Devolved Administrations

Lord Morris of Aberavon Excerpts

Monday 25th March 2019 Lords Chamber

[Lord Young of Cookham]

I understand the frustration to which the noble Lord refers: that was reflected in our debate earlier this year initiated by the noble Lord, Lord Lisvane. After that, I undertook to communicate with the Chancellor of the Duchy of Lancaster, who wrote back to try to allay those concerns, and a copy has been placed in the Library. The review to which I referred is a joint review and can make progress only if it is agreed by all four parties. The noble Lord suggested the heavy guns of a royal commission; I think some nimble light artillery might be better focused to address the issue.

[Lord Morris of Aberavon (Lab)]

My Lords, when did UK Ministers last meet Welsh Assembly Ministers, and when do the Government intend to reply to the severe criticism made by our Delegated Powers Committee last October of the Agriculture Bill now before Parliament, which sought to bypass the devolved legislatures—or are the Government blind to the fact that the devolved Administrations are now part of our constitution?

[Lord Young of Cookham]

A top priority for the Government is the constitutional integrity of the UK, and that is secured by a good working relationship between all four Governments. I accept that the intergovernmental architecture underpinning that relationship needs buttressing, and that is why we are undertaking the review that I mentioned. As for meetings, as the noble and learned Lord will know, there is a plenary JMC, a European one, a EU negotiations one and a ministerial forum. They are meeting regularly. The ministerial forum last met in February. The JMC on EU negotiations also met in February. Perhaps I could write to him on the specific issue that he raised about the DPRRC.

Brexit: Stability of the Union

Lord Morris of Aberavon Excerpts

Thursday 17th January 2019 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, the House is grateful to the noble Lord, Lord Lisvane, for initiating the debate. The principal organ for maintaining the stability of the union must be the Parliament of the United Kingdom. The role of the devolved Administrations, though important, is complementary. I will give an immediate example—two in fact—where the United Kingdom Government have not strained to fulfil this important role.

The original proposals of the European Union (Withdrawal) Bill certainly did not do so. In its clawing-back proposals—Clause 11 in particular—it ignored what the devolved Administrations had been enjoying for years. As far as Wales was concerned, through the good sense of the Chancellor of the Duchy of Lancaster and Mr Mark Drakeford, agreement was reached. In Scotland, agreement was not reached. There has been litigation, referred to by the noble Lord, Lord Lisvane, but the bottom line is the statement of the Scottish Constitutional Relations Secretary that he could not conceive of a situation where legislative consent would be given to any matter from the United Kingdom Parliament on agriculture, trade and fisheries. Perhaps the Minister could tell me what the state of play is now as far as Scotland is concerned on that aspect.

The Agriculture Bill now going through the Commons suffers from the same difficulty and the Delegated Powers Committee of this House has hammered its proposals because, again, they bypass Parliament and the devolved Administrations. The proposals give powers back to United Kingdom Crown Ministers and ignore what has been developed. We in this House will therefore have to return to this in due course. These are recent examples of what the noble Lord, Lord Lisvane, referred to as “imperial condescension”. Nothing seems to have been learned and we are back to square one on this issue.

The next issue I want to raise is whether another independence referendum in Scotland would destabilise the union. I venture to think, perhaps surprisingly, that it might not. I regret that there is no SNP representation in this House. Sinn Féin has a long-standing objection to representation in the Commons; in my role as Attorney-General for Northern Ireland, I discovered that fairly rapidly. Nationalist parties from the time of the Irish Members have had an influence in the Commons well above their numbers. From 1885 to 1906, they dominated Parliament, and the Liberal Government of the day had to rely on them because they had no majority until 1906. The Callaghan Government, in which I played a part, lost their vote of confidence in 1979 by one vote because although the SNP had been warned that turkeys do not vote for Christmas, it pulled the plug on the Government. As a result, it lost nine of its 11 Members.

I am relaxed about whether the SNP gets its second referendum—another once-in-a-lifetime one, it has been called. As an outsider but an interested Celt, I do not think it would undermine the United Kingdom’s situation and perhaps the Scots might enhance our stability by being released from their grouse of democratic deprivation. I would not forecast the result but I would warn the SNP about any economy based on how a sheik in the Middle East turns the tap on oil, given the volatility of its price. Perhaps it should look at the biblical advice of not building its house either on sand or on the product of sand.

I close by remarking that the future must be resolved on a much more basic principle of having a convention, which we discussed in the last debate, to ensure that piecemeal reform is not continued. Rather, we should look comprehensively at the future while understanding the development of the existing and new powers. If we are to have a stable future, a convention is required.

Constitutional Convention

Lord Morris of Aberavon Excerpts

Thursday 13th December 2018 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I am grateful to my noble friend for tabling this subject for debate and I endorse his remarks about the late John Mackintosh.

This debate gives us an opportunity to turn our gaze from the subject which has been dominating politics recently. Until the Brexit proposals, the most important constitutional change in our history since the Reform Acts and electoral suffrage were the devolution proposals and their fulfilment. The first point I make is the comparison in the preparation and timescale of the two issues. EU exit proposals, a referendum, an election and the triggering of Article 50 without a plan have barely taken three years. No plan B or C, and probably no plan A either.

Devolution took much longer. The catalyst was Harold Wilson’s royal commission in 1968. Ideas were maturing by the 1974 election and, when I became the Welsh Secretary, I was asked by the Prime Minister to bring forward my proposals. This was followed by the ill-fated legislation between 1974 and 1979, when I had the privilege of being one of the architects of Welsh devolution. The proposals were felled by a referendum and underlined the need for greater preparation and acceptance by the electorate. It is a lesson that we all learned.

Long before that, going back to my days as a graduate student in 1953, I had been mulling over the way forward for Wales. Some 18 years went by after the referendum, but it gave me immense pleasure as the Attorney-General to guide the Cabinet committee in 1997 on the legal implications of the legislation which substantially built on the work done in the 1970s. I am glad to have been at the coalface during both periods. Such is the degree of acceptance now that I do not know of anyone who would seriously try to put the clock back. That does not mean that the evolution of devolution has not been without its difficulties and, indeed, unintended consequences. Later Acts to further the process in Scotland and Wales prove this. As my noble friend’s Motion implies, looking at the UK as a whole, the problem that remains to be cracked is legislating for the sheer size of England compared with Wales, Scotland and Northern Ireland. I think that most people would agree that there is no appetite in England for such jurisdictions to be created.

I confess that I do not know the answer, but I have noted the piecemeal reforms being made in some of our cities. What I am conscious of is that the divergence between different parts of the United Kingdom could be the cause of strains and difficulties in the future. It has been said that royal commissions have fallen out of favour. I believe that the Royal Commission on the Constitution was the last. That royal commission was set up in order to find a way forward. It and its sub-committees were made up of eminent men and women of different persuasions and experience. Not surprisingly, there were many divergences in their conclusions. The only unanimity was on the need for reform. In our case in Wales, they offered a range of solutions in a series of minority conclusions. This was not catastrophic; it offered choices to politicians. The Cabinet, after many meetings and two or three all-day sessions in Chequers, proposed limited devolution for Wales.

It was not intellectually unsustainable, as one of my noble friends described it in this House many years later. It was the considered view of a Cabinet made up of the Prime Minister and a small number of Members who wanted devolution, but with a substantial number, differing at each meeting, who wanted nothing to do with it or were simply bored with it. All you have to do to find out what happened is to look at the diaries of my noble friend Lord Donoughue. As the years have rolled by, I have been an enthusiastic supporter of further progress.

The second point I wish to make is that there has been a learning curve, and a steep one at that. I am pleased about what has happened and the work that has been done. Devolution is fundamentally about giving power to people where they are and ensuring that they are able to diverge in their actions as they think fit. The Welsh Assembly has diverged and initiated actions in anticipating the dangers of plastic and in the presumption of organ donation. I surmise that the same has happened in Scotland. Others may follow in devolution practices in health and education.

Some years ago I gave the annual political lecture in Aberystwyth where I suggested that since our devolved Governments had been in existence for more than 10 years, there was a case for inquiring how effective the devolved Government had been in each political field which had been devolved. I proposed an inquiry to be set up by each Government and assisted by eminent people.

Thirdly, are there any dangers in divergence? For example, welfare payments, university fees and free prescriptions go to the heart of people’s needs but since the public purse, short of local taxation powers, is at Westminster and divergence can cause dissatisfaction—indeed envy—elsewhere, is there a limit to divergence? A constitutional commission—I would prefer to call it a royal commission—which has served us well in the past could look at what we have achieved and propose a way forward.

Advisory Committee on Business Appointments

Lord Morris of Aberavon Excerpts

Monday 10th September 2018 Lords Chamber

[Lord Young of Cookham]

My noble friend makes a good point about honour. When one joins your Lordships’ House we subscribe to the Code of Conduct, and part of that is an injunction to act,

“always on … personal honour”.

Those words have been used for centuries to describe the conduct that one should follow in the House. The former Foreign Secretary seems to defy the laws of political gravity. I certainly take my noble friend’s point: once you are no longer a Minister you are not subject to the Ministerial Code, so there is no formal sanction. However, as my noble friend suggested, I will certainly pursue her suggestion with the Cabinet Office. But at the end of the day, a Prime Minister is free to appoint whomever he or she wants, but I hope that whoever may hold that office will take into account the behaviour of Ministers when they defy the Ministerial Code.

[Lord Morris of Aberavon (Lab)]

My Lords, some years ago I served on this committee and grew increasingly frustrated by the revolving doors, but could not interest the then Prime Minister in any changes. Is it not the time to have an independent and thorough review of its workings; to tighten things up and lengthen the period before which officeholders can take up new posts—and, better still, to warn them early in their careers that they will not be able to glide as quickly into new posts; and to have sanctions where there are breaches?

[Lord Young of Cookham]

I take very seriously the suggestions of the noble and learned Lord, who served on this committee. The ACOBA is monitored closely by a Select Committee in the other place—the so-called PACAC committee—which has produced a series of reports making a number of recommendations, to which the Government have responded. We propose to tighten the current non-statutory scheme with increased transparency, awareness and monitoring, and we are also sharing any letters with prospective employers so that they are aware of any restraints on those who join their organisations. Finally, most of the people who come before ACOBA are people in public life with a high profile—indeed, many of them are Members of your Lordships’ House—and I suspect that many will not want to take the reputational hit of being publicly criticised by ACOBA. The prospective employer may wonder why they should take on somebody who has so recently flouted the rules of their previous employer.

Digital Forensic Services

Lord Morris of Aberavon Excerpts

Monday 12th March 2018 Lords Chamber

[Lord Young of Cookham]

On the specific issue of disclosure, which is important, the noble Lord will know that the Attorney-General has instituted a review, which will examine existing codes of practice, protocols, guidelines and legislation, as well as case management initiatives and capabilities across the whole criminal justice system, including how digital technology is used. Alongside that, the CPS and police forces are looking at any current cases to see that no cases go forward where there is a doubt about the disclosure process. The Government continue to monitor progress to ensure the police and the CPS deliver on the actions they have committed to undertake on the important issue of disclosure.

[Lord Morris of Aberavon (Lab)]

My Lords, have any doubts been raised or thrown against the findings of any one of these laboratories? Will the Attorney-General consult the Criminal Cases Review Commission, whose job it is to investigate miscarriages of justice, so that assurances can be given that no one has been wrongly convicted on the basis of evidence of this kind?

[Lord Young of Cookham]

The noble and learned Lord raises a very important issue. Where a laboratory is suspected of having fallen short of standards, procedures will be under way to ensure that retesting takes place. I understand that that is happening as we speak. I will draw to the attention of the Attorney-General the suggestion the noble and learned Lord just made.

European Union (Withdrawal) Bill

Lord Morris of Aberavon Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Norton, whose views on the law are treated with the utmost respect in this House. I will follow him in one respect: on the legal consequences of Clause 11, which is important to the devolved Governments in Scotland and Wales.

I will confine my remarks to that particular clause, which I believe is sufficiently contentious for me to make a fundamental objection to it on Second Reading. The Scottish Secretary made a commitment on behalf of the Government that it would be amended by the Report stage in the Commons. The Government have failed to do so. It would have been of enormous value to this House if that promise had been kept. Is it that Whitehall cannot get round to facing the fact that more than 20 years after the event, there are other legally constituted Governments in other parts of the United Kingdom in addition to Westminster?

Mr Stephen Crabb, the former Welsh Secretary—he understands devolution—let the cat out of the bag when it was reported that he addressed the Conservative Party conference last year and said:

“We still have to get the Cabinet Secretary to put pressure on departmental permanent secretaries to take devolution seriously”.


I want to say in passing that with devolution, surprisingly, the involvement of Wales in decision-making in Brussels seems to have been less, not more. When I was Welsh Secretary, I frequently attended the Agricultural Council of Ministers when Welsh agriculture was discussed. On one occasion, at the Prime Minister’s request, I chaired the Employment and Social Affairs Committee during our presidency. The big question is whether Clause 11 undermines the principle and practice of devolution now accepted after years of battling.

The Government have been accused of a Westminster power grab in the Bill, at the expense of the devolved Administrations. Such colourful language may not be justified, but the question remains of how the present proposals were put before Parliament without meaningful discussions first taking place with both devolved Administrations. The explanation may lie with the intermittent and sporadic meetings of the Joint Ministerial Committee, where proposals could have been hammered out and agreed. If I may spell out what I understand to be the legal position, as it stands, there would be a new restriction on the legislative and executive competence of the devolved institutions—a new set of shackles whereby they cannot change retained EU law. So, instead of the devolution settlement, where there is equality between the devolved institutions and the UK Government in terms of freedom to set policy in devolved policy areas within the EU framework, there would exist a situation where the UK Government can unilaterally lock down the devolved institutions’ opportunities to shape such policies.

I believe that the Bill, as it stands, fundamentally redraws the architecture of devolution—the architecture referred to by the noble and learned Lord, Lord Wallace of Tankerness. In my view, and that of the Welsh Government, the principle of effective equality between the UK Government and the devolved institutions in areas that are clearly devolved needs to be retained in the post-Brexit world.

Astonishingly, the Bill would give Ministers of the Crown powers to make rectifications of retained law in areas of devolved competence without consultation with the devolved institutions to reach over into areas of devolved competence. The granting of powers to a Westminster Minister to change an Act of a devolved institution without any input from those legislatures is totally unacceptable.

I now turn to the issue of legislative consent, which of course is a political convention only, as the Miller case commented. The Government have come exceedingly reluctantly to the need for legislative consent. It has had to be dragged out of them. On 21 June, the Prime Minister stated:

“There is a possibility that a legislative consent motion may be required by the Scottish Parliament”.—[Official Report, Commons, 21/6/17; col. 62.]


The Leader of the Commons the following day kicked it into touch. Confirmation had to be dragged out of the Government and I am grateful to the noble Lord, Lord Bourne, who said that we would be seeking consent from the three devolved bodies. The issue is of such serious constitutional importance that the two First Ministers of Scotland and Wales have sent a joint letter to the Government stating that neither the Scottish Parliament nor the Welsh Assembly would give legislative consent that the Government acknowledge is needed to the Bill in its present form. That letter, which the two Governments have sent, is very important. Hence, there is an urgency for getting back to the table for meaningful discussions. As I have said on previous occasions, once devolution is given, it cannot be taken back.

Public Bodies: Appointments

Lord Morris of Aberavon Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Young of Cookham]

I welcome the noble Lord to the Back Benches, although it means that Ministers are now exposed to the forensic questions for which he is renowned. I believe he is referring to Toby Young. Perhaps I may make it clear that although Toby Young is the son of a life Peer, he is not the son of this one but of Michael Young, founder of the Consumers’ Association and the Open University: a good and great man, notwithstanding his support for the Labour Party.

On the serious issue that the noble Lord raises, the Commissioner for Public Appointments, whom I mentioned in my reply, is reviewing the Toby Young appointment and has already referred to the need for due diligence about social media. We await his report with interest, and it may be that we need to revise the Governance Code on Public Appointments, which at the moment has a section on standards in public life and handling conflicts and includes something on the lines of potential embarrassments and so-called skeletons in the cupboard, before anything goes to Ministers. We are aware of the growing importance of social media in this respect.

[Lord Morris of Aberavon (Lab)]

My Lords, will the Cabinet Office expand the pool from which appointments are made to limit the same people moving seamlessly from one quango to another when each quango obviously has different needs?

[Lord Young of Cookham]

I think that criticism is more relevant to some of the appointments of non-execs in the City than to public appointments, but I take on board the noble and learned Lord’s point. Each case is looked at on its merits against the background of the criteria, but if he is concerned that the same people are going round and round, I will certainly pass that on to the Cabinet Office to see whether we need to review the procedure.