Welsh Assembly Elections 2016

Baroness Morgan of Ely Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Baroness Morgan of Ely (Lab)]

My Lords, I, too, welcome the Minister to his post. I do not think that anybody in Wales—certainly not in the Conservative Party—understands the journey of devolution better than he does. There were those heady days when we both worked together on the advisory group, setting up the standing orders of the Welsh Assembly. It has been very interesting to watch the development of the Minister to where he sits today. I should perhaps introduce my remarks to this debate by declaring an interest, because today I have announced my intentions to the Labour Party: I shall be seeking selection and election as an Assembly Member in next year’s election. I know that I can rely on many Members of this House to give me some great tips on what to expect in that chamber, if I am lucky enough to be selected and then elected. Your Lordships can rest assured now that any changes to the Assembly’s powers and responsibilities will be watched by me like a hawk—as if I was not doing that before.

This debate follows a similar debate that we held in the Lords last week, where I acknowledged that there was an increasingly positive attitude towards devolution in Wales but that we were far from having the kind of appetite for devolution demonstrated by the Smith commission. So on devolution, for Wales do not read Scotland. Wales has to establish its own path to devolution and the gradualist approach to it is one with which the Labour Party wholeheartedly agrees. This is not a never- ending process; there are limits to how far we are prepared to go in the devolution of power, as a party absolutely committed to the future of the union.

Many aspects of the first Wales Bill, which reflected to a large extent the views of the Silk commission, on which the Minister served, will be implemented in time for the Welsh Assembly elections next year. While there are experts in universities and political institutions—and, dare I say it, this House—who are fascinated by issues of constitutional settlement, it is worth remembering that the vast majority of the public who will cast their votes in next year’s elections will be determining their choice on the basis of who best stands up for Welsh public services and who can best deliver jobs and growth. It is of course the Labour Party. I do not know whether I am allowed to say that in the Lords, but there we have it. The constitutional debates remind me of some sailors I see when I visit the lovely harbours around Wales. There are always people fixing or painting their boats, or repairing their sails. At some point, it would be nice to see them actually sail somewhere; well, the Welsh Government are going somewhere. They have, through intervening and not letting the markets determine everything, created 17,000 job opportunities through the Jobs Growth Wales fund and 500 police support officers to mitigate against police cuts. They have funded free breakfasts for schools, making sure that children from the poorest homes are able to concentrate in their classes. But as this House excels in constitutional debates, I shall return to that theme now.

Following the passing of the Act, for the first time the Welsh Government will have the power to raise their own taxes. The consultation on the collection and management of stamp duty and landfill tax is well under way. In addition, an immense amount of work has already been undertaken to establish a Welsh revenue authority. Funding is of course an issue that still needs to be addressed. I do not buy into this idea that we are at the right place on funding at the moment. However, today I want to focus my comments on other aspects of devolution and to look at Silk 2, which made 61 recommendations. Many of these have been taken up by the St David’s Day agreement that was the precursor to the Wales Bill. Perhaps the Minister could let us know what we can expect on the timing, as he has suggested. Is it a full Bill or a draft Bill and what is the timetable, so that I might know whether I will be here or not?

One of the key issues that was recommended, and which thankfully has been taken up by the St David’s Day agreement, was the proposal to move towards the reserve power of government. The pros and cons of this system have been well rehearsed in this Chamber but I return to the theme that I alluded to in the debate last week since we now have the right Minister in place, who might understand the issues better. It is about whether in the process of drawing up the reserved powers list, the Minister can give a categorical assurance that there will be no grab for power by Whitehall of powers that have already been devolved.

I gave the example last week of the fact that in Annex B of the St David’s Day agreement, civil law and procedure is a subject listed as a reserved matter but the Human Transplantation (Wales) Act is legislation which has amended civil law. Will civil law be reserved or devolved? If it is reserved, as suggested in Annex B, will there be an attempt to pull back powers such as those in the Human Transplantation (Wales) Act? It would be good to hear what the thinking is here. I will give another example. Aspects of equality legislation have already been devolved but others have not. Will we therefore see all aspects of equality law being devolved or will they all be reserved? I have to warn that any attempt to haul back powers to the centre will be fiercely resisted.

A further concern is the implication of the Supreme Court’s decision against the introduction of an asbestos Bill for Wales and how that reflects judicial attitudes towards devolution. I am aware that I could get into some hot water, with my learned friend on the Cross Benches, the noble Lord, Lord Elystan-Morgan, being such an expert. I am so pleased to see him back in his place. However, it is worth considering the implications of the judgment for the devolved settlement in Wales and the constitution of the UK as a whole. The asbestos Bill was an attempt by the Welsh Government to recover medical costs from past employers, and their insurers, whose staff or members had contracted asbestosis in order to compensate the NHS in Wales for treatment. This was knocked down by the Supreme Court, by a judgment of three to two. The court decided that the Bill was outside the subject matter competence of the Government of Wales Act.

On the issue of competence, the question was whether the Bill related to organisation and funding of the National Health Service, which is one of the subjects in Schedule 7G. The noble and learned Lord, Lord Mance, and the majority of the Supreme Court interpreted the meaning of the subject under consideration by reference to the other subjects under the same heading. If the same approach were adopted in respect of other headings, it could result in a substantial clawing back of the Assembly’s competence. It is worth contrasting this view with the minority view expressed by the noble and learned Lord, Lord Thomas. In his view, the Bill had two objectives. The first was to,

“withdraw the requirement that the Welsh NHS continue the delivery of the benefit to employers and their insurers of not having to meet the cost of medical treatment and care of an employee where the employers are responsible for causing asbestos diseases as tortfeasors”.

I am sure my learned friend could tell us what that means, but I looked it up and it means:

“A civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act”.

Secondly, it created a mechanism to collect the costs.

The noble and learned Lord, Lord Thomas, argued that these were clearly within the subject matter competence. The more worrying aspect for the Assembly of the judgment of the noble and learned Lord, Lord Mance, is that it appears to suggest that it is legitimate for the court to investigate the extent to which Assembly legislation is in the public interest, and also to investigate the sufficiency of the consideration given to legislation by the Assembly before it is passed. This approach does not hold true for England. The noble and learned Lord, Lord Thomas, powerfully suggested that each democratically elected body must be entitled to form its own judgment about public interest and social justice under the structure of devolution, and there is no logical justification for treating the views of one such body differently from others.

The asbestos case had implications of a commercial nature—who knows whether this might have had a bearing on the judgment? Will the Minister respond to that judgment and tell the House whether it will be a consideration when formulating the Wales Bill that we can expect in this place?