Wales Bill

Lord Wigley Excerpts

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

Moved by

[Lord Wigley]

6: Clause 2, page 2, line 12, leave out “normally”

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[Lord Wigley (PC)]

My Lords, the amendment stands in my name and that of the noble Lord, Lord Elis-Thomas. As your Lordships can well imagine, it is a probing amendment which, depending on the response that we receive in this short debate, may escalate into something more substantial. The Bill reads:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly”.

So what does “normally” really mean?

I have searched through the Bill and have failed to find any definition. I am not aware that the term is so commonly used in other legislation that there is a generally accepted meaning as far as use in legislation is concerned. In an attempt to seek clarification, my colleagues in the other place contacted the House of Commons Library, which confirmed that there is no legal status for “normally”. In this instance, it is inherently vague and asking for trouble, because it leaves every interpretation open to the courts—at least potentially so.

I am aware that questions on this matter arose also in the Commons and that the only response which Ministers were able to give was:

“The ‘not normally’ element of both the convention and clause”—

in relation to legislative consent—

“is essential as it acknowledges parliamentary sovereignty”.—[Official Report, Commons, 5/7/16; col. 784.]

Following a further check with the Library, it confirmed that every Act which requires the assent of the Assembly already contains a clause that confirms parliamentary sovereignty. Including “normally” here achieves nothing but confusion. That is simply unsatisfactory. We cannot make a law on such a basis. “Normal” is an immensely subjective term. What is deemed normal by one person may be regarded as highly abnormal by another.

Noble Lords may be aware of my work in the field of learning disabilities. At one time, people with such disabilities were referred to as “mentally abnormal” or “educationally abnormal”. That carried a huge stigma and was rightly consigned to the dustbin of history. The concept of normality is loaded with preconceptions and it should never be enshrined in law, certainly not without a very tight definition.

The word “normally” is a Trojan horse at the heart of this legislation. It is totally at the whim of Ministers at Westminster as to what it means. It enables them to use this loophole exactly as they might wish. It would have been more honest to write into the Bill that a Westminster Minister may intervene just when and how he or she wishes on matters falling into this category of Assembly powers.

This is just not good enough. I ask for the support of the House in removing the term if the Government cannot bring forward an acceptable term or some believable explanation for its existence in the Bill. I beg to move.

[Baroness Morgan of Ely (Lab)]

My Lords, I shall speak to Amendments 7 and 8. These amendments are designed to clarify the circumstances in which the National Assembly’s legislative consent is required for parliamentary Bills. As drafted—as the noble Lord, Lord Wigley, has suggested—the Bill provides that Parliament will not “normally” legislate with regard to devolved matters without the Assembly’s consent. He has just pointed out the difficulties in the definition of “normally”, but neither is there any definition of “devolved matters”. Indeed, elsewhere, the Bill speaks of “reserved matters” or matters that are “not reserved”. It does not use the language of “devolved matters” at all.

This provision closely follows an equivalent in the Scotland Act 2016. Your Lordships might recall that the equivalent provision in the Bill leading to that Act was the subject of rather anxious debate. The concern was that the provision was incomplete in specifying when the Scottish Parliament’s consent was required for UK parliamentary legislation. The provision had been included, following a recommendation from the Smith commission that the Sewel convention be given statutory underpinning. Unfortunately, the Government, in implementing that recommendation, gave the narrowest possible interpretation of the convention in writing it into the Bill.

While it is true that, as originally formulated, the convention proposed that a devolved legislature’s consent was required only in respect of a provision within its devolved legislative competence, it soon came to be accepted that consent should also be required if a parliamentary Bill proposed a modification of that very competence. I will simplify this: if the UK Government wanted to bring in a law on an issue where the Assembly already had the power to legislate—so on agriculture or education—the understanding is that that would not be possible without the Assembly’s agreement. However, if the UK Government proposed to change the Assembly’s powers to legislate, it is not clear that that Assembly agreement would be necessary.

Demonstrating that this was not a matter of controversy, the Government have repeatedly said—and the Minister himself has said on this Bill—that a Bill that radically modified the National Assembly’s legislative competence could not be passed without the Assembly’s formal consent, even though that might not appear obvious from the language of devolved matters. This issue is highlighted in the report on this Bill by the Constitution Committee of this House:

“There were important differences between the Sewel Convention as referred to in the Bill and the Sewel Convention as understood in practice. The Bill framed the Convention in terms narrower than those in which it is usually understood, by failing to refer to that limb of the Convention that is concerned with UK legislation that adjusts the scope of devolved competence”.

It should not be a matter of dispute between the UK and Welsh Governments. The difficulty is that, although the two Governments agree on the circumstances in which the Assembly’s consent is required for parliamentary Bills, the Bill does not reflect that common understanding. The purpose of the amendment, therefore, is simply to define what is meant by “devolved matters”. In so doing, it sets out the agreed circumstances in which the Assembly’s legislative consent is required for parliamentary Bills. Those circumstances importantly include the situation of the present Bill, which modifies the Assembly’s legislative competence.

This is quite a useful clarification that could be achieved without raising any new issues of principle that might be of concern to the Government. I hope at least that the Minister will be able to reaffirm that when a parliamentary Bill comes forward with proposals for modifying a devolved legislative competence, such a Bill—as he has promised with this Bill—can proceed only with the relevant legislature’s formal consent.

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[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his comments and for clarifying what I was intending to say, and I apologise if I had not made that absolutely clear. I have taken on board the points that are being made. I said that we will look at this in guidance, but as I have indicated there is a need for room for manoeuvre here, so I will take the points back and look at them.

[Lord Wigley]

My Lords, we are making progress. This is a good omen perhaps for a future amendment that is coming forward. I am grateful to the Minister for agreeing to take it back and look at it. It is always better to have something spelled out in the Bill quite clearly than to depend on guidance notes. Of course the objective of this Bill is to clarify and simplify the problems that have arisen over the past few years, not to dig more holes for ourselves. But in the spirit in which the Minister has offered to look at this again, I am happy to withdraw the amendment.

Amendment 6 withdrawn.

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[Lord Crickhowell]

My Lords, I preface my remarks with a story I was told long ago by Sir John Rodgers, who lived in Kent and was elected for a Kent constituency just a little way from his home. He decided to consult a neighbour, Winston Churchill. Winston replied: “Never live in your constituency”. That is not my position, but I have real practical objections to what is proposed, particularly for candidates.

I have two objections. Let us consider candidates first. Someone may have been born and brought up in Wales and his family live in Wales, but he is at present working in, say, London, perhaps as a civil servant or in business. He decides that he wishes to fight an election. If the amendment were passed, he would be forced to move back to Wales and give up his employment before standing.

I know of at least one very distinguished individual who in the war was in a reserved occupation in the Foreign Office and was determined to serve in the Armed Forces. He promptly got himself chosen as a candidate and immediately had to leave the Foreign Office. He became a founding member of the SAS, served with immense distinction in the Baltic states and later became a very distinguished Member of Parliament. One can also think of someone serving in the Armed Forces—perhaps in the royal regiment of Wales—encamped outside the Principality. He is about to leave the Army or decides that standing as a candidate forces his removal from the Army list. He is perfectly happy, after the election, to move to his constituency and live in it but, as this amendment is drafted, that would not be possible.

I have a second objection. In recent years, I have moved to Monmouth. Take an individual who has been born and brought up in Monmouth. He lives and works there; he worships there; his children go to school there; he goes to a doctor there. However, it chances that he lives just across the Wye bridge and is therefore living in England. He is disqualified from standing. My present Welsh home is on a road that leads up out of Monmouth and virtually every house in it is in the town, but if you go three-quarters of a mile up the road from me to my next-door neighbour, that house is in England. Its occupant may live, work and do everything he has to do in Monmouth but he would be disqualified. This situation is not unique to Monmouth. It happens that a considerable number of Welsh towns straddle the border, starting in the north with Bangor-on-Dee. On Saturday afternoon I passed through Knighton on my way to a memorial service in Presteigne. Someone might live and spend their whole life in Presteigne but it just happens that the house they live in, which is still part of the town, is 100 yards across the border and in England. They are therefore disqualified from standing for election in the county of Powys. Going south, there is Hay-on-Wye, and I could name a whole string of other little towns and hamlets up the border which would be disqualified for entirely the same reason.

Broadly, I have slightly more sympathy with the amendment in the name of the noble Lord, Lord Wigley, which at least allows them to stand as candidates but says that they then have to be living in Wales before they take their seats. However, that worries me too. Going back to my example of Presteigne, can it really be right that the person who lives, works and carries out all their business in that Welsh town is forced to sell their house 200 yards, say, across the border, in order to qualify for membership of the Assembly? It does not seem to me that this is a reasonable proposition.

I wonder too whether there may not be difficulties when boundary changes take place that force people suddenly to move their homes. However, I will not dwell on that. I have voiced my objections. I do not think this is a reasonable set of amendments and hope that it will not be passed.

[Lord Wigley]

My Lords, the noble Lord, Lord Crickhowell, has certainly given us cause to consider this issue further. As I speak to my amendment, I will deal with some of the points that he raised. Amendment 22 standing in my name is grouped with Amendment 20 moved by the noble Lord, Lord Hain. As he said, my amendment has a similar purpose to his—namely, to ensure that those who legislate for the future of Wales and those who decide the priorities of public expenditure in our country should do so on the basis that they actually live in Wales, know the needs of our communities and genuinely represent the people among whom they reside. I would have thought that was a fairly fundamental principle. I go further and say that ideally each representative, both constituency Members and regional list AMs, should live within the area they represent. In that way, they know the feelings and priorities of their constituents, friends and neighbours and appreciate the tensions which sometimes arise. During the 27 years I represented Caernarfon, a fundamental element in the way in which I undertook the job was that I could feel I was part of the community. I realise that cannot always be achieved and that some people living a couple of miles outside the constituency may be fully integrated into the community they represent. I also realise that there will be times when boundary changes may work in a way that takes the home of a sitting AM or MP marginally outside the constituency in which they were previously living. These amendments do not address those circumstances. They arise from the incredible fact that there is an AM, as has been mentioned, elected to the Assembly by way of the regional lists, who not only did not live in the region when he stood for election, but did not even live in Wales. What is more, he has indicated that he has no intention of moving his main home to Wales. Frankly, that is appalling and should not be tolerated. If our country is good enough to give him a job and pay his salary and expenses, it is good enough for him to accept that he should live there in order to undertake the work. Nobody is forcing him to come to the Assembly. If he chooses to do so, conditions go with the job, and I believe this is one of them.

I have tabled a slightly different amendment from that of the noble Lord, Lord Hain, as I can see circumstances where his wording could cause difficulties. There has to be a date at which a residency requirement applies. It could be the date a candidate is selected to fight a constituency, the date of the election or the date on which the AM in question takes up his or her responsibilities. I personally believe that the date should be that on which the Member takes up the seat, and should be geared to the point at which he or she takes the oath of office, although the qualification date will need to be geared to some existing verifiable location and date—my amendment suggests the electoral register in force at that time—but I realise that that, too, has shortcomings. If the date is that on which the election is declared, in the circumstances of a by-election, candidates from outside the area would effectively be debarred. Applying the rolling electoral register could possibly overcome that. I am not sure how this might have worked in the Neath by-election in 1991, for example, in which the noble Lord, Lord Hain, was first elected.

[Lord Elis-Thomas]

It was a very good by-election.

[Lord Wigley]

Yes, it was a very good by-election. I enjoyed it very much but then I was not standing. I should declare a past interest in that when I fought the Meirionnydd seat in 1970, which was then taken over by my noble friend in the subsequent election, I was working for Mars in Slough and living in the Thames Valley. There are many similar cases where people who have had to leave Wales to seek work might want to return, whether to a non-political job or to stand for election. The danger is that by having a rule as suggested in the amendments of the noble Lord, Lord Hain, there could be widespread avoidance, with prospective candidates renting an address for the period of the election, with everyone knowing that the address is merely a scam to give the impression that they are highly integrated local people. The address on the nomination paper for election should be the one at which they are registered to vote and to pay tax. If that is outside Wales, so be it; the electors can take that into account. However, once they are elected, they would be in danger of not being paid their salary or expenses if they had submitted a fraudulent address. Remember, these days there is a need to note for council tax purposes whether one’s address is permanent or a second home.