas dealing with health and that after the elections on 5 May it may well want to pursue this matter within its own competence? If that is the case, can he give an assurance that the Government will not to try to intervene? Given the uncertainties and doubts the Government had about human rights and cross-border issues, can he give an assurance that they will not prevent the Assembly from moving ahead, if it so wishes, to legislate on the question of presumed consent to enable far more organs to be available for those who need them?

[Lord Wallace of Tankerness]

My Lords, I understand that the current Welsh Assembly Government withdrew the current legislative competence order on the basis of the change that is about to take place as a result of the referendum. They have indicated that they look forward to the Welsh Assembly Government formed after the elections bringing forward their own legislation. It would not be for this Government to prevent that legislation going forward. However, under Section 112 of the Government of Wales Act 2006 it is a matter for the Counsel General for Wales and the Attorney-General, following the passage of a Bill, to consider whether that Bill should be referred to the Supreme Court on any issue of competence. I exercise a similar responsibility, along with the Attorney-General and the Lord Advocate, in relation to Scotland. These are often complex matters and it would be wrong to hypothesise about a Bill which may not come to pass and when we have not yet seen its final shape or form.

Fixed-term Parliaments Bill

Debate between Lord Wallace of Tankerness and Lord Wigley

Tuesday 1st March 2011 Lords Chamber

[Lord Wallace of Tankerness]

I think the last October general election was in 1974, which was some 36 years ago. I have no doubt that the noble Lord remembers it well. However, it is difficult to say that they have generally been held in October when the last one held in October was over a third of a century ago. In more recent times, elections have been held in May. In 2001, it would have been held in May but for the outbreak of foot and mouth disease. It was held in June. This present Parliament was elected in May, and the natural course would be to go through to May 2015 if it was to have its full five years. That is why May was proposed in this Bill.

Clause 1 includes a power for the Prime Minister, by affirmative order, to vary the date of the polling day by up to two months either before or after the scheduled polling day. This power is intended to accommodate short-term crises or other conditions that might make it inappropriate to hold the election on the scheduled date: for example, a repeat of the foot and mouth crisis, which led to the postponement of the local elections in 2001. Although the general election was within the five years and nothing was needed to change the date, that is the kind of circumstance that is anticipated.

This is where your Lordships’ House will have an important role to play in the procedures set out in the Bill. Any instrument made under the Bill to vary the date of a scheduled election by up to two months will require the agreement of your Lordships’ House, thus affirming this House’s role as guardian of that particular principle of the constitution. It reflects an existing provision of the Parliament Acts: that your Lordships’ consent is required for any Bill that extends the maximum life of a Parliament beyond five years.

I am grateful to the noble Baroness, Lady Thomas, and the members of the Delegated Powers and Regulatory Reform Committee for its report on this Bill. I was glad to see that the committee felt that the delegated power taken in Clause 1 of the Bill was justified. I can assure the noble Baroness, her committee and indeed the House that we will give careful consideration to the report and its recommendations and I will respond very shortly.

There has been much debate over whether the length of Parliaments should be four years or five. It is not an exact science; it is a question of judgment. However, all arguments considered, the Government remain of the strong view that five years—the current maximum set out by the Parliament Act 1911 and more recently the norm—is the right length for a Parliament. Three of the last five Parliaments have lasted almost five years, and 44 countries out of 77 in the Inter-Parliamentary Union have five-year terms for their lower house, with only 26 having four-year terms. Indeed, there are five-year fixed parliamentary terms in Italy, South Africa, France and Luxembourg, and there is a five-year non-fixed term in Ireland and India.

My right honourable friend the Deputy Prime Minister has spoken about the need for Governments to work for the long-term advantage of the country rather than simply to pursue policies for the short term. Not only will the five-year fixed-term help facilitate better planning within government, but it can help facilitate better scrutiny of the Government by Parliament. With a fixed term, Parliament will be able to plan better their scrutiny of the Government’s legislative programme, and Select Committees will have more certainty when planning their inquiries. Indeed, this point was recognised by the Political and Constitutional Reform Committee in the other place.

Noble Lords might well argue that the recent experience of five-year Parliaments is that the Government are unpopular and have had limited ability to make use of the extra fifth year. However, I contend that that occurs in the current political framework and would not be a foretaste of what would happen under this Bill. The five-year Parliaments of recent years have been a somewhat self-selecting sample; they existed only because the Government in question did not believe they could win an election at the end of four years and were possibly waiting for something to turn up. Of course, in these circumstances, the Government tend to be tired and lacking in ideas. However, under this Bill, it will be possible for a Government to plan properly for a full five-year term.

There will be more certainty with fixed terms, and, with our proposed change to begin the Sessions of Parliament in May, the last Session would be a full one. As long as the Government retained the confidence of the other place, they would be able to deliver a full programme in their fifth Session. We would not have a situation in which the fifth Session began perhaps in the last week in November and by the last week in March we were engaged in a wash-up process. The Government can plan for the longer term, knowing that they will have time not only to introduce measures but to see them to fruition and begin to produce results.

I anticipate, too, that it might be argued that this Bill is part of some plot to reduce Parliament’s power over the Executive by extending the period between elections. However, we are not extending the potential period between elections. That remains, as it is now, five years. However, the certainty of five years means that not only the Government but Parliament can plan properly. It can plan its scrutiny programme and Select Committees can plan their inquiries. It will lead to more and better scrutiny, not less.

I turn to the interaction of the proposals in the Bill and the timetable for elections to the devolved institutions: an issue that has led to some considerable discussion and debate, not to say controversy. Under the proposals in this Bill and the respective devolution Acts, elections to the House of Commons and the devolved institutions will coincide every 20 years. Concern has been expressed about that. I ask your Lordships to recognise that this Bill has not brought about the possibility that the elections to the House of Commons and the devolved institutions coincide. It was inevitable at some point under the existing variable arrangements for Parliament that that could happen. The Bill has merely given us prior notification and an opportunity to consider the issue.

[Lord Wigley]

On the interplay and the coinciding every twentieth year, which might be at the end of the first cycle in this instance, is it not desirable that there should not be such clashing, that the elections to the Scottish Parliament and to the National Assembly for Wales should be in their own right, thereby ensuring that the electorate are aware of what they are addressing, particularly where manifestos of parties in relation to the devolved Assemblies might be different from their manifestos in relation to Parliament? Is there any mechanism whereby we can ensure that whatever the cycle—whether it is a five-year cycle as the Government propose, or a four-year cycle as many might wish—there is the same cycle for the devolved institutions to avoid any clash at all?

[Lord Wallace of Tankerness]

I readily understand the point made by the noble Lord. He is right to point out that, although it would happen once every 20 years, the first time would be in May 2015. It has been recognised that there are issues. That is why, as I shall come to explain, efforts have been made to address the issue with the devolved Scottish Parliament and the devolved National Assembly for Wales.

The Government are committed, as I have indicated, to working co-operatively with all three of the devolved Administrations. We have been consulting the respective party leaders and the Presiding Officers in the Scottish Parliament and the Welsh Assembly. I can confirm that my colleague and honourable friend Mr Mark Harper wrote to the Presiding Officers of the Scottish Parliament and the Welsh Assembly on 17 February proposing that if the Scottish Parliament or Welsh Assembly passed a resolution, with the support of at least two-thirds of all Members, agreeing that the 2015 Scottish Parliament or Welsh Assembly general elections should be moved to another date no earlier than the first Thursday in May 2014 and no later than the first Thursday in May 2016, the Government would then be willing to table an amendment to this Bill that would, if accepted, make this change. Copies of these letters to the respective Presiding Officers have been placed in the Library.

A resolution with the support of at least two-thirds of all MSPs or Assembly Members would be a clear indication of cross-party support for such a move and would be consistent with the existing requirement in the Scotland Act and the Government of Wales Act for a two-thirds majority in a vote for early Dissolution. In any event, we will carry out—I think this also addresses the point made by the noble Lord, Lord Wigley—a detailed assessment of the implications of the two sets of elections coinciding at a later date. In the light of that, we would consider whether to conduct a public consultation in Scotland and Wales on whether the devolved institutions there should be permanently extended to five years.

The situation in Northern Ireland is different. Northern Ireland Office Ministers are conducting separate discussions with the parties in Northern Ireland on this issue and have concluded that it would be better to await the outcome of the combined polls scheduled for May this year before deciding whether special provision would be needed for Northern Ireland.

On Clause 2, it has been recognised that if we are to establish fixed-term Parliaments there must be a mechanism to deal with the situation in which a Government have lost the confidence of the House of Commons or where otherwise there is a consensus that there should be an early general election. Clause 2 therefore provides for the circumstances in which an early parliamentary general election can be held. There are two ways in which this can occur: through a traditional vote of no confidence in the Government, passed in the other place by a simple majority of those voting; or by a Motion, passed by a majority of two-thirds of the total number of seats in the other place, which states that there should be an early general election. As such, the Bill will provide the House of Commons with a new power to vote for Dissolution, which is not currently within its gift.

As many noble Lords will be aware, these votes have been the subject of some discussion and controversy. I wish, therefore, to explain to your Lordships exactly what the two votes are about, what they mean and why it is necessary to have two separate mechanisms for two separate circumstances where Dissolution might be required.

First, the defining principle of the Bill is that no Government should be able to dissolve Parliament for their own political advantage. That is why the threshold for passing a Dissolution Motion, as set out in Clause 2(1), that would trigger an early general election should be set at a majority of two-thirds of the number of seats in the other House. This is a majority that no post-war Government would have been able to achieve. In short, this means that we are the first Government to surrender to Parliament the power to call an early general election.

Some have questioned the rationale for giving the other place the power to vote for Dissolution. However, if there is a clear consensus that there should be an early general election, it would be nonsensical to force the other place to engineer a vote of no confidence. That is why Clause 2(1) provides the House of Commons with a new power to vote for Dissolution following a process that we believe is robust and transparent. The absence of such a power in other countries has meant that no-confidence Motions have sometimes had to be engineered to trigger an early general election in circumstances in which there is widespread consensus that there should be one.