Wales Bill

Baroness Randerson Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Tuesday 15th November 2016 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, the noble Lord will know that the financial arrangements are those of the Barnett block, which has existed for some time. That is currently subject to a floor and being considered in terms of fiscal arrangements. Obviously, it would not be an integral part of any devolved system to allow a devolved Government to bring forward laws and then say that the system should be funded by the centre; it has to be funded by the package that exists, whatever that may be.

Government Amendment 67B makes an addition to the list of matters which are treated as exceptions to the reservation for prisons and offender management. As drafted, Section L11 of new Schedule 7A treats the provision of healthcare, social care and education and training as exceptions to the general reservation. On consideration, the Government have come to the view that libraries should also be an exception to the reservation so that the Assembly has legislative competence over libraries in prisons in Wales. Welsh Ministers already have the power to make rules in relation to prison libraries, and libraries more generally are a devolved matter, so that clearly makes sense.

I am pleased to propose Amendment 67D, which seeks to address concerns expressed by the Welsh Government that the present wording in Section L12 of new Schedule 7A would have the effect of reserving some matters which are currently within the Assembly’s competence. That present competence is by virtue of the conferral of the protection and well-being of children, other than in relation to family law and proceedings, within the devolved subject of social welfare. The concern is that the wording of the reservation would arguably include, and so reserve, matters such as local authorities’ duty to investigate under Section 47 of the Children Act 1989 and applications for secure accommodation orders made by local authorities. This was not the Government’s intention. The amendment therefore modifies the reservation to resolve the concerns and provide a clearer devolution boundary. It does so by focusing on proceedings and orders made under Parts 4 and 5 of the Children Act 1989 rather than “the subject-matter of” that Act.

On Amendments 119B and 119K, the Wales Act 2014 imposed a requirement on the Welsh Government to share land transaction information with HMRC. This information is vital for HMRC’s compliance work, for policy work across government departments and for the Valuation Office Agency’s work. The Welsh Government have since established the Welsh Revenue Authority, which will administer the taxes devolved to Wales by the Wales Act 2014, including land transaction tax, and will be the body with which HMRC needs to share land transaction information. New legal gateways are therefore required to share information in both directions between HMRC and the WRA. The amendments do not represent any change in policy but enable the existing policy to be implemented, and are fully supported by the Welsh Government. On that basis, I commend the government amendments in this group.

[Baroness Randerson (LD)]

My Lords, I shall speak to Amendments 66A, 67A and 67C in my name. Amendment 66A refers to job searches and careers. Paragraph 141 of the new schedule relates to “job search and support” and,

“arrangements for assisting persons to select, train for, obtain and retain employment, and to obtain suitable employees”.

Careers services are an exception to this reservation, which are devolved to the Welsh Assembly.

The Delegated Powers and Regulatory Reform Committee of this House queried what this means and how it would work in practice. It asked:

“Does this mean that the Assembly will have power to legislate as regards the provision of a service to assist persons in choosing a career, but that service could not include helping persons find a job in their chosen career?”.

This is clearly nonsensical. The Minister is undoubtedly well aware of this criticism in the committee’s report, so I look forward to his clarification, but I point out to everyone that there has been a long-standing issue of lack of connectivity and co-operation between the Welsh Government’s services and the UK Government’s services on job search and benefits, and a confused situation is not in the interests of people searching for careers or jobs.

Amendment 67A leaves out reservation 161 on the safety of sports grounds. It seems that the safety of sports grounds is currently within the Assembly’s competence, so this is the Government reducing the competence of the Assembly in the Bill. Why are the Government doing this? What is the key strategic reason that the Government feel ensures that they have to keep the safety of sports grounds in Wales within their control? After all, sports issues are devolved and have been since 1999. Through the Sports Council, through local authorities and through lottery funding, over which the Welsh Government have considerable influence via the Sports Council for Wales, the Assembly and the Welsh Government can fund sports facilities, right up to the level of the Principality Stadium. However, they are apparently not now considered capable of dealing with safety at those grounds. Once again, there is a lack of thinking through here—after all, who are you co-operating with in dealing with safety issues? Obviously, with the police, but also with the local authority on issues such as road closures and other facilities for crowds at sports grounds.

Finally, Amendment 67C relates to adoption. Reservation 175 relates to parenthood, parental responsibility, child arrangements and adoption. There is a lack of clarity about what this means generally, but I am specifically concerned about adoption. This is clearly a reduction in the Assembly’s current legislative competence. Other than intercountry adoption, adoption services are currently entirely devolved. This includes the recruitment of adopters, their training, matching and post-adoption support. As written, the only function that the Assembly would retain on adoption would be in relation to adoption agencies. Why have the Government decided to reduce the Assembly’s powers in this field? It is a field where it is essential that the various agencies work really closely together and that there is a seamless service for adopted children and those who are adopting. It is important that those services—social services, local authorities, education and the health service—are overwhelmingly part of the devolved picture. Adoption goes along with that very clearly.

[Lord Howarth of Newport]

My Lords, this group of amendments gives the Minister the opportunity, if he chooses to take it, to explain to the Committee what consistent principles have animated the choice of reservations that the Government have made in drawing up this legislation. We have a ragbag of reservations—as has been noted in previous debates, some 200 different reservations across an extraordinarily diverse range of policy areas—and in this group of amendments we have dealt with a miscellany of topics, including council tax benefit, careers services, sports grounds, libraries and adoption. It may be difficult to achieve consistency of principle in considering such a range of topics.

As I mentioned in an earlier debate, the Welsh Affairs Select Committee recommended that as the Government came to draw up this legislation providing for further devolution to Wales and introduced the reserved powers model, guidance should be issued to Whitehall departments as to the principles they should adopt in deciding what powers they wished to reserve to the centre—to the Government of the United Kingdom —and what questions they should ask themselves as they were judging these matters. I know that the Minister always seeks to achieve the best devolution settlement that he can for Wales. He cares about good government in Wales. He is a good representative and champion of the people of Wales and he wishes to achieve a devolution settlement that is coherent, commands wide acceptance and will endure. But it is difficult to achieve that if there is, apparently, no basis of principle for the reservation of powers.

It would be helpful if the Minister could tell us something about the process that has been adopted by the Government, partly in consultation with the Government of Wales—but I am thinking particularly of the process of consultation within Whitehall—as they came to decide that these 200 or so different powers should be reserved. Why have they chosen them? Is there any consistent principle lying behind that choice? If not, why not? Of course, the pressures of pragmatism are always very strong and one respects and understands that, but it may also be that there has been, as has also been said before in our debates, something of a dog in the manger attitude at work—that departments have not thought through with any thoroughness or care what is appropriate to devolve and what is appropriate to reserve but rather have said, “I think we’ll hang on to this”; essentially, “What we have we hold”. It would be a shame if we were driven to conclude that that was the basis on which the reservations have been chosen by the Government.

I hope the Minister can tell us about the process and encourage us to think that this has been done on a considered and principled basis and, for that reason, that these are decisions that should be respected and will stand the test of time for good, practical reasons.

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[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords for speaking to the non-government amendments in this group and the noble Baroness, Lady Morgan of Ely, for saying that she will not move her amendment. The three remaining non-government amendments were spoken to by the noble Baroness, Lady Randerson, and I turn first to Amendment 66A.

The reservation at Section H3 of new Schedule 7A covers the provision of advice and support to assist people to select, train for, obtain and retain employment or to assist employers to recruit suitable employees, including by providing assistance for disabled persons. The intention behind this reservation is to reserve legislative competence in relation to all work-related programmes for which the Secretary of State is responsible under the Disabled Persons (Employment) Act 1944 and Section 2 of the Employment and Training Act 1973 —for example, Access to Work and Work Choice. Under the Disabled Persons (Employment) Act 1944, the Secretary of State may make arrangements to facilitate severely disabled people to obtain employment or work on their own account and to train for such employment. Welsh Ministers exercise concurrent executive functions in relation to certain sections of the Employment and Training Act 1973, and these are included in the Bill in the list of concurrent functions in Schedule 4.

The Government accept and recognise that the provision of careers information, advice and guidance is devolved and falls to Careers Wales, whereas employment is a reserved matter. The noble Lord, Lord Hain, is right in relation to that. In practical and operational terms, the DWP works with Careers Wales, which often has a presence in the DWP’s jobcentres. I am very happy to look at improving co-operation between the two in the light of what the noble Baroness said so that services run in a smooth, dovetailed way and are not duplicated so there is no friction. I suspect there will inevitably be a degree of overlap, but this is perfectly understood on the ground.

On that basis, we cannot see any reason for the amendment tabled by the noble Baroness, but I will look at the issue of co-operation which she raised. There are two areas, one devolved, one reserved, coming together and inevitably there will be a degree of blurring. I am very keen that where this sort of thing happens we have protocols to ensure that there is co-operation, so I will look at that.

[Baroness Randerson]

Will the Minister look again at this situation? My amendment was based on the judgment of the Delegated Powers Committee of this House, which looked at it from the outside, being unfamiliar in general with the operation of the devolution settlement in Wales. It found it confusing. It is therefore worth looking at it again and testing it out against the practicalities of what happens in relation to the careers service.

[Lord Bourne of Aberystwyth]

My Lords, I hope I indicated that I want to be aware of what is happening on the ground. The information I have is that it is working successfully and has been doing so for quite some time. However, I will have a look at it and write to the noble Baroness and other noble Lords who participated in debates on the Bill.

Amendment 67A relates to two areas, one of which is devolved—sport and recreation. The other is not—safety at sports grounds. That is a health and safety issue and is currently reserved. Health and safety is an explicit exception to competence in the current settlement, and it is on that basis that we resist this amendment.

Safety at sports grounds is of paramount importance to the Government, and it is often determined at a European level. It is through the work of the Sports Grounds Safety Authority that we have robust and effective procedures in place across England and Wales to ensure that spectators are as safe and secure as possible when watching sport. The current arrangements, which were brought in following the stadium tragedies at Ibrox, Bradford and Hillsborough, ensure a consistent approach to sports ground safety across England and Wales to ensure the continued safety of spectators. I recently visited Bradford City’s stadium, so I can speak of the work that was done there after that tragedy.

The multiagency approach overseen by the Sports Ground Safety Authority brings together all the emergency services—the police, ambulance and fire services—stadium management, local authorities and stewards. There have been no major incidents at sports stadia since the current arrangements were put in place some 27 years ago.

However, we face new threats to spectator safety in the form of terrorism, as seen in the tragic events a year ago at the Stade de France, and from new technology in the form of drones that can infiltrate stadia and expose spectators to danger. The Sports Grounds Safety Authority is providing support and guidance to sports grounds, clubs and other stakeholders and disseminating messages from the United Kingdom Football Policing Unit and National Counter Terrorism Security Office to help meet these new challenges. It is working to ensure that spectator safety remains a priority whatever the threat. It is on that basis that we are resisting this amendment.

Amendment 67C, in the name of the noble Baroness, Lady Randerson, relates to adoption. We cannot accept this amendment as drafted, as it would not only devolve the functions of adoption agencies—which are already within the competence of the Assembly and an exception to the family relationships and children reservation in Section L12 of new Schedule 7A—but have the effect of devolving the substantive law on adoption, which is not of course currently devolved. The reservation does no more than reflect the current competence of the Assembly, which does not include any of the substantive law on adoption. However, I am aware of concerns on the part of the Welsh Government, and the noble Baroness made a powerful case about the extent of this reservation. I would like to reflect on the issue further, although I can say that that will not include reconsideration of the reservation of adoption law as such, which is probably not something that the noble Baroness was seeking.

The noble Lord, Lord Howarth, asked about the basis for reservations. I have tried to cover this by saying that our approach has been pragmatic. It has obviously been influenced heavily by the Silk commission, of which I was part, and by the St David’s Day agreement. Both of those were consensual processes, and I applaud all political parties for taking part in them. We then had a draft Bill, which I think by common accord has been improved. We now seek to improve the legislation further as it goes through this House, and I think noble Lords will acknowledge that on some of the issues that have been of concern around the Chamber—teachers’ pay, fixed-odds betting terminals and so on—we have moved to accommodate some of the feelings expressed. On that basis, I ask the noble Baroness, Lady Randerson, not to press her amendment, as I think the noble Baroness, Lady Morgan, has agreed not to do.

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[Lord Wigley]

My Lords, once again it is a delight to follow the noble Baroness, Lady Bloomfield of Hinton Waldrist. I had the pleasure of speaking after her when she made her maiden speech a few weeks ago on an earlier stage of this Bill. On this occasion, I am afraid that we shall not see exactly eye to eye on the question of the limitation, since I shall speak briefly to Amendments 99 and 101, which seek to remove the 350 megawatt limit on the devolution of energy projects to Wales.

Having given Scotland complete control over its natural resources—with no limits, so for those looking for a United Kingdom policy, that has already been given away—the Government are proposing to devolve energy in Wales only up to a limit of 350 megawatts, with anything above that threshold being reserved to Westminster. This arbitrary constraint on the ability of Wales to control its own natural resources has stirred many emotions in Wales. It seems archaic and contrary to the spirit of devolution that Whitehall will still decide how and when Wales can harness many of its most precious natural resources.

I shall outline what this means in practical terms by reiterating an example highlighted by my colleagues in another place. Responsibility for the 320 megawatt Swansea Bay tidal lagoon would be devolved under the current Bill. However, the proposed Cardiff and Colwyn Bay tidal lagoons, which are identical apart from scale, will be reserved to Westminster. This does not stand up to any test in logic.

The Government have chosen to use the cover of the Silk commission’s recommendations—which, I recognise, also suggested a possible limit of 350 megawatts. However, if they are going to do so, does the Minister not agree that all of the Silk recommendations must be treated with the same respect? The Government most certainly are not doing this in other instances, so why pick out this one? As the Minister will undoubtedly recall, the 350 megawatt limit was agreed to in a cross-party Silk commission discussion on the understanding that other parties would support the devolution of policing and broadcasting. Does he recall that meeting? I have the references.

I conclude by noting that this is once again an example of how we are asked to accept second best in terms of devolution of energy. We are asking only for the same deal that is afforded to other nations. The 350 megawatt limit that the Bill imposes stops Wales effectively harnessing its world-class renewable resources —its wind, its coastline and sometimes even its sun. As my noble friend Lord Elis-Thomas emphasised, these are important ingredients for the future of the Welsh economy. Our resources belong to the people of Wales and now is the time for the law of the land to recognise that.

[Baroness Randerson]

My Lords, we on these Benches have felt for a long time that the constraint on the Assembly’s current control over energy is ridiculously low and the suggestion that it should rise to 350 megawatts is better, but by no means good enough. The noble Lord, Lord Wigley, has outlined the foolish situation that we are likely to find ourselves in if the 350 megawatt limit is adhered to. We all know it was picked as a limit by the Silk commission because it would encompass the Swansea Bay tidal lagoon. But as the noble Lord pointed out, the problem is that the sister projects in Cardiff and Newport, if they are built, will be larger than 350 megawatts, so by what measure would the Swansea lagoon not be considered to be of strategic importance but one built in Cardiff would be?

It is absolutely essential that the Welsh Government and the Assembly are able to take a stronger position on energy development. They should also be able to take a distinctive and different position on it. We fully accept that nuclear developments would not be appropriate for devolution because of their massive scale, but we do not believe that artificial limits should be put on the ambition of the people of Wales, the Assembly and the Welsh Government to provide a larger share of the energy they consume, and to find new, different, innovative and environmentally sound ways of doing so. I think that this is one of the most important series of amendments which have been put forward to the Bill so far.

[Baroness Finn (Con)]

My Lords, Wales can play a pivotal role in the rewiring of the UK electricity system, which of course means that the rewiring of the UK electricity system can play a pivotal role in the renewal of employment, industry and infrastructure investment in Wales. Larger energy projects by their very nature must be assessed against a complex set of UK-wide system, strategic and security objectives.

Let us take the case of tidal lagoon infrastructure in Wales. Wales is blessed with a phenomenal natural tidal resource and the time has come to tap into it to bring more jobs, investment and industry for Wales. The Hendry review of tidal lagoons is imminent. We had hoped to see it this week and I hope that it will not be long before it sees the light of day. As my noble friend Lady Bloomfield has pointed out, the first project at Swansea Bay would have fallen below the Silk commission threshold, had one been in place at the time. But it was not and the project has already been awarded development consent, thereby paving the way for much larger projects in Wales that can be assessed only in the context of a UK-wide energy strategy.

It is my belief that the 350 megawatt limit, as recommended by the Silk commission, is the right one in devolution terms. It provides more certainty for the developers of energy projects in Wales about who is responsible for consenting to energy generation projects. Rather than wasting time debating arbitrary jurisdictional limits, efforts would surely be better placed in supporting a development that would be hugely beneficial to the Welsh economy. My hope and expectation are that the Hendry review will challenge officials and nay-sayers to engage with the real value-for-money arguments. It is dismissive and lazy to claim out of hand that the Swansea Bay tidal lagoon is just too expensive. The value-for-money case is compelling: this is a project that asks for less than 0.5% of all the money available each year to low-carbon projects in the UK and which in return will start a new British power and manufacturing industry. What other UK energy project promises to spend 84p in every pound in the UK while simultaneously stimulating the regeneration of coastal communities around Wales? This could include a hugely welcome stimulus to the beleaguered Welsh steel industry. It is of vital importance for Wales and we must accept and encourage the clear role that policymakers at both ends of the M4 need to play in nurturing this new industry through its infancy.

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[Baroness Randerson]

My Lords, I support the noble Baroness in those comments; the amendment is in my name as well. I should declare an interest as someone who has solar panels on their roof and has therefore benefited from policy on renewable heat incentive schemes. That illustrates how locally we are talking now; we are at the other end of the scale from the previous debate, when we were wondering whether 350 megawatts was the right level for strategic national developments. We are now looking at schemes that are very local indeed.

I am particularly concerned that the reservation on heating and cooling has suddenly popped up. It was not in the draft Bill, so perhaps the Minister will explain why the Government have suddenly become concerned about such developments. My experience of combined heat and cooling networks as defined in the interpretation in Section D5 of the new schedule relates to the Llanedeyrn district heating system in Cardiff, which existed back in the 1960s. It was not terribly effective, being a pioneering system. People were either boiling hot or freezing cold because it was not sensitive to flexibility. It was therefore abandoned and the boiler house in which it was based was turned into a very useful community centre. That system was installed on what was then the council estate of Llanedeyrn at the initiative of the local council, which is where such a power should lie. It is very much a local thing.

On incentive schemes for renewable heat and for energy conservation, the policy has diverged within the UK between Scotland, Wales and England, and will continue to do so even more than now. Renewable heat incentive schemes and the encouragement of energy conservation are appropriate for local action and local schemes, because when they work best they engage the local community. It is difficult for large-scale, national schemes to appeal to and work effectively within local communities. In the USA, such incentives are provided at local council level. However, because in the UK we do not normally do these things at local council level, the Scottish Government have had a different policy. My reading of the outcome of that is that they have made significant progress, particularly in engaging communities to work effectively together on such schemes. I urge the Minister in his usual understanding manner to agree to look again at this aspect of the Bill.

[Lord Howarth of Newport]

My Lords, the Government’s contention that energy policy-making powers, even on such intrinsically local issues as heating and cooling and energy conservation, should be reserved to the Government of the United Kingdom, because they are essential to our country having a national energy strategy, would be the more impressive if our country had a national energy strategy, but the truth of the matter is, notwithstanding the no doubt valiant efforts of the noble Lord, Lord Bourne, when he was a Minister at the Department of Energy and Climate Change, we do not have a national energy policy.

Since 2010, energy policy has consisted of prolonged dithering in the face of major decisions that it was necessary to take, particularly on nuclear power, and on the creation of incentives for renewables, which were then removed as the Government did a complete volte-face in their attitude to green issues and green values. The consequence is that we now have unaffordable energy prices, a dangerous dependence on energy imports from politically unreliable parts of the world and energy insecurity. If the Government of the United Kingdom have proved themselves incapable of developing and maintaining an energy policy for England and Wales together, why will they not at least allow the Government of Wales to develop and maintain an energy policy for Wales?

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Moved by

[Baroness Randerson]

57A: Schedule 1, page 61, line 37, leave out “(including training, testing and certification)”

[Baroness Randerson]

My Lords, Amendment 57A covers a small and detailed issue, in contrast to the big issues also addressed in this group concerning the railway system and rail funding in Wales. I will not pre-empt the speeches of other noble Lords on those amendments, other than to say that it is essential that Wales has clear accountability, funding and control in running the railway system if we are to have an effective one here in Wales.

Amendment 57A would omit training, testing and certification from reservation 104, covering driver licensing. Schedule 7 to the Government of Wales Act 2006 refers only to driver licensing. In other words, the Bill introduces a much tighter wording than that in the current devolution settlement for Wales, as set out in the 2006 Act. The wording in the Bill is narrower. The inclusion of the word “training”, in particular, concerns me, because it could discourage or prevent the Assembly from providing training in road safety. If the Government do not encourage the Assembly to do this, why should it provide the funding and the resources? It is essential that it is absolutely clear that the Assembly has control over issues such as road safety training. That is the kind of local issue that is best organised at a Wales level. Very often it is organised via the school system or the training system and therefore it sits appropriately with other devolved issues. I urge the Minister to look again at this reservation and the exceptions. I beg to move.

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[Lord Bourne of Aberystwyth]

My Lords, to some extent I am in the hands of noble Lords as to when we complete Committee stage—a subtle hint if ever there were one. I hope and intend that we should be in a position to bring this forward on Report, but certainly during the passage of the Bill. I hope it will be before Report.

Amendments 83A, 83B, 119C, 119D, 119E and 119F amend Clause 27 and Schedule 5 so that all the Minister of the Crown powers in Sections 6, 6A and 6B of the Transport Act 1985 are transferred to Welsh Ministers by the Bill, which I am sure noble Lords will welcome.

As a result of the complexities involved in the traffic commissioner being a reserved body but exercising some devolved functions, the original clause transferred the regulation-making powers in Sections 6 and 7 of the Transport Act 1985 that related to the traffic commissioner. This was to provide clarity in the Bill, with the remaining powers to be transferred via a subsequent transfer of functions order. Following discussions with the Welsh Government, we have agreed to transfer all the regulation-making powers relating to the registration of local bus services in Section 6, 6A and 6B of the Transport Act 1985 in the Bill.

On the basis of that information and the assurances and responses I have given, I urge the noble Baroness to withdraw her amendment.

[Baroness Randerson]

My Lords, I fear that the longer I sit here and listen to the detailed debates, the less confidence I have that the Bill will provide the certainty that we on all sides believe should be provided.

On the specific issues, devolution is the name of the game in railways at the moment. I regret that that rule does not apparently apply to Wales in the fullest sense. I entirely accept that railway services in Wales do not run neatly within the country only. That is a specific challenge. I fear that there is a failure here to provide sufficient incentives to the Welsh Government to invest in the railway system in Wales because they are not being given sufficient control over it.

In relation to Amendment 57A, I agree with the Minister that it is necessary to have a consistent approach to road safety across the country, not least because the road along the border weaves in and out of the border so any other approach would not be workable. In the light of the Minister’s comments, I shall withdraw my amendment, but I ask him to consider clarification of the Assembly’s powers on training in road safety matters because I fear that, as written, the Bill could be taken by the Assembly and the Welsh Government to mean that they do not have to involve themselves in it any more, and that would not be an appropriate result. I beg leave to withdraw the amendment.

Amendment 57A withdrawn.