Wales Bill
Debate between Lindsay Hoyle and Paul Flynn(8 years, 2 months ago)
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Mr Deputy Speaker (Mr Lindsay Hoyle)
It may seem pretty good to some hon. Members, but we are drifting a little from where we should be. I know we are encompassing everything we need to, but I do not want to open up a full-blown debate on the House of Lords.
Wales Bill
Debate between Lindsay Hoyle and Paul Flynn(8 years, 4 months ago)
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Paul Flynn (Newport West) (Lab)
I beg to move amendment 118, page 2, line 28, after “7A)” insert
“and is not ancillary to another provision (whether in the Act or another enactment) that does not relate to a reserved matter”.
Clause 3 establishes the legislative competence of the National Assembly for Wales. This amendment makes clear that the Assembly has power to make provision touching upon reserved matters for the purpose of enforcing provisions in Assembly Acts that do not relate to reserved matters or otherwise making them effective.
The Chairman of Ways and Means (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 148, page 2, line 33, leave out “subsection (2)(b) does” and insert
“subsections (2)(b) and (2)(c) do”.
The amendment restores the Assembly’s competence by enabling it to legislate in an ancillary way in relation to reserved matters.
Amendment 149, page 2, line 34, leave out from “provision” to end of line 6 on page 3 and insert
“which is within the Assembly’s legislative competence (or would be if it were included in an Act of the Assembly).”
The amendment restores the Assembly’s competence by enabling it to legislate in an ancillary way in relation to reserved matters.
Clause 3 stand part.
Amendment 2, in schedule 1, page 41, line 24, at end insert
“(that is, the property, rights and interests under the management of the Crown Estate Commissioners)
‘(3A) Sub-paragraph (1) does not affect the reservation by paragraph 1 of the requirements of section 90B(5) to (8).”
This amendment is consequential on new Clause (The Crown Estate) which would transfer executive and legislative competence of the Crown Estate in Wales to the Welsh Government and the National Assembly for Wales.
Amendment 6, page 41, line 30 , at end insert—
“2A Paragraph 1 does not reserve the consolidation in English and Welsh of the principal legislation delineating the powers of the National Assembly for Wales and the Welsh Government, including (but not limited to) the Government of Wales Act 2006, the Wales Act 2011 and the Wales Act 2016.”
This amendment would allow the National Assembly for Wales to consolidate in both English and Welsh the statutes bills containing the current constitutional settlement affecting Wales.
Amendment 155, page 42, line 20, leave out “prosecutors” and insert “the Crown Prosecution Service”.
The amendment clarifies the reservation so that “the Crown Prosecution Service” is reserved, rather than “prosecutors” more generally, as this could prohibit Assembly legislation enabling devolved authorities to prosecute, such as local authorities.
Amendment 119, page 42, line 26, leave out sub-paragraphs (2) and (3).
This amendment seeks to allow ancillary provision by removing the exception in paragraph 6(2) and the related definition in paragraph 6(3), so that reliance can be placed on the general power to make ancillary provision made clear by the amendment to clause 3 proposed by amendment 118.
Amendment 83, page 47, line 32, leave out Section B5.
This amendment removes the reservation of crime, public order and policing from the list of reserved powers.
Amendment 122, page 48, line 9, leave out
“The subject matter of Parts 1 to 6”
and insert
“Anti-social behaviour injunctions under Part 1”.
This amendment is intended to narrow the reservation to the system of anti-social behaviour injunctions provided for by Part 1 of the 2014 Act.
Amendment 84, page 48, leave out line 11.
This amendment removes the reservation of dangerous dogs and dogs dangerously out of control from the list of reserved powers.
Amendment 85, page 48, line 15, leave out Section B8.
This amendment removes the reservation of prostitution from the list of reserved powers.
Amendment 86, page 48, line 24, leave out Section B11.
This amendment removes the reservation of the rehabilitation of offenders from the list of reserved powers.
Amendment 117, page 49, leave out lines 5 to 10.
This amendment will remove the reservation of knives from the list of reserved powers.
Amendment 123, page 49, leave out lines 24 to 29.
Paragraph 55 of the new Schedule 7A to be inserted into the Government of Wales Act 2006 by Schedule 1 would reserve the licensing of the provision of entertainment and late night refreshment from the Assembly’s legislative competence. Paragraph 56 would reserve the sale and supply of alcohol. This amendment removes both reservations.
Amendment 116, page 49, leave out lines 24 to 26.
This amendment will remove the reservation of the licensing of the provision of entertainment and late night refreshment from the list of reserved powers.
Amendment 87, page 49, line 27, leave out Section B17.
This amendment removes the reservation of alcohol from the list of reserved powers.
Government amendments 53 to 58.
Amendment 88, page 55, line 5, leave out Section C15.
This amendment removes the reservation of Water and sewerage from the list of reserved powers.
Amendment 89, page 55, line 28, leave out Section C17.
This amendment removes the reservation of Sunday trading from the list of reserved powers.
Amendment 90, page 55, line 32, leave out Section D1.
This amendment removes the reservation of generation, transmission, distribution and supply of electricity from the list of reserved powers.
Amendment 91, page 56, line 27, leave out Section D3.
This amendment removes the reservation of coal from the list of reserved powers.
Amendment 92, page 57, line 2, leave out Section D5.
This amendment removes the reservation of heat and cooling from the list of reserved powers.
Amendment 93, page 57, line 17, leave out Section D6.
This amendment removes the reservation of energy conservation from the list of reserved powers.
Amendment 94, page 57, line 24, leave out Section E1.
This amendment removes the reservation of road transport from the list of reserved powers.
Amendment 161, page 57, line 35, leave out from “roads” to the end of line 36 and insert—
“107A Speed limits
107B Road and traffic signs”
This amendment would make speed limits and road and traffic signs reserved matters.
Amendment 95, page 58, leave out line 36.
This amendment removes the reservation of railway services from the list of reserved powers.
Amendment 96, page 59, leave out line 21.
This amendment is consequential on amendment 61 to Clause 28 which would remove the exception to the devolution of executive functions in relation to Welsh harbours of “reserved trust ports”.
Amendment 140, page 59, line 21, leave out “Reserved trust ports and”.
Section E3 of the new Schedule 7A to be inserted into the Government of Wales Act 2006 by Schedule 1 would reserve certain marine and waterway transport matters from the Assembly’s legislative competence. Paragraph 119 in that Section would reserve trust ports. This amendment removes this reservation.
Amendment 97, page 59, leave out line 23.
This amendment removes the reservation of coastguard services and maritime search and rescue from the list of reserved powers.
Amendment 98, page 59, leave out line 24.
This amendment removes the reservation of hovercraft from the list of reserved powers.
Amendment 141, page 59, line 28, leave out “, reserved trust ports or”.
This amendment is consequential upon amendment 140.
Amendment 142, page 59, line 37, leave out
“that is not a reserved trust port”.
This amendment is consequential upon amendment 140.
Amendment 143, page 60, leave out lines 4 to 5.
This amendment is consequential upon amendment 140.
Amendment 100, page 61, line 21, at end insert—
“Benefits entitlement to which, or the purposes of which, are the same as or similar to those of any of the following benefits—
(a) universal credit under Part 1 of the Welfare Reform Act 2012,
(b) jobseeker’s allowance (whether contributions-based or income based) under the Jobseekers Act 1995,
(c) employment and support allowance (whether contributory or income-related) under Part 1 of the Welfare Reform Act 2007,
(d) income support under section 124 of the Social Security and Benefits Act 1992,
(e) housing benefit under section 130 of that Act,
(f) child tax credit and working tax credit under the Tax Credits Act 2002.
The benefits referred to in paragraphs (a) to (f) above are—
(a) in the case of income-based jobseeker’s allowance and income-related employment support allowance, those benefits as they existed on 28 April 2013 (the day before their abolition),
(b) in the case of the other benefits, those benefits as they existed on 28 May 2015.”
This amendment devolves all working age benefits to be replaced by Universal credit, and any benefit introduced to replace Universal credit.
Amendment 101, page 61, line 21, at end insert—
“Benefits entitlement to which, or the purposes of which, are the same as or similar to those of any of the following benefits—
(a) guardian’s allowance under section 77 of the Social Security Contributions and Benefits Act 1992,
(b) child benefit under Part 9 of that Act.”
This amendment devolves to the National Assembly for Wales, child benefit and Guardian’s allowance including conditionality and sanctions regimes.
Amendment 102, page 64, line 17, leave out Section H1.
This amendment would remove employment and industrial relations from the list of reserved powers.
Amendment 108, page 64, line 17, leave out Section H1 and insert—
“H1 National Minimum Wage
The subject-matter of the National Minimum Wage Act 1998.”
This amendment would devolve employment rights and duties and industrial relations, except for the national minimum wage, to the National Assembly for Wales.
Amendment 124, page 64, line 44, at end insert—
“Terms and conditions of employment and industrial relations in Wales public authorities and services contracted out or otherwise procured by such authorities.”
Section H1 of the new Schedule 7A to be inserted into the Government of Wales Act 2006 by Schedule 1 would reserve employment rights and duties and industrial relations from Assembly’s legislative competence. This amendment provides an exception to ensure that the Assembly retains its legislative competence over terms and conditions of service for employees in devolved public services and industrial relations in such services.
Amendment 99, page 65, line 7, leave out Section H3.
This amendment would devolve employment support programmes to the National Assembly for Wales.
Amendment 109, page 65, line 24, leave out Section J1.
This amendment removes the reservation of abortion from the list of reserved powers, to bring Wales into line with Scotland and Northern Ireland.
Amendment 103, page 66, line 31, leave out Section J6.
This amendment would remove Health and Safety from the list of reserved powers.
Amendment 105, page 67, line 14, leave out Section K1.
This amendment would remove broadcasting form the list of reserved powers
Amendment 107, page 67, line 17, at end insert—
“Exceptions
The regulation of:
(a) party political broadcasts in connection with elections that are within the legislative competence of the Assembly and
(b) referendum campaign broadcasts in connection with referendums held under Acts of the National Assembly for Wales.”
This amendment would devolve competence to the National Assembly for Wales in relation to party political broadcasts for Welsh and local elections.
Amendment 106, page 67, line 29, leave out Section K5.
This amendment would remove sports grounds from the list of reservations
Amendment 110, page 68, line 2, leave out Section L1.
This amendment removes justice from the list of reserved powers.
Amendment 111, page 69, line 25, leave out Section L11.
This amendment removes the reservation of prisons and offender management from the list of reserved powers.
Amendment 104, page 72, line 14, leave out Section N1.
This amendment would remove equal opportunities from the list of reserved powers
Amendment 112, page 73, line 24, leave out “bank holidays”.
This amendment, along with amendment 85, will devolve to the National Assembly for Wales, competence over bank holidays.
Amendment 113, page 73, line 27, at end insert “bank holidays”.
This amendment, along with amendment 112, will devolve to the National Assembly for Wales, competence over bank holidays.
Amendment 114, page 74, line 7, leave out Section N8.
This amendment will remove the reservation of the Children’s Commissioner from the list of reserved powers.
Amendment 115, page 74, line 11, leave out Section N9.
This amendment will remove the reservation of teacher’s pay and conditions from the list of reserved powers.
That schedule 1 be the First schedule to the Bill.
Amendment 120, in schedule 2, page 77, line 17, at end insert—
“1A Paragraph 1 does not apply to a modification that is ancillary to a provision made (whether by the Act in question or another enactment) which does not relate to reserved matters if it is a modification of the law on reserved matters in paragraph 6 or 7 of Schedule 7A.”
This amendment provides an exception for ancillary provision about certain justice matters that is not subject to a necessity test.
Amendment 121, page 77, line 18, leave out “a” and insert “any other”.
This amendment is consequential upon amendment 120.
Amendment 156, page 77, line 21, leave out from “matters” to end of line 26.
The amendment removes the necessity test in relation to the law on reserved matters.
Amendment 157, page 78, line 2, leave out paragraph 4 and insert—
“4 (1) A provision of an Act of the Assembly cannot make modifications of, or confer power by subordinate legislation to make modifications of, the criminal law. (See also paragraph 6 of Schedule 7A (single legal jurisdiction of England and Wales).)
(2) Sub-paragraph (1) does not apply to a modification that has a purpose (other than modification of the criminal law) which does not relate to a reserved matter.
(3) This paragraph applies to civil penalties as it applies to offences; and references in this paragraph to the criminal law are to be read accordingly).”
The amendment inserts a restriction so that the Assembly cannot modify criminal law unless it is for a purpose other than a reserved purpose. This would bring it into line with the private law restriction.
Amendment 34, page 79, line 29, leave out from “Assembly” to end of line 39.
The amendment removes the requirements relating to the composition and internal arrangements of the Assembly Committee with oversight of the Auditor General and/or their functions.
Amendment 35, page 80, line 41, at end insert—
“(i) subsection 120(1) as regards a modification that adds a person or body;”
The amendment will enable the Assembly to amend sections 120(1) of the 2006 Act which provide for ‘relevant persons’ which receive funding directly from the Welsh Consolidated Fund.”
Amendment 36, page 80, line 42, at end insert—
(iii) subsection 124(3) as regards a modification that adds a person or body;”
The amendment will enable the Assembly to amend sections 124(3) of the 2006 Act which provide for ‘relevant persons’ which receive funding directly from the Welsh Consolidated Fund.
Amendment 37, page 81, line 22, leave out from “taxes” to end of line 23.
The amendment removes the requirement for Secretary of State consent for the Assembly to amend the provisions of Part 5 of the 2006 Act which are not specifically referred to in paragraph 7(2)(d) and section 159, where the amendment is incidental to, or consequential on, a provision of an Act of the Assembly relating to budgetary procedures.
Amendment 128, page 82, line 30, leave out paragraph (c).
This amendment is consequential upon amendment 127.
Amendment 127, page 82, line 44, at end insert—
‘( ) Paragraph 8(1)(a) and (c) does not apply in relation to the Water Services Regulation Authority.”
This amendment would extend the existing exception for the Water Services Regulation Authority to include the matters that would otherwise be outside competence by virtue of paragraph 8(1)(c) of Schedule 7B.
Amendment 129, page 83, line 42, leave out paragraph (c).
This amendment removes the restriction in paragraph 11(1)(c) of the new Schedule 7B to the Government of Wales Act 2006 to be inserted by Schedule 2 to the Bill which would prevent the Assembly from legislating to remove or modify functions of a Minister of the Crown exercisable in relation to water and sewerage matters (including control of pollution) and matters relating to land drainage, flood risk management and coastal protection.
That schedule 2 be the Second schedule to the Bill.
New clause 7—Levies in respect of agriculture, taking wild game, aquaculture and fisheries, etc.—
“(1) In Schedule 7A to the Government of Wales Act 2006, section A1 is amended as follows.
(2) In the Exceptions, after the exception for devolved taxes insert—
““Levies in respect of agriculture, taking wild game, aquaculture and fisheries (including sea fisheries) or a related activity: their collection and management.”
(3) After the Exceptions insert—
“Interpretation
“agriculture” includes horticulture, fruit growing, seed growing, dairy farming and livestock breeding and keeping, and the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds.
“aquaculture” includes the breeding, rearing or cultivation of fish (of any kind), seafood or aquatic organisms.
“related activity” means the production, processing, manufacture, marketing or distribution of—
(a) anything (including any creature alive or dead) produced or taken in the course of agriculture, taking wild game or aquaculture, or caught (by any means) in a fishery,
(b) any product which is derived to any substantial extent from anything so produced or caught.””
This new clause would give the National Assembly for Wales general legislative competence in respect of agricultural, aquacultural and fisheries levies.
New clause 10—Water Services Regulation Authority—
“(1) In section 27 of the Water Industry Act 1991 (general duty of the authority to keep matters under review)—
(a) in subsection (3), after “may” insert “subject to subsection (3A),”;
(b) after subsection (3), insert—
“(3A) The Secretary of State must obtain the consent of the Welsh Ministers before giving general directions under subsection (3) connected with—
(a) matters in relation to which functions are exercised by water or sewage undertakers whose area is wholly or mainly in Wales,
(b) licensed activities carried out by water supply licensees that use the supply system of a water undertaker whose area is wholly or mainly in Wales, or
(c) licensed activities carried on by sewerage licensees that use the sewerage system of a sewerage undertaker whose area is wholly or mainly in Wales.”;
(c) in subsection (4), in both places where it appears, after “Secretary of State” insert “, the Welsh Ministers”.
(2) In section 192B of the Water Industry Act 1991 (annual and other reports)—
(a) in subsection (1), after “Secretary of State” insert “and the Welsh Ministers”;
(b) in subsection (2)(d), for “as the Assembly” substitute “or activities in Wales as the Welsh Ministers”;
(c) in subsection (4), for “Assembly” substitute “Welsh Ministers”;
(d) after subsection (5) insert—
“(5A) The Welsh Ministers shall—
(a) lay a copy of each annual report before the Assembly; and
(b) arrange for the report to be published in such manner as they consider appropriate;
(c) in subsection (7), omit “the Assembly,””.
(3) In Schedule 1A to the Water Industry Act 1991 (the Water Services Regulation Authority)—
(a) in paragraph 1—
(i) in sub-paragraph (1), after “Secretary of State” insert “and the Welsh Ministers acting jointly”;
(ii) in sub-paragraph (2), omit paragraph (a);
(b) in paragraph 2(2), after “Secretary of State” insert “and the Welsh Ministers acting jointly”;
(c) in paragraph 3—
(i) in sub-paragraph (2), paragraph (a), after “Secretary of State” insert “and the Welsh Ministers”;
(ii) in sub-paragraph (2), paragraph (b), after “Secretary of State” insert “and the Welsh Ministers acting jointly”;
(iii) omit sub-paragraph (3);
(d) in paragraph 4—
(i) in sub-paragraph (1) and (2), in each place where it appears, after “Secretary of State” insert “and the Welsh Ministers acting jointly”;
(ii) in sub-paragraph (3), for “determines” substitute “and the Welsh Ministers acting jointly determine” and at the end insert “and the Welsh Ministers acting jointly”;
(e) in paragraph 9(3)(b), for “Assembly” substitute “Welsh Ministers”.”
This new clause would amend the Water Industry Act 1991 to confer functions relating to the Water Services Regulation Authority (OFWAT) (which exercises functions in England and Wales) onto the Welsh Ministers and it would adjust the functions of the Secretary of State to better reflect the current devolution of water matters to Wales.
Amendment 61, in clause 28, page 23, line 32, leave out from “Wales” to the end of line 33.
This amendment removes the exception to the devolution of executive functions in relation to Welsh harbours of “reserved trust ports”.
Amendment 134, page 23, line 38, leave out subsection (4).
Clause 28(4) provides an exception to the general transfer of functions by clause 28 so that where a function relates to two or more harbours the function is transferred only to the extent that both or all of the harbours to which it relates are wholly in Wales and are not reserved trust ports. This amendment is partly consequential upon amendment 61, but it would also ensure that the Welsh Ministers retain functions where one harbour is in Wales and the other is not.
Amendment 62, page 23, line 40, leave out “and are not reserved trust ports”.
See amendment 61.
Amendment 63, page 24, leave out line 6.
See amendment 61.
Clause 28 stand part.
Amendment 64, in clause 29, page 24, line 13, leave out
“, other than a reserved trust port,”
See amendment 61.
Amendment 65, page 24, line 17, leave out
“, other than reserved trust ports”.
See amendment 61.
Amendment 66, page 24, line 21, leave out
“or a reserved trust port”.
See amendment 61.
Amendment 67, page 24, line 25, leave out
“other than a reserved trust port”.
See amendment 61.
Amendment 68, page 24, line 26, leave out subsection (5).
See amendment 61.
Amendment 69, page 24, line 31, leave out
“other than a reserved trust port”
See amendment 61.
Clauses 29 to 31 stand part.
Amendment 137, in clause 32, page 25, leave out lines 34 to 39 and insert—
(a) will be wholly or partly in England or in waters adjacent to England up to the seaward limits of the territorial sea, and.””
This amendment is consequential upon amendment 61.
Amendment 71, page 25, line 39, leave out “a reserved trust port”.
See amendment 61.
Amendment 138, page 25, line 41, leave out from beginning to end of line 3 on page 26 and insert—
(a) the harbour facilities are wholly or partly in England or in waters adjacent to England up to the seaward limits of the territorial sea, and.””
This amendment is consequential upon amendment 61.
Amendment 72, page 26, line 2, leave out from “and” to end of line 3.
See amendment 61.
Amendment 73, page 26, line 4, leave out subsection (4).
See amendment 61.
Clauses 32 to 35 stand part.
New clause 1—The Crown Estate—
“After section 89 of the Government of Wales Act 2006, insert—
“89B The Crown Estate
(1) The Treasury may make a scheme transferring on the transfer date all the existing Welsh functions of the Crown Estate Commissioners (“the Commissioners”) to the Welsh Ministers or a person nominated by the Welsh Ministers (“the transferee”).
(2) The existing Welsh functions are the Commissioners’ functions relating to the part of the Crown Estate that, immediately before the transfer date, consists of—
(a) property, rights or interests in land in Wales, excluding property, rights or interests mentioned in subsection (3), and
(b) rights in relation to the Welsh zone.
(3) Where immediately before the transfer date part of the Crown Estate consists of property, rights or interests held by a limited partnership registered under the Limited Partnerships Act 1907, subsection (2)(a) excludes—
(a) the property, rights or interests, and
(b) any property, rights or interests in, or in a member of, a partner in the limited partnership.
(4) Functions relating to rights within subsection (2)(b) are to be treated for the purposes of this Act as exercisable in or as regards Wales.
(5) The property, rights and interests to which the existing Welsh functions relate must continue to be managed on behalf of the Crown.
(6) That does not prevent the disposal of property, rights or interests for the purposes of that management.
(7) Subsection (5) also applies to property, rights or interests acquired in the course of that management (except revenues to which section 1(1) of the Civil List Act 1952 applies or are to be paid into the Welsh Consolidated Fund).
(8) The property, rights and interests to which subsection (5) applies must be maintained as an estate in land or as estates in land managed separately (with any proportion of cash or investments that seems to the person managing the estate to be required for the discharge of functions relating to its management).
(9) The scheme may specify any property, rights or interests that appear to the Treasury to fall within subsection (2)(a) or (b), without prejudice to the functions transferred by the scheme.
(10) The scheme must provide for the transfer to the transferee of designated rights and liabilities of the Commissioners in connection with the functions transferred.
(11) The scheme must include provision to secure that the employment of any person in Crown employment (within the meaning of section 191 of the Employment Rights Act 1996) is not adversely affected by the transfer.
(12) The scheme must include such provision as the Treasury consider necessary or expedient—
(a) in the interests of defence or national security,
(b) in connection with access to land for the purposes of telecommunications, or with other matters falling within Section C9 in Part 2 of Schedule 1,
(c) for securing that the management of property, rights or interests to which subsection (5) applies does not conflict with the exploitation of resources falling within Section D2 in Part 2 of Schedule 1, or with other reserved matters in connection with their exploitation, and
(d) for securing consistency, in the interests of consumers, in the management of property, rights or interests to which subsection (5) applies and of property, rights or interests to which the Commissioners’ functions other than the existing Welsh functions relate, so far as it affects the transmission or distribution of electricity or the provision or use of electricity interconnectors.
(13) Any transfer by the scheme is subject to any provision under subsection (12).
(14) The scheme may include—
(a) incidental, supplemental and transitional provision,
(b) consequential provision, including provision amending an enactment, instrument or other document,
(c) provision conferring or imposing a function on any person including any successor of the transferee,
(d) provision for the creation of new rights or liabilities in relation to the functions transferred.
(15) On the transfer date, the existing Welsh functions and the designated rights and liabilities are transferred and vest in accordance with the scheme.
(16) A certificate by the Treasury that anything specified in the certificate has vested in any person by virtue of the scheme is conclusive evidence for all purposes.
(17) The Treasury may make a scheme under this section only with the agreement of the Welsh Ministers.
(18) The power to make a scheme under this section is exercisable by statutory instrument, a draft of which has been laid before, and approved by resolution of, the National Assembly for Wales.
(19) The power to amend the scheme is exercisable so as to provide for an amendment to have effect from the transfer date.
(20) If an order amends a scheme and does not contain provision—
(a) made by virtue of subsection (12) or (19) of that section, or
(b) adding to, replacing or omitting any part of the text of an Act,
then, instead of subsection (18), the instrument containing the legislation shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(21) For the purposes of the exercise on and after the transfer date of functions transferred by the scheme under this section, the Crown Estate Act 1961 applies in relation to the transferee as it applied immediately before that date to the Crown Estate Commissioners, with the following modifications—
(a) a reference to the Crown Estate is to be read as a reference to the property, rights and interests to which subsection (5) applies,
(b) the appropriate procedure for subordinate legislation is that no Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament,
(c) a reference to the Treasury is to be read as a reference to the Welsh Ministers,
(d) a reference to the Comptroller and Auditor General is to be read as a reference to the Auditor General for Wales,
(e) a reference to Parliament or either House of Parliament is to be read as a reference to the National Assembly for Wales,
(f) the following do not apply—
(None) in section 1, subsections (1), (4) and (7),
(None) in section 2, subsections (1) and (2) and, if the Welsh Ministers are the transferee, the words in subsection (3) from “in relation thereto” to the end,
(None) in section 4, the words “with the consent of Her Majesty signified under the Royal Sign Manual”,
(None) sections 5, 7 and 8 and Schedule 1.
(22) Subsection (7) is subject to any provision made by Order in Council under subsection (9) or by any other enactment, including an enactment comprised in, or in an instrument made under, an Act of the National Assembly for Wales.
(23) Her Majesty may by Order in Council make such provision as She considers appropriate for or in connection with the exercise by the transferee under the scheme (subject to subsections (5) to (8)) of functions transferred by the scheme, including provision taking effect on or before the transfer date.
(24) An Order in Council under subsection (23) may in particular—
(a) establish a body, including a body that may be nominated under that section as the transferee,
(b) amend, repeal, revoke or otherwise modify an enactment, an Act or Measure of the National Assembly for Wales, or an instrument made under an enactment or Act or Measure of the National Assembly for Wales.
(25) The power to make an Order in Council under subsection (24) is exercisable by Welsh statutory instrument subject to the affirmative procedure.
(26) That power is to be regarded as being exercisable within devolved competence before the transfer date for the purposes of making provision consequential on legislation of, or scrutinised by, the National Assembly for Wales.
(27) In this section—
“designated” means specified in or determined in accordance with the scheme,
“the transfer date” means a date specified by the scheme as the date on which the scheme is to have effect.””
This new clause mirrors the Scotland Act 2016 in transferring executive and legislative competence of the Crown Estate in Wales to the Welsh Government and the National Assembly for Wales.
Paul Flynn
Since we met in Committee last week, we have had the wonderful celebration of the Wales team’s great achievement in the European cup, which is a matter of enormous pride to us as a nation. I was delighted to see the celebrations on Saturday, which were the biggest thing to happen in Cardiff since VE-day and VJ-day, which I am sure we both remember, Mr Hoyle, if not since when Cardiff won the FA cup in 1926. These events will bring many benefits for the people of Wales. We feel pride not just in the skills of our team, but in the behaviour of our fans.
I saw a performance by the Secretary of State on television yesterday in which he was dancing with a ball on his head and foot. It seemed to be a wordless message; I did not quite get the point. Given these uncertain political times, he might have been auditioning for a future job as a circus performer, but perhaps there was a subliminal message that had he been substituted for Aaron Ramsey, the result of the Portugal game might have been different. None the less, we have had a moment of great happiness for our country. It is a joy to think that the beautiful national language in our anthem was probably heard by more people than at any time in its 3,000-year history. That intrigued many people, and Wales has been given a much sharper identity that will bring about practical benefits.
The Bill’s is proceeding in a consensual way. A great political tumult is going on about our ears, in various forms, but here is an oasis of calm and good sense, as all parties support a beneficial Bill that will give Wales further devolution. Progress on that is slow and endless, but the Bill is a step forward.
I will speak first to amendments 118 and 119. Amendment 118, together with consequential amendments to paragraph 6 of proposed new section 7A to the Government of Wales Act 2006 under schedule 1, and to paragraph 1 of proposed new schedule 7B under schedule 2, take us back to issues flowing from the Government’s insistence on retaining the single legal jurisdiction of England and Wales. In accepting that position, as we must following last Tuesday’s Division, we must now ensure that the Assembly has, within the single jurisdiction, powers that enable its legislation to be enforceable and effective, which is what amendment 118 would achieve.
In our view, the Bill as drafted would restrict the Assembly’s legislative competence inappropriately and reverse the competence given to the Assembly under the 2006 Act, section 108(5) of which allows the Assembly to make what might be termed “ancillary” provisions. At present, the Assembly has competence to legislate on matters relating to one or more of the listed subjects in part 1 of schedule 7 to the 2006 Act. That Act also provides that the Assembly has powers to make provision about non-devolved matters when that is done to make a devolved provision effective or to enforce a provision if it is otherwise consequential or incidental to the devolved provision. My understanding is that this is not the UK Government’s intention, meaning that our old friend unintentional consequences might well apply.
I am sure that the Government do not, in common with all parties in the House, intend to prevent the Assembly from making provision to enforce or to make effective devolved legislation. However, the Bill currently either prevents that, or is unclear about whether the Assembly will have the same ability as at present. Under the reserved power model, an Assembly Act will be outside competence if it relates to a reserved matter in proposed new schedule 7A. There is no express equivalent in the Bill to section 108(5) of the 2006 Act. Provisions relating to reserved matters will be outside competence and will not be law even if the intent of the provision in question is confined to making legislation effective or to enforce it. Other provisions are designed to address this issue, but Welsh Government officials have provided the Wales Office with several examples of when the Bill as drafted would have prevented uncontentious provisions in Assembly Acts from being included in that legislation.
These are not hypothetical problems. We have a strange history of the consequences of legislation. We have sometimes had legislation that was cumbersome and slow, while we have also seen judge-driven legislation involving Acts that were subject to adjudication by people outside Wales. Unless the Bill is amended as we propose, the Assembly’s ability to make its legislation enforceable and effective will be inappropriately constrained, and I do not believe that that is the Secretary of State’s intention. We shall not press the amendments to a Division, but I urge the Secretary of State to give very careful consideration to the issues that they raise, to instruct his officials to discuss them further with Welsh Government officials and to table amendments on Report that reflect an agreed position on this important issue.
Let me mention some of the general principles that should apply to our consideration of the schedule of reserved matters. In a reserved power model, it is for the UK Government to explain why the relevant subject matter must be reserved to the centre—to the UK Parliament and Government—for decision. Much of the schedule’s content is uncontroversial. It is common ground that matters such as foreign affairs, the armed forces and the UK’s security system should be determined at a UK level. On other matters, however, the situation is more contested. If reservations affect the Assembly’s existing competence, it is vital that the case for them is made explicitly and that the drafting of the relevant provision is precise and specific. That is essential to protect the Assembly’s ability to legislate coherently and within its competence.
Amendment 83 deals with policing, which is an interesting subject area in which change is desirable. The UK Government’s own Silk commission recommended devolution of policing on the basis that it is a public service that is a particular concern to people in their daily lives, and therefore similar to health, education and the fire service. That conclusion was reached in the light of extensive evidence, including from professional police bodies, chief constables and police and crime commissioners. I understand that the four present PCCs in Wales are in favour of such a change, and opinion polls show clear public support for it.
Silk noted that devolution would improve accountability by aligning police responsibility with police funding, much of which already comes from devolved sources. In short, he argued that devolution would allow crime and the causes of crime to be tackled holistically under the overall policy framework of the Welsh Government. As Silk noted, present arrangements are “complex”, “incoherent” and “lack transparency”.
Policing is the only major front-line public service that is not at present the responsibility of the devolved institutions in Wales. That anomalous position means that it is significantly more difficult to achieve advantages of collaboration with other blue light services, which is strongly advocated for England in current Government policy, as well as with other relevant public services. Deleting the reservation would address that anomaly, but responsibility for counter-terrorism activity should not be devolved—I would continue to argue that it should be reserved under paragraph 31 of new schedule 7A. The Assembly would be able to legislate in respect of bodies such as the National Crime Agency and the British Transport police only with the consent of UK Ministers, because they are “public authorities” within the meaning of paragraph 8 of new schedule 7B, which restricts the Assembly’s powers in respect of such bodies.
After reflecting on the Silk commission’s recommendations, what is envisaged is the devolution of responsibilities predominantly for local policing. The key point is that devolution would enable police services in Wales to work even more closely alongside other devolved public bodies, with greater opportunities to secure improved community safety and crime prevention.
In England—this is a fine example on which we can base our recommendations—the UK Government are pushing forward the devolution of policing and justice powers with the greatest enthusiasm. Only last week, it was reported that the Minister responsible for prisons—the Under-Secretary of State for Justice, the hon. Member for South West Bedfordshire (Andrew Selous)—declared himself as
“a firm fan of devolution”.
Having signed over new powers to the mayor of Greater Manchester, he hailed
“a new dawn for the justice system”
that is
“run by locals, for locals”
and is an effective justice system that meets the needs of local people. However, in a reserved power model of devolution for Wales, there is an overriding imperative to keep the control of these matters in Whitehall. Where is the consistency and fair treatment for Wales? If something is good enough for Manchester, surely it is good enough for Wales.
Amendment 122 deals with antisocial behaviour. Whatever the outcome on policing, it is imperative that we do not reduce the Assembly’s existing competence for dealing with antisocial behaviour in devolved contexts. That is why there needs to be an amendment to paragraph 41 of new schedule 7A, which relates to antisocial behaviour. As drafted, the Bill would reserve matters that are currently within the Assembly’s legislative competence, such as antisocial behavioural matters relating to housing or nuisance. That would represent a significant reduction of the Assembly’s existing competence, so the Welsh Government amendment would narrow the reservation to more closely reflect the current situation.
Amendment 123 is on the vexed subject of alcohol. As drafted, the Bill would reserve the sale and supply of alcohol, and the licensing of provision of entertainment and late-night refreshment. The amendment would delete the reservations and allow the Assembly to legislate on those matters.
Alcohol misuse is a major public health issue and a principal cause of preventable death and illness in Wales. It can lead to a great many health and social harm problems, in particular for a significant minority of addicts and people who drink to excess for other reasons. Given those impacts and the direct link with devolved responsibility for public health and the NHS, there is a pressing need to tackle alcohol misuse, so the Assembly and Welsh Government must have the full range of tools at their disposal. Policies that control the way in which alcohol is sold and supplied are widely acknowledged to be among the most effective mechanisms for tackling alcohol-related harms. Regulating the availability of alcohol is an important way to reduce the harmful use of alcohol, particularly by tackling easy access to alcohol by vulnerable and high-risk groups. Licensing controls are an essential tool which must form part of the Welsh Government’s strategy to tackle alcohol- related abuse. The reservations place unnecessary and inappropriate constraints on action to tackle alcohol availability in Wales. Those powers are devolved in Scotland and in Northern Ireland, where similar public health challenges were faced, and they should also be devolved in Wales.