Wales Bill

Lord Bourne of Aberystwyth Excerpts

2nd reading (Hansard): House of Lords
Monday 10th October 2016 Lords Chamber

Moved by

[Lord Bourne of Aberystwyth]

That the Bill be now read a second time.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I am pleased to be here today to open this important debate on the Wales Bill. It is an open question when Wales began its devolution journey. Some would begin with the creation of the post of Secretary of State for Wales in 1964 and the establishment of the Welsh Office in 1965, but for many Welsh devolution began in earnest with the referendum in 1997. Parliament has legislated on Welsh devolution three times since then, in 1998, 2006 and 2014, with each Act seeing an incremental change to the Welsh devolution settlement.

I think it is fair to conclude that Welsh devolution has never achieved a settled state. On the one hand this dynamism is positive, and has encouraged an ongoing and open debate about Welsh devolution and Wales’s place in the wider United Kingdom. On the other, the fluidity of Welsh devolution has distracted from focusing on the issues that really matter to people—the economy, jobs and public services in particular.

Back in 2011, the coalition Government established a process to develop a stable devolution settlement for Wales for the longer term. They set up the independent Silk commission, led by Sir Paul Silk, to review the financial and constitutional arrangements in Wales. For me personally, this Bill represents at least in part the culmination of those three years of work that began at the time the Silk commission started in 2011, when I was a member, at the request of the then Secretary of State for Wales, my right honourable friend Cheryl Gillan. Many of the recommendations in the commission’s second report are being implemented in the Bill.

After the commission concluded its work, the former Secretary of State for Wales established the St David’s Day process to identify those recommendations in the second Silk report which commanded a consensus across the parties in Wales. The outcome of that process, the Saint David’s Day agreement, published in February 2015, forms the blueprint for the Bill.

At this point, I thank both my right honourable friend Stephen Crabb, the then Secretary of State for Wales, and the noble Baroness, Lady Randerson, who played a significant part in framing the work that has gone into the Bill and taking it forward.

The Bill delivers a clearer and stronger Welsh devolution settlement and an Assembly and Welsh Government more accountable to the people they serve. Welsh devolution will be clearer by implementing a new reserved powers model, providing a well-defined boundary between what is reserved and what is devolved. It will be stronger by devolving further powers to the Assembly and Welsh Ministers in areas such as elections, the Assembly’s internal processes, transport, energy and the environment. The Bill makes the Assembly and Welsh Government accountable for raising more of the money they spend by paving the way for the introduction of Welsh rates of income tax without the need for a referendum.

The Assembly and Welsh Government have come of age. They are now mature institutions and part of the fabric of Welsh political life. The Bill recognises this new maturity in some key ways. First, the Assembly and Welsh Government are recognised as permanent parts of the United Kingdom’s constitutional arrangements, not to be abolished unless the people of Wales decide in a referendum in favour of doing so. This statement recognises what we all know to be true: that the Assembly and Welsh Government are part of the United Kingdom’s constitutional fabric and are here to stay.

Secondly, the Bill gives important recognition to the body of Welsh law made by the Assembly and Welsh Ministers, forming part of the law of England and Wales. Thirdly, it puts the convention on legislative consent on a statutory footing, as is already the case for Scotland, making clear that Parliament will not normally legislate on devolved matters without the Assembly’s consent.

The constitutional debates of recent years demonstrate the need to reset the devolution settlement for Wales. We all want an end to the incessant squabbles over powers between Cardiff and Westminster and to see Welsh devolution set on a firmer foundation, enabling the Welsh Government to focus on the things that really matter to people—improving the Welsh economy, securing more Welsh jobs and improving devolved public services.

We need to move to a new way of thinking about Welsh devolution based on a reserved powers model. By implementing this new model, the Bill provides for a clearer and more stable settlement that will last for the longer term. Anything not reserved to the UK Government is devolved, and the Assembly will be able to legislate on it.

The new reserved powers model of Welsh devolution has been the subject of a great deal of public debate over the last year since the Government published the Wales Bill in draft. My right honourable friend the Secretary of State for Wales, his predecessor, the right honourable Member for Preseli Pembrokeshire, and I have discussed the Bill’s provisions with many who have an interest in the future of Welsh devolution. We listened to the concerns expressed during that debate about aspects of the draft Bill, and we have acted on them.

The Bill before us today is significantly improved from the one we published in draft. It includes a list of reservations that is shorter, with more precisely drawn boundaries. It contains fewer tests for legislative competence, and it gives the Assembly more discretion to enforce its legislation by being able to modify the private law and criminal law for devolved purposes.

A key part of delivering a clear devolution boundary is defining which public authorities are devolved and which are reserved. The Bill defines those public authorities that are devolved public authorities accountable to the Assembly or Welsh Ministers. It describes those authorities as “Wales Public Authorities” and lists them at Schedule 3 to the Bill. All other public authorities are reserved authorities, accountable to Parliament or United Kingdom Ministers. The Assembly can legislate on reserved authorities only with the consent of United Kingdom Government Ministers. It is surely right that the consent of United Kingdom Ministers is sought in order for the Assembly to modify the functions of a body accountable to UK Ministers.

The Bill, and accompanying secondary legislation, will also provide clarity on how so-called pre-commencement Minister of the Crown functions are to be exercised in future. For those noble Lords unfamiliar with this term, let me explain that “pre-commencement” functions are functions exercised in devolved areas by Ministers of the Crown before the Assembly assumed full law-making powers following the 2011 referendum. We want to be clear how such functions are to be exercised under the new reserved powers model.

Last week, I wrote to noble Lords with an indicative list of those functions we intend to transfer by order. Most functions not subject to transfer will be exercised concurrently or jointly by Ministers of the Crown and Welsh Ministers. The Bill lists those functions at Schedule 4. There remain a handful of functions which Ministers of the Crown will exercise alone. Those are listed at paragraph 11 of Schedule 2.

I shall now say something about the single legal jurisdiction of England and Wales, which was an important part of the debate around the draft Bill. There were some who questioned whether a reserved powers model for Wales could work within the shared jurisdiction of England and Wales. There was a great deal of debate about whether Wales would be better served by a separate legal jurisdiction. Some favoured a distinct jurisdiction with largely autonomous arrangements for Wales, although common agreement on what is a distinct jurisdiction proved elusive.

The Government listened carefully to the concerns raised, but we have been clear and resolute throughout that the single legal jurisdiction of England and Wales has served both nations well for centuries and continues to do so. We do not intend to modify that. The single jurisdiction can readily accommodate a growing body of Welsh law without the need for separation, and there are many reasons why separation would be detrimental to Wales.

Of course, Wales has a distinctive legal identity. I think we would all recognise that. It has two legislatures and a growing body of law made by the Assembly and Welsh Ministers—a fact that this Bill recognises formally for the first time. This recognition is important, but let me assure the House that it is set firmly in the context of maintaining the single legal jurisdiction of England and Wales. The Bill enables the Assembly to modify the private law and criminal law for devolved purposes, enabling the Assembly to create offences to help enforce its legislation, as it does now. The Assembly will not be able to modify a small number of the gravest offences, such as homicide offences and sexual offences, ensuring consistency across the England and Wales single legal jurisdiction.

Of course we need to adapt to the growing body of Welsh law created in the Assembly and by the Welsh Ministers. That is why the Government have established a working group of officials to examine how administrative arrangements for justice in Wales can be improved. I look forward to informing the House of the group’s findings later in the autumn. I should also say that I have written to both the Ministry of Justice and the Department for Education, encouraging action to ensure that law schools throughout England and Wales take account of the growing body of Welsh law and that that devolved element is taught as part of law courses and is carried forward into professional courses as well, such as those for the Bar, solicitors, legal executives, and so forth.

The Bill delivers more accountable, devolved government for Wales. With the coming of age that I have already talked about comes renewed responsibility and a need for the Assembly and Welsh Government to become truly accountable. A key element of this is removing the need for a referendum to introduce Welsh rates of income tax, which will mean that the Welsh Government can take on more responsibility for how they raise money as well as how that money is spent. It gives the Government an interest in ensuring that the economy in Wales is performing well. The reward for that will redound to the Welsh Government, who are being given this power to exercise for a purpose consistent with the mandate of a particular Welsh Government.

Tax-raising powers are a key part of the Assembly truly becoming a Parliament. The Wales Act 2014 devolves stamp duty and landfill tax; we took forward the full devolution of business rates in April last year. The devolution of Welsh rates of income tax—not all income tax, of course, just 10p—will complete the process of fiscal devolution for Wales as set out in the 2014 Act, delivering truly accountably devolved government for the first time.

The Bill makes Welsh devolution stronger by devolving a significant package of new powers to the Assembly and Welsh Ministers. These are powers for a purpose, giving the Assembly and Welsh Ministers the tools to improve the day-to-day lives of people in Wales. The Assembly and Welsh Ministers will have strengthened powers over transport in Wales, including speed limits and traffic signs on Welsh roads; the registration of bus services; and the regulation of taxis and private hire vehicles. We are devolving policy over ports in Wales, apart from Milford Haven, which is of strategic importance to the UK state. Welsh Ministers will decide, too, whether energy projects in Wales up to 350 megawatts generating capacity should be built. Decisions on whether fracking takes place in Wales will in future be made in Wales. We have already devolved all onshore wind consents in the Energy Act—that is without limit. Noble Lords will recall that I took that through this House earlier this year.

On the environment, the Bill will devolve new powers over marine licensing and marine conservation zones, as the Silk commission recommended, and we are continuing to consider the outcomes of the work between the UK Government and the Welsh Government, looking at the devolution boundary for water and sewerage, with a view to taking that forward.

Finally, but significantly, the Bill also gives the Assembly control over its own affairs—something that, arguably, should have happened some time ago—including elections to the Assembly itself, the franchise, and the electoral system for Assembly elections and the number of Assembly Members. Importantly, the Assembly will be able to decide what it should be called. If the Assembly wishes to rename itself the Welsh Parliament, for example, as many would consider appropriate, it will be able to do so. That reflects the maturity of the Assembly, which I spoke about earlier. It is only right that the Assembly should be responsible for these issues in Wales, just as the Scottish Parliament now is in Scotland. These new powers deliver a powerful legislature for Wales, irrespective of what it decides to be called. Welsh Ministers will have new levers to improve the economy and public services in Wales, and important new responsibilities over natural resources and the environment.

I know that many here today will want to speak, and I look forward to hearing an interesting and stimulating debate from people who know a great deal on the subject of devolution in Wales. I will conclude by saying that the Bill sets the course for a stable and lasting devolution settlement for Wales. It builds a new Welsh devolution settlement on the solid foundations of a reserved powers model. It is much improved on the draft of a year ago. I commend it to the House.

Wales Bill

Lord Bourne of Aberystwyth Excerpts

2nd reading (Hansard - continued): House of Lords
Monday 10th October 2016 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, this has been a debate of rare quality. As has been said, we have had contributions from five former Secretaries of State—the noble and learned Lord, Lord Morris, and the noble Lords, Lord Crickhowell, Lord Hain, Lord Hunt and Lord Murphy—all, obviously, with vast experience of this area. We have also had a contribution of rare quality as a maiden speech from the noble Baroness, Lady Bloomfield. It was truly excellent and I am sure we all look forward to many contributions from her in the future, not only on Wales but focusing very much on it. We have also benefited greatly from the contributions of former Assembly Members, party leaders and former Ministers, from the noble Baroness, Lady Randerson, to the noble Lords, Lord Wigley, Lord Howarth and Lord Elis-Thomas, who also brought their great experience to bear.

I will try to deal with key points that have been made during the course of the debate. Obviously I look forward to engaging in Committee and thereafter on some of the detail. There is a genuine feeling that we want to move forward in a consensual way, as far as possible, and obviously many areas of the Bill have been welcomed pretty much universally—not least in the contribution of the noble Baroness, Lady Gale, on some of the internal workings, elections and so on, which we both agree should have been matters for the Assembly from a much earlier date—probably well preceding 2014.

I thank the noble Baroness, Lady Morgan of Ely, for her kind words in opening. We go back a long way together on devolution matters and I know that she is now adding her wisdom to the counsels of the Assembly. I thank her for what she said and look forward to engaging on some of the issues that she quite fairly set out.

Let me look at some of the key ones. First, on taxation, I can reassure the noble Lord, Lord Hain, that there is no neoliberal assault on the part of the Government. This is a pragmatic approach to an issue that it is high time that the Welsh Assembly—who knows, henceforward perhaps the Welsh Parliament—were able to deal with. It is appropriate that a body of such maturity has the tax powers we are talking about.

It is not, of course, a wholesale tax package. Listening to one or two noble Lords, it sounded as if we were devolving the whole of income tax powers to Wales. That is not the case. We are devolving 10p and there is an ability for the Government of Wales—which is currently the Labour Party, with a Liberal Democrat Minister—to set that at current rates. There is no obligation to vary it. They have to set a rate but they are quite at liberty to set it at the existing rate if that is what they want to do. We have taken away the condition that they are obliged to vary all the rates together. The lock-step has gone, which means that they can be varied quite separately.

That is appropriate now, devolution having come so far. It is nearly 20 years since there was the issue of whether a separate question being put in Scotland should be put in Wales, and a lot of water has flowed under the bridge. We would not be doing Wales any great service by holding things back and saying that there has got to be a referendum on the issue. There is no assault on the state. Listening to the present Prime Minister, it is quite clear that she realises that the state has a powerful role to play. That seems to strike a chord with the electorate because that is where the electorate is, too. That is important. I disagree on this issue with my noble friend Lady Finn. It is appropriate that we move forward on this without greater delay because, in my view, it would hold back Wales.

Moving on to look at that in the wider context of the fiscal framework and the question that the noble Baroness, Lady Morgan, put to me initially about whether we should wait until we have got the legislative consent Motion, I can assure her that I think that that is absolutely appropriate. Although legally we could move this legislation forward without the LCM, that would not be the appropriate thing to do. We are looking for progress from the Welsh Assembly and, as I understand it, discussions between my right honourable friend David Gauke, the Chief Secretary, and Minister Mark Drakeford are going well. I hope that progress continues and that I will be able to give more details to noble Lords as matters progress. That is certainly our intention.

[Lord Hain]

I welcome what the noble Lord said. Could he give some guidance as to whether clarity on the financial framework will be provided before Report in this House?

[Lord Bourne of Aberystwyth]

I anticipate that it will be, but it does not have to be. Obviously we will want to make sure that steady progress is being made before Report. As things progress it is anticipated that we could have agreement on these issues before Christmas, but I will ensure that the House is updated on this. As I said, I certainly anticipate we will not go to Third Reading without it and probably we will not go to Report—but I will want to make sure we are making the progress to which I referred before we commit to taking it to Report.

I move to the question of the single jurisdiction. I think there was broad support for saying that, certainly at this stage, there is no desire to move away from a single jurisdiction. I have spoken to representatives of every single law school in Wales and that is pretty much their feeling. It is also the feeling of many practitioners in Wales. We would not be doing Wales any great favours by differentiating the Welsh jurisdiction from the English jurisdiction. It is quite possible, even at this stage, to accentuate and overemphasise the differences that exist. Historically, they are not great. It is very different from the position in Scotland, where the Scottish jurisdiction historically has been very different. So parallels there are not appropriate.

There is a body that is looking at the legal arrangements. As I have indicated, I will update noble Lords on how that body is getting on, because there is an appropriate interest in making sure we have Welsh judges—when I say “Welsh judges” I mean judges not necessarily of Welsh nationality but with Welsh experience—deciding issues that are steeped in Welsh law. That is quite appropriate and what the administrative arrangements we are looking at should take hold of.

I move on to look at reservations—another key area which overlaps to some extent with the Welsh jurisdiction issues around the separate position on alcohol. I well remember as a student at Aberystwyth that the time I felt most thirsty and in need of a drink was on a Sunday. Inevitably, the only place you could get a drink on a Sunday in Aberystwyth was the student union because it was membership only. Of course, the queue was about a mile long to get there. The alternative in those days was getting a bus into Montgomeryshire, which was a popular thing to do. So I can understand the strong feelings that exist on that issue.

Some of the points made on reservations were somewhat wrongheaded. The noble Lord, Lord Howarth, mentioned the position on knives in relation to the position on devolution to cities. Of course, cities will not have legislative powers in relation to knife crime, so I do not think it is a perfect analogy—but no doubt we can look at this as things develop in Committee. The noble Lord, Lord Elis-Thomas, said that adopting a reserved model is not a solution to all ills. Hear, hear to that. I never thought it would be. Obviously, the discussion on this will be about what is and what is not reserved. I am sure that we will take different views on some of that, but I look forward to discussing it when we come to Committee.

It is great to see the noble Lord, Lord Elystan-Morgan, in his place, firing on all cylinders as always. I thank him for his kind comments. I do not agree with his position on dominion status. I do not hear that as a great clarion call for something that the people of Wales want, but I understand that he has some material points to discuss in relation to reservations and I look forward to hearing them as we move forward.

The conferred model was silent about many issues that nobody would ever anticipate, as opposed to reserved issues such as defence, immigration, the Crown and foreign affairs. Sensibly, nobody was suggesting that therefore these were matters the Welsh Assembly could deal with. It is quite a difficult manoeuvre to go from conferred to reserved. I am very grateful that noble Lords have recognised that we have made progress on this. I look forward to hearing from noble Lords on some of the remaining issues of concern.

I will touch on one or two other aspects raised by noble Lords that are worthy of further investigation. One, brought forward by my noble friend Lord Crickhowell and echoed by the noble Lords, Lord Murphy and Lord Morgan, was the importance of working with existing institutions—perhaps getting the physics right, not just the chemistry, of the relationship between different Ministers to make sure we have some underpinning for when it is necessary for decisions, policies or interactions to be discussed between Cardiff and Westminster. That is a very good point that I will take away and look at to see what we can do on it.

Without getting into the purely philosophical, another issue that the noble Lord, Lord Elis-Thomas, mentioned was the permanence of the Assembly and the strength of the new clause that says the Assembly is permanent. That was something pushed for very hard by the Plaid Cymru representative on the Silk commission—but, on that issue, just as the India Act could in theory be repealed by the Westminster Parliament, I would not overlook the symbolic importance of including the clause that states that the Assembly is permanent because it perhaps underlines the way it is regarded politically. It is a matter of political realities. I am not suggesting that we can alter the Kelsen Grundnorm of the fundamental basis of the constitution, but it is something that has been widely welcomed.

As I said, this has been a debate of rare quality. I thank noble Lords for engaging constructively and I look forward to that constructive approach continuing. Lastly, air passenger duty is not just an issue of the potential unfairness to Bristol, which clearly was and, in the interim, remains an issue relating to the state aid position. It is also a question of fairness within the United Kingdom and in Wales. There is a great danger that we see this as just a tax, the variation of which can help Cardiff Airport. People in north Wales would not consider using Cardiff Airport; they use airports in England. Likewise, in central mid-Wales they would use Birmingham. It is a much broader issue of whether we do something about air passenger duty—as a Treasury issue, that is well beyond my pay grade—across the whole of the United Kingdom, which remains a possibility.

Once again, I thank noble Lords very much for the constructive way they have engaged. I look forward to Committee and continuing to provide information as it becomes available on the way that discussions are proceeding between the Treasury and Cardiff Bay. I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Wales Bill

Lord Bourne of Aberystwyth Excerpts

Committee: 1st sitting (Hansard) : House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, I wholeheartedly agree with the submission made by the noble Lord, Lord Wigley. He has adumbrated all the arguments that I can possibly think of in support of this amendment. It goes to the very heart of the question that this is essentially a contract, not inter-institutional in terms of the mechanics of Westminster, but a contract with the people of Wales.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank the noble Lord, Lord Wigley, for introducing this amendment, and the noble Lord, Lord Elystan-Morgan, for his contribution. The amendment seeks to define the trigger for a referendum to abolish the National Assembly for Wales and the Welsh Government, and would provide that the rules for such a referendum be drawn up by the Assembly in co-operation with the Electoral Commission. Clause 1 meets the Government’s commitment in the St David’s Day agreement and delivers the Silk commission’s recommendation that it should be recognised that the National Assembly is permanent so long as that is the will of the majority of the people of Wales. New Section A1(3), in Clause 1, states:

“In view of that commitment it is declared that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum”.

As matters stand, referendums are governed by the law relating to referendums, as passed by this Parliament, and I do not consider that there is any suggestion that that should be varied. The principle in the Bill establishes in statute what is already recognised to be the case—that the National Assembly for Wales and the Welsh Government are permanent parts of our constitutional fabric. The referendum provision strengthens this commitment and delivers on the second limb of the Silk commission’s recommendation. Although there has never been a question about whether these institutions are anything but permanent, it is only right that if they were to be abolished that would have to be on the basis of a decision by the people of Wales. Let me be clear that such a referendum is not envisaged, and so the noble Lord’s amendment deals with entirely hypothetical circumstances. I therefore believe that it is unnecessary. On that basis, I urge the noble Lord to withdraw the amendment.

[Lord Wigley]

Perhaps I may press the Minister to be a little clearer on this matter. Is he telling the House that there are no circumstances in which a Government in Westminster, in this Chamber or the other Chamber, could move to hold a referendum if the National Assembly for Wales were against holding such a referendum? Or is he saying yes, Westminster can pass such a referendum irrespective of the wishes of the National Assembly?

[Lord Bourne of Aberystwyth]

My Lords, the noble Lord will know that I do not set out the rules on the sovereignty of Parliament. He will be aware, as I am, that very recently we have seen situations that demonstrate the sovereignty of the people and the sovereignty of this Parliament, so nothing I say could obviate the possibility of a Parliament coming forward subsequently and reversing that. For example, it would be open to any Parliament here to repeal the Government of India Act. That would not be a sensible move and would not be politically realistic, but in terms of the sovereignty of Parliament, of course, that remains the case. This is an important declaratory principle that has not existed previously, indicating the permanence of the institution and the fact that it is the belief of this Parliament that it should not be done without the consent of the people of Wales.

[Lord Elystan-Morgan]

Does the Minister agree that this matter would be caught by the words of new subsection (6) in Clause 2:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly”?

In other words, it is the Sewel covenant. The Government would fall foul of that, it seems, if they were to act in a cavalier way.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his assistance on this matter. He is right that this provision gives that convention statutory force but, of course, it does contain the word “normally”; therefore it is still subject to the will of the Parliament of the United Kingdom. He is right that in normal circumstances that would be impossible to do.

[Lord Elis-Thomas (Non-Afl)]

I do not wish to anticipate any major contribution that I may have to make on my own amendment on the word “normally” later on, but I do not believe that the Minister has really answered the question from my colleague the noble Lord, Lord Wigley, who asked whether the Parliament of the United Kingdom could legislate for a referendum on the future of the National Assembly without the consent of the Assembly. It seems to me that if we are legislating, as we are in the Bill, for the convention relating to the legislative consent Motions to be part of Welsh law and devolution law, then surely, in a situation where the future of the Assembly were subject to a referendum, consent should be sought. Or is the Minister allowing a little room for the removal of the Assembly without the consent of its Members?

[Lord Bourne of Aberystwyth]

My Lords, I think the noble Lord knows me better than to think that that is on my mind at all. I was not the person who brought forward this amendment. I am unable to rewrite the rules on the sovereignty of Parliament; I was merely pointing out the legal position in relation to this. There is a very clear declaration that is consistent with the Silk recommendation which was discussed by the Silk commission. It is not to be anticipated in any way that this Parliament would wish to do anything relating to the National Assembly except celebrate its existence. I make that absolutely clear; it is my position and the position of my party, as the noble Lord knows. I just point out that this cannot overrule the rules of science and of parliamentary sovereignty that exist independently of the amendment.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I am not sure that it is in order that I respond, but I will happily talk to the noble Lord outside the Chamber and report to other Peers. I have to say to the noble Lord that the declaratory statement was something pushed for by his party. I am very surprised that he then says that this does not have any significance, because his party pressed for it very hard. I would have thought he would welcome it being put in legislation.

[Lord Wigley]

I am grateful for that addition. Of course there are things that one declares. The question is whether one declares them intending them to have the force of law, which is what we are dealing with here—we are dealing with legislation. I will now go on from that; no doubt we can have a private conversation about it.

I believe that the people of Wales are entitled to know where they stand, in particular about the possibility that, if the going gets rough, Westminster can organise a referendum with a view to abolishing the National Assembly. That is not a good basis on which the Bill should be built. I welcome the declarations made regarding permanence. I was just looking for a way to ensure that that is the position in law, as well as in declaration, but we have probably taken this as far as we are going to this afternoon, so I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, with respect, I think that this is the next amendment.

[Lord Judge]

The Minister may well be right, but I listened to the noble Lord, Lord Elis-Thomas, talking about “normal” in the context of Clause 2. At some stage I want to make the point, so perhaps I may just finish making it, because I do not want to take long about it. Please can we look at the matter in the context of Clause 53 and, in particular, Clause 53(6) concerning statutory instruments, powers vested in the Secretary of State, affirmative resolution, and so on:

“unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”?

It totally omits reference to the National Assembly for Wales, yet in Clause 2 we are told that the Government will not normally legislate without the consent of the Assembly. Somewhere along the line, this bridge has to be crossed.

--- Later in debate ---

[Baroness Randerson (LD)]

My Lords, I rise with some trepidation among so many distinguished lawyers to make two brief points about the argument we have been having. The Government have acknowledged that there is a problem by setting up this working party, but I am not persuaded that they have done anything other than offer the working party as a sop to those who are concerned about this issue. If the working party was going to be rigorous and reach any kind of useful conclusion for us, it would have met several times by now. Otherwise it is up to the Government to say to us today that it will not be reporting this autumn but, rather, at some point in the distant future because it has discovered that there is a great deal of work to do. I therefore support the amendment tabled by my noble friend Lord Thomas because I believe that three years is a reasonable timescale for a commission to look rigorously and thoroughly at all the aspects of this.

I also endorse the comments of the noble and learned Lord, Lord Morris of Aberavon. The consolidation of Welsh law is becoming increasingly urgent. I know that the Minister is aware of it, having been a Member of the Welsh Assembly. Because the Assembly puts things on its website on the internet, they are not available in the printed format in which most law is available. People can find it difficult and complex to seek out legislation in order to find out which is the most recent version of the law. That issue needs to be discussed. Moreover, something that no one has mentioned so far in the debate is EU law, much of which has been incorporated into Welsh Assembly legislation. Once we have the great repeal Bill, I would ask the Minister how it is anticipated that this will be recognised within the single jurisdiction and whether the working party is considering the issue of EU law.

[Lord Bourne of Aberystwyth]

My Lords, this has been a wide-ranging debate on what is clearly an important matter. I turn first to the contribution of the noble Lord, Lord Wigley, who put his case very passionately, as he always does. He addressed some of the important issues in this. Perhaps I may make several points, the first of which relates to a matter he raised and which, I think, was touched on by the noble Lord, Lord Carlile, or perhaps it was the noble Lord, Lord Thomas of Gresford. The administration of the courts is quite separate, I think, from the issues of the actual sources of law and separate jurisdiction. The second point I would put to him and indeed to other noble Lords is that to some extent this is a question of semantics. We can say now that we have a separate jurisdiction because we have separate arrangements in relation to Wales. That is undoubtedly the case and some of them are already in place. So I appreciate the points that are being made, but there are shades of grey here. It is not as if it is all or nothing or as if separate arrangements are not being made for Wales now in relation to cases and judicial process; that is certainly the case.

I should also say that what the noble Lord is putting forward represents a massive change which I do not think is necessary. If you speak, as I have done, to people in the law schools of Wales and ask them how many students are actually opting to study devolved law as it is at the moment, you will find that it is a handful. I was stunned because I thought that far more would do so. I do not say that with any pleasure, but it is an indication of the fact that this is an evolving situation and as things stand we do not really have a pressing need for a separate jurisdiction in the way that he has talked about. I do not think that that is the case. Having spoken to practitioners and independent members of the Silk commission, I know that they, too, believe that there is a danger of throwing out the baby with the bathwater. The law schools of Wales recruit students not only from England but from overseas, which is a massive market for them. I know that the noble Lord would not want to jeopardise that. Practitioners, too, talk about the importance of the legal system that we have at the moment. That was exemplified by the noble Lord, Lord Carlile, in talking about the porous nature of the border and the fact that we have to recognise that.

It is right that the working party has met only once so far—I think that it is in Cardiff as we speak and is meeting legal practitioners and lawyers tomorrow. That was not suddenly set up; one cannot suddenly issue invitations in that way. The noble Baroness, Lady Morgan of Ely, was right to say that there is a forthcoming meeting—I think that it is on 7 November, although I am not absolutely certain of that date. The Welsh Government are invited to it, as they were to the first meeting—I think that they attended the first meeting, but I stand to be corrected on that . I will endeavour to ensure that ahead of Report—I will come back to the question of Report in a minute—noble Lords have a summary or details of what has happened so far and of the people on the working party.

All I can say about Report is that we do not know when it will be. I was rightly pressed to say that we would not get to Report because of the need for an LCM from Cardiff. I am not a magician; I cannot say with absolute certainty when Report will be, but I will endeavour to ensure that insofar as we have information, noble Lords are apprised of it as soon as possible and ahead of Report.

Turning to points made by others, I am grateful for the contribution of my noble friend Lord Crickhowell on the complex and detailed nature of the proposal, and to the noble and learned Lord, Lord Hope, who spoke of sympathy with the general point but acknowledged that we are not at this stage in a situation of wanting a separate jurisdiction. We need to ensure that separate arrangements exist for cases that have a Welsh dimension and that practitioners and judges are steeped in Welsh law if such cases involve Welsh law. I accept that and we are looking at it. I take the point that we should look at this matter on a continuing basis, because it is right that it is an evolving picture. I do not think that we are currently at the stage of wanting a separate jurisdiction, but we need those separate legal arrangements and to make sure that the interests of Welsh litigants, Welsh witnesses, Welsh practitioners and Welsh law schools are all taken care of.

I will take away the points made about the commission. I do not think that a statutory commission is the right answer, but we need a body that looks at this matter on an ongoing basis—I have sympathy with the point made by the noble Baroness, Lady Morgan, that it is an evolving picture. I have sympathy, too, with the points made by the noble Baroness and the noble Lord, Lord Elis-Thomas, about the sources of Welsh law. I shall take those away and reflect on them before Report.

I thank the noble and learned Lord, Lord Morris of Aberavon, who has vast experience not just of Wales but of the law, for his comments about the need for administrative arrangements and the consolidation of legislation—it was a point well made. My noble friend Lord Deben assured me that he was not being mischievous in putting forward his point; I did not think for a minute that he was. It is absolutely right that we need the evidence from the working party ahead of Report. As I have said, we know that Report is a little way ahead because of the need for an LCM from the Welsh Government before we can proceed, so I hope that we have that in place. The noble Lord, Lord Elystan-Morgan, speaks with great experience, both judicial and political. I take his point about the symmetry of a separate judicial system where one has a separate Parliament and can understand his cri de coeur as a Welshman, but, as he rightly said, we have to recognise that we need to address practical issues in relation to ensuring proper protection for Welsh practitioners, As to Welsh students and Welsh lawyers, we want the best Welsh lawyers to be able to serve in Wales rather than be encouraged over the border because they feel that a separate system has been set up. All those points need to be taken into account and I do not want to shy away from them in any way. We have to do what is right for Welsh law, but, as I have said, it is an evolving picture at the moment rather than one that demands a separate jurisdiction. With the assurances that I have given, I urge noble Lords not to press their amendments.

Wales Bill

Lord Bourne of Aberystwyth Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I was in this Chamber when this issue first arose in 1998 in the then Scotland Bill. I heard Lord Sewel produce his sentence, which was hastily cobbled together. There was no thought behind it. It was not part of the government programme at that time, but he was under great pressure from Scottish Peers to define when the Westminster Parliament would act where Scotland had competence. He came out with his phrase, using the word “normally”, in that context. It has found itself into the Scottish legislation and has been adopted for the purposes of this legislation.

It is an unsatisfactory solution. There are no doubt exceptional circumstances, such as a declaration of war or something of a really serious consequence, when the Westminster Parliament may wish to overrule the Welsh Assembly or act in its place, but the word “normally” does not cover that. It is open to huge misinterpretation and the sort of litigation to which the noble and learned Lord, Lord Judge, referred in his contribution before the adjournment. The Government ought to excise the word altogether. I seem to recall it was still in contention as to whether it was a satisfactory phrase in consideration on the recent Scotland Bill.

I also support Amendment 8 in the name of the noble Baroness, Lady Morgan of Ely. I prefer it to the amendment tabled by the noble Lord, Lord Elis-Thomas, because it is disjunctive whereas his is not. An “or” at the end of his proposed new paragraph (c) might have made it a bit clearer.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank noble Lords who participated in the debate on this amendment. I turn first to the comments of the noble Lord, Lord Wigley. Clause 2 places the existing convention on legislative consent on a statutory footing. As the noble Lord, Lord Thomas of Gresford, just indicated, this is not something that the Government have suddenly dreamed up. It is an existing convention and something we committed to do in the St David’s Day agreement. As has been noted by various noble Lords, it is also in line with Section 2 of the Scotland Act 2016. The convention states that Parliament will not normally legislate on matters devolved to the National Assembly for Wales without the consent of the Assembly, or in the case of Scotland the Scottish Parliament. These amendments seek to broaden the convention in two ways. They seek to remove the “not normally” requirement and also seek to expand the circumstances in which Parliament would not legislate without the consent of the National Assembly for Wales.

That said—the noble Lord, Lord Elis-Thomas, is right that I am going to refer to the doctrine of the sovereignty of Parliament—I can, nevertheless, understand the points that have been made. I am grateful for comments about this from other noble Lords, including my noble friend Lord Crickhowell, and earlier from the noble and learned Lord, Lord Judge, who is not in his place at the moment. I will go back and have a look to see whether we are able to do something by guidance, but the whole nature of the “not normally” is that that there will be circumstances that are difficult to foresee.

The nature of this signals that they are not justiciable, because it is left to Parliament. However, in line with comments from noble Lords and in the interests of ensuring that we look at this from all angles, I will go back and see whether there is something that we can do in relation to guidance on the two issues in relation to devolved matters as raised by the noble Baroness, Lady Morgan of Ely, and the noble Lords, Lord Elis-Thomas and Lord Wigley. I urge the noble Lord to withdraw the amendment.

[Lord Thomas of Gresford]

I understand the Minister is saying that it is not justiciable as to whether the word “normally” is applicable in a particular case. However, it could be subject to judicial review if a Minister brought forward a Bill that was the subject of contention as to whether the circumstances were normal or abnormal. To say that it is not justiciable is not, I think, correct.

[Lord Bourne of Aberystwyth]

My Lords, I do not think that I said that. I said that it signals that it is not justiciable. I am making the point that noble Lords have been making about the generality of the phrase and that it is difficult to define, and it means that if Parliament decides something it can decide that this is not normal. That is the point about it. As I say, I will take it back and see whether we can accomplish what noble Lords are seeking in guidance.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that there are two problems here? First, the bar is set at a very low level—a level of “normality”. Secondly, as far as the word “normal” is concerned, although of course it appears in the two Scotland Acts, it does not seem ever to have been judicially interpreted in the courts. That is a considerable weakness. I take the Minister’s point that in a way it is a matter for Parliament to define itself—to define its own metes and bounds—which bearing in mind its absolute sovereignty are untrammelled, but nevertheless it is a crucial word in an Act of Parliament and as such it must be interpretable by the courts. I am afraid that, if the matter were raised before the higher courts now, they would say that “normal” means something that is not abnormal and they would leave us in the mists of uncertitude in that way.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his comments and for clarifying what I was intending to say, and I apologise if I had not made that absolutely clear. I have taken on board the points that are being made. I said that we will look at this in guidance, but as I have indicated there is a need for room for manoeuvre here, so I will take the points back and look at them.

[Lord Wigley]

My Lords, we are making progress. This is a good omen perhaps for a future amendment that is coming forward. I am grateful to the Minister for agreeing to take it back and look at it. It is always better to have something spelled out in the Bill quite clearly than to depend on guidance notes. Of course the objective of this Bill is to clarify and simplify the problems that have arisen over the past few years, not to dig more holes for ourselves. But in the spirit in which the Minister has offered to look at this again, I am happy to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Bourne of Aberystwyth]

11: Schedule 3, page 89, line 38, at end insert—
“ The advisory committee for Wales established under section 5 of the Food Standards Act 1999.”

[Lord Bourne of Aberystwyth]

My Lords, I will begin with government Amendments 19, 79 and 80, which relate to four cross-border health authorities. These are: NHS Blood and Transplant; the NHS Business Services Authority; the Joint Committee on Vaccination and Immunisation; and the Human Tissue Authority. The purpose of these amendments is to allow the Assembly to legislate to confer functions on these authorities in devolved areas without requiring the consent of a United Kingdom Minister. In recognition of their status as bodies serving both England and Wales, ministerial consent will apply in relation to any changes to these authorities’ constitutions.

Government amendments 11, 12, 15 and 16 add four authorities to the list of “Wales public authorities” in Schedule 3. Because they are now listed as Wales public authorities, the restrictions placed on the legislative competence of the Assembly in relation to “reserved authorities” will not apply to these bodies. The authorities being added are: the Welsh Food Advisory Committee to the Food Standards Agency; the Flood and Coastal Erosion Committee; the Independent Groundwater Complaints Administrator appointed under the Cardiff Bay Barrage Act; and the person appointed by Welsh Ministers under Section 3 of the Local Government and Housing Act 1989. My office has been working with the Welsh Government to produce a complete list of Wales public authorities when the Bill is passed. The inclusion of these four authorities in the list is one outcome of this work. Amendment 18 replaces the reference in the list to the Residential Property Tribunal Wales with a fuller legal description of the bodies covered by this umbrella term. Again, my office has worked with the Welsh Government on this change.

In Amendments 13, 14 and 17, the noble Baroness, Lady Randerson, and the noble Lord, Lord Thomas of Gresford, are seeking to remove the governing bodies of further and higher education institutions, the Higher Education Funding Council for Wales and regulated higher education institutions from the schedule of Wales public authorities. The noble Baroness and the noble Lord seem to be seeking to address concerns that have been raised with the Wales Office that the categorisation of these authorities as Wales public authorities will undermine the private sector status or the charitable status of higher and further education institutions in Wales.

I reassure your Lordships that the definition of Wales public authorities in the Bill does not affect the legal status of these institutions as both private sector corporations and charitable institutions. The purpose of new Schedule 9A is to set out an illustrative list of public authorities that fit the definition of Wales public authorities in Clause 4 of the Bill. It delivers a key part of the clarity we are seeking to deliver through the Bill by setting out clearly the public authorities that the Assembly and Welsh Ministers can legislate on without consent.

By removing these educational institutions from that list, the amendments would make their status within the Welsh devolution settlement unclear. This would cast doubt on the status of these institutions when the Government’s position is perfectly clear: education is a devolved matter and so the Assembly should be able to legislate in respect of educational institutions in Wales in an entirely unfettered way. However, I am happy to look in more detail at the precise concerns that are being raised. Welsh universities and further education institutions, as authorities exercising functions of a public nature in Wales, have been appropriately categorised in the Bill, but I will look to see how we can reflect their special position in the title of the schedule in order to stress the fact that they are different from other public authorities. On that basis, I beg to move government Amendment 11 and look forward to hearing from the noble Baroness and the noble Lord about their amendments, which I hope they will not move.

--- Later in debate ---

[Baroness Morgan of Ely]

My Lords, Schedule 3 will provide some welcome clarity about competence in relation to Welsh public authorities. So long as Assembly Bills meet the competence tests in the Wales Bill, the Assembly will be able to legislate in relation to Welsh public authorities without needing to seek the consent of the UK Government.

Most of the UK Government’s amendments add to or clarify the list, and we support them. We are also very content with the removal of special health authorities. I understand that they will be treated differently and need not be in Schedule 3. I beg to differ with Liberal Democrat Peers who suggested removing from the list of institutions in Wales a reference to the further or higher education sectors, the Higher Education Funding Council for Wales and the regulated institutions under the Higher Education (Wales) Act, to which my noble friend referred.

We do not think it appropriate to support any amendments which might act in such a way as to restrict the legislative competence of the National Assembly in respect of these further and higher education bodies. Having said that, I am very grateful to the noble Baroness, Lady Randerson, for outlining the real concerns of the institutions, which need to be addressed. I thank the Minister for agreeing to clarify this issue and for looking at attempting to reflect that special position and ensure that they can continue with their current status.

However, I am afraid that removing these institutions could create uncertainty in the future over the need for ministerial consent where a provision of an Assembly Act confers functions on such a body or removes them from it. No such uncertainty exists in relation to the current legislative competence of the Assembly, and the uncertainty would not arise in the future if these bodies remained on the list.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords for participating in the debate on this group of amendments. In response to the noble Baroness, Lady Randerson, and the noble Lord, Lord Thomas of Gresford, I will just perhaps restate some of the points I made earlier. Very much on the basis that we will still cover these institutions, if there is a way of looking at the nomenclature, such that we can seek to ensure that they have the continued strength and independence that they enjoy at the moment, we will do that, as that is very much in the best interests of Wales. We have first-class educational institutions at university and further education level, and we want to maintain that but at the same time ensure that they are brought within this part of the legislation.

I take the point that the noble Lord, Lord Murphy, made about the Higher Education Funding Council for Wales and agree it does not seem to be in the same category as the universities. I think the noble Baroness, Lady Randerson, agrees with that. That is different in nature, but if there is a way of protecting the universities and the further education bodies and their charitable status, at the same time as covering them within the Welsh public authorities, universities and so on, I am keen to do that, and will ensure that we look at the Bill in that regard. I thank noble Lords who brought forward these amendments but urge them not to press them at this stage.

Amendment 11 agreed.

Moved by

[Lord Bourne of Aberystwyth]

12: Schedule 3, page 90, line 30, at end insert—
“The Flood and Coastal Erosion Committee or Pwyllgor Llifogydd ac Erydu Arfordirol.”

--- Later in debate ---

Moved by

[Lord Bourne of Aberystwyth]

15: Schedule 3, page 91, line 6, at end insert—
“The Independent Groundwater Complaints Administrator.”

--- Later in debate ---

Moved by

[Lord Bourne of Aberystwyth]

18: Schedule 3, page 92, leave out lines 1 and 2 and insert—
“A rent assessment committee constituted in accordance with Schedule 10 to the Rent Act 1977 (including a leasehold valuation tribunal and a residential property tribunal).”

--- Later in debate ---

[Baroness Gale (Lab)]

My Lords, I thank my noble friends Lord Hain and Lord Murphy and the noble Lord, Lord Wigley, for bringing these amendments before us tonight. I am sure that we all agree that we have had a very good debate on them. I think that this is the first time we have ever debated the qualifications of candidates for the Welsh Assembly. It is something that we should all be looking at. The current qualifications for candidates are wide. A candidate has to be at least 18 years of age, be a British citizen, an eligible British Commonwealth citizen or a citizen of any member state of the European Union—but I suppose that that could change in the near future. There is also no requirement in law for a candidate to be registered as an elector in Wales. I believe that the qualifications for those who stand for the House of Commons are very similar.

That is very different from the qualifications required to be a local government candidate in Wales and England. Some of them are similar to those for standing for the Commons and the Welsh Assembly, but with one big difference. Candidates have to meet at least one of four criteria. They must be registered as a local government elector for the local authority area in which they wish to stand from the day of nomination onwards, or occupying as the owner or tenant of any land or premises in the area during the whole of the 12 months prior to the day of nomination and on the day of the election. The local government area must be the main or only place of their work during the 12 months prior to the day of nomination and on the day of the election, or they must have lived in the area during the whole of the 12 months before the day of nomination and on the day of the election.

It is clear that local government candidates must have some links with the area which they represent. That makes sense and is in line with the amendments before us. What is good enough for local government candidates must surely be good enough for Welsh Assembly candidates. However, it is important that there should be more than one qualification. It should not be just a case of whether you are an elector and live in Wales; you should have wider qualifications. Of the four or five qualifications, or however many there are, a person should meet at least one of them.

This has been a very good debate and it is important that we should have had it. As other noble Lords have said, it has been brought about because of this year’s elections to the Welsh Assembly, which made us all think about the issue—I do not think that any of us had thought about it previously, because nobody believed that someone elected to the Welsh Assembly would not be Welsh or not be living in Wales. It has never happened before.

The matter requires further discussion, but I ask the Minister whether it could be included in the devolution of election matters to the Welsh Assembly as laid out in the Bill or whether it is a matter for the UK Government to determine. We believe that it should be for the Welsh Assembly to decide on qualifications of candidates. Let it decide what it believes are the right qualifications for candidates. It would probably agree that there should be more than one qualification to stand for election to it.

We need clarity, which I am sure the Minister will give us. If the matter is to be devolved, it is right that we should have had this debate. I am sure that Welsh Assembly Members and the Welsh Government will look what at what we have said. I look forward to hearing from the Minister.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on these amendments. I thank the noble Lord, Lord Hain, for bringing the matter forward and, indeed, for admitting to a degree of “mea culpa” on earlier provisions.

The amendments would prevent individuals not resident in Wales, and not recorded as such on the electoral register, being Members of the National Assembly for Wales. As the Government committed to in the St David’s Day agreement, the Bill devolves powers over its own elections to the National Assembly for Wales. This includes the eligibility to stand as a candidate at such an election and the criteria under which a candidate may be disqualified from being an Assembly Member. These would be matters for Wales and the National Assembly for Wales. There is a slight irony in the fact that earlier we debated what “not normally” covers, yet here are seeking to legislate in areas that will now be presented to the National Assembly for discussion and decision. It is absolutely right that this area relating to electoral practice should be a matter for the National Assembly for Wales. I indicated to the noble Lord, Lord Hain—and I have had lawyers look at this—that these matters will be transferred to the National Assembly for Wales and it is right that it considers them.

Very good points have been made by noble Lords in relation to the arguments. The noble Lord, Lord Crickhowell, spoke about the residency requirement for those who may live just over the border at Knighton—close to the station perhaps, which is in England—rather than in the town of Knighton, and so on. They are issues that the Assembly will want to look at, just as it will no doubt want to look at the point made by my noble friend Lord Norton of Louth on the choice for electors. I speak as somebody who as an Assembly Member was determined to live in the area I represented; certainly, it was true then that everybody who was in the National Assembly for Wales lived in Wales. These are valid points for the Assembly to look at; they are not matters that we should pontificate on. With respect, I therefore ask noble Lords not to press their amendments.

[Lord Hain]

My Lords, I am grateful to the Minister. I will briefly respond to his points at the end of my remarks.

When I moved this rather innocent, inconspicuous amendment, I had no idea that it would provoke such a rich debate about political principles, political theory and the nature of democracy; it has been very instructive and valuable indeed. My noble friend Lord Murphy really came to the nub of the matter when he said that this was about a country’s parliamentary legislature. This is something very precious to Wales and which needs to be given proper respect. That, in a way, links to the point made by the noble Baroness, Lady Randerson, which she expressed very eloquently indeed. She said that Assembly Members should—by living in Wales, in this case—be subject themselves to the laws that they are passing and subject themselves to the policies that they are instrumental in enacting.

The noble Lord, Lord Crickhowell, made a number of interesting points, but at one point he was almost saying that there should be no restrictions at all on candidature, or at least on Assembly Members. The main gist of his argument was about candidates, and I anticipated that, with my noble friend Lord Murphy, with our Amendment 21, as did the noble Lord, Lord Wigley, with his amendment. I do not think that this is the same issue as that about Members of Parliament, because the constituency boundaries are not being changed by the change in the parliamentary constituencies at all. Of course, the parliamentary constituencies do not cross the border of Wales. The new legislation, if eventually enacted, does not do that either.

I agree with the noble Lord, Lord Wigley, about his amendment. Frankly, I could not have done as effective a job as MP for Neath as I hope that I did without living in the constituency. That means living and breathing the life of the local rugby clubs, the local businesses and the local schools and hospitals, as I did for nearly a quarter of a century. He made a series of fair points in relation to pressing his amendment, by which I am rather persuaded. We can happily concede that. He asked about the Neath by-election. I had actually bought a house in the constituency five months before that by-election, although I must admit that I had a crazy mortgage, in retrospect. That was an important principle that I, like the noble Lord, Lord Carlile, felt was right.

The noble Lord, Lord Norton, raised some very interesting points, but he seemed to offer no restrictions on where one must live in order to stand for, or be a Member of, the Assembly. You could be living anywhere—hundreds of miles away from Wales. I simply do not think that that is acceptable. My noble friend Lord Murphy made the point that, in practice, Welsh voters do not have a real choice about the particular Assembly Members they get through the regional lists, and I do not think that he addressed that point. It is, as my noble friend Lord Murphy said, a question of voting for the party.

Wales Bill

Lord Bourne of Aberystwyth Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 7th November 2016 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank noble Lords who have participated in the debate on the amendment. I thank the noble Lord, Lord Wigley, for moving it.

To fund the step change needed to achieve 3 million apprenticeship starts across the country by 2020 and to improve their quality, the Government are introducing an apprenticeship levy so that spending on apprenticeships will be double the level that it was in 2010-11 in cash terms. I think that that is something that noble Lords across the House will welcome. I recognise that some employers have concerns over the design of the levy. Following the announcement at the summer Budget of 2015, the Government consulted on its design; the consultation that took place during the autumn of that year revealed overwhelming support for the levy to be as simple as possible to operate across the United Kingdom. For this reason, it was decided that the apprenticeship levy would be based on the UK-wide definition of earnings as used for class 1 secondary employer national insurance contributions. Not only is the definition one that employers are familiar with but it is applied consistently to employers wherever they operate within the United Kingdom’s single market and is information they readily have available in their payroll. The definition also avoids considerable practical difficulties that would arise if there were different rates and thresholds of the apprenticeship levy in different parts of the United Kingdom, which appears to be the purpose of this amendment—or at least a consequence of it. However, because the charge is on the employer, it would be necessary to determine how such a system would operate for organisations working across borders or with plants in different parts of the country, such as Toyota. This would create additional and significant administrative burdens for businesses that we believe are best avoided.

That said, I can recognise the points that are being made by the noble Lords, Lord Wigley and Lord Rowlands, and the noble Baroness, Lady Gale. I thank her for her comments. It is certainly the intention for work between the Treasury and the Welsh Government to continue, as she suggested. Policy on apprenticeships is devolved to the Welsh Government; once there has been a discussion on how we ensure that Wales has a fair share of the money, it does not necessarily follow that it will be Barnettised. I rather suspect that it will not, and presumably they will look at the number of employees in different parts of the country. I am not sure that Barnett would present the right answer. But once it has been done, it is a matter for the devolved Governments of Scotland, Northern Ireland and Wales as to how they operate the apprenticeship policy. They could presumably add more money in if they wanted to, or put in a smaller amount—that is a matter for them.

I have heard the contributions to this debate, and I understand that noble Lords want to ensure that Wales’s corner is being protected; I do too. I will ensure that a note is sent round to noble Lords who have participated in the debate so that they can see the state of play as things stand at the moment.

[Lord Rowlands]

My understanding is that the way it is going to be delivered in England is through this so-called digital voucher. First, can the Minister confirm that that is the case? Secondly, is it also the case that Wales and other Administrations have all rejected that process? If it is not going to be that, what will the process be by which Welsh companies can claim on the levy?

[Lord Bourne of Aberystwyth]

The noble Lord is right in the sense that the essence of devolution is that if the policy is devolved to Scotland, Northern Ireland and Wales it is a matter for those Administrations as to how the apprenticeship policy is rolled out. The apprenticeship levy discussion will be happening between the Treasury and the devolved Administrations. I will get noble Lords an update on how that is progressing. It will then be for them to decide how the money is spent. The discussion on how the cake is being divided up will be led by the Treasury with the devolved Administrations. That is my understanding of how it will operate.

[Lord Wigley]

My Lords, I will press the Minister further on this. Does he accept that, for the Welsh Government—or, for that matter, the Scottish or Northern Ireland Governments—to roll this out they need to know how much money they are getting; the mechanism for delivering it; the timing of it and the conditions that may be placed on it? It is now over 12 months since this thing was kicked off. Without knowing those details they cannot, with all the good will in the world, meet what is required. Inevitably, companies in Wales are going to be in an inferior position to those in England. Will the Minister also clarify the position of those who are employing people across the border: companies which may be based in England but employing in Wales, or vice versa?

[Lord Bourne of Aberystwyth]

My Lords, this was precisely the point that I was dealing with. As I said, I will get a note round about how the discussion is going on how the policy will be rolled out in terms of the amount of money that will be given to the devolved Administrations. The discussion will go on at that level on how that is being sorted out. As I understand it, the basis on which the policy is rolled out is that the place of employment will be where the policy applies. If a business is in Wales it will be a matter for the Welsh Government to decide a policy which is relevant to it. All the Administrations will want to bear in mind businesses which are on both sides of the border and ensure that there is some consistency in approach. However, that is a matter for them.

Based on my assurances that I will write to noble Lords on how the discussion is going now and that it is a matter for the devolved Administrations to decide the relevant policy—

[Lord Crickhowell (Con)]

My Lords, I am sorry to interrupt. It is, of course, satisfactory that the Minister will write to noble Lords, but this is yet another example of where discussions have been going on for some time since the Bill passed in another place and yet the up-to-date position on them has not been presented to this Committee. Like the noble Lord, Lord Deben, who made the point in an earlier sitting, I do think this is very unsatisfactory. We really should be updated in adequate time on all these discussions and not told that we will be given the information at some stage, perhaps before Report.

[Lord Bourne of Aberystwyth]

My Lords, I am not quite sure what my noble friend wants me to say, other than that, as I have just said, I will endeavour to ensure that noble Lords will have the information that is being requested ahead of Report. With that, I ask the noble Lords to withdraw the amendment.

[Lord Wigley]

My Lords, I am grateful to the noble Lord, Lord Bourne, for his response, but he must be feeling a little uneasy with the quality of the brief that he has been given on this. It is recognised the length and breadth of Wales that this is a totally unsatisfactory position which is causing problems for employers and those employees who are hoping to gain benefit from apprenticeship schemes. It is causing problems for the Welsh Government as they forward plan their budget for the coming year. We are talking of a sum of money that may be, let us say for argument’s sake, in the order of £150 million—a significant sum. Whatever the detail on the way in which these schemes are rolled out in Wales, Scotland or Northern Ireland, none the less, if this is the funding arrangement that has been agreed, there should be transparency. We are now in November, and the budget will be coming in April. It is totally unsatisfactory for the UK Treasury and Government to place the devolved Administrations in this position. Whereas the note that no doubt will be sent round will give the fullest information that the Treasury is willing to make available, it none the less may well not answer the serious questions that have been raised.

I am grateful for the contribution of the noble Lord, Lord Rowlands, with his expert knowledge in this area, and to the noble Lord, Lord Crickhowell, for intervening. We need to know. I realise that it is not the tradition to divide the House in Committee. However, if there is not a satisfactory answer from the Treasury and the Minister, I most certainly intend to come back to this on Report and, at that point, to press it. It is just not acceptable that we in Wales are placed in this position. It is not the fault of the Minister personally, but it is certainly the responsibility of the Government and the Treasury. I hope that between now and Report the Minister will have serious discussions with the Treasury, and that if he in his heart recognises that there is a serious problem here, he himself might choose to come back on this. On that basis, however, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Morgan of Ely (Lab)]

My Lords, I was 12 in 1979 when we had the first referendum on whether we wanted devolution to come to Wales, and I have had a little taster this afternoon of what it must have been like during that campaign. But we have had a different result from that in 1979; the Assembly has been established for 19 years and it is maturing and developing.

I thank my noble friends Lord Murphy and Lord Hain for tabling this amendment because this issue is worthy of debate. I am afraid the people of Wales were told when we established the Assembly that we would put the issue of income tax-varying powers to them in a referendum. We have heard today what a risky business referendums are; I concur—I also have the scars from the recent referendum—and, let me tell you, I am no longer a fan of referendums.

It is worth repeating the question asked by my noble friend Lord Murphy: what has changed since the last Bill that the noble Baroness, Lady Randerson, brought through the House, and what is the difference between that Bill and this one? What has made the Government change their mind on this issue? It is worth drawing attention to the fact that Wales is not a rich country. My understanding is that only about 6,000 people in Wales pay the highest rate of income tax, those who earn over £150,000, while only one in 16 pay the 40p higher rate of income tax. We are not talking about people that it is easy to tax, so it is worth remembering and understanding that this is not going to be a power that is easily exercisable.

However, I beg to differ with my colleagues on this issue, because times have changed. As the noble Baroness, Lady Randerson, said, the Assembly has moved a long way during those 19 years. On top of that, we have the issue of austerity. The IFS said recently that, by 2020, there will have been an 11% cut since 2010 in funding coming to Wales. That is hitting some of the poorest members of our society. Austerity is hitting not only our revenue budgets but our capital budgets. It is all very well to talk about borrowing money from the European Investment Bank, but we do not even know whether we will be able to access that kind of funding in future.

Why do I support the amendment? I support the amendment because, at this difficult time, borrowing against this income stream will be essential if we want to invest in our infrastructure in Wales. There is demand for better infrastructure. People want improvements in Wales. That demand is there. However, it is important to understand—we will come to this in the next amendment—

[Lord Bourne of Aberystwyth]

I am grateful to the noble Baroness for giving way. I do not think that she is speaking in favour of the amendment; she might want to clarify that.

[Baroness Morgan of Ely]

I am not speaking in favour of the amendment because of the next amendment. We need an increase in the borrowing powers because of the funding stream and the devolution of taxation. That is critical to investment in Wales.

We know that the Welsh Government and the UK Government have an understanding and that there will be an agreement on the fiscal framework before we enter the next phase of the Bill. It is important that, in that fiscal framework, we have an offset to the block grant in return for that tax revenue. We need to see how that offset will interact with the Barnett formula, and we need the funding floor to be made permanent. It is critical that we should not accept a situation where Wales will be materially worse off as a consequence of devolving taxation. That would not be good for the people of Wales?

We expect the Minister to negotiate that with the Finance Minister in the Assembly, but can he can assure us that that fiscal framework will be resolved before we have an understanding? We will come in the next amendment to the amount that may be borrowed, but can he assure us that we will be able to have an increase in borrowing powers as a result of the fiscal autonomy that will be coming to Wales?

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in this debate. For the sake of clarity—I correct myself as well—this is a clause stand part debate rather than a debate on an amendment to Clause 17.

I thank the noble Lords, Lord Murphy and Lord Kinnock, for moving and speaking to the Motion that the clause do not stand part. I disagree with their intent. As the noble Lord, Lord Murphy, said, we have been here for nearly 20 years since the first successful referendum in 1997. Circumstances massively changed in that time, as the noble Baroness, Lady Morgan of Ely, said.

Let me try to deal with some of the points. Circumstances have changed since the Silk commission’s first report. The noble Lord, Lord Wigley, has been consistent on this topic, as has the noble Lord, Lord Kinnock. I confess that I have not. I am more like the brother-in-law of the noble Lord, Lord Thomas of Gresford: I have changed my mind on some of these issues. I should set that out first. In the Silk commission, all four parties recognised the need for income tax powers for the National Assembly for Wales. If it was to become a full legislature in the proper sense, it was accepted that it needed income tax powers. Some noble Lords have used the phrase as if it meant all income tax powers; of course, it does not; some income tax powers remain with the United Kingdom. We should make it clear that this is not transferring all income tax powers; it is transferring some. It is a significant change, I agree, but the suggestion made by the noble Lord, Lord Kinnock, for example, that it is a fundamental, apocalyptic change to the way things happen but that it will not be exercised is somewhat inconsistent. It cannot be both apocalyptic and not be used.

I very much hope that it will be used. We cannot necessarily draw conclusions from what has been happening in Scotland. I hope that the National Assembly for Wales will be more imaginative. I was there for 12 years, and there was evidence of a lot of free thinking on many issues, not least in this area, so I do not accept that the power will not be used. We must realise that it is a limited power; it is not transferring all income tax powers to Wales.

I agree with the points made by the noble Baroness, Lady Humphreys, and the noble Lords, Lord Wigley, Lord Crickhowell and Lord Morgan, about circumstances having changed, that perhaps we make use of referendums too freely, and that they are not always appropriate. I feel that if we were to insist on a referendum, it is arguable that we would be holding Wales back. In some quarters—I certainly exempt the noble Lord, Lord Kinnock, from this—it is being put forward as a means of trying to defeat the proposal or slow things down. We would not be doing Wales a great service if we did that. This is a power for a purpose, as was identified by the Silk commission. It is bringing in accountability. It is making what I hope becomes the Welsh Parliament, in name as well as reality, a real Parliament with this element of tax-raising power on income tax.

[Lord Kinnock]

I asked the noble Lord for justification of the change in the law that would be implied by the enactment of the Bill, and he seems to suggest that times have changed and that the Silk commission has made recommendations. Does he believe that times have changed enough to give the Welsh people a real appetite for their Assembly to have the power to impose income tax additions? Does he think the Silk commission was really so conscious of the true economic condition of Wales and the distribution of incomes, referred to by my noble friend Lady Morgan, that it would permit a change that altered the law, removed the requirement for a pre-income tax allocation referendum and justified the introduction of new law? I do not think times have changed that much.

[Lord Bourne of Aberystwyth]

My Lords, I disagree with the noble Lord on this point. I remember the same argument being put forward when we had the 2011 referendum. People were saying that it would not pass and that opinions had not changed in Wales. I remember people on my own side arguing that it would be defeated in all parts of Wales, up and down the country. That did not happen. It was won decisively in every local authority bar one—Monmouthshire, where it was marginally defeated. Do I think that circumstances have changed so that we do not need a referendum? Yes, I do. The noble Baroness speaking for the Labour Party thinks similarly, as do the other political parties. There is probably one political party that does not think that—UKIP—but I disagree with it. Opinion has changed and we would be doing Wales a massive disservice by having a referendum that I do not believe is necessary in the changed circumstances of devolution in 2016.

[Lord Kinnock]

Does the noble Lord recognise that to justify his contention about the movement of opinion in Wales, he referred to the 2011 referendum? Does he not consider that that makes my point for me?

[Lord Bourne of Aberystwyth]

No, it does not. Rather the reverse, it showed that opinion in Wales had changed much more than people thought. The noble Lord put a fair question to me: whether I thought that opinion had changed in Wales such that we did not need a referendum. I hope I have given a very fair answer. It is a truthful one—I think opinion in Wales has changed to that degree.

Arguments were put on various issues in relation to this, not least in the area of borrowing. I agree again that, to have significant borrowing powers, there has to be a separate stream of revenue. This would present a separate stream of revenue, and even if the income tax rates were retained exactly as they are in England, it would give that separate rate of revenue. So, there is that as well. I know that we are coming on to a subsequent amendment on this issue. In view of the fact that I do not believe that this change is necessary and the strength of opinion from noble Lords around the Chamber, I urge the noble Lord to withdraw the amendment.

[Lord Crickhowell]

On a point of detail, it was suggested that there was a Welsh Conservative manifesto commitment. I have taken the trouble during the debate to read the Welsh Conservative manifesto, which I confess I had never read before, and there is no such commitment.

[Lord Bourne of Aberystwyth]

My Lords, I am most grateful for that clarification. I do not think I had read it either. It is always useful to hear these things from someone who speaks with authority, and I thank my noble friend very much. Of course, I am not urging noble Lords to withdraw the amendment; I am just urging that the clause stand part of the Bill.

--- Later in debate ---

[Lord Thomas of Gresford]

In Committee, I think I am entitled to speak as many times as I wish. I apologise to the noble Lord, Lord Murphy, for interrupting him in full flow, but I still look to the Minister to give us some idea at this stage of how he sees it. What is the future fiscal framework? What does he have in mind? Will it be a deduction from the block grant, as the noble Lord, Lord Murphy, suggests, or will it not?

[Lord Bourne of Aberystwyth]

My Lords, I am very happy to supply the information that I gave previously at Second Reading, when I said that I would update noble Lords, before Report, on the progress of the fiscal negotiations that are going on between the Welsh and United Kingdom Governments. As I indicated then, the discussions are progressing well. The ministerial Joint Exchequer Committee has met twice and, according to reports I have had from both the Welsh and UK Governments, it is going well. I am not all over the detail; it would be unwise to be so until they are nearer to a conclusion. There will obviously be a reduction in the block grant because 10p income tax will be raised at the Welsh level. So the discussion is about exactly how we do what is right for Wales and for the United Kingdom within that context. It is good news that progress is being made.

[Lord Wigley]

I will press the Minister for clarification. Of course, if 10p is transferred over there will be a netting off, but if there is an increase of 1p in income tax there would not be a reduction in the block grant because of that.

[Lord Bourne of Aberystwyth]

That is absolutely right. The National Assembly for Wales doing something imaginative to raise income will be to the benefit of the Assembly and of Wales. That is the whole point of what is going on. I take issue with the noble Lord, Lord Murphy, in suggesting that there is something sinister in the change of heart here. Other parties have had this change of heart; it is a recognition that we do not need a referendum. I suspect that many of the people urging it are hoping to delay things—I exempt the noble Lord from this—or, indeed, defeat it. That should not be the aim. The aim should be to do what is right for Wales. I strongly and sincerely believe that if we were to have a referendum, it would be carried.

[Lord Kinnock]

On the issue of taxation levied on the people of Wales, will the Minister spend a moment explaining the logic, or lack of it, of a fiscal regime that has ensured, as he will acknowledge from his own experience, huge reductions in the public resources available to local authorities throughout Wales, with awkward consequences for some services and tragic ones for others? These include adult social care and post-16 educational opportunity. Where is the rationality in imposing such a fiscal regime nationally—for purposes I disagree with, but nevertheless that is the law of the land—and simultaneously introducing legislation that would, without a referendum, or further ado, allocate to the Welsh Assembly the power to vary, including raising, income taxes?

[Lord Bourne of Aberystwyth]

My Lords, we are being taken in a direction completely off the particular provision in the Bill. As I made clear before, this is a power which, as the noble Lord has just indicated, would enable the National Assembly for Wales to vary income tax up or down, or to ensure that it stays the same if that is what it wants to do. I myself dislike the word “imposing” on the National Assembly or people of Wales. Discussions are going on between the Finance Minister and his team in the National Assembly for Wales—for whom I have the greatest respect—and the Chief Secretary to the Treasury and his officials. I believe that an agreement will be reached. If it is not, we do not get the legislation, because the LCM will only come forward if an agreement is reached to the satisfaction of the National Assembly for Wales, and presumably the Welsh Government as part of that. That will carry things through. I do not see that the local government position is anything to do with this.

Clause 17 agreed.

--- Later in debate ---

[Lord Berkeley of Knighton (CB)]

My Lords, if EU investment in south Wales suffers, as some of us fear it might, we could find ourselves with some very dire unemployment problems. Therefore, we will need every penny possible to reinvest in that area.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lords who have participated in the debate on Amendment 24, and I thank the noble Baroness, Lady Morgan of Ely, for moving it.

The amendment seeks to quadruple the Welsh Government’s capital borrowing limit set in the Wales Act 2014 from £500 million to £2 billion. As the noble Baroness is of course aware, borrowing falls within the scope of the funding discussions between the United Kingdom Government and the Welsh Government that are proceeding alongside the Bill. As we know, the Bill cannot proceed without the legislative consent Motion, which is dependent on those discussions being successful.

I refer noble Lords to the communiqué published following the Joint Exchequer Committee meeting in September. The two Governments discussed the rationale for the existing capital borrowing arrangements and agreed to consider changing them. Therefore, I can give the noble Baroness the undertaking that she seeks, and I think it is consistent with what I said in the previous debate. It is unthinkable that the matter would not be raised. However, I think she will understand that I cannot give a specific figure. Indeed, the comments of the noble Baroness, Lady Randerson, perhaps indicate that we do not want to constrain the figure in case the discussions lead to it going higher than that. I have given noble Lords an undertaking, which I will repeat: ahead of Report I will give a summary of where we are on the fiscal discussions, which are going well—including, as I understand it, in this area.

As noble Lords have indicated, there are two key considerations in relation to the borrowing limit. The first is ensuring that borrowing is affordable for the Welsh Government. Of course, the transfer of the taxation powers that we have just been looking at will certainly help in that regard, as will the smaller taxes that have already been transferred. The second is ensuring that borrowing is appropriate within the funding arrangements for the United Kingdom as a whole. I am sure that those two points are being borne in mind during the discussions—which, as I said, seem to be going well.

In relation to Welsh Government affordability, as I have indicated, we need to ensure that the Welsh Government have sufficient independent revenues to manage their borrowing costs. As I said, the new taxation powers that are being carried forward by the Bill will help in that regard. In relation to the wider United Kingdom funding arrangements, it is important to recognise that, within any given fiscal position, additional Welsh Government borrowing will mean less spending in the rest of the UK, including in relation to some of the issues funded for Wales from United Kingdom taxation.

Those are the issues being looked at, and I can give two undertakings: first, we will not get the legislation without the LCM; and, secondly, I repeat the undertaking that I gave at Second Reading—I appreciate that not all noble Lords were here for that—to give a summary of where we are so that noble Lords will be aware of it ahead of Report.

I understand the points that are being made and I think all noble Lords who have spoken—the noble Lord, Lord Wigley, my noble friend Lord Crickhowell, and the noble Lords, Lord Howarth and Lord Berkeley—recognise the need for these powers in order that the Welsh Government can borrow. Of course, it is then for the Welsh Government to decide how they borrow and how they spend the money—that is within their devolved competence.

Given the undertakings I have given, I ask the noble Baroness to withdraw her amendment.

[Baroness Morgan of Ely]

I thank the noble Lord for those undertakings. I was particularly pleased to hear that the amount could even go above £2 billion. We will certainly underline and take note of that. I beg leave to withdraw the amendment.

Wales Bill

Lord Bourne of Aberystwyth Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 7th November 2016 Lords Chamber

[Lord Elis-Thomas (Non-Afl)]

My Lords, my amendments in this group are all focused on attempting to ensure that the legislative competence of the Assembly is not reduced by the movement from conferred powers with exceptions, to reserved matters with even more exceptions.

I was always concerned about this matter when I had responsibility for presiding over the Assembly because I had to make decisions about the competence of legislation. I often found it difficult to assure myself that there was clarity about the boundaries, although I was advised by excellent lawyers. The current Presiding Officer of the Llywydd has published a series of amendments to enable us to study the question of the constitutional propriety of where we are heading. What particularly troubles me—I am sure the Minister will understand this—is that the UK Government seem to have no intention of publishing an explanation or rationale, if there is such a thing, across the whole 200 or so reservations that would help us to understand the constitutional principles at work here.

Although we were promised by a previous Secretary of State that the pause in the Bill would give an opportunity for these matters to be considered, and there would be a response, this does not seem to have happened. My amendments would restore or maintain the current competence of the Assembly by enabling it to legislate in an ancillary way in relation to reserved matters. I know the Minister will say that ancillary matters are a minority interest but they are of great constitutional import. In my view, this is a clear example of how the move from the current form of legislative powers to the new form is narrowing the Assembly’s competence.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Morgan of Ely and to the noble Lord, Lord Elis-Thomas, for tabling the amendments. I am particularly grateful for the careful way in which they have spoken to them.

I understand the importance of the issues that have been raised, and I shall try to address them in general terms by giving some examples of how the purpose test should operate in practice. First, on the wording, I say to the noble Baroness that the legislative competence in proposed new Section 108A(3) is a dual test. It allows the Assembly to legislate if it,

“is ancillary to a provision of any Act of the Assembly or Assembly Measure or to a devolved provision of an Act of Parliament, and”—

so there is the additional requirement—

“(b) has no greater effect otherwise than in relation to Wales, or in relation to functions exercisable otherwise than in relation to Wales, than is necessary to give effect to the purpose of that provision”.

So, it is a dual test. It is not simply ancillary but has to be “necessary”, under proposed new subsection (3)(b) of the provision.

These are important issues but they are not novel. Exactly the same sort of questions arose in respect of the Scotland issue because both in Scotland and Wales we are relying on the so-called purpose test to help define the scope of the relevant legislature’s legislative competence. We now have the benefit of guidance, as has been stated, from the Supreme Court, on the proper interpretation of these provisions. The guidance, although given in a Scottish case, will be highly relevant to the Welsh matters provided for in the Bill before us.

The starting point is that whether a provision in an Assembly Bill could be said to “relate to” a reserved matter is dependent on its purpose. As has been pointed out in the Supreme Court,

“the expression ‘relates to’ indicates more than a loose or consequential connection”.

I stress that the application of the purpose test in a reserved powers model should be interpreted as meaning that a provision that merely refers to a reserved matter, or has an incidental or consequential effect on a reserved matter, will not relate to that reserved matter. In other words, to fail the “relates to” test, an Assembly Act provision must have a reserved matter as its purpose. The purpose of a provision must be established by having regard to its legal, practical and policy effects in all the circumstances. The Assembly Member bringing forward the Bill cannot simply assert a purpose for one of its provisions. The purpose must be assessed by considering how the provision has been drafted and what it actually does, as well as the wider context, including the other provisions of the Bill of which the provision under scrutiny forms a part.

It is also important to say that the move from the current conferred powers model to one based on reserved matters reverses the operation of the purpose test. It shifts the burden, which is important. Whereas under the current settlement an Assembly Act provision needs to satisfy the purpose test by positively demonstrating that it relates to one of the subjects conferred in Schedule 7 to the 2006 Act, the reserved powers model instead requires that such a provision must not relate to a reserved subject matter. In other words, the case would need to be made that an Assembly Act provision is outside competence because its purpose relates to a reserved matter. As I say, it shifts the burden of proof. If such a case could be made, the provision would satisfy the requirements of the proposed new Section 108A(2)(c) and would be within competence, provided, of course, that it satisfied the other legislative competence requirements of new Section 108A.

To demonstrate how the purpose test ought to be applied in practice, I thought it would be helpful to give some examples. However, it is important to bear in mind in each of these hypothetical examples that it would depend on how the provision was drafted and what it actually did. As I have mentioned, the purpose test requires assessment of the effect of the provisions, including all the circumstances, in the round. An Assembly Bill which required tenants to insure their residence could relate to the devolved subject of housing and not to the insurance limb of the financial services reservation in Section A3. Rather than aiming to amend the law of insurance, the provision’s purpose would be to ensure the quality of housing stock in Wales. I think that most people would appreciate that that was the purpose.

A further example is that an Assembly Bill provision creating competitive tendering requirements for local authorities would be to improve their efficiency and cost-effectiveness, and would therefore not relate to the competition reservation in Section C3. Furthermore, the jurisdiction of the Agricultural Land Tribunal is set out in the Agricultural Holdings Act 1986. This Act also specifically excludes certain matters from the jurisdiction of the ALT—for example, disputes between landlords and tenants of agricultural land. An Assembly Bill may seek to alter this position by bringing such disputes within the jurisdiction of the ALT and no longer subjecting them to arbitration. This would not engage the arbitration reservation in Section L4 because the purpose of the provision would be to facilitate the smooth and economic operation of the agricultural sector by providing a practical, accessible and cost-effective way of settling disputes about agricultural land. The effect on arbitration would be incidental to, or consequential on, that purpose.

Lastly, an Assembly Bill provision requiring information-sharing between schools and Estyn which supported more general provisions aimed at improving the operation of the education sector in Wales would not relate to the reservation for the protection of personal data in Section L6. I hope this explanation of how we see the purpose test working, and these hypothetical practical examples, are sufficient to reassure the noble Baroness and that she feels able to withdraw her amendment. It is not possible to go through every conceivable example. I think that lawyers would accept that, as drafted, this would serve to answer particular cases that may be brought forward.

Through his Amendments 39 to 41, the noble Lord, Lord Elis-Thomas, is seeking to broaden the circumstances in which the Assembly could legislate in relation to reserved matters, and in that respect he is probing similar issues to those raised in Amendment 38. I therefore hope that the explanation I have given is reassuring.

As I have said, unlike under the current settlement—where an Assembly Act provision needs to satisfy the purpose test by positively demonstrating that it “relates to” one of the subjects conferred in Schedule 7 to the 2006 Act—the reserved powers model instead requires that such a provision must not relate to a reserved subject, so that the burden is shifted. In other words, the case would need to be made that an Assembly Act provision is outside competence because its purpose relates to a reserved matter. If such a case could be made, the provision would satisfy the requirements of the proposed new Section 108A(2)(c), and would be within competence, provided, of course, that it satisfied the other requirements. I do not therefore see a need for the Bill to be amended in the way that these amendments propose. Indeed, a side effect of the noble Lord’s amendments would be to prevent the Assembly being able to legislate otherwise than in relation to Wales for ancillary purposes—currently an important part of its competence that allows for enforcement provisions to apply in England. This is something that I know the noble Lord does not intend.

Government Amendment 42A is a minor change to ensure that the wording of the test in Section 108A(5) coincides with the wording in paragraph 12 of Schedule 7B. Both provisions ensure that, when considering the legislative competence of the Assembly in the context of an Act of Parliament, any requirements for the consent of, or for consultation with, a Minister of the Crown, are not relevant. This makes sense on the basis that it would be clearly inappropriate to require a Minister of the Crown to consent to, or be consulted about, an Act of Parliament. This is a technical amendment ensuring consistency throughout the Bill.

I turn to Amendments 47, 75 to 78 and 81 and 82. Paragraph 6 of Schedule 7A reserves the core elements of the single legal jurisdiction of England and Wales. These include the courts, judiciary and civil and criminal proceedings. Sub-paragraph (2) provides an exception to this reservation to enable the Assembly to provide for certain appeals or applications in relation to a devolved civil matter where it is ancillary to a provision of an Act of the Assembly or an Assembly measure.

Amendment 47 seeks to remove the ancillary requirement from this exception and allow the Assembly to directly place devolved functions on to civil courts. This ancillary requirement is crucial in that it enables the Assembly to enforce its legislation and to allow appeal decisions on devolved matters to be heard in a court on civil proceedings, yet it maintains the clear boundary that the single legal jurisdiction is a reserved matter. Paragraph 1 of Schedule 7B restricts the Assembly’s ability to modify the law on reserved matters. This includes any enactment whose subject matter is reserved. Paragraph 2 sets out the exception to this restriction. It allows the Assembly to modify the law on reserved matters where the provision is ancillary to a provision on a devolved matter and has no greater effect on reserved matters than is necessary to give effect to the provision. This provides the Assembly with the flexibility to legislate with regard to the law on reserved matters in a limited way to give effect to provisions that are within its legislative competence. However, such a provision cannot go further than required to achieve its objective.

Amendments 75 and 76 seek to remove the second limb of this exception—that the provision must have no greater effect than necessary—from Assembly provisions that seek to modify the law in relation to paragraphs 6 and 7 of the new Schedule 7A. These are the reservations for the single legal jurisdiction and tribunals. Amendment 77 seeks to remove the necessity element of this test altogether. This would allow an Assembly, through on Act, to amend the law on reserved matters without a requirement for it to act proportionally to meet its objective. The law on reserved matters is, by definition, not an area of the law that should be open to wide-ranging alteration by the Assembly in this manner. This is vital to effect a clear boundary between what is devolved and what is reserved.

The matters within paragraphs 6 and 7 to Schedule 7A specifically are fundamental to the maintenance of the single legal jurisdiction of England and Wales. The Government’s position on the maintenance of the single jurisdiction is clear. Allowing the Assembly to modify these areas puts at risk the uniformity on which the single jurisdiction is based. Removing the requirement that Assembly modifications to the law on these matters should go no further than necessary would give the Assembly a significant increase in competence. The constraints represent an appropriate and balanced limitation on the Assembly’s competence. This gives the Assembly the same powers to modify the law on reserved matters as the Scottish Parliament has in relation to Scotland.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

I do not think I follow the noble Lord’s point. It is obviously a hallmark of good legislation that it is not retrospective. Therefore, anything that we are doing here will not, as it were, undermine anything that has already happened. But I think what we are doing otherwise is fairly clear for the future, so I do not quite understand what he means by perverse in that context.

[Lord Wigley]

Perhaps we could discuss it further.

[Lord Bourne of Aberystwyth]

I shall be very happy to discuss it further with the noble Lord.

The inclusion of exceptions to the Minister of the Crown consent process would undermine the whole principle of providing clarity within the devolution settlement over who can legislate for what.

The remaining government amendments in this group—Amendments 78A to 78D and 80A—build upon Clause 13, which is an important part of the Bill. Through that clause we are devolving competence to the Assembly so that it can set up its own regime for the audit and accounting of the Welsh Government and its public bodies, similar to the arrangements made by this Parliament for the UK Government and by the Scottish Parliament for the Scottish Government. Clause 13 has been the subject of detailed discussions between the United Kingdom Government, the Welsh Government, the Assembly Commission and the Wales Audit Office, and these amendments are the result of those discussions.

Through Amendment 78A we are devolving competence to the Assembly to amend Section 146A(1) of the Government of Wales Act 1998. Amendment 78B replaces paragraphs 5(2) to 5(6) of new Schedule 7B, as inserted by Schedule 2 to the Bill, with simpler drafting without changing the effect of the provisions in any way. The effect of these two amendments is that the Assembly will be able to modify Section 146A(1) of the Government of Wales Act 1998, which allows the Welsh Ministers to delegate or transfer supervisory functions to the Auditor-General for Wales, provided that that amendment is a provision about the oversight of the Auditor-General for Wales.

Through Amendments 78C and 78D we are devolving competence to the Assembly to amend sections of Part 5 of the Government of Wales Act 2006, other than those that are already listed in paragraph 7(2)(d), without the consent of the Secretary of State provided the amendments are incidental to, or consequential on, provisions relating to budgetary procedures or devolved taxes.

Finally, Amendment 80A will put in place key safeguards in paragraph 7 of new Schedule 7B so that the Assembly will be able to amend Treasury functions in Sections 138(2) and 141(4) of the Government of Wales Act 2006 only with the consent of the appropriate Minister.

Section 138(2) allows the Treasury to appoint another member of the staff of the Assembly as principal accounting officer for the Assembly Commission if the Clerk is unable to discharge these responsibilities or the post of Clerk is vacant. There are already arrangements for dealing with the replacement of an Assembly Clerk in certain circumstances, such as incapacity, and the accounting officer appointment should follow from that process. If these arrangements are changed, it is only reasonable that the Treasury gives consent because it is the guardian of the overall accounting officer system in the UK.

Section 141(4) ensures that the Treasury may continue to determine the form in which the Welsh Government submit their returns for the whole of government accounts. Although we are content for this to change in principle, the Treasury quite rightly wants to make sure that any change aligns with the arrangements for the Scottish Government, and so a requirement to seek Treasury consent is sensible.

These are technical but important amendments that build upon the important provisions in Clause 13. I therefore commend government Amendments 42A, 78A, 78B, 78C, 78D and 80A to the Committee and I urge the noble Baroness to withdraw her amendment.

[Lord Thomas of Gresford (LD)]

My Lords, the noble Lord, Lord Elis-Thomas, in introducing his Amendments 77 and 78, did not expand very much on what they mean. I support the Government on the necessary test for the law on reserved matters, and I think it is essential that it be confined in that way.

I would be extremely concerned if there were an attempt to have a different criminal law applying in Wales, save in matters concerned with the enforcement of regulations or Acts of the Welsh Parliament. However, any modifications to the criminal law that dealt with, for example, the meaning of intention, recklessness, dishonesty, and so on or “secondary criminal liability” would cause great conflict. I have to tell your Lordships that I was involved in the definition of “recklessness” in the House of Lords Judicial Committee 25 years ago. My argument was dismissed but 25 years later their Lordships overruled the previous decision. It was similar with secondary criminal liability. My argument about that many years ago was dismissed but in very recent times has been accepted. These are difficult concepts and they should not be interfered with in any way.

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[Lord Morgan (Lab)]

My Lords, what the noble Lord, Lord Wigley, said is totally correct. Y Wladfa, the Welsh community in Chubut, rather benefited from the Falklands War, because the Argentine Government were rather anxious to show that they were solicitous of the needs of cultural minorities in their country. I feel, on behalf of Welsh historians everywhere, that I should support this. I have not been to Chubut, as the noble Lord, Lord Crickhowell, has, but I have taught Chubut students in Swansea. I twice published articles by historians from that community in the Welsh History Review when I edited it. They have a very living contact; it is not an antiquarian matter. All Welsh people should strongly support it.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for introducing the amendment and other noble Lords who have participated in the debate. Through the amendment, the noble Lord seeks to extend the Assembly’s competence so that it could legislate otherwise than in relation to Wales to support the Welsh language and Welsh culture in the Argentinian province of Chubut.

Of course, the history of the Welsh settlement—“settlement” in a sense that I hope I will be allowed to use here—in Patagonia is one of the great stories of human migration and holds a special place in the hearts and minds of people in Wales. It is a story of typical Welsh tenacity and fortitude that led settlers to travel thousands of miles, driven by the desire for a better life and the dream of establishing a new Wales.

In Patagonia today, interest in the Welsh language and Welsh culture is flourishing, more than 150 years on from the first settlement. Members of the Welsh Affairs Committee in the other place saw this for themselves when they visited Patagonia in 2014, a year early, to mark the 150th anniversary of the arrival of the first Welsh settlers. Although the anniversary was in 2015, typical Welsh efficiency and promptness meant that they were there a year early. The settlement is of course a part of Argentina and, while Welsh culture thrives there, it is wonderfully intermixed with the rich culture of South America. I, too, have taken an interest in the settlement. When I was on the British Council committee, access to finance and help were certainly provided to Chubut.

When the amendment was tabled, my reaction was, “Surely, the National Assembly has the power to do this already”—and that is our conclusion. The common law-type powers that we are devolving to Welsh Ministers will ensure that they can continue to act in the way that they are doing in support of the Welsh language in Chubut. I will have another look at it to ensure that that is the case and will be happy to speak to the noble Lord if that is helpful, but I am sure that we would all want to see this continue. With that, I ask the noble Lord if he would kindly withdraw his amendment.

[Lord Wigley]

My Lords, I thank everyone who contributed to this short debate and am grateful for the positive spirit and in particular for the response of the Minister. I had hoped that he would say that the powers that already exist are not in any way diluted or diverted by virtue of the Bill. The Minister mentioned legislation. I should clarify that it was not my intention that the National Assembly should legislate for what happens in Chubut—obviously not—but there are Executive actions which support the language, and it is the continuation of those that I wish. Given the assurances that the Minister has given, and assuming that he does not find any snag that he has not seen so far, I beg leave to withdraw the amendment.

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Moved by

[Lord Bourne of Aberystwyth]

42A: Clause 3, page 3, line 3, leave out “paragraphs 8 to 11 of Schedule 7B” and insert “any requirement for consent or consultation imposed under paragraph 8, 10 or 11 of Schedule 7B or otherwise”

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[Lord Thomas of Gresford]

My noble friend Lady Randerson. I was getting my names mixed up for a moment. She said the other day that it is—as a matter of fact, I have forgotten what she said so I shall leave it at that.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords for their participation in this part of the Bill. Through these amendments, the noble Lord, Lord Elis- Thomas, is seeking to provide the Assembly with the competence to consolidate the law as it applies in Wales. Through Amendment 43, I think that he seeks to broaden the circumstances in which the Assembly could legislate other than in relation to Wales. However, the amendment as drafted would actually narrow the Assembly’s competence to legislate otherwise than in relation to Wales by making the “no greater effect than necessary” test more restrictive. I am sure that this is not the noble Lord’s intention.

Through Amendment 44, the noble Lord and the noble Baroness, Lady Finlay, seek to give the Assembly a wide-ranging power to restate without modification any law that provides for the government of Wales. I think the noble Baroness, Lady Gale, was referring to an alternative Bill that is not a consolidation measure. We would hesitate to accept an alternative Bill which is nothing to do with consolidation.

Nevertheless, let me answer the question about consolidation because it seems to me that the consolidation of United Kingdom legislation can realistically take place only in the United Kingdom Parliament, and no more could or should the United Kingdom Parliament consolidate legislation of the Welsh Assembly or, for that matter, the Scottish Parliament.

The noble Lord, Lord Howarth, asked why we have not consolidated previously. The reason is that we have been under continuous pressure—I think that probably applied to the previous Government as well—to change the laws in relation to Wales because it has been a fast-moving position. There has been understandable pressure to make amendments, and it is difficult to consolidate the law at the same time as the law is being changed. In relation to an area that I know something about—company law—before the consolidation in the Companies Act 2006, which was then and I think still is the largest piece of legislation ever to go through the UK Parliament, there had not been a substantial consolidation measure since 1948, although there had been consolidation to some extent in 1985. That is why these things get postponed.

Before we get too exercised by this, I remind noble Lords that this does not alter the law. The law is there. I would need to be convinced, as I think others would too, that people in Wales are hanging about for a consolidation measure and that they want the law somewhere neatly. I do not think they are particularly exercised about this. I would have to be convinced that this is something that is exercising people up and down Wales or, indeed, in England. There was a suggestion—I am characterising it slightly—that this primarily concerns Wales, but it concerns England too, and Scotland, because it carves out the constitutional position within the United Kingdom.

That is not to say that it may not be necessary at some stage, but when it is done, it is important that it is done in the UK Parliament. In the meantime, it is important that we get the law right. I appreciate that we have got some way to go on some of that, but it is more important to get the law right before we consider consolidating it, so I ask the noble Lord to withdraw the amendment.

[Lord Thomas of Gresford]

I apologise to my noble friend Lady Randerson. What she said on the first day in Committee, which I now recall, was that there should be an easy way of access to Welsh law, and so far nobody has put together any form of loose-leaf book or anything of that sort that shows the current law in Wales. That is the point she made, which I follow.

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[Lord Bourne of Aberystwyth]

My Lords, there is a commercial opportunity there. I commend the noble Baroness, Lady Randerson, for her good idea.

[Lord Crickhowell]

I am sorry to intervene again, but I thought I was being pretty stupid at a late hour at night when I asked what subsection (5) meant. When a leading Welsh lawyer got up and asked exactly the same question, I decided that perhaps I was not quite as stupid as I thought. I would love to know what it actually means.

[Lord Bourne of Aberystwyth]

My Lords, I believe it means—and I will write to noble Lords if I am incorrect in this, as I may be—that, in determining what is necessary for the purposes of subsection (3), which relates to the test of ancillary and necessary, you cannot allege that it is necessary that the law is passed unless it is necessary that it is an Assembly law. It cannot be necessary for another legislative body. I think that is what it means. If I am wrong, I will write to the noble Lord and copy the letter to other noble Lords. I may be wrong.

[Lord Elis-Thomas]

I am, of course, disappointed by the Minister’s response, but I should be disappointed at least once in a debate in this Parliament. I am grateful for the support from the noble Lord, Lord Howarth, and the noble Baronesses, Lady Finlay and Lady Gale, and for the interventions by the noble Lords, Lord Thomas of Gresford and Lord Crickhowell.

The consolidation of the law is about the intelligibility of the law and the transparency of political activity. I will continue to pursue this with greater vigour and will call upon my distinguished academic colleagues throughout the Principality and beyond to get on and do it. I beg leave to withdraw the amendment.

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[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on this part of the Bill. I particularly thank the noble Lord, Lord Elystan-Morgan, for moving the amendment with such fluency and commitment, although he will know that I disagree with him fundamentally, particularly on the first of the two amendments in this group.

Through their Amendments 45 and 46, the noble Lords, Lord Elystan-Morgan and Lord Wigley, seek to place new duties on the Secretary of State for Wales to review the constitutional arrangements for Wales and the operation of the Wales Bill that we are putting in place. Indeed, through Amendment 45—at least on the wording, although I accept what the noble Lord, Lord Elystan-Morgan, has said—they seem to be proposing that the Secretary of State of State be required to review Wales’s readiness for independence. I can act only on the basis of how the dominion status has operated in the past. The Statute of Westminster 1931 is expressly referenced in the amendment. There is no appetite for this proposal in Wales. Both noble Lords will know that that is shown in opinion polls and at the ballot box.

The Statute of Westminster established the dominions as sovereign states and enshrined in law the principle that no legislation made in this Parliament could apply to the dominions unless a dominion requested it. We cannot possibly agree to that. It also provided that the Parliaments of the dominions would have the power to amend or repeal any previous legislation made by this Parliament. Therefore, we cannot possibly agree to what is proposed. As a representative of a London-based polity, as it is called, I do not believe this proposal is wanted in England and it is certainly not wanted in Wales either.

Through Amendment 46, the noble Lords are seeking to place a new duty on the Secretary of State for Wales to establish a working group to review Schedule 1, which sets out the reservations, as soon as possible after it comes into effect and to report on reservations that should be removed within three years of the principal appointed day—the day on which the new reserved model comes into force under Clause 55.

Once again, we have a measure in front of us to set up yet another commission or working party to look at constitutional arrangements. I do not believe that would be welcomed in Wales. We have a duty to get on with the job on this Bill. I ask the noble Lord, Lord Elystan-Morgan, to withdraw his amendment.

[Lord Elystan-Morgan]

My Lords, on the question of dominion status, I was tempted to make the mischievous point that for many centuries Wales was a dominion in law. The actual wording of the Act of Union of 1536 refers to the,

“dominion, principality, and country of Wales”,

so that wording has been there for many centuries. However, that is a mischievous point, probably made much too late at night.

Some years ago, a good friend said to me, “You could be a very nice chap if you did not tilt at the English so often”. I am not sure what a nice chap was intended to mean in that context, or whether I would ever qualify within that definition. However, as far as the second part of his proposition was concerned, I have never tilted at the English. I have immense respect and, indeed, often, admiration for our neighbours. I conceive nationalism in the context of Wales as being a patriotism that knows not the hatred of any other nation. That is what Welsh nationhood and Welsh nationalism at their very best should be and are. I beg leave to withdraw the amendment.

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Moved by

[Lord Bourne of Aberystwyth]

47A: Schedule 1, page 46, line 45, leave out from “reserve” to end of line 2 on page 47 and insert—
“(a) welfare advice to courts in respect of family proceedings in which the welfare of children ordinarily resident in Wales is or may be in question;(b) representation in respect of such proceedings;(c) the provision of support (including information and advice), to children ordinarily resident in Wales and their families, in respect of such proceedings;(d) Welsh family proceedings officers.”

[Lord Bourne of Aberystwyth]

My Lords, turning to the next group of amendments, I am pleased to speak, first, to government Amendment 47A, which was tabled as a result of discussions with the Welsh Government.

Paragraph 6(5) of new Schedule 7A provides for an exception from the reservation for courts and civil and criminal proceedings as part of the single legal jurisdiction of England and Wales. The exception is for the,

“provision of advisory and support services in respect of family proceedings in which the welfare of children ordinarily resident in Wales is or may be in question”,

so that the provision of such services is not reserved by paragraph 6(1). This exception was intended to reflect the existing exception for what may be described as the functions of CAFCASS Cymru.

The Welsh Government have argued—in our view with some force—that the wording of the exception is too broad and does not sufficiently closely reflect the Assembly’s current competence in respect of CAFCASS Cymru. Amendment 47A seeks to insert into paragraph 6(5) modified wording which, I understand, the Welsh Government support.

Government Amendment 47B would remove sub-paragraph (2) from the defence reservation. It would have no effect on the substance of the defence reservation but it would remove a tautology. Removing this sub-paragraph would not change the powers that Welsh Ministers have under the Marine and Coastal Access Act 2009 to appoint marine enforcement officers, who then enforce legislation in relation to sea fishing; nor would it change the automatic appointment of certain members of Her Majesty’s Armed Forces as marine enforcement officers under the same Act. I am pleased to say that UK Government and Welsh Government officials have worked together closely to come to the conclusion that this sub-paragraph should be removed.

Government Amendment 52A is a technical amendment. It seeks to provide clarity in relation to Section C2 in new Schedule 7A by providing a definition of “business association”. There is already such a definition in Section C1, but interpretation provisions in the schedule cannot be read across to apply to other sections.

Government Amendments 53A and 53C would make minor adjustments to the consumer protection and product standards reservations to ensure that the Assembly’s competence in these areas remained unaltered from the current position.

Amendment 48, tabled by the noble Lord, Lord Wigley, proposes the devolution of policing. As the noble Lord will know, the Government have been clear that, in the absence of a consensus around the Silk commission’s proposals in this area, policing is not being devolved. We believe that the current England and Wales arrangements for policing work well, and the proponents of devolution have failed to adequately address some of the risks that would arise if these arrangements were disrupted.

[Lord Crickhowell]

On this very point, at Second Reading I asked the Minister to explain why it appeared that powers over policing were being given to some English regions while they were not being given to the Welsh Government. I am entirely in favour of a general reservation and I would simply like an explanation of that apparent difference.

[Lord Bourne of Aberystwyth]

My Lords, I shall deal with that briefly before I resume. I recall my noble friend raising this at Second Reading and I will write to him. The devolved arrangements that I think he is referring to in relation to some of the city regions in the United Kingdom, specifically in England, do not involve devolution in the way that it is being talked about here. They do not establish separate lines of authority within national boundaries, for example. I will write to him with details on that but I think that the form of devolution is rather different in that respect.

There are factors that I think I should touch upon in relation to why policing is being retained within the England and Wales system under the Bill. First, policing is inextricably linked with the criminal justice system. It is a key component. The criminal justice system’s priorities and ways of operating have a direct impact on other parts of the criminal justice system and vice versa. This can be seen, for example, through quality of evidence gathering and the mutual role played in crime prevention and reducing reoffending. Secondly, existing governance and partnership arrangements provide a significant level of integration and autonomy. The establishment of police and crime commissioners has already devolved policing to the local level. Thirdly, there would be cost and complexity in separating out the existing national structures and arrangements. Fourthly—although admittedly this is a factor that is more easily accommodated—police forces in England and Wales are responsible for tackling a range of crimes and other threats that go beyond the boundaries of a single police force.

At the national level, the strategic policing requirement which applies to police forces in England and Wales sets out the threats which are considered of particular national significance. These include terrorism, organised crime, public disorder, civil emergencies, cyberattacks and child sexual abuse. These threats can require a co-ordinated or aggregated response in which resources are brought together from a number of police forces. Devolution could lead to a weakening of both the regional and national response to these serious crimes. In short, the devolution of policing could lead to a disjointed criminal justice system, adding costs for both the people of Wales and the rest of the United Kingdom.

Amendment 49 would remove the reservation in relation to anti-social behaviour. This would remove our ability to legislate to prevent and address anti-social behaviour through coercive methods such as the tools and powers introduced by the 2014 Act. The subject matter in the Act is intended to reserve coercive responses to anti-social behaviour generally, whatever its form, rather than the detail of the specific orders contained in the Act. The whole approach to anti-social behaviour set out in the Act is intended to encourage the police, councils and other partners to work together to deal with problems quickly. The legislation provides local agencies with a range of different powers and measures and it is for front-line professionals to develop jointly solutions which address the causes of the behaviour and protect victims and communities.

I will listen carefully to the arguments made in this debate. The noble Baroness, Lady Morgan, and the noble Lord, Lord Wigley, seek through Amendment 50 to devolve responsibility to the Assembly for private security. I appreciate the view that private security should be a devolved rather than a reserved matter. I understand those who question why bouncers in, say, Merthyr, Swansea or anywhere else in Wales should be regulated on an England and Wales basis but there are sound reasons why private security is a reserved matter.

First, the security industry is regulated in England and Wales by the Security Industry Authority, an effective regulator which provides consistent standards across borders. In an inherently mobile industry it promotes consistency, maturity and professionalism through, for example, the approved contractor scheme. The licensing regime operated by the authority provides reassurance that those who work in the private security industry have the appropriate qualifications and training and have been subject to rigorous criminal records checks.

Secondly, there are close links between private security and the police, particularly in relation to the night-time economy. The Security Industry Authority has an investigative arm which, in co-operation with the police and other government bodies, tackles criminality in the private security sector, including organised crime. All Security Industry Authority-approved qualifications also include counterterrorism awareness, for example, in looking out for hostile reconnaissance, and the industry is playing an increasingly important role in being the eyes and ears to potential terrorist threats. These current arrangements work well.

Amendment 51 seeks to remove the reservation for the sale and supply of alcohol and the provision of entertainment and late night refreshment. These activities are regulated under the Licensing Act 2003 and the proposed paragraphs preserve the current devolution settlement in respect of all matters covered by that Act. Regulated entertainment includes live and recorded music, plays, films, indoor sporting events, boxing, wrestling and dance performances.

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[Baroness Morgan of Ely]

I think the noble Lord has decoupled that amendment. We will deal with heating and cooling at a different time.

[Lord Bourne of Aberystwyth]

I apologise. I am grateful for the intervention. In that case, I have dealt with our amendments. I am grateful to the noble Baroness for her timely intervention. I beg to move.

[Lord Wigley]

My Lords, I have great personal respect for the Minister, as he well knows, but it is absolutely outrageous that he should be replying to a debate before the arguments have been put forward relating to the amendments. Amendment 48 in my name, to which he has responded comprehensively before I spoke to it, was the lead amendment in this group on Thursday afternoon when I left Westminster. When I came down here at 1 pm today it had been tacked on to the government amendments, which means that the very substantive issue of devolution of police in Wales has been tucked away without an opportunity for a proper debate.

[Lord Bourne of Aberystwyth]

I apologise to the noble Lord. Had he got up at an earlier stage I would have happily given way to him, but our amendment was the lead one in the group. I certainly would have given way to him if he had asked.

[Lord Wigley]

I accept entirely the Minister’s point that they have been grouped in this way, but when I realised they had been coupled in this way it was too late for me to get the decoupling done. That means that devolution of the police, which was a major issue for the Silk commission, is being tucked away at this hour of the night and has been responded to before the arguments have been put. I intend to put those arguments, even at this late stage of the night, and I shall not truncate what I had to say.

Amendment 48 would remove a reservation and subsequently devolve matters relating to the police in Wales to the National Assembly. As noble Lords will be well aware, the Silk commission, of which the Minister was a member, recommended unanimously the devolution of policing and related matters of community safety and crime prevention. Given that the Minister was so keenly in support of that in the Silk commission, it beats me how he was able to say what he said a few moments ago. It is my contention, shared by many people in Wales, that this Bill should have enacted the Silk recommendations—or at least the unanimous recommendations and in these matters in particular.

To put it simply, Wales, like the other nations of the United Kingdom, should have responsibility for its police forces. I cannot see any reason why police priorities in Wales should be dictated by the UK Parliament and not by the National Assembly. Given that policing is devolved to Scotland and Northern Ireland, I can see no reason why it cannot be devolved to Wales. What makes Wales an exception?

The four police forces are unique within the United Kingdom. They are non-devolved bodies operating within a largely devolved public services landscape. They are thus required to follow the dual and diverging agenda of two Governments. Additionally, all four forces in Wales accept the need to provide a service in Welsh and in English. North Wales Police does this with great effectiveness and is held up as a model among public sector organisations in Wales for its language training support and initiatives. This has largely broken down barriers which were at one time widely felt within Welsh-speaking communities in northern Wales and has created a new climate within which police and public co-operation have flourished.

All four police and crime commissioners, the Welsh Government, the Official Opposition in Wales and even the Welsh Conservatives are in favour of devolving policing to Wales. In fact, the only elected body of people in Wales who share the view of the UK Government are the UKIP AMs elected in May—I am not sure whether they are now unanimous on this matter either.

Transferring responsibility to the Welsh Government would not be the tectonic plate shift that many in this Committee might be inclined to believe. Relationships between the Welsh forces and the UK services, such as the police national computer and the Serious Organised Crime Agency, would continue as at present, as is the case with Scotland. I remind the Committee that many of the public services which are directly relevant to policing work are already devolved. That is the case with regard to highway matters, social services, local government, the ambulance service, youth services, education and training. It makes practical good sense to devolve policing, so that a synergy can be developed with these other devolved services.

Why should the people of Wales not be given the same democratic freedom enjoyed by the people of Scotland? Doing so would lead to greater clarity and efficiency by uniting devolved responsibilities, such as community services, drug prevention and safety partnerships, with those currently held by the UK Government.

The Silk commission was established by the Tories and comprised all four main political parties in Wales, including the Conservative Party. Its members spent two years consulting the public, civil society, academia and industry experts on the powers necessary to strengthen Wales. It received written evidence, heard oral evidence and visited every corner of Wales. It heard evidence from the police themselves and from the Police Federation calling for the devolution of policing, and the report recommended accordingly.

Budget cuts to Welsh police forces have been severe. We have seen a reduction of 1,300 in police officer numbers in Wales since 2010. It is true that these cuts have been across the board, but, as Plaid Cymru has recently discovered, they may well have been more manageable had the formula used to fund the police in Wales been according to population and not to crime figures.

A policing grant consultation launched in July 2015 by the then Home Secretary, Theresa May, was abandoned earlier this year after Policing Minister Mike Penning admitted that there had been a “statistical error” on which several police and crime commissioners threatened legal action. Last year’s formula would have resulted in a £32 million cut to Welsh forces, which. as everyone can imagine, would have caused the Welsh police severe difficulties.

The 43 police forces of Wales and England often have different needs and challenges. Policing is a field for which sophistication and complexity are needed in the funding formula to properly account for the relative needs of each force. The review last year sought to place greater emphasis on socioeconomic data and more general crime figures. Such a formula does not properly consider the workload differences in each constabulary. Figures provided by Dyfed-Powys Police indicate that funding our forces in line with population would result in an additional £25 million for the four forces in Wales. That is the Dyfed-Powys Police figure, not mine.

Of course, if policing were devolved to Wales—a position supported by all four police and crime commissioners—the overall Barnett formula would be applied as for the funding of all devolved public services and based on our population. So by retaining police as a non-devolved service controlled from Westminster, Welsh forces face the prospect of these very significant cuts. This is particularly relevant when we consider that policing is devolved to Scotland and Northern Ireland. Consequently, that new formula will not apply to them. Policing is the only emergency service not to be devolved. I am yet to come across any convincing argument, even after listening to the Minister tonight, for not doing so.

Even at this late stage, I beg the Government to think again and show that they are sensitive to widespread feelings in Wales on the issue, particularly within the police forces themselves, and add this provision to the Bill. It would then start to garner a critical mass which parties in the National Assembly would see as a significant step forward and create a logical framework of devolved services that could better serve Wales. There is no point in me adding more now: the reply has already been given. I write that into the record and I emphasise that I am very unhappy about the way this debate has been handled.

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The Minister talked about private security—the bouncers of the nightclubs of Swansea. I thank him for his explanation but I just do not buy it. What is all this about needing common standards and regulators? We have common standards for doctors across the whole EU, but health is still a devolved issue. There is no logic to the idea that these common standards cannot be recognised across borders. I contend that reservations such as this undermine the case for the Bill and reveal the Government’s underlying intention to constrain the Assembly’s powers in a way that they would not dare to attempt with the Scottish Parliament. This does not serve the Government’s case well, and I invite the Minister to agree that he should reflect on the many, many reservations we have set out in this group that we think should be deleted. I thank the Minister for setting out those ideas earlier, but I hope he will reflect on what everyone has said tonight because the Government have gone too far on most of these issues.

[Lord Bourne of Aberystwyth]

My Lords, once again I apologise to the noble Lord, Lord Wigley, in particular. I was a victim of the way in which the grouping was set out; because the government amendments were put first, that was the way I felt was appropriate to tackle it. I shall try to respond to points that have been made on these various amendments.

First, no noble Lord should have been taken by surprise by the Government’s attitude on policing. We made it very clear that we have a set agenda, which I have set out. I do not accept that this was somehow a surprise.

I am happy to meet the noble Baroness, Lady Finlay, about the alcohol reservation, to see whether we can meet her concerns. I have spoken to the noble Baroness, Lady Morgan, about the Pubs Code levy—so it did not just come up this evening—and explained that one reason why we do not think it appropriate for devolution is that the way that the levy operates would not be affordable in Wales. I said when speaking to those amendments that that would be to the detriment of Wales, but I am happy to look at it further with her if she wants to revisit it. I am very happy to speak to the noble Baroness, Lady Randerson, about the issue of ticketing and bus services that she raised, to see what we can do.

I accept that a lot of issues are involved here, from bouncers to alcohol the Pubs Code and so on. I accept that it is late at night and that we have covered a lot of territory, although there was considerable discussion on an issue where I think that virtually the whole House was united. We spent a great deal of time discussing that on an earlier amendment, which was certainly not of my choosing, although I was happy to respond for the Government on it.

I hope that noble Lords will feel able not to press their amendments in the group—which is, I appreciate, a considerable number of amendments. The reason for some of the government amendments is that we have been listening and are responding—on teacher’s pay, the community infrastructure levy and so on. I hope that noble Lords accept when they say that the number of government amendments indicates that it is a fluid area that that is because we have been listening. I am happy to indicate that we will listen further, and I hope that that has been my approach, but I am duty bound to let noble Lords know what are regarded as red lines for the Government, where we are unable to meet the wishes of some—perhaps a majority—of noble Lords. However, where we can help and where powerful arguments are being made—as I have indicated have been on a number of amendments this evening—we are happy to move.

With that, I ask noble Lords who have tabled amendments in this group not to press them.

Amendment 47A agreed.

Moved by

[Lord Bourne of Aberystwyth]

47B: Schedule 1, page 48, leave out lines 21 to 23

Wales Bill

Lord Bourne of Aberystwyth Excerpts

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

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank the noble Lords who have participated in the debate on these amendments. In particular, I thank the noble Lord, Lord Griffiths of Burry Port, and the noble Baroness, Lady Morgan of Ely.

With these amendments, the noble Lord and the noble Baroness are seeking to devolve legislative and executive competence to the Assembly and Welsh Ministers to regulate the number of high-stakes gaming machines authorised by new betting premises licensed in Wales. Betting, gaming and lotteries is currently not devolved in Wales and is reserved under the new reserved powers model provided for by the Bill.

As has just been demonstrated, Westminster, too, is concerned about some of the addiction and social harm issues that the noble Baroness has referred to. Until recently, this matter was also wholly reserved in Scotland, but earlier this year the Scotland Act 2016 devolved certain powers in relation to high-stakes gaming machines in new licensed betting premises. Apart from that, however, the reservation ensures a coherent framework for gambling across Great Britain, as well as a single regulatory environment covered by the Gambling Commission.

The Silk commission made no recommendations on the devolution of betting, gaming and lotteries, so the subject was not considered by the all-party St David’s Day process. However, in the St David’s Day agreement the Government committed to consider whether non-fiscal Smith commission proposals should be implemented for Wales. One such proposal, which we implemented for Scotland in the Scotland Act, would devolve certain powers in relation to so-called fixed-odds betting terminals. I understand the strength of feeling expressed by noble Lords this afternoon about the proliferation of high-stakes gaming machines in Wales. I also thank the noble Baroness for her candour about the last Labour Government in relation to this issue. It was very candid and courageous to state that.

The noble Lord, Lord Howarth, asked why the Government did not bring this measure forward. The answer is simply that it was not put forward by the all-party Silk commission and therefore was not picked up by the all-party St David’s Day process.

The noble Baroness, Lady Finlay, asked about the alert mechanism in the Bill for updating reserved powers. As with all reservations, the list of reservations can be modified by primary legislation made by Parliament or by order under Section 109 of the Government of Wales Act, where the order is subject to affirmative resolution in both Houses of Parliament and the Assembly. With regard to any alteration of reservations, we would of course seek the agreement of the Assembly under the process put forward in the Bill and under the convention that is in place.

Due to the strength of feeling that I have picked up in the House, I should like to look at this matter again, to reflect on the points made by noble Lords and to bring it back on Report. On that basis, I ask the noble Lord to withdraw his amendment.

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Moved by

[Lord Bourne of Aberystwyth]

52A: Schedule 1, page 55, line 11, at end insert—
“Interpretation“Business association” has the same meaning as in Section C1.”

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[Lord Elystan-Morgan (CB)]

I support the amendment for the reasons that have been placed before the House. I raise one question that is common to this and to all the other matters involving the reserved elements of the Bill. I ask the Minister not so much as a Minster of the Crown but also as a distinguished professor of law who understands these issues well. Harken back to the undertaking that was given solemnly, and I have no doubt sincerely, by the then Prime Minister on the day after the Scottish referendum result when he said that Wales was at the very heart of devolution. To my mind, those were not intended to be empty words of adulation but to be an undertaking solemnly given to the people of Wales. I take them in that spirit. My question applies to this and to all the matters reserved that we regard as being trivial and unworthy of reservation. It is this: how does being at the heart of devolution square first with the principle of home rule, secondly with the concept that every decision should be taken at as local a level as possible and thirdly with a healthy interpretation of the concept of devolution? Those are not three different matters at all. At some point they seem to coalesce.

Ships in olden days took their position at noon, but nowadays with sophisticated technology that is no longer necessary. I would like to know what the position is at noon, as it were, in relation to Welsh devolution. I put that to the Minister with very great respect knowing that he will react reasonably to it.

[Lord Bourne of Aberystwyth]

My Lords, I thank all noble Lords who have participated in the debate on Amendment 53, in particular the noble Baroness, Lady Morgan of Ely, who moved it. It seeks to reserve sea fishing outside the Welsh zone but makes an exception to that reservation for Welsh fishing boats. The notional effect of the amendment would be that the Assembly would have legislative competence for Welsh vessels outside the Welsh zone. However, in practical terms the amendment would have no effect because it seeks to reserve a power which the Assembly could not have. Under the Government of Wales Act 2006 and under this Bill, the Assembly’s legislative competence extends to the landmass of Wales and the sea adjacent to Wales out as far as the seaward boundary of the territorial sea; that is, 12 nautical miles, so as drafted it could have no effect. The Assembly has no legislative competence beyond that 12 miles—

[Lord Elis-Thomas]

The Minister will remember of course that before 2006 Wales did not even have a sea.

[Lord Bourne of Aberystwyth]

My Lords, I am going on to tackle the point made by the noble Lord. The Assembly has no legislative competence as things stand although Welsh Ministers can exercise executive functions in that part of the Welsh zone beyond 12 nautical miles in so far as these have been conferred by United Kingdom enactments.

I take the points that have been made in relation to fishing, but as drafted we would need to look at the amendment. It proposes something fairly fundamental to the extent that it would vary the geographic extent of the Assembly’s competence. I would want to go away and have a look at that to see how it could be refined, if that is possible. This is not something that was considered by Silk or by the St David’s Day agreement and, as drafted, the amendment goes well beyond the issue of fishing licences.

My noble friend Lord Deben referred to some of the ramifications in relation to fishing policy as it exists at the moment through Europe and as it will exist in the future outside of Europe, but that is obviously still something to be refined. I want to reflect on that as well.

My noble friend Lord Crickhowell asked about the licensing of fishing vessels and the position in his former constituency of Pembroke—Preseli Pembrokeshire as it now is. I can well remember as an elected representative in the Assembly for that area going at about four o’clock in the morning to the fish market at Milford Haven to speak to electors. All the electors there were Spanish electors, although they did have vehicles that were licensed in Wales as part of the United Kingdom. I think that that remains the position at the moment, but how it will pan out post-Brexit I do not know.

If I may I will take the amendment away and look at it, but based on the fact that there are far more ramifications to this than just fishing, and even in relation to fishing there are of course considerable ramifications—beyond 12 miles it is an economic zone for the state of the United Kingdom and we would exercise powers in relation to that for the whole country. On the points made by the noble Lord, Lord Elystan-Morgan, I thank him for his always gentle and complimentary approach which has me doing things I would probably not normally agree to; I recognise the dangers. I hope that we have looked at things in relation to this legislation on a pragmatic basis because that is the way to approach it. Any general rule is going to have to give way to exceptions because as we can see there are always difficulties in these things. Sometimes they look much more straightforward than they are. My door is always open and we have set up meetings with many noble Lords. I am happy to do that, but as I say our approach to the legislation is a good British pragmatic one. I will look without prejudice at what I think is a much more difficult area than perhaps it looks on the face of it. With that, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Morgan of Ely]

I thank the Minister. His reply reminded me of the time when I was an MEP and I went to meet the head of the sea fishermen’s association of Wales, Mr Gonzalez. Times have changed; we will see what happens.

I am delighted that the Minister is happy to look at this again. We would be happy to redraft the amendment. I do not quite understand why, if Welsh Government Ministers have this competence, the Welsh Assembly cannot be allowed it. Perhaps I need to go away and think about it. We come back to the issue of aligning legislative and Executive competence. If the noble Lord could look at that, I will of course withdraw my amendment.

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Moved by

[Lord Bourne of Aberystwyth]

53A: Schedule 1, page 56, line 40, at end insert—
“Agricultural and horticultural produce, animals and animal products, seeds, animal feeding stuffs, fertilisers and pesticides (including anything treated as if it were a pesticide by virtue of an enactment).”

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Moved by

[Lord Bourne of Aberystwyth]

53C: Schedule 1, page 57, line 19, leave out “fish and fish products” and insert “animals and animal products”

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Moved by

[Lord Bourne of Aberystwyth]

53D: Schedule 1, page 59, line 7, leave out from “The” to end of line 8 and insert “Export Credits Guarantee Department.”

[Lord Bourne of Aberystwyth]

My Lords, in this group there are government amendments and non-government amendments. To try to ensure the proposers of the non-government amendments have an adequate opportunity to present their cases, I will try to extrapolate the two, although I appreciate that for Amendment 65 and government Amendment 65A it might be a little difficult as they are very much in the same territory. That apart, if I stray into non-government amendments, I would be grateful if noble Lords could gently tell me.

Government Amendment 53D modifies Section C14 of new Schedule 7A to set a more accurate devolution boundary relating to the Export Credits Guarantee Department, the ECGD. The department, acting as UK Export Finance, is the United Kingdom’s official export credit agency supporting United Kingdom exporters. Amendment 53D makes the ECGD a particular authority, thereby prohibiting the Assembly from legislating about it in any way. It replaces the existing wording, “subject-matter of” reservation, removing any uncertainty about how that reservation relates to the devolved matter of economic development, including providing advice and assistance to Welsh businesses. Its effect, therefore, is to allow the ECGD to continue to offer support, which we would all welcome.

On government Amendment 65A, the Government recognise that the Assembly has legislative competence over council tax reduction schemes. We accept that council tax reduction schemes are an integral part of the local government finance system, which is devolved. To that end, the Government have tabled Amendment 65A to remove the words,

“or liabilities for local taxes”,

from sub-paragraph (c) of the “social security schemes” definition under Section F1 of new Schedule 7A. This would remove any reference to local council tax and have the same effect as the amendment proposed by the noble Baroness, Lady Morgan.

We are content to devolve legislative competence to the Assembly as it is now an integral part of local government finance. I trust the amendment will satisfy the noble Baroness, but I look forward to hearing from her on that point.

[Lord Howarth of Newport (Lab)]

It is a good thing that the Government have decided to devolve powers relating to council tax benefit, but are they also proposing to devolve the financial resources necessary to enable the National Assembly and, if the National Assembly chooses to do so, local authorities in Wales to exercise these powers usefully and constructively?

[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.

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I will also speak on the issue of sports grounds within this group of amendments. It is difficult to see how the safety of sports grounds must be controlled by London, or else the United Kingdom in some way will be imperilled. Why can we not abide by the principle that anything devolved to Scotland or Northern Ireland should also be devolved to Wales? Do the UK Government have the capacity or ability to monitor the safety of sports grounds from London? Do they have the contacts with the devolved fire service or the ambulance services? Again, this is an example of a rollback in Assembly power. I would also be interested to hear the Minister’s response in relation to careers and job search.

[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.

Amendment 53D agreed.

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[Baroness Morgan of Ely]

My Lords, we have heard some very passionate speeches and we are all very aware of how emotional the issue of water can become in Wales. The Minister is aware of how sensitive this issue is, especially following the travesty of the development at Tryweryn, which the noble Lord, Lord Wigley, mentioned. In fact, the Secretary of State, who is present —we welcome him to this Chamber—was clear in his public announcement yesterday that a second Tryweryn could never happen. The events at Tryweryn occurred in 1965, before I was born, but the fact that it has left an impression even on my generation says something about the powerful message that was sent at that time. I do not want to be churlish but I was fairly confident about this issue, having sought assurances from Welsh Government officials, who suggested that current planning laws already devolved to Wales could probably have stopped that scandal being repeated. I hope the Minister will confirm whether that is the case. As I say, I do not want to be churlish, so I cautiously welcome the announcement made yesterday by the Secretary of State for Wales in relation to water. However, I will reserve my judgment until we have seen the detail. On the face of it, the announcement should be a positive move but, as always, the devil is in the detail. Until we have had a chance to scrutinise that proposal, I intend to press ahead with our amendments.

The Bill amends Section 114 of the 2006 Act by limiting the grounds on which the Secretary of State can intervene to prevent the Presiding Officer submitting an Assembly Bill for Royal Assent. That section currently allows an intervention, so I look forward to the government amendment to remove it. The Minister should be aware that anything other than a complete deletion of this section will be looked on unfavourably.

Notwithstanding the points made by the noble Lord, Lord Crickhowell, I stand by Amendment 54, which would require the full devolution of water and sewerage to be aligned with the geographical boundary with England, as set out in the Silk report and the St David’s Day Command Paper. The work of the joint Governments’ water and sewerage devolution programme board, which was established following the St David’s Day paper to consider the alignment competence, found that changes can be achieved with minimal impact on consumers of water and sewerage services. I was delighted to see that in the letter to Peers that the Minister sent last week, he suggested that he was looking at this issue. Therefore, we hope that he will look favourably on this amendment.

The third amendment relates to the regulator. Ofwat, the regulator for water and sewerage providers in England and Wales, should be fully accountable to the National Assembly for Wales in respect of the functions it exercises in relation to Wales to better reflect the current devolution settlement on water matters. The amendment would make it a requirement for Ofwat to produce a report to Welsh Ministers and for that report to be laid before the National Assembly in respect of the functions it exercises in relation to Wales. The amendment would require the nomination of a board member as a joint appointment between the Secretary of State and Welsh Ministers to reflect a new arrangement which the Welsh Government consider necessary consequent to full legislative competence for water and sewerage.

Amendment 104 is proposed to amend Section 27 of the Water Industry Act to require the Secretary of State to seek the consent of Welsh Ministers before issuing general directions to Ofwat in respect of matters where functions are exercised by water and sewerage undertakers in Wales, or where licensed activities are carried out using the system of a water or sewerage undertaker wholly or mainly in Wales.

These changes are necessary so that Ofwat is fully accountable to the National Assembly for Wales and Welsh Ministers for those functions to be exercisable in relation to Wales. It is therefore important that we apply appropriate Assembly procedures to regulations which make provision within the Assembly’s competence. Scotland has great scope on environmental powers, including the regulation of water. It is only right that Wales is awarded equal authority in this respect.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lords who have participated in the debate on these amendments, which relate to water. I particularly welcome the contribution of the noble Lord, Lord Wigley, who moved his amendment with sensitivity and fairness on an issue which I know is very close to his heart. The Government are determined that never again should there be a Tryweryn. That is at the back of all our thinking on this issue.

I welcome the contributions from around the Committee. My noble friend Lord Hunt of Wirral spoke with passion of his time in north Wales, and the noble Lord, Lord Morgan, talked of his home county of Meirionnydd. I also welcome the contribution of the noble Lord, Lord Elystan-Morgan. I could not agree more with the sentiments that they expressed. I also thank my noble friend Lord Crickhowell—with his background and experience as chairman of the National Rivers Authority—for bringing his authority to this issue: aligning the border is not necessarily straightforward.

Water is of symbolic importance as well as practical significance to Wales. It evokes more passion and debate than probably any other issue relating to Welsh devolution. It is not just about Tryweryn; as the noble Lord, Lord Thomas of Gresford, reminded us, it is about the Dulas Valley as well, and there have been other issues. I thank noble Lords for contributing to the debate from the viewpoint of their own experiences. The strength of feeling has been amply demonstrated in their speeches.

In announcing the Government’s intention to devolve pay, my right honourable friend the Secretary of State for Wales signalled that the Government were exploring other aspects of the settlement to ensure that it is as clear and fair as possible. Yesterday, my right honourable friend Alun Cairns announced the Government’s intention to remove the Secretary of State’s powers to intervene on water and to replace them with a statutory protocol on water between the United Kingdom Government and the Welsh Government. Work will be done on that, and we hope to have the detail ready for Report.

That is a highly significant announcement. Water has been a challenging issue, as anyone familiar with recent Welsh history will know. The replacement of the intervention powers with a formal protocol marks a step change in the history of Welsh devolution—one that resolves past differences and provides clarity for the future. The move also removes any last impediment that there may be—at least in terms of this Bill; I hope the noble Baroness will be able to clarify this—to the Assembly giving its approval to the Wales Bill, subject of course to agreement on the fiscal arrangements.

The existing intervention powers were put in place in the Government of Wales Act 2006, when Peter Hain—now the noble Lord, Lord Hain—was Secretary of State. Since then, there has been a great deal of development in relation to devolution. This Bill marks a move to a new, durable and lasting devolution settlement, underpinned by a recognition of the maturity of the Assembly and the Welsh Government. In keeping with this, it is time to replace the Secretary of State’s powers to intervene on the Assembly and Welsh Ministers in relation to water with a statutory protocol between the United Kingdom Government and the Welsh Government which defines how the two Governments will work together on water-related issues—in particular, cross-border issues.

I confirm that the Government intend to bring forward amendments on Report to put in place the requirement for a formal agreement and to remove the intervention powers. In doing so, it will be important to respect the interests of water users in both Wales and England. As my noble friend Lord Crickhowell exemplified, this is not necessarily straightforward in every respect.

[Lord Elis-Thomas]

I am excited not just by the environmental and political aspects of this but by the constitutional implications. Can the Minister help us by indicating whether establishing a protocol in relation to powers between the Assembly and this Parliament, and indeed between the Welsh Government and the UK Government, is something that he would consider in other areas of policy in the Bill?

[Lord Bourne of Aberystwyth]

My Lords, as I have indicated, working together between the Government in Cardiff and the Government of the United Kingdom is of interest to all of us who believe in an effective United Kingdom and an effective Wales. So, yes, I am certainly in favour of that, as I have indicated. In so far as we can provide for that, the Government are open to looking at it. With the excitement of that intervention, I have lost my place.

[Lord Elis-Thomas]

The temptation to intervene was too much.

[Lord Bourne of Aberystwyth]

I fully understand.

It will be important to put in place a protocol with bite. Both Governments will be subject to a duty to act in accordance with the new agreement and, once it is in place, both will need to agree any changes to it. The agreement will also need to include a process for resolving any disagreements that both Governments will sign up to.

It is as yet too early to say how soon the new arrangements will be agreed, but the Government will repeal the Secretary of State’s water intervention powers once an agreement is signed and sealed. This historic commitment to remove the intervention powers paves the way to conclude the Government’s consideration of the wider devolution issues relating to water and sewerage, including the sewerage intervention powers currently in Clause 46 of the Bill and the question of whether powers over water and sewerage should be aligned with the England-Wales border.

The Silk report recognised that water and sewerage devolution was complex and that further work was needed to consider the practical implications of implementing the commission’s recommendations. Following the St David’s Day agreement, the Government set up the joint Governments’ programme board with the Welsh Government to look at these issues and report on the likely effects that implementing the recommendations would have on the efficient delivery of water and sewerage services, on consumers and on the water undertakers.

That work has concluded and the Government have been considering the evidence that has been collected. In doing so, it has been particularly important to consider carefully the interests of customers and businesses on both sides of the border before reaching a decision on the recommendations. It remains the Government’s intention to bring forward provisions to implement the recommendations, if such a thing is achievable, and I hope to be able to return to this on Report.

I will now turn to other water-related amendments that are not Silk recommendations. Amendment 104, tabled by the noble Baroness, Lady Morgan of Ely, seeks to amend the Water Industry Act 1991 as it relates to Ofwat. Part of this amendment would require the Secretary of State to seek the consent of Welsh Ministers before making directions to Ofwat, outlining her priorities for keeping the activities of water companies under review. This would occur where these directions apply to Welsh water companies and licensees carrying out activities in the areas of those companies. This requirement for consent would cover all of Ofwat’s functions, including those applicable to policy areas reserved to the Secretary of State, such as those relating to competition law, insolvency and mergers. This would give the Welsh Ministers considerable influence over policy areas that are not devolved.

The noble Baroness’s amendment would also place a requirement on Ofwat to make its annual report to the Assembly rather than just send it a copy, as is currently the case. At present there is nothing to prevent the Welsh Ministers laying before the Assembly the annual report that Ofwat sends them or publishing it in any manner they see fit.

The amendment requires appointments to Ofwat’s board to be made jointly by the Secretary of State and the Welsh Ministers. Other amendments seek to grant Welsh Ministers joint powers with the Secretary of State over board members’ terms and conditions. Currently, the Secretary of State makes all appointments following consultation with the Welsh Ministers and consults them on some other aspects. In practice, this means that the Secretary of State writes to the Welsh Ministers to seek their views on an applicant before confirming the appointment. However, the Welsh Government are also invited to sit on the appointment panel, which is chaired by Defra. This, along with the various requirements to consult Welsh Ministers, already provides the Welsh Government with considerable influence over the process and final appointment decisions.

Amendment 105 in the name of the noble Lord, Lord Wigley, concerns the abstraction of water from Welsh reservoirs. As I think I have indicated, I share the views expressed by noble Lords today: the events of some 50 years ago which resulted in the flooding of Tryweryn were some of the darkest and most regrettable days in modern Welsh history. Never again.

In answer to the question raised by the noble Baroness, Lady Morgan—I am delighted to note that she did not wish to be churlish; I welcome that very much—decisions about the construction of new reservoirs and environmental controls are already devolved to the Assembly. However, we are going further—and rightly so. The Assembly exercises legislative competence in relation to both issues: construction and environmental controls. The Welsh Ministers would need to issue a compulsory works order to allow the construction of a new reservoir to take place. It is within the competence of the Assembly to give itself a role in the issue of consent orders.

Natural Resources Wales is the environmental body which regulates abstraction in Wales. Again, the Welsh Minsters and the Assembly can legislate to change or add to its powers. Nevertheless, as announced yesterday by my right honourable friend the Secretary of State, the Government intend to remove the Secretary of State’s powers to intervene on water and replace them with a protocol. I think that that is in the spirit of where we need to be in relation to this totemic and practically significant area of water. On that basis—

[Lord Wigley]

I have listened very carefully to the response that the noble Lord, Lord Bourne, has given us. Quite clearly, there is an intention to make considerable movement in what I and many others would regard as the right direction on this matter—but we cannot come to a judgment on that until we see what comes forward on Report. However, can he confirm one thing? Notwithstanding that there are powers in planning, and the other powers that he has mentioned, will he consider between now and Report to have it written on the face of the Bill, so that there is no doubt whatever, that the construction of the reservoirs in Wales is a function of the National Assembly, in the same way that it is spelled out that the control of fracking is in the control of the National Assembly? Can he give us an assurance that he will be looking for words by which to achieve that between now and Report?

[Lord Bourne of Aberystwyth]

My Lords, I can certainly give the noble Lord the assurance that if it is not on the face of the Bill, a protocol that contains it will be referred to on the face of the Bill—that is important. It is perhaps something that we can return to. I am meeting the noble Lord and I appreciate the sensitivities in this area. I want to ensure, as I think we all do, that there can be no future Tryweryn. If it is helpful to put that on the face of the Bill, we will do so, and I am very happy to discuss that with the noble Lord ahead of Report.

[Baroness Morgan of Ely]

I am pleased that there will be movement on the intervention powers of the Secretary of State. That is a very positive move. I am also very pleased the Minister has clarified the fact that we could have stopped what happened at Tryweryn with the current powers—that has come across clearly. But he did not say, in relation to Ofwat, whether he is minded to move on that issue. The impression I got was that he was not, but perhaps he will clarify that.

[Lord Bourne of Aberystwyth]

My Lords, I am happy to clarify that point. I believe that the existing powers in relation to the Welsh Government and Welsh Ministers are sufficient, but I am very happy to look at that issue and cover it in the protocol, which could extend to that if it is something that we should be doing. I will happily discuss that with the noble Baroness.

[Lord Elis-Thomas]

The Minister will recollect that we worked together in the National Assembly. I looked at this issue at the time and I can reassure him and the House that the way in which he described the current position in planning and environmental law is indeed the position. But of course that does not mean that we cannot strengthen it by making indications about the intervention powers of the Secretary of State. On that, I think we are all agreed.

[Lord Bourne of Aberystwyth]

I am very grateful to the noble Lord for reminding me of the years of co-operation we had in the National Assembly for Wales and for clarifying that issue in the way that he did. On that basis, I hope that the noble Lord will consider withdrawing his amendment.

[Lord Wigley]

My Lords, I am very grateful to everyone who has participated in this debate, including two former Secretaries of State for Wales—we had four in the Chamber and one adjacent to it at one point; a remarkable situation—and for the expertise that they have brought to our consideration. I also thank the noble Lords, Lord Elystan-Morgan and Lord Thomas of Gresford, for their passion and background, which added to our understanding, and the noble Lord, Lord Morgan, from Aberdovey, for his historical knowledge and appreciation of the importance of this issue to the people of Wales. I thank also the noble Baroness, Lady Morgan of Ely, for her contribution and her amendments, which I think should be considered along with the others between now and Report—perhaps we can discuss those. I am grateful for the intervention of my noble friend Lord Elis-Thomas, who represents in the National Assembly the area that includes the Tryweryn valley.

I think that we are making progress. We have not got there yet but there is much to be considered and built upon between now and Report. If the Minister can deliver what he seems to want to deliver, and if his colleagues in the Wales Office can do likewise, then quite possibly we can, once and for all, put this issue to bed by making it quite clear that control of these matters is in the hands of the elected National Assembly for Wales. There is a need for co-operation, but there is also a need to appreciate the importance of communities and the significance of this issue to our nation. On that basis, I beg leave to withdraw the amendment.

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[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on devolution of energy to the National Assembly for Wales. I turn first to Amendment 55A, moved by the noble Baroness, Lady Morgan of Ely, which seeks to add an exception to the reservation in new Schedule 7A relating to the,

“Generation, transmission, distribution and supply of electricity”.

It is an amendment that needs to be considered in the context of Clauses 37 and 40, and of reservation M4 on “Development and Buildings”.

The Silk commission recommended that there should be further devolution to Wales—it is further devolution, as the noble Baroness, Lady Randerson, recognised—of responsibility for consenting electricity generation projects, and that there should be a more streamlined approach to consenting ancillary developments required to sit alongside those projects. Those were points well made in the debate. There was cross-party consensus to implement these recommendations taken forward under the St David’s Day agreement. Without looking at the Silk process, although I accept that it is important for the legislation, this is essentially based on the St David’s Day agreement.

We achieve the expanded role that Silk envisaged through the combined effects of Clauses 37 and 40, which clearly set out the parameters of the new devolution settlement in this area. The extent of that settlement is further reinforced by the terms of reservation M4, which provides that the very instances referenced at Clauses 37 and 40 are carved out of the range of planning matters that are reserved.

To provide further clarity on this point, the consenting of a generating station or an overhead line is a planning matter. While I accept that the proposed amendment is well intentioned, it would be not only superfluous but, as an addition to reservation D1, misplaced. Section D1 relates to the regulation and licensing of the process of generating electricity and to what subsequently happens to that electricity. This is the regime administered on a GB level by Ofgem, which includes Scotland. It does not concern itself with the planning for, or the construction of, the means of generating electricity.

Further, as drafted, the reservation would add confusion to the particular reservation and potentially the schedule in general. The Assembly’s legislative competence is limited to Wales—the counties forming Wales and the territorial waters adjacent to those counties. The amendment talks about planning in the “Welsh zone”, which includes seas beyond the territorial waters and outside the legislative competence of the Assembly, as we touched on earlier about the issue beyond the 12 miles of territorial sea. I hope the noble Baroness, Lady Morgan, will take those points on board.

As I said, the Bill already devolves matters relating to the planning for developments of up to 350 megawatts. This is not a point that has been covered, but the Energy Act 2016 has already devolved all onshore wind consents without limit to local authorities in Wales. At the same time, we devolved power to the Assembly to change that to the Welsh Government if it wanted to do so. In response to my noble friend Lord Crickhowell, I recognise his view that this should be a matter for local people, which I share, but at the same time, with this being a devolved issue, it would be for the Welsh Government to alter that if they wanted to do so. We have indicated our intention by giving the power to local authorities. The Welsh Assembly could alter that. There is no limit to the power relating to onshore wind. That might reassure noble Lords who were unaware of that.

The noble Lord, Lord Elis-Thomas, asked about a protocol. I will certainly go this far: it is important that Ministers talk together. Many of these projects are happening at a UK level. We should not consider that there is always malign intent on the part of the UK Government towards Wales. As we know from the Swansea lagoon project and others, important infrastructure projects are being moved forward by the UK Government, who are talking on a regular basis to officials and Ministers in Wales. Those points were covered by my noble friends Lady Bloomfield and Lady Finn. It is right that some of these important decisions are discussed between Wales and the United Kingdom.

I also say to the noble Lord, Lord Elis-Thomas, that I know, because I was a Minister in the Department of Energy and Climate Change, that BEIS is looking at small modular reactors. Trawsfynydd’s interest has obviously been noted, but I have to say to him that if it had been in Scotland it would not have got off the ground because of the nuclear element. Sometimes there are unintended consequences to these things. To come back to the issue we are looking at, the amendment as drafted would not achieve what it seeks to do, in any event.

Amendments 99, 100, 101 and 102 seek to reopen a key recommendation of the Silk commission and the St David’s Day commitment: that the devolution threshold for future consenting for electricity generation in Wales should be 350 megawatts and below. That threshold gives the Assembly and Welsh Government substantially more autonomy in determining the shape of Wales’s future energy structure than was previously the case.

I accept that any level is, in a sense, arbitrary. It has to be a matter of judgment where it is set as to what is appropriate for the UK Parliament and what is appropriate for Wales—hence the importance of the dialogue between the two Governments and the two Parliaments. It respects the fact that Wales and England are, and will remain, intrinsically linked through a common electricity transmission system that depends on inputs from a broad range of generating sources. The Government remain firmly of the view that, the larger the capacity of those sources, the greater their significance beyond the confines of Wales and to the United Kingdom as a whole. Those points have been made by noble Lords as the debate has progressed.

Consensus was reached during the St David’s Day process about the cut-off point. The noble Lord, Lord Wigley, said that if the Swansea lagoon is within this process for Wales—as I accept it is—it is simply an issue of scale. I agree that it is an issue of scale; that is where the cut-off comes in, because the cut-off has to be arbitrary. I cannot see that it can be any other way. It is a matter of judgment as to what is strategically significant for the United Kingdom and what is appropriate for Wales.

[Lord Wigley]

On that point, with regard to Swansea Bay being just below the threshold and Cardiff and Colwyn Bay being just above it, does it not make all sense for this limit to be adjusted at least enough to take those together, so the expertise in handling these matters is all in one place?

[Lord Bourne of Aberystwyth]

My Lords, I say two things to that. First, I am certainly not going to get into a Dutch auction as to what should come within on that basis. Of course I understand the point he makes, but my second point takes me back to one I have already made: we need a ready and willing dialogue between the Welsh Government and the National Assembly, as I think is happening, and between BEIS and Parliament. There is no reason to suppose that there is a malign intent regarding these projects. I know the noble Lord is not suggesting that.

Government Amendment 119G is a minor and technical change to Schedule 5. Under Clause 37, Welsh Ministers will have the ability to consent to electricity generating stations of up to 350 megawatts in waters adjacent to Wales. The vehicle for doing so will be Section 36 of the Electricity Act 1989, and Schedule 5 to the Bill gives Welsh Ministers the ability, by regulation, to amend the Section 36 application processes to suit their purposes. The Bill currently also extends that regulation-making power to Section 37 of the Electricity Act, which relates to the consenting of overhead power lines. However, as Section 37 consenting powers are not being devolved in the Bill, the power is ineffective and it makes sense to remove it.

Government Amendment 121 amends Clause 55. Further to the one-stop-shop philosophy for energy consenting advocated by the Silk commission, Clause 41 provides the Secretary of State with the ability to consent associated developments along with the principal consent for nationally significant infrastructure projects in the field of electricity generation and transmission. This will deliver significant streamlining improvements to a system which, at present, can require developers to assemble consents from a plethora of different authorities. It is wholly consistent with the Government’s policy of encouraging infrastructure development for these changes to be introduced as soon as it is practical. The amendment will achieve that by commencing the relevant provisions two months after the Bill’s Royal Assent.

On that basis, I urge the noble Baroness to withdraw the amendment, and for her and the noble Lord not to press the other amendments in the group. I intend to move the government amendments.

[Baroness Morgan of Ely]

My Lords, I thank those who have participated in this debate. I recognise that my amendment on electricity generation, distribution and supply was imperfect; it was meant to generate a debate of this kind. I understand that there are no limits in terms of power over onshore wind and certainly do not want to imply any malign intent on the part of the UK Government, but the complexity of the current model means that it is extremely difficult for Wales to compete in a global investment energy market. If it is much easier to go through a planning process in Denmark than in Wales, why would you not go to Denmark? It is a shame that we have not come to any conclusion on this, but it is an issue that we need to look at. We may need to look at how we streamline the process. It may be another issue where we could put a protocol in place, because we like protocols as a way of moving things forward.

On the cap beneath which we should be allowed to determine energy consents in Wales, I am not sure how much further we have gone. Dialogue is good, as the Minister suggested, but I am not sure what kind of commitment that represents. I hope to retain our ability to come back to discuss both amendments on Report, but for now I beg leave to withdraw Amendment 55A.

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[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?

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who participated in the debates on heat and cooling and on energy conservation. Amendment 56 seeks to remove the reservation that deals with the supply of heat and cooling. It is important to be clear that the reservation is concerned with policy on heat supply, which is analogous to the supply of every other type of energy. Heat is strategically significant and represents almost half of our energy use and around one-third of carbon emissions. I can tell the noble Lord, Lord Howarth, that the Government have a very definitive energy policy—not just when I was Minister, I hasten to add—very much signing up to the climate change targets internationally, along with many other countries, as he will know; a commitment to nuclear, which I do not think is shared, certainly, by his party leader; and a commitment to diverse sources of energy. Let us put that canard to rest: there is a very definitive energy policy.

The policy in relation to heat is significant. Heat represents, as I say, almost half our energy use and around one-third of carbon emissions. The reason that we are seeking to reserve this is because it is a relatively new technology; it is about supplying heat, through policies such as the renewable heat incentive, the heat networks investment project, the combined heat and power quality assurance scheme and innovation support, and through initiatives such as the smart systems and heat programme, all of which are part of the United Kingdom’s energy policy. I accept that rollout and delivery will always be at a local authority level, but it is question of how the framework is set. These policies already exist and benefit the people of both Wales and England. It seems clear that devolving this area would increase costs, due to a loss of economies of scale, and would add complexity and confusion for businesses and householders and add to bills. The noble Lord, Lord Howarth, touched on affordability, which is certainly a prime concern of the Government, along with security of supply and ensuring that energy is green.

Heat is not simply a local issue. There are strategic decisions to be taken over the coming years, including options that would require action at a national level, such as decarbonisation, possibly even decommissioning, of the existing gas grid. These emerging national-level heat issues mean that it would be far more effective to maintain consistency between England and Wales, and it is why grid and infrastructure issues relating to oil, gas and electricity are also reserved in Scotland as well as in Wales. I hope I have explained the Government’s reasons for this reservation and why I am not able to accept the amendment.

Amendment 57 seeks to remove the reservation that deals with energy-efficiency requirements. The reservation uses the term “energy conservation” to reflect the language in the existing devolution settlement. It is our contention that energy efficiency is a subset of energy conservation. I will write to the noble Baroness, Lady Morgan of Ely, with some of the technical detail on that, if it would be helpful. The settlement provides for the Assembly and Welsh Government to have powers on energy efficiency, except via the use of regulation or prohibition. It is not as if there is no power in relation to energy-efficiency; it is just in relation to regulation or prohibition. For example, it would allow schemes to advertise energy-efficiency measures—I think that is probably something the Welsh Government already do, although I stand to be corrected on this.

The reservation in this amendment, however, covers home and business energy-efficiency measures that are imposed by regulation, and so have been implemented by, or under, legislation or equivalents, such as licence conditions imposed on gas and electricity suppliers. Having separate energy-efficiency obligations for England and Wales would be likely to increase the complexity and costs for organisations involved in delivering the obligations, with an impact on consumer bills. That is something the Government cannot sanction and, on that basis, I urge the noble Baroness to withdraw her amendment.

[Baroness Morgan of Ely]

I thank the Minister. I find it quite odd when, in one breath, there is a suggestion that we need to meet decarbonisation targets and yet there is an understanding that climate change targets also have to be met at local levels. I think the Welsh Government have targets on that. I do not think you can have it both ways. On grid and infrastructure, of course there is a recognition that there needs to be a UK grid and infrastructure, but I contend that that does not make sense in terms of local heat networks. I would be very interested to see a little more detail on what the Minister suggests in relation to energy conservation, but the fact that energy efficiency is already largely devolved is perhaps something that has not been recognised in the way we had hoped. With that, I beg leave to withdraw the amendment.

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[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on these issues relating to transport. I turn first to Amendment 57A, moved by the noble Baroness, Lady Randerson. Section E1 of new Schedule 7A lists the road transport powers that are reserved. Amendment 57A would give the Welsh Government responsibility over driver training, testing and certification. The words “including training, testing and certification” are intended to clarify further what is meant by driver licensing, which is an exception to the Assembly’s competence under the current devolution settlement. It is not intended to modify the Assembly’s current competence; I can confirm that and it will of course appear on the record. It is important for business and road safety for there to be a consistent approach across Great Britain. It would be impractical and costly for the transport industry to follow different rules on how drivers should learn to drive and have a different driving test from the rest of the country. I do not think the noble Baroness was suggesting that. Moreover, road safety is reinforced by all road users having to observe the same rules so that everyone is able to fully understand the consequences of not observing those rules.

Amendment 57B, as tabled by the noble Baroness, Lady Morgan, would except the registration and regulation of bus services from the road transport reservation. The Welsh Government already have the ability to determine a number of aspects of bus policy including concessionary fares, smart ticketing and the provision of subsidies. The devolution of the registration of local bus services—a St David’s Day commitment—is already provided for in the Bill and will complement the Assembly’s existing powers. Welsh Ministers will have the power to legislate in respect of bus franchising, quality contracts and quality partnerships. I will write to the noble Baroness more specifically on some of the exceptions and issues that she raised. I am sure she realises that one or two of those were fairly technical. I do not have the information to hand.

Amendment 97 will not be moved, as I understand it, but I will refer to it briefly— notwithstanding that I think the noble Lord, Lord Wigley, said that to confirm his understanding. Perhaps I could turn first to Amendment 58, which was spoken to by the noble Lord, and seeks to extend the legislative competence of the Assembly in relation to railway services to include the Wales and Borders rail franchise. It is not clear what the intended geographical scope of these powers would be, nor what particular functions potentially relevant to the procurement and operation of the franchise the Assembly would have competence over. This is somewhat like the issue relating to water; at issue is that the railway line is partly in England and partly in Wales. On railway services, the Assembly currently has legislative competence only in respect of financial assistance relating to railway services, subject to limited exceptions in relation to the carriage of goods, railway administration orders and compensation of passenger service operators for public service obligations, under EU Regulation 1370/2007.

Extending the Assembly’s legislative competence in relation to the provision of railway services was not recommended by the Silk commission and so was not considered in the St David’s Day process. The Bill therefore seeks to preserve the existing devolution settlement in relation to legislative competence for railway services. It may also be helpful if I confirm that an amendment to the Assembly’s legislative competence is not necessary to give effect to our agreement with the Welsh Government to take forward the devolution of executive franchising functions for Welsh services to Welsh Ministers.

Amendments 59 and 60, tabled by the noble Lord, Lord Wigley, seek to extend the Welsh Assembly’s legislative competence in relation to rail infrastructure in Wales and the specification and funding of Network Rail’s operations in Wales. As he will no doubt be aware, the Silk commission recommended the transfer of executive functions in relation to the specification and funding of Network Rail’s operations in Wales. This recommendation was considered as part of the St David’s Day process but there was no political consensus to take it forward. The Government do not intend to revisit this issue, given those discussions. I can however assure the Committee that the Department for Transport continues to liaise closely with the Welsh Government on the specification and funding of Network Rail’s operations in England and Wales for each five-year railway control period, to ensure that requirements in Wales for increased capacity on the network are reflected. The Government also welcome the significant investments made by the Welsh Government in the rail network in Wales to support the Welsh economy. These complement the significant investments in the strategic capacity of the England and Wales rail network that have been, and will continue to be, made by the UK Government that benefit Wales.

Amendment 70, which was tabled by the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Wigley, seeks to remove planning in relation to railways in Wales from the list of reservations. The underlying issue is the interpretation of the current devolution settlement set out in the Government of Wales Act 2006. The UK Government and the Welsh Government interpret the extent of current devolved competence in relation to this issue differently. This again emphasises the lack of clarity that exists under the current devolution settlement. It also points to the need to ensure that the Bill removes any uncertainty and provides clarity going forward. Establishing a clear boundary between what is devolved and what is reserved is, of course, a key objective of this Bill. However, Amendment 70, without further clarification, has the potential to introduce further uncertainty to the devolution boundary by creating a conflict with the “railway services” reservation in Section E2 of new Schedule 7A. As such, we need to be able fully to consider the issue and the most appropriate approach to adopt.

However, I am aware that the Assembly has already exercised competence in this area, as referred to by the noble Baroness, Lady Morgan, under the Planning (Wales) Act 2015. In the circumstances, I therefore propose to take this issue away for detailed consideration and to return to the House and set out the Government’s position on Report. With that assurance, I hope the noble Baroness will not press the amendment.

Amendment 109, in the name of the noble Baroness, Lady Morgan of Ely, seeks to press the UK Government to a decision on a matter they committed to consider in the St David’s Day Command Paper. That matter is whether to legislate for Wales in a manner similar to provision in the Scotland Act 2016 regarding the powers of Scottish Ministers, as committed to in the Smith commission agreement, to enable Welsh Ministers to invite United Kingdom public sector operators to bid for rail franchises for which they are the responsible franchising authority. I say in parenthesis that, as my right honourable friend the Secretary of State set out in other place, the Railways Act does not prevent not-for-profit bidding for franchises but prevents public sector bidders.

I recognise that the Welsh Government are keen to have such flexibility, in addition to that available under current legislation, to encourage bids from other sector organisations. The Government consider it would be premature to reach a decision on this matter in advance of final agreement with the Welsh Government on the terms for future devolution of executive franchising functions. At present, Welsh Ministers do not have any statutory powers to procure rail franchises. The effect of the proposed amendment would be to confer discretion to allow public sector bidders for franchises consisting of, or containing, Wales-only services on the Secretary of State. This would be inconsistent with the United Kingdom Government’s policy not to allow UK public sector operators to bid for rail franchises.

As the noble Lord, Lord Wigley, indicated, I am committing to the progress made between the United Kingdom Government and the Welsh Government in preparing for the transfer of franchising functions to Welsh Ministers. That is something we are seeking to do and are committed to do. As part of reaching final agreement, we will be able to reach a decision on the issue raised by this amendment regarding Welsh Ministers’ ability to invite bids from public sector operators in future procurements.

[Baroness Morgan of Ely]

Can the Minister give us a timetable for when those decisions will be made? Will it be before Report or is it an issue that will be resolved after the Bill has left this House?

[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.

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Moved by

[Lord Bourne of Aberystwyth]

65A: Schedule 1, page 65, line 34, leave out “or liabilities for local taxes”

Wales Bill

Lord Bourne of Aberystwyth Excerpts

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

[Baroness Morgan of Ely (Lab)]

My Lords, I support the amendment moved by my noble friend Lord Hain. The Welsh public sector workforce is the linchpin in ensuring that Welsh public sector authorities carry out their functions and provide services to the public. There is a well-recognised link between good employment practices and industrial relations within authorities and contractors and the quality of the services they provide to the public.

Since devolution, the Welsh Government have led with a distinct vision for public services, rooted in the principles of social partnership. These principles have guided the development of public service delivery in Wales, which is now distinct from that of England. As many noble Lords have noted, this amendment would not undermine the shared framework and protections in respect of employment and industrial relations, but would allow the Assembly to augment these where appropriate to support the effective delivery of devolved public services by Welsh public authorities. I ask the Minister how he thinks people based in London can have the first inkling of what is happening in our schools and hospitals, which are devolved.

For devolution to be meaningful, the Welsh Government must be able to continue to pursue social partnership, defining the relationship between public service employers and employees with integrity, transparency and trust. In proposing this reservation, the UK Government are seeking to divorce the terms of employment and industrial relations in public services from the delivery of those services. The reservation will fundamentally weaken the existing powers of the Government of Wales Act and will prevent Welsh Ministers exercising their legitimate functions prescribed by the Bill on public services. We know this because a leaked letter from the government legal opinion suggested that we currently have the rights over these powers.

I echo the point made by my noble friend Lord Murphy: let us avoid a future reference to the Supreme Court. This was supposed to be the final full stop in the whole legislative framework for the devolution settlement for Wales. If this goes through, I assure your Lordships that this will be not the full stop but the beginning of another battle.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank noble Lords who participated in the debate on this part of the Bill concerning employment law. I thank the noble Lord, Lord Hain, for his very kind words in opening the debate.

To put this in perspective, I think it is common ground between the noble Lord, Lord Hain, and I that employment and industrial relations law is a reserved area. I am not sure that that view is shared by the noble Baroness. She seemed to be suggesting that somehow our reservation meant the end of civilisation as we knew it. It is fundamental to the country that we live in. The UK Government believe that the underlying legislative framework concerning rights and responsibilities in the workplace must be reserved. I believe as much as anyone does in good employment practice. I worked in the public sector in Wales before I went into the Assembly. I was a member of a trade union. I do not think I can still be a member of that trade union or I would be. It is imperative that we have good employment law and good industrial relations. I would not contest this. This is a very important area, but we want a simple, unified system in Great Britain. As the noble Lord acknowledged, this is not something that is devolved to Scotland. It was not considered by the Smith commission or the Silk commission and it was not part of the St David’s Day process.

The system we have allows workers to be clear on their rights, whether they are in the public sector or the private sector, in England or in Wales. This is a fundamental principle and I cannot accept that the law underpinning the terms and conditions of public sector workers should be different from the law that underpins the rights of other workers. Whether that leads to better rights, more rights or worse rights, it seems fundamentally wrong. It is important to have common minimum standards which apply to all workers throughout Great Britain to minimise uncertainty and cost for both workers and employers. This is a matter of employment law; it is not about public service delivery.

Furthermore, it seems clear to me that if public sector employers in Wales, which would include the Welsh Government and public sector authorities, want to grant more favourable wages or more holidays then they are able to do so. They can do that presently and there is no question of it being taken back. Also, the judgment on the agricultural wages Act in the Supreme Court is an exception to the reservation. There is no question of that being clawed back as that specific piece of law remains.

If we had a diversified system of rights, workers might be reluctant to pursue the best progression opportunities in their organisation because they could get better rights in the private sector or the public sector—one or the other. They may find it more difficult to undertake collective bargaining and make their voice heard in isolation from colleagues in similar roles in Wales or the rest of Britain. I certainly believe in having strong industrial rights and strong employment rights—and obligations, too—but this has to be unified. As I said, both the Silk and Smith commissions came down in favour of a single employment regime, such as this, and there is nothing to prevent the Welsh Government or devolved public authorities agreeing specific arrangements with their staff, provided that they meet the requirements of employment and industrial relations legislation which apply across Great Britain.

The noble Lord, Lord Murphy, suggested that this amendment did not concern strikes. I am sure that I heard the noble Lord, Lord Hain, say that it related to altering the threshold, so it is about strikes and, as drafted, would certainly include the possibility of doing that. The Government could not sign up to that, nor to different rights on check-off or facility time. The rights should by all means be generous, but they should be unified across the country. I do not see that insisting on this is somehow apocalyptic in the way that some noble Lords suggested. The reservation of employment law ensures that there is a minimum floor of rights to offer workers key protections. At the same time, it recognises that each workplace is unique by allowing employers to provide additional pay or holidays in the public or private sector, if they want to do so.

Amendment 74 was put forward by the noble Baroness, Lady Humphreys, for the Liberal Democrats, and I have added my name to it for the Government. I am not sure whether that makes it an additional government amendment, but we are in agreement with removing the reservation relating to teachers’ pay. This has been a key priority for the Welsh Government and we are very happy to support this amendment. We have been listening on teachers’ pay and are content to support the noble Baroness’s amendment.

In relation to employment law, because we see specific difficulties regarding different rights in the public sector, some of which relate to the calling of strikes but do not affect pay and holidays—which the public sector can negotiate quite separately, as it does now—I urge the noble Lord, Lord Hain, to withdraw his amendment.

[Lord Hain]

My Lords, can I express my severe disappointment at the change of tone in the Minister’s delivery? The rest of his responses to the amendments moved by my noble friends have been genuinely positive. He has conceded where he could and stood his ground where he could, but within the framework of the devolution settlement in which he believes, as I do. On this amendment, I do not mean to sound insulting, but the way that he came across was, I felt, like he was reading out a prepared text—no doubt supplied by the Wales Office in Whitehall—that simply does not recognise the reality of this amendment.

The noble Baroness, Lady Finn, said along with the Minister that there would be the creation of a two-tier system of employment rights. How is that possible, when the 17 Acts and regulations which are already listed as reserved matters on pages 68 and 69 of the Bill would remain reserved under the terms of this amendment? How is it possible that we would create a two-tier system of employment rights when all the employment rights would remain reserved? We are discussing the operation of industrial relations practice in Welsh public services, not in the Welsh private sector. There is no exception provided for the Welsh private sector, which is the largest area of employment in Wales. The amendment is simply about devolved public services and reserved matters and many others matters covering all the issues. I can read them out to remind the Minister, but they are there.

[Lord Bourne of Aberystwyth]

The amendment would insert:

“Terms and conditions of employment and industrial relations in Welsh public authorities and services”,

so the amendment is not just about industrial relations.

“Terms and conditions of employment”,

is also contained in the amendment.

[Lord Hain]

I understand that. I understand my own amendment. It refers to public services.

The Minister is saying that there should be common standards. Wales already has entirely differently configured public services. That is the beauty of devolution. There is a learning experience between the different constituent parts of the United Kingdom about where best practice occurs. In some areas, it is in Wales. We have not had a doctors’ strike. I do not think we have had the same teachers’ disputes. We have not had the same local government disputes. We have not had the same firefighter disputes. Why is that? It is because these are devolved public areas run in a different way in Wales, with a different system of employee/employer relations provided for—we believed until this Bill tried to overturn the provisions of the Supreme Court ruling—in the devolution settlement. I echo the great eloquence and legal authority of the noble Lord, Lord Elystan-Morgan, in saying that this is massive diminution—to use his phrase—of the authority of Wales. Indeed, it is a direct challenge to the Supreme Court, where it may well end up. As my noble friend Lord Murphy said, I do not think that is where the Minister wants to be in his private view of the future, even if that is where he is going to end up if he sticks to this stance.

The noble Baroness, Lady Randerson, underlined that the Supreme Court caught the UK Government by surprise. She was very frank about that. It perhaps even caught me by surprise by interpreting the devolution settlement in the way that it did in a very convincing way. I hope that the Minister recognises that he is now seeking to undermine that.

I remind the House of what my noble friend Lady Morgan of Ely said; she said that the terms of the Bill will prevent Welsh Government Ministers exercising their legitimate functions in public services in how they treat their employees and how they operate their industrial relations from training time to facility time to all the matters that are essential to running public services in Wales effectively.

My legal advice is that the Minister’s position is flawed. He may deploy government lawyers to contest that, and then we will see in the courts. We will have the Wales TUC and the Welsh Government and, I suspect, all the people of Wales right behind them challenging the UK Government’s position.

The question I shall conclude on is: are public services in Wales devolved or not—not just the policies, but the delivery, which depends on employees and the relationships between employees in the public sector and their managers being very good? That requires good industrial relations, and Wales has been able to achieve that. Wales would continue to be able to achieve it under the devolution settlement if this amendment were accepted.

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[Lord Elystan-Morgan]

My Lords, I greatly appreciate the kind and generous words of the noble Lord, Lord Thomas of Gresford, on S4C. I support the amendment completely, but there is a possible compromise, if I may be so bold as to suggest it. Many months ago, when the question of the BBC charter was mentioned, I asked the Government whether they would be prepared to have in-built in the charter a guarantee on the adequate financing of S4C as well as on its independence and future. The reply that I received was somewhat anodyne, but I was assured that so great was the affection of Her Majesty’s Government for the Welsh language that I had nothing to fear at all. It may be that that is a compromise that would guarantee effectively the future of S4C, its independence and its finance, and I commend it to the noble Lord.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for moving this amendment on Welsh language broadcasting and other Welsh language media—and I note that that is the exception that is set down. I do not think that it is limited to S4C, as some noble Lords have assumed. It is not. I join other noble Lords in applauding the work of S4C; it is an extraordinarily strong and effective institution that does marvellous work for Wales in relation to the language and more broadly, and it has totemic significance and real significance and generates jobs in the Welsh media sector, which is important.

As the noble Lord said, it is absolutely right that the Silk commission recommended that funding the public expenditure element for S4C should be devolved to the Assembly. It was part of its recommendations but was not taken forward in the St David’s Day proposals: I understand that it was considered in that process but there was no consensus round it. It is also worth noting that as recently as June last year, the Welsh Government said, through Minister Ken Skates, that they could not support the devolution of broadcasting. Admittedly, that was said across the piece but it was the general position.

Where does that leave us? I will try to give an update on the financial commitments made by the Government, in response to the noble Lord, Lord Elystan-Morgan, and other noble Lords. The Government have agreed that funding for S4C—as opposed to Welsh language broadcasting—would be protected in 2016-17 at its current level of £6.8 million. The settlement for Exchequer funding in following years was set out at the 2015 spending review, and in September the BBC confirmed that it will protect licence-fee funding for S4C at £74.5 million until 2022. That is beyond the length of this Parliament, as noble Lords will be aware. The Government then committed to a comprehensive review of S4C in 2017, covering its remit, funding and governance to ensure that the broadcaster can continue to meet the needs of Welsh-speaking audiences in the future. I will endeavour to find out if we have any further details on the process and will write to noble Lords to update them on what the timetable is.

Broadcasting is different from almost any other area of activity in that it is international, national UK and national Wales. I am conscious of the fact that, historically, many people have been quite keen to see S4C’s budget settled in Westminster because they thought it was safer here that it would be in Wales—I had better be careful what I say. I notice a change of tenor in that position. Given that the Welsh Government do not seem to be seeking this, and given that there was no consensus in the St David’s Day process, I will have a look at it. I am very content to discuss this with the noble Lord, Lord Wigley, and others to see if there is anything we can do to strengthen the position of S4C and the involvement of the Welsh Government—a point raised by the noble Baroness, Lady Morgan. I appreciate what the noble Baroness, Lady Randerson, has said on the issue of the difficulty of broadcasting. As I said, it is internationalised in many ways so is unique among activities.

I am very conscious of the fact that the noble Baroness, Lady Morgan, was photocopying “Fireman Sam” scripts at S4C, so spoke with great authority. My first job in life was loading Britvic bottles on a production line. We had very different experiences: the noble Baroness was more clerical and managerial than I was in those heady student days. I appreciate that this is an important area and I will have another look at it and speak to the noble Lord, Lord Wigley, to see if there is anything we can do to strengthen this position. I hope that, with that, he will be content to withdraw the amendment.

[Lord Wigley]

My Lords, I am grateful to all noble Lords who have taken part in this debate, which has brought out a number of issues relating to S4C. I am grateful to the Minister for his undertaking to look again at some aspects of this. On that basis, I beg leave to withdraw the amendment.

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Moved by

[Lord Bourne of Aberystwyth]

67B: Schedule 1, page 74, line 6, leave out “or training” and insert “, training or libraries”

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Moved by

[Lord Bourne of Aberystwyth]

67D: Schedule 1, page 74, leave out lines 20 to 22 and insert—
“176_ Proceedings and orders under Part 4 or 5 of the Children Act 1989 or otherwise relating to the care or supervision of children.”

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[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Baroness for moving this amendment in relation to the civil registration of births, deaths and places of worship. I have listened carefully to her argument. Civil registration functions, including the registration and administration of births, deaths, marriages, civil partnerships, adoptions and associated functions, and the registration of places of worship, are overseen by the Registrar-General for England and Wales, and the Government do not have plans to devolve any of these functions. Perhaps I may try to explain some of the difficulties that would arise in relation to devolution and answer some of the issues raised by the noble Baroness.

First, the noble Baroness raised the issue of the Welsh language, which is obviously very valid in relation to registration. However, it is already possible to register events in both English and Welsh where the events take place in Wales. The registration Acts, as extended by the Welsh Language (Wales) Measure 2011, the Welsh Language Act 1993 and the Welsh Language Act 1967 enable any person who can speak and understand Welsh to make a bilingual registration. Welsh local authorities, by virtue of their obligations under their Welsh language schemes, should provide registration staff who can speak, write and understand Welsh to accommodate citizens who desire this service.

The current position is that the Places of Worship Registration Act 1855 extends to England and Wales. Amendments 68 and 69 seek to separate civil registration functions by specifically devolving responsibility for the registration of places of worship to the Assembly. There are clear efficiencies in administering the responsibilities across England and Wales, and the inevitable cost of separating after over 150 years would appear to be disproportionate to any wider benefit.

The Registrar-General is an independent statutory officeholder—appointed under Section 1 of the Registration Service Act 1953—who exercises functions through the General Register Office, set up under Section 2 of that Act. As the arrangements are well established, there are significant links to, and dependencies on, the provision of civil registration in a unified system across England and Wales, including the use of a single computer system for all registrations. It works well in its current form and it does not make sense to separate out one element of it. I have not heard of any particular groundswell of support for a change in the law in relation to marriage in Wales. It is, in any case, not a devolved matter, and it is a very complex issue, as one can imagine, with the diverse faiths that we have in this country.

However, I can reassure the noble Baroness on one specific point. Looking at faith and integration in the devolved Administrations, I have already been in contact with the devolved Ministers in Scotland, Northern Ireland and Wales. I have arranged meetings so that we can discuss issues such as this, and I have had a positive response from Minister Carl Sargeant in Wales and from the other Ministers. We will be looking at issues such as this in the devolved forum, although I have to say that the issue of marriage law is not specifically a matter for the Department for Communities and Local Government; it is a matter for the Ministry of Justice.

However, it is a very wide-ranging issue because of the nature of the conduct of marriages. Some faiths’ marriages are recognised automatically if they take place in particular religious buildings—specifically, those of the Church of England, the Church in Wales and the Society of Friends, and synagogues—but that would not be true of other faiths as things stand. At some stage, this whole area probably will be looked at. However, as I say, this is not my specific ministerial responsibility, so I say that without being certain whether it is proposed at the moment. I do not think it is, but no doubt at some stage it will be looked at.

I am happy to discuss this further with the noble Baroness but, as I say, the Government have no plans to devolve this function. Therefore, I ask the noble Baroness to withdraw the amendment.

[Baroness Morgan of Ely]

My Lords, I will be very brief. I am not quite convinced by the argument that the separation would not lead to efficiency and cost savings—we could say that about almost all devolved areas of policy. The whole point here is that you need to respond to local needs. I am very happy to hear that the Minister has initiated the devolved forum to look at this, and I look forward to hearing more about that. It would perhaps be an idea for us to discuss this further. It is just another one of those things for which I can think of no good reason to retain it nationally. I have not been convinced that there is a good reason and so we will just have to agree to differ on that point. I beg leave to withdraw my amendment.

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[Lord Howarth of Newport (Lab)]

My Lords, in warmly endorsing the case made by my noble friend Lady Morgan of Ely on the three amendments in this group, I shall add a word on Amendment 73 concerning the regulation of the design and construction of buildings. I shall illustrate why it would be unfortunate if this reservation were to be retained and why my noble friend is right to propose that this should be devolved. We have seen extraordinary vagaries in building regulation policy on the part of the Government of the United Kingdom. For example, the Government committed themselves to a requirement that all new homes should be designed to be lifetime homes by, I think, 2013. That was a commitment made in 2008, but when the moment came in 2013 and it had not been met, when the change to the building regulations was announced in 2015, the lifetime homes criteria were so diluted as to be rendered almost useless and ineffectual.

Let me explain what this is all about. Originally the Joseph Rowntree Foundation and subsequently the Habinteg Housing Association developed 16 design criteria to ensure that the design and construction of new homes is such that they can be easily adapted at minimal cost to become more accessible to people as their lives go on, as they become older or as they become disabled. It makes eminently good sense economically and socially, yet we have seen a reneging on the commitment that had previously been made. The same has happened with another commitment by government to require that new homes should be designed and constructed so as to be carbon neutral; this was to be achieved by 2016. It was hailed as a very progressive and excellent policy in the interests of the environment, but again in the same set of announcements in 2015 the Government reneged on the commitment, and of course it was a turning point that was deplored by everyone who cares about the environment. So what we have seen is a set of decisions on housing design made in Whitehall and at Westminster which have been detrimental to the environment, the construction industry, the architectural profession and surveyors, and detrimental to the interests of disabled and elderly people, all of which will add costs to social services and the health service because the longer you can keep people in their own homes, the better.

I do not want to elaborate on or labour the point any further except simply to say that whereas it is clearly the right of the Government of the United Kingdom, but regrettable when they use it, to march people up the hill and down again and to do these about-turns on policy, and to retrogress in terms of social and environmental policy, I cannot see why these processes should be inflicted on Wales. If Wales wishes to pursue a project to create carbon-free homes and build lifetime homes for the people of Wales, why on earth should it not be entitled to do so? This is just an instance of where I think it would be greatly to the detriment of Wales if the Government insist with the rigour they are applying at present on denying Wales sensible discretion on matters that on any reasonable basis could well be devolved and where we have actually seen the practical effect of policy as made in London being seriously detrimental.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Baroness, Lady Morgan, for proposing these amendments.

Amendment 71 would devolve to the Assembly competence to legislate for how infrastructure funding should be collected in relation to development. This is currently accomplished through the community infrastructure levy, which applies across England and Wales, and the mechanisms we use to raise funding for infrastructure to support development are undoubtedly important. I appreciate the points made by the noble Baroness and I am aware of the issues raised on the matter in the other place. In addition, the Welsh Government have argued persuasively in discussions with the UK Government that the community infrastructure levy should be devolved. I can therefore confirm that, as the Secretary of State announced on 31 October, we are content to devolve competence over the levy to the Assembly and I expect to table a government amendment on Report to achieve this. I hope that that is reassuring to noble Lords.

The noble Baroness, Lady Morgan, made some interesting points, when speaking to Amendment 72, about why she believes that the compulsory purchase law in its entirety should come within the legislative competence of the National Assembly and not be reserved to the United Kingdom Parliament. The debate has highlighted the lack of clarity that exists in the current devolution settlement. As compulsory purchase is a so-called “silent subject”, the United Kingdom Government and the Welsh Government have formed different views on the extent of the Assembly’s legislative competence in this area.

This reservation has been the subject of detailed and productive discussions between the United Kingdom Government and the Welsh Government. The United Kingdom Government consider that legislating on the general rules and framework of the compulsory purchase system, such as the compensation regime in the Land Compensation Acts, falls outside the Assembly’s current legislative competence. However, we accept there are arguments that the Assembly could confer or modify powers in legislation for bodies to acquire land by compulsion for devolved subjects. These would include powers for local authorities to acquire land for housing, planning or education purposes, among others.

I assure the noble Baroness that discussions between the two Governments on this reservation are at an advanced stage and appear to be going well. Discussions are fruitful. I would therefore like to reflect further on her points as the Government conclude their consideration of the extent of this reservation.

Amendment 73, also tabled by the noble Baroness, Lady Morgan, seeks to remove the reservation concerning building standards and building regulations. The noble Lord, Lord Howarth, also spoke with effect on this. Before responding to the amendment, I note that, through earlier transfer of functions orders and Clause 47 of the Bill, Welsh Ministers will have powers to make building regulations in respect of almost all buildings in Wales. There will now be parity in England and Wales as to buildings for which building regulations may be made by the Secretary of State and Welsh Ministers respectively. As drafted, the noble Baroness’s amendment goes considerably wider than this to devolve competence to the Assembly over building standards. I am aware that this devolution is being sought by the Welsh Government. There are some genuinely difficult issues here in terms of organisations currently exempted from the application of building standards in England and Wales. I am none the less happy to reflect on this further, with a view to returning to it on Report.

I hope I have been able to provide reassurance to the noble Baroness and I ask her not to press her amendments.

[Baroness Morgan of Ely]

My Lords, things are getting much better. We have had three positive replies. I thank the Minister for his constructive approach on those issues. We look forward to working with him much more closely on them in the next few weeks, and to new amendments coming, we hope, on Report. I beg leave to withdraw the amendment.

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Moved by

[Lord Bourne of Aberystwyth]

78A: Schedule 2, page 82, line 40, leave out “Sections 144(7) and 146A(1)” and insert “Section 144(7)”

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[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for moving Amendment 83, which seeks to assign a share of the VAT revenues generated in Wales to the Welsh Government in the same manner that a share of VAT raised in Scotland will be assigned to the Scottish Government following the Smith commission agreement, given effect through the Scotland Act 2016. In parenthesis, I may be wrong but I do not think that Scotland has the right to vary the rate, so it is possible to protect that element.

It is important to understand the purpose of VAT assignment, which is to increase the link between the Scottish Government’s policy decisions and their budget, and thereby further increase their accountability and give them power for a purpose. While assignment does not, as I said, enable the Scottish Government to change VAT policy in Scotland, they have a wide range of policy levers at their disposal which can affect the performance of the Scottish economy and can therefore impact VAT revenues in Scotland. For example, the Scottish Government’s approach to skills, planning, housing and transport all have an effect on the performance of the economy and therefore on VAT—as, of course, can their approach to taxation. The impact of these decisions on the Scottish economy, and in particular on VAT revenues, will in the future feed through into the Scottish Government’s funding.

Of course, these arguments can also be made in relation to Wales. The Welsh Government have a similar range of economic policy levers and one of the Government’s key aims is to increase their accountability and to give them power for a purpose. However, I share some of the caution urged by the noble Lords, Lord Hain and Lord Rowlands, and by the noble Baroness, Lady Morgan of Ely. The independent, cross-party Silk commission gave full consideration to the case for assigning a share of the VAT receipts generated in Wales and, while it recognised some of the arguments I have set out, it ultimately recommended against VAT assignment in Wales. Unlike in Scotland, there is therefore no clear consensus of support for the proposition. Our focus at this time should be to work with the Welsh Government to implement the Wales Act 2014 and to look at the main thrust of this legislation and take it forward on that basis. I therefore urge the noble Lord to withdraw his amendment.

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Moved by

[Lord Bourne of Aberystwyth]

83A: Clause 27, page 24, line 11, leave out “subsection (9)(g), (i) and (j)” and insert “subsections (2), (3) and (9)”

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Moved by

[Lord Bourne of Aberystwyth]

83C: Clause 29, page 25, line 12, leave out “sections 11 and 43(1)” and insert “section 11”

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Moved by

[Lord Bourne of Aberystwyth]

90A: Clause 30, page 26, line 35, at end insert—
“( ) In section 43 (provisions with respect to loans made by Minister)—( ) after subsection (1) insert— “(1A) Any loans which the Welsh Ministers make under section 11 of this Act shall be repaid to them at such times and by such methods, and interest thereon shall be paid to them at such rates and at such times, as they may from time to time direct.”;( ) after subsection (2) insert—“(2A) Such sums as are necessary to enable the Welsh Ministers to make loans under section 11 of this Act may be issued to them out of the Welsh Consolidated Fund.”;( ) after subsection (4) insert—“(4A) Any sums received by the Welsh Ministers under subsection (1A) of this section shall be paid into the Welsh Consolidated Fund.”;( ) after subsection (5) insert—“(6) The Welsh Ministers shall, as respects each financial year, prepare an account of sums issued to them under this section and of the sums to be paid into the Welsh Consolidated Fund under subsection (4A) and of the disposal by them of those sums respectively, and send it to the Auditor General for Wales not later than the end of November following the year; and the Auditor General for Wales shall examine, certify and report on the account and lay copies of it, together with his report, before the National Assembly for Wales.”;( ) in the heading, at the end insert “or the Welsh Ministers”.”

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[Baroness Morgan of Ely]

My Lords, I agree with the case eloquently put by the noble Lord, Lord Rowe-Beddoe, and others. A reduction in air passenger duty would help air passengers, support growth and jobs and cut costs for businesses. I urge the Minister to support this amendment.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in this debate on air passenger duty, specifically the noble Lord, Lord Rowe-Beddoe, who has served with distinction in so many areas of public life in Wales, not least in relation to Cardiff Airport. His very good work is being carried on by Roger Lewis.

As we committed to in the 2015 St David’s Day agreement, the Government have considered the case and options for devolving APD to the Assembly, informed by consideration of the impact this would have on regional airports in England, as they happen to be; as things stand, Wales has only the one international airport, in Cardiff.

It is clear from the debate that noble Lords are aware that Cardiff and Bristol airports are about an hour apart, and the population density of the border area there means that more than 4 million people live in the overlapping catchment areas of the two airports. I must take issue with the noble Baroness, Lady Randerson, with whom I am normally in agreement as she is normally very fair: the distance from Cardiff and Glasgow airports to the English border is not the relevant one. There is no international airport in Berwick-upon-Tweed. It is a long while before you get to an international airport, which is Newcastle.

[Baroness Randerson]

I understand that difference, but anyone who can get from Cardiff Airport to Bristol Airport in an hour is not obeying the speed limit.

[Lord Bourne of Aberystwyth]

My Lords, I think the last time I made that journey was with the noble Lord, Lord German, who was driving, but we will gloss over that.

As noble Lords will be aware, those airports are close together, although I accept that it is not always an easy journey, because of the build-up of traffic. However, the nature of the England-Wales border has led to a number of English regional airports raising serious and legitimate concerns about lower APD rates in Wales. As my noble friend Lord Hunt suggested, the rates could go up as well as down; we need to realise that they would not necessarily go down, at least not all the while.

The Government must ensure that devolution does not lead to undue market distortion. Currently we are bound by the state aid rules of the European Union, in any event, which was something that the Silk commission considered long and hard in looking at this issue. I do not have the Silk report in front of me, but I seem to remember that we recommended the devolution of tax on long-haul routes, not overall. It is true that we looked at the analogy of Northern Ireland—which is different because people there have the option of going to Dublin which, being in a different member state, could vary the rates anyway—and we were persuaded just in relation to long haul. I think I am right in saying that no long-haul flights currently take place from Cardiff; I appreciate that that that could make a difference. I am looking at the noble Lord, Lord Rowe-Beddoe.

[Lord Rowe-Beddoe]

There are long-distance flights and they are being negotiated all the time. They go on as charter flights right through the year, so there are long-distance flights. While I am on my feet, may I say that your commission recommended that long haul be devolved? I apologise to the noble Lord, but that was your position.

[Lord Bourne of Aberystwyth]

I am grateful for the clarification on the existing charter flights. I am aware of our recommendation for long haul, although the scope of the amendment is probably broader.

As I said, the position in Scotland is very different because the airports are a long way from the next international airports, so the competition and fairness argument cannot apply. The United Kingdom Government have to look at these things in the context of fairness, and it would genuinely not be fair to an airport in England, which is unable to vary the rates, to compete with an airport that could. Noble Lords must surely see that point.

The point made by my noble friend Lord Hunt, speaking with a north Walian voice, was that this tax, if we were to adopt it, would not help the people of north Wales, for whom the nearest international airport would be Manchester or Liverpool; or, indeed, the people of mid-Wales, for whom it would be Birmingham —I am not sure that this is a plea for Birmingham, but I thought I would get in before it.

[Lord Thomas of Gresford]

I take issue with that. We have always wanted to develop our connectivity in Wales. There have been attempts to use the Broughton airstrip from time to time; I have flown on a regular service from Broughton to Cardiff in the past, and a very good service it was. Unfortunately, it did not pay.

If it were possible to reduce air passenger duty, Broughton would make a very good place from which to start flights, and I am sure it would be very popular in north Wales. Liverpool and Manchester are closer than Cardiff and Bristol. Edinburgh and Glasgow are closer than Cardiff and Bristol. They do not complain; they compete.

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[Lord Bourne of Aberystwyth]

The point being, my Lords, that they are either, in the case of Glasgow and Edinburgh, both able to vary the rates or, in the case of Liverpool and Manchester, both unable to vary them, so they are on an even playing field, which would not be the case between Cardiff and, for example, Bristol. The noble Lord talks about the possibility of Broughton, but that would not give rise to long-haul flights. If noble Lords will allow me to go down memory lane, I remember going out on the roadshow with the Silk commission, and this was not a popular suggestion in north Wales. I remember people in the audience across the political divide saying that this would be a tax that would help people in south Wales, not people in north Wales.

[Lord Wigley]

The Minister made references to north Wales. I hope that he is not starting to play the old game of playing north against south, because it is to the benefit of the whole of Wales if the Welsh economy flourishes. It is essential that we use these levers to benefit Cardiff and the economy around there. If it has benefits in terms of tourism, that is a benefit to the whole of Wales. We have a number of small airports around Wales. The service from Cardiff up to Valley, for example, is a valuable one. We have an airport in Caernarfon and other airports. What is essential is that we get a coherent policy to work for the whole of Wales and not to have it happen, as is happening again tonight and happened in the House of Commons, that we play the hand for the sake of English airports at the expense of Cardiff Airport and the strategy of the Welsh Government.

[Lord Bourne of Aberystwyth]

My Lords, that is an unfair suggestion. I am certainly not playing north Wales against south Wales—I am informing noble Lords of what happened when we were out on the road. There is only one international airport in Wales. If we are talking about APD in relation to long-haul flights, that means only Cardiff in relation to Wales, as things stand; that is undoubtedly the case. I am the first person to stand up for Wales, as I hope that the noble Lord will accept, but we cannot do that in isolation from what is happening in the rest of the country. If the measure being talked about is unfair, I am afraid that it will not see the light of day in the context of looking at what is fair for the United Kingdom. Yes, we must stick up for Wales, but it has to be done in the context of fairness.

I shall progress the argument a little to see if there are other things that we can be doing. As I have said, we do not want to look at the position of market distortions, but we want to help Cardiff Airport if we can. We looked at a review of this to see whether it would be possible to devolve APD to Wales while supporting English regional airports against the impacts of reduced APD. However, there are no obvious options that could mitigate against the impacts on regional airports elsewhere, if devolving the tax to the Assembly meant that Bristol could face 25% fewer passengers. That is significant. I shall ensure that I circulate full details of our review into these options to noble Lords so they can see it.

I hope that noble Lords will accept that this is not a desire not to do what is best for Wales, but a desire to do what is best for Wales while recognising that we cannot fail to be fair to the rest of the country. If that happens in this case to be England, I make no apologies for that. Bristol Airport does not have the ability to vary APD, and we cannot do that in the context of the Bill.

I have listened carefully to the debate, and I shall circulate the details of the review, when we had a look to see if there was anything that we could do. There was a long debate in the Silk commission, and it was not along party-political lines; it was generally divided on the issue of what we could do for Wales, partly because of fairness and partly because of the issue that still exists about state aid and the fear of action in relation to that—valid action. On that basis, I ask the noble Lord to withdraw his amendment. As I say, I shall circulate details of the review that we had to see whether there was anything that we could realistically do to help Wales—and, in this context, that means Cardiff Airport.

[Lord Rowe-Beddoe]

I thank the Minister for his response and thank all noble Lords and noble Baronesses who have participated in this short debate. I thank the noble Baroness, Lady Randerson, who mentioned 102 kilometres. It is an important number because under current EU regulations 100 kilometres has associations with state aid, which the Minister brought up. In Cardiff we have been fighting allegations about state aid—successfully, I am happy to say. I am also very pleased that the elephant in the room was mentioned, not by me but by everybody else. Yes, of course it is Bristol—and this is a pure political gesture. We know it and feel it in ourselves. If we look at the constituency make-up around the city of Bristol and in the south-west, we will understand why. However, I am sorry that the noble Lord, Lord Hunt, disagrees with me for the first time—or I disagree with him.

I will come back on just two points. Cardiff is our international airport, whether it is situated in Ceredigion or in south Wales. We cannot have them all over Wales. We can put up little airports and support ones like Valley and Broughton so we can use them, but Cardiff is our international airport. The status of long-haul flights is under heavy negotiation at the moment and regular routes will be announced soon.

I say to my noble friend Lord Hunt that there is a little group called the Regional and Business Airports Group which represents 32 regional airports in the United Kingdom. In September 2015, it wrote a discussion paper, in which it advocated on behalf of the regional airports in the United Kingdom the devolution of this,

“market distorting tax which impacts far more heavily on smaller airports than larger ones”.

That is quite an interesting document—it was addressed to the energy and transport tax team—and perhaps the Minister could take a look at it.

I thank all noble Lords. It is late at night and I will withdraw the amendment, but I will have to come back at some stage.

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Moved by

[Lord Bourne of Aberystwyth]

107B: After Clause 48, insert the following new Clause—
“Financial assistance for inland waterway and sea freight
(1) Section 272 of the Transport Act 2000 (financial assistance for inland waterway and sea freight) is amended as follows.(2) For subsection (4) substitute—“(4) So far as it relates to inland waterways that are wholly in Wales, the power conferred by this section is a power of the Welsh Ministers.(4A) So far as it relates to— (a) the carriage of goods by an inland waterway that is partly in Wales, or(b) the carriage of goods by sea where the carriage concerned is wholly or partly by sea adjacent to Wales,the power conferred by this section may be exercised concurrently or jointly by the Secretary of State and the Welsh Ministers.”(3) For subsection (6) substitute—“(6) In this section—“inland waterway” includes both a natural and an artificial inland waterway;“sea adjacent to Wales” means the sea adjacent to Wales out as far as the seaward boundary of the territorial sea.(7) An order under section 158(3) of the Government of Wales Act 2006 determining, or making provision for determining, any boundary between waters which are to be treated as parts of the sea adjacent to Wales and those which are not applies for the purposes of the definition of “sea adjacent to Wales” in this section as it applies for the purposes of the definition of “Wales” in that Act.””

Wales Bill

Lord Bourne of Aberystwyth Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 23rd November 2016 Lords Chamber

Moved by

[Lord Bourne of Aberystwyth]

107C: After Clause 48, insert the following new Clause—
“PART 2AWELSH TRIBUNALSThe Welsh tribunals
(1) In this Part “Welsh tribunal” means—(a) the Agricultural Land Tribunal for Wales or Tribiwnlys Tir Amaethyddol Cymru;(b) the Mental Health Review Tribunal for Wales;(c) a rent assessment committee constituted in accordance with Schedule 10 to the Rent Act 1977 (including a leasehold valuation tribunal and a residential property tribunal);(d) the Special Educational Needs Tribunal for Wales or Tribiwnlys Anghenion Addysgol Arbennig Cymru;(e) a tribunal constituted in accordance with Schedule 3 to the Education Act 2005 (registration of inspectors in Wales: tribunals hearing appeals under section 27);(f) a tribunal drawn from the Adjudication Panel for Wales or Panel Dyfarnu Cymru;(g) the Welsh Language Tribunal or Tribiwnlys y Gymraeg.(2) Her Majesty may by Order in Council amend subsection (1)—(a) so as to remove or revise a paragraph,(b) so as to add or substitute a tribunal whose functions— (i) are exercisable only in relation to Wales, and(ii) do not relate to reserved matters (within the meaning of the Government of Wales Act 2006), or(c) so as to make amendments (to provisions of this Part or other enactments) that are consequential on an amendment within paragraph (a) or (b).(3) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, the National Assembly for Wales.(4) Subsection (3) does not apply to a statutory instrument containing an Order in Council that only makes—(a) provision for the omission of a paragraph in subsection (1) where the tribunal concerned has ceased to exist,(b) provision for the variation of a paragraph in consequence of a change of name or transfer of functions, or(c) amendments within subsection (2)(c).Such an Order in Council is subject to annulment in pursuance of a resolution of the Assembly.”

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[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, the government amendments in this group demonstrate the pragmatic and progressive approach that the Government are taking in this Bill to the interface between devolved matters and the wider justice system of England and Wales. The amendments are designed to do two things. First, they will create a statutory office of President of Welsh Tribunals to oversee the work of the devolved Welsh tribunals. Secondly, they will allow for the movement of judges between different Welsh tribunals and between reserved Her Majesty’s Courts & Tribunals Service tribunals in England and Wales and the devolved Welsh tribunals, to share expertise in a way that cannot happen under current legislation.

These measures are the culmination of discussions with the Welsh Government, the Ministry of Justice and the senior judiciary. Although the clauses and accompanying schedules are fairly lengthy, reflecting some technical but necessary aspects of the provisions, the overriding purpose is simple: to improve the way in which the workload of the devolved Welsh tribunals is managed and to maximise flexibility in the deployment of judicial resources in the Welsh tribunals.

I will deal with the creation of the statutory office of President of Welsh Tribunals before moving on to discuss the flexible deployment measures in more detail. As noble Lords may be aware, there are currently seven devolved tribunals which are the responsibility of the Welsh Government. The full list is set out in Amendment 107C and includes, among others, the Special Educational Needs Tribunal for Wales and the Welsh Language Tribunal.

Each tribunal currently has its own chairperson, but Mr Justice Wyn Williams has undertaken an informal, presidential-style role in respect of the relevant tribunals, acting as a central point of contact for all leadership judges in them. By putting the role of President of Welsh Tribunals on a statutory footing in Amendment 107DA, we acknowledge the important work that Mr Justice Wyn Williams has done, while bringing greater consistency to operations and the provision of pastoral support to the leadership judges in the relevant tribunals. The fact that Mr Justice Wyn Williams has performed this role on an informal basis for some time is perhaps the best indication that there is a need for a permanent statutory position.

Noble Lords will be aware that the Lord Chancellor and Lord Chief Justice have legal duties to increase diversity in the judiciary. For that reason, the Government consider that the selection and appointment process should be as open and transparent as possible.

The new schedule inserted by Amendment 119AA provides for a two-stage process for the appointment of a person to this new statutory role. At the first stage, the Lord Chief Justice can recommend a candidate for appointment. If the person chosen is a current or former judge of the High Court or the Court of Appeal, and the Welsh Ministers and the Lord Chancellor agree with his recommendation, the appointment can go ahead. Where those conditions are not met, for example because there were two or more promising candidates, the Lord Chief Justice would be required to ask the Judicial Appointments Commission to recommend somebody for appointment. This is similar to the two-stage process that exists in relation to the Senior President of Tribunals, who carries out a similar role in relation to the First-tier and Upper Tribunals that exercise jurisdiction across England and Wales. If the Judicial Appointments Commission was invited to carry out a recruitment campaign, the new schedule created by Amendment 119AA makes it clear that its guiding principles of selection on merit and promotion of diversity would apply, just as they would in any other campaign carried out in England and Wales.

On flexible cross-deployment, the measures in Amendment 107FA are related specifically to members of the Welsh tribunals being deployed from one Welsh tribunal to another, giving the president greater flexibility in the way judicial resources are managed and the ability to respond effectively to peaks and troughs in the workload of the tribunals. In addition, the Welsh Government agreed with the Lord Chief Justice, the Senior President of Tribunals and the Lord Chancellor that it might be beneficial if judges could move between reserved HMCTS tribunals and the devolved Welsh tribunals, if this were needed to meet urgent business needs. Amendments 107GA and 107H would provide the legal basis for cross-deployment to occur. They would allow judges from the Welsh tribunals to sit in the First-tier Tribunal and for judges from the First-tier and Upper Tribunals to sit in the Welsh tribunals, subject to the agreement of the senior judiciary on both sides. In reality, the Government anticipate that it is more likely that judges would be deployed from HMCTS tribunals into the Welsh tribunals than vice versa, but these amendments would permit movement in either direction. I hope the Committee will agree that both the creation of the office of President of Welsh Tribunals and the measures on cross-deployment are worth while.

There is also an opposition amendment in this group. I look forward to hearing from the Opposition on that and will then respond to the points made. I beg to move.

[Lord Wigley (PC)]

My Lords, I shall speak to Amendment 108 in my name, which seeks to devolve the youth justice system in Wales. The amendment is perhaps slightly incongruously linked with this bank of amendments before the House.

The ineffective and complex mix of devolved and non-devolved bodies that manage the Welsh youth justice system means that a fragmented approach is the best we can hope to achieve. The argument for the devolution of the youth justice system has been made by many experts in both policy and practice, including former Youth Justice Board chair, Professor Rod Morgan, who noted that it is illogical to have a system where factors linked to youth offending are often related to devolved services, such as education and training, social services and health, while youth offenders are dealt with through non-devolved services such as the police, youth offending teams and youth courts.

My party colleague, North Wales Police and Crime Commissioner Arfon Jones, highlighted how a devolved youth justice system would provide an integrated and coherent children’s policy for Wales. Through a clear devolution settlement, the accountability, opportunities to innovate and the simplification of the way the youth justice system operates in Wales would lead to significant improvements for vulnerable children and young adults.

Understandably, the English youth justice system, on to which elements of the Welsh system continue to be tacked, is concerned with English problems, particularly gangs and urban violence. In Wales, rural issues and poverty underpin the challenges faced. By creating a clean break between the two systems, we could enhance outcomes for children at risk in both nations, allowing policies and practices to be targeted and focused on the issues of greatest importance in both places.

As another party colleague of mine, Liz Saville Roberts, highlighted in the other place, the Howard League for Penal Reform found out about our efforts to devolve youth justice and provided us with the following statement:

“When it comes to Welsh children in trouble with the law, Wales should be able to come up with a Welsh solution to a Welsh concern. This is particularly the case because both social services and education policy are already devolved and it is a welfare-led approach which will prove most effective for troubled children. The Welsh Youth Justice Board already recognise this in their ‘children first’ approach and there is an opportunity to build on that distinctiveness and protect it from any Westminster-led reforms that fail to take into account the specific needs of Welsh children”.

Coming from where it does, that quote ought to carry a lot of weight.

The practical benefits of devolving the youth justice system are clear. It is outlined in the recommendations of the Silk commission, as I am sure the Minister will readily recall. It is exemplified by the fact that it is already devolved to Scotland and Northern Ireland, and it is reinforced by the fact that the Government already said they are looking to devolve aspects of youth justice to areas of England. Can the Minister explain to the people of Wales why establishments such as the Greater Manchester Combined Authority are set to gain increased competence over youth justice but the established National Assembly for Wales, with a track record on closely related issues, is not?

I hope the Minister will listen to the advice of those involved in the sector and either support this amendment or bring forward an amendment on Report that will devolve the remaining aspects of the youth justice system to Wales.

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[Baroness Gale (Lab)]

My Lords, this group of amendments relates to Welsh tribunals. We welcome the fact that the UK Government have brought forward these provisions. The new role of President of Welsh Tribunals will provide judicial leadership in support of the Welsh Government’s programme of tribunal reform. The ongoing reform of the Welsh devolved tribunals is designed to strengthen judicial independence and provide service improvement and consistent standards across England and Wales.

Another amendment in this group relates to youth justice. There is a great deal of good practice in terms of Welsh public services working closely with the UK Youth Justice Board for the benefit of the child affected, but it is worth noting that this is one of the few areas of policy relating to children and young people that is not devolved to Wales. There is a danger that services may be commissioned for young people generally in Wales, while those in the youth justice system will not be able to access them. This is one of the reasons why the Welsh Government would like to see the youth justice system devolved. But the view on our Benches is slightly different, in that we believe that we should wait for the full publication of the report by Charlie Taylor who is investigating this matter, and we believe that this is one of the areas on which our proposed justice commission should focus. I look forward to what the Minister has to say on these amendments.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on this group of amendments. I shall first deal with the points made in relation to Welsh tribunals and the President of Welsh Tribunals. I thank noble Lords for the general welcome for provisions that strengthen Welsh tribunals and their operation in Wales.

In relation to Amendment 107H, I say to the noble Lord, Lord Howarth, that I do not see anything irregular in this because the power to be exercised by the Lord Chancellor in relation to adding tribunals and so on to the list is subject to affirmative resolution in new Section 107H(3). So that would be entirely regular—but perhaps I misunderstood the noble Lord.

[Lord Howarth of Newport]

The provision to provide power for the Lord Chancellor by statutory instrument to amend primary legislation is—or ought to be —exceptional and needs some justification.

[Lord Bourne of Aberystwyth]

I stand to be corrected on this, but under new Section 107H(3) it is subject to an affirmative resolution of each House of Parliament, and that is entirely appropriate.

Opposition Amendment 108 was ably moved by the noble Lord, Lord Wigley, and supported equally ably by the noble Lord, Lord Thomas of Gresford. As we have discussed on many occasions during the passage of the Bill, the Government’s position is clear: the justice system, including youth justice, should be a reserved issue. I am sure the noble Lord will not be surprised by that response.

Under this model, the Assembly will continue to exercise legislative competence over key areas that impact on youth offending in Wales, such as health, children’s services and education. The Assembly and the Welsh Government will continue to be heavily involved in the management and rehabilitation of young offenders through partnership with the police—I note the comments made by the noble Lord, Lord Wigley, in relation to Arfon Jones the police and crime commissioner for North Wales—and devolved services under the Children and Young People First joint strategy, while a single system for managing young offenders across England and Wales is maintained.

In short, there is a very effective partnership at the moment. I appreciate that that is, to some extent, dependent on the chemistry of the people involved, so I will write on this issue to explain how it is operating at the moment—because it appears to be operating more than satisfactorily, as far as I can see. I note the comments by the noble Baroness, Lady Gale, in relation to the Charlie Taylor review. I agree that it is an important review that obviously the Government will look at.

The noble Lord, Lord Wigley, referred to the Silk commission and my role in it. The commission’s second report found that youth justice services work well and that there is close working between devolved and non-devolved partners. Its recommendation on devolution was aimed at promoting greater integration. It is quite true to say that there was a recommendation regarding devolution, but it was in the context of devolving more than youth justice. The noble Lord will know that the St David’s Day agreement that followed did not present any consensus on devolving justice. Accordingly, it is the Government’s position that all aspects of the justice system, including youth justice, should be reserved. However, we recognise the need for the close working relationship which appears to be working very well at the moment.

[Lord Wigley]

Will the Minister address my point that there is devolution of a different kind going on with youth justice being devolved to areas such as Manchester, yet they are not having a totally separate Home Office or judicial structure of their own? In these circumstances, and given the fact that the Labour Party, the Liberal Democrats, a lot of Cross-Benchers and ourselves support this movement and the Silk commission’s recommendation, will he look at this matter between now and Report to see whether there is room for greater devolution, at least of large parts of this, to the Assembly in order to get a coherent service in Wales?

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord for that contribution. I was coming on to deal with devolution to areas of England, to which the noble Lord referred, and to say that I will cover that in the letter that I am writing in relation to the current arrangements in Wales. My understanding—I have had a look at this—is that it does not involve devolution of policy issues in the way that this would to the Welsh Government. It will not allow English cities or regions to have separate policy arrangements, which I think is what the noble Lord is seeking. But I will cover that in the letter, as well as the arrangements that are likely to be in place in the areas of England where we are looking at devolution—Manchester, Liverpool, the West Midlands and so on. But, in short, I think that it is devolution of a different sort.

I shall move on and talk about some of the cost implications that would be involved in replicating some of the functions that appear to be working well, partly by the purchase of custodial places in England owing to the lack of, for example, secure establishments in North Wales and secure training centres across the whole of Wales. That would be a necessary part of any devolution package. Perhaps more importantly, reserving legislative competence for youth justice ensures that the Government can apply a coherent approach to criminal justice and the management of offenders across all age groups, while enabling the joined-up working that is happening at the moment in Wales on the issues affecting youth offending.

I recognise the significant and continuing role of devolved authorities in delivering youth justice services, as happens now, and the level of co-operation which already exists on the ground between devolved and non-devolved organisations. I put on record my thanks to the devolved and non-devolved organisations that are making it work. However, it is the Government’s view that not accepting the amendment will ensure that we have the most efficient, effective and consistent way to deliver youth justice services across England and Wales within the single legal jurisdiction.

Amendment 107C agreed.

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Moved by

[Lord Bourne of Aberystwyth]

107DA: After Clause 48, insert the following new Clause—
“President of Welsh Tribunals
(1) The Lord Chief Justice of England and Wales may appoint a person to the office of President of Welsh Tribunals or Llywydd Tribiwnlysoedd Cymru.(2) The President of Welsh Tribunals is not a Wales public authority for the purposes of the Government of Wales Act 2006.(3) Schedule (President of Welsh Tribunals) makes further provision about the President of Welsh Tribunals and about appointments under subsection (1).(4) A holder of the office of President of Welsh Tribunals must, in carrying out the functions of that office, have regard to—(a) the need for the Welsh tribunals to be accessible;(b) the need for proceedings before those tribunals—(i) to be fair, and(ii) to be handled quickly and efficiently;(c) the need for members of those tribunals to be experts in the subject-matter of, or the law to be applied in, cases in which they decide matters;(d) the need to develop innovative methods of resolving disputes that are of a type that may be brought before those tribunals.(5) The President of Welsh Tribunals is responsible—(a) for the maintenance of appropriate arrangements for the training, guidance and welfare of members of the Welsh tribunals within the resources made available by the Welsh Ministers;(b) for representing the views of members of the Welsh tribunals to the Welsh Ministers and to other members of the National Assembly for Wales.”

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Moved by

[Lord Bourne of Aberystwyth]

107EA: After Clause 48, insert the following new Clause—
“Directions as to practice and procedure
(1) The President of Welsh Tribunals may give directions as to the practice and procedure to be followed by the Welsh tribunals.(2) The president or chairman of a Welsh tribunal may give directions as to the practice and procedure to be followed by that tribunal.(3) A power under this section to give directions includes—(a) power to vary or revoke directions made in the exercise of the power;(b) power to make different provision for different purposes (including different provision for different areas);(c) (in the case of directions by the President of Welsh Tribunals) power to make different provision for different tribunals.(4) Directions under this section may not be given without the approval of the Welsh Ministers.(5) Subsection (4) does not apply to directions to the extent that they consist of guidance about any of the following—(a) the application or interpretation of the law;(b) the making of decisions by members of the Welsh tribunals. (6) Subsection (4) does not apply to directions to the extent that they consist of criteria for determining which members of the Welsh tribunals may be chosen to decide particular categories of matter; but the directions may, to that extent, be given only after consulting the Welsh Ministers.(7) Before the President of Welsh Tribunals gives directions under this section he or she must consult the president or chairman of each Welsh tribunal to which the directions relate.(8) Before the president or chairman of a Welsh tribunal gives directions under this section he or she must consult the President of Welsh Tribunals.(9) A person giving, varying or revoking directions under this section must publish the directions, or the variation or revocation, in whatever way the person thinks appropriate.”

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Moved by

[Lord Bourne of Aberystwyth]

107FA: After Clause 48, insert the following new Clause—
“Cross-deployment of members of the Welsh tribunals
(1) In Schedule 9 to the Agriculture Act 1947 (Agricultural Land Tribunal etc), in paragraph 15A, after sub-paragraph (1) insert—“(1A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Agricultural Land Tribunal may, at the request of the Chairman of the Agricultural Land Tribunal and with the approval of the President of Welsh Tribunals, act as a member of the Agricultural Land Tribunal.”(2) In Schedule 10 to the Rent Act 1977 (rent assessment committees), after paragraph 5A insert—“5B_ A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of a rent assessment committee in Wales may, at the request of the president or vice-president of the panel and with the approval of the President of Welsh Tribunals, act as a member of such a committee.”(3) In Schedule 2 to the Mental Health Act 1983 (Mental Health Review Tribunal for Wales), in paragraph 5—(a) after sub-paragraph (1) insert—“(1A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Tribunal but who is eligible to decide any matter in a case under this Act may, at the request of the President of the Mental Health Review Tribunal for Wales and with the approval of the President of Welsh Tribunals, act as a member of the Mental Health Review Tribunal for Wales.”(b) in sub-paragraph (3), after “sub-paragraph (1)” insert “or (1A)”.(4) In section 333 of the Education Act 1996 (Special Educational Needs Tribunal for Wales), after subsection (4) insert—“(4A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Tribunal may, at the request of the President and with the approval of the President of Welsh Tribunals, serve as a member of the Tribunal.”(5) In section 75 of the Local Government Act 2000 (Adjudication Panel for Wales), at the end insert—“(12) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Adjudication Panel for Wales may, at the request of the president or the deputy president (if any) and with the approval of the President of Welsh Tribunals, act as a member of a tribunal drawn from the Panel.”(6) In Schedule 3 to the Education Act 2005 (registration of inspectors in Wales: tribunals hearing appeals under section 27), in paragraph 1, after sub-paragraph (3) insert—“(3A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of a tribunal constituted to hear an appeal under section 27 may act as a member of such a tribunal at the request of its chairman and with the approval of the President of Welsh Tribunals.”(7) In Schedule 11 to the Welsh Language (Wales) Measure 2011 (nawm 01) (the Welsh Language Tribunal), after Part 2 insert—“PART 2ACROSS-DEPLOYMENT OF TRIBUNAL MEMBERS9A A member of the tribunal listed in section (The Welsh Tribunals) of the Wales Act 2016 (the Welsh Tribunals) who is not a member of the Tribunal may, at the request of the President and with the approval of the President of Welsh Tribunals, act as a member of the Tribunal.””

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Moved by

[Lord Bourne of Aberystwyth]

107GA: After Clause 48, insert the following new Clause—
“Cross-deployment of tribunal members and judges
(1) A member of a Welsh tribunal may act as a member of the First-tier Tribunal if—(a) the Senior President of Tribunals asks the member to do so, and(b) the President of Welsh Tribunals agrees to the request being made.(2) A judge or other member of—(a) the First-tier Tribunal, or(b) the Upper Tribunal,may act as a member of a specified Welsh tribunal if the President of Welsh Tribunals asks the member to do so and the Senior President of Tribunals agrees to the request being made.(3) Subsection (2) does not apply to a tribunal member who is a relevant judge.(4) A relevant judge may act as a member of a specified Welsh tribunal if—(a) the President of Welsh Tribunals asks the judge to do so, and (b) the Lord Chief Justice of England and Wales agrees to the request being made.(5) In subsections (2) and (4) “specified” means specified in the request.(6) In this section “relevant judge” means—(a) a judge of the Senior Courts;(b) a deputy judge of the High Court;(c) a Circuit judge;(d) a deputy Circuit judge;(e) a recorder;(f) a district judge;(g) a deputy district judge;(h) a District Judge (Magistrates’ Courts);(i) a Deputy District Judge (Magistrates’ Courts);(j) the holder of an office listed in—(i) the first column of the table in section 89(3C) of the Senior Courts Act 1981 (senior High Court Masters etc), or(ii) column 1 of Part 2 of Schedule 2 to that Act (High Court Masters etc).(7) A reference in this section to—(a) the President of Welsh Tribunals,(b) the Senior President of Tribunals, or(c) the Lord Chief Justice of England and Wales,includes a reference to an individual designated by that person to exercise the person’s functions under this section.(8) A designation made by a person under subsection (7) that is in force immediately before the person ceases to hold the office in question continues in force until varied or revoked by a subsequent holder of that office.”

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Moved by

[Lord Bourne of Aberystwyth]

107H: After Clause 48, insert the following new Clause—
“Power to amend section (Cross-deployment of tribunal members and judges)
(1) The Lord Chancellor may by regulations amend subsection (2) of section(Cross-deployment of tribunal members and judges)—(a) so as to add a tribunal to those listed,(b) so as to remove or revise a reference to a tribunal added under paragraph (a), or(c) so as to make amendments (to provisions of this Part or other enactments) that are consequential on an amendment within paragraph (a) or (b).(2) Regulations under this section may not add a tribunal whose functions—(a) are exercisable only in relation to Wales, and(b) do not relate to reserved matters (within the meaning of the Government of Wales Act 2006).(3) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.(4) Subsection (3) does not apply to a statutory instrument containing regulations that only make—(a) provision for the omission of a reference to a tribunal that has ceased to exist, (b) provision for the variation of a reference in consequence of a change of name or transfer of functions, or(c) amendments within subsection (1)(c).Such an instrument is subject to annulment in pursuance of a resolution of either House of Parliament.”

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[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on the amendments in this group. I shall first discuss Amendments 111 to 119, and thank the noble Lord, Lord Rowlands, for moving Amendment 111. I understand the points that he made. He was ably backed up by the noble Lord, Lord Elis-Thomas, the noble and learned Lord, Lord Judge, and others. I think that the arguments basically boil down to two strands. The first is the type of issue that is subject to this tidying-up exercise, as we see it. The second issue concerns equality of treatment of the Assembly in relation to Parliament. I will deal with both points.

First, it is not anticipated that the provision in Clause 53 will be used for anything more than minor consequential amendments. I urge noble Lords to be very careful about what they wish for in relation to this. I will double-check examples and write to noble Lords about them. But if, for example, the issue is one of tidying up an enactment to provide that a parish council in England is a community council in Wales, I suggest that that sort of issue is best dealt with in the way set out in the Bill. However, given the understandable concerns that have been raised, I will write to noble Lords giving examples in relation to that.

[Lord Howarth of Newport]

On the point the Minister has just made, would it be possible to amend the Bill to make it clear that this power is intended to deal only with minor, consequential amendments? If the Bill were able to say that in terms, it might be helpful. It might also be helpful to the courts in future if they found themselves attempting to construe the legislation.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful for the intervention of the noble Lord, Lord Howarth. I also thank him for his very kind comments earlier. I will cover these issues in a letter, if I may, as I would like to go away and have a look at this. I am certainly not making any commitment on that but I would like to give examples of how this has been used and how we anticipate that it will be used in the future.

The second issue is in many ways a more serious concern, certainly for somebody who has been a Member of the Assembly and knows that it has to be dealt with in a proper constitutional and respectful way—so I listened very carefully to what was said there. This has been a very considered debate. However, if we were to provide a role in approving regulations such as was suggested, it would be anomalous and would introduce unnecessary complexity into the process. I will explain why that is the case. In reality, we would discuss with the Welsh Government any proposed changes that impacted on Welsh legislation.

To illustrate the anomaly, the Assembly acts in exactly the same way as Parliament does. For example, the Assembly has recently passed the Renting Homes (Wales) Act 2016. Section 255 of that Act includes a power for Welsh Ministers to make consequential amendments to any enactment. “Enactment” is defined in Section 252 of the Renting Homes (Wales) Act to include Acts of Parliament and secondary legislation made under Acts of Parliament. Further, in the last two years two-thirds of Assembly legislation has had similar provisions. So, in relation to the equality argument, we are dealing in exactly the same way here as in Parliament. Noble Lords may say that that does not answer the first point, and it does not—but it certainly answers the point about equality.

[Lord Elis-Thomas]

I do not think that it does. There is a difference between a legislature which is developing new legislation within the framework previously laid down by this Parliament because there is no other legislative framework, and making provision—which therefore distinguishes itself from the rest of the United Kingdom—and what a United Kingdom Parliament might seek to do, and for what reason, to intervene in the legislative process of what might be regarded as a subordinate legislature. Those are the differences, and that is where the concerns come from.

[Lord Bourne of Aberystwyth]

My Lords, much as I have the greatest respect for the noble Lord, that is not a tenable argument in law, as I am sure he knows. I take the point about the political dimension, as he knows, but on the legal aspect, the two bodies operate in just the same way. However, as I say, I will write to noble Lords on that. I understand the arguments being put forward, by the noble Lord, Lord Rowlands, in particular, as well as his point about the evolving devolution process, which makes this type of arrangement sensible where there is reciprocity. I will write to noble Lords on that point.

Amendments 120 and 120A were spoken to effectively by the noble Lord, Lord Hain, who took us through some of the financial aspects that have to be considered. I understand that. First, on something I have stated many times, although I will certainly state it again, we will not move to Third Reading—as I said at Second Reading—until there is a legislative consent Motion. So, if there is no legislative consent Motion—and there may not be; that is an issue for the National Assembly for Wales and the Ministers of the Welsh Government—we will have no Third Reading.

In relation to Report, I understand from discussions with officials—this may well be confirmed by Members of the Opposition Front Bench, who obviously have had discussions with Welsh Ministers—that there is a desire for us to move to Report so that we are closer to the sort of Bill that we will see at the end and so that the Welsh Government can then move to the legislative consent Motion, content that we are moving in an appropriate way. So we are keeping in touch on that, but I understand that there is a consensual element here to having Report, the first date of which is already public and will take place before Christmas.

We will have two days on Report to reflect on many of the important issues we have dealt with, and the second day will be soon after we come back in the new year. As I understand it—the noble Baroness pressed me on this issue—we are hoping for a legislative consent Motion in the middle of January before moving to Third Reading shortly after that. That is the suggested choreography, but of course we are in the hands of the Welsh Government and the National Assembly for Wales in relation to the legislative consent Motion. I cannot be definitive about that but I can be definitive, as I think I have been in the past, that we will not move to Third Reading until we have the legislative consent Motion. I should also say that there is pressure elsewhere in the legislative programme, as I am sure noble Lords will accept.

[Lord Hain]

Just briefly, given what the Minister has just said, does that mean that the fiscal framework will not be available to be scrutinised before the Assembly has given its legislative consent Motion? In other words, if he is promising it only by Third Reading, is he saying that the legislative consent Motion would have to be passed by the Assembly without the fiscal framework being agreed—or, indeed, without both Houses having had a look at it?

[Lord Bourne of Aberystwyth]

The noble Lord raises a point about my stating that we would not proceed until Third Reading. That is a restatement of what I said at Second Reading—I checked that before coming to the House. As I have indicated, the precise timing of the legislative consent Motion is not dependent on me, the Government, the House of Lords or on the House of Commons but on agreement between the Treasury and Welsh Government Ministers and then the agreement of the National Assembly for Wales.

On the fiscal framework document, the noble Lord will know that the Bill has already been through the other place and will go back there for consideration of government amendments—we have many government amendments that are measures that we all agree upon. But I am not sure that in any event that would give the opportunity for consideration of the fiscal framework as it will be only Commons consideration of Lords amendments: so they will only be able to consider any amendments we make on Third Reading.

I will endeavour through representations to see what additional information we can give on the discussions. Another meeting is due on 1 December, and from what we can gather, discussions are going well—I have heard this from both the Welsh Government side and our own Treasury side. I will endeavour to give an update as to where we are on 1 December. If we are able to give additional information, I will be happy to do that—but to some extent that will depend on the consent of the Welsh Government as well as our own Government. I do not foresee any problem on that, but obviously that is for them to determine. The date of the legislative consent Motion is dependent not just upon having the fiscal framework agreed, as I understand it; it then has to be considered by the Constitutional and Legislative Affairs Committee of the National Assembly—I can see that the noble Baroness, Lady Morgan, is indicating agreement to that.

[Lord Elis-Thomas]

My Lords, I understand that the committee is about to begin consideration.

[Lord Bourne of Aberystwyth]

I am most grateful to the noble Lord, who I know sits on that committee and plays a leading part in it. I assure the noble Lord that if I can help and be forthcoming with any information, it will be made available.

On the other issue raised by the noble Lord, Lord Hain—the fiscal framework and the discussions on it—first, it is not for me to enter into these negotiations. They are going on between the Treasury and Welsh Government Ministers, and whatever my political differences with Carwyn Jones, Mark Drakeford and others, I have no doubt about and in fact have the highest opinion of their abilities and insight. This is a consensual arrangement. If they do not want an agreement on proposed terms, they have the option of not saying so—and if there is no legislative consent Motion, there is no Bill. So there is no question of a pistol being applied to anybody’s head; the issue is for the National Assembly to determine.

Having been there, I have the greatest respect for the Ministers and officials. That is being hammered out, I gather that robust discussions are taking place and I am sure, and hope, that they are considering the best interests of Wales. But any representations by noble Lords opposite should be made to the First Minister, the Finance Minister and others in those discussions. It is not for me or for us to shadow manage what they are doing—and, I am sure, doing very effectively.

That probably summarises the Government’s position. I have given the undertaking sought; I will do my best to make information available on the fiscal discussions as they become available. I understand what noble Lords say about protecting Welsh interests, but under these devolved Administrations and in these devolved days, it is for the Welsh Ministers and the National Assembly for Wales to bring forward the legislative consent Motion. With that, and with those undertakings, I urge the noble Lord to withdraw his amendment and other noble Lords not to press their amendments.

[Lord Rowlands]

My Lords, I listened carefully to the Minister, as always, and I am fascinated by this concept of “reciprocal” and the promise of a letter that will describe to us how this will work or has worked. Does the Welsh Assembly exercise such power to intervene to change English legislation?

[Lord Bourne of Aberystwyth]

My Lords, I am not sure whether it has, but I will try to give the noble Lord that information. The material point is that it can, just as we can. I am not sure how many times that has been exercised, but I will endeavour to cover that in the letter.

[Lord Rowlands]

Again, I shall look forward to that letter. I do not know how other noble Lords feel but I just find it very difficult to believe that there should not be a provision of the kind we have been trying to introduce. If the United Kingdom Parliament chooses, unilaterally, to seek to amend legislation that belongs to the National Assembly, it has to have some form of consent or approval. That is a fundamental principle of constitutional propriety and property.

[Lord Bourne of Aberystwyth]

Another point that I had meant to mention—again, I will cover it in the letter; I appreciate that it does not fully answer the point but I shall try to give examples—is that the identical power exists in relation to Scotland.

[Lord Rowlands]

I am looking forward to this collection of letters—a few have already been mentioned. I am happy to beg leave to withdraw the amendment but I warn the Minister that we will come back to this issue on Report.

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Moved by

[Lord Bourne of Aberystwyth]

119AA: Before Schedule 5, insert the following new Schedule—
“PRESIDENT OF WELSH TRIBUNALSPART 1APPOINTMENTDuty to fill vacancies
1 (1) If there is a vacancy in the office of President of Welsh Tribunals, the Lord Chief Justice must appoint a person to that office.(2) Sub-paragraph (1) does not apply to a vacancy while the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers all agree that it may remain unfilled.(3) In this Schedule “the Lord Chief Justice” means the Lord Chief Justice of England and Wales.The two routes to appointment: agreement under this paragraph or selection under Part 2
2 (1) The Lord Chief Justice, before he or she may appoint a person to the office of President of Welsh Tribunals, must consult—(a) the Lord Chancellor, and(b) the Welsh Ministers.(2) Sub-paragraphs (3) and (4) apply if—(a) the outcome of consultation under sub-paragraph (1) is agreement between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers as to the person to be appointed, and(b) the person holds or has held office as—(i) an ordinary judge of the Court of Appeal in England and Wales, or(ii) a puisne judge of the High Court.(3) The Lord Chief Justice must appoint the person to the office of President of Welsh Tribunals, subject to sub-paragraph (4).(4) Where the person—(a) declines to be appointed, or does not agree within a time specified to him or her for that purpose, or(b) is otherwise not available within a reasonable time to be appointed,the Lord Chief Justice must, instead of appointing the person, consult afresh under sub-paragraph (1).(5) If the Lord Chief Justice has consulted under sub-paragraph (1) but sub-paragraphs (3) and (4) do not apply following that consultation, he or she must make a request to the Judicial Appointments Commission (“the Commission”) for a person to be selected for appointment to the office of President of Welsh Tribunals.PART 2SELECTION BY THE JUDICIAL APPOINTMENTS COMMISSIONEligibility for selection
3 A person is eligible for selection in pursuance of a request under paragraph 2(5) only if he or she satisfies the judicial-appointment eligibility condition on a 7-year basis.The selection process
4 (1) On receiving a request from the Lord Chief Justice under paragraph 2(5) the Commission must appoint a selection panel. (2) The panel must have an odd number of members not less than five.(3) The members of the panel must include—(a) at least two who are non-legally-qualified,(b) at least two judicial members, and(c) at least two members of the Commission.Contributions to meeting more than one of the requirements may be made by the same person’s membership of the panel.(4) The panel must—(a) determine the selection process to be applied;(b) apply the selection process;(c) make a selection accordingly.(5) As part of the selection process the panel must consult—(a) the Lord Chancellor;(b) the Welsh Ministers.(6) One person only must be selected for the appointment to which a request relates.(7) Sub-paragraph (4) applies to selection under this paragraph and to selection under regulations made under paragraph 7.(8) A selection panel is a committee of the Commission.Merit and good character
5 (1) This paragraph applies to any selection by a selection panel appointed under paragraph 4.(2) Selection must be solely on merit.(3) A person must not be selected unless the selection panel body is satisfied that he or she is of good character.(4) Neither “solely” in sub-paragraph (2), nor Part 5 of the Equality Act 2010 (public appointments etc), prevents the selection panel, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within—(a) the group of persons who hold offices for which there is selection by panels appointed by the Commission, or(b) a sub-group of that group.Encouragement of diversity
6 (1) A selection panel appointed under paragraph 4, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection.(2) This paragraph is subject to paragraph 5.Regulations about selection
7 (1) The Lord Chancellor must by regulations made with the agreement of the Lord Chief Justice and the Welsh Ministers—(a) make further provision about the process to be applied in a case where the Commission receives a request under paragraph 2(5);(b) make further provision about—(i) membership of selection panels appointed under paragraph 4, and(ii) the process that is to be applied in a case where a selection panel is required to be appointed under that paragraph;(c) secure, subject to paragraph 8 and any provision within paragraph (2)(d) that is included in the regulations, that in every case referred to paragraph (a) or (b)(ii) there will come a point in the process when a selection has to be accepted, either unconditionally or subject only to matters such as the selected person’s willingness and availability, by or on behalf of the Lord Chief Justice.(2) The regulations may in particular— (a) provide for process additional to the selection process applied under paragraph 4(4), including post-acceptance process;(b) make provision as to things that are, or as to things that are not, to be done—(i) as part of the selection process applied under paragraph 4(4), or(ii) in determining what that process is to be;(c) provide for paragraph 4(4)(c) not to apply where, or to the extent that, the Commission decides that the selection process applied under paragraph 4(4) has not identified candidates of sufficient merit for it to comply with paragraph 4(4)(c);(d) give powers to the Lord Chief Justice, including—(i) power to require a selection panel to reconsider a selection under paragraph 4(4) or any subsequent selection,(ii) power to reject a selection under paragraph 4(4) or any subsequent selection, and(iii) power to require the reconsideration of a decision mentioned in paragraph (c);(e) provide for particular action to be taken by the Commission or a selection panel after the panel has complied with paragraph 4;(f) provide for the dissolution of a selection panel appointed under paragraph 4;(g) provide for a person to cease to be a member of such a panel where the person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s members;(h) provide for a person to become a member of such a panel where another person ceases to be a member of the panel or where another person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s members;(i) make provision for or in connection with assessments, whether pre-acceptance or post-acceptance, of the health of persons selected;(j) provide for the Lord Chief Justice to nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise functions given to the Lord Chief Justice by the regulations;(k) make provision as to the meaning of “non-legally-qualified” and “judicial member” in paragraph 4(3).(3) Regulations under this paragraph—(a) may make different provision for different purposes;(b) may make transitory, transitional or saving provision.(4) The power to make regulations under this paragraph is exercisable by statutory instrument.A statutory instrument containing regulations under this paragraph may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(5) This paragraph is subject to paragraph 8.Withdrawal and modification of requests
8 (1) The Lord Chief Justice may withdraw a request under paragraph 2(5)—(a) with the agreement of the Welsh Ministers, or(b) if, after consulting Welsh Ministers, the Lord Chief Justice considers the selection process determined by the selection panel is not satisfactory, or has not been applied satisfactorily.(2) The Lord Chief Justice may modify a request under paragraph 2(5) with the agreement of the Welsh Ministers. (3) If a request is withdrawn in part or modified, the selection panel may, if it thinks it appropriate because of the withdrawal or modification, change any selection already made pursuant to the request, except a selection already accepted.(4) The Lord Chief Justice may not withdraw a request under sub-paragraph (1)(b) if a selection made pursuant to the request—(a) has been accepted unconditionally or subject only to matters such as the selected person’s willingness and availability, or(b) in exercise of power conferred by regulations under paragraph 7, has been rejected or required to be reconsidered.(5) Any withdrawal or modification of a request must be by notice in writing to the Commission.(6) In the case of a withdrawal of a request, the notice must state whether it is under sub-paragraph (1)(a) or (b).(7) In the case of a withdrawal under sub-paragraph (1)(b), the notice must state why the Lord Chief Justice considers the selection process determined by the selection panel is not satisfactory, or has not been applied satisfactorily.(8) If or to the extent that a request is withdrawn—(a) the preceding provisions of this Part of this Schedule cease to apply in relation to it;(b) any selection made on it is to be disregarded.(9) Withdrawal of a request to any extent does not affect the power of the Lord Chief Justice to make another request in the same or different terms.Effect of acceptance of selection
9 (1) Subject to the following provisions of this paragraph, where the Lord Chief Justice accepts a selection made under paragraph 4(4) he or she must appoint the person selected.(2) Before making the appointment the Lord Chief Justice may direct the Commission to make arrangements in accordance with the direction—(a) for any assessment of the health of the person selected that the Lord Chief Justice considers appropriate, and(b) for a report of the assessment to be made to the Lord Chief Justice.(3) Sub-paragraph (4) applies in any of the following circumstances—(a) the Lord Chief Justice notifies the Commission that he or she is not satisfied on the basis of a report under sub-paragraph (2)(b), having consulted the Welsh Ministers, that the health of the person selected is satisfactory for the purposes of the appointment;(b) the person selected declines to be appointed, or does not agree within a time specified to him for that purpose;(c) the person selected is otherwise not available within a reasonable time to be appointed.(4) Where this sub-paragraph applies—(a) the selection accepted and any previous selection for the appointment are to be disregarded;(b) the request pursuant to which the selection was made continues to have effect;(c) any subsequent selection pursuant to that request may be made in accordance with the same or a different selection process.PART 3TERMS OF OFFICETenure, removal, resignation etc
10 (1) If— (a) a person is appointed to the office of President of Welsh Tribunals on terms that provide for him or her to retire from the office at a particular time specified in those terms (“the end of the fixed term”), and(b) the end of the fixed term is earlier than the time at which the person is required by the 1993 Act to retire from the office,the person shall, if still holding the office at the end of the fixed term, vacate the office at the end of the fixed term.(2) Subject to sub-paragraph (1) (and to the 1993 Act), a person appointed to the office of President of Welsh Tribunals holds that office during good behaviour, subject to a power of removal by Her Majesty on an address presented to Her by both Houses of Parliament.(3) It is for the Lord Chancellor to recommend to Her Majesty the exercise of the power of removal under sub-paragraph (2).(4) In this paragraph “the 1993 Act” means the Judicial Pensions and Retirement Act 1993.11 A person who holds the office of President of Welsh Tribunals may at any time resign that office by giving the Lord Chief Justice notice in writing to that effect.12 (1) The Lord Chief Justice, if satisfied by means of a medical certificate that a person holding the office of President of Welsh Tribunals—(a) is disabled by permanent infirmity from the performance of the duties of the office, and(b) is for the time being incapacitated from resigning the office,may, subject to sub-paragraph (2), by instrument under his or her hand declare the person to have vacated the office; and the instrument has the equivalent effect for all purposes as if the person had on the date of the instrument resigned the office.(2) A declaration under sub-paragraph (1) with respect to a person is of no effect unless it is made with the concurrence of—(a) the Lord Chancellor, and(b) the Welsh Ministers.Remuneration, allowances and expenses
13 The Welsh Ministers may pay to the President of Welsh Tribunals whatever amounts they determine in respect of—(a) remuneration;(b) allowances;(c) expenses.Oaths
14 (1) A person appointed to the office of President of Welsh Tribunals must take the required oaths in the presence of—(a) the Lord Chief Justice, or(b) another holder of high judicial office (as defined in section 60(2) of the Constitutional Reform Act 2005) who is nominated by the Lord Chief Justice for the purpose of taking the oaths from the person.(2) Sub-paragraph (1) applies whether or not the person has previously taken the required oaths after accepting another office.(3) In this paragraph “the required oaths” means—(a) the oath of allegiance, and(b) the judicial oath,as set out in the Promissory Oaths Act 1868.”

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Moved by

[Lord Bourne of Aberystwyth]

119B: Schedule 5, page 101, line 9, at end insert—
“6A In section 116M (duty to disclose information on Welsh land transactions to HMRC), in subsection (1), for “A person who is a member of the Welsh Government” substitute “The Welsh Revenue Authority”.”

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Moved by

[Lord Bourne of Aberystwyth]

119HA: Schedule 5, page 113, line 31, at end insert—
“Judicial Pensions and Retirement Act 1993 (c. 8)
48A In Schedule 5 to the Judicial Pensions and Retirement Act 1993 (retirement provisions: the relevant offices), after the entry for the Senior President of Tribunals insert—“President of Welsh Tribunals”.”

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Moved by

[Lord Bourne of Aberystwyth]

119HB: Schedule 5, page 114, line 6, at end insert—
“52A In section 77 of that Act (adjudications) omit subsection (5).”

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Moved by

[Lord Bourne of Aberystwyth]

119JA: Schedule 5, page 114, line 39, at end insert—
“Constitutional Reform Act 2005 (c. 4)
55A In section 109 of the Constitutional Reform Act 2005 (disciplinary powers: interpretation), in subsection (5), after paragraph (da) insert— “(db) President of Welsh Tribunals;”.”

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Moved by

[Lord Bourne of Aberystwyth]

119K: Schedule 5, page 115, line 3, at end insert—
“Commissioners for Revenue and Customs Act 2005 (c. 11)
56A In section 18 of the Commissioners for Revenue and Customs Act 2005 (confidentiality), in subsection (2)(j), for “the Welsh Ministers” substitute “the Welsh Revenue Authority”.”

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Moved by

[Lord Bourne of Aberystwyth]

119M: Schedule 5, page 115, line 30, at end insert—
“Tribunals, Courts and Enforcement Act 2007 (c. 15)
59A(1) Section 47 of the Tribunals, Courts and Enforcement Act 2007 (co-operation in relation to judicial training, guidance and welfare) is amended as follows.(2) In subsection (4)(a) and (b), after “the Senior President of Tribunals” insert “or the President of Welsh Tribunals”.(3) In subsection (5)(c)—(a) omit “or” at the end of sub-paragraph (iii);(b) at the end insert “, or(v) a judge, or other member, of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals).””

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Moved by

[Lord Bourne of Aberystwyth]

119N: Schedule 5, page 119, line 16, at end insert—
“Welsh Language (Wales) Measure 2011 (nawm 1)
82A In the Welsh Language (Wales) Measure 2011 omit section 124 (practice directions).”

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Moved by

[Lord Bourne of Aberystwyth]

121: Clause 55, page 43, line 39, at end insert—
“(e) section 41, and sections 37(4) and (6) and 40(4) for the purposes of section 41.”

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Moved by

[Lord Bourne of Aberystwyth]

122: In the Title, line 2, after “Ministers” insert “and about Welsh tribunals”

Wales Bill

Lord Bourne of Aberystwyth Excerpts

Report: 1st sitting: House of Lords
Wednesday 14th December 2016 Lords Chamber

Moved by

[Lord Bourne of Aberystwyth]

1: Clause 1, page 2, line 5, leave out “There is” and insert “The law that applies in Wales includes”

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, before we begin our Report stage scrutiny of the Bill, I would like to say a few words on the wider context and timing of the Bill’s remaining stages. This House has undertaken very effective scrutiny of the Bill. On our part, the Government have listened to points that have been made and concerns raised, and have brought forward amendments where we believe this will improve the Bill’s provisions and put in place a more robust and lasting new devolution settlement. The amendments that the Government are bringing forward for debate today, and for consideration by this House on the second day of Report in the new year, are testament to this.

There is a need for the Assembly to consider an LCM on the Bill before our Third Reading, which we will certainly do. Should the Bill then be subsequently different from the one agreed to by the Assembly, a new LCM would be needed. A different Bill post 17 January would need a new LCM. I feel duty-bound to mention this difficulty and this pressure, although the attitude of noble Lords is of course entirely a matter for your Lordships’ House.

On the amendments in this first group, Clause 1 gives important statutory recognition to the existence of a body of law created by the Assembly and Welsh Ministers which forms part of the law of England and Wales. In Committee, I committed to reflect further on the spirit of an amendment tabled by the noble Lord, Lord Elis-Thomas, that sought to clarify that the body of Welsh law made by the Assembly and the Welsh Ministers forms part of the law that applies in Wales. Having done so, I am pleased to bring forward government Amendment 1, which clarifies that the body of Welsh law made by the Assembly and Welsh Ministers forms part of a wider body of law that applies in Wales. In considering the wording of this government amendment, I am extremely grateful to the noble Lord, Lord Elis-Thomas, for his wise counsel, drawing on his expertise and experience as a former Presiding Officer of the National Assembly.

On Amendment 2, a non-government amendment, noble Lords will recall that we debated a similar amendment from the noble Lord, Lord Wigley, on the first day in Committee, and this issue was also considered in some detail in the other place. It is clear that is there a strong appetite to keep under review the operation of the justice system in Wales as a result of continuing divergence in the laws that apply in England and in Wales, and to ensure that the distinctiveness of Wales is properly reflected under the settlement provided by this Bill.

The Government have been clear throughout the passage of the Bill that we consider the most effective and efficient way to administer justice in England and Wales is through a single jurisdiction. The distinctiveness of Wales can be, and indeed already is, reflected within the single jurisdiction, for example through the National Offender Management Service in Wales and Her Majesty’s Courts & Tribunals Service in Wales. This enables, for example, the National Offender Management Service in Wales to work closely and directly with the Welsh Government and with health and education providers to ensure appropriate provision of services for offenders. It allows the courts to be administered directly in Wales by staff in Wales, while ensuring that a consistent approach is taken on justice policy.

There is undoubtedly a distinctive legal identity in Wales. It has two legislatures and a small but growing body of law made by the Assembly and Welsh Ministers which lawyers and judges will have to specialise in and apply appropriately in relation to devolved matters. Even with increased divergence, the vast majority of laws will, however, continue to apply across England and Wales. A separate jurisdiction would therefore create significant upheaval and huge cost for no good reason.

In Committee, I agreed to take away the points made about establishing a commission to review the functioning of the justice system in relation to Wales, recognising the points made by the noble Baroness, Lady Morgan, that it is an evolving picture and the points made by the noble Baroness and the noble Lord, Lord Elis-Thomas, about the sources of Welsh law. But for the reasons that I have just outlined, such a review should be within the framework provided under the Bill; that is to say that it should review the functioning of the justice system in Wales within the single legal jurisdiction. I was also clear that a statutory commission would not be the appropriate solution. This would be unnecessarily costly and complex, and would be constrained in how it approached its task.

The principle of reviewing the functioning and operation of the justice system in Wales is sensible. That is why we established the Justice in Wales Working Group to consider the administrative and practical implications for the justice system of diverging law. The group will report to Ministers and the Lord Chief Justice within the next week. I wrote to noble Lords yesterday with an early overview of its recommendations, and consideration is being given as to how best to inform Parliament and stakeholders of its findings.

The group has met a range of people involved in the justice system in Wales, including the judiciary, academics, legal practitioners, professional bodies and those directly responsible for the delivery of justice, including NOMS in Wales, HMCTS Wales, Youth Justice Board Cymru and the Crown Prosecution Service. Those discussions have yielded an invaluable source of information on the current processes as well as providing sensible, pragmatic solutions for managing the justice system as the law continues to diverge in Wales. But the work will not finish there. There will be a continuing need to ensure that justice operational arms and devolved authorities work closely together to deliver effective justice in Wales, building on existing examples of good practice and co-operation.

I understand that one of the group’s main recommendations is likely to be the establishment of a committee to undertake periodic reviews of the operation of the justice system as the law continues to diverge. My right honourable friend the Secretary of State has written to the First Minister proposing that such a non-statutory group be established to keep the operation of the justice system in Wales under review on a permanent basis as the administrative arrangements continue to evolve to reflect Wales’s distinctiveness within the single jurisdiction.

The committee will have a focused remit, and will be chaired by a senior official from the Cabinet Office. It will include a representative from the Ministry of Justice and from the Welsh Government. The committee would report periodically to the Lord Chancellor, with both the First Minister and the Secretary of State for Wales receiving copies. Further consideration will be given to the membership and terms of reference of the committee, and to issues such as how regularly it will report and when it should be established. I understand that my right honourable friend the Secretary of State and the First Minister are meeting tomorrow to discuss this issue, among others. However, the committee will not consider issues relating to the jurisdiction or the devolution boundary that this Bill puts in place. I trust that noble Lords will agree that this committee provides a solid basis through which to ensure that the justice system in Wales keeps pace with the dual influence of Assembly and parliamentary lawmaking within the single jurisdiction.

I turn now to Amendment 3. Clause 2 places the existing convention on legislative consent on a statutory footing—

[Lord Carlile of Berriew (LD)]

I am most grateful to the noble Lord and I hear what he says about jurisdiction. If that is to be the case, can he confirm that although the committee will not deal with jurisdiction, it may make recommendations about the administration of parts of the joint jurisdiction so that, for example, a Wales division of the High Court, for instance, might be established which is separate in devolution terms from the Queen’s Bench Division of the High Court, so that the High Court could be fully administered within Wales?

[Lord Bourne of Aberystwyth]

My Lords, I am sure that the noble Lord will understand that I do not want to be drawn into the specifics but, having said that, I understand that that would be within scope. As I say, my right honourable friend the Secretary of State and the First Minister are meeting tomorrow to discuss the terms of reference more fully, but as I say I understand that that would be in scope.

Again, I turn to Amendment 3, dealing with the convention on legislative consent which we are seeking to place on a statutory footing as the Government committed to do in the St David’s Day agreement. This is also in line with Section 2 of the Scotland Act 2016. The convention states that Parliament will not normally legislate on matters devolved to the National Assembly for Wales without the consent of the Assembly. Through Amendment 3, the noble Lord, Lord Wigley, is seeking to broaden the convention by removing the word “normally” from it, and I understand that he will come to address the points on this later.

The use of the word “normally” reflects the convention as it is set out in devolution guidance and its removal from the clause would fundamentally change the nature of what is understood by the convention. That is not what was recommended by the Silk commission or what was set out in the St David’s Day agreement and it is therefore not what we are doing in this Bill.

It is a fundamental principle of our constitution that Parliament is sovereign. As such, it can legislate for matters devolved to the National Assembly for Wales as it can for those devolved to the Scottish Parliament. The convention does not seek to fetter this ability. What it does is make clear that Parliament would not normally do so without the consent of the relevant devolved legislature. The inclusion of “not normally” is essential as it acknowledges parliamentary sovereignty. It also signals that it is not intended to be justiciable, because the courts would recognise that it is for Parliament to determine what is and is not normal in this context.

There may be occasions when it makes sense to legislate on a UK-wide basis. Since the convention was established, a legislative consent Motion has always been sought before Parliament passes legislation applying to Wales which, in the Government’s view, relates to the conferred matters within the Assembly’s legislative competence. I can confirm that this is part of the normal working arrangements between the UK and Welsh Governments that work well, and I expect that to continue.

I turn now to government Amendment 9. Clause 5 inserts new Section 13A into the Government of Wales Act which gives the Secretary of State the power to make regulations to combine the polls at certain Assembly elections with certain UK parliamentary elections and European parliamentary elections. The exercise of this power is subject to the agreement of Welsh Ministers. We consider that it is appropriate for the Secretary of State to be required to consult the Electoral Commission on any regulations made under Section 13A of the Government of Wales Act. This is consistent with the requirement to consult under Section 13 of that Act. Government Amendment 9 achieves this by adding Section 13A of the Government of Wales Act to Section 7(2)(f) of the Political Parties, Elections and Referendums Act 2000.

Government Amendments 10 and 105 relate to the current limit placed on the number of Welsh Ministers. Section 51 of the Government of Wales Act provides that no more than 12 persons are to hold relevant Welsh ministerial office at any time. A relevant Welsh ministerial office is defined in this section as the office of Welsh Minister appointed under Section 48 of the Government of Wales Act or the office of Deputy Welsh Minister. Noble Lords will be aware that the Bill provides significant powers to the Assembly to be able to increase its size if it so wishes. In this context, it is only right that the Assembly should also have the power to increase the size of the Executive. Amendment 105 devolves power to the Assembly to be able to modify or repeal this limit.

Amendment 10 provides that any Assembly legislation which sought to modify this limit would be subject to a supermajority; that is, it would need to be supported by at least two-thirds of Assembly Members. Given the current size of the Assembly in relation to the Welsh Government, we believe that this provides a sensible safeguard to ensure that any modification or repeal of the limit would have broad support among Assembly Members. We have worked closely with the Welsh Government and the Assembly Commission in preparing these amendments.

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We will know more about this when the Supreme Court delivers its judgment, because I suspect something will be said about it. I respectfully warn the Minister that if he adheres to the wording as it is, he will take with it the judgment of the Supreme Court, yet to be known, which will tell us what it really means. It may be a little more open to judicial interpretation than he suggested.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in debate on this group of amendments. It was a debate of considerable weight. First, I thank the noble Lord, Lord Elis-Thomas, for his kind words and agree with him about the need for institutions in general to work together, but particularly in the context he mentioned of the legislatures in Wales and here, and his comments about the work of the Counsel General for Wales, Mick Antoniw—his work is much welcomed.

I turn to points made by the noble Baroness, Lady Morgan of Ely, about the committee—it is the Government’s view that it should be non-statutory—that will look at the judicial arrangements within the jurisdiction of England and Wales. Points were also made by the noble Lords, Lord Elis-Thomas, Lord Wigley and Lord Morgan, the noble and learned Lords, Lord Morris and Lord Hope, and my noble friend Lady Finn.

First, let me reassure noble Lords that, as I think I indicated, it is intended that this should be a permanent body. We await the recommendations of the working group as to how often it should report. It has been suggested that it could be annually; others have suggested every three or five years. Let us look to see what the committee says. The Government have an open mind on this; we will await the recommendation. The important point is that it will be permanent. I accept the point made by noble Lords that this is an evolving picture; indeed, this is an interim arrangement, as the noble Lord, Lord Morgan, said. In a sense, it is interim between different reports. When the reports come, they will come with advice. It is an advisory committee, but Governments, unless there is good reason, listen to advice—and this will be advice from people with expertise in this area.

I return to the point that there is good will between the UK Government and the Welsh Government as to how this should operate. My right honourable friend the Secretary of State is meeting the First Minister to discuss this. I hesitate to say that it is a reserved area or that we feel that there is some veto on it by the Welsh Government, but we can progress only by consensus. I think it is accepted that it needs willing participation by both parties—and that is there, so let us see what evolves.

I should perhaps remind noble Lords that the LCM has not yet been passed, so if the Welsh Government are not happy with it, it will be open to them to turn it down. The LCM is not just about the fiscal framework—although that is clearly an important part—but about the Bill in general.

Welsh law is different in many respects now from English law—I recognise and accept that, and have said so myself before—but the noble and learned Lord, Lord Hope, referred to the common law of England and Wales. It is a point worth making that this is not exclusively the property of England; the common-law system belongs to both countries and will no doubt remain a bedrock of the legal system. That is what practitioners in Wales want—and what the law schools there want, so far as I can tell from my conversations. However, they recognise that this is an evolving picture, as do the Government. We need the expertise of practitioners and academics as well as the views of the Welsh and UK Governments in moving this forward. We have sought to craft something balanced. There is a general desire to do something in this area and, although opinions may differ to a degree, we are in the same territory, so I hope that this is acceptable.

I turn to the points made by the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Hope, in relation to “normally”. I accept that putting something into legislation is very different from having it as a convention. Obviously, we await the judgment of the Supreme Court for all sorts of reasons, as noble Lords know. I indicated—perhaps I should have reiterated it earlier—that we are looking at guidance notes, which will be the focus of attention after the Bill has passed. In the light of the Bill, we will obviously need to look at them anyway. I give an undertaking that we will flesh out “normally” in the context of guidance notes, which is probably a better way of proceeding than legislation.

I hope that I have covered the main points in relation to the non-government amendments and thank noble Lords for participating in this debate. I thank my noble friend Lady Finn for welcoming some of the changes that we have made, and the noble Baroness, Lady Humphreys, for her points about permanence; I certainly give reassurance on that.

[Lord Elis-Thomas]

May I pursue the point that the Minister just made about the non-statutory proposal for this commission between the legislatures and the Governments of the United Kingdom and Wales? Would he like to reflect further on the nature of that proposal? When we come to Third Reading, he might be able to tell us a little more. Does he intend to publish a report from the working group in time for us to be able to discuss it further at that stage?

[Lord Bourne of Aberystwyth]

My Lords, I indicated on the latter point that I certainly intended that we would publish, in some form, the findings of the group on this matter. Yes, I will reflect on what has been said and say more on Third Reading, when we will be further forward in discussions, to provide extra reassurance. I come back to the point that obviously we want to move by consensus in talking with the Welsh Government and, more broadly, with the National Assembly for Wales. Again, I remind noble Lords that the LCM is a requirement before we can move to Third Reading, so the membership of the National Assembly has to be happy with what is proposed—otherwise, presumably, no LCM will be forthcoming.

[Lord Hain (Lab)]

My Lords, I apologise for not being here for the whole debate. The Minister mentioned the fiscal framework in the context of the LCM. I would be grateful if there were a prospect of that being published soon, as he kindly indicated to me, so that the House will have a chance to look at it before considering any amendments to be tabled for 10 January.

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[Lord Bourne of Aberystwyth]

My Lords, in relation to the fiscal framework, things continue to move in a very satisfactory direction in the discussions between the UK Treasury and Government and the Welsh Government. I certainly anticipate and hope that we will be in a position to say much more about the fiscal framework before we rise next week. That is not an undertaking, but it looks promising. If it is not the case, I will write to noble Lords and indicate the timetable.

[Baroness Morgan of Ely]

My Lords, it was heartening to hear that the committee can go forward only through consensus—that was a welcome commitment. I am assuming that that means that the terms of reference would be agreed by consensus as well. Can the Minister confirm that that will be the case? He also did not address the issue of the membership of the group and whether that would be agreed by both the UK and Welsh Governments. That would be welcome. It is also worth underlining that this is a matter of critical importance for the Welsh Assembly in its broadest form—not just for the Welsh Government. I know that the Government are keen to see the Bill passed, and there is a need for a legislative consent Motion. I wonder whether we can keep open that opportunity to keep talking until Third Reading, just to give the flexibility that the Government may need to ensure that they can get the legislative consent Motion.

[Lord Bourne of Aberystwyth]

First, as I have said, these things are best done by consensus but it is a two- way street—both sides have to come to it in a consensual way. So I hope that that is the case when these matters are discussed subsequently.

I have gone as far as I can in relation to the discussions that are being conducted by the Secretary of State and the First Minister. They will discuss these things, and I do not want in any way to give an indication from here as to how those discussions will proceed—but I have undertaken to say more on this when we come back at Third Reading. If there is additional information in the mean time that I can convey in written form to noble Lords who have participated in the debates, I shall certainly do that. I ask the noble Lords and noble Baronesses not to press their amendments.

Amendment 1 agreed.

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Moved by

[Lord Bourne of Aberystwyth]

4: Clause 4, page 3, line 24, leave out “Wales public” and insert “Devolved Welsh”

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[Lord Bourne of Aberystwyth]

My Lords, the amendments in this group relate to universities and public bodies. Their purpose is to address concerns expressed by universities in Wales that their classification as Wales public authorities in the Bill could have wider consequences in terms of categorising them as public authorities. The ministerial consent restrictions do not apply to legislation relating to “Wales public authorities”. This expression is defined in Clause 4 of, and Schedule 3 to, the Bill. The Wales public authorities expressly include the governing body of an institution within the higher education sector within the meaning of Section 91(3) of the Further and Higher Education Act 1992 and a regulated institution within the meaning of the Higher Education (Wales) Act 2015, other than the Open University.

I am very grateful to the noble Baroness, Lady Randerson, and the noble Lord, Lord Thomas of Gresford, for raising this issue in Committee. During our debate on their amendments, the noble Baroness and the noble Lord expressed concerns which had been raised by universities based in Wales. They sought to reverse the universities’ classification as Wales public authorities because of concerns that this might suggest that they should be classified more widely as public authorities. This was not the intention of the Government, and the relevant provisions did not purport to have any wider effect—but I had considerable sympathy with the points made, as did my right honourable friend the Secretary of State, and I agreed to reflect on the wording before Report. Having done so, I am pleased to bring forward these government amendments— I appreciate that there are many of them—to rename “Wales public authorities” as “devolved Welsh authorities”. The amendments also move universities out of the list of public authorities in Schedule 3, because Clause 4 makes it clear that the listed authorities are public authorities.

Instead, separate provision is being made for governing bodies of an institution within the higher education sector in Wales, so that they are classified as devolved Welsh authorities and the Assembly can continue to legislate in relation to them without requiring ministerial consent. At this point I should also make clear that this will not apply to the Open University, because its activities are not principally or wholly carried out in Wales. It will be a “reserved authority” and the United Kingdom Minister’s consent will be required for the Assembly to legislate in relation to the Open University.

Although we have responded to the particular concerns of universities, I should clarify that it is not our intention that the definition of devolved Welsh authorities and the list of authorities should have wider meaning. They apply only for the purposes of the Bill. Another effect of the amendments is that universities will be taken to be in Wales even if they carry out some activities outside Wales, so long as their activities are carried out principally in Wales. This is to ensure consistency with the approach taken in the Higher Education and Research Bill.

These amendments again demonstrate that the Government have listened to concerns expressed by noble Lords in Committee and, where we believe that there is good reason to modify the Bill’s provisions, we are bringing forward amendments to address the concerns. I commend the government amendments in this group and beg to move.

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[Lord Crickhowell (Con)]

My Lords, as for expressing thanks and congratulations, may I, as the first president of Cardiff University, add to those thanks and congratulations from these Benches?

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on the second group of amendments and I particularly thank the noble Lord, Lord Thomas of Gresford, for reminding me that I had not thanked the noble and learned Lord, Lord Hope, for his very kind comments about the drafting. Obviously they will have been picked up by the people who were responsible for that drafting, as will be the case for the drafting of these amendments.

I also thank the noble Lord, Lord Morgan, who has very distinguished service in the education sector in Wales, and the noble Baroness, Lady Randerson, for their comments. I thank my noble friend Lord Crickhowell for his kind comments, too.

On the specific point raised by the noble Baroness, Lady Randerson, in relation to Amendment 8 in this group about the status of the Open University, I have looked at this quickly, since it has been raised. I take the point that she made. I would like to take it away and have a look at it. It is open to us to do something in this regard on the second day of Report, as I think it is within the scope of the list of reserved and devolved bodies, and, indeed, mixed-function bodies, which this may well be. Therefore, I will, if I may, take that away without prejudice and have a look at it to see whether we should bring something back on the second day of Report. With that undertaking, I commend the government amendments in this group.

Amendment 4 agreed.

Moved by

[Lord Bourne of Aberystwyth]

5: Clause 4, page 3, leave out lines 25 to 28 and insert—
“(1) In this Act “devolved Welsh authority” means—(a) a public authority that meets the conditions in subsection (2),(b) a public authority that is specified, or is of a description specified, in Schedule 9A (whether or not it meets those conditions), or(c) the governing body of an institution within the higher education sector (within the meaning of section 91(5) of the Further and Higher Education Act 1992) whose activities are carried on, or principally carried on, in Wales.”

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Moved by

[Lord Bourne of Aberystwyth]

6: Schedule 3, page 96, line 16, leave out “WALES PUBLIC” and insert “DEVOLVED WELSH”

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Moved by

[Lord Bourne of Aberystwyth]

9: Clause 5, page 6, line 21, at end insert—
“(3) In section 7 of the Political Parties, Elections and Referendums Act 2000 (Commission to be consulted on changes to electoral law), in subsection (2)(f), after “64(3)” insert “or regulations under section 13A(1)”.”

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Moved by

[Lord Bourne of Aberystwyth]

10: Clause 9, page 12, line 17, at end insert “, and
( ) the number of persons who may hold the office of Welsh Minister appointed under section 48 or the office of Deputy Welsh Minister.”

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Moved by

[Lord Bourne of Aberystwyth]

11: Clause 13, page 15, line 40, at end insert—
“(3A) Welsh legislation may make further provision for the purpose of ensuring that devolved Welsh authorities that receive sums derived from the Fund are accountable.That provision may, in particular, include provision for a devolved Welsh authority to which subsection (1)(a) does not apply to be accountable for its expenditure and receipts in respect of functions for which it receives sums derived from the Fund.”

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Moved by

[Lord Bourne of Aberystwyth]

13: Clause 21, leave out Clause 21

[Lord Bourne of Aberystwyth]

My Lords, these new clauses and amendments in my name mainly take forward the recommendations of the Silk commission in relation to water and sewerage.

The Silk report recognised that water and sewerage devolution is a complex issue and that further work to consider the practical implications was needed. Following the St David’s Day agreement, the Government set up the joint Governments’ programme board with the Welsh Government to look at practical issues around Silk’s recommendations and the effect they would have on the efficient delivery of water and sewerage services across England and Wales. It is widely acknowledged that the devolution arrangements around water and sewerage are incredibly complex, and they are not necessarily made any simpler by devolving legislative competence and executive functions along the border. This was recognised, not least by my noble friend Lord Crickhowell, in Committee.

The Silk recommendation on the devolution of sewerage was, of course, included in this Bill when it was introduced in another place. However, these provisions would devolve sewerage policy on a “wholly or mainly” basis, and Clause 46 includes a power for the Secretary of State for the Environment, Food and Rural Affairs to intervene where an Act of the Assembly or any action or inaction of the Welsh Ministers or a public body could have a serious adverse impact on sewerage services in England. This was to mirror the equivalent existing devolution arrangements for water.

Amendment 39 will amend Schedule 7A to the Government of Wales Act 2006, which is inserted by Schedule 1 to this Bill, to devolve both water and sewerage policy as it relates to Wales. While on paper this simplifies the devolution arrangements, it will involve the unpicking of a considerable number of provisions in both primary and secondary legislation to align respective ministerial powers and duties with the England-Wales border. Clause 21 currently provides the necessary powers to deliver this aspect of Silk’s recommendations through secondary legislation by changing the extent of previously transferred provisions. Given this is quite a broad power, Amendment 40 will replace Clause 21 with an order-making power limited to making changes to previously transferred functions relating to water and sewerage. These amendments address a recommendation by the Delegated Powers and Regulatory Reform Committee in its report on the Wales Bill, and I am very grateful to the committee for its scrutiny of the Bill.

Amendment 41, tabled by my noble friend Lord Crickhowell, seeks to extend this list of “water-related” functions to include those relating to “fisheries” and “recreation”. These matters are not devolved on a wholly or mainly basis and there are no plans to change any ministerial functions on these matters using this power.

Amendment 39 also places a requirement on Ofwat to make its annual reports to the Welsh Ministers rather than just sending them a copy, as is currently the case. The Welsh Ministers will be required to lay the annual report before the Assembly and publish it. This reflects the current duty on the Secretary of State to lay Ofwat’s report before Parliament and is similar to one part of Amendment 43, tabled by the noble Baroness, Lady Morgan of Ely. The noble Baroness’s Amendment 43 also seeks to amend other provisions in the Water Industry Act 1991 as it applies to Ofwat. I appreciate that the noble Baroness will address this later. Part of the amendment would require the Secretary of State for the Environment to seek the consent of the Welsh Ministers before making directions to Ofwat outlining her priorities for keeping the activities of water companies under review. This consent would include directions relevant to reserved matters, such as those relating to competition law, insolvency, mergers and so on. This would therefore give the Welsh Ministers considerable influence over policy areas for which they do not have legislative competence or executive functions.

The amendment requires appointments to Ofwat’s boards to be made jointly by the Secretary of State and the Welsh Ministers and seeks to grant Welsh Ministers joint powers over board members’ terms and conditions with the Secretary of State. There is already a duty on the Secretary of State to consult the Welsh Ministers before making any Ofwat appointment. However, joint appointments would be unprecedented and could prove problematic where the Ministers could not agree.

Amendment 42, tabled by the noble Lord, Lord Wigley, would devolve legislative competence for all water policy, including the licensing of water supply and sewerage licensees. The Government believe that legislative competence for licensing should remain with the United Kingdom Parliament. There would be no obvious benefits for licensees or customers should the Assembly seek to introduce its own separate licensing regime for Wales.

I said in Committee that I would bring forward amendments to replace the controversial Secretary of State intervention powers relating to water. Amendments 45 and 53, tabled in my name, will repeal the water intervention powers and replace them with a power for the Secretary of State for the Environment and Welsh Ministers, to agree and lay before Parliament and the Assembly a water protocol. This will enable both parties to challenge any action or inaction by Ministers or relevant public bodies that could have a serious adverse impact on water on either side of the border. We have gone further than Silk recommends by giving the water protocol statutory backing and making it reciprocal so that the interests of water consumers in Wales, as well as those in England, are protected. However, Amendments 46 to 48, tabled by my noble friend Lord Crickhowell, seek to extend the scope of the water protocol to cover all water-related functions, not just those relating to water resources, water supply and water quality. I know that my noble friend has unrivalled expertise in this area but the amendments go much further than Silk recommends on the replacement of the existing intervention powers with a water protocol. As I have already mentioned, my noble friend appreciates the challenges around changing the devolution arrangements as they relate to Wales. I fear that the amendments are unnecessary and would no doubt be seen by the Welsh Government and the Assembly as a retrograde step.

Amendment 50 introduces new duties on the Secretary of State which, in practice, will fall on the Secretary of State for Environment, Food and Rural Affairs and on the Welsh Ministers, to have regard to the interests of water consumers across from their respective borders when carrying out their water functions. The amendment mirrors the definition of consumer interests in Section 2 of the Water Industry Act 1991. This defines the interests of consumers as being the interests of those that receive water and sewerage services from the networks of water companies. It is not affected by, and does not affect, the consumer objective set out in the 1991 Act. The new duties will require both Governments to consider the likely impacts of their policies on customers outside of their respective jurisdictions. This additional check will help ensure that, like the intervention powers, the disputes process contained within the protocol may never need to be used by either Government.

Amendment 44, tabled by the noble Lord, Lord Wigley, on the extraction of water from reservoirs, is the same as one tabled in Committee. I acknowledge the massive role that he has had in looking at this area. The Assembly already has legislative competence for environmental controls over abstractions in Wales. It therefore has the ability to introduce such a provision for Welsh reservoirs, should it require one.

The amendments in my name provide a significant package of water devolution to Wales. They deliver a stable, mature and effective devolution settlement by aligning powers over water and sewerage with the national border and replacing the Secretary of State’s intervention powers relating to water with an inter- governmental protocol. Again, this illustrates the capabilities of mature institutions developing these things together. These new arrangements are in the best interests of water consumers on both sides of the border.

I look forward to hearing noble Lords speak to their amendments. I beg to move.

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Scotland and England do not have cross-border operators and as such the issue in respect of consumers is not as obvious. But the Solway Tweed river basin district covers both Scotland and England and decisions either side of the border would impact on the other. I am not aware that such a requirement exists in the Scotland Act, so why do the Government propose to insert it into this Bill at such a late stage in the scrutiny process?

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords for what has certainly been an impassioned debate on an area that I agree deserves passion. I will try to deal with the various issues that have been raised. I turn first to the package of provisions raised by my noble friend Lord Crickhowell in relation to his proposals for fisheries and recreation to be brought within the definition of water-related functions in Section 58 of the Government of Wales Act as amended. I obviously listen very carefully to everything that my noble friend says on any subject, but particularly in this area, where I know he has great expertise. I will look carefully again at this area and write to him. But I return to the basic point as I see it, which is that fisheries and recreation are already devolved matters, so there is no issue in relation to intervention in those areas. To use his analogy, the ingredients of the cake have already been passed to the Welsh Government. But I will take another look at it and write to the noble Lord.

[Lord Crickhowell]

The only thing that worries me about that is that they may have been passed to the Welsh Government when the fish are in Wales, but fish pass up and down the border, in and out of England and Wales, and affect both England and Wales—so there is an issue about cross-border arrangements.

[Lord Bourne of Aberystwyth]

My Lords, as I said, I will look at the issue, but my understanding is that if the fishing is taking place in England it will be a matter for England and if in Wales it will be a matter for Wales—but I will take a more detailed look at that and write to my noble friend and other noble Lords who have participated in the debate.

I turn now to the serious issue about the protocol and Tryweryn. I have said on more than one occasion—I feel that I have said this so often—that Tryweryn is not affected by this legislation. Tryweryn could not happen now. The power in relation to reservoirs in every respect is already with the National Assembly for Wales. I could not have been clearer on that. I understand the importance of the issue as part of our folklore, but it is unaffected by this legislation. One would not expect this legislation to claim to be doing things that it is not doing. That is the basic point—although I understand the passion in relation to this area. I give that reassurance to the noble Lords, Lord Wigley, Lord Thomas, Lord Elystan-Morgan and Lord Morgan. Tryweryn cannot happen—or if it does, it is a matter for the National Assembly for Wales.

[Lord Wigley]

I am grateful to the Minister, who is repeating—quite understandably—the points he made in Committee. However, I pray in aid the comments made by the noble Baroness, Lady Morgan of Ely, with regard to the benefits of having something written in the Bill. Other declaratory points are included in the Bill—for example, the permanence of the Assembly. That is a declaration and there is no reason at all why there should be not that clear declaration. But it goes further than that. It goes to the question of the total control of reservoirs in Wales—every aspect of them should be under the control of the Assembly. Is the Minister saying that they are?

[Lord Bourne of Aberystwyth]

My Lords, I am saying that. The noble Lord is not often unfair, but I think that he is being unfair on this occasion. The issue in relation to the permanence of the Assembly is an aspiration and a declaration that was sought by his party and agreed by others. This is a very different issue. It is a statement of what this particular Act will do. This Bill as it is at present does not do anything in relation to the situation he is referring to—so it would be most extraordinary to claim that it did.

Turning to the broader issue of the protocol, once again I am conscious that the protocol is clearly important, but the Government have not claimed anything that is untrue or indeed misleading. We have said that the existing intervention powers will be substituted by a protocol. That remains the case. I understand noble Lords wanting information on what the protocol will cover, and perhaps some timetable for how it will be agreed, but noble Lords cannot have thought that I would be able to produce an agreed protocol at this stage of proceedings when we have only just agreed across government that this will be the way forward. I certainly undertake to write to noble Lords with a timetable for how the protocol will proceed and what it will cover, but I hope that they will accept that there has been no misleading in relation to the protocol. What we claimed is what we are delivering.

[Lord Wigley]

I am sorry to intervene again—I do not want to be a nuisance—but the Bill says that the protocol “may” be introduced. Why does it not say “shall”?

[Lord Bourne of Aberystwyth]

That is a drafting point. The noble Lord makes a fair point, but I can give the reassurance that there is certainly no intention on the part of the Government that this should not happen. It is something that is proceeding. I can confirm that it is the Government’s intention. We want this to happen and I believe that it will happen. I am not taking a pessimistic view of this. The noble Lord makes a fair point about the drafting, which I had not picked up—but sometimes these things are referred to as “may” and sometimes as “must”. From our point of view, we regard this as imperative.

[Lord Elystan-Morgan]

From what the Minister says, it seems pretty obvious that the protocol will not be in existence before the Bill receives royal assent. So one will be left with some sketch on the part of the Minister. That is not the ideal way of doing things, but I am sure that we would be prepared to accept the word of the Minister on what the basic content of the protocol will be.

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[Lord Bourne of Aberystwyth]

I thank the noble Lord, Lord Elystan-Morgan, for that intervention. I cannot be certain, but I anticipate that the protocol will not be decided before Third Reading on our current timetable; that is most unlikely. But as I said, I will write to noble Lords giving an indication of what it will contain and some timescale ahead of Third Reading. I hope that that will be before the second day of Report. Once again I say that I do not think that there has been any misleading on this at all. We said that there would be a protocol to replace the intervention powers. That is the intention. We have good will and we want to get this agreed. We will do it with due expedition, as quickly as we can, but it may take longer than the middle of January, which is what we are looking at. With that, I ask noble Lords not to press their amendments.

Amendment 13 agreed.

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[Lord Hain]

My Lords, following that very interesting contribution from the noble Lord, Lord Crickhowell, perhaps I may ask the Minister to explain exactly how all the other issues to do with Milford Haven port are devolved to the Welsh Government. Economic development—which is crucial in the area—environmental questions, safety issues and matters relating to the sea are all devolved, yet, uniquely, Milford Haven port is excluded. If the sole reason for that is the energy question—one can understand the strategic importance of the LNG capacity there—surely the vehicle to address that might be a protocol. Since the Minister has wheeled out the protocol—I do not mean that pejoratively—in a way that is meant to satisfy the legitimate demands for control over water within Wales, why could that not be the vehicle for addressing the strategic energy question, while ensuring that the Welsh Government have full control over Milford Haven as they have over all other ports?

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on these amendments. Obviously, the Government have some amendments in this group as well, which I will move in due course.

Amendments 14 to 26 and Amendments 86 to 89 are opposition amendments. We debated amendments that were very similar to Amendments 14 to 26 and Amendments 86 to 89, tabled by the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Wigley, in Committee on 7 November. The amendments would remove the reservation of reserved trust ports from the Bill and so transfer functions to the Welsh Ministers and devolve legislative competence for these ports to the Assembly in the same way as the Bill does for other ports wholly within Wales.

During that debate, in light of our discussion and the points raised by noble Lords, I undertook to take another look at the reservation of reserved trust ports without prejudice—that is, not saying that I would come along with revised proposals. I am now convinced of the strategic case for excluding Milford Haven and will seek to explain why.

Trust ports have unique governance arrangements. They are run by independent statutory bodies whose role is to manage, maintain and improve a harbour. Trust ports operate on a commercial basis, generally without financial support from government. Harbour authorities for trust ports have no shareholders but are accountable to, and run for the benefit of, their stakeholders, who include port users, local communities and local economies as well as local government and national Governments. Any profits are reinvested by the harbour authority in the port for the benefit of those stakeholders. Indeed, it is the duty of a trust port board to hand on the harbour to succeeding generations in the same or better condition. There are five trust ports in Wales, at Caernarfon, Milford Haven, Neath, Newport and Saundersfoot.

In light of the unique governance arrangements that I have just outlined, the Government believe that trust ports that have a nationally significant role in Wales should continue to be accountable to UK Ministers, which is what the reservation of reserved trust ports in the Bill achieves. During our debate on 7 November, all noble Lords who participated were in agreement about the importance of the port of Milford Haven. The significant volume of liquid bulk cargo—that is, oil and oil products, and liquefied natural gas—passing through the port each year is a clear testament to that. The oil refinery and fuel storage facilities at Milford Haven, which are dependent on the port, play an important national role in securing supplies of road and aviation fuel in Wales and England.

Perhaps I may at this stage take issue with something that the noble Baroness, Lady Morgan, stated in relation to the Murco refinery. I am in a position to say something from direct experience because I was chair of the Haven Waterway Enterprise Zone when the Murco refinery was threatened with closure, which sadly came to pass. The two Governments, the Government in Wales and the Government at Westminster, worked closely and amicably in relation to this; there was no disagreement. As chair of the enterprise zone, I had frequent discussion with the Department of Energy and Climate Change, as it was at the time, and the Minister there. There were also discussions with the relevant Welsh Minister. It was all perfectly amicable. So on matters relating to Milford Haven, I would not want noble Lords to think that the two Governments are always at loggerheads on these issues; that was certainly not the case in relation to the Murco refinery and on other issues that came up while I was chairman there over a period of some two years.

It is because of the importance of the oil refinery and fuel storage facilities at Milford Haven, dependent on the port, that we take the view that it is of strategic significance. The turnover threshold in Clause 32, referred to by the noble Baroness, is used to determine which trust ports in Wales are reserved trust ports and is based on a turnover threshold in the Ports Act 1991. Although the context is different, it seemed to be a suitable test for determining which trust ports in Wales are nationally significant and so should be reserved.

I accept—I note the spirit of contributions made by the noble Lord, Lord Hain, and others—that Welsh Ministers will remain a very important stakeholder for Milford Haven given their devolved responsibilities for other matters, such as for economic development, surface transport and marine licensing. I say once again that it is wrong to anticipate that every time a serious issue arises the two Governments will not work together. I refer noble Lords by way of example to the situation in relation to foot and mouth. That would no doubt be the case if there was some national emergency involving both Wales and the rest of the United Kingdom. The two Governments would work successfully together again where there was a need for it.

[Lord Hain]

In that case, if the Minister is saying that the two Governments would work together anyway in the common interest of both Wales and the rest of the UK, why would that not apply also in the case of the strategic energy question?

[Lord Bourne of Aberystwyth]

My Lords, if I have understood the point correctly, this is in the context of our firm belief that the port is of strategic UK significance but that there are occasions when it is absolutely right that the Welsh Government need to be involved. They are a significant stakeholder in the port at the moment and—again, I can speak from experience of chairing the enterprise zone—are involved very much in issues there. It is not that the two Governments were at loggerheads; that is far from the case. It seems that we always anticipate that the two legislatures and the two sets of Ministers will always be at each others’ throats; that is far from the case. These two mature institutions very often—indeed, most often—work very successfully together. That is the point I am seeking to make.

[Lord Hain]

My Lords—

[Lord Bourne of Aberystwyth]

May I just develop this point? I remind noble Lords that the rule on Report is that they should speak only once—but I will give way since I am sure that it is a relevant contribution. I shall write to noble Lords on issues that have been discussed to explain how the relationship with the Welsh Government works, the matters they are involved in and, perhaps, how we can move that forward to ensure that we have harmonious relationships.

[Lord Hain]

I am grateful. Incidentally, that was an intervention, not another speech. If the Welsh Government and the UK Government will not be at loggerheads on things, why would the Welsh Government be at logger- heads with the UK Government on the supply of LNG, which is just as important to Wales, proportionately, as it is to the rest of the UK? I do not understand the logic of the Minister’s point.

[Lord Bourne of Aberystwyth]

My Lords, we could disagree on this issue until the cows come home but the basic point, which I think the noble Lord would accept, is that some matters are rightly retained as reserved matters for the United Kingdom Government while other matters are appropriate for the Welsh Government. It is our belief that the significance of this port in UK terms means that this should be a reserved port and not a devolved port. We disagree on that, but that is the basis on which we are moving forward, recognising that the Welsh Government have a role to play in relation to Milford Haven—a role that they fulfil at the moment. As I say, I will endeavour to ensure that I write to noble Lords to explain how that relationship is working at the moment.

In our debate on 7 November, some noble Lords questioned the matter of the devolution of strategic ports in relation to Aberdeen, which has been cited, quite appropriately, I acknowledge, in relation to Scotland. That was, of course, a devolution arrangement that was put in place in 1998. The Government’s thinking has developed since then and the Wales Bill includes the important concept of reserving to the United Kingdom Government trust ports that are nationally significant. I repeat to the noble Lord, Lord Hain, and others that that is the reason we seek to retain Milford Haven as a reserved port.

Government Amendments 27 to 35 are concerned with reciprocal requirements for the consent of the Secretary of State and the Welsh Ministers imposed by Sections 42C and 42D of the Harbours Act 1964. These requirements relate to harbour orders and schemes made under that Act which amend existing harbour orders and schemes made by the Secretary of State or the Welsh Ministers. The amendments are needed because the consent requirements are not consistent with the new devolution settlement for harbours in Wales set out in the Bill.

The amendments remove the reciprocal consent requirements. The transfer of harbour functions to the Welsh Ministers in the Bill will mean that the Welsh Ministers, not the Secretary of State, will exercise these harbour order and scheme-making functions for all harbours wholly in Wales, apart from reserved trust ports, which I shall refer to as “devolved harbours”. This would cover issues such as improvements to harbour facilities in relation to devolved harbours. The Secretary of State or his delegate could make such orders or schemes relating to devolved harbours only in very limited circumstances. In all such cases, the Secretary of State or his delegate will have a duty to consult the Welsh Ministers before making such a scheme or order, including under new provisions in the amendments.

Also, it would be unduly restrictive if Welsh Ministers were required to obtain consent from the Secretary of State when making, for example, a harbour revision order for a devolved harbour that alters the effect of a harbour revision order made for the harbour by the Secretary of State before the new devolution settlement. Other amendments in the group contain consequential amendments applying to Clause 36—provisions supplementary to Clauses 34 and 35—covering the Secretary of State’s new consultation obligation introduced by the amendments.

Lastly, Amendment 31 removes wording from Clause 36(1) which carries an exception from the duties to consult where consultation is not reasonably practicable. This amendment has been requested by Welsh Ministers.

Government Amendments 54 and 110 to 114 fulfil a commitment I gave in Committee to examine further the fisheries management functions being transferred to Welsh Ministers to regulate fishing vessels outside the Welsh zone. Amendment 54 introduces a new clause that transfers additional fisheries management functions to Welsh Ministers. The functions replicate, to a large extent, those already exercisable in the Welsh zone which were transferred under the Welsh Zone (Boundaries and Transfer of Functions) Order 2010. The effect of the amendments is that Welsh Ministers will have available to them the functions they require to manage Welsh vessels wherever they are. They also preserve the United Kingdom Government’s requirement to retain a symmetry between the concurrent functions available to the Secretary of State in relation to Scottish and Welsh fishing vessels operating outside their respective zones. Welsh Government officials worked with their colleagues in the Wales Office and in the Department for Environment, Food and Rural Affairs to recommend these amendments, which we are pleased to present.

Finally in this group, Amendment 55 requires the Secretary of State to consult Welsh Ministers while setting strategic priorities in relation to the Secretary of State’s delivery, in Wales, of functions under two pieces of primary legislation: the Coastguard Act 1925 and the Merchant Shipping Act 1995. In practice, each of these functions is carried out by the Maritime and Coastguard Agency, an executive agency of the Department for Transport. While day-to-day operational and incident response decisions are, quite properly, the responsibility of the chief executive of the Maritime and Coastguard Agency, the Secretary of State is responsible for setting its strategic priorities. Areas covered include the 24-hour search and rescue helicopter service provided by the coastguard and the promotion of seafarer health and safety standards.

Noble Lords will be aware that statutory provision has been made for consultation between the Scottish Government and the Secretary of State in the Scotland Act 2016, and in Committee I agreed to reflect on the case for making similar provision for Wales, in line with the amendments brought forward in Committee by the noble Baroness, Lady Morgan, and the noble Lord, Lord Wigley, and by the Smith commission in respect of Scotland. I am pleased to say that we can make such provision, and this amendment is the result. I commend the government amendments in this group and urge noble Lords not to press their amendments.

[Lord Wigley]

I thank those who have taken part in this debate, including the noble Baronesses, Lady Morgan and Lady Randerson, the noble Lords, Lord Crickhowell and Lord Hain, and, of course, the Minister. On Milford Haven, I think that there is a feeling across the House that there is a greater role for the National Assembly and the Welsh Government in this matter, particularly when one considers that they have responsibility for the safety and civil emergency aspects. There are questions of coherence in manpower planning, in transportation and road planning and in the economic infrastructure of the whole area. None the less, we note the points that the Minister made and it appears that we will have to agree to differ on this. I thank the Minister for government Amendments 54 and 55 on fisheries, which are a response to amendments we tabled in Committee and which will be welcome in Wales. On that basis, I beg leave to withdraw the amendment.

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Moved by

[Lord Bourne of Aberystwyth]

27: Clause 35, page 30, line 46, at end insert—
“( ) Where the Secretary of State or the Welsh Ministers have made an order under section 42A of the Harbours Act 1964 delegating the function of making a harbour revision order, the duty in subsection (1) or (2), so far as it relates to the function mentioned in subsection (4)(c), applies to the delegate as it applies to the Secretary of State or the Welsh Ministers.”

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Moved by

[Lord Bourne of Aberystwyth]

28: After Clause 35, insert the following new Clause—
“Exercise of functions in relation to two or more harbours
(1) Where—(a) a Minister of the Crown proposes to exercise a relevant function in relation to two or more harbours, and(b) at least one of those harbours is a harbour that is wholly in Wales and is not a reserved trust port, the Minister of the Crown must first consult the Welsh Ministers (except where section 36(1) applies).(2) Where a Minister of the Crown has made an order under section 42A of the Harbours Act 1964, the duty in subsection (1) applies to the delegate as it applies to a Minister of the Crown.(3) In this section—“relevant function” has the same meaning as in section 34;“reserved trust port” has the meaning given in section 32;“Wales” has the same meaning as in section 34.”

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Moved by

[Lord Bourne of Aberystwyth]

30: Clause 36, page 31, line 28, leave out “or section 35(1) or (3)” and insert “, section 35(1) or (3) or section (Exercise of functions in relation to two or more harbours)(1)”

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[Lord Howarth of Newport (Lab)]

My Lords, my noble friend Lord Griffiths of Burry Port is rather charitable, indeed flattering, to the Government in referring to their creation of a paradox. I would say that this is simply confused and bad policy-making and endorse what my noble friend Lady Morgan of Ely said at the outset. First, it is not a good way to treat the House for the Government to insist on mixing up, in one group, amendments on this variety of topics—energy, the Crown Estate and gambling. This is not a basis for rational scrutiny of legislation and it should not have happened.

I want to dwell on the gambling issue for only a moment, as much more important is the confusion in the handling of it. To make this distinction between different sizes of bank or stake—I am grateful to the noble Lord, Lord James, for his elucidation of the issue—and to attempt to make a distinction between responsibility for supervision of machines that are already in Wales and for machines that may in future be in Wales is to fragment responsibility. If the Government are going to devolve responsibility for a very important social issue, they should devolve it properly and produce a coherent solution. Fragmenting responsibility can only make for confused and ineffective policy-making. This issue matters far too much to Welsh society, and in particular to the prospects for significant numbers of young people in Wales, and we need a coherent and proper policy for it.

[Lord Bourne of Aberystwyth]

My Lords, I will address the remarks on this group of amendments and I thank noble Lords who have participated in the discussion. First, I will deal with a point raised by the noble Lord, Lord Howarth, in relation to the grouping of amendments by pointing out that it is entirely possible through the usual channels to decouple amendments. That has happened in at least one other group, so I do not think the accusation was entirely fair. It is open to other parties to challenge that.

Initially, I will address government Amendment 38 to Clause 37, as well as Amendments 36 and 37, tabled by the noble Lord, Lord Wigley. The government amendment is a technical one to address concerns raised by the Welsh Government. Consistent with the principle of establishing a lasting settlement, it simply acknowledges that future Acts of the Assembly may prove relevant factors in the exercise of consenting powers under the Electricity Act 1989. This addition simply amends that Act accordingly to allow for that possibility.

The noble Lord’s amendments seek once more to reopen the basis on which the Government endorsed a key recommendation of the Silk commission. I note what the noble Lord said about the commission, but he will know that the legislation is essentially based on the St David’s Day agreement, which took forward a lot of the Silk commission recommendations but not all of them. What is in the Bill is essentially based on the St David’s Day consensus rather than on the Silk recommendations, although in this context they are the same.

As I said in Committee and have subsequently reiterated in writing to your Lordships, the Bill has been carefully drafted to give effect to that political consensus around the devolution of new powers which will give Wales a substantially greater degree of autonomy in determining the shape of its future energy structure. To use a word that has been used recently, it would be paradoxical if the Government ignored that consensus and came up with a figure that was not part of it. Key to that consensus was recognition that Wales and England are, and will remain, intrinsically linked through a common electricity transmission system which depends on the inputs from a broad range of generating sources.

The Government continue to be firmly of the view that the larger the capacity of those sources, the greater their significance beyond Wales and to the United Kingdom as a whole. Consensus was reached around 350 megawatts being the appropriate watershed, and I do not believe that the landscape has changed to such a degree since then as to necessitate exploring an alternative approach. The noble Lord, Lord Wigley, I think, and possibly others asked whether we already have the powers if we were to subsequently seek to increase that. Yes, we have the powers, without fresh primary legislation, under, I think, the Electricity Act. It might be under a planning Act, but I can assure the noble Lord that those powers exist in relation to upping the figure. That is not to say that factors might not emerge in the future which would give us pause for thought on this front. I do not believe, however, that now is the time to alter the 350 megawatts figure, but as I have indicated, the power is there if it should be needed.

Government Amendments 117, 118 and 119 relate to generating stations and provide Welsh Ministers with greater flexibility for the future around the exercise of their new electricity generation consenting functions in Welsh waters and in relation to the amendment of existing onshore consents up to 350 megawatts under the Electricity Act 1989. They simply and sensibly provide Welsh Ministers with the ability to delegate the exercise of their new functions to a person they appoint for the purpose. This is a flexibility which the Welsh Government have asked for, and I am happy to provide it.

Government Amendments 56 and 83, and opposition Amendments 57 and 58, relate to fixed-odds betting terminals. I confess that I am not acquainted with these either, although I understand that the noble Baroness, Lady Morgan of Ely, has been experiencing them in the last week or so to see how they work, in addition to Nessa’s Slots in Barry Island. In Committee last month, I committed to reflect further on the arguments in favour of devolving powers over fixed-odds betting terminals. Having done so carefully, I am pleased to bring forward Amendment 56, which will transfer the power on fixed-odds betting terminals in exactly the same way as has been done for Scotland. I am very grateful for the intervention from my noble friend Lord James, indicating that the amount relates to a bank rather than a stake. I hope that gives some reassurance to the noble Baroness opposite and ties in with her experience on this issue.

The noble Baroness, quite fairly, raised the issue of whether, if the amount were to change in England, it would translate across to Wales. I can confirm it would. As she rightly says, this is a serious problem which has been exercising the all-party group and others. If it were to be altered in England, that would have the effect of transferring that same amount to Wales. I thank the noble Lord, Lord Griffiths, as well for his contribution. I know he feels strongly about these issues and has spoken on them forcefully and persuasively in the past.

The amendments would devolve legislative and executive competence to the Assembly and Welsh Ministers to regulate the number of high-stakes gaming machines authorised by new betting premises licences in Wales. It is right that they are new betting premises, as the noble Baroness confirmed. Once again, I think the Government have been given rather a raw deal here; having come up with something that has been welcomed, we have then been accused of not going as far as noble Lords thought we had gone. I thought I was absolutely clear that we have gone as far on this as we did with Scotland. I note the comments and this is a serious issue, but I hope I have given some reassurance that if there is some movement in England, that would affect the position in Wales as well.

The Silk commission made no recommendations on the devolution of betting, gaming and lotteries, but we agreed as part of the St David’s Day process to consider non-fiscal recommendations by the Smith commission and it was in that context that we decided it would be appropriate to take this forward in relation to Wales. We reflected on it and mirrored the provisions in the Scotland Act 2016. The noble Baroness, Lady Morgan, has proposed going much further than the position in Scotland in the Scotland Act but I am afraid we cannot agree to that. I take issue with her on one point on which she spoke passionately in relation not just to gaming machines but to the SNP. The Scotland Act is not an SNP Act—it is an Act of Westminster to which we all contributed. I think we can all reflect on that.

Amendment 60, tabled by the noble Lord, Lord Wigley, seeks to devolve the management functions of the Crown Estate commissioners in relation to Wales to Welsh Ministers or a person nominated by them. This broadly reflects a provision in the Scotland Act 2016 that devolves management functions of the Crown Estate commissioners in relation to Scotland to the Scottish Ministers or a person nominated by those Ministers. The devolution of the Crown Estate in Scotland was recommended by cross-party consensus in the Smith commission report. It was not part of the Silk recommendations and I am not aware that such a consensus exists in respect of Wales.

The Crown Estate works closely with devolved services in Wales; for example, it has agreed memorandums of understanding with the Welsh Government and Natural Resources Wales. I believe the Crown Estate commissioners are doing an excellent job. Last year the Crown Estate recorded a record profit of £304 million, which was returned to the Exchequer. This is not revenue retained by the Crown. The revenue from the Crown Estate is used to fund public services across the UK, including in Wales. This means that Wales is already directly benefiting from the management of Crown assets by the Crown Estate. I urge the noble Lord, Lord Wigley, to withdraw his amendment.

[Baroness Morgan of Ely]

Before the Minister sits down, I should like to be clear on this point. The suggestion is that there will be no possibility for the Welsh Government to look at fixed-odds betting terminals that currently exist, despite there being this incredible social problem in Wales. If the UK Government will not allow the Welsh Government to deal with this, do they have any intention of bringing forward something that would address this issue, which is devastating communities not just in Wales but across the UK?

[Lord Bourne of Aberystwyth]

My Lords, I acknowledge that this is a serious issue. I am grateful to the noble Baroness for exaggerating my powers in relation to the Government as a whole regarding what legislation is forthcoming. I will have to write to her on that, but I acknowledge that it is a problem and I have given her an indication that if we deal with it in Westminster, of course any consequent changes would apply in Wales as well.

[Lord Wigley]

My Lords, I am grateful to everyone who has taken part in this debate. I have noted the replies given to the various subjects that have arisen. I still feel very strongly that some of the powers that Scotland has regarding the Crown Estate are powers that we should have as well, but clearly we are not going to make much progress on that today. I also suspect that we will come back to the diverse matters that we have discussed, including the gambling questions and possible legislation. On the basis of the debate, though, I beg leave to withdraw the amendment.

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Moved by

[Lord Bourne of Aberystwyth]

38: Clause 37, page 34, line 11, at end insert—
“( ) in the definition of “statutory provision”, after “Scottish Parliament” insert “and an Act of the Assembly”;”

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Moved by

[Lord Bourne of Aberystwyth]

39: After Clause 45, insert the following new Clause—
“Water and sewerage
(1) In Schedule 7A to the Government of Wales Act 2006 (substituted by this Act), in section C15 (water and sewerage)—(a) omit paragraph 90;(b) in paragraph 91 omit “and regulation”;(c) omit the two exceptions (and the heading “Exceptions”);(d) omit the definitions of “supply system of a water undertaker” and “sewerage system of a sewerage undertaker”.(2) In section 192B of the Water Industry Act 1991 (annual and other reports)—(a) in subsection (1), after “the Secretary of State” insert “and the Welsh Ministers”;(b) 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,”.”

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Moved by

[Lord Bourne of Aberystwyth]

40: After Clause 45, insert the following new Clause—
“Modification of water-related functions
In section 58 of the Government of Wales Act 2006, after subsection (2) insert—“(2A) Her Majesty may by Order in Council—(a) make provision modifying (by reference to geographical extent or otherwise) a previously conferred or transferred water-related function;(b) provide for such a function to be exercisable—(i) concurrently or jointly with a Minister of the Crown or the Welsh Ministers, or(ii) only with the agreement of, or after consultation with, a Minister of the Crown or the Welsh Ministers.(2B) In subsection (2A)—“previously conferred or transferred function” means a function exercisable by— (a) the Welsh Ministers, the First Minister or the Counsel General,(b) a Minister of the Crown, or(c) any authority or other body,by virtue of provision contained in or made under this Act or any other enactment;“water-related function” means a function exercisable in relation to water supply, water quality, water resources management, control of pollution of water resources, sewerage, rivers and other watercourses, land drainage, flood risk management or coastal protection.””

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Moved by

[Lord Bourne of Aberystwyth]

45: Clause 46, leave out Clause 46 and insert the following new Clause—
“Water protocol
(1) The Welsh Ministers and the Secretary of State may make an agreement (the “water protocol”) for the purpose of ensuring that—(a) actions or inaction of the Welsh Ministers, or public bodies exercising functions in Wales, do not have a serious adverse impact on water resources in England, water supply in England or the quality of water in England, and(b) actions or inaction of the Secretary of State, or public bodies exercising functions in England, do not have a serious adverse impact on water resources in Wales, water supply in Wales or the quality of water in Wales.(2) The water protocol must—(a) provide for a procedure for resolving matters of disagreement between the Welsh Ministers and the Secretary of State;(b) make provision about whether, or to what extent, functions relating to such matters may be exercised pending the outcome of the procedure.(3) The water protocol may be revised by agreement of the Welsh Ministers and the Secretary of State.(4) The water protocol, and any revised protocol, must be laid before both Houses of Parliament and the National Assembly for Wales.(5) The Welsh Ministers and the Secretary of State must exercise their functions in accordance with the provisions of the water protocol, unless it is revoked by agreement of the Welsh Ministers and the Secretary of State.”

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Moved by

[Lord Bourne of Aberystwyth]

50: After Clause 46, insert the following new Clause—
“Reciprocal cross-border duties in relation to water
(1) In exercising functions relating to water resources, water supply or water quality—(a) the Welsh Ministers must have regard to the interests of consumers in England;(b) the Secretary of State must have regard to the interests of consumers in Wales.(2) In subsection (1) “the interests of consumers” has the same meaning as in section 2 of the Water Industry Act 1991.”

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Moved by

[Lord Bourne of Aberystwyth]

53: After Clause 46, insert the following new Clause—
“Repeal of intervention powers relating to water
(1) In the Government of Wales Act 2006—(a) in section 114 (power to intervene in certain cases) omit paragraph (b) of subsection (1);(b) omit section 152 (intervention in case of functions relating to water).(2) Regulations under section 62 bringing this section into force may not be made until an agreement under section (Water protocol) has been laid before both Houses of Parliament and the National Assembly for Wales.”

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Moved by

[Lord Bourne of Aberystwyth]

55: After Clause 49, insert the following new Clause—
“Maritime and Coastguard Agency
(1) In section 1 of the Coastguard Act 1925 (transfer of the coastguard to the Board of Trade), after subsection (4) insert—“(5) The Secretary of State must consult the Welsh Ministers about the strategic priorities of the Secretary of State in exercising functions under subsection (1) in relation to activities of Her Majesty’s Coastguard in Wales.(6) In subsection (5) “Wales” has the same meaning as in the Government of Wales Act 2006.”(2) In section 292 of the Merchant Shipping Act 1995 (general functions of the Secretary of State), after subsection (4) insert— “(5) The Secretary of State must consult the Welsh Ministers about the strategic priorities of the Secretary of State in exercising functions under subsection (1) in relation to the safety standards of ships in Wales and protecting the health and safety of persons on them.(6) In subsection (5) “Wales” has the same meaning as in the Government of Wales Act 2006.””

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Moved by

[Lord Bourne of Aberystwyth]

56: After Clause 49, insert the following new Clause—
“Gaming machines on licensed betting premises
(1) In section 172 of the Gambling Act 2005 (gaming machines), in subsection (12) (definition of “appropriate Minister”), after paragraph (a) insert—“(aa) the Welsh Ministers, so far as, in the case of a betting premises licence in respect of premises in Wales and not in respect of a track, the order varies—(i) the number of gaming machines authorised for which the maximum charge for use is more than £10, or(ii) whether such machines are authorised;”.(2) In section 355 of that Act (regulations, orders and rules)—(a) in subsection (1), after “the Secretary of State” insert “, the Welsh Ministers”;(b) in subsection (3), after “the Secretary of State” insert “or the Welsh Ministers”;(c) after subsection (8) insert—“(8A) An order of the Welsh Ministers under section 172 shall not be made unless a draft has been laid before and approved by resolution of the National Assembly for Wales.”(3) The amendments made by this section do not apply in relation to a betting premises licence issued before this section comes into force.”

Wales Bill

Lord Bourne of Aberystwyth Excerpts

Report stage (Hansard - continued): House of Lords
Wednesday 14th December 2016 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I am very grateful for the build-up from the Benches opposite. I thank noble Lords who have participated in the debate on the railways. Perhaps I may say first, although I do not think the noble Baroness, Lady Morgan of Ely, referred to it, that although Amendment 91 is in this group, I would like to return to it on the second day of Report, in the new year. I see that the noble Baroness is content with that.

I turn to Amendment 59 moved by the noble Baroness, Lady Morgan of Ely. She is seeking to press the Government to a decision on a matter that we committed to consider in the St David’s Day Command Paper, as my noble friend Lord Hunt of Wirral has just indicated. That matter is whether to legislate for Wales in a similar manner to the provision in the Scotland Act 2016 regarding the powers of Scottish Ministers as committed to in the Smith commission agreement to enable Welsh Ministers to invite UK public sector operators to bid for rail franchises for which they are the responsible franchising authority. Let me deal first with the point about not-for-profit and not-for-dividend organisations. They are currently able to bid and there is no proposal to alter that, so the likes of Dwr Cymru, as I indicated in Committee, would be able to bid in relation to this.

I know the Welsh Government are keen to have this power, but I have to tell noble Lords that we have no proposal in this area, particularly given that it will be 2028 before it could kick in. I think that by common agreement the current border franchise contract will be agreed in 2018. We do not propose to permit public sector bidders in the interim because we do not see any urgency about this. On that basis, I cannot give the reassurance that is sought.

[Baroness Morgan of Ely]

I am very disappointed with the Minister’s response. I do not understand why we cannot have the same rights as Scotland for the public sector to be able to bid for the franchise. We are not asking to be given it; we are asking for the right to submit a proposal, which, as the noble Lord suggested, is allowed in the Smith commission agreement. It is a double standard to allow German, Dutch and French state-owned companies to bid for the franchise but not Welsh state-owned companies. The noble Lord will understand that when talking about railways you need a long-term approach. That is why we do not think it is premature to be pushing this. I am afraid I am not convinced by the arguments put forward by the Minister and I would like to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Bourne of Aberystwyth]

61: Clause 51, page 42, line 40, leave out “Wales public” and insert “devolved Welsh”

--- Later in debate ---

Moved by

[Lord Bourne of Aberystwyth]

62: Clause 56, page 47, line 1, leave out “Wales public authority” and insert “devolved Welsh authority within paragraph (a) or (b) of section 157A(1) that is”

--- Later in debate ---

I do not expect the Minister to roll over when I, an opposition person, call something a constitutional aberration, but I would advise him to listen very carefully when the former Lord Chief Justice of England and Wales, the noble and learned Lord, Lord Judge, says that something is a “constitutional aberration”. I ask the Minister to think very carefully on this matter.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who participated in the debate on the amendments in this group relating to Clause 60. First, I understand the points made on the powers that are being brought in, specifically in relation to legislation that is having an effect beyond the particular legislature. Secondly, as a general point, I am grateful for the acknowledgement of the reams of letters that noble Lords are receiving, but I fear that probably more attention is being paid to the letters than to the debates, because the situation as regards the Assembly’s power was something that I made great play of in Committee. So the letter was not saying anything new—I mentioned this issue in Committee, so that particular point should not have taken noble Lords by surprise, as it appears to have done.

[Lord Rowlands]

But the Minister was not capable of telling us that, in fact, the Assembly had actually exercised these powers and actually had amended primary legislation and statutory instruments. He was not able to tell us that in Committee.

[Lord Bourne of Aberystwyth]

I am grateful to the noble Lord—indeed, I did go further in the letter, that is true. There would have been little point in sending it otherwise. But I was underlining the point that I thought that noble Lords were saying that I had not mentioned this in Committee, which I had.

On the situation, I can say this—and I hope that it will meet with general approval—and pick up particularly the points made by the noble Lord, Lord Murphy. I am very grateful for his wise words in developing some way forward in relation to this matter. I have spoken to my right honourable friend the Secretary of State for Wales, who has written to the First Minister and the Presiding Officer—I think significantly—in the National Assembly, to give two assurances. First, any intention to exercise the power in Clause 60 in respect of legislation made by either the Assembly or Welsh Ministers would be discussed between officials well in advance of regulations being laid. I think that this is common practice in any respect and, in relation to the particular point made about elections, this is something that is already happening. I think that sometimes noble Lords do not realise the good will that exists between officials, and indeed between the Administrations, in taking things forward.

Secondly, the Secretary of State will write to the First Minister and Presiding Officer, informing them of any intention to make regulations which affect legislation made by the Assembly or Welsh Ministers and to do so at the earliest stage before regulations are laid. It will then be for the National Assembly to act as it considers appropriate in relation to that information. I will be urging my right honourable friend the Secretary of State to seek some assurance that the Welsh Government will act in the same way in relation to matters that are decided at the Assembly which affect our legislation. It seems to me that this is only fair and deals with the issue that the noble and learned Lord, Lord Judge, was referring to in reverse. I do not think that, in essence, there is any difference between the two practices.

I hope that this will give the reassurance that is being sought in relation to the practice. I recognise the points that are being made and I think that this deals with them in that it alerts people at the earliest reasonable opportunity. I thank noble Lords for contributing to the debate. I understand the points that are being made but, in relation to that undertaking of some institutional underpinning at National Assembly level, I hope that noble Lords would accept these assurances and not press their amendments.

[Baroness Morgan of Ely]

Before the Minister sits down, I thank him for the suggestion that there will effectively be some kind of early warning system. But he suggested that it would allow the Assembly to act appropriately. What does he mean by that? What would the Assembly acting appropriately mean?

[Lord Bourne of Aberystwyth]

My Lords, I am too old a hand at devolution to suggest what would be appropriate for the Assembly; that would be a matter for the Assembly in the particular circumstances of the case. I do not think that I can second-guess what it would want to do; it would depend very much on the circumstances and the view of the Assembly on a particular matter, not to me as Minister at the Wales Office here.

[Baroness Morgan of Ely]

What tools are available for the Assembly to use in order to act appropriately? What tools does it have?

[Lord Bourne of Aberystwyth]

Again, the noble Baroness is a Member of the National Assembly; I am not. I would expect her to have a better idea of that than I do.

[Lord Rowlands]

Could they possibly be subject to legislative consent Motions, for example?

[Lord Bourne of Aberystwyth]

My Lords, I appreciate the point that the noble Lord is making, and indeed the point that the noble Baroness is making, but I suspect that this would be part of the response of the Presiding Officer to the Secretary of State now that she has the letter—or hopefully has the letter, because it has only just been sent. That would be a matter for dialogue between the Presiding Officer, First Minister and Secretary of State.

[Lord Wigley]

Before the Minister sits down, can he address one point that I raised with him? If the matters under consideration for the use of these orders are generally small, consequential, almost trivial sortings-out, why on earth is it not possible to have a consent order in the Assembly for any orders being made here and vice versa, so that everybody is built in? If they are not controversial there would be no difficulty in getting them.

[Lord Bourne of Aberystwyth]

My Lords, again, I do not want to second-guess what will happen in the discussion subsequent to the letter being received. It is a fair point, but I suppose it does raise the question of when something may be minor to one person but not another. I think that it may be easy to identify but more difficult to define what is minor. I take the point but, sometimes, there may be a need to act with great facility. The point here is that the approach that I have suggested—indeed, the approach that we are carrying forward—involves a dialogue between the National Assembly and our own Parliament, through the Wales Office, which can hopefully drive this matter forward. That is what I have been seeking to do and I hope that noble Lords will accept this as a way forward in relation to what could otherwise be a difficult issue.

Wales Bill

Lord Bourne of Aberystwyth Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 10th January 2017 Lords Chamber

Moved by

[Lord Bourne of Aberystwyth]

72A: After Clause 17, insert the following new Clause—
“Lending for capital expenditure
In section 122A of the Government of Wales Act 2006 (lending for capital expenditure), in subsections (1) and (3), for “£500 million” substitute “£1,000 million”.”

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, first, I apologise humbly and unreservedly to the whole House for not being here when the business was called.

In moving government Amendments 72A and 143B, I remind the House that I wrote to noble Lords before Christmas to set out the details of the United Kingdom Government’s and Welsh Government’s agreement of a historic new fiscal framework which sets out how the Welsh Government will be funded alongside further tax devolution. This agreement ensures that the Welsh Government have a fair level of relative funding in the long term which is fair to both Wales and the rest of the United Kingdom. This is the view of the United Kingdom Government and it is also the view of the Welsh Government, whose Finance Secretary, Mark Drakeford, has said that he regards this agreement as ensuring,

“fair funding for Wales for the long term by implementing the funding floor recommended by the Holtham Commission”.

This agreement also sets out that the Welsh Government’s overall capital borrowing limit will be increased to £1 billion, thereby doubling the existing limit as set out in the Wales Act 2014. This increase is in line with the commitment made by the Government during the passage of the Wales Act 2014 that we would increase the capital borrowing if the Welsh Government took on income tax powers.

The fiscal framework agreement sets out that Welsh rates of income tax will be devolved in 2019, and so government Amendments 72A and 143B seek to put this agreed increase into statute and provide for its commencement two months after Royal Assent, alongside the provisions in Clause 17 that provide for the removal of an income tax referendum. Alongside the statutory increase to the overall capital borrowing limit, the Welsh Government’s fiscal framework also sets out that the non-statutory annual capital borrowing limit will be increased to £150 million a year from 2019-20, which is equivalent to 15% of the overall cap. This limit aligns with that agreed in Scotland as part of the Scottish Government’s fiscal framework. As is also the case in Scotland, there remain no restrictions on how the Welsh Government can use their borrowing powers to deliver their devolved responsibilities.

The noble Baroness, Lady Morgan, and the noble Lord, Lord Wigley, have, through their Amendments 73 and 144, which were tabled before the two Governments had made this historic announcement, sought to increase the Welsh Government’s capital borrowing limit to £2 billion. I look forward to hearing the arguments that the noble Baroness and the noble Lord have in support of their amendments shortly.

Amendment 143A in the names of the noble Lords, Lord Hain, Lord Kinnock and Lord Murphy, seeks to make the majority of this Bill conditional on the Secretary of State providing an assessment of the impact of the Welsh Government’s fiscal framework and the effect this will have on differential tax receipts in Wales. Ahead of hearing what the noble Lords have to say, I would point out that as part of the Wales Act 2014 there is already a requirement on the Government to provide an annual report to both Houses on the implementation and operation of the finance elements of that Act. The Government have published two such reports already, the most recent just before Christmas, and the fiscal framework agreement restates this commitment to these reporting arrangements. The next report is expected to be published in December of this year, which I expect to be before the reserved-powers model is brought into force.

In the light of the amendments that have been put forward, I have ensured that as far as the Wales Office is concerned we will seek to provide the information that is being sought here. I remind noble Lords that there is a requirement that Government Ministers in Wales also report on this separately. That would be part of that annual report. We have sought to provide an agreement that is fair for Wales and for the rest of the United Kingdom, as I indicated, so I hope that noble Lords are reassured by what I am saying. I will of course await the contributions that are to be made.

I turn briefly to Amendment 74 in the name of the noble Lord, Lord Wigley. In advance of his comments, let me indicate that the Government’s thinking is that it is important to have a standard approach throughout England, Wales, Scotland and Northern Ireland—across the whole of the United Kingdom. As things stand, because contributions from the private sector in Wales are limited to larger employers, they are smaller than those from the rest of the country, so Wales is a net beneficiary of the way this is organised.

I turn briefly to the amendment of the noble Lords, Lord Rowe-Beddoe and Lord Wigley, and the noble Baronesses, Lady Randerson and Lady Finlay, on air passenger duty, which we also considered in Committee. The Government’s view remains that there can be no separate powers as things stand in relation to the devolved arrangements for Cardiff Airport. Obviously, I wait to hear what the noble Lords will say on that issue. In due course I will also formally move government Amendments 72A and 143B. I await contributions from the noble Lords on the other issues. I beg to move.

[Baroness Morgan of Ely (Lab)]

My Lords, I wish the Minister a happy new year. It is extremely good news that the Welsh Government were able to come to an agreement with the UK Government on the impact of partial income tax devolution to Wales and the other taxes due to be devolved as a result of the Wales Act 2014. We were all aware that there was no chance that this Bill could be passed if there were no agreement.

As financing of the Assembly is central to this Bill, it is worth pausing on the matter for a while, as it is crucial to the deliverability and provision of services in Wales. I turn first to the effective change in the method of financing Wales as a result of partial income tax devolution. It has long been argued that due to its relative degree of poverty, Wales has been short-changed over a relatively long period, in particular when compared to Scotland, on the basis of the Barnett formula. In this new deal Wales will have access to around £2.5 billion in new tax revenues from the people of Wales. The Treasury will of course be anxious to cut the Welsh block grant to an equivalent amount.

If income tax receipts were to stay constant in both Wales and the UK over the long term, this would not be a problem. However, the fact is that in future years this block grant adjustment will go up or down depending on what happens to revenues in the rest of the UK. Unless Welsh taxes are to grow as quickly as England’s, we could be in trouble in future years. I am afraid that the chances of this happening are quite remote, not because Wales is incapable of raising its game but because it starts off with much lower incomes and does not have the tools to change the situation if the UK Government implement certain policy decisions which may make sense in England but do not make sense in Wales. Fiscal responsibility on the whole remains at the UK level.

To take as an example the UK Government’s policy of increasing the level at which taxpayers start to pay income tax—the personal allowance—this is great news for people on low incomes. But, because proportionately more Welsh taxpayers than English taxpayers are taken out of paying tax altogether, less tax will be collected in Wales to pay for our schools and hospitals, and Wales will have no control whatever over this decision. To be fair to the Treasury, and to its credit, it has recognised this and has agreed to make separate block grant adjustments for each of the three bands of income—so that was a good win for Wales.

I will heap even more praise on the Treasury—which I assure noble Lords does not occur often. It has been agreed that the Barnett floor will be made permanent, which means that Wales should not lose out under this deal either now or in the future. In the past, the system has worked because, ironically, the more public funding is spent in England, the worse off Wales becomes in terms of expenditure relative to England. This led Gerry Holtham to claim in his report that Wales was being short-changed to the tune of around £300 million a year.

However, the fact is that in recent years we have had an extended period of austerity. Wales has also had relatively slower population growth, which means that for every £100 per head spent in England, the Welsh Government now receive approximately £120 per head—higher than Holtham’s suggestion that Wales needs around £115 per head to respond to the needs of the Welsh people. Of course, we are not dancing in the streets in Wales, because this really reflects a reduction in the role of the state—a principle to which we are opposed, not just in Wales but across the UK. We will start believing Theresa May’s rhetoric on the shared society when she stops shrinking the state and starts expanding it. That is worth noting. We are also aware that this situation is likely to change at some point in the future, and we need to focus on this issue.

In accepting that the Barnett floor will be made permanent, Wales will always be assured of 115% funding for its devolved public services. This is extremely welcome news, and I hope that it will go some way towards alleviating the concerns that my noble friend Lord Hain and others expressed in Committee. The slight concern I had in relation to the impact of population change, over which of course the Welsh Government have little say, has been addressed by the Barnett bonus that has been agreed to, which is a 105% multiplier to any Barnett consequentials from 2018.

On the amendments which relate to borrowing powers—my Amendment 73 and government Amendment 73A—we made it clear at Second Reading and in Committee that one of the key requirements, if there should be a partial income tax devolution to Wales, was that there should also be an increase in the amount the Welsh Government are allowed to borrow. We, along with the Welsh Government, are intensely aware of the restrictions that austerity, along with the potential serious loss of European funding, will put on our ability to invest in infrastructure in particular. We are aware that, despite having the lowest unemployment rates in the whole of the UK for the first time ever, low productivity rates are a real curse on the Welsh economy, and that infrastructure investment would go a long way towards improving the situation and increasing the GVA of Wales.

In our amendment we request that the amount allowed to be borrowed should be £2 billion. This is based on the Holtham recommendations, which take into account the fact that Wales has borrowed very little under the PFI initiative compared with other parts of the UK. The amount offered by the Treasury is £1 billion. This is £500 million more than the current amount but £1 billion less than we had hoped.

I have spoken to the Finance Minister in the Assembly and he suggested that, in the current circumstances, as we have to use revenue from the Welsh budget to support any capital borrowing, the amount we can borrow is limited because we would have to divert money from the regular running costs of the NHS, education et cetera to support that borrowing. This underlines how flawed and self-defeating the policy of austerity being pursued by this Government is.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, as a co-signatory to my noble friend Lord Hain’s amendment, I support everything that my noble friend Lord Kinnock just said about the need to review the operation of devolving some income tax to Wales.

I congratulate the Minister and the Welsh Government on producing the fiscal framework. I defy anyone to understand it on their first or indeed second reading of it, but by the time you get to the third you get the general impression that it is an improvement in the finances for Wales over the last number of years. An improvement indeed: I have been living with the Barnett formula for three decades, and there is no question in my mind that the fiscal framework now before us is an improvement. However, there is no point in improving on the block grant if you then start losing out because of the income tax side of it, and that is the point that my noble friends have put. The important issue, as I am sure the Minister would agree, is that in the annual review of financing for Wales the impact assessment of this change will be very seriously examined. I am convinced that the comparisons between Wales and the whole of England mean that Wales could be disadvantaged unless we redress that in some way.

I support noble Lords who have dealt with the issue of Cardiff Airport. My noble friend Lord Kinnock, a former European Commissioner for Transport, put it distinctly: if we could give some advantage to Cardiff with regard to long-haul flights, that would not just be a benefit for Wales; it would benefit a whole swathe of England as well. I cannot for the life of me understand why the Bristol versus Cardiff argument applies in this case. Bristol has no runway capable of taking these long-haul flights. Cardiff has, and it is a very good runway. That could help the rest of the country as well as Wales, and I think the Minister must be persuaded that right across the House today people have said that this is a reasonable amendment that would not affect the Government’s position with regard to air passenger duty generally. I think the Government are wrong on that, by the way; if you devolve it to Northern Ireland and Scotland, you should devolve it to Wales too. Still, if Bristol is blocking this proposal, in the case of long hauls there is no block that the Government can actually agree to.

I hope the Minister will look favourably on all the different points that have been made today because they are made with the knowledge that over the last weeks and months the Government have accepted different points that have been put by Members of the House across the political spectrum. The Government have conceded on many issues, and I see no reason why they could not concede on this small but important point.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on the amendments in this group. Much of their contribution has been persuasive and helpful.

I thank those who have acknowledged the progress made in relation to the fiscal framework and the agreement. I stress that the agreement has been made between the UK Government, by the Treasury, and the Welsh Assembly Government, via the Finance Minister and the Welsh Ministers in the Welsh Government. To that extent, this is something that the Welsh Government have welcomed. The noble Lord, Lord Hain, in a very fair analysis, said I had welcomed this agreement for the long term, which indeed I have. More importantly, perhaps, it was welcomed for the long term by Mark Drakeford, who said he regards the agreement as ensuring there will be,

“fair funding for Wales for the long term by implementing the funding floor recommended by the Holtham Commission”.

Those are his words. He is yet to give a full analysis, to be fair, but that is the press statement that he put out and it is notable that that is the view of the Welsh Government. I also stress that the Welsh Assembly will of course be having a say on the legislation in general when it considers the LCM, so no doubt we will be giving a view on this important part of the legislation, as well as the rest of the legislation, when it delivers that view. That is something that we anticipate.

I turn to Amendment 143A in the names of the noble Lords, Lord Hain, Lord Kinnock and Lord Murphy, which all three noble Lords have spoken to very persuasively. As I have indicated, we have a requirement under existing legislation, which we will take forward in relation to this new legislation, of an annual report that happens in November/December each year. We will seek to ensure that the impact assessment—the information that the noble Lords are seeking—is incorporated in that report. As I have indicated, it is partly the Treasury, partly the Wales Office and partly the Welsh Government; all three contribute separately to that report. I will seek to ensure that that information is there because noble Lords have made a very fair point. The Government have already published two such reports, so there is a template. Of course, I appreciate that the significance of the new income tax powers makes the next report somewhat different in nature.

--- Later in debate ---

[Lord Rowlands]

I apologise for interrupting the Minister but can he publish exactly which public bodies, which local authorities and which companies are going to pay this levy and what amounts they will pay?

[Lord Bourne of Aberystwyth]

I am sure I can and I will make endeavours to do so. Clearly, this is related to the way in which the levy operates. This is a matter being conducted from Westminster, so I will endeavour to get this information for noble Lords. What I cannot do is indicate how it will be spent. This is a matter for the Welsh Government and the National Assembly for Wales.

I turn now to Amendment 80 on air passenger duty. In doing so, I wish to say how sorry I am that the noble Lord, Lord Rowe-Beddoe, is not in his place because of indisposition. I am sure we all wish him a speedy recovery. I know that he has very strong views on this issue; I have discussed it with him on many occasions. The amendment was spoken to formidably by the noble Baroness, Lady Finlay, with other noble Lords speaking in support.

The Government have considered the case and options for devolving APD to the Assembly, as we committed to do in the 2015 St David’s Day agreement. From extensive debates in Committee, noble Lords will be aware that there is an issue about state aid, particularly in relation to but not limited to Bristol. The noble Lord, Lord Kinnock, correctly indicated a competitive element with Birmingham. There is a competitive element with airports in the United Kingdom which is obviously accentuated with those that are geographically proximate. While we remain members of the European Union there is clearly an issue with regard to state aid rules that cannot be lightly ignored. I assume that that will not be the position once we complete the Brexit discussions and implement it, but that is some way into the future. I put that important issue on one side.

[Lord Murphy of Torfaen]

Is it not the case, though, that the state aid argument would apply equally in Scotland and Northern Ireland?

[Lord Bourne of Aberystwyth]

The rules certainly apply equally throughout the EU but you have to establish that there is a competitive element. The distance from Edinburgh to Newcastle, which would be the next nearest airport where there is no devolution of APD, is considerably longer—and, I think, is a considerably tougher journey—than that between Cardiff and Bristol. I think noble Lords would accept that. I suspect that it is longer than the distance from Cardiff to Birmingham as well, so there is that difference. In Northern Ireland there is a different issue. The issue there concerns the presence of an airport in a different member state rather than within the same member state. Therefore, the rules are the same but obviously the geographical issue is somewhat different.

[Lord Kinnock]

I say to the Minister as a matter of record that I would gladly continue with the situation of the UK being subject to the state aid rules of the European Union, and retain membership, than have any other kind of relationship. That being said, however, the point made by my noble friend is absolutely valid; namely that within the United Kingdom a disparity of treatment is allowed under state aid rules because the authorities concerned have been able successfully to argue—rightly, in my view—that the market is not distorted by having arrangements in Scotland and Northern Ireland which differ from those in the remainder of the United Kingdom. Given the argument to which I referred in passing about the area to be served particularly by Cardiff if it were able to dispense with the passenger levy, I believe that under the current state aid rules it could certainly be argued that there is no distortion of the market because the form of competition that exists between international airports is not such as to be distorted by the operation of a different levy system in Cardiff.

[Lord Bourne of Aberystwyth]

My Lords, I hear what the noble Lord says. I think he would accept that it is a case of defining where there is a competitive market. The point I was making is that I think it would be much more difficult to suggest that there is a single market between Edinburgh and Newcastle in relation to air travel than there is between Bristol and Cardiff. I think that, factually, that must be the case. If you live in a suburb of Edinburgh, I do not think you would lightly consider going to Newcastle to catch a flight whereas, if you live in a suburb of Bristol, you might consider going to Cardiff and vice versa.

However, as I say, that is not the only argument that I am deploying. The point about giving a special tax status to Cardiff is the issue here. The Government cannot subscribe to that. However, we acknowledge that we will revisit air passenger duty at some stage. It may be appropriate to do so and decide how we approach it across the whole country as Brexit approaches, and in the light of decisions made on Heathrow and Gatwick. However, in relation to the specific issue, I am afraid that I cannot give any comfort to noble Lords who want me to move further than I have indicated.

[Baroness Finlay of Llandaff]

It sounds as if the Minister, in winding up on the airport aspect, is dismissing the arguments we have made that the type of flight going into Cardiff would be quite different from the type of flight going into Bristol. They are not competitive but compatible. Given that, and the arguments we have made, will the Minister undertake to meet a few of us before Third Reading? Listening to the arguments, I do not quite understand why the Government are saying anything other than that they do not want to do it and that that is it—that is what I am hearing—rather than that there is true competition between the two.

[Lord Bourne of Aberystwyth]

My Lords, if I may say so, that is a somewhat unfair caricature of what I am saying. I am saying that we want to look at this in the round. We do not want to look at it just in terms of Wales, because there is a broad issue about what we do with air travel throughout England and Wales, and that is part of a much broader consideration. So I am not dismissing it out of hand and saying that this is something that the Government do not want to look at. We want to look at it in the round and not, in this legislation, in isolation, which we cannot undertake to do.

I believe that that has dealt with the mass of the issues here. I thank my noble friend Lord Crickhowell for his contribution, and particularly for what he said about the fiscal framework and the hard work that has been put in by officials from the Welsh and UK Governments, and indeed the work of the Welsh Treasury as well as of the Treasury here. It is a signal achievement that has been welcomed in the United Kingdom and in Wales—and, noting that we have Governments of different complexions, that is no small achievement in itself. So while it may not be perfect, it is a way forward. Of course, it is subject to review. Some noble Lords perhaps hinted at what happens now. The noble Lord, Lord Hain, indicated that there would be a review once there is convergence to 115%, which is the case, but thereafter there would be one no more than once in every Parliament; we anticipate that that would be looked at within every Parliament. That is important as well, and is something that has not happened previously.

With that, I ask noble Lords and noble Baronesses not to press their amendments.

Amendment 72A agreed.

--- Later in debate ---

[Lord Kinnock]

No, it is the definition of the fact that when confronted with reality, I try to make it work. Consequently, while I retain some reservations about the whole way in which devolution is taking place in the United Kingdom, I am utterly in favour of decentralisation of administration and decision-making, which any democrat must be, but would quarrel with the sectional and selective form of devolution that is taking place. I would argue on another occasion that, had we undertaken in 1979, let alone in the 1990s, the form of devolution that I and some of my colleagues, including my noble friend from Pontypool, were then advocating, there would have been devolution throughout the whole of the United Kingdom. Perhaps we would not be confronted with the constitutional mismatches and disequilibria that confront us now, especially when we are faced with the prospect of the disaster of Brexit. I will return to that on a different occasion.

I say to the noble Lord, Lord Balfe, that the accretion of competencies that has taken place is in the nature of devolution. Indeed, the Minister could take justifiable credit for producing a Bill that assists in the clarification and strengthening of the whole devolution process. I hope that the noble Lord, Lord Balfe, will welcome the redemption of the Conservative Party, which, back in 1979, took a view that was almost as enlightened as mine on the issue. The most important point—and it is fundamental to this amendment and this Bill—is that the argument in favour of Amendment 90 is that those powers currently exist and they manifestly work. I am therefore employing, in a sense, a conservative argument in saying, “If it works, don’t fix it”.

What happens in Wales—and has happened for several years past—is that the powers advocated for retention in this current set of arrangements for devolution should remain: not that there should be mission creep, but restoration of the status quo. I say to the noble Lord, Lord Balfe, that surely, in his changed political prism, he would recognise and wrap his arms around the principle of the maintenance of the status quo that works. It is on that basis that I hope the Minister will give further consideration to these arguments and retain a set of arrangements that work, that are warmly endorsed by everybody involved in Wales, and that do not constitute the difficulty of definition suggested by the noble Baroness, Lady Finn, in discriminating between public and private employers. The terms on which this measure, if accepted, would be retained, properly describe where the responsibilities and obligations would lie and be exercised. It works now; do not fix it.

[Lord Bourne of Aberystwyth]

My Lords, I thank all noble Lords who participated in the discussion on these amendments. I will begin with Amendments 75 to 77 and 79, which seek to broaden the circumstances in which the Assembly could legislate in relation to reserved matters. I will first deal with an issue that was raised by the noble Lord, Lord Wigley, concerning the phrase,

“ancillary to a provision of any Act”.

I took him to mean that this was not provided for in the Bill. It is in fact expressly provided for in Clause 3, in subsections (3)(a) and (b) of new Section 108A. It says,

“subsection (2)(b) does not apply to a provision that —

(a) is ancillary to a provision of any Act of the Assembly or Assembly Measure or to a devolved provision of an Act of Parliament, and

(b) has no greater effect otherwise than in relation to Wales, or in relation to functions exercisable otherwise than in relation to Wales, than is necessary to give effect to the purpose of that provision”.

So there is express provision in relation to “ancillary to” and how that would operate, and I hope he finds that of some comfort.

[Lord Wigley]

I am grateful to the Minister. He will see that my amendment in fact applies to subsection (2)(c) of new Section 108A, in Clause 3, and therefore extends the provision.

[Lord Bourne of Aberystwyth]

I appreciate that, but I think the noble Lord made a broader point about “ancillary to” not being provided for. I shall move on, if I may, to deal with some of the issues that noble Lords raised about this part of the Bill.

The amendments tabled are similar to those debated in Committee where, as has been acknowledged, I provided noble Lords with a detailed explanation of how the purpose test in the new model is intended to operate. As I made clear then, for a challenge of ultra vires under the reserved powers model to succeed, a case would need to be made that an Assembly Act provision was outside competence because its purpose related to a reserved matter. I think it is common ground among noble Lords that that much is appropriate. If such a case could not be made, the provision would satisfy the requirements of new Section 108A(2)(c) and would be within competence, provided that it satisfied the other requirements of new Section 108A.

In response to the noble Baroness, Lady Morgan, I want to clarify the important issue of how the Assembly can legislate in a way that is ancillary to a non-reserved provision but affects the law on reserved matters. As I set out in Committee, the purpose test is crucial to determine whether a provision in legislation is within the Assembly’s competence. Only once a provision’s purpose has been determined as not relating to a reserved matter would an assessment need to be made of whether it modifies the law on reserved matters and, if so, whether it is ancillary to a matter that is not reserved. If a provision is ancillary, it will also, as I have indicated, be subject to an additional test of having no greater effect on reserved matters than is necessary to give effect to the provision’s purpose in order to be within the competence of the Assembly.

In Committee I gave the House some examples of how the purpose test might be applied, and in particular how a provision that could engage reservations would be within competence if it had a devolved purpose and was ancillary to that purpose either by being appropriate for the enforcement of such provision or otherwise to give effect to it, or was consequential or incidental. Those examples were hypothetical but included: a requirement for tenants to insure their residence; the creation of competitive tendering requirements for local authorities; an extension to the jurisdiction of the Agricultural Lands Tribunal for Wales; and information sharing between Welsh schools and Estyn. In each case we argued that, as the purpose of the provision was devolved and the provision could be characterised as ancillary, it was within devolved competence if it had no greater effect than necessary on the reserved matter. Potentially any provision in Assembly Bills about enforcement would engage the reservation for the courts and their jurisdiction, or that for civil or criminal proceedings, but provided that it is required to enforce or give effect to a devolved purpose, such provision will be within competence even though it impacts on the law on reserved matters, subject always to the test that it has no greater effect than necessary on the reserved matter.

Comparisons have been made with the settlement in Scotland and how this “greater effect than necessary” test applies to it but, when considering that, it is important to note that the restriction on legislating about the law on reserved matters in paragraphs 1 and 2 of new Schedule 7B gives the Assembly wider scope to modify the law on reserved matters than the Scottish Parliament is afforded under paragraphs 2 and 3 of Schedule 4 to the Scotland Act 1998. That is because issues such as private law and criminal justice are reserved in Wales, but we recognise that the Assembly needs to be able to enforce its laws by amending the law in relation to these and other reserved matters.

We have used the same definition of “ancillary” throughout the Bill. If a provision falls within that definition then the Assembly can legislate about England by virtue of the exception to the competence test in Section 108A and can modify the law on reserved matters if it complies with the restriction in Schedule 7B. The Government do not accept the argument that the test of “no greater effect on reserved matters than is necessary to give effect to the purpose of the provision” is of less consequence in Scotland. It is true that Schedule 7A in the Wales Bill contains more reserved matters than Schedule 5 to the Scotland Act 1998, but in Scotland this test nevertheless provides an important but proportionate limitation on competence. The large number of orders made under Section 104 of the Scotland Act 1998 is in part a result of the UK Government and the Scottish Government recognising how far modification to the law on reserved matters can go in Acts of the Scottish Parliament, and that modifications to the law on reserved matters that fall outside the definition can and should be made only by the UK Government and this Parliament.

Concerns have been raised that defendants will always be able to challenge the validity of Assembly Act provision as a basis for an enforcement action on the basis that this has a greater effect than necessary. We believe that, provided that the response is proportionate, this will not be the case. The frequency of such challenges and their merits will of course depend on how the Assembly chooses to legislate in future, and indeed the view of the courts if these matters were subject to challenge. Nevertheless, we consider that the legislative competence constraints set out in the Bill give the Assembly sufficient latitude to create and enforce devolved policies within the shared legal system of England and Wales.

I turn to government Amendment 78B, which is technical and is proposed in the light of issues raised in particular by the First Legislative Counsel for Wales. Sub-paragraphs (2) and (3) of paragraph 6 of the new Schedule 7A to the Government of Wales Act 2006, as inserted by Schedule 1 to the Wales Bill, sought to clarify that the Assembly is able to provide for devolved decisions or orders to be appealable to a court or to require a court order or be made by a court on application. These were included in order to provide helpful clarifications about the Assembly’s powers in respect of the courts, following the removal of the so-called necessity test and the subsequent application of the purpose test. Having examined these provisions in more detail, the First Legislative Counsel has argued that the reservation for courts, including their jurisdiction, might have the effect of restricting the ability of the Assembly to legislate for the procedural effectiveness of a new sort of order, or decision, related to a devolved matter.

The First Legislative Counsel’s analysis identifies paragraph 6(2) and, with it, paragraph 6(3) as unnecessary. Although the provision was intended to address a specific problem, I am persuaded by that very helpful analysis provided that it does not in fact require bespoke provision to address it. I accept the argument that the purpose test would encompass the sort of legislative provision that would otherwise be captured under paragraphs 6(2) and (3) and that, accordingly, they would arguably cast doubt on the breadth of the purpose test. I am satisfied by the First Legislative Counsel’s argument, and government Amendment 78B therefore proposes their removal. In light of that amendment, I think Amendment 79, proposed by the noble Baroness, Lady Morgan, becomes unnecessary, but of course that is a matter for the noble Baroness.

Amendment 78 is an opposition amendment seeking to place a new duty on the Secretary of State for Wales to establish a working group to review Schedule 1 in relation to reservations. I am most grateful for the comments and guidance on that from the noble Lord, Lord Elis-Thomas, who has very broad experience of this as Llywydd and as a Member of this House. We have had bodies a-go-go looking at the area of devolution. I served with the noble Baroness, Lady Morgan, some 20 years ago on the National Assembly advisory group, and since then there have been other bodies: the noble Lord, Lord Rowlands, sat on the Richard commission; there has been the Emyr Jones Pary review; the Holtham commission; the Silk report and the St David’s Day agreement. I agree with the noble Lord, Lord Elis-Thomas, that at the very least we have reached the end of this chapter and now is the time for us to concentrate on the things that I am sure the people of Wales, and indeed its Assembly Members, want to concentrate on—the delivery of public services and a sound economy. Some powerful arguments were put forward by the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Elystan-Morgan. I thank the noble Lord for his kind comments and hope that I would be half as charitable if someone else should appear late as he was to me. I am most grateful for his comments.

I turn to government amendments to Schedule 1, which establishes a clear boundary between the devolved matters that are the responsibility of the National Assembly for Wales and the Welsh Government and those that are the responsibility of this place and the UK Government. I can confirm, however, that I intend to bring forward amendments at Third Reading to change the status of the Open University. The noble Baroness, Lady Randerson, is not in her place at the moment, but I thank her in particular for her assistance on this issue. I acknowledge and recognise the important role that the Open University plays in Wales and therefore propose that it is dealt with in relation to devolved areas in the same way as universities and higher education institutions in Wales.

I turn to amendments to reservation M4 on developments and buildings. I will deal first with an issue raised by the noble Baroness, Lady Morgan, in Amendment 91 on the legislative competence relating to railways. I thank the noble Baroness for her comments. We propose that planning in relation to railways that start, end and remain in Wales should be devolved. I should also like to bring forward Amendment 91B giving the Assembly legislative competence in relation to the community infrastructure levy. The noble Baroness also kindly acknowledged this. Turning to Amendment 92A—I understand that the noble Lord, Lord Wigley, did not speak to Amendment 92, so I will not spend too much time on it—we are proposing that such compensation should be devolved, except in relation to the calculation of the compensation, which I think the noble Lord appreciates.

The noble Lord also indicated that he would not speak to his amendments on water and sewerage, so I will not deal with that area.

Regarding changes to the reservation in Part 1 on Crown property, I will just formally move those amendments, as I do not think they were the subject of debate.

On the issue of anti-social behaviour orders and the provisions of Part 5—which the noble Lord, Lord Thomas of Gresford, indicated he felt should be devolved—I was persuaded by the noble Baroness, Lady Morgan of Ely, in relation to this and to the Dangerous Dogs Act and so on, and by the more general comment from the noble Lord, Lord Kinnock, that, where something is working, one should not to seek to overturn it unnecessarily. I think this area is working very well. We are proposing to devolve ASBOs in relation to housing. This has been acknowledged. Elsewhere—and I regret that some noble Lords will be disappointed—we shall not be going further.

The noble Baroness indicated that there has been movement on heating and cooling, so I will formally move those amendments.

The opposition amendment from the noble Baroness, Lady Finlay, seeks to remove the reservation for the sale and supply of alcohol regulated under the Licensing Act 2003. Section B17 of new Schedule 7A to the Government of Wales Act 2006 in the Bill preserves the current devolution settlement in respect of all matters in the 2003 Act covering the sale and supply of alcohol, the provision of regulated entertainment and of late night refreshment. The 2003 Act provides a framework for licensing based on the promotion of four licensing objectives: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. As such, alcohol licensing is inextricably linked to policing and the criminal justice system. While they are reserved, alcohol licensing should also continue to be reserved.

The police have a crucial role in the licensing system, including in decisions to grant or refuse applications for licences, to review licences and to close problem premises. The police and criminal justice system bear a significant proportion of the costs associated with alcohol consumption—£11 billion of the £21 billion overall annual cost to society. That said, the noble Baroness is widely, and quite rightly, recognised for her campaigning on the effects of alcohol misuse. Of course, these affect people in England too—in parts of England in a very similar way to parts of Wales. I should like to place on record my enormous respect for the work she does and express the hope that she will continue to campaign on this issue. However, we feel that this is something that should be reserved to the Westminster Government.

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Moved by

[Lord Bourne of Aberystwyth]

78A: Schedule 1, page 52, line 30, at end insert—
“2A(1) Paragraph 1 does not reserve property belonging—(a) to Her Majesty in right of the Crown,(b) to Her Majesty in right of the Duchy of Lancaster, or(c) to the Duchy of Cornwall.(2) Paragraph 1 does not reserve property belonging to any person acting on behalf of the Crown or held in trust for Her Majesty for the purposes of any person acting on behalf of the Crown.(3) Sub-paragraphs (1) and (2) do not affect the reservation by paragraph 1 of—(a) the hereditary revenues of the Crown,(b) the royal arms and standard, or(c) the compulsory acquisition of property—(i) belonging to Her Majesty in right of Crown;(ii) belonging to Her Majesty in right of the Duchy of Lancaster;(iii) belonging to the Duchy of Cornwall;(iv) held or used by a Minister of the Crown or government department.2B_(1) Paragraph 1 does not reserve property held by Her Majesty in Her private capacity.(2) Sub-paragraph (1) does not affect the reservation by paragraph 1 of the subject-matter of the Crown Private Estates Acts 1800 to 1873.”

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Moved by

[Lord Bourne of Aberystwyth]

81A: Schedule 1, page 59, line 13, after “to” insert “4 and”

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Moved by

[Lord Bourne of Aberystwyth]

83: Schedule 1, page 61, line 3, at end insert—
“ExceptionIn the case of a betting premises licence under the Gambling Act 2005, other than one in respect of a track, the number of gaming machines authorised for which the maximum charge for use is more than £10 (or whether such machines are authorised).”

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Moved by

[Lord Bourne of Aberystwyth]

85A: Schedule 1, page 67, line 11, after “licensing” insert “and the regulation of works that may obstruct or endanger navigation,”

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Moved by

[Lord Bourne of Aberystwyth]

87A: Schedule 1, page 70, line 34, at end insert—
“The reference to maritime search and rescue does not reserve participation by Welsh fire and rescue authorities in maritime search and rescue responses.”

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Moved by

[Lord Bourne of Aberystwyth]

89A: Schedule 1, page 72, line 25, at end insert—
“The deferral of payment due to a local authority from an individual in respect of costs of, or financial assistance for, meeting that or another individual’s needs for care or support.”

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Moved by

[Lord Bourne of Aberystwyth]

90A: Schedule 1, page 81, line 25, at beginning insert “Services and facilities relating to adoption,”

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Moved by

[Lord Bourne of Aberystwyth]

91A: Schedule 1, page 82, line 25, after “railways” insert “other than railways that start, end and remain in Wales”

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Moved by

[Lord Bourne of Aberystwyth]

92A: Schedule 1, page 82, leave out line 29 and insert—
“185_ Compensation in respect of—(a) the interference with rights in land by exercise of a statutory power;(b) depreciation in the value of land as a result of works or land provided or used in the exercise of a statutory power.”

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Moved by

[Lord Bourne of Aberystwyth]

93A: Schedule 1, page 82, line 34, at end insert—
“but only in relation to specified Crown land and specified undertaker land.”

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Moved by

[Lord Bourne of Aberystwyth]

104C: Schedule 2, page 88, line 23, at end insert “but does include the compulsory acquisition of property”

Wales Bill

Lord Bourne of Aberystwyth Excerpts

Report: 2nd sitting (Hansard continued): House of Lords
Tuesday 10th January 2017 Lords Chamber

Moved by

[Lord Bourne of Aberystwyth]

106A: Schedule 2, page 93, line 20, at end insert—
“( ) Paragraph 8(1)(c) does not apply to a provision to which paragraph 8(1)(a) applies or would apply but for sub-paragraph (2) of this paragraph.”

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, the first amendment in this group, Amendment 106A, is a technical one. It responds to a concern raised by the Welsh Government about the way in which the restrictions on the Assembly legislating on reserved authorities in paragraph 8(1) of new Schedule 7B apply to the seven reserved authorities listed in paragraph 9 of the new schedule.

The Assembly is prohibited from legislating to confer or impose functions on a reserved authority without consent by virtue of paragraph 8(1)(a), and from legislating to confer or impose functions that are specifically exercisable in relation to a reserved authority without consent by paragraph 8(1)(c). Paragraph 9(2) excepts a small number of reserved authorities from the paragraph 8(1)(a) restriction, but there is no similar exception in relation to paragraph 8(1)(c). That could create an anomalous situation where the Assembly could impose functions in devolved areas on any of the authorities listed in paragraph 9(2), but could confer a power on Welsh Ministers to do so only with consent.

To think of a tangible example, the Assembly could confer on Welsh Ministers a power to issue guidance to any of the seven reserved authorities listed in paragraph 9. The authority would be subject to a duty to have regard to any such guidance when exercising its devolved functions. As the Bill stands, the ministerial consent requirement would not apply to the provision in so far as it concerns the duty on the reserved authority to have regard to the guidance. But the ministerial consent requirement would apply to the provision in so far as it concerns the conferring of a power on Welsh Ministers to issue the guidance. The effect of the amendment is that the requirement for UK ministerial consent does not apply if the relevant provision has the effects described in both paragraphs 8(1)(a) and 8(1)(c) of new Schedule 7B. Following our example, the Assembly would not require consent to create a power for Welsh Ministers to issue guidance to an authority listed in paragraph 9 or create a duty on such an authority to have regard to the guidance.

Government Amendments 136 to 141 extend the application of paragraph 6 of Schedule 7 to a public authority. Paragraph 6 currently preserves the validity of, and provides continuity for, actions taken by a Minister of the Crown in respect of functions which are transferred to Welsh Ministers by the Bill. This includes actions taken by a public authority exercising delegated functions of a Minister of the Crown. However, there are functions currently conferred directly on rather than delegated to public authorities such as the Oil and Gas Authority and the Marine Management Organisation which are being transferred to the Welsh Ministers in the Bill. Such functions are not currently covered by paragraph 6. At the point of transfer of these functions to the Welsh Ministers, there may be actions in progress which will need to be continued and completed post-transfer. The amendments made to paragraph 6 preserve the validity of actions taken by a public authority before the date of transfer and provide continuity for anything that is in the process of being done by a public authority at that point.

I look forward to hearing from the noble Baroness, Lady Morgan, and the noble Lord, Lord Wigley, on their amendments in this group. I beg to move.

[Lord Wigley (PC)]

My Lords, I listened with great interest to the rationale given by the Minister. I will need to read it again in Hansard to comprehend it fully, but I am sure that it does what he hopes it does.

My Amendment 108 was tabled following concerns expressed to us by the Welsh Language Commissioner, Meri Huws, regarding the Bill’s potential effect on the National Assembly’s power to legislate on matters pertaining to the Welsh language. It was raised in Committee, but I am concerned that there appears to be a lack of appreciation of the points put to us by the commissioner, and which have been addressed by the amendments put forward by my colleagues in Plaid Cymru. The commissioner herself is frustrated that the Government do not seem to have engaged with the substance of the case, which she has made to them as well as to us.

The possible effect of Schedule 2 to the Bill is that, when the National Assembly wishes to legislate for the Welsh language, it will require the consent of the relevant UK Minister to confer, impose, modify or remove within that legislation the Welsh language functions of Ministers of the Crown, government departments and other reserved authorities. Under the current settlement, ministerial consent is required only when legislating to impose Welsh language functions on Ministers of the Crown. The ministerial consent provisions of the Wales Bill in relation to the Welsh language apply to a wider range of persons than is currently the case. The new legislation is therefore more restrictive on the Assembly’s powers than is the status quo and this represents a retrograde step.

Let us consider a practical example. The Welsh Language Commissioner is already engaged in the statutory processes that would result in placing a duty on bodies such as Her Majesty’s Revenue & Customs, the Crown Prosecution Service, Ofcom and the BBC to adopt Welsh language standards. This amendment removes the requirement for ministerial consent for Acts of the Assembly affecting functions of reserved authorities, public authorities and Ministers in circumstances where the Act of the Assembly relates to a Welsh language function. I am sure that the House will agree that such a provision is fair and reasonable, given that the Welsh language is quintessentially a devolved issue. Allowing Ministers and public authorities based outside Wales to second-guess National Assembly policy on the Welsh language in Wales, a policy area on which they have little if any informed opinion, is a formula for acrimony and dispute and would reopen language tensions which have abated to a significant extent over recent years.

In the House of Commons debate on the Bill, the Government claimed to offer some clarity and reassurance on the issue by saying that there is nothing in the Bill which affects the Welsh language retrospectively, and that of course is true. However, the Minister went on to confirm that if a future Welsh language measure were to be proposed, it would have the effect which we have pinpointed. Consent would be required to add new public authorities other than Wales public authorities. It would therefore affect any future Welsh language legislation applicable to those areas. The Minister’s words offered no reassurance or indeed any justification as to why this Bill should include such a retrograde step.

A briefing paper produced by the National Assembly for Wales research service confirms our fears and outlines that, under the Bill as it currently stands, there will be a loss of legislative power relating to the Welsh Language (Wales) Measure 2011. My colleagues in the National Assembly are furious about this, and it is not only Plaid Cymru AMs who feel strongly about the matter. I shall quote from that briefing paper: “Part 4 of the Welsh language measure allows Welsh language standards to be imposed upon public bodies. Some of the bodies captured by Part 4 would be reserved authorities under the Wales Bill. This means that UK Government consent would be needed before Welsh language standards could be imposed upon them”. There is a consensus that this is yet another blatant rollback and a significant reduction in the ability of the National Assembly for Wales to be able to legislate on its own language—a subject matter that is, for very obvious reasons, devolved.

Perhaps I may say in conclusion that on item after item that we have raised today, including the industrial relations amendment moved earlier by the noble Lord, Lord Hain, and lost in a tied vote, the Government have not been willing to move one inch to reduce the powers rollback being instituted by this Bill. The Bill started its passage with a lot of good will, in the belief that the Government would seek to find common ground. Failure to do so has led to a growing bitterness across the parties, which I greatly regret. I urge the Minister to reconsider the Government’s position even at this late stage and to rid the Bill of this devolution rollback and to accept our amendment today, even if they need to amend it themselves when the Bill returns to the Commons.

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I have a degree more sympathy with the UK Government in the two other categories listed by the Minister in his letter: namely, where legislative and executive boundaries are not coterminous and in areas where competence does not match geographic extent. But I ask him to outline how Scotland deals with a similar situation. The general principle should be that executive powers in devolved areas should be exercised by Welsh Ministers. Again, I ask why the Government have such difficulty with this simple proposition.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, and the noble Baroness, Lady Morgan, for speaking to their amendments, which I shall deal with in turn. I therefore turn first to Amendment 108 tabled in the name of the noble Lord, Lord Wigley. In beginning my response I should say that I did not recognise the caricature of the Government not listening and not responding during the course of this legislation; I think that that was uncharacteristically unfair of the noble Lord. We have listened very carefully and in many areas have given ground, as he himself has previously acknowledged. Perhaps I may also say in opening that we are certainly happy to engage with the Welsh Language Commissioner, Meri Huws, for whom I personally have massive respect. I do not think that we have failed to engage, but if there is any issue that she wants to discuss further, I will be more than happy to talk to her about it.

The amendment seeks to remove the requirement for an appropriate Minister to consent where the Assembly seeks to amend, remove or impose new functions on a reserved authority or a Minister of the Crown where those functions relate to the Welsh language. I think that there is agreement between us on the intent of the clause in the Bill.

Throughout the development of the Bill, we have given careful thought—absolutely correctly—to the Welsh language and taken steps to minimise the effects of the new reserved powers model on the Assembly’s legislative competence for the language, but obviously there are issues in relation to reserved bodies. For example, while paragraph 197 of new Schedule 7A reserves the functions of authorities named or described in that schedule, we have inserted an exception for Welsh language functions in paragraph 199. This means that, under the new model, the Assembly will be able to legislate to confer Welsh-language functions on particular authorities, such as the BBC and police and crime commissioners, as the noble Lord, I think, indicated in his speech, subject to the consent of a Minister of the Crown.

We would anticipate that this is not going to be unreasonably withheld, but I think the noble Lord will understand that, where we have a process of reserving issues, and in relation to every other area, we have a provision that devolved areas are quite distinct, so we need to make provision for the Welsh language to make sure that reserved authorities are not put in an invidious position. The noble Lord’s amendment would cut across one of the underlying core principles of the Bill: the Assembly should not be able to impose burdens on non-devolved bodies without agreement. This goes to the core of the legislation. To add a specific exception to the consent process for the Welsh language would undermine that principle.

The noble Lord is absolutely right in relation to the Welsh Language (Wales) Measure 2011. It does not affect matters that are already settled, but he is right that in so far as there were to be new regulations under the measure, they would be subject to the new provisions of the clause if it is part of subsequent legislation.

[Lord Wigley]

Am I understanding correctly that the Minister is in fact confirming the fact that, compared to the position when the 2011 measure was passed, there is a rollback of powers as far as the Assembly is concerned in relation to imposing Welsh language conditions on such bodies?

[Lord Bourne of Aberystwyth]

My Lords, we are not comparing like with like. There is a significant amount of legislation here that is actually devolving new powers to the National Assembly. As I have indicated, the noble Lord’s analysis of what the legislation is seeking to do is correct; I am not seeking to deny that.

Amendment 109, moved by the noble Baroness, Lady Morgan, again seeks a blanket transfer of pre-commencement Minister of the Crown functions and prerogative functions exercisable in devolved areas to the Welsh Ministers, an issue we debated in Committee. I hope noble Lords have read my letter of 12 December to the noble Baroness which explained the Government’s approach on this issue. This has not changed.

I will give an outline of what happens next, which I think may provide some reassurance to the noble Baroness. In preparing the Bill we have undertaken substantial work with departments across Government to identify the remaining functions exercised by Ministers of the Crown in devolved areas. Noble Lords will appreciate that most such functions have already been transferred by transfer of functions orders made since 1999. In the light of the existing transfer of functions orders and the outcome of this work, we have concluded that the blanket transfer proposed would not deliver the clarity that we are looking to deliver through the Bill. New Schedule 3A to the Government of Wales Act 2006, inserted by Clause 20 of the Bill, sets out the Minister of the Crown functions in devolved areas that will in future be exercised concurrently or jointly with the Welsh Ministers.

A handful of pre-commencement functions will continue to be exercised by a Minister of the Crown solely. These are set out in paragraph 11 of new Schedule 7B. I agreed in Committee to take a further look at these functions, and as a result we have, through Amendments 107B and 107C, narrowed the range of functions in the Marine and Coastal Access Act that require consent for modification. As a corollary to this, in Amendment 114A, we have added some functions under this Act and regulations made under it to the list of functions jointly exercisable by Ministers of the Crown and Welsh Ministers, reflecting the interconnectedness of decision-making in the Welsh zone.

The remaining Minister of the Crown functions in devolved areas will be transferred to Welsh Ministers by order, and we intend to make that order once this Bill has been enacted. I shared a draft list of the functions that will be included in this order with noble Lords before Second Reading, and we are continuing to discuss this list with the Welsh Government so that we can include any further functions that we identify. Any such order will be subject to the affirmative procedure in both Houses of Parliament, so noble Lords will be able to debate the content in more detail at that stage.

Once we have made this order it will be absolutely clear which functions have been transferred to Welsh Ministers, something that a blanket provision would not achieve. In addition, a blanket provision would not provide the benefits of concurrent exercise of some powers—for example, enabling Ministers in both Governments to give grants. I will write to the noble Baroness about the issue she raised concerning Scotland, about which I am uncertain, and copy that to other noble Lords who have participated in the debate.

The amendment also includes prerogative functions in so far as they are exercisable in devolved areas. On examining the range of those functions, we concluded that none applied to devolved matters, and therefore have not acted on that.

The noble Baroness talked about the 35 more functions identified by the Welsh Government. As I said, we are looking at additional functions as identified by the Welsh Government and discussing those with them. We will consider them in light of the order that will need to be made. As I said, this will be subject to debate.

In conclusion, regarding the Welsh language, I am very happy for the Wales Office to engage with Meri Huws and perhaps provide her with more certainty about how this would be carried forward. I can assure the noble Lord, who knows my approach to the Welsh language, that there is no malign intent here at all. The language is central to everything that happens in Wales, and thank goodness it is no longer the party-political football it once was. The Wales Office, as you can imagine, is at the moment very much wedded to that view.

I will endeavour to update the noble Baroness on the Scotland issue, but I will also write to her and to noble Lords more generally about how the discussion with the Welsh Government is going regarding those functions. With that, I ask the noble Lord to withdraw the amendment.

[Baroness Morgan of Ely]

Before the noble Lord sits down, may I be clear? There is going to be this transfer after the Bill, but what if we find some more things down the back of the sofa later on? Is there a facility for us to transfer later on the things that we may not have found in this initial sweep-up? It is a big place, the Civil Service.

[Lord Bourne of Aberystwyth]

My Lords, I am trying to speculate what the noble Baroness might be finding behind the sofa at that stage. I hope that the process would have delivered most of the important issues, but in so far as something is discovered later on, I am sure we will be able to engage with the noble Baroness—or whoever else discovers it behind the sofa—and come to some measure of agreement. It is difficult to anticipate what that issue would be, but if it clearly should be the subject of an order, then I do not see any problem.

[Lord Wigley]

If in fact there is something that has not been foreseen, do we have the order-making facility that can cover matters that have not been specified in the Bill?

[Lord Bourne of Aberystwyth]

My Lords, I am not sure whether the noble Lord is referring to the specific order that would come forward, in which case there would be the ability—subject to affirmative procedure, presumably—to withhold consent, unless we were in listening mode, if that should happen in an extreme position. But if it happens after that procedure, as I have indicated to the noble Baroness, I would be very happy to engage and discuss how we could deal with that. I am uncertain whether there is a particular procedure, but I would anticipate that there is. There must be a way to transfer functions by order, which we have done during the course of successive Governments. So I think the procedure is there, and if I can give that undertaking, I am very happy to do so.

Amendment 106A agreed.

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Moved by

[Lord Bourne of Aberystwyth]

106B: Schedule 2, page 93, line 27, at end insert—
“( ) Paragraph 8(1) does not apply in relation to the funding of police and crime commissioners through council tax precepts.”

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Moved by

[Lord Bourne of Aberystwyth]

110: Schedule 4, page 100, line 36, leave out “restrictions on time spent at sea—appeals” and insert “licensing of vessels receiving trans-shipped fish”

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Moved by

[Lord Bourne of Aberystwyth]

114B: Schedule 6, page 114, line 26, at end insert—
“8A_ In section 158 (interpretation), in subsection (1), at the appropriate place insert— ““property” includes rights and interests of any description,””

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Moved by

[Lord Bourne of Aberystwyth]

136: Schedule 7, page 137, line 15, after “Crown” insert “or other public authority”

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Moved by

[Lord Bourne of Aberystwyth]

143B: Clause 62, page 50, line 22, leave out “section 17” and insert “sections 17 and (Lending for capital expenditure)”

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Moved by

[Lord Bourne of Aberystwyth]

145: Clause 62, page 50, line 24, at end insert—
“( ) section (Water and sewerage)(2);( ) sections (Water protocol) and (Reciprocal cross-border duties in relation to water).”

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[Lord Wigley]

My Lords, this is the last amendment on our list today, Amendment 146 in my name, which seeks to ensure that UK Ministers may use regulations to commence a number of provisions of the Bill only after consultation with Welsh Ministers and the Presiding Office of the National Assembly for Wales. Incidentally, harking back to what we were talking about a moment ago, order-making capacity, I understand that unless there is a specific order-making capacity in primary legislation it is not possible to bring forward orders. However, we can look at that outside the Chamber.

From the outset, I concede that this amendment would not, in isolation, achieve what I am seeking to do. It is, broadly speaking, part of a series of amendments that I have tabled at earlier stages, which aim to stop UK Ministers riding roughshod over the National Assembly for Wales by using secondary legislation to commence, amend or repeal legislation affecting our national Parliament without its consent. It is that question of establishing a system of prior consent that is central to this amendment.

The issue that triggered my concerns, and the concerns of many Peers across these Benches, was the inclusion of Henry VIII powers within this Bill. Since the Minister has felt the full force of the former Chief Justice of England and Wales, the noble and learned Lord, Lord Judge, not once but twice on this issue, I know that he is well aware of the arguments. I will therefore keep my comments on this matter to a minimum. However, I want to use the amendment to call on the Minister to hold true to his word, and the word of his colleagues, to create a permanent devolution settlement, which means that the democratic Parliament of Wales in Cardiff Bay has the absolute authority over the laws that it makes.

I shall not press the amendment to a vote, but I remind the Minister of the comments made regarding Henry VIII powers in our previous debate. In particular, I remind him of the response of the noble and learned Lord, Lord Judge, to the Minister’s two assurances—that any regulations would be discussed by officials well in advance of coming into force and that the Secretary of State would write to the First Minister and Presiding Officer notifying them of the intention to bring forward regulations. Undoubtedly, these are welcome concessions, although they will not appear in the Bill. However, this Bill, in the Government’s own words, is meant to be about creating a clear, working, legal settlement between two Parliaments. As the noble and learned Lord, Lord Judge, noted during our last debate, the Minister’s so-called solutions to our concerns regarding Henry VIII powers are,

“legally ... completely irrelevant”.—[Official Report, 14/12/16; col. 1350.]

I shall shortly ask leave to withdraw this amendment but, before doing so, I ask the Minister to consider once again removing or amending all clauses in this Bill which allow Westminster to take steps that can be interpreted as riding roughshod over the democratically elected Parliament of Wales—in other words, the need for consent, discussion and agreement prior to using powers that can have quite a draconian effect. I beg to move.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Wigley, for moving the last amendment for business today. First, on the point that he made in relation to orders, I believe that there is an order-making power in Section 58 of the Government of Wales Act 2006 that can be used—but I shall cover that in writing to noble Lords if I might, because there are a variety of issues on which I want to write to noble Lords.

I understand the point that the noble Lord made on the need for partnership working between the two Governments, which, if I may say so, has been exemplified in relation to the fiscal framework, where there has been a very successful partnership which may have confounded expectations. But yes, of course, we need to extend that across the piece so that it does not apply just in relation to that issue, important though it is. It needs to be done on a broader front. The other point is, when we have had parties of different political complexions in government here and in Wales, it has been illustrative of the fact that we have been able to move things forward in a demonstrable way—not always agreeing on everything, clearly, but agreeing on an awful lot, and the way forward in relation to the legislation.

I take to heart very much what the noble Lord said about Henry VIII powers, which certainly need to be limited in scope. I think that the noble and learned Lord, Lord Judge, said that it was politically astute but legally not worth the paper that it was going to be written on, to be absolutely fair. That was his judgment—and of course he has great authority and knowledge on these matters, as I regularly acknowledge.

The amendment seeks to require the Secretary of State to consult the Welsh Ministers and the Assembly’s Presiding Officer before making regulations to commence provisions under Clause 62(4). Clause 62 provides for those provisions which need to be brought into force quickly after the Act is passed to come into force on the day the Act is passed, through subsection (1), or two months after it is passed, through subsection (2). The Assembly will, for example, early on, if it wants to do so, be able to change its name at any time after two months from Royal Assent.

Of course, Clause 62(3) already imposes a duty, which the noble Lord did not mention, on the Secretary of State to consult the Welsh Ministers and the Assembly’s Presiding Officer before commencing the new reserved powers model—that is already in the clause—on the “principal appointed day”. That is already there and of course there are good reasons for that. The new devolution model will fundamentally alter the landscape within which the Welsh Government make policy and the Assembly makes legislation. It will require policymakers and legislators to get to grips with a new settlement, framed in a very different way from the current one. It is only right, therefore, that the Bill places a statutory duty on the Secretary of State to consult both the First Minister and the Presiding Officer before bringing the new model into force.

For other provisions in the Bill, we will of course work closely with the Welsh Government, as we are doing, and the Assembly Commission to ensure that the transition is as smooth as possible as the Assembly takes on the important new powers that the Bill will deliver. Of course, the majority of these provisions devolve further powers to the Assembly and Welsh Ministers and are intrinsically linked to the new reserved powers model. I anticipate—although clearly this will be subject to discussion with the Welsh Government—that most if not all of them, other than those limited ones I have indicated, will come into force on the same day as the reserved powers model. But that is a matter for discussion.

I believe that a separate consultation on the commencement of these provisions would be unnecessary as it is something that is either provided for, as it is in relation to the important issue of reserved powers, or will be included in that discussion in practice between the two separate Governments as things progress. On that basis I ask the noble Lord, Lord Wigley, to withdraw his amendment.

[Lord Wigley]

My Lords, I am grateful to the Minister for that considered response. I accept entirely that there are broad-brush consultation provisions in the Bill for when the first steps are taken to bring in the new order that will follow the Bill coming into force. There will, however, be cases that arise from time to time when new orders are forthcoming and when there will be a necessity for there to be at least a notification—I hope there will be a consultation—before that happens. I hope, therefore, that in the initial consultation to which the Minister referred a moment ago, there might be established a procedure—a protocol, if you like—for the way in which such orders will be handled in future, and, built into that procedure, an agreement that there will be advance warning and consultation and that views can be taken on board. That would be a very helpful move forward. Having said that—I note that the Minister is thinking carefully about it, judging by the look on his face, and I will be very grateful if he does—on that basis I beg leave to withdraw the amendment.

Wales Bill

Lord Bourne of Aberystwyth Excerpts

3rd reading (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Lord Puttnam (Lab)]

My Lords, very briefly, I support what the noble Baroness has just said. I am a former chancellor of the Open University and officiated at a number of graduation ceremonies in Cardiff, and there is no question but that the people of Wales consider the Open University to be a thoroughly national institution and not an English institution.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I am grateful for those two contributions. Before I speak to the government amendments, I begin by welcoming yesterday’s vote in the National Assembly to approve the legislative consent Motion for the Bill. In particular, I thank Assembly Members, the First Minister and the Welsh Government for their support for the Motion. It stands as testament to how far we have come. Noble Lords’ careful and thorough scrutiny has served to strengthen the Bill greatly and I thank them for their participation as the Bill has moved through this House.

The Government have listened carefully to the issues that have been raised throughout these debates and have brought forward amendments to address many of them. I thank my officials, led by Geth Williams, Peter Newbitt-Jones and Victoria Miles-Keay, and their team for their hard work on the Bill and for working closely with the Welsh Government and the Assembly Commission to resolve outstanding areas of concern. I have brought forward some amendments to address issues that have arisen from these discussions as well.

The Bill we have before us now is a better Bill as a result of the scrutiny of the House and the vast experience of noble Lords across the House. I place on record my personal appreciation for the diligent and constructive way in which noble Lords have approached the debates at each stage. In particular, I am very grateful for the engagement and constructive approach of the noble Baroness, Lady Morgan of Ely. Nearly 20 years ago, we served together on the National Assembly Advisory Group; I do not think we could have expected that we would be here today—nearly 20 years on —discussing this Bill.

As we have also discussed, the historic agreement of a fiscal framework last month was also key to the Assembly’s consideration of the legislative consent Motion. I pay tribute to my right honourable friend Alun Cairns, the Secretary of State; my right honourable friend David Gauke, the Chief Secretary to the Treasury; and the Welsh Government Cabinet Secretary for Finance and Local Government, Mark Drakeford, for their work on that fiscal framework. I also pay tribute to the considerable work undertaken by my right honourable friend Stephen Crabb, who did much of the heavy lifting before Alun Cairns became Secretary of State. Taken together, this Bill and the fiscal framework deliver the clearer, stronger and fairer settlement we set out to deliver.

The government amendments before noble Lords today are largely minor and clarify a small number of outstanding issues. Clause 29(6) provides a signpost to related provisions later on in the Bill, including those requiring consultation between Welsh Ministers and the Secretary of State before certain harbour functions are exercised. Government Amendment 3 adds a new provision to that clause to signpost the consultation requirements in the new Clause 36, which was added at Lords Report stage. It concerns the exercise of functions by the Secretary of State in relation to two or more harbours, at least one of which is devolved to Welsh Ministers.

Government Amendment 2 is a drafting amendment that aligns the wording of Clause 29(6)(a) with the new paragraph added by government Amendment 3.

Clause 62(7) inserts new Part 2A into the Welsh Language (Wales) Measure 2011 in relation to the cross-deployment of tribunal members. Government Amendment 4 would insert the equivalent Welsh language text into that Measure. Government Amendments 5, 6 and 7 update references to “public” authorities in Schedule 1 to reflect the revised title of “devolved Welsh authorities”.

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Moved by

[Lord Bourne of Aberystwyth]

2: Clause 29, page 26, line 37, leave out from “exercise” to “in” in line 38 and insert “, by a Minister of the Crown, of certain functions”

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Moved by

[Lord Bourne of Aberystwyth]

4: Clause 62, page 49, line 2, leave out “Tribunal), after” and insert “Tribunal)—
(a) in the Welsh text, after Rhan 2 insert— “RHAN 2ATRAWS-LEOLI AELODAU’R TRIBIWNLYS9A_ Ar gais y Llywydd a chyda chymeradwyaeth Llywydd Tribiwnlysoedd Cymru, caiff aelod o dribiwnlys sydd wedi’i restru yn adran 59 o Ddeddf Cymru 2017 (Tribiwnlysoedd Cymru), ac nad yw’n aelod o’r Tribiwnlys, weithredu fel aelod o’r Tribiwnlys.”;(b) in the English text, after”

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Moved by

[Lord Bourne of Aberystwyth]

5: Schedule 1, page 89, line 38, leave out “a public” and insert “an”

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Moved by

[Lord Bourne of Aberystwyth]

8: Schedule 2, page 97, line 8, at end insert—
“( ) the Open University.”

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Moved by

[Lord Bourne of Aberystwyth]

10: Schedule 7, page 144, line 2, leave out “and 50” and insert “, 50 and 51”

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Moved by

[Lord Bourne of Aberystwyth]

11: In the Title, line 1, after “and” insert “the Wales Act 2014 and to”

Amendment 11 agreed.

[Lord Bourne of Aberystwyth]

My Lords, I wonder if I may answer one or two points that were made in relation to that group of amendments before formally moving—

[Noble Lords]

No.

[Lord Bourne of Aberystwyth]

There were issues raised that I would like to address, if that is permissible.

[Noble Lords]

Too late.

[Lord Bourne of Aberystwyth]

I will write to noble Lords in relation to the points made.

Bill passed and returned to the Commons with amendments.