Lord Bourne of Aberystwyth
Main Page: Lord Bourne of Aberystwyth (Conservative - Life peer)Department Debates - View all Lord Bourne of Aberystwyth's debates with the Wales Office
(7 years, 11 months ago)
Lords ChamberMy 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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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?
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.
My Lords, I understand that the committee is about to begin consideration.
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.
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?
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.
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.
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.
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.