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.

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[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