Welsh Ministers (Transfer of Functions) Order 2018

Lord Wigley Excerpts

Thursday 17th May 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, in introducing this order, the Minister talked about coming of age, and the noble Lord, Lord Griffiths, talked about two steps along the way; well,

“one step enough for me”—

I cannot view the “distant scene”. I rather regard it as a milestone in the transition towards full devolution. I congratulate those who have worked so hard in the Wales Office and the Welsh Government to put together this somewhat disparate list of functions.

What I do see in the future, if we find ourselves leaving the European Union—if—is a very considerable order, or series of orders, transferring powers currently exercised by the EU in Brussels to Welsh Ministers and indeed the parliament. I have tried to find out what the process is. I have looked at Clause 10 of and Schedule 2 to the withdrawal Bill; I do not understand it. I suggest to the Wales Office that it should produce some form of simple guide on what is envisaged and that, when it comes to the point—if it ever does—we should have some draft Orders in Council to consider well in advance of the Orders in Council being put forward for legislative purposes. It would be so much more helpful if we could see things in advance.

If I may dip into the bran tub, as the noble Lord, Lord Griffiths, puts it, I pull out the references to tribunals and inquiries. I have been engaged in my professional career in a number of very important inquiries and tribunals in Wales—I think in particular of the inquiries on the Dulais Valley and on the digging for gold in the Mawddach estuary and so on. I am relieved to see that the formulation of rules and conditions will now be in the hands of Welsh Ministers because, particularly on the issues concerning water, it is very important that Welsh people should have confidence in the process of a tribunal and the way in which it takes place.

The noble Lord, Lord Griffiths, referred in particular to teachers’ pay and conditions. I want to pause for a moment to think about that, because my friend and colleague Kirsty Williams, the Liberal Democrat Minister in the Welsh Administration, has made some startling steps forward in the field of student financial support, as she outlined this morning on the “Today” programme, which I think could provide a template for what might be done elsewhere in the United Kingdom. On teachers’ pay and conditions, she has risen to the challenge and, last December, announced that an independent task and finish group, chaired by Professor Mike Waters, would be put in place to review teachers’ pay and conditions and to consider how this structure,

“contributes to a highly motivated teaching profession and strengthens the delivery of a high quality education system”.

With the success of her approach to student finance, I am sure that she will do a brilliant job on this. She said in her statement in December:

“I have been clear … that being tied to the England system”—


of teachers’ pay—

“is no longer appropriate, relevant or to the advantage of the profession in Wales. Our system is based on the values of equity and excellence, a commitment to inclusive, public service education and to supporting our teachers to raise standards for all. Our Pay and Conditions system will enshrine these approaches and values”.

I know Kirsty well enough to know that she will again produce some remarkable advances in considering the structures of teachers’ pay. This order will give her the power to act in that appropriate way and I look forward to seeing how the order is used.

[Lord Wigley (PC)]

My Lords, the purpose of this order, as the Minister stated, is to transfer to Welsh Ministers executive functions currently exercised by the Minister of the Crown in areas where legislative competence is exercised by the National Assembly for Wales or has been devolved to the Assembly by virtue of the Wales Act 2017. It has 47 articles and two schedules, so it is impossible to go into all the detail, and I do not think we would expect the Minister to be able to do that either.

The order transfers a wide range of functions to Welsh Ministers in relation to, for example, agriculture, environmental protection, education, health, compulsory purchase orders and planning. Of course, I welcome that objective. However, my friends in the other place and indeed in the Assembly have grave reservations that the Wales Act 2017 largely fails to fulfil its own objectives. The 2017 Act suffers from two fatal flaws: it is a piece of legislation that has been both poorly conceived and poorly drafted, which results in failing to deliver a reserved powers model of devolution, as was originally intended. Indeed, it provides a system of devolution that not only is as cumbersome as its predecessors but is, in some important ways, even more restrictive and frustrating. In drawing up the list of those issues that will be reserved to London, Whitehall departments seem to have seized on every opportunity to reserve every power they might conceivably ever need in relation to Wales. Reservations have been piled on reservations to create a final schedule that is sprawling and lacking in any coherent logic. But even that was not enough for Whitehall. Just in case it had forgotten anything, the Act also reserved everything that “relates to” the list of reservation, thus further extending its reach.

It is for those reasons that my colleagues voted against the Bill both in the other place and the National Assembly. The ink had barely dried on the Wales Act 2017 before my colleagues were vindicated in these misgivings. The Welsh Government’s Trade Union (Wales) Bill, which was within the Assembly’s competence under the Assembly’s conferred powers model, covered industrial relations within the devolved public sector, but a signal arrived from the UK Government that the reserved powers model might be used rigidly to police what we in Wales cannot do when it comes to such legislation. While nothing eventually came from those UK government threats, the notion of Westminster overruling Welsh decisions became even more apparent.

Regarding the order that we are discussing today, of course its provisions may be partly repealed through the European Union (Withdrawal) Bill, so I would be interested to hear the Minister’s comments on that and confirmation on whether that process may happen. Brexit is exposing the weaknesses of the UK constitution, which is unfit for purpose in many ways and is lopsided and overcentralised. Many of the provisions in front of us today concern subject matters that may, in part, fall under the 24 areas that the UK Government have identified for legislative common frameworks and, therefore, are more likely to be affected by protection built into the EU withdrawal Bill as amended by this House last week. I understand that, until we have a clear indication from the Government how widely the proposed regulations will be drafted, or indeed how far the common frameworks that replace them will restrict the devolved policy areas with which the EU common frameworks currently interact, it might be difficult to say whether the provisions in this order will or will not be repealed, but the principle matters, particularly in relation to agriculture, fisheries and environmental functions. This will lead to ongoing uncertainty, which hinders good government. I certainly do not oppose the order, but I must warn the House that, inevitably, we shall be asked to return to these matters.

[Viscount Younger of Leckie]

I thank all noble Lords for their contributions to this short debate and thank them for their broad welcome for the transfer of functions order. I note that the noble Lord, Lord Griffiths, described it as coherent governance for the principality—which is praise indeed, perhaps. The noble Lord, Lord Thomas of Gresford, stated that it was a milestone. The noble Lord, Lord Wigley, was probably less generous in his praise, but he said broadly that he would not oppose it—to that extent, perhaps, that is progress.

I shall attempt to answer the questions that were raised. On teachers’ pay and conditions, which the noble Lords, Lord Griffiths and Lord Thomas of Gresford, asked about, the first thing to say is that of course it is very much up to Ministers in Wales to decide the future level of pay and conditions. As the House may know, the Welsh Government are currently consulting on the future mechanism for teachers’ pay and conditions once the functions are transferred, so I cannot really comment any further. It is up to Ministers in Wales to decide in future, and hopefully that will have a good conclusion.

The noble Lord, Lord Griffiths of Burry Port, asked about Milford Haven. I agree with him that the port of Milford Haven is very important not just for Wales but for the United Kingdom. As he said, Milford Haven remains a reserved trust port, but the UK Government will continue to work closely with the Welsh Government and local communities, as they do now. However, it has to remain reserved and we do not envisage any change in terms of its role. It is much valued.

The subject of the EU was raised by a number of noble Lords, including the noble Lords, Lord Griffiths and Lord Wigley, and there was a specific question, which I will address, from the noble Lord, Lord Thomas. The frameworks are intended to capture only functions that are currently exercised at an EU level to ensure that the UK internal market continues to operate effectively once we have left the EU. Our preliminary analysis, published in March, sets out where frameworks may or may not be needed in respect of the 64 policy areas where EU law intersects with the Welsh devolution settlement. This analysis indicates that frameworks will be needed, in whole or in part, in only a small number of areas—those areas which we believe are vital to the efficient functioning of the UK internal market. The powers transferred through this order are currently exercised by Ministers of the Crown, not the EU, and will not form part of future UK frameworks.

The specific question that the noble Lord, Lord Thomas of Gresford, raised was about the mechanism. There will be no need for orders transferring EU powers, as the approach agreed by this House in what is now Clause 15 of the Bill devolves powers by default. The UK Government will bring forward regulations to identify areas where we need statutory UK frameworks. I hope that helps answer those questions.

[Lord Wigley]

I am not sure that I am understanding the Minister properly. Is he giving the House a categorical assurance that none—not one—of the 47 powers being transferred by this order will be clawed back or implicated by the rolling out of the 24 sections under the EU withdrawal Bill?