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.