Wales Bill

Lord Elystan-Morgan Excerpts

Tuesday 11th November 2014 Lords Chamber

Moved by

[Lord Elystan-Morgan]

1: Before Clause 1, insert the following new Clause—
“Reserved powers for the National Assembly for Wales
The Secretary of State shall, within six months of the passing of this Act, lay a report before both Houses of Parliament on further legislative steps needed to establish a model of reserved powers for the National Assembly for Wales, which shall include a detailed timetable for implementation of this new model.”

[Lord Elystan-Morgan (CB)]

My Lords, this amendment, which stands in my name as well as the names of the noble Lord, Lord Wigley, and the noble Baroness, Lady Morgan of Ely, is dedicated to streamlining the constitutional transfer of authority to Wales and to making clearer the boundaries which, to some extent at the moment, are obfuscated. The effect of the amendment would be to place the constitutional transfer of legislative and other parliamentary authority to Wales on a reserved basis, rather than a confirmed basis.

The meaning of that in lay terms is, as I am sure nearly every Member of this House appreciates, that there are two ways in which a sovereign parliament can transfer power to a sub-parliament. One is to transfer the totality of a subject heading and then say that there will be certain reservations, spelling them out—A, B and C—so that one knows exactly where that boundary is drawn. The other way of doing it is less simple and far more cumbersome: transferring piece by piece different legislative powers or, in a much wider way, describing certain subject areas but without setting out in detail exactly what they mean. The latter is what governs the situation in Wales, I am afraid.

Following the referendum of March 2011, and under Schedule 7 to the Government of Wales Act 2006, there are 20 subject headings ranging from agriculture to the Welsh language. They are not intended to be definitive of the powers that are transferred; they are more descriptive. Then, they are qualified—again, in a general way—rather than setting out exactly with ruthless correctitude what reservations and exemptions there are. One cannot overemphasise the difference between those two systems. One achieves the very best that devolution can achieve. The second brings out most of the weaknesses in the situation and guarantees great difficulties in future.

The Welsh Assembly has seen a number of developments over the past 16 years of its existence. It started off as, essentially, an executive body with very limited powers of delegated legislation. I think only 4% of the time of its plenary sessions was spent in the examination of legislation. Then, with the Government of Wales Act, things changed considerably. There was the provision under Schedule 3 that enabled what might be called the “salami slices” of authority to be conferred. Indeed, some such transfers did occur. But the fundamental change occurred, of course, following the referendum of March 2011 with those 20 areas of authority. They are very considerable in totality. The calculation of the Silk report is that they represent somewhere between 50% and 60% of the total expenditure of government in Wales. The area of jurisdiction is very considerable.

However, the system falls down on the question of ascertaining swiftly and clearly exactly what has been transferred and within what limits. I have used this expression before and do not apologise for it: it is such as to create a constitutional neurosis among those who practise the vocation of law in Wales. That of itself may not be a bad thing but it means that you have to chase little pieces of legislation almost like confetti. You have to trawl through various instruments and legislative provisions to get the truth. Even then, you may not be absolutely certain that you have covered everything that might be relevant. In addition, the exemptions are in such general terms as to be ineffective —and, indeed, perhaps downright dangerous, because of the dubiety created in such a situation.

The amendment therefore asks for a complete transfer, clearly and specifically, of a subject heading, and then a remorseless description of every exception that can operate. That is no more than the Welsh people deserve, and I believe that a solid body of consensus has grown around it by now. It would mark the further maturity of the National Assembly for Wales, and would remove the areas of dangerous dubiety that exist. It is on that basis, and with some confidence, that I ask for support for this most necessary amendment to the constitutional situation in Wales. I beg to move.

--- Later in debate ---

[Lord Elystan-Morgan]

The six months is not set in stone at all. I think it necessary to have some idea of a timetable to concentrate the mind, as Dr Johnson might have said. However, I do not think that six months is sacrosanct. If a manuscript amendment or any such change was appropriate, I would willingly be prepared to make such amendment.

[Lord Crickhowell]

But the fact of the matter is that this is a requirement, as the amendment is now drafted. It would be necessary to find some way, perhaps at Third Reading or in some suitable way, to give the flexibility that he is prepared to allow.

--- Later in debate ---

[Lord Elystan-Morgan]

My Lords, seldom have I been so proud to be a Welshman and a Member of this august House. It has been an excellent debate. Many issues have arisen—some of them bordering on the philosophical, if not the metaphysical. One could spend many hours on the matters raised by the noble Lord, Lord Deben. All I say to him on the issue of the survival of the Anglo-Saxons, as far as the parliamentary institutions are concerned, is that he can sleep quietly, peacefully and happily in his bed. There is no danger that they will be swamped by the Celts on the fringes of the United Kingdom. It is an old question. It was raised in Gladstone’s time in 1893. The difficulties then were regarded by him as being insurmountable—of dividing a purely English issue from those matters that were directly or indirectly relevant. That will be the whole question. However, that is a matter for another day.

We have had an excellent debate and I am very grateful indeed to everyone who has contributed to it. The hallmark of the debate was unity. The consensus on this matter transcends every political boundary. That has not come about by accident. I have already paid tribute to the noble Lord, Lord Bourne of Aberystwyth, and to the noble Baroness for the work that they have done over a long period in laying the foundations of such a consensus.

The Minister has graciously told the House of plans that the Government already have to bring about these changes. Clearly, work has been done already. It would not have been possible for the seventh schedule to the 2006 Act to be contemplated—the 20 different areas of authority—without considering with some care exactly where that left one. However, I still think, with the greatest respect to my noble friend Lord Elis-Thomas, that there are massive ambiguities. However, it is not for an ex-circuit judge to try and animadvert on the wisdom or otherwise of the attitude of very senior judges in this matter.

The offer made by the Minister is generous but turns on many contingencies. Presumably, the work will be done by 1 March—not 1 April—2015. Then it will be for the next Government to decide exactly when and how the proposals will be brought into law. Who will the next Government be? Is there a Delphic oracle who can tell us? Can anyone read the runes or look at the entrails and tell us who is likely to succeed? If we pass the amendment—I will ask the House to divide on the matter—we will be giving the noble Baroness strength vis-à-vis Her Majesty’s Government. We will be placing solidly and clearly, and with total resolution, exactly where we stand. I say “we” because I hope that I can speak for the people of Wales in this matter. There is unanimity and a sense of urgency. Time is of the essence. Therefore, I hope that the noble Baroness will not think me churlish. It is as much to strengthen her arm and in no way to frustrate her position that I ask the House to divide.