Wales Bill

Lord Elis-Thomas 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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Moved by

[Lord Elis-Thomas]

43: Clause 3, page 3, leave out lines 5 and 6

[Lord Elis-Thomas]

I have always believed that constitutional legislation in any state should be intelligible, or as intelligible as possible, not only to the practitioners of public life but to the general public. This is particularly the case with the constitution of Wales. The episode that we are now involved in is a further obfuscation of the constitution rather than its opening out to intelligibility, which is why these amendments on consolidation are important. I am grateful for the support of the noble Baroness, Lady Finlay, who will no doubt want to speak to them.

The question of how a constitution is made accessible was highlighted in the outstanding judgment of the High Court last week. In their judgment, their Lordships said:

“The United Kingdom does not have a constitution to be found entirely in a written document. This does not mean there is an absence of a constitution or constitutional law. On the contrary, the United Kingdom has its own form of constitutional law, as recognised in each of the jurisdictions of the four constituent nations”.

But because the constitution of Wales is currently spread over four pieces of legislation, it hardly meets the test of being intelligible to the population or to any of those active citizens who wish to participate in understanding their constitution.

This has been a persistent theme of the National Assembly’s relevant committee dealing with constitutional matters. That is why the predecessor committee of the current one, of which I was also a member for a period, recommended that a clear commitment should be given to consolidating the constitutional legislation of Wales and to having this done in the current parliamentary term. If for good reasons of their own the UK Government did not feel able to undertake such consolidation, there should also be a clear provision—or at least there should not be any hindrance—in any Bill so that the National Assembly itself could undertake it. Amendments to this effect were tabled in another place and in the debate the UK Government said this was not necessary because the constitutional settlement for Wales is the Government of Wales Act 2006 as amended—a matter to which I alluded earlier. Quite simply, the urtext that is the basis for our understanding of the constitution of Wales is the Government of Wales Act 2006 as amended, but it does not meet the test of consolidation and intelligibility.

Is it not now time to give the people who are most concerned about this matter—those of us who must live and work through the constitution we are given by courtesy of the Houses of Parliament of the United Kingdom—responsibility to make that consolidation? It is not an attempt to amend legislation, merely to consolidate it. This approach should recommend itself to all who are concerned about constitutional clarity and democratic principles. All that Amendments 43 and 44 would do is permit the National Assembly to consolidate the devolution statutes relating to Wales in both its languages. This is not to blow my own trumpet because I happened to be born bilingual, but we are officially a bilingual legislature. We work actively and daily in two languages. To allow us to legislate and provide consolidation in this area would mean that we were able to serve our citizens much more effectively. I beg to move.

[Lord Howarth of Newport]

My Lords, I have huge sympathy with what the noble Lord, Lord Elis-Thomas, just said. Why have the Government not presented this legislation to Parliament in consolidated form? That would have greatly facilitated scrutiny and, more importantly still, as the noble Lord suggested, it would be for the benefit of the people of Wales and all our fellow citizens who are interested in and care about the development of our constitution, by enabling them much more readily to understand the Government’s constitutional proposals. I cannot see why we must wade through these thickets of legislative obscurity to try to get the measure improved and an adequate and comprehensible piece of legislation presented to the world.

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[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.

Amendment 43 withdrawn.