Wales Bill

Lord Elis-Thomas Excerpts

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

[Lord Elis-Thomas (PC)]

My Lords, it is a particular pleasure for me to be sandwiched between two Secretaries of State to whom I owe a great debt of gratitude. I worked with the noble Lord, Lord Murphy, twice, when he returned as Secretary of State in my period as Presiding Officer of the National Assembly in Cardiff. The noble Lord, Lord Hunt, who is to follow—I am merely a warm-up act for him—gave me my first public appointment, without which I would probably not be standing here today. He stands guilty as charged.

This has not just been reminiscence therapy for former Secretaries of State. All the contributions we have had from all noble Lords who have spoken have been a relevant contribution to today’s discussion. Those contributions show up the inadequacy of where we are now compared with where we were when we started. The lack of progress in the last 20 years and more, during my political life in the Assembly and in other places, is something that distresses me about this Bill.

I am not one of those “capital N” nationalists, as my colleagues often find to their chagrin. I used to call myself a Welsh European devolutionist autonomist but I am not sure whether one can use the adjective “European” any more in this House. The constitutional development of Wales is something that I have always sought to promote and to work for, often with great difficulty. Sometimes the context was not there and the politics were not right. However, I think that we should have got further than we have at this stage. It is for that reason that my latest contribution as an Assembly Member and a Member of the Constitutional and Legislative Affairs Committee of the National Assembly at the end half of the previous Assembly, and at the moment, has been an attempt to influence the debate in a new way.

We are not supposed to call ourselves noble friends across the House, but the noble Lord, Lord Bourne, who was a great friend of mine when I worked with him in the National Assembly and who is still a great friend, knows that what we have developed in the Assembly is a legislative body of competence and the ability to scrutinise in the same way that Parliament does. The Constitutional and Legislative Affairs Committee will meet later this week with a committee of this House to discuss these issues.

We have gone on at quite some length in this debate but I want to speak briefly about the constitutional principles that concern me and about where we are and why we have not been able to do better at this stage of our devolution pilgrimage, if I can say that, following on from the noble Lord, Lord Elystan-Morgan.

The Constitutional and Legislative Affairs Committee has Bills referred to it by the Business Committee of the Assembly. We operate in a similar way to other Assemblies and Parliaments. When we got this latest Bill we had already done work on the previous draft Bill. We took serious evidence. We opened a public consultation in June of this year and completed it in September and took serious evidence from the most learned legal opinion we could gather together on the constitution in Wales. All this evidence is in the committee’s report. I know that some noble Lords have already read it. My noble friend was complaining that it was not a parliamentary paper. I am not sure whether the Assembly Commission, although I am no longer in charge of it, has the resources to provide all its papers free and in print form. We are, of course, a paperless, digital Assembly, so all Members who do not have a copy can see me later and I will tell them how to print it off the Assembly website. I see that the noble Lord has already done so, and I am grateful to him for that.

We held the consultation, took evidence and had a stakeholder event in which practitioners were involved. The online Loomio platform is still there. That was an attempt to consult in the widest possible way, and we produced this report. I signed up to the report with sadness, because I thought that we should have done better.

We will come back to these issues in Committee and on Report, and there will be amendments. The early clauses of the Bill talk about the permanence of the National Assembly, but I want to know what the legal force of that is. What is the legal force of saying that an institution is permanent? We are here in transient times—we have the great 1662 prayer book, and Prayers at the beginning of our day. We know that we are transient, so what does it mean to legislate for permanence? Even more conflicting and difficult for me is the further clause recognising Welsh law. I am proud to have studied medieval Welsh law at the University of Bangor. I was taught by various scholars, so I know that there is such a thing as Welsh law, because I studied it. Suddenly, we are legislating in Parliament assembled to recognise such a thing as Welsh law. Professor Richard Rawlings is one of the most distinguished constitutional lawyers and persons who has studied devolution, and he told our committee that the clause was a “shocker”. It demonstrates the problem of trying to do something symbolic when you do not really want to do anything at all. I am not saying that that is the Government’s intention, but that is how it has been interpreted by the academic lawyers that we consulted.

I was grateful to my noble friend Lord Murphy for referring us back to the Wales Act 1978, which became the basis, in a reformed way, of the 1998 Act. That Act was an attempt to legislate in a way that did not recognise the clear difference between a legislature and a Government, although we did not use those words in those days. But now we have the reserved powers model, which has been much heralded to be the solution of devolution in perpetuity—yet we have reserved powers plus reservations or exemptions, which is exactly where we were before. For 12 years, which was probably too long, I worked as Presiding Officer, deciding the competence of legislation; it was all about ensuring that it was in the competence, which meant that we had to take decisions about where the boundaries were of the devolution settlement. Clearly, conferred powers with exemptions take us to the same place as reserved powers with further exemptions. So where are we 200 exemptions further down the road? There is no clarity and no constitutional intelligibility here. In particular, where is the intelligibility for the citizen and the electorate? This is what this is about—it is about writing the law of Wales in such a clear way that the people of Wales, in taking decisions about their political life from day to day, will understand what it means. We are nowhere near that.

Having spent all these years trying to legislate in this place and Cardiff, I stand here knowing that I have failed to deliver a reasonable constitutional system for the country that I sought to represent. That is not my fault and not the fault of the present Minister, nor the fault of the parties here. We have been labouring in this vineyard for many years—but there is a failure to realise that Wales deserves better than the present treatment within the family of nations of the United Kingdom. If we are a home nation, it is time that we came home.