Government of Wales (Devolved Powers) Bill [HL]

Lord Wigley Excerpts

2nd reading
Friday 28th October 2022 Lords Chamber

Moved by

[Lord Wigley]

That the Bill be now read a second time.

[Lord Wigley (PC)]

My Lords, I thank all noble Lords who are down to speak today. In this, my 12th—and perhaps my last—full year in this Chamber, I feel that it is a timely duty to introduce a Bill which, if passed, would be widely welcomed in Wales’s Senedd across party lines and would lead to more harmonious working between the Senedd and the UK Government. The new UK Government are clearly aware of that need, as reflected by Prime Minister Sunak’s phone call to Mark Drakeford on Tuesday of this week.

The Bill’s purpose is to rebalance the relationship between Westminster and the Senedd by formalising a process which should be respected if, for any reason, there is a need to modify the devolved powers within which the Senedd operates. I appreciate that we work within the framework of a unitary state and do not have the checks and balances inherent in a federal constitution. There is an old saying that power devolved is power retained. That truism—if I may use that phrase without impugning the new Leader of the House—is what makes the provisions of the Bill necessary. The aim of the Bill is to provide greater stability than has existed over recent years, particularly since the Brexit vote, which led to the legislative powers of the Senedd being undermined by actions of the UK Government. On several occasions this was against the wishes of Wales’s Government, and at times appeared in conflict with the legislative framework within which the Senedd operates.

I speak on behalf of Plaid Cymru, but I know that my objectives are shared by Wales’s Labour Government, Labour and Liberal Democrat Senedd Members and Welsh colleagues in this House. I am particularly grateful to the noble and learned Lord, Lord Morris of Aberavon, a distinguished former Secretary of State and Attorney-General, who was down to speak when the Second Reading was scheduled for last month, but who apologises for being unable to be with us today. He has written to me to indicate his support for the Bill, citing our experience during the pandemic as exemplifying the need for intergovernmental co-operation mechanisms to be addressed. I also believe that there are some Welsh Conservatives who accept the case I make today, as it is in everybody’s interests to have both stability and clarity with regard to the Senedd’s powers.

Devolution in Wales has evolved since the referendum 25 years ago last month. Wales has gained greater self-confidence and a greater willingness to take responsibility for the government of our country within the devolutionary framework agreed by Parliament and ratified by two referenda. Of course, the 1997 referendum was carried by a whisker, which reflected feelings among voters that the proposed model of devolution provided a glorified county council. When the powers of the Assembly were augmented, they were confirmed by the 2011 referendum, with a 2:1 majority supporting primary lawmaking powers. Devolution is here to stay, so it is incumbent on us, in Westminster and Cardiff Bay, to make it work. That requires stability and transparency of powers.

The devolved powers to which I refer fall within the framework of the Wales Acts of1997, 2006, 2014 and 2017, but such legislation should not be regarded as tablets of stone. Devolution is a process, not an event, and it must be transparent and mutually respected. If major constitutional amendments are proposed, as with primary lawmaking powers in 2011, of course it is right that they should be subject to a referendum, as would be the case if a substantial body of opinion in Wales supported independence. Likewise, the Senedd can be abolished only if approved by a referendum. That safeguard is built into the 2017 Act.

However, it would be unreasonable to hold a referendum on every small change in the devolution settlement which may be triggered by other events, as was the case with the consequences of Brexit. If we are to accept that that is the case, we must provide a mechanism whereby changes to the existing powers of the Senedd must not be imposed without agreement. This goes to the heart of the devolution settlement. A failure to understand this is more likely than any other single factor to undermine the union in its present form. Westminster must surely accept that having effectively transferred sovereignty for prescribed areas of government to the Senedd, it cannot, on the pretext of the absolute sovereignty of Westminster, then choose to overrule the Senedd or impose its own policies regardless of the wishes of the devolved Parliament in matters that have been devolved. To do so would make a mockery of devolution. There is surely a need for Westminster to respect its own processes.

Sadly, this has not been our experience over the past decade of Conservative rule. From the early days of the Cameron Government, we saw a glaring example of wanton abuse of power. The Welsh Government had saved money by aggravating year-end departmental underspends to create a capital fund, which, if used properly, was to be used to build hospitals and schools. What did the Treasury do? It clawed back the entirety of the saved funds which had not already been committed. I ask in all seriousness: what message did that send to Wales? Then there was the Silk commission’s report set up by the Cameron Government, which recommended the devolution of police powers as is the case for Scotland and Northern Ireland. This was supported by leading Conservatives in Wales, including the noble Lord, Lord Bourne, yet it was rejected. On this, as on other matters, there is a culture of Westminster knows best—that nanny knows best.

This was seen most acutely during the Johnson years. Let me give some examples. First, there was the internal market Bill, which the Welsh Government described as an Act which

“impermissibly, impliedly repeals parts of the Government of Wales Act 2006 in a way that diminishes the Senedd’s legislative competence”.

That was undertaken by the use of Henry VIII-type powers. Then take the Trade Union (Wales) Act 2017. In June, the Government announced their intention to overturn that Act, passed by the Senedd. It was within the competence to legislate in this matter. It was an Act to constrain public bodies in Wales from using agency workers to break a legitimate industrial action by trade unions. Then there was the European Union (Withdrawal) Act, whereby, in circumstances where EU and devolved laws overlapped, powers will transfer to the devolved institutions at the end of the transition period. The Act passed by Westminster allows UK Ministers to freeze the devolved Government’s powers to legislate in those areas.

There are further examples of such undermining of devolved powers in the Elections Act, the Police, Crime, Sentencing and Courts Act, and the way in which the levelling-up fund and the shared prosperity fund are being managed without regard to the Welsh Government’s responsibilities for financial matters within devolved competencies. During the Tory leadership campaign recently, we heard Liz Truss announce that she would take steps to construct the M4 relief road at Newport, despite not having the legislative power to do so.

In all these areas, the UK Government may have a legitimate interest, but any action, particularly legislative action impinging on devolved responsibilities, should surely be taken by agreement between Westminster and the Senedd. The Bill provides such safeguards.

The provisions of the Bill are modest. Clause 2 requires that if there is a proposal to sidestep or override powers that have been devolved, that can happen only if there is a vote in which two-thirds of the Senedd’s elected Members endorse such action. There may well be times when it is necessary to revisit certain devolved powers because of changed circumstances. Where common sense dictates that there should be a pooling of powers for specific functions, either to the UK Government or to a unique mechanism for dealing with specific issues, I have no doubt that elected Senedd Members will be as sensible and prudent as would MPs, Peers and Governments at Westminster—indeed, perhaps more so. However, where there is a fundamental difference, let Westminster accept that it should not impose solutions on an unwilling devolved legislature, so the Bill requires a supermajority of all Senedd Members to endorse any such changes.

The Bill provides that devolved powers should not be amended or withdrawn without their approval by way of a consent procedure, specified in Clause 2, which would entail the need for the support of two-thirds of Senedd Members. Clause 3 requires a Minister who wishes to introduce a Bill, disregarding the supermajority requirement, to have the matter referred to the disputes avoidance and resolution process outlined in the Cabinet Office policy document, The Review of Intergovernmental Relations, published last January, and the Minister is required to lay a report before Parliament at least seven days before the issue in dispute is debated. Clause 4 provides for compensation to be paid, when appropriate, to Senedd Cymru arising from any modification of the powers without the Senedd’s consent.

This is a modest Bill to deal with a strongly felt grievance. It provides a framework to avoid the difficulties we have seen in recent years. The Bill may well need to be fine-tuned in Committee, but I ask noble Lords to give it a Second Reading and to do so in a positive spirit that conveys a message to the Senedd that Westminster is prepared to consider these issues constructively and to find a better way of dealing with them than that which we have seen in recent years. I beg to move.

--- Later in debate ---

[Lord Wigley (PC)]

Diolch yn fawr iawn i’r Gweinidog am ei sylwadau ar ran y Llywodraeth. I thank the Minister for her comments on behalf of the Government. I particularly thank colleagues from all sides of the House for their contributions to this short debate, nine of whom are Welsh and one, the noble Lord, Lord Empey, from Northern Ireland. The noble Lord, whose words we always respect, has spoken on a rather ominous day for devolution in the Province. I noted his comments on the need for a comprehensive constitutional review, and I agree wholeheartedly with that. That sort of review could well address the issues that have been raised.

Clearly, I would be a bold man to expect universal agreement on the detailed contents of my Bill, but it is fair to say that there is agreement that steps need to be taken to deal with the issues and tensions to which I have referred. I am grateful to the noble Lords, Lord Murphy and Lord Hain, the noble and learned Lord, Lord Thomas, and the noble Baronesses, Lady Humphreys and Lady Wilcox, for drawing the attention of the House to the need for an improved system to deal with circumstances where there is disagreement between Westminster and the Senedd on the basis of mutual respect, and to avoid whittling away the powers of the Senedd. I note the outright opposition from the noble Lord, Lord Hunt, to the contents of the Bill, which I am sorry to hear, and the reservations of the noble Lord, Lord Anderson.

I thank the Minister for her response, although she fundamentally based her case on the perception that sovereignty rests here fundamentally and forever, and not in Cardiff. I suppose that is the reality of the situation. That is the problem that we in Wales have to face—is it not?—and it raises all sorts of other questions.

Clearly, being in a party of one in the Chamber, I would be ill advised not to accept that I need to be flexible in Committee, but I want to do so without losing the main thrust of the Bill, which addresses an issue that will not go away. On that basis, I beg to move that the Bill be read a second time.

Bill read a second time and committed to a Committee of the Whole House.