Wales Bill

Baroness Randerson Excerpts

Wednesday 15th October 2014 Lords Chamber

[Lord Richard (Lab)]

My Lords, perhaps I may say a brief word. Following the noble Lord, Lord Tyler, I should perhaps declare an interest. First, I am Welsh; secondly, I am a lawyer; and, thirdly, I am not a Methodist minister but my grandfather was, so I suppose that that qualifies me to speak on this amendment. I do so for one basic reason, which is to assure the Government that there is very warm cross-party support in the House for these amendments. When the Minister replies, I hope that we shall not hear, as we have on many occasions on the Bill so far, that this is not the right time to do it. It seems to me to be absolutely the right time to do it. Indeed, if you are looking for a better time to do it, it will be difficult to find one. With elections looming for the Assembly in 2016, it seems to me absolutely right that we should go down this route now.

The desirability of the amendments is perfectly clear. What is proposed is not based upon anything fanciful; it is based upon practical experience of the way that it has worked in Northern Ireland. There is also some evidence in the United States that this type of approach is effective, and I cannot see for the life of me any reason why it should not be introduced in Wales in time for the next election. I hope that the Minister is not going to get up and say merely that it is not the right time to do it; I believe that the House thinks that it is.

[The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)]

My Lords, there must be, and clearly is, concern across the Chamber about the low engagement of young people in particular with our democracy and with civic life. However, I have to make the point to noble Lords that registration in itself does not mean that young people vote. Experience in Northern Ireland—and, as my noble friend Lord Lexden made clear, I am very familiar with that experience—has shown that voting does not necessarily follow from registration. Therefore, I think that we have to work very hard at what is a complex issue which goes beyond simply having to ensure, quite rightly, that more people vote.

[Lord Richard]

Before the noble Baroness leaves that point, it is perfectly true that if you register, you do not necessarily vote, but it is also true that if you do not register, you cannot vote. With great respect, we are talking here about the qualifications for voting.

--- Later in debate ---

[Baroness Randerson]

I think that the noble Lord misunderstood what I was saying, which was that this is a very complex problem that goes well beyond these amendments, and is one of which the Government are very well aware.

My noble friend’s Amendment 19 would impose a duty on the Secretary of State to make regulations which require government bodies to provide registration officers with personal data. Registration officers could then use this information to add people to the electoral register or make contact with them in order to obtain the necessary information. Amendment 61 is consequential on Amendment 19, and Amendment 20 inserts two new subsections into Section 9A of the Representation of the People Act 1983, in order to place duties on registration officers in Wales to ensure that they focus their registration efforts on specified groups, particularly young people, disabled people and people from certain ethnic groups.

--- Later in debate ---

[Lord Tyler]

As my noble friend will know, I have been following the DVLA issue through the IER process for a number of years and I welcome what she has just said. But even more valuable than all these pilot studies would be to look very carefully indeed at the very recent experience in Scotland. The levels of registration, particularly among young people, exceeded anything we have seen anywhere else in the United Kingdom. One of the differences between Scotland and Northern Ireland on the one hand and England and Wales on the other is that there is greater direction in Scotland to the local electoral registration process to make sure that there is an equal quality of service at the lower level.

As I mentioned quickly in my previous remarks, I encourage the Minister and her colleagues to look very carefully indeed at the recent experience in Scotland. It is practical experience—it is not a pilot in a particular area. As the noble Lord, Lord Richard, said earlier, it gives added impetus to the suggestion that now is the right time to take a forward step in this area.

[Baroness Randerson]

My noble friend makes a good point. Of course, the Electoral Commission will be doing a report on the referendum in Scotland that will cover those issues.

I recognise that there is considerable sympathy in this Chamber and beyond for the aims of Amendment 20. I assure noble Lords that I share them. However, the Government are already taking steps to increase the engagement and registration levels of traditionally underregistered groups. Five national organisations and every registration officer in Wales, as in England and Scotland, have shared £4.2 million of funding aimed at maximising the rate of voter registration as part of the transition to IER. I draw my noble friend’s attention to the fact that every electoral registration officer in Wales has received that funding—not just one. Cardiff received almost £25,000 in order to engage more with underregistered groups and Ceredigion received £4,290 in order to take that work on. The amounts given were based on a formula that related to the level of underregistration in every local authority throughout Great Britain and the number of 16 to 18 year-olds within that area specifically so that EROs could go into schools and do the engagement work that is encompassed in my noble friend’s amendment.

Perhaps I may also respond to his comment that it needs only a tick in a box—would that that were so. Unfortunately, there is a complex legal basis for voting. The form has to be set out in a particular way and it has to be of some considerable length. The tick-box would work in terms of expressing an interest in voting, but, as the noble Lord, Lord Howarth, pointed out, it means that you have to follow up on the person. It is to be hoped that if they have ticked a box, they would respond to a letter, but people often tick boxes and then do not respond to a letter, so they could well require door-to-door canvassing. Ticking a box sounds good and it works up to a point, but in itself it does not actually get anyone on to the register. Northern Ireland is indeed a case of best practice in our country. That effort was based on going into schools and getting young people to fill in paper forms. The crucial difference between Northern Ireland and the rest of the UK is that Northern Ireland has a paper-based system and we now have online electoral registration.

Perhaps I may return to the amendment. I know that the Electoral Commission sent a briefing to noble Lords setting out its view that while it strongly supports the principle of EROs working with local education establishments to encourage registration, there is no need for additional legislation to provide for this. I should point out that there is no obligation in Northern Ireland on the electoral officer to engage with schools and colleges. That work was done without any legal obligation or basis. However, in the light of concerns expressed by noble Lords and indeed in the letter referred to from the four party leaders in the Assembly, I will be happy to look at this issue again. However, I should say that registration officers already can and do visit schools, colleges and other locations in Wales in order to target under-registered groups and fantastic work is being done up and down the country by civil society organisations to find new ways of reaching a range of underregistered groups and encouraging them to register to vote. The Government are proud to fund this type of activity and I congratulate the wide range of organisations engaged in this work.

I want to make a final point about Northern Ireland in response to the comments made about the low levels of registration among young people there. Yes, the figures were woefully low in part because they had not been doing the annual canvass. That has proved to be the crucial thing. The annual canvass must be maintained alongside all the additional work. However, given that registration had fallen to very low levels in Northern Ireland, considerable remedial work needed to be done.

The noble Lord, Lord Elis-Thomas, referred to the National Assembly. The National Assembly has an excellent record in terms of its outreach work with young people. I think that at one point the Assembly was the major tourist attraction in Wales. A large number of young people come into the Assembly to learn about politics and to hear excellent debates. That is the kind of thing I was referring to in the first sentence of my response. It is about more than registration—you have to engage young people and explain why it is relevant to them.

I have already referred briefly to online registration. It brings voter registration into the 21st century and it is particularly attractive to young people because it is easier, simpler and faster. More than 410,000 applications have been made online by people aged between 16 and 24 since 1 July this year. More than 90% of the users of the system have been either satisfied or very satisfied, so it is obviously an easy system to use. The Electoral Commission has further noted that a statutory change specifically relating to electoral registration officers in Wales would be complex to manage at a time when they are dealing with things throughout the UK on IER. However, in the light of the concerns and the consensus here today, I certainly undertake that, before Report, I will discuss with the Minister for the Constitution all the issues that have been raised. I will also discuss with the Electoral Commission the issues that it put forward in its circular to all of us saying that these amendments are not necessary.

[Lord Elis-Thomas]

In the spirit in which the Minister has spoken, and in the spirit already referred to by colleagues of the all-party consensus emerging very strongly in the National Assembly—I draw the attention of Members of this House to the Motion that has today appeared on the Order Paper signed by the four party leaders, which will be debated in the Assembly on Tuesday—would it be possible for her to give an assurance that she will speak to the First Minister, the appropriate representatives, the Presiding Officer and so on in the National Assembly on this matter?

[Baroness Randerson]

The noble Lord has anticipated my next sentence. In the light of the letter that has been received, I will, of course, liaise with Members of the National Assembly, because it is very important to ensure that their views are taken into account. In the light of these points, I urge my noble friend to withdraw the amendment.

[Lord Roberts of Llandudno]

I am most grateful to my noble friend for her full reply. I understand her reluctance, but I do not accept it and I hope that on Report we will have a very different statement from her. Perhaps I may tackle one or two matters. First, over the next four or five years, we are going to face a referendum on whether we remain in Europe. If that referendum takes place on the register as it is, then half our young people will not be eligible to take part. There will be a general election next May, and unless we move immediately—there is no time to lose—our young people will not have a voice in that election. There is no time to waste. I know that there are “t”s to cross and “i”s to dot, but there is certainly no time for anybody—including the Electoral Commission—just to hope that this will go away. It will not go away.

Secondly—this is the most important point of all—what is the relationship between the Houses of Parliament here in London and the Assembly in Cardiff? Yesterday I asked the Electoral Commission itself who has the last word: is it the civil servants or the Electoral Commission or is it the parliamentarians representing us at every level? The answer, of course, is that it is the parliamentarians. I say to my good friend here that something must be done immediately to come to an understanding. If the Assembly in Cardiff has voted 41 to a handful in favour of this, if all four leaders of the parties there have voted and written in favour of this, then unless we do something, we could well create resentment in Wales that will cause us to have another referendum, this time not in Scotland but in Wales itself. Therefore, I urge the Minister—I know she will; I know her well enough—to move in immediately and perhaps by Report give us a glimmer of light, if not a big flashlight, on this matter. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Rowlands (Lab)]

My Lords, I wonder if I may briefly intervene before the Minister moves her amendments. I have a very modest amendment, Amendment 31, which has been included in this list. It addresses a completely separate point from the whole swathe of government amendments and I would suggest that we take Amendment 31 separately. I hope that that would be possible.

[Baroness Randerson]

I understand the noble Lord’s point but I am intending to speak to my amendments and then give way to the noble Lord to make his points. I will then respond separately. Although it is in the same group, there will be plenty of time for us to give separate attention to the noble Lord’s amendment.

[Lord Rowlands]

I appreciate the Minister’s offer but it is a very different point altogether. I think that it would disrupt the flow of the debate on the Government’s amendments if Amendment 31 was included and involved in it.

[Baroness Randerson]

Following the points that the noble Lord has made, we will uncouple his amendment and have a separate debate at that point.

Amendment 24

Moved by

[Baroness Randerson]

24: Clause 8, page 9, line 5, leave out “a rate” and insert “rates”

[Baroness Randerson]

My Lords, I am delighted to be introducing this series of amendments. Concerns were raised across the Chamber at the previous stage of the Bill. The Government have listened and, as a result, have tabled the amendments that we have before us. These amendments seek to remove the lock-step from the income tax provision in Clauses 8 and 9, which has been subject to a great deal of debate during the passage of the Bill thus far.

The Bill would enable the National Assembly for Wales to set a single rate of income tax that would be applied to all three income tax bands if income tax devolution were approved in a referendum. These amendments would allow the Assembly to set separate Welsh rates for each band instead, as the Silk commission recommended. I said at Second Reading in July that the Government were prepared to revisit these arrangements, and that is what we have done. The lock-step has been debated at some length in both Houses throughout the passage of this Bill and we have listened to and reflected on the arguments that have been raised. Through these amendments, all three income tax rates would still be reduced by 10p in Wales, with the Assembly taking control of nearly half of all income tax paid as a result.

It would then be for the Assembly to set a separate Welsh rate for each band which would be added to the reduced UK rates. I believe that these amendments remove a significant barrier to devolving an element of income tax to Wales. Subject to their inclusion in the Bill, my hope is that the Welsh Government will now feel that they can call a referendum on income tax devolution as soon as possible after the Bill receives Royal Assent.

As a result of this Bill and the full devolution of business rates which we will implement next April, the Welsh Assembly will become responsible for raising around a quarter of the money it spends. By removing the lock-step, the Welsh Government now have no reason to delay a referendum. It is high time that the Assembly is given power and responsibility for raising significant amounts of its own revenue and thereby becomes more accountable to the people of Wales.

These amendments align the income tax provisions in the Bill with the Silk recommendations and show that the Government are prepared to listen to the arguments of those who disagree with us. The amendments show that we are prepared to be bold in progressing devolution in Wales. I therefore urge noble Lords to support them. I beg to move.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, it must be right as a matter of equity that Wales should have the same powers to alter tax rates as does Scotland, but my noble friend is right to remind the House that the exercise of those powers could be a poisoned chalice. In the extremely unfortunate situation in which we find ourselves, in which the Government are pledged to retain the Barnett formula, it is very hard to foresee circumstances in which it would be in the interests of Wales to use such further devolved powers of taxation. So long as Wales gets an unjust and inadequate funding settlement from the Exchequer, not based on needs but based on population, Wales will be at a loss, and it would be very dangerous for the Government of Wales to accept that it is their job to make up the shortfall by raising tax rates in Wales. I think that that would lead to extremely unhappy long-term consequences for the economy and society of Wales.

So, although I support my noble friend in her amendment to create powers that would be comparable to the powers in Scotland, we should keep our eyes wide open as to the realities of this. I cannot foresee that, in the absence of reform of Barnett, there is going to be any possibility of a stable and acceptable new constitutional settlement for the United Kingdom. However, these are larger issues that we shall debate another day.

My noble friend is also right to remind the House that the nature of the border between Wales and England also imposes a very powerful, practical restraint on the scope for differentiating tax rates. If people who are living in Wales near the border feel themselves to be so penalised, so disadvantaged by differential tax rates in Wales as compared with England, a number of them will move their residencies across the border and that would be very detrimental to Wales. As far as I can foresee, the practicalities are pretty unattractive compared with the notional possibilities that we are discussing in this legislation.

[Baroness Randerson]

Noble Lords will have noticed that the pleasant agreement and consensus across the Chamber has disappeared in the last group of amendments. I thank the noble Lord, Lord Wigley, for his speech, bearing in mind that the transfer of powers proposed in his amendments would mean Wales becoming entirely separate in taxation terms. He will not be surprised to hear me say that I am not going to accept these amendments.

However, I wish to spend some time on the speech by the noble Baroness, Lady Morgan, and to express some considerable surprise. I took the trouble to reread what she said at Second Reading. The Labour Party’s views appear—to use a colloquial phrase—to be all over the place because of the considerable gap between what the noble Baroness said at Second Reading, what she is saying now, what the First Minister of Wales has said and what the honourable Owen Smith said in the other place. Name a person, name a debate and you can have a slightly different view. In fact, there is a huge gap between one debate and another.

The principle of accountability lies behind the proposal in the Bill to devolve an element of income tax to the Welsh Assembly. The noble Baroness asked me what the reason was for the Government changing their mind on the lock-step. The reason was quite simple. People such as the First Minister said that this power was no use, therefore they could not use it. They said that the lock-step was not a good idea. We listened to people and it seems that, across parties and across the country, there has been huge support for the removal of the lock-step except now, suddenly, in the Labour Party, which had condemned the lock-step as being fatally flawed. It therefore surprises me that, when the lock-step was proposed, the Labour Party did not make clear that it was totally opposed to the devolution of income tax, rather than simply opposed to the lock-step.

I want to take up a few issues that the noble Baroness, Lady Morgan, raised. She referred to the serious erosion of local accountability. That may be the case in Wales and, if so, it is down to the Welsh Government, because they have devolved responsibility for local government. However, looking at the pattern in England, there has been a big increase in the amount of local power and local discretion for local authorities and councils in England. I agree with the noble Baroness that there has been a contrast between the two countries. In Wales, there has been a process of centralisation; in England, there has been a process of decentralisation.

--- Later in debate ---

[Lord Howarth of Newport]

I am grateful to the Minister but does she recognise that, in the context of an unfair funding formula which simply fails to address the reality of the needs of Wales, Wales has less scope to cut taxes than other parts of the United Kingdom?

[Baroness Randerson]

I recognise that there is an issue with the funding formula but I think it is also possible to overestimate the level of unfairness. I believe that this week the honourable Owen Smith suggested that the gap in funding for Wales was £150 million per annum. That is a significant amount of money but in a budget of more than £15 billion it would not offer a total revolution for Wales. Nevertheless, I recognise that it is an issue that needs to be looked at in the context of other devolution discussions at the moment.

I turn to the questions asked by the noble Baroness. An impact assessment of the costs was published alongside the Wales Bill. It indicated that the estimated cost of setting up the income tax changes in Scotland was £40 million to £45 million. An updated estimate is now available of £35 million to £40 million, which is rather less than we initially thought. There has also been an updated impact assessment. The estimate of the annual running costs is £4.2 million, and that will be updated in due course.

The noble Baroness also asked whether we would agree to a Treasury impact assessment of the taxes on either side of the border. The key thing is that there are provisions in the Bill on the transparency of the whole thing and of the discussions between the parties. A joint Treasury committee has been established between the Welsh Government and the UK Government, and it is already in discussions. Welsh Ministers and UK Ministers are discussing these matters. That is the kind of detail that would flow from those discussions.

I turn now to the Labour amendment. Forgive me, but I find it quite difficult to understand the intellectual inconsistency of arguing against the removal of the lock-step, while at the same time arguing for an increase in the amount of devolved income tax from 10p to 15p. I remind noble Lords that the First Minister said on several occasions that the lock-step was an inappropriate method of dealing with income tax devolution, and that this was unusable and unworkable. He did not say that he was opposed to income tax devolution. Now, apparently, it is dangerous as a mechanism to devolve income tax and, at the same time, it is also all right to devolve 15p but not 10p.

I believe that noble Lords will be surprised that the Labour Party is having so much difficulty in coming to a firm position on this. The noble Lord, Lord Howarth, exposed one interesting piece of inside information with his use of the phrase “poisoned chalice”. He said that the devolution of income tax could be a poisoned chalice for the Labour Party in Wales. It is called “government”. I leave you with that thought.

Amendment 24 agreed.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, I am most grateful to the noble Lord, Lord Rowlands, for drawing my attention to these new sections, in particular new Sections 116G and 116H. I spend around 140 days of the year here, about 60 days in my family home in Scotland and the rest of the time in Wales. On these formulae, I am not liable to pay income tax in Wales, certainly not in Scotland, and possibly not in England, if we have similar provisions. Thank you very much. Devolve away.

[Baroness Randerson]

My Lords, I understand that this new chapter is not the easiest read. In fact, I found it quite good for getting to sleep on one occasion. However, it is important to recognise that this is a complex issue and has a direct relationship with things such as tax law, and when you get an indirect relationship with tax law. When you get into these things, the more you think about it, the more exceptions that occur to you to be considered.

The clauses in this Bill are very closely based on those in the Scotland Act and have been subject to the whole scrutiny process in that respect. I suggest that noble Lords think about how to deal with somebody who is a lorry driver or a shift worker. Every time you set a test, you can think of exceptions. Before the noble Lord, Lord Rowlands, thinks that being a Scottish parliamentarian and a Welsh parliamentarian in the same year is unusual, may I remind him that I call this the “Keith Raffan clause”? Keith Raffan was an MP in north Wales and then almost immediately an MSP in Scotland. He moved from Wales to Scotland.

[Lord Anderson of Swansea (Lab)]

Did he hold both positions in the same tax year?

[Baroness Randerson]

We are talking about the situation in the past. Keith Raffan moved from Wales to Scotland; he also moved from the Conservative Party to the Liberal Democrats. The whole thing is a relevant example: the thing you would imagine would never happen has already happened.

[Lord Rowlands]

I am sorry; I do not know Mr Raffan’s parliamentary history? Was Mr Raffan both a European Member and a Member of the Commons in the same tax year?

[Baroness Randerson]

He was an MP and an MSP in the same tax year. I am pretty certain I am right, but the principle is that he moved from Wales to Scotland, straight from one job to the other.

[Lord Richard]

Is it not absurd that we should be legislating in this way for one person? Is it not absolutely ludicrous? Has there been a flow of parliamentarians across the borders in this way, or is it just this one individual? The Minister, with great respect, should take these measures back and look at them again and, if she wants to, simplify them and bring them back.

[Baroness Randerson]

This has been through the whole scrutiny process in relation to Scotland. If noble Lords wish to blame someone, I suggest they blame the Scots. They sat in here and in the other place and thought up a lot of complexities that had to be answered in the case of both this Bill and the Scotland Act. Just for the sake of clarification—

[Lord Anderson of Swansea]

What is the answer to the good point made by the noble Lord, Lord Wigley, that this is appropriate for an order, rather than for the face of the Bill?

[Baroness Randerson]

That is a perfectly valid point, but we have it here in the Bill. I am also very conscious of the fact that noble Lords constantly complain that there is not enough in the Bill and that there should be more on its face and less in orders for the sake of transparency. On this occasion, you have total transparency. There is also, of course, the argument that we are talking about tax rules for individuals. In fact, if you have more on the face of the Bill, that could be said to be easier for individual taxpayers to follow.

May I finally make it absolutely clear to noble Lords that the noble Lord’s amendment would, in fact, mean taking away the simple test—which is the test, if you have only one home, of where your closest connection is—and replacing it with everyone counting days? Counting days is one way of dealing with it but not the simplest one. For most people, the simple thing is to ask, “Where is your home?” and, “Where do you spend most of your time?”. Taking away that option and leaving everyone counting days would possibly make life much more complex.

The noble Lord, Lord Richard, asked why not just say “resident in Wales”? I think noble Lords are well aware that the concept of where your residence is has caused a number of people a lot of trouble over the years. It is really important that we have clarity and absolute rules. There should be no doubt in people’s minds as to which rules they need apply.

[Lord Richard]

With the greatest respect to the noble Baroness, residence is a very well known concept in tax law. If you talk to taxpayers, particularly in areas such as the City of London, they know what their residence qualification is. They know that they have to establish a certain residence and that it is on the basis of where that residence is that they pay their tax. That is a much simpler concept than this.

[Baroness Randerson]

These rules flesh out what the term “residence” means in tax rules in relation to Wales. I hope noble Lords will accept that although the rules may not make pretty reading, they are workmanlike and, despite their complexity, they are clear, unambiguous and easy for people to follow.

[Lord Rowlands]

I find it difficult to believe that they are very easy to follow. I also do not believe that there is clarity here: there is a lot of confusion. I am delighted that the noble Lord, Lord Thomas, will become completely tax-free as a result of the other provisions in the Bill. What we are trying to show and expose is that we are getting fed up with the way in which Bills are drafted in this kind of way. The constant cross-referencing makes it almost impossible for a Member of Parliament or Member of this House to follow the Bill as closely as he or she would want. This amendment was tabled to cause this debate and I have no intention of forcing it to a vote because, of course, in the process I would take out other parts of the Bill that I would support. I hope that, if nothing else, when Ministers go away and talk to parliamentary draftsmen, they will say that there is great and bitter agitation against this type of drafting and legislation. If nothing else, this debate would then have served a purpose. I beg leave to withdraw my amendment.

--- Later in debate ---

Moved by

[Baroness Randerson]

32: Clause 8, page 12, line 1, leave out first “the” and insert “a”

--- Later in debate ---

Moved by

[Baroness Randerson]

39: Clause 9, page 13, line 36, at end insert “for the purpose of calculating the Welsh basic rate, the Welsh higher rate or the Welsh additional rate (as the case may be)”

--- Later in debate ---

I think the Minister deliberately misunderstood part of my last intervention. Our interest in the Labour Party is in doing what is the best for Wales. We are not necessarily opposed to lock-step; we simply say that we have to proceed with extreme caution. We would abstain, if pushed, as we did in the Commons. We are simply saying be careful, this is a slippery slope and you have to do this in the context of the broader UK discussion. The second lock we would want to look at is to allow for a system that would ensure that there would be no change in terms of income tax powers unless and until we could be assured that Wales would not be worse off. We want to see a period of assignment to carry out an assessment to see what the real costs and benefits are to Wales of the introduction of income tax. The third lock, of course, is the one to which my noble friend referred just now—a fair funding mechanism for Wales. Until everybody understands that Wales is being short-changed by Barnett and something is done about it, it would be a very unpopular move in Wales in the long term—we would be locked into a system where we were permanently disadvantaged. I am sure that we will come on to this later in the debate.

[Baroness Randerson]

I thank noble Lords for their contributions to this debate. The Government have been consistently clear that the decision on whether to trigger a referendum on the devolution of income tax is a matter for the Assembly and the Welsh Government. I say that in response to the noble Lord, Lord Elystan-Morgan. Clause 13 empowers the Assembly to trigger a referendum to ask the electorate in Wales whether they want some of their income tax to be devolved. The Government agree with the Silk commission that the 2011 referendum on full lawmaking powers for the Assembly provides the best model for conducting such a referendum. Clause 13 replicates for the most part Section 104 of the Government of Wales Act. The clause provides for the Welsh Government to move a resolution in the Assembly to trigger a referendum. If the Assembly passes the resolution by a two-thirds majority, the First Minister must ensure that notice of the resolution is given in writing to the Secretary of State. The Secretary of State or the Lord President must lay a draft order before Parliament within 180 days. I refer the noble Lords, Lord Wigley and Lord Elis-Thomas, to Clause 13(3)(a) and (b) on page 18 of the Bill:

“the Secretary of State or the Lord President of the Council must lay a draft of a statutory instrument … the Secretary of State must give notice in writing to the First Minister of the refusal to lay a draft”.

The first thing I asked when I read the Bill was, “In what circumstances could the Secretary of State refuse?”. I was advised that the only sorts of grounds on which a Secretary of State could refuse would be where there was genuine doubt about the procedures of the Assembly that led to the two-thirds majority being obtained or whether it had been obtained.

[Lord Wigley]

Where in the Bill does it say that those are the only circumstances in which the Secretary of State can refuse to do so? Why must it take up to 180 days for such a decision to be taken?

[Baroness Randerson]

The Bill does not give those reasons. The legal advice I was given related to tried-and-tested constitutional principles. Dare I say it, the noble Lord is now asking for more to go into the Bill and in the previous debate he was asking for it to be reduced.

[Lord Elystan-Morgan]

My Lords—

[Baroness Randerson]

I will just answer the noble Lord’s intervention and then I will certainly give way.

The noble Lord, Lord Wigley, asked, both in his speech and just now, about the 180 days. I remind noble Lords that the previous referendum in 2011 took 246 days, albeit with the intervention of a general election—but we have them quite regularly. It could be that another referendum would be interrupted in such a way. I am sure that the noble Lord, Lord Elis-Thomas, recalls that there was a tremendous scramble to make that timetable of 246 days. Our 180 days is therefore an amendment to take account of experience. I reassure the noble Lord that it is a limit, not a target.

[Lord Elystan-Morgan]

With great respect, I wholeheartedly agree with the noble Baroness that that is the only circumstance in which there could be any dubiety at all. My question is not irrelevant: who decides? Is it the Secretary of State who decides whether there has been a valid two-thirds majority, or it is the courts?

[Baroness Randerson]

That would depend on the circumstances, would it not? Someone may wish to test such a matter before the courts; I speculate here, but there might be objections lodged by certain Assembly Members. I emphasise to noble Lords that the driving seat is occupied by the Assembly in this process.

[Lord Elis-Thomas]

I will not pursue this matter, but I tell the Minister that if she has been given legal advice that procedures of the Assembly are in doubt, she must know that those matters are for the Presiding Officer and the Assembly itself, and must be so.

[Baroness Randerson]

That is exactly the view of the Government. The Assembly, as I have just said, is in the driving seat in this process.

I resume my response to the initial speeches in this debate. I point out that by opposing the question that the clause should stand part of the Bill and through Amendments 41 to 45, 47 and 48, noble Lords are of course seeking to remove important parts of a tried-and-tested mechanism which was recommended by the Silk commission. Silk is the basis of consensus. The noble Lord, Lord Elis-Thomas, referred to the importance of agreement, and so on, and the characterisation of consensus as something that the Assembly has sought on many occasions. Silk is the basis of the consensus behind the Bill. I ask noble Lords to recognise that we sometimes need a bit of choreography in order to maintain unity. That means that there has to be agreement to work in unison, although it may not always be exactly what we would prefer at any one time.

Amendments 41 to 45 would remove the need for Parliament to approve the draft order that sets out how a referendum is to be conducted, and the right of the Secretary of State to consult before such an order is laid. I repeat that all this is based on the experience of the 2011 referendum for lawmaking powers. It is the mechanism that has been agreed.

Through Amendments 47 and 48, noble Lords are seeking to provide a mechanism by which the Assembly could resolve to commence income tax provisions in this Bill without a referendum. I realise that there are those who do not believe that a referendum is necessary, but I recognise entirely the arguments put forward by the noble Baroness, Lady Morgan, that the original referendum did not include a tax question. It is therefore important that people are engaged in this debate and given the opportunity to make their voice heard. It is a fundamental, far-reaching issue and therefore the people of Wales need to be consulted.

The noble Baroness, Lady Morgan, was concerned that I had deliberately misunderstood her, which I find a distressing accusation. I invite the noble Baroness to reread what she said earlier in the debate; she might then understand why it is possible to have misunderstood her.

I therefore ask the noble Lord, Lord Wigley, to withdraw the amendment, and not to oppose the question that Clause 13 stand part of the Bill.

[Lord Wigley]

My Lords, I am grateful to every noble Lord who has taken part in this debate and to the Minister for her response. There has been clarification on some points, such as the 180 days and so on, which is useful.

There is, however, a central point here: whether or not this House trusts the National Assembly for Wales, the elected parliament of Wales, to take decisions such as this. I have every faith in its Members that, if there is doubt as to whether they can carry the people of Wales with them in their decision within the Assembly, they know that they may need to revert to a referendum. Of course, they have as much intelligence to provide that as we do in this House.