Public Bodies Bill [HL]

Lord Wigley Excerpts

Monday 4th April 2011 Lords Chamber

[Lord Rowlands]

My Lords, I will speak to my amendment, which would delete Clause 13, and to Amendment 87A, which suggests that parliamentary consent should be added to that of the Secretary of State for powers under the clause. I will preface my remarks by saying that my record shows that I have been a fervent supporter of transferring legislative competence to the Assembly through the procedures that we have had in the past. I refer to the legislative competence orders that were in Part 3 of the Government of Wales Act and to individual framework clauses in Bills that have come before the House in the past two or three years. I supported them because this was an important and useful way in which to transfer legislative competence until the referendum decided that the Welsh Assembly and Government should have full legislative powers. I am not an opponent of such transfers.

However, when I saw Clause 13, I thought that it was a step too far. This House has many times reflected deep concern and uneasiness about sweeping, ill defined powers granted to Ministers. The report of our Regulatory Reform Committee stated that the powers in Clause 13 were “insufficiently limited”. The committee made the same objections that it had made to Clauses 1 to 6, which was that Minsters were given,

“unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process”.

There have been many changes to the Bill, but the fundamental issue of the sweeping nature of the powers in it has caused serious concern. Henry VIII looks like a parliamentary democrat when one considers the powers that we are giving to Ministers in the Bill. I still feel extremely uneasy that an Act of Parliament is bestowing these powers on Welsh Ministers. This should be the National Assembly’s responsibility now that it has the power to do so after the referendum; that would have been a better process.

My second point, to which the Minister made no reference even though it is the reason for yet another new clause in the Bill, is that our Regulatory Reform Committee also drew attention to an extraordinary aspect of Clause 13. The committee states:

“The net result of what is proposed here is that Parliament should delegate to Welsh Ministers the power to amend Acts of Parliament in matters as respects which Parliament has not delegated to the NAW the power to amend Acts of Parliament by enacting measures, and all subject to no Parliamentary control at Westminster whatsoever”.

In other words, we were seriously blurring in Clause 13 the division of responsibilities between devolved and non-devolved powers. I accept that, since then, amendments have been made that clearly define the nature of the devolved functions and the powers that Welsh Ministers will have in Wales in relation to this Bill. I welcome that. However, in the Government’s response to this fundamental criticism that they were blurring the division of responsibilities, lo and behold the only two precedents that could be dredged up to justify such a power were the European Communities Act 1972, which everyone recognises is unique to say the least, and a subsection from planning legislation of 1998. I have looked at both and I do not think that they are comparable in any shape or form. Fortunately, it seems that, as a result of the pressures that have been applied and the criticisms that have been made, the clause defining the devolved and non-devolved powers relating to Wales has now been reasonably satisfactorily resolved.

What is remarkable is that here we are, post referendum, with power having been transferred to legislate in Cardiff on this and other issues, yet in a Bill of this House we are writing out in detail the procedures that Welsh Ministers have to go through to justify and consult. In other words, we are writing into Welsh Ministers’ responsibilities the super-affirmative procedures that we are applying to UK Ministers. Putting aside the general merits of the issue, I think that it is quite extraordinary that at this moment in time we are seeking to write into a Bill a remarkable clause that lays out in great detail the responsibilities of Welsh Assembly Ministers to consult. Again, I respectfully suggest that that should be the decision of the Assembly.

The Minister’s reply is that on 8 March we suddenly had an approval of all these proposals by the Assembly. Although the powers in Clause 13 have been evident since last October, it is quite clear that Assembly Members have not endorsed the original clause. That is why I have sought to remove the clause. I accept that since then there have been changes. Obviously the conversations that have gone on between Welsh Ministers and UK Ministers and officials have clarified the position in a number of important respects since I tabled my amendment, but I think that we ought to be wary about offering such powers at this stage to Welsh Assembly Ministers. They should seek them themselves from their own Assembly. Having said that, I accept that at this stage in the proceedings it is going to be difficult to turn back. Miss Jane Davidson, the Environment Minister, has fulfilled that portfolio with vision and commitment. She has now retired but I understand her desire to have these types of powers.

Finally, I hope that, if nothing else, the Minister will accept my Amendment 87A. Changes to these bodies will have consequences across the border. Quite rightly there is a provision that the Secretary of State has to consent to any changes made, just as consent has to be sought from the Assembly Ministers and the National Assembly to any orders that could affect Welsh devolved powers in relation to these bodies. However, in this case, only the Secretary of State’s consent is required. I accept that that consent is necessary on any cross-border issues, but surely both Houses here should approve such changes as well. Just as Assembly Ministers and the National Assembly are expected to confirm their consent to changes that might be made by a UK Government, I honestly believe that we should also insist that both Houses of Parliament should approve any Secretary of State’s consent that could alter and change the role, functions and money of the bodies that are covered in these clauses.

I accept and understand that now, because Clause 13 has been transformed and additional safeguards have been put in place, there is a clear distinction between devolved and non-devolved powers in the Bill, but I press the Minister to agree to Amendment 87A, if nothing else, so that this House and the other House have to approve the consent of the Secretary of State in relation to the clauses.

[Lord Wigley]

My Lords, I pick up some of the points made by the noble Lord, Lord Rowlands, which will no doubt exercise the House again in future because they touch on the lack of symmetry with regard to devolution. The powers in Scotland and Northern Ireland are different from the powers in Wales, even after the referendum that took place on 3 March. One of the arguments in favour of the changes that came through that referendum was transparency: people must be able to see clearly where responsibility lies so that the Government taking the decision can be judged and held to account. As the noble Lord, Lord Rowlands, said, anything that blurs that question undermines the intent of the devolution settlement.

There is also the more general question of the way in which orders are used to effect changes. When one has the capability in democratic fora, such as the National Assembly for Wales, to do things more openly and transparently than when everything is done by order, that should be used. None the less, I take the noble Lord’s point that some concessions and changes have been made to try to meet some of those points as the Bill has progressed.

I believe that Ministers in the National Assembly are broadly content with the provisions and that the Presiding Officer, the noble Lord, Lord Elis-Thomas, is likewise content. I have not tabled any amendments, but two or three issues would benefit from further clarification. First, can the Minister give an assurance that in every instance where matters are devolved, it is the Ministers in Wales who have the full powers with regard to any implementation of the Bill applying to Wales? I believe that that is the case, but I would be grateful if we could have that confirmed from the Dispatch Box.

Secondly, where there are cross-border issues, to which the noble Lord, Lord Rowlands, referred, can we be assured not only that, when there is an initiative in Wales, Welsh Ministers should consult first with their Westminster counterparts, but that, likewise and equally, when Westminster Ministers propose changes that have a cross-border implication, they, too, will consult Welsh Ministers before taking any action? That again concerns symmetry and transparency and ensures that there is harmonious co-operation on such issues.

Thirdly, when Bills or orders before either Chamber in Westminster have an implication for Wales in matters that are devolved, can we have an assurance that consultation will take place much earlier in the process as the Bills or orders proceed through their scrutiny in Parliament? That earlier consideration would be very valuable, as it would have been in the context of S4C, for example, which we have debated under the Bill.

This applies not only to matters that are devolved; there are also matters that are not devolved or not fully devolved where there is specific relevance for Wales. I would imagine that, in the spirit of the co-operation described in the amendments, there will be full consultation on those matters also. I press that any such consultation should take place as early as possible so that there is full engagement and the response to consultation can be built into that process. With those few comments, I look forward to hearing the Minister’s response.