Wales Bill

Lord Morris of Aberavon Excerpts

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

[Lord Morris of Aberavon (Lab)]

My Lords, perhaps I may put on record my appreciation of the way the noble Lord, Lord Bourne, who takes his title from my home town, has done so much to mould opinion among his colleagues. The Assembly, as he stated earlier, is now a permanent feature of our national life in Wales.

The Bill is another step in the granting of democratic control to the people of Wales, sitting as an elected body in Cardiff. When I introduced a Wales Bill as far back as the 1970s, I got a great deal of flak for using the word “Senedd”, meaning senate; it was a bridge too far for many of my nervous colleagues. How we have moved on since then. This Bill is an improvement on the last offering of the Wales Office, but it still fails to grasp the fundamental point that every opportunity should be taken on the face of legislation to avoid litigation, first by limiting the number of opportunities and secondly by ensuring there is clear water in the demarcation of what Cardiff can legally do and what must be reserved to Westminster. There are, as has been mentioned, more than 20 pages of specific reservations—something of the order of nearly 200, if my arithmetic is correct. This in itself makes the Bill deserving of rejection. The Government should go back to the drawing board and think again.

The reservations have all the fingerprints of every department in Whitehall’s objections, solemnly paraded in statutory form. We had similar problems in the 1970s. The difficulty is that today’s Wales Office has a minuscule staff and very limited statutory drafting experience. Our remedy was to bring in Cabinet Office nominees to knock heads together, which is what Sir John Garlick and Sir Michael Quinlan—both to become outstanding civil servants—did. That is how we eventually got the Bill off the drawing board. As night follows day, this Bill will be the precursor of more Wales Bills and is an unnecessary exercise in constitutional navel-gazing, when the public’s concern is over the quality of government in Wales on the issues that affected my constituents for more than 41 years—health, education, social services and jobs.

The ethos of devolution is that such issues are decided in Cardiff, but we should not be blinded to the successes and alleged shortcomings of the Welsh Government. A wise Government might consider, now that so many years have passed, having some form of independent assessment—a sort of Welsh mini-royal commission—to give a considered view of their record and to suggest possible improvements. I suggest this not as a critic but as a friend of the First Minister and of the Assembly, who are to be congratulated on what they have achieved so far. My personal experience after what could have been a near-fatal motor accident a year ago was, regrettably, questionable so far as hospital care was concerned, which left a lot to be desired when it came to the availability of different forms of treatment and indeed of a ward where one could sleep night after night undisturbed. I have been pursuing my former constituents’ interests ever since and am I grateful for the co-operation of the senior staff at Carmarthen.

The health service in England, too, as we all know, has many problems. It is the provision of comparable health treatment, social services, education, and success in inward investment, that we should be talking about, particularly after the dismantling of some of the machinery that I set up—the WDA, the Land Authority and the DBRW. Our Civil Service, good as it is, can always do with the infusion of expertise from business and trade unions, which are closer to the coalface. With grown-up Governments in Scotland and Wales, do we really need Secretaries of State for Scotland and Wales? They seem to be, at best, claimers of credit for the achievements of other departments—and, at worst, state-paid propagandists for their parties at Westminster. Surely the time has come for more intergovernment negotiations without intermediaries.

I confess to having created a role for the Attorney-General to march up and down Offa’s Dyke to ensure that the Welsh Government did not exceed their powers. It was intended as a nuclear deterrent—a weapon of last resort, not an opportunity for a trigger-happy Attorney-General to rush to court time after time. We know of intergovernment disagreements only when they are aired in court. How much time is spent by a busy Civil Service on those issues that do not come to the public eye? The Bill may give even more opportunities for litigation unless the Attorney-General’s chambers have learned lessons from burning their fingers too many times.

Historically, there are two important milestones in my party’s commitment to devolution. The first was the invitation by Jim Griffiths, MP for Llanelli and deputy leader of the party, to Lord Prys-Davies, whom we miss, to put his thoughts about an elected all-Wales democratic institution on paper, in 1952-53. My party had nothing at the time in writing. He published his pamphlet, An Elected Body for Wales. In the main it dealt with local government powers, but it was a national body that he envisaged. I had no responsibility for that, but I would return home from Cambridge and from the Army in Germany for long and earnest discussions with him on Wales’s future. I had been planning to study the Stormont Government as part of my master’s degree at Cambridge, but there was no other model at the time.

The second milestone was the setting up of the Royal Commission on the Constitution by Harold Wilson—first under Lord Crowther and then, when he died, under Lord Kilbrandon—in 1968-69. The noble Lord, Lord Elystan-Morgan, used his substantial influence to persuade his boss, Jim Callaghan, who was then Home Secretary. The commission and its assistant commissioner for each country comprised persons of exceptional intellectual ability and experience in the affairs of state. It may have been the last royal commission; it is not easy to get such eminent persons together. Regrettably, its conclusions were very divided; each one was hammered out and intellectually well-argued, but the sheer variety gave you room to choose whatever solution you wanted.

Totally unexpectedly, I was appointed Welsh Secretary in 1974—to my amazement and indeed the amazement of Wales. I will never forget the PM’s words to me in the Cabinet Room: “You are a devolutionist and I would be interested in your proposals”. I was given a blank sheet of paper. Despite the absence of its mention in the first draft of the Queen’s Speech—this is not very well known—we became committed to flagship legislation. Given other priorities, the big question was: could there be devolution Bills for both Scotland and Wales in the first Session of Parliament? Could Wales be shunted to the end, as a “tail-end Charlie” option?

I opted for the least radical of the Kilbrandon proposals, hoping to persuade most of my colleagues. There is a rich reward for political students if they read my noble friend Lord Donoughue’s diaries from the ringside at the many all-day away meetings of the full Cabinet at Chequers. There was a different set of objections at each meeting to any form of devolution. In my noble friend’s words, they were “quarrelling like monkeys”. Only the PM’s determination kept the ship afloat. I assure the House that a reserved powers Bill for Wales was not remotely on the cards at that time. That was the realpolitik of our long and exhausting summer days at Chequers. The rest is history.

Because the Scottish Secretary and I had our hands full in running our own countries, John Smith MP was brought in and, after Second Reading, brilliantly piloted the Bill through. I had the able and exceptionally industrious assistance of no more than two Parliamentary Secretaries at any one time—my noble friends Lord Jones and Lord Rowlands, and the late Mr Alec Jones. I particularly record my gratitude to them. I make the point because, according to the Library, there are now 12 Ministers in the Welsh Government—certainly there were on 27 May. Their tasks are of course different from ours, but I would be interested in a comparison of the ministerial costs. When the issue is considered of creating and increasing the number of Back-Bench Assembly Members to scrutinise the Government—and there is a problem of scrutiny—I hope the possibility of reducing and redeploying some of the Ministers is taken into account.

After an 18-year gap, it was a privilege for me as Attorney-General to be a member of the Cabinet committee considering Mr Blair’s Wales Bill, not as a policymaker but as the Government’s principal legal adviser, and to see the Bill through its course. Indeed, it was an unexpected pleasure as Attorney-General to be invited by Mr Alun Michael and his colleagues to the opening of the first session of the Welsh Assembly and to present to Her Majesty a dummy Bill in both languages for her signature.

I hope that some day we will see an end to this parade of Welsh legislation and have a proper reserved powers Bill and—who knows?—a constitutional convention to consider the future constitutions of Wales, Scotland, Northern Ireland and England, too. That is a path I have been treading since 1953.

Wales Bill

Lord Morris of Aberavon Excerpts

Committee: 1st sitting (Hansard) : House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I rise to make a brief point which I believe will be of practical importance. Some three years ago I gave evidence to the Constitutional Committee of the Welsh Assembly. It was my view that while there was undoubtedly a growing body of Welsh legislation the time was not yet ripe to deal with it in the way proposed by the noble Lord, Lord Wigley. There will come a time when we will have to grapple with it but it is certainly not a matter of urgent importance now and there are serious practical points of difficulty in moving in that way.

I say this against the background that much has been done in an administrative way; I join in the tributes paid to the former Lord Chief Justice, the noble and learned Lord, Lord Judge, who moved so much of the work of the higher courts to Wales, followed by the present Lord Chief Justice, Lord Thomas of Cwmgiedd. The work has been done and it has met many of the problems, one of which is that more cases of this kind should be set down in Wales. The process should start there as opposed to being started in London.

The serious issue is the consolidation of legislation already passed by the Welsh Assembly. Over the years that the Assembly has been in existence, Act after Act has been passed, particularly during the most recent period. Any practitioner, be they in Wales or in England, who has to advise a client in Wales on a matter arising in Wales concerning property, employment and so on has to turn up a whole host of literature in order to give proper and responsible advice, otherwise he will be accused of being negligent. I hope that before it is too late the Welsh Assembly will use its powers and resources to consolidate the existing legislation and thus make it easier for practitioners and ordinary litigants.

[Baroness Randerson (LD)]

My Lords, I rise with some trepidation among so many distinguished lawyers to make two brief points about the argument we have been having. The Government have acknowledged that there is a problem by setting up this working party, but I am not persuaded that they have done anything other than offer the working party as a sop to those who are concerned about this issue. If the working party was going to be rigorous and reach any kind of useful conclusion for us, it would have met several times by now. Otherwise it is up to the Government to say to us today that it will not be reporting this autumn but, rather, at some point in the distant future because it has discovered that there is a great deal of work to do. I therefore support the amendment tabled by my noble friend Lord Thomas because I believe that three years is a reasonable timescale for a commission to look rigorously and thoroughly at all the aspects of this.

I also endorse the comments of the noble and learned Lord, Lord Morris of Aberavon. The consolidation of Welsh law is becoming increasingly urgent. I know that the Minister is aware of it, having been a Member of the Welsh Assembly. Because the Assembly puts things on its website on the internet, they are not available in the printed format in which most law is available. People can find it difficult and complex to seek out legislation in order to find out which is the most recent version of the law. That issue needs to be discussed. Moreover, something that no one has mentioned so far in the debate is EU law, much of which has been incorporated into Welsh Assembly legislation. Once we have the great repeal Bill, I would ask the Minister how it is anticipated that this will be recognised within the single jurisdiction and whether the working party is considering the issue of EU law.

Wales Bill

Lord Morris of Aberavon Excerpts

Report: 1st sitting: House of Lords
Wednesday 14th December 2016 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I want to add one word to what the noble Lord, Lord Elis-Thomas, has just said. I very much welcome what he has told us about the intentions of the Assembly, through its Counsel General, to consolidate the laws of Wales as they emerge. I raised this point earlier in the passage of the Bill. I was a consumer once, as a practitioner. Consumers generally, whether lawyers in Cardiff, Swansea, Caernarfon, London or elsewhere, want easy access to the law of Wales as it emerges from Cardiff; otherwise, they could be sued for being negligent in the advice they give. I welcome it very much and I am grateful to the noble Lord for telling us of those intentions.

[Baroness Morgan of Ely (Lab)]

My Lords, I have tabled Amendment 2 relating to the establishment of a justice in Wales commission. I am very pleased to hear that there has been a degree of movement by the Government on this matter. We emphasised in Committee that we were largely dissatisfied, as I think are the Welsh Government, with attempts by the UK Government to address the fact that over time there will be this increasing disparity between English and Welsh laws, albeit they will both still be dealt with under the single England and Wales jurisdiction.

We have heard about this working group and I am glad that we have had a letter to inform us of the Government’s suggestions. We have not had as much time as we would have liked to deliberate on those, but I am pleased that the Government have recognised the need for some kind of ongoing committee or representation to make sure that they are constantly taking the temperature of the changes that will be happening. We made it clear that we were unhappy with this working group; we did not think it had been thought through in agreement with the Welsh Government but had been imposed on the Welsh Government, who certainly did not feel that they necessarily needed to respect any outcomes of it. That is why we are pleased to see the move to a more equitable system in which the Welsh Government will be respected.

Whether the committee outlined by the Minister goes far enough is questionable. We wanted a commission rather than a committee, but I am not going to nit-pick on that point; it is more important to look at the purpose of this group. I am glad that the Minister recognises that there will be, and is already, a distinct legal identity to Welsh laws but a number of points need to be addressed in relation to this committee. The noble Lord, Lord Elis-Thomas, just made the point that it needs to be seen to be more independent—equidistant from the UK and Welsh Governments. We have moved from the Ministry of Justice having the chairmanship to the idea that it might be somebody from the Cabinet Office but, given that it could be chaired by a representative from the UK Government, we wonder whether it would be better to have a more independent representative chairing the committee.

However, what is more important to me is the need to be clear that the people on the committee should be senior individuals, with the independence and expertise required to carry weight with both Governments. In that sense, it is crucial that both Governments are involved in making sure that they can agree on its membership. Can the Minister give us a commitment today that that will be respected—that there will be a joint agreement on who those experts will be? I should like it to be absolutely clear that this will be an ongoing group, because the body of Welsh law is likely to grow over time. It should not be a task-and-finish group; it needs to be ongoing. I am anxious to hear the terms of reference for this group. Can the Minister give us some indication of them? Would they also be agreed with the Government of Wales? If we are not to get an independent chair, those terms of reference need to be agreed by both Governments.

I hope the Minister will listen to those few requests on this issue. I am very pleased to see that he has come a long way towards us on it. A few tiny paces further would be very welcome but there have been a number of changes, as he suggested in his opening statement. On the new definition of Welsh law and in other areas, the Government have once again kindly listened to the changes that need to be made to the Bill. I thank the Minister for that.

--- Later in debate ---

The Government’s Advocate-General, the noble and learned Lord, Lord Keen, only last week explained to the court that the reference to the Sewel convention in the Scotland Act was simply a political accord and should not be considered a legal obstacle to Westminster riding roughshod over Holyrood. Unfortunately, under the current circumstances, Wales will yet again be patronised by such a political accord. This is hardly a big ask. Despite the complexities of our haphazard, patchwork quilt of a constitution, this issue is quite simple: making the Assembly the authority that it should be when it comes to devolved matters.

[Lord Morris of Aberavon]

My Lords, I agree with the noble Lord, Lord Wigley, and my noble friend Lady Morgan of Ely. I firmly believe that a statutory commission is highly preferable to a non-statutory one. I learned that lesson many years ago when I was sorting out the problems of the various bodies that operated in mid-Wales. I introduced an Act in order to ensure that there was a statutory commission. I learned that at the feet of a very great Welshman, Huw T Edwards, who believed that a statute has permanence unless and until it is abolished. It has to make reports. This amendment deals with that issue. A report to Parliament is a great signal to anybody in that field that it has to consider and reflect on the observations of those who come before it. In due course, that report may be debated in London. That is a vital safeguard. I support very strongly the need for a statutory commission.

[Baroness Finn (Con)]

My Lords, at Second Reading, I spoke in support of the maintenance of the single legal jurisdiction in England and Wales. I argued that the body of Assembly legislation can be accommodated for now within that single jurisdiction and that a separate jurisdiction would impose significant upheaval and unnecessary costs on the people of Wales, and that remains my view.

There has been a lot of change in administrative terms. There is already an administrative court to deal with judicial review and similar applications involving the interpretation of the legislation of the Assembly. However, this is a far way off from a wide separate jurisdiction. I agree with the noble Lord, Lord Thomas of Gresford, who argued that there was no need for procedural change and that the principles of statutory interpretation will remain the same. I would just continue to urge that more cases be heard in Wales.

However, although this is the position for now, I appreciate that the body of Welsh law will grow, with diverging Welsh laws over the years. My noble friend the Minister has listened to concerns that it is sensible to keep under review the functioning and operation of the justice system in Wales. I welcome his announcement that there should be a non-statutory committee— I have to disagree with the noble and learned Lord, Lord Morris—within the justice system that will undertake periodic reviews as the law continues to diverge. I believe that this is a proportionate and considered response that allows for a sensible evolution of the system.

A non-statutory review with a clear remit is the right way forward. The proposed statutory commission would have a broad remit and be unnecessarily expensive and complex to administer. Therefore the proposal from my noble friend the Minister is a sensible way through the issue. It recognises that the vast majority of laws will continue to apply across England and Wales and that there is no great appetite at the moment for a separate jurisdiction, with all the attendant cost and disruption. At the same time, it addresses the concerns of the noble Baroness, Lady Morgan, and of other noble Lords that it is important to keep the situation under review as the body of Welsh law grows and the system evolves.

Wales Bill

Lord Morris of Aberavon Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 10th January 2017 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I will confine myself to Amendment 78 in the name of the noble Lord, Lord Elystan-Morgan. I am not going to repeat my Second Reading speech, in which I complained vehemently of the inclusion of such a huge number of reservations. I welcome the words of my noble friend Lady Morgan on the announced changes by the Government so far in, as I understand it, limiting them. The Wales Office has only limited experience in legislating, in drafting and in fighting its own corner to get its own way with other departments in Whitehall.

In drafting the original Welsh devolution proposals in the 1960s, I faced the same dilemma of how to deal with the self-interest of many departments in Whitehall, for which, “Devolution is all right provided it does not encroach on my back yard”. What we did then was to set up a Cabinet committee, meeting twice a week under the chairmanship of deputy Prime Ministers, and to have seconded to it rising stars from the Cabinet Office to guide it through and ensure that the Minister got his own way. In the fullness of time each of these two gentlemen became Permanent Secretaries in major departments in Whitehall—that indicates the weight of the input. The combination of such people as Ted Short and Michael Foot in turn knocked heads together. We knew what we wanted and got our Bills into shape. My advice on this occasion is for the Wales Office to enlist someone from the Cabinet Office to knock heads together. Regrettably, this Bill has the finger marks of every department in Whitehall trying to preserve its own corner.

It takes a combination of the resolve of a Secretary of State and his advisers to get the right Bill and not succumb to the blandishments of other departments in Whitehall, enumerated by the great number of reservations in the Bill. I fear that the first result will be a field day for litigants, particularly if we have again a trigger-happy Attorney-General. It will not be the end of the matter. The noble Lord, Lord Wigley, illuminated at least one of the instances where we can face litigation. The second result, as sure as God made little apples, is that we will return to this issue time and again in order to seek a permanent settlement, which we all wish for, for Welsh devolution. Hence, the best line of defence for the Government is a committee, as proposed in Amendment 78 in the name of the noble Lord, Lord Elystan-Morgan, to report on the functions and powers and see how we are getting on; whether I and others are right or whether the Government are right. At least, within a period of three years, we shall know and report to the House, possibly for a debate on the developments that have taken place. Then perhaps, after that cooling-off period, as it were, we might have a more mature and resilient approach to Welsh devolution, which will then be a permanent one. That is my hope.

[Baroness Finlay of Llandaff]

My Lords, I have Amendment 82 in this group. It is a question, as my noble friend Lord Elystan-Morgan said, of flow. The problem for Wales is the flow of alcohol: Wales does not have the ability to control how that flow starts and how that supply chain moves. We in Wales are lumbered with the costs of alcohol abuse, both direct and indirect. There are direct costs in health and social care and indirect ones in damage to other people, either directly to another person or secondarily, through bereavement and so on. There is a real problem of culture around alcohol consumption in Wales. We should remember that while Scotland has the same culture of drinking, it has been given a degree of control. I fear that it is not always a pretty sight. Things have improved greatly but the Welsh Government does have to have the powers to do something about it.

There is another aspect of this that needs to be considered. We understand very little, really, about the way that alcohol interacts on the brain and on the reward centre, on people developing cravings. It is quite possible that the epigenetics mean that when you have a background culture of a family where there has been drinking, an individual’s reward centre responds differently. It may just be that people in Wales, having been born into a culture of drinking are more predisposed, more likely to develop an addictive tendency towards alcohol. It seems bizarre, when this is such a social problem and when the costs are really all borne at a local level, that the ability to control it is not given to the very Government that have responsibility for dealing with those problems.