Brexit: Devolved Administrations

Lord Wigley Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Wigley (PC)]

My Lords, I am delighted to follow the noble Lord, Lord Kerr, who has rightly pinpointed some of the dismay felt in Wales and Scotland at the implications of Clause 11. I shall come back to that.

I welcome the timely opportunity to debate the role of the devolved Administrations in the context of the UK’s impending departure from membership of the European Union; and I thank the noble Lord, Lord McInnes, for facilitating it. I hardly need to repeat that I greatly regret that Wales will be leaving the European Union, which has been so beneficial to Wales, and I am dismayed that my country—though not my county—voted to spurn the hand which has, over the past two decades in particular, nurtured it.

The Motion refers to strengthening the union, though, as we have heard, that does not refer to the European Union but to the United Kingdom. There has of course been no great outcry in Wales and Scotland to tilt at the monarchy, but there has been widespread discussion of the changing nature of the UK as a political state. All parties have signed up to support greater devolution of power to Wales and Scotland, and to Northern Ireland, if it so wishes. The nature of the UK as a state is an evolving relationship of free and equal partners. The Scottish referendum of 2014 underlined that the people of the respective nations of the UK have a right to their independence, if they so wish. That is a freedom greatly envied in other parts of the world, such as Catalonia. We have an evolving union of the nations of these islands; that relationship between our four nations—I include the whole of Ireland in that context—is an evolution that will undoubtedly develop over the coming years. Our relationship with our fellow members of another union—the European Union—will be a significant factor in how things unfold.

We shall be discussing the EU (Withdrawal) Bill at Second Reading next week. I do not want to anticipate that debate, but we shall undoubtedly address the Bill in the light of comments—and commitments—made in the House of Commons during its passage there. It is clear that the EU (Withdrawal) Bill, in its current form, would weaken the devolution settlements that the people of Wales, Scotland and Northern Ireland have enjoyed over the last 20 years.

The Government have made it clear that Clause 11 is not good enough and have said that it will be amended. That is the clause dealing with powers repatriated from Brussels, of course. The issue, as other noble Lords have mentioned, relates to powers currently exercised on an EU level but which relate to functions devolved to Cardiff, Edinburgh and Belfast. The issues that arise in that context relate mainly to three aspects: first, whether the powers will be transferred directly from Brussels to the devolved regimes and not retained at the UK level; secondly, that there should an acceptable mechanism for ensuring that the use of those powers, whether by Cardiff, Edinburgh, Belfast, or indeed Westminster, do not distort the UK single market; and, thirdly, that all four Governments have equal standing, in their own right, in any co-ordinating forum set up for this purpose.

The Scottish Secretary made a strong commitment before Christmas that Clause 11 would be amended on Report in the Commons, based on criticisms relating to these matters made across the House in Committee. The British Government have failed to fulfil that promise. They did not table any amendments that address concerns raised by Members of all parties, across both Houses, with regard to this aspect of devolution. It is as if the UK Government have difficulty accepting that there is more than one nation and more than one Parliament within the British state.

Last Wednesday, 17 January, the National Assembly, our Senedd, rolled up its sleeves—to use the term used by the noble and learned Lord, Lord Wallace—and voted unanimously in favour of Steffan Lewis AM’s proposal for a Welsh continuity Bill, to introduce legislation to enshrine EU laws in devolved areas into Welsh law before Westminster gets its hands on them. Plaid Cymru has long advocated a continuity Bill as a means of pre-empting and mitigating the potential power grab by the UK Government. This was never the preferred option, but now that the EU (Withdrawal) Bill has passed through the Commons with no changes to Clause 11, it is widely regarded as essential. The constitutional encroachment of Westminster in the context of the Bill is so great that it is not only Plaid Cymru AMs who now support this continuity Bill to protect Welsh democracy. Last Wednesday, it was supported by every party: the Labour/Liberal Democrat Welsh Government, the Welsh Conservative Party and even UKIP. In the light of this unanimous vote of the Senedd, the Labour Government of Wales are moving towards putting forward their own continuity Bill, which they have already drafted. If they are serious in this commitment, they must do so urgently before another Westminster power grab, embodied in the Wales Act 2017, further restricts their authority.

The UK Government must also recognise this landmark vote in Wales. A decision of this magnitude cannot be ignored. Yet, when my colleague, Plaid Cymru’s parliamentary leader, Liz Saville-Roberts MP, asked the Prime Minster last week whether she would respect the decision made in the Senedd, the Prime Minister sidestepped the issue, dismissing by default the concerns of her own Conservative Party in Wales.

My party’s position in the long run is clear: we want the people of Wales to run our own affairs. In the interim, we will need a collaborative procedure for the creation of UK-wide frameworks, given that this Government are so determined to press ahead and remove us from the existing EU frameworks. These UK-wide frameworks will have a significant impact on the existing devolution settlements and therefore must be created jointly by all the sitting Governments, not dictated by Westminster Ministers. This is only the first step to ensuring that devolution is not just respected but upheld in the upheaval this Government are creating by leaving the EU single market and customs union.

The existing Joint Ministerial Committee on EU Negotiations had a rocky start. Until recently, it had been suspended, as has been mentioned, and the reshuffle took place during what should have been the opportunity for the Government to amend Clause 11, which could have addressed the concerns I have outlined. The JMC has proved better than nothing at enabling devolved Administrations to engage in decisions that have an impact on their people. The principles that underpin the JMC were agreed to ensure close working between the UK Government and the devolved Administrations on reserved and excepted matters that impact significantly on devolved Administrations. A communiqué issued by the JMC on 16 October agreed that these same principles should apply to common frameworks. It stated that the creation of any new frameworks will be a matter for “all parties to agree”. I would support the creation of a joint council of Ministers in that context, as mentioned by the noble and learned Lord, Lord Wallace of Tankerness.

We shall undoubtedly return to these matters in the context of the Brexit Bill. In the meantime, I invite noble Lords to contemplate the likely impact of the Government’s Brexit policies on the harmonious co-operation between the nations of these islands.

Bach Commission: The Right to Justice

Lord Wigley Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Wigley (PC)]

My Lords, I am hesitant to intervene in this debate with so many noble Lords distinguished in legal matters participating. However, I am glad to have the opportunity to contribute as the LASPO Bill was the first for me to address when I re-entered Parliament in this Chamber in 2011. I join others in warmly welcoming the work of the noble Lord, Lord Bach, and his colleagues. I hope that the recommendations of this report will be adopted by the Government when their own review has been concluded.

I shall refer briefly to our experience in Wales following the application of the 2012 Act. Wales has seen the largest decline in legal aid providers over the past five years—a decrease of 29%. Of course, Wales is not the only area hard hit; there have been decreases of 28% in south-west England and 27% in north-west England. Legal aid in the housing sector has been particularly hard hit as the rates paid for housing legal aid, set by the Government, are particularly low and so there is no incentive for providers.

When the UK Government held a consultation on legal aid in 2011 before implementing the cuts, my colleague, Elfyn Llwyd MP, who has now returned to his legal work, in his evidence warned that the cuts would hit the most vulnerable in our society—in particular children caught up in divorce cases—and would lead to overreliance on advice agencies and an increase in self-representation in courts. That is exactly what has happened, as the noble Lord, Lord Bach, emphasised earlier.

The Law Society published evidence in June indicating that many people are now facing court, unrepresented, in cases where lawyers would have resolved the issues without involving the court through mediation and negotiation. On the occasions of his recent retirement, one of the most senior Family Court judges, Mr Justice Bodey, told colleagues how more and more people were having to represent themselves at hearings and how he had at first hand felt their frustration. Sometimes he had to act as their counsel and to ask questions on their behalf. He added:

“I find it shaming that in this country, with its fine record of justice and fairness, that I should be presiding over such cases”.


In its evidence to the Justice Select Committee in October, the Ministry of Justice published figures which revealed that legal aid cuts had triggered a 99% collapse in the numbers receiving state help in welfare cases. Just 440 claimants were given assistance in the last financial year, down from 83,000 in 2012-13. This is particularly punitive for disabled people, about whom I am most concerned. The Bar Council has commented:

“This is not to say that the resources allocated to justice should be limitless. But it does mean that justice should be properly resourced to avoid a denial of justice”.


As was stated in another place by Elfyn Llwyd’s successor, Liz Saville Roberts MP, this is an, “appalling indictment of how this Government has denied access to justice to the poorest people in society. Denial of legal advice is a denial of justice”. These cuts also impact on people facing vexatious court claims brought against them by the victims of abuse. Liz Saville Roberts currently has a Private Member’s Bill in the other place addressing this serious issue.

The interim Bach report identified six key areas of concern with the current system for accessing justice—concern that we should note:

“Fewer people can access financial support for a legal case … Exceptional case funding has failed to deliver for those in need … Public legal education and legal advice are inadequate and disjointed … High court and tribunal fees are preventing people pursuing legal claims … Bureaucracy in the Legal Aid Agency is costly and time-consuming … Out of date technologies keep the justice system wedded to the past”.


The coalition Government had originally estimated that the new Act would lead to savings of £450 million a year, but in 2016 legal aid spending was £950 million less than in 2010, indicating that the cuts have been far too brutal. The Bach commission estimated that the cost of the proposals in its report would initially total less than this underspend, at an estimated cost of £400 million per year.

The recommendations set out in the final report include—I believe that it is right to stress this—

“a new Right to Justice Act. This Act will … Codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford … Legal aid eligibility rules must be reformed, so that the people currently unable either to access legal aid or to pay for private legal help can exercise their right to justice … The scope of civil legal aid, which has been radically reduced, must be reviewed and extended … The operation of the legal aid system needs reform … Public legal capability must be improved”.

I hope very much that the Government will give serious thought to these constructive recommendations and that they will take the necessary steps to reverse the adverse effects of the 2012 Act.

Selection of the President of Welsh Tribunals Regulations 2017

Lord Wigley Excerpts

Wednesday 29th November 2017 Grand Committee

[Lord Wigley (PC)]

My Lords, I will be very brief as I do not have a tenth of the background that the noble Lord, Lord Thomas, has with regard to legal operations in Wales. But I can from my own knowledge, and by reputation, endorse the comments the noble Lord made about Sir Wyn Williams.

I have one specific question, relating to the Welsh language. As noble Lords will be aware, and as I am sure the Minister has been made well aware, the Welsh language has full official status in Wales now, as it has since the legislation six or seven years ago. From 1967 onwards, it had equal validity, and the 1993 Act gave it equal status with English. That being so, operations of the law in courts and tribunals may take place in Welsh. That is the normal state of affairs in Wales. Proceedings may or may not take place in Welsh, but the choice is there and it is equal handed—as the noble Baroness in the Chair well knows.

In the specifications that have been put down, at Regulation 3(13) there is a list of the characteristics that are “desirable” for the members of the selection panel, including that members should be,

“both men and women … drawn from a range of different racial groups”—

—both fair enough—and have,

“an understanding of the administration of justice in Wales and Welsh devolution arrangements”.

That too is fine. But why is there no paragraph there about having at least some knowledge of the Welsh language, particularly as that will arise from time to time in the work that is being undertaken? I do not object to the instrument in itself, but that should have been covered, unless there is some explanation of which I am not aware.

[Baroness Donaghy (Lab)]

My Lords, I have a very brief, possibly technical question, which is probably because I am not legally qualified or an expert in this matter. Paragraph 3.2 of the Explanatory Memorandum says that,

“the territorial application of this instrument includes Scotland and Northern Ireland”.

Further down, under “Extent and territorial application”, it says:

“The territorial application … is the whole of the United Kingdom”.


I was curious why those two provisions were there and whether it is a standard phrase that appears in all these things. It just seemed a little odd.

[Lord Keen of Elie]

I am obliged to noble Lords and to the noble Baroness for their contributions. I begin with the point raised by the noble Lord, Lord Thomas of Gresford. I entirely agree with his observations about the importance of maintaining the independence of the judiciary and, equally, of defending the judiciary from inappropriate attack. There is an important distinction to be made between what can be regarded as justified criticism and what is tantamount to abuse. We have to underline that distinction if we are properly to defend the judiciary. Of that there can be no doubt.

On the question of whether these powers should be used, I again entirely agree with the noble Lord. This is the alternative mechanism to be employed, but it is contemplated that it will be employed only in circumstances where there is a breakdown in agreement between various parties. It is not something that is contemplated, but because the Act makes provision for this alternative mechanism it is only appropriate that we should have regulations in place so that, if necessary, it can be employed.

On the matter of who will be the president of the Welsh tribunals and his role so far as defence of tribunal members is concerned, remembering that some of those tribunal members are lay members, it is doubly important there is somebody there who can advise and defend their interests. One of the responsibilities of the President of Welsh Tribunals will be not only the training and guidance of members of the tribunals, but consideration of their welfare. That again is important.

On the point raised by the noble Lord, Lord Wigley, on the Welsh language, of course we recognise the importance of the Welsh language in the context of proceedings in Wales, but we have to remember that we are making an appointment to the judiciary of England and Wales. While the proceedings of those tribunals may take place in Welsh as distinct from English, it is not considered appropriate that we should extend the criteria for the appointment of this post to include the Welsh language itself.

[Lord Wigley]

I hear what the noble and learned Lord says. There are numerous bodies that have responsibilities that go beyond the borders of Wales where the status of the Welsh language is recognised. I would not have been surprised if there had been no provision at all for equality here on the basis that other legislation covers it, but if we are writing the equality of men and women and racial equality into this, surely it is not unreasonable to write the language in because some of the work will be undertaken in Wales, if not all of it.

[Lord Keen of Elie]

With respect to the noble Lord’s observations, language is not an equality issue in that context in the same way as the other criteria he alluded to. It is a matter of context. Of course it is important we recognise that the use of English and Welsh have equal demands on any tribunal process in Wales, but that is quite distinct from how you go about the appointment criteria.

[Lord Wigley]

I am sorry; I do not want to labour this unduly. The language question has, to a large extent, been put to rest in Wales over recent decades after there was a lot of strong feeling about it on the basis that there was recognition of language being an equality criterion. I do not know whether it is technically so in the legal framework here but, surely in terms of the spirit of what is being done here, it should be accommodated.

[Lord Keen of Elie]

With respect, there is no issue about whether an individual applicant would be prejudiced whether he spoke only Welsh or only English or both. That is why I say, in this context, it does not arise for the purposes of this schedule. If an applicant came forward who did not speak English but spoke only Welsh, there would be no issue about that applying to the suitability of his appointment.

[Lord Wigley]

May I help the Minister? I do not want to see issues like this boiling up to become another bullet in a language war, as it were. It is the sort of thing that we need a harmonious approach towards. Equality is regarded as being relevant in a language context, as in other contexts, and therefore, if it is necessary to write it into the terms as they are here, I cannot see why they are not broad enough to encapsulate language, but I have made my point.

[Lord Keen of Elie]

If I can make one short addition, it is that these regulations are concerned with the technical operation of judicial appointments and therefore, again, our view is that the question does not arise in this context.

I turn to territorial application. My understanding is that technically, in the context of tribunal appointments, we are looking across the UK and not just at England and Wales, which is why the regulation extends as it does. There are circumstances in which tribunal membership can move between the various jurisdictions.

On the consultation process and diversity in particular, diversity is of course taken extremely seriously. I believe that we have some figures with regard to tribunal membership. I am not sure that I have figures with regard to the chairmanship of tribunals. As regards male and female membership, about 40% of tribunal members are female. In the senior courts, the figures are of course different but, for tribunals, the figure is as high as it is anywhere. As far as BAME in tribunals is concerned, the number is about 10%. Interestingly, perhaps, we even have a figure for those who are of a non-barrister background. I am not quite sure what a non-barrister background amounts to, but 66% of tribunal judges come from a non-barrister background. On whether that is regarded as a good thing or a bad thing, I will not comment. If the noble Lord, Lord Beecham, wishes to have figures about the chairmanship of tribunals, and their gender mix, I can undertake to write to him, if those figures are available. I do not know if they are; I know that the overall figures are there, as I have just mentioned. That, I hope, addresses the points that noble Lords have raised.

Prisoners: Imprisonment for Public Protection Sentences

Lord Wigley Excerpts

Thursday 20th July 2017 Lords Chamber

[Lord Keen of Elie]

With respect to the observations made, I first make this point: the licence period is actually for life, but the licensee can apply to have it limited to 10 years. That is the present position. More pertinently, let me draw this to the attention of the House: over 30% of those released under licence as IPP prisoners are in breach of their licence conditions within 12 months of release. They do not wait 10 years; they do not wait five years. Where there is a problem with regard to release under licence, it emerges very swiftly after release.

[Lord Wigley (PC)]

My Lords, does the Minister accept that in the case of IPP prisoners who are way beyond their tariff and for whom training courses for rehabilitation may not be available, it is little surprise that many of them have their attitude to society aggravated by that experience? Can he give an assurance that every IPP prisoner now has access to the courses necessary for those purposes?

[Lord Keen of Elie]

IPP prisoners have access to the appropriate programmes and matters have improved considerably over the past few years so far as that is concerned, but it is not always necessary that an IPP prisoner should undergo a specific programme to satisfy the Parole Board as to their suitability for release. There are other means by which this can be achieved.

Queen’s Speech

Lord Wigley Excerpts

Wednesday 28th June 2017 Lords Chamber

[Lord Wigley (PC)]

My Lords, I will concentrate on the economic framework for the UK’s withdrawal from the European Union, both in general and with regard to the implications for Wales. Other important matters for Wales, such as the cynical bypassing of the Barnett funding formula to buy the DUP, can perhaps be pursued another day.

Let us first recall the background to the general election. The Prime Minister called it supposedly in order to get a mandate for her approach to the Brexit negotiations. She clearly felt that she did not have a clear mandate from either the previous election manifesto, when her party advocated remaining in the EU, or from the referendum. That certainly gave her a mandate to leave the EU, but no mandate for negotiating any specific alternative relationship with the EU, which should have been central to an exit strategy. The Prime Minister was right to seek a new mandate in these circumstances. She needed democratic endorsement of the principles that she had outlined in her Lancaster House speech and the subsequent White Paper. She needed a mandate because, up to then, quite simply, she did not have one for those or any other proposals.

Sadly for her, she still does not, for it all blew up in her face. The general election has not given her a mandate for her approach to the Brexit negotiations, as the noble Lord, Lord Hunt of Wirral, acknowledged earlier. So we in this Chamber, notwithstanding the Salisbury/Addison convention, have every right to consider each proposal on its merits and not be expected to rubber-stamp what we in all conscience may believe to be a mistaken way forward. Both Houses have the right to consider, approve or reject the package that may eventually be negotiated with our EU partners. That should always have been the case: for if the Parliaments of each of the 27 other member states have the right to reject the final agreement, surely, on any basis of equity, so must we.

If Parliament were to reject such an agreement, it would trigger one of two options before final ratification. There could be a general election—and if the Government lost, it would be a matter for a new Government, depending on the mandate that they had secured, to renegotiate, to quit the EU without agreement, or to withdraw the Article 50 application—as EU partners have indicated is possible. Alternatively, a second referendum could approve ratification, with a refusal to approve leading to a withdrawal of the Article 50 application and the UK remaining in the EU. Knowing that these are options awaiting this battered Government two years down the road, the most sensible way forward now would be, as other noble Lords have suggested, to seek cross-party agreement on the type of Brexit that might command widespread support. That needs all parties to recognise that Brexit is going to happen—something that I find hard to swallow—but that the type of Brexit has to accommodate the economic needs of these islands.

I believe that the key principle is that of full single-market participation. That was proposed by the Welsh White Paper, which got cross-party support in the National Assembly. Its principles have the support of the Scottish Government and of individual politicians in Northern Ireland. This approach would require the EU to accept some controls over open-ended migration, but an acknowledgement by the UK that those coming here specifically to work would have the right to do so. It would deliver the free movement of goods and services without tariffs or technical barriers, and as such it would overcome the difficulties for trade between Ireland and the UK. It could also solve the Gibraltar difficulty.

This would hopefully allow the UK to negotiate at least associate membership of certain EU-based organisations such as Euratom, the Erasmus programme and Europol. We would need to respect EU regulations which provide a level playing field for traded goods. That, presumably, is the Government’s intention, since the repeal Bill does not, of itself, change any EU regulations that currently apply to the UK. The repatriation of powers over matters that have been devolved to Wales and Scotland should automatically be transferred to the devolved Administrations. If there is a case for UK co-ordination, let that come about by agreement, not by central diktat.

The single-market participation model would provide a status that would be analogous, though not identical, to that currently enjoyed by Norway. During the referendum, some advocates of Brexit recommended Norway as a model of the way forward. I noted with interest the points made earlier by the noble and learned Lord, Lord Brown, with regard to EEA status. We will, none the less, be outside the EU. As such, we in Wales, who have benefited so much from EU structural and regional funding, will expect that funding to be fully replaced by the Treasury, as promised at the time of the referendum.

Brexit will dominate this Parliament and might well define its duration as well as its agenda. The election result has told us that the people do not see any one party having a monopoly on wisdom. They instructed us to find a consensus. I appeal to Ministers to seek new levels of co-operation—and in that I echo the noble Lord, Lord Hunt—both between parties at Westminster and also between London, Cardiff, Edinburgh and Belfast, and, I suggest, Dublin. The survival of both this Parliament and this Government depends on such new thinking—as does a sensible outcome to the Brexit crisis.

Scottish Independence Referendum

Lord Wigley Excerpts

Tuesday 14th March 2017 Lords Chamber

[Lord Dunlop]

I have made the position on a Scottish referendum absolutely clear. With regard to Northern Ireland, there are clear mechanisms under the Belfast agreement for the holding of a border poll. My right honourable friend the Northern Ireland Secretary has been very clear that the conditions for such a poll do not exist.

[Lord Wigley (PC)]

My Lords—

[Lord McConnell of Glenscorrodale (Lab)]

The last referendum left a deep legacy in Scotland of division that affected families, friendships and communities. During that referendum, there was regularly a real problem of aggression and, occasionally, violence. Can the Government guarantee that, in any discussions that take place over these next two years about the possibility of another referendum in Scotland, they will keep uppermost in their mind the need to ensure that any debates are conducted properly and that the leadership of those debates behaves in a way that inspires people positively?

Sky and 21st Century Fox: Proposed Merger

Lord Wigley Excerpts

Monday 6th March 2017 Lords Chamber

[Lord Keen of Elie]

I am obliged to my noble friend Lord Deben. Of course, a vibrant free press and a plurality of press sources is a fundamental part of any democratic society. That is why the Enterprise Act provisions exist: to ensure that public interest considerations can be taken into account when looking at media mergers.

[Lord Wigley (PC)]

My Lords, perhaps the noble and learned Lord can help me with the question of potential implications of legislation going through the House. Clearly, every case has to be considered on its merits, but the Secretary of State has to undertake that consideration in the context of the legislative background. Can the fact that legislation is being passed influence the timing by which a decision is taken?

[Lord Keen of Elie]

It does not appear to me on the face of it that proposed legislation can properly impact in terms on the decision-making process which, in the first instance, will involve a decision in the next 10 days and, thereafter, a report from Ofcom, which I believe is normally, under ministerial guidance, to be produced within 40 days if a decision is made. It is very difficult to see how any proposed legislation can impact on that decision-making process.

Prisons: Staff

Lord Wigley Excerpts

Wednesday 22nd February 2017 Lords Chamber

[Lord Keen of Elie]

I am obliged to my noble friend. The state has many duties and obligations, many of which are successfully contracted out to independent contractors, as they are in the case of prisons.

[Lord Wigley (PC)]

Will the Minister tell the House about the position of recruitment for the new prison, HM Prison Berwyn in Wrexham, north east Wales, which is not a private prison? Will he say how recruitment is progressing and to what extent that is being met by transfers from within the system and by recruitment from outside the system?

[Lord Keen of Elie]

As I understand it, recruitment at the new prison is progressing in a satisfactory way and will be done in a staged manner. We will not, of course, suddenly introduce a large number of prisoners into a new prison at one time. I do not understand that there has been any need to recruit from elsewhere within the prison establishment, but I recognise that there are difficulties across the prison establishment, not only with recruitment but with retention of experienced officers. Of course, we are always looking at ways to innovate and deal with that matter. Indeed, the noble Baroness, Lady Walmsley, mentioned the possibility of golden handcuffs—which might be particularly appropriate in the case of prison officers.

Digital Economy Bill

Lord Wigley Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Lord Wigley (PC)]

My Lords, I intervened briefly on these points at Second Reading and I support at least the principle of Amendment 224, although I would like to query some aspects of the detail. However, it was moved very well by the noble Lord, Lord Wood of Anfield, and I welcome the fact that it brings forward an issue related to the listed events regime that most certainly needs our attention at this point; namely, when the situation is changing so rapidly. If we do not adopt a system that is flexible enough, there is no knowing what difficulties we could get into over the coming years. The amendment offers a straightforward solution to a simple problem, which as I understand it is that by the end of this Parliament there is a real possibility that no PSB will meet the qualifying criteria set out in the listed events regime. The solution lies in this amendment which will update those criteria to ensure that the PSBs are still eligible.

It is no secret, notwithstanding our success in the European soccer cup, that the Welsh are still very big rugby fans. Some 1 million of us enjoyed the Wales-England match in 2015 and indeed 1 million of us watched the Welsh beat the Scots last year. No doubt another million people will be watching on Saturday when Wales plays England. The listed events regime, also known as the sporting “crown jewels”, ensures that some of the most high-profile sporting events can be watched by all for free—from rugby finals and highlights of other rugby matches through to football finals and Wimbledon. I have one slight reservation with regard to using 90% of citizens as a criterion. The public broadcasting channel S4C transmits by agreement a number of listed events, but it certainly does not reach 90% of the population. I wish it did, and no doubt we will get there at some point, but not quite yet.

The point is this: should a PSB suddenly become ineligible to bid for the rights to these great sporting events? It is inevitable that millions of people, particularly those on low incomes such as pensioners, will not be able to afford the pay channels. They will be shut out of the shared experiences that mean so much to everyone in all the four nations of these islands. It is an important issue and an amendment along these lines is needed, if not at this stage, then perhaps one could be drafted for the Report stage. Something ought to be forthcoming so that we can safeguard the position of this regime.

[Lord Puttnam (Lab)]

My Lords, I rise to make two observations, one of which makes me feel very old. I worked with the then Prime Minister, Sir Harold Wilson, on looking at the whole issue of free-to-air sporting events in terms of where they penetrated and where they had to be retained. It is interesting to note that last week it was announced that the Six Nations competition is broadcast free to air not only to all the countries involved, but also has the largest live audience for any sport anywhere in the world. So there is no, as it were, collision between the appeal of a sport, the size of the arenas and the number of people attending the events, and the fact that these events are also available on free-to-air television. I sense that sometimes it feels like it might be a trade-off: you have to get the money in or you will not get a sufficient audience. The Six Nations competition is a classic example of something that succeeds at every level.

--- Later in debate ---

[Lord Wigley]

My Lords, I am delighted to add my support to the amendment, and to thank the noble Lord very much for the work he has put into this. As one who has campaigned on disability issues over the years in another place, alongside certain other colleagues who are in the Chamber tonight, I know that it is vital, in line with the social definition of disability, to make sure that handicap is not caused by the failure of those who can control our environment, whether that be the social, the physical or the psychological environment.

We are talking about creating a social environment in which it is possible for people who could depend so much on, and enjoy so much, the benefits of broadcasting to get that full benefit—provided that the necessary adjustments are made. I was for some years a member of the S4C authority, and I am acutely aware of the challenges of meeting the necessary standards. It is not a cheap option—but, as the noble Lord rightly said, technological changes are taking place that make it possible for translation, both between languages and with sign languages and other means of conveying information, to be done almost automatically, at low cost. Undoubtedly this will be much more available in the future. I hope that we will look at this amendment with an eye to that future, and that we will harness all the technology that may be available, so as to prevent—as I am sure we all wish to do, where we can—a disability becoming a handicap.

[Lord Gordon of Strathblane]

My Lords, there is a general air of unanimity and approval for this amendment: I think the noble Lord has backed a winner. Any changes that I have in mind I can discuss with him at some point between now and Report, and I am confident that he would probably agree. Reference has already been made to the difference between the linear services—which are already up to speed and are becoming more and more effective, and cost-effective—and some of the online platforms, which are quite complicated. We might need to insert the word “proportionate” into the amendment, but apart from that, I think that everybody in the Committee endorses what the noble Lord is trying to do.

--- Later in debate ---

[Lord Low of Dalston (CB)]

My Lords, I put my name to this amendment, so I shall speak briefly in support of it. It simply seeks to modernise the prominence regime for our digital age, expanding the existing legislation to cover on-demand services, such as catch- up television, on-demand TV menus and electronic programme guides.

At Second Reading, I shared my own and others’ experience of how frustrating electronic programme guides and user interfaces can be. Navigating them and finding a particular channel can be a particular challenge for people with a sensory impairment. Finding BBC News on electronic programme guides or finding the iPlayer on smart and connected televisions can take a considerable time. Likewise, finding BBC Parliament to allow people to take in your Lordships’ proceedings can be quite difficult—I am assured that people do still attempt to do this.

The Commercial Broadcasters Association has argued that giving public service broadcasting children’s channels extra prominence would create problems for investment in UK children’s content by their members. Moving public service broadcasting channels to higher electronic programme guide positions would mean displacing commercial broadcasting channels, with a detrimental impact on audience share and revenues. This, they say, would ultimately damage investment in children’s content. However, I am advised that greater prominence for public service broadcasters’ channels has a cross-promotional value which ultimately redounds also to the benefit of commercial channels. As I see it, there is no real threat to commercial broadcasters from this amendment.

This is a straightforward amendment which simply seeks to update the letter of the legislation for an increasingly digital age and bring it in line with the spirit in which it was originally conceived. I trust that the Government will see their way to accepting it.

[Lord Wigley]

My Lords, I am delighted to follow the noble Lord, Lord Low, and to support Amendment 226A, relating to public sector broadcasting prominence, about which I spoke during the Second Reading debate. This Bill presents an excellent opportunity to update prominence rules so that they work as they should in our digital world. Given the amenable response from the Minister on earlier amendments, I hope there will be an equally forthcoming response on this one.

The current legislation, from 2003, places a requirement for PSBs to have appropriate prominence to ensure that the flagship PSB channels, such as BBC1 and BBC2, are prominent on electronic programming guides. However, as I raised at Second Reading, the BBC’s children’s channels, referred to earlier, do not enjoy this prominence and sit below 12 commercial children’s channels on some electronic programming guides. As a former member of the S4C Authority, I know from experience that this is a particular issue for both S4C and BBC Alba. S4C is a vital service for hundreds of thousands of people in Wales who speak Welsh and who want to be able to watch programmes in their own language. This content must be easily available on electronic programming guides and—as I will touch on in a moment—on demand. I believe, quite simply, that PSB content must be prominent, whether it is “Y Gwyll”—an excellent Welsh detective drama series known outside Wales as “Hinterland”, which has been sold to almost 200 countries and shows what it is possible to achieve—or great children’s dramas such as “Wizards vs Aliens”, filmed at Roath Lock in Cardiff.

Perhaps a more recent issue, but nevertheless one which must also be tackled, is the need to modernise prominence rules to ensure that they cover on-demand services, such as catch-up TV and connected TV on-demand menus. As I raised at Second Reading, young people in particular are increasingly watching public service content this way and spending less time watching linear TV. At the same time, finding the iPlayer on connected and smart TVs is getting to be a longer and more arduous process, making it harder to watch programmes—including S4C. I am told that there are more than 100,000 requests for S4C programmes on iPlayer every week, showing just how popular this content is.

Both S4C and MG Alba have stated their support for extending prominence to cover on-demand and catch-up TV. They have issued a statement which I should like to quote:

“The extension of the PSB prominence principle to include the PSBs’ on-demand players is of great and growing importance. Its significance is not only for the future of public service media content and how it is consumed by the public, but it is also particularly vital for the availability of Welsh language content as S4C is the only Welsh language PSB available—serving Welsh speakers throughout the UK”.


It also has a considerable following in parts of the UK outside Wales.

Although this is certainly an incredibly technical area of legislation, I see it as another simple problem with a straightforward solution. Had smart TVs and the iPlayer been common when the original legislation was devised, I have no doubt that they would have been included at that stage. We now have an opportunity to do something about this and I hope that the Government will take it.

[Viscount Colville of Culross]

My Lords, I support Amendment 226A. This is an important attempt to future-proof the prominence of PSB channels on electronic programming guides, which is essential if we are going to bring younger audiences to PSB output. As Sharon White, the chief executive of Ofcom, said:

“Public service broadcasting continues to deliver TV that is enjoyed and valued by millions of viewers across the UK.


More people are watching online or on demand, and this presents challenges as well as opportunities for public service broadcasters. They must continue to find new ways of connecting with audiences, and the PSB system needs to evolve to ensure it remains effective in the digital age”.


The prominence of PSB online services has to be safeguarded in the face of what I see as a determined effort by commercial rivals and some manufacturers to downgrade them. These services need to be easily accessible to viewers and, as many other noble Lords have said, they are not covered by the Communications Act.

I draw your Lordships’ attention to two services provided by the BBC online which show how important it is that they should have prominence on any EPG in the future. BBC iPlayer has been an astonishing success, especially for younger viewers and listeners. In June 2016, there were 290 million requests for radio and television programmes to be downloaded—a 9% increase from the previous year. I know, from when I worked on “Horizon”, the BBC science strand, that the overnight ratings would almost double in the following months from people downloading the programme on iPlayer. At the moment, in some cases, it is hard to find this service on the EPGs.

We also have no idea what other on-demand channels will be launched in future by the PSBs. An example of what these might include is the service that is being mooted by the BBC, which it hopes to be able to launch in 18 months’ time, called BBC Ideas. It will bring together the BBC’s output across all platforms—radio, television and online—in arts, culture, science and history. It will place them alongside interesting new ideas from partners in leading arts, science and cultural institutions. The hope is that the audience will have their minds stretched and even thrilled by the interchange of ideas in a place where art meets medical science or where history meets theatrical performance. As things stand, there are many smart TVs and set-top boxes which will not give prominence to services such as these. In some cases, this is because the platform providers are also the content providers. I am sure that in the fast-growing area of smart televisions there will be relationships between television manufacturers and content providers which will favour the latter.

If public money is being spent on PSB online content provision, we have a duty to ensure that, in future, viewers should be able to access this content easily. I urge the Minister to accept this amendment.

Scotland Bill: Fiscal Framework

Lord Wigley Excerpts

Tuesday 23rd February 2016 Lords Chamber

[Lord Dunlop]

Obviously, this is a negotiation between two parties, and I cannot give a guarantee on an outcome to a specific timetable. What I can say is that both Governments understand the pressing parliamentary timetables, both here and in Holyrood, and our desire and commitment to see full scrutiny of this fiscal framework.

[Lord Wigley (PC)]

My Lords—

[Lord McCluskey (CB)]

My Lords—

--- Later in debate ---

[Lord Dunlop]

My Lords, as I said at the outset, we are very conscious that this deal must be fair not only to Scotland but to the other parts of the UK. We will certainly not, because of the pressure of parliamentary time, do a deal at any cost.

[Lord Wigley]

My Lords, with regard to the fairness to all parts of the UK, will the Minister accept that no deal will be regarded as acceptable in Wales unless it does away with the iniquitous Barnett formula, as has been recommended by a committee of this House, and replaces it with a needs-based formula as soon as possible?

[Lord Dunlop]

The noble Lord will be aware of the commitments that were made by all of the UK parties at the time of the last election with regard to the Barnett formula, and I do not have anything to add to that.