Wales Bill

Lord Elystan-Morgan Excerpts

Monday 13th October 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I strongly support my noble friend Lord German and will speak to Amendments 15 and 16. Before I do so, I share a reflection. The noble Lord, Lord Elis-Thomas, was talking about his six year-old granddaughter, and I was reminded that when my granddaughter, Pip, was elected to a school council, my wife, my noble friend Lady Walmsley, commented—rather caustically, I thought—that she was the first member of the Thomas family ever to win an election. That was unfair.

I turn to Amendments 15 and 16. The system of election aimed at proportionality throws up a number of difficulties. In particular, it makes the election of a regional list candidate almost capricious. An example is the noble Lord, Lord Bourne, who served with distinction as a regional list Member as leader of his party—and I see that he has almost left the Chamber at the thought. He lost his seat not because his party did badly but because they did far too well and won a Montgomeryshire seat from us. Consequently, he ceased to be a regional list Member. It is clearly unfair that a person should be required to give up a public position, or even employment, simply to stand as a candidate in an election. There is not only the individual to consider; the pool of those willing and able to undertake public duties is not so large in Wales as to make it in the public interest to impose such a restriction.

The legal position is further complicated by an apparent conflict between the provisions of the Government of Wales Act 2006, which deals with disqualification, and the National Assembly for Wales (Representation of the People) Order 2007, which deals with aspects of electoral law. According to the 2007 order, a candidate should not be part of, or a member of, any organisations included on long lists set out in the 2006 Act and the relevant disqualification order made under it. The Act, however, refers to the disqualification as relating to “being an Assembly Member”, and not to being a candidate. These provisions are subject to the power of the Assembly under Sections 17(3) and (4) of the Government of Wales Act to resolve to disregard the disqualification of any person,

“if it appears to the Assembly … that the ground has been removed, and … that it is proper so to resolve”.

Further, if it is alleged that an Assembly Member is disqualified, costly High Court proceedings can be involved. It is well known that two regional list Lib Dem Members fell foul of these provisions in the 2011 election. One was a member of the Care Council for Wales, and he admitted that he had not read the 2010 order that contained a long list of public bodies. After anxious consideration, the Welsh Liberal Democrats decided to withdraw the motion that they had lodged with the Assembly to lift his disqualification, and the number two on the list took his place. The other was a member of the Valuation Tribunal for Wales. The Assembly Standards Commissioner, Gerard Elias QC, said that that Member had done,

“everything that he could have reasonably been expected to do in ensuring that he was not a disqualified person for the purpose of nomination or election”.

He had followed the Welsh language advice from the Electoral Commission, which had referred him to regulations on proscribed bodies from the 2006 order, which had been replaced by a new order in 2010. It was correct in English but wrong in Welsh. The Electoral Commission apologised for its error. The motion that was filed to disregard the disqualification was passed with some Labour opposition, which will not be forgotten because anecdotal evidence suggests that a number of non-elected Labour candidates would have failed the test themselves. The noble Lord, Lord Wigley, at the time wrote in the Daily Post very wise words, as usual:

“There is a saying that ‘Rules are for the guidance of wise people and the obedience of fools’ … The fiasco of blocking two Liberal Democrats … surely falls into this category”.

He said that the principle of disqualification should be reviewed by the Electoral Commission and added that it,

“should only apply for deliberate conflicts of interest”.

At the same time, a UKIP MEP put a complaint into the police about corrupt practices against that sitting Member. The complaint was duly investigated by the police and no further proceedings ensued.

Arising out of this controversy, the Constitutional and Legislative Affairs Committee, at the invitation of the First Minister, considered the issue under the chairmanship of David Melding the Deputy Presiding Officer, took evidence and obtained the legal opinion of the Counsel General. The Welsh Government’s attitude, as filed with the committee, was summarised in a memorandum attached to the report. In particular, it stated:

“The disqualifications are long and complex, and individuals may inadvertently fall foul (as two did in 2011) of apparently unjustified disqualifications … The complex nature of some of the disqualifications may require prospective candidates to seek legal advice in order to determine whether they are caught by the particular disqualification”.

The Welsh Government also said:

“However, we see the current requirements as a clear disincentive to candidates because a person must resign their post or employment in order to stand as a candidate and, if unsuccessful in that election, reinstatement would depend on the terms and conditions of employment that apply ... It is our view that the current structures for excluding persons from Assembly membership do not properly reflect their raison d’être. The disqualifications purport to prevent AMs from holding offices or employments deemed to interfere with the proper fulfilment with their duties. But it is our view that the rules pertaining to disqualifications are increasingly unfit for purpose to the point that, in some instances, they pose a disincentive to potential candidates and thus fall foul of the logic of empowering democratic participation”.

I may have said rude things about the Welsh Government in the past but I agree with every sentence that is expressed there.

The committee’s report, published in the middle of July 2014, made a number of recommendations which these amendments are designed to reflect. In particular, the committee felt that the disqualifications should be spelt out without reference to the legislation dealing with Westminster elections, hence the drafting of proposed new subsection (2) in Amendment 15. Since I have been asked why the various judicial offices are named, it is because as currently drafted the Government of Wales Act 2006 refers to disqualifications of the judicial officers mentioned in the schedule to the House of Commons Disqualification Act 1975, which cover, for example, the judges of the Court of Session in Scotland and judges of Northern Ireland. One would not expect them to be applying to be candidates to the Welsh Assembly in any event. As the committee recommended, I have spelt out those judicial offices in the amendment.

[Lord Elystan-Morgan (CB)]

May I make a very small, pettifogging legal point? As I understand it, there is no such judicial animal as a county court judge, and there has not been one since 1971. A circuit judge has practically all the powers of a High Court judge as the noble Lord knows, and those apply both to civil and to criminal matters. I think that I am right in saying that there has been no county court judge since that time.

[Lord Thomas of Gresford]

I am very grateful for that assistance from the noble Lord, because I wondered why it would be in the 1975 Act as a disqualification for standing for Parliament. Since this is Committee stage, amendments can always be made on Report to correct that. The nub of the matter is in proposed new subsection (5) in Amendment 15. This adds two additional subsections to Section 16 of the Government of Wales Act 2006. The committee put forward two ways of dealing with the issue: by requiring Assembly Members to resign a disqualifying office before taking the oath or affirmation of allegiance; or by deeming that an Assembly Member had resigned a disqualifying post at the moment that he was elected. It recommended the former course. It also suggested that the Law Commission might consider these issues as part of a wider review across all UK legislatures.

Kicking the issue into the long grass of the Law Commission is unnecessary. Devolution, as we have heard today, has not and almost certainly will not follow precisely the same pattern across the UK, and any short-term attempt to reach conformity is otiose. Such a course might delay changes welcomed by all sides beyond the 2016 election. The parliamentary processes here are surely robust enough to choose the proper mechanism. Amendment 15 suggests neither of the two methods proposed by the committee but follows the drafting of Clause 3 of this Bill, which deals with disqualification of persons elected to the House of Commons. It introduces an eight-day period following the election within which the Assembly Member can resign the post that would otherwise disqualify him.

The committee also accepted the advice of the Counsel General in relation to the power of the Assembly to disregard the disqualification. Your Lordships will recall that that was the process followed in relation to the Liberal Democrat Members. Paragraph 89 of the committee’s report states that Mr Bush thought that the ability of Assembly Members to relieve somebody of a disqualification was a “very unsound procedure”. Mr Bush added that,

“looking at it from general principles, if you have a clear and understandable list of disqualifications that are well publicised in advance and give people the opportunity to think carefully about them before they take the oath of allegiance, the rationale and the practical reason for having that power to disapply the disqualification seems to me to cease. Then, all of the arguments are in favour of getting rid of it, because, undoubtedly, it is constitutionally a very strange procedure indeed”.

I agree. Consequently, my second amendment would remove the power of the Assembly to lift the disqualification if it exists.

I appreciate that further amendments to the Bill and to the relevant order may be necessary if my amendment is successful, but I think that at Committee stage that suffices.

--- Later in debate ---

Moved by

[Lord Elystan-Morgan]

18B: After Clause 3, insert the following new Clause—
“Welsh Parliament (Senedd Cymru)
The National Assembly for Wales (Cynulliad Cenedlaethol Cymru) shall henceforth be known as the Welsh Parliament (Senedd Cymru).”

[Lord Elystan-Morgan]

My Lords, it is late at night. The amendment I move would have been tendered in a most tentative and humble way, which is the way that I allow the House at any time to consider anything from my direction. At the moment the name of the Assembly is the National Assembly for Wales, Cynulliad Cenedlaethol Cymru. “Assembly” is the sort of term that you can use to describe a whole range of different bodies, some of them very distinguished, some of them less so. It is all-embracing. I doubt very much whether the ordinary citizen is greatly affected or impressed by it. One can say that the title of the Northern Ireland body is again “Assembly”. However, without raising controversial matters at this late hour, one is well appreciative of the circumstances in which that body came into being. A line was drawn by Lloyd George on a map—actually a right angle. According to his memoirs, he thought that it created a wholly unviable entity. He suggested that he did not want to give the impression that it was a parliament. It does not say in so many words that that is why the title “Assembly” was chosen, but it seems reasonable to infer that that may well have been the case.

--- Later in debate ---

[Baroness Randerson]

My Lords, I thank the noble Lord, Lord Elystan-Morgan, for his amendment, which seeks to change the name of the National Assembly for Wales to the Welsh Parliament. Clause 4 of the Bill does amend the statutory title of the Welsh Assembly Government to Welsh Government. Since law-making powers were devolved to the Assembly in 2011, the Government have almost universally been referred to simply as the Welsh Government. Our clause reflects that reality. The same is not the case for the National Assembly for Wales, which is still commonly known as the National Assembly, the Welsh Assembly or the Assembly.

My view is that, once the Assembly has the powers of a Parliament, it should be called one. At the moment that is not the case. It is, however, worth pointing out that there are several national legislatures called assemblies. There is the Assemblée Nationale in France, the Quebec Assembly and the South African Assembly. So there is a swap-over in the use of the words.

Honourable Members will be aware that the Silk commission recommended that if the Assembly wishes to change its name to the Welsh Parliament, this should be respected. The noble Lord’s amendment goes further than Silk by simply changing the name of the Assembly in primary legislation—crucially, as the noble Lord, Lord Wigley, has said, without the Assembly itself what it feels about the issue. I think it is essential that such a change should not take place without consulting the Assembly. I therefore urge the noble Lord to withdraw his amendment.

[Lord Elystan-Morgan]

My Lords, I certainly shall withdraw my amendment. There is, however, an irrefutable logic in this situation. Where the name of the building is a Senedd, a person who is a member will be asked, “What are you doing down there in the Bay?” and he will say, “Rwy’n Aelod o’r Senedd”—“I am a Member of the Parliament”—and yet the name “Parliament” is not to be used formally. Anyway, this is a debate for another day, and I beg leave to withdraw the amendment.

Amendment 18B withdrawn.