Wales Bill

Lord Wigley Excerpts

Report: 2nd sitting (Hansard continued): House of Lords
Tuesday 10th January 2017 Lords Chamber

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

My Lords, the first amendment in this group, Amendment 106A, is a technical one. It responds to a concern raised by the Welsh Government about the way in which the restrictions on the Assembly legislating on reserved authorities in paragraph 8(1) of new Schedule 7B apply to the seven reserved authorities listed in paragraph 9 of the new schedule.

The Assembly is prohibited from legislating to confer or impose functions on a reserved authority without consent by virtue of paragraph 8(1)(a), and from legislating to confer or impose functions that are specifically exercisable in relation to a reserved authority without consent by paragraph 8(1)(c). Paragraph 9(2) excepts a small number of reserved authorities from the paragraph 8(1)(a) restriction, but there is no similar exception in relation to paragraph 8(1)(c). That could create an anomalous situation where the Assembly could impose functions in devolved areas on any of the authorities listed in paragraph 9(2), but could confer a power on Welsh Ministers to do so only with consent.

To think of a tangible example, the Assembly could confer on Welsh Ministers a power to issue guidance to any of the seven reserved authorities listed in paragraph 9. The authority would be subject to a duty to have regard to any such guidance when exercising its devolved functions. As the Bill stands, the ministerial consent requirement would not apply to the provision in so far as it concerns the duty on the reserved authority to have regard to the guidance. But the ministerial consent requirement would apply to the provision in so far as it concerns the conferring of a power on Welsh Ministers to issue the guidance. The effect of the amendment is that the requirement for UK ministerial consent does not apply if the relevant provision has the effects described in both paragraphs 8(1)(a) and 8(1)(c) of new Schedule 7B. Following our example, the Assembly would not require consent to create a power for Welsh Ministers to issue guidance to an authority listed in paragraph 9 or create a duty on such an authority to have regard to the guidance.

Government Amendments 136 to 141 extend the application of paragraph 6 of Schedule 7 to a public authority. Paragraph 6 currently preserves the validity of, and provides continuity for, actions taken by a Minister of the Crown in respect of functions which are transferred to Welsh Ministers by the Bill. This includes actions taken by a public authority exercising delegated functions of a Minister of the Crown. However, there are functions currently conferred directly on rather than delegated to public authorities such as the Oil and Gas Authority and the Marine Management Organisation which are being transferred to the Welsh Ministers in the Bill. Such functions are not currently covered by paragraph 6. At the point of transfer of these functions to the Welsh Ministers, there may be actions in progress which will need to be continued and completed post-transfer. The amendments made to paragraph 6 preserve the validity of actions taken by a public authority before the date of transfer and provide continuity for anything that is in the process of being done by a public authority at that point.

I look forward to hearing from the noble Baroness, Lady Morgan, and the noble Lord, Lord Wigley, on their amendments in this group. I beg to move.

[Lord Wigley (PC)]

My Lords, I listened with great interest to the rationale given by the Minister. I will need to read it again in Hansard to comprehend it fully, but I am sure that it does what he hopes it does.

My Amendment 108 was tabled following concerns expressed to us by the Welsh Language Commissioner, Meri Huws, regarding the Bill’s potential effect on the National Assembly’s power to legislate on matters pertaining to the Welsh language. It was raised in Committee, but I am concerned that there appears to be a lack of appreciation of the points put to us by the commissioner, and which have been addressed by the amendments put forward by my colleagues in Plaid Cymru. The commissioner herself is frustrated that the Government do not seem to have engaged with the substance of the case, which she has made to them as well as to us.

The possible effect of Schedule 2 to the Bill is that, when the National Assembly wishes to legislate for the Welsh language, it will require the consent of the relevant UK Minister to confer, impose, modify or remove within that legislation the Welsh language functions of Ministers of the Crown, government departments and other reserved authorities. Under the current settlement, ministerial consent is required only when legislating to impose Welsh language functions on Ministers of the Crown. The ministerial consent provisions of the Wales Bill in relation to the Welsh language apply to a wider range of persons than is currently the case. The new legislation is therefore more restrictive on the Assembly’s powers than is the status quo and this represents a retrograde step.

Let us consider a practical example. The Welsh Language Commissioner is already engaged in the statutory processes that would result in placing a duty on bodies such as Her Majesty’s Revenue & Customs, the Crown Prosecution Service, Ofcom and the BBC to adopt Welsh language standards. This amendment removes the requirement for ministerial consent for Acts of the Assembly affecting functions of reserved authorities, public authorities and Ministers in circumstances where the Act of the Assembly relates to a Welsh language function. I am sure that the House will agree that such a provision is fair and reasonable, given that the Welsh language is quintessentially a devolved issue. Allowing Ministers and public authorities based outside Wales to second-guess National Assembly policy on the Welsh language in Wales, a policy area on which they have little if any informed opinion, is a formula for acrimony and dispute and would reopen language tensions which have abated to a significant extent over recent years.

In the House of Commons debate on the Bill, the Government claimed to offer some clarity and reassurance on the issue by saying that there is nothing in the Bill which affects the Welsh language retrospectively, and that of course is true. However, the Minister went on to confirm that if a future Welsh language measure were to be proposed, it would have the effect which we have pinpointed. Consent would be required to add new public authorities other than Wales public authorities. It would therefore affect any future Welsh language legislation applicable to those areas. The Minister’s words offered no reassurance or indeed any justification as to why this Bill should include such a retrograde step.

A briefing paper produced by the National Assembly for Wales research service confirms our fears and outlines that, under the Bill as it currently stands, there will be a loss of legislative power relating to the Welsh Language (Wales) Measure 2011. My colleagues in the National Assembly are furious about this, and it is not only Plaid Cymru AMs who feel strongly about the matter. I shall quote from that briefing paper: “Part 4 of the Welsh language measure allows Welsh language standards to be imposed upon public bodies. Some of the bodies captured by Part 4 would be reserved authorities under the Wales Bill. This means that UK Government consent would be needed before Welsh language standards could be imposed upon them”. There is a consensus that this is yet another blatant rollback and a significant reduction in the ability of the National Assembly for Wales to be able to legislate on its own language—a subject matter that is, for very obvious reasons, devolved.

Perhaps I may say in conclusion that on item after item that we have raised today, including the industrial relations amendment moved earlier by the noble Lord, Lord Hain, and lost in a tied vote, the Government have not been willing to move one inch to reduce the powers rollback being instituted by this Bill. The Bill started its passage with a lot of good will, in the belief that the Government would seek to find common ground. Failure to do so has led to a growing bitterness across the parties, which I greatly regret. I urge the Minister to reconsider the Government’s position even at this late stage and to rid the Bill of this devolution rollback and to accept our amendment today, even if they need to amend it themselves when the Bill returns to the Commons.

[Baroness Morgan of Ely (Lab)]

My Lords, my Amendment 109 provides for the transfer of all functions currently exercisable by Ministers of the Crown—UK Government Ministers—in relation to areas which are within the devolved legislative competence of the Welsh Government to be transferred to Welsh Government Ministers. Let me start by saying that, given the Government’s intention of producing a Bill that will provide clarity and coherence to the Welsh devolution settlement, it is difficult to understand why such a simple provision as the alignment of executive and legislative competence has not been included.

In providing evidence to the Silk commission, the Welsh Government made clear that a move to a reserved powers model should be accompanied by a blanket transfer of all executive functions within the devolved areas. The Silk commission agreed and recommended:

“In order to reduce complexity and increase clarity, we believe that a future Government of Wales Act should include a general transfer to the Welsh Ministers of Minister of Crown functions in devolved … areas”.

I thank the Minister for writing to me and setting out his understanding of the situation and for clarifying the three categories of executive functions. I will start with the area about which I am most concerned: the pre-commencement functions.

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[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, and the noble Baroness, Lady Morgan, for speaking to their amendments, which I shall deal with in turn. I therefore turn first to Amendment 108 tabled in the name of the noble Lord, Lord Wigley. In beginning my response I should say that I did not recognise the caricature of the Government not listening and not responding during the course of this legislation; I think that that was uncharacteristically unfair of the noble Lord. We have listened very carefully and in many areas have given ground, as he himself has previously acknowledged. Perhaps I may also say in opening that we are certainly happy to engage with the Welsh Language Commissioner, Meri Huws, for whom I personally have massive respect. I do not think that we have failed to engage, but if there is any issue that she wants to discuss further, I will be more than happy to talk to her about it.

The amendment seeks to remove the requirement for an appropriate Minister to consent where the Assembly seeks to amend, remove or impose new functions on a reserved authority or a Minister of the Crown where those functions relate to the Welsh language. I think that there is agreement between us on the intent of the clause in the Bill.

Throughout the development of the Bill, we have given careful thought—absolutely correctly—to the Welsh language and taken steps to minimise the effects of the new reserved powers model on the Assembly’s legislative competence for the language, but obviously there are issues in relation to reserved bodies. For example, while paragraph 197 of new Schedule 7A reserves the functions of authorities named or described in that schedule, we have inserted an exception for Welsh language functions in paragraph 199. This means that, under the new model, the Assembly will be able to legislate to confer Welsh-language functions on particular authorities, such as the BBC and police and crime commissioners, as the noble Lord, I think, indicated in his speech, subject to the consent of a Minister of the Crown.

We would anticipate that this is not going to be unreasonably withheld, but I think the noble Lord will understand that, where we have a process of reserving issues, and in relation to every other area, we have a provision that devolved areas are quite distinct, so we need to make provision for the Welsh language to make sure that reserved authorities are not put in an invidious position. The noble Lord’s amendment would cut across one of the underlying core principles of the Bill: the Assembly should not be able to impose burdens on non-devolved bodies without agreement. This goes to the core of the legislation. To add a specific exception to the consent process for the Welsh language would undermine that principle.

The noble Lord is absolutely right in relation to the Welsh Language (Wales) Measure 2011. It does not affect matters that are already settled, but he is right that in so far as there were to be new regulations under the measure, they would be subject to the new provisions of the clause if it is part of subsequent legislation.

[Lord Wigley]

Am I understanding correctly that the Minister is in fact confirming the fact that, compared to the position when the 2011 measure was passed, there is a rollback of powers as far as the Assembly is concerned in relation to imposing Welsh language conditions on such bodies?

[Lord Bourne of Aberystwyth]

My Lords, we are not comparing like with like. There is a significant amount of legislation here that is actually devolving new powers to the National Assembly. As I have indicated, the noble Lord’s analysis of what the legislation is seeking to do is correct; I am not seeking to deny that.

Amendment 109, moved by the noble Baroness, Lady Morgan, again seeks a blanket transfer of pre-commencement Minister of the Crown functions and prerogative functions exercisable in devolved areas to the Welsh Ministers, an issue we debated in Committee. I hope noble Lords have read my letter of 12 December to the noble Baroness which explained the Government’s approach on this issue. This has not changed.

I will give an outline of what happens next, which I think may provide some reassurance to the noble Baroness. In preparing the Bill we have undertaken substantial work with departments across Government to identify the remaining functions exercised by Ministers of the Crown in devolved areas. Noble Lords will appreciate that most such functions have already been transferred by transfer of functions orders made since 1999. In the light of the existing transfer of functions orders and the outcome of this work, we have concluded that the blanket transfer proposed would not deliver the clarity that we are looking to deliver through the Bill. New Schedule 3A to the Government of Wales Act 2006, inserted by Clause 20 of the Bill, sets out the Minister of the Crown functions in devolved areas that will in future be exercised concurrently or jointly with the Welsh Ministers.

A handful of pre-commencement functions will continue to be exercised by a Minister of the Crown solely. These are set out in paragraph 11 of new Schedule 7B. I agreed in Committee to take a further look at these functions, and as a result we have, through Amendments 107B and 107C, narrowed the range of functions in the Marine and Coastal Access Act that require consent for modification. As a corollary to this, in Amendment 114A, we have added some functions under this Act and regulations made under it to the list of functions jointly exercisable by Ministers of the Crown and Welsh Ministers, reflecting the interconnectedness of decision-making in the Welsh zone.

The remaining Minister of the Crown functions in devolved areas will be transferred to Welsh Ministers by order, and we intend to make that order once this Bill has been enacted. I shared a draft list of the functions that will be included in this order with noble Lords before Second Reading, and we are continuing to discuss this list with the Welsh Government so that we can include any further functions that we identify. Any such order will be subject to the affirmative procedure in both Houses of Parliament, so noble Lords will be able to debate the content in more detail at that stage.

Once we have made this order it will be absolutely clear which functions have been transferred to Welsh Ministers, something that a blanket provision would not achieve. In addition, a blanket provision would not provide the benefits of concurrent exercise of some powers—for example, enabling Ministers in both Governments to give grants. I will write to the noble Baroness about the issue she raised concerning Scotland, about which I am uncertain, and copy that to other noble Lords who have participated in the debate.

The amendment also includes prerogative functions in so far as they are exercisable in devolved areas. On examining the range of those functions, we concluded that none applied to devolved matters, and therefore have not acted on that.

The noble Baroness talked about the 35 more functions identified by the Welsh Government. As I said, we are looking at additional functions as identified by the Welsh Government and discussing those with them. We will consider them in light of the order that will need to be made. As I said, this will be subject to debate.

In conclusion, regarding the Welsh language, I am very happy for the Wales Office to engage with Meri Huws and perhaps provide her with more certainty about how this would be carried forward. I can assure the noble Lord, who knows my approach to the Welsh language, that there is no malign intent here at all. The language is central to everything that happens in Wales, and thank goodness it is no longer the party-political football it once was. The Wales Office, as you can imagine, is at the moment very much wedded to that view.

I will endeavour to update the noble Baroness on the Scotland issue, but I will also write to her and to noble Lords more generally about how the discussion with the Welsh Government is going regarding those functions. With that, I ask the noble Lord to withdraw the amendment.

[Lord Bourne of Aberystwyth]

My Lords, I am trying to speculate what the noble Baroness might be finding behind the sofa at that stage. I hope that the process would have delivered most of the important issues, but in so far as something is discovered later on, I am sure we will be able to engage with the noble Baroness—or whoever else discovers it behind the sofa—and come to some measure of agreement. It is difficult to anticipate what that issue would be, but if it clearly should be the subject of an order, then I do not see any problem.

[Lord Wigley]

If in fact there is something that has not been foreseen, do we have the order-making facility that can cover matters that have not been specified in the Bill?

[Lord Bourne of Aberystwyth]

My Lords, I am not sure whether the noble Lord is referring to the specific order that would come forward, in which case there would be the ability—subject to affirmative procedure, presumably—to withhold consent, unless we were in listening mode, if that should happen in an extreme position. But if it happens after that procedure, as I have indicated to the noble Baroness, I would be very happy to engage and discuss how we could deal with that. I am uncertain whether there is a particular procedure, but I would anticipate that there is. There must be a way to transfer functions by order, which we have done during the course of successive Governments. So I think the procedure is there, and if I can give that undertaking, I am very happy to do so.

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Moved by

[Lord Wigley]

146: Clause 62, page 50, line 32, at end insert—
“ Before making regulations under this subsection, the Secretary of State must consult the Welsh Ministers and the Presiding Officer of the National Assembly for Wales.”

[Lord Wigley]

My Lords, this is the last amendment on our list today, Amendment 146 in my name, which seeks to ensure that UK Ministers may use regulations to commence a number of provisions of the Bill only after consultation with Welsh Ministers and the Presiding Office of the National Assembly for Wales. Incidentally, harking back to what we were talking about a moment ago, order-making capacity, I understand that unless there is a specific order-making capacity in primary legislation it is not possible to bring forward orders. However, we can look at that outside the Chamber.

From the outset, I concede that this amendment would not, in isolation, achieve what I am seeking to do. It is, broadly speaking, part of a series of amendments that I have tabled at earlier stages, which aim to stop UK Ministers riding roughshod over the National Assembly for Wales by using secondary legislation to commence, amend or repeal legislation affecting our national Parliament without its consent. It is that question of establishing a system of prior consent that is central to this amendment.

The issue that triggered my concerns, and the concerns of many Peers across these Benches, was the inclusion of Henry VIII powers within this Bill. Since the Minister has felt the full force of the former Chief Justice of England and Wales, the noble and learned Lord, Lord Judge, not once but twice on this issue, I know that he is well aware of the arguments. I will therefore keep my comments on this matter to a minimum. However, I want to use the amendment to call on the Minister to hold true to his word, and the word of his colleagues, to create a permanent devolution settlement, which means that the democratic Parliament of Wales in Cardiff Bay has the absolute authority over the laws that it makes.

I shall not press the amendment to a vote, but I remind the Minister of the comments made regarding Henry VIII powers in our previous debate. In particular, I remind him of the response of the noble and learned Lord, Lord Judge, to the Minister’s two assurances—that any regulations would be discussed by officials well in advance of coming into force and that the Secretary of State would write to the First Minister and Presiding Officer notifying them of the intention to bring forward regulations. Undoubtedly, these are welcome concessions, although they will not appear in the Bill. However, this Bill, in the Government’s own words, is meant to be about creating a clear, working, legal settlement between two Parliaments. As the noble and learned Lord, Lord Judge, noted during our last debate, the Minister’s so-called solutions to our concerns regarding Henry VIII powers are,

“legally ... completely irrelevant”.—[Official Report, 14/12/16; col. 1350.]

I shall shortly ask leave to withdraw this amendment but, before doing so, I ask the Minister to consider once again removing or amending all clauses in this Bill which allow Westminster to take steps that can be interpreted as riding roughshod over the democratically elected Parliament of Wales—in other words, the need for consent, discussion and agreement prior to using powers that can have quite a draconian effect. I beg to move.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for moving the last amendment for business today. First, on the point that he made in relation to orders, I believe that there is an order-making power in Section 58 of the Government of Wales Act 2006 that can be used—but I shall cover that in writing to noble Lords if I might, because there are a variety of issues on which I want to write to noble Lords.

I understand the point that the noble Lord made on the need for partnership working between the two Governments, which, if I may say so, has been exemplified in relation to the fiscal framework, where there has been a very successful partnership which may have confounded expectations. But yes, of course, we need to extend that across the piece so that it does not apply just in relation to that issue, important though it is. It needs to be done on a broader front. The other point is, when we have had parties of different political complexions in government here and in Wales, it has been illustrative of the fact that we have been able to move things forward in a demonstrable way—not always agreeing on everything, clearly, but agreeing on an awful lot, and the way forward in relation to the legislation.

I take to heart very much what the noble Lord said about Henry VIII powers, which certainly need to be limited in scope. I think that the noble and learned Lord, Lord Judge, said that it was politically astute but legally not worth the paper that it was going to be written on, to be absolutely fair. That was his judgment—and of course he has great authority and knowledge on these matters, as I regularly acknowledge.

The amendment seeks to require the Secretary of State to consult the Welsh Ministers and the Assembly’s Presiding Officer before making regulations to commence provisions under Clause 62(4). Clause 62 provides for those provisions which need to be brought into force quickly after the Act is passed to come into force on the day the Act is passed, through subsection (1), or two months after it is passed, through subsection (2). The Assembly will, for example, early on, if it wants to do so, be able to change its name at any time after two months from Royal Assent.

Of course, Clause 62(3) already imposes a duty, which the noble Lord did not mention, on the Secretary of State to consult the Welsh Ministers and the Assembly’s Presiding Officer before commencing the new reserved powers model—that is already in the clause—on the “principal appointed day”. That is already there and of course there are good reasons for that. The new devolution model will fundamentally alter the landscape within which the Welsh Government make policy and the Assembly makes legislation. It will require policymakers and legislators to get to grips with a new settlement, framed in a very different way from the current one. It is only right, therefore, that the Bill places a statutory duty on the Secretary of State to consult both the First Minister and the Presiding Officer before bringing the new model into force.

For other provisions in the Bill, we will of course work closely with the Welsh Government, as we are doing, and the Assembly Commission to ensure that the transition is as smooth as possible as the Assembly takes on the important new powers that the Bill will deliver. Of course, the majority of these provisions devolve further powers to the Assembly and Welsh Ministers and are intrinsically linked to the new reserved powers model. I anticipate—although clearly this will be subject to discussion with the Welsh Government—that most if not all of them, other than those limited ones I have indicated, will come into force on the same day as the reserved powers model. But that is a matter for discussion.

I believe that a separate consultation on the commencement of these provisions would be unnecessary as it is something that is either provided for, as it is in relation to the important issue of reserved powers, or will be included in that discussion in practice between the two separate Governments as things progress. On that basis I ask the noble Lord, Lord Wigley, to withdraw his amendment.

[Lord Wigley]

My Lords, I am grateful to the Minister for that considered response. I accept entirely that there are broad-brush consultation provisions in the Bill for when the first steps are taken to bring in the new order that will follow the Bill coming into force. There will, however, be cases that arise from time to time when new orders are forthcoming and when there will be a necessity for there to be at least a notification—I hope there will be a consultation—before that happens. I hope, therefore, that in the initial consultation to which the Minister referred a moment ago, there might be established a procedure—a protocol, if you like—for the way in which such orders will be handled in future, and, built into that procedure, an agreement that there will be advance warning and consultation and that views can be taken on board. That would be a very helpful move forward. Having said that—I note that the Minister is thinking carefully about it, judging by the look on his face, and I will be very grateful if he does—on that basis I beg leave to withdraw the amendment.

Amendment 146 withdrawn.