Wales Bill

Nia Griffith Excerpts

Tuesday 14th June 2016 Commons Chamber

[Nia Griffith (Llanelli) (Lab)]

It is said that devolution is a process, not an event, a journey rather than a destination, and that is certainly true when it comes to the Bill. The journey has taken longer than it should have done, because in the draft Wales Bill the immediate predecessor of the Secretary of State seemed determined to drive us along a tortuous and convoluted path, going back the way we had come. That was in spite of an extraordinarily united chorus of navigators—everyone from Cymdeithas yr laith to the Conservative group in the Assembly—telling him to turn round the other way. It was quite an achievement to unite everyone against that Bill. Mind you, the Bill was so bad that it would have made the Assembly’s job impossible, and it would definitely have taken Welsh devolution backwards, not forwards. I am glad, however, that the right hon. Member for Preseli Pembrokeshire (Stephen Crabb) eventually listened, put the brakes on, and prepared to change direction. We now have a piece of legislation that, while not perfect, is definitely a marked improvement.

I suppose like any lost driver, the right hon. Gentleman could be forgiven for hurling some irrational abuse at those of us trying to offer navigational advice. In February, he told us in no uncertain terms that we were launching some kind of separatist plot, that we had

“given up on the union”

and that all our criticism was actually a bid for Welsh independence. I hope that we can have a more sensible and measured debate today.

[Nick Thomas-Symonds]

My hon. Friend will remember from the Welsh Grand Committee debate on 3 February that the right hon. Member for Preseli Pembrokeshire (Stephen Crabb) said:

“There is nothing in the draft Bill that makes the Welsh Assembly consider whether legislating in a devolved area is necessary.”—[Official Report, Welsh Grand Committee, 3 February 2016; c. 61.]

Is my hon. Friend as pleased as me that finally the then Secretary of State realised what was in his own Bill?

[Nia Griffith]

Indeed, it was laughable at times when the former Secretary of State noticed things to which we assumed he had already given his approval.

I want to make it clear at the outset that we welcome the reserved powers model, for which we have been calling for some time, as we feel that it has the potential to clarify the devolution settlement, and we welcome each of the new powers contained in the Bill. As the party that established the Welsh Assembly, we want to see our devolution settlement strengthened, with more powers devolved from Westminster to Wales. We are glad that the Assembly will have new powers over transport, energy and elections. As with the areas it already controls, the Assembly will be able to use those new powers to make different choices that reflect the will of people in Wales.

The powers over shale gas extraction will allow the Assembly to take into account the very real fears that people in Wales have about fracking. Labour has made it clear that, as the necessary safeguards cannot yet be met, we should not push ahead with fracking. We welcome the powers over energy planning consents for projects generating up to 350 MW, but we would certainly like full powers over grid connections devolved to Welsh Government. I hope that that is what we will hear from the Secretary of State.

That would not solve the delays with the Swansea bay tidal lagoon, which are due to the failure by Conservative Ministers to agree a viable financial framework for investors to proceed. I very much hope that the Secretary of State does everything he can to speed up the review, so that we can have a world first in Wales, with all the positive spin-offs for our manufacturing industry, rather than letting other countries steal a march on us.

The power to change the name of the Assembly means that we could call it a Welsh Parliament. Responsibility for the voting age in Welsh elections means that the Assembly could introduce votes at 16 for elections to the Assembly and to local councils. Whatever the Assembly decides, what matters is that those decisions will be taken in Wales by elected Assembly Members.

[Chris Elmore (Ogmore) (Lab/Co-op)]

What concerns me about the devolution of powers to the Assembly on elections is that 16-year-olds could vote in local government and Assembly elections, but not in elections for MPs to the House. Does my hon. Friend share that concern?

[Nia Griffith]

Indeed. As a long-time supporter of votes at 16, which is now Labour policy, I share my hon. Friend’s disappointment that that could be the case.

[Simon Hart (Carmarthen West and South Pembrokeshire) (Con)]

Does the shadow Secretary of State accept that the new electoral legislation might enable a Welsh Parliament or Welsh Government to impose compulsory voting on our country? Would she support that or oppose it?

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[Nia Griffith]

The Secretary of State has told us that he will clarify that, so we will know whether that will be possible. I understand from what he has said today that it is very unlikely, because he said it was about people who can vote, not the system itself, but we await clarification from him to know where we are going.

The Bill is designed to strengthen and streamline the current devolution settlement. For example, clause 18 allows the Assembly to implement European Union legislation directly where it relates to devolved matters. That is a sensible development, and one that I sincerely hope does not become redundant by the time the Bill goes into Committee after the referendum recess.

The biggest structural change in the Bill is the move to a reserved powers model, as recommended by the Silk commission. As Silk said, that should allow the Assembly to legislate

“with greater confidence and with greater regard to the purpose of the legislation, rather than being constrained by uncertainty”.

That change will bring greater clarity to our devolution settlement and, if the Government get the Bill right, it should result in fewer cases being taken to the Supreme Court. Too much public money has been spent on such manoeuvres.

I welcome the important statement on the permanence of the Assembly and of Welsh government in clause 1, and the inclusion of the Sewel convention that the UK Parliament will seek consent from the Assembly before legislating on devolved subjects. This recognises that just 17 years since the process of devolution began, the Assembly has become a fundamental part of our constitutional landscape. In 2011 the Welsh people voted for the Assembly to have full law-making powers, an important sign of confidence in the institution. Together with this Parliament, the Assembly should now be recognised as one of two significant legislatures that represent the people of Wales.

It was the Assembly’s ability to pass laws in devolved areas that the draft Bill put at risk in the most unnecessary and short-sighted way. It is a simple fact that as a law-making body, the Assembly must have the ability to change the law, but the draft Bill would have required it to pass a number of necessity tests before being able to amend the civil or criminal law. In the words of David Melding, the Conservative Chair of the Assembly’s Constitution Committee, these tests would have created

“an atmosphere of profound uncertainty”.

He went on to say:

“Taken to extremes, the very exercise of the legislative function could be compromised.”

I am pleased that the Government have seen sense and removed these tests so that the Assembly can amend the law when it needs to, but there are other tests that I will return to later.

The removal of the necessity tests means that a distinct body of Welsh law will continue to grow over time, a fact that poses a challenge to the single legal jurisdiction of England and Wales. We understand that the justice impact assessments outlined in clause 10 are intended to address this point, but a more long-term solution may need to be found at some point in the future. We trust that the working group consisting of the Ministry of Justice, the Lord Chief Justice and the Welsh Government will keep this issue under review.

On the areas of the Bill that require more work, I want to deal with the reservations, the necessity tests, and the devolution of income tax. It was a common theme in the response to the draft Bill that the list of reservations was far too long. Even the Secretary of State’s predecessor expressed surprise at the number of reservations—an unusual admission, given that it was his Bill. This rather suggested that there was a lack of a clear rationale for the compilation of that list. I note that the list of reservations in this Bill is very slightly shorter but it still runs to 34 pages, and the justification for reserving some subjects is far from clear.

The root of the problem with the reservations in the draft Bill was that the Wales Office allowed Whitehall to have free rein in deciding which areas it was willing to devolve, rather than adopting the principled process that the Silk commission recommended. In its report on the draft Bill, the Welsh Affairs Committee said that Whitehall Departments should be given

“clear guidance about the questions they should ask themselves before deciding whether or not to reserve a power”,

and that this guidance

“must be published prior to the publication of the Bill, so that the final list of reservations can be assessed against the criteria given.”

It is regrettable that no such fresh guidance has been published, which would allow us to decide whether the list of reservations has been drafted with clear criteria in mind.

In response to the Select Committee’s report, the Secretary of State said:

“The explanatory notes that accompany the Bill provide a clear rationale for each reservation included in the list.”

I am afraid that this is not the case. The justifications offered in the explanatory notes are patchy at best. Most just state what is reserved, without explaining why. We will consider the list in more detail as the Bill proceeds, but the Secretary of State must be ready to justify each of the reservations and to present a rational basis for the final list.

It is already clear that some of the reservations are unjustified. The decision to create a special category of reserved trust ports is one example. This means in practice that control of every Welsh port except Milford Haven will be devolved to the Assembly. The Government have presented no sensible justification for this, or for the turnover requirement in clause 31, based on the Ports Act 1991. As the Bill stands, ports that meet an annual turnover requirement of £14.3 million or more remain under the control of the UK Government, while powers over those with a smaller turnover would be transferred to Welsh Ministers. This seems to create a perverse incentive, because if the Welsh Government foster economic development in smaller ports, which significantly increase their turnover as a consequence, the Welsh Government could find that they lose control over those ports.

In the absence of an explanation, we can only assume that the Government want to keep control of the most profitable ports, with a view possibly to privatising them in future, as indeed the Government considered doing in 2011. Strange, is it not, that this annual turnover is the same threshold above which ports can be privatised under the 1991 Act? Previous privatisation proposals have raised serious concerns about asset-stripping by speculators and the fragmentation of ports, and these dangers would be just as real in the case of Milford Haven.

On the necessity tests, I am pleased that the most problematic of these, relating to civil and criminal law, have been removed from the Bill. This has made the Bill markedly clearer and more workable than its predecessor. However, two necessity tests remain in clause 3 and in paragraph 1 of new schedule 7B. As many witnesses noted during the Welsh Affairs Committee’s inquiry into the draft Bill, the problem with these tests is the uncertainty surrounding the word “necessity”. A representative from the Law Society described it as certainly not a term that is as well understood by lawyers as a concept, which raises the potential of legislation being challenged not just in the Supreme Court, but in the course of other civil and criminal proceedings. Given these very real concerns, would it not be preferable to ditch the necessity tests entirely and retain the wording in the Government of Wales Act 2006, which avoids invoking this legally difficult concept?

On the ministerial consents, we welcome the simplified system proposed in the Bill, but the Government could go further. The Welsh Affairs Committee has recommended introducing a 60-day time limit for consent to be given or refused. A change to this effect would give greater confidence and I urge the Government to consider adopting it in law.

Finally, on income tax, the current situation is that the Welsh people would have to support the devolution of income tax in a referendum before the powers could be transferred to the Assembly. This Bill removes that requirement, meaning that the Secretary of State could devolve income tax powers via an Order in Council, without the Assembly even having to agree to it. That cannot be right. Allowing the Assembly to levy taxes is a very significant constitutional development, and one which should not take place without a clear democratic decision, so we are asking the Secretary of State to consider amending the Bill to require the Assembly to agree to the devolution of tax powers before they are devolved.

[Jonathan Edwards]

The shadow Secretary of State for Wales will be aware of the comments of the shadow Secretary of State for Scotland, who said on the BBC on 9 November 2015, on the Scotland Bill, which gave full income tax powers to Scotland:

“When this Bill becomes law, it will present the Scottish Parliament with the opportunity to make Scotland the fairest nation on earth.”

I assume that that would be an objective for the hon. Lady and her party. Why, therefore, is she dithering about giving her colleagues in the Assembly the same powers as Scotland to achieve that objective?

[Nia Griffith]

It comes as no surprise that an intervention from the hon. Gentleman focuses on his party’s determination to see Wales become an independent state, regardless of the economic consequences. As I have just explained, it is crucial to give the Assembly the opportunity to negotiate a proper, fair fiscal framework with a “no detriment” principle before it accepts responsibility for income tax. That opportunity is extremely important.

[Mr David Jones]

The hon. Lady mentions what she sees as the need for the Assembly to consent to the devolution of tax powers, but what about the people of Wales? Given that the people of Scotland were consulted in a referendum prior to tax-raising powers being given, does she not think that the people of Wales deserve the same respect?

[Nia Griffith]

We have moved on since the last Wales Bill, but it is vital that there is a mechanism to establish a clear financial framework with a “no detriment” principle so that the Welsh Assembly can have the confidence to decide whether to accept the devolution of tax-raising powers.

As I said at the outset, this Bill is not perfect and it will require amendments, but I hope that the UK Government will commit to working constructively with the Welsh Government and with Opposition parties to ensure that we deliver the strong, stable, workable settlement that the people of Wales deserve.

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[Guto Bebb]

Once again the hon. Gentleman is putting ideology ahead of practicality. There is a significant difference between the population that lies along the Welsh border with England and the population on the border with Scotland. We have to move very carefully. This is a proportionate settlement that ensures there is a degree of tax accountability. He is possibly pushing his luck on this, because that ideology is not supported by the people of Wales.

We are moving in the right direction. This Government have achieved a funding floor, whereby we guarantee that spending in Wales will never be less than 115% of spending in England. That guarantee was not forthcoming for 13 years of a Labour Government here in Westminster, and it has now been offered by this Government.

[Nia Griffith]

Does the Minister accept that it was in our 2010 manifesto? It was actually our Secretary of State who put it in our manifesto, so it came from us originally.

[Guto Bebb]

Well—[Interruption]—as the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Nuneaton (Mr Jones) just said from the Treasury Bench, it took 13 years for it to become a Labour manifesto commitment, yet we have delivered it within a few months of having a majority Conservative Government. I think we should be very proud of the fact that we have delivered that funding floor.

Significant questions have been asked about the retention of the two necessity tests. Those two tests are justified. We are saying clearly that there is a necessity test where the Assembly is legislating on matters that affect England. That is the right thing to do because there is an issue of accountability and democracy, and I do not think the Assembly should be legislating on issues that relate to England without having the necessity test. In the same way, where the Assembly seeks to legislate on matters that relate to reserved powers, it is important to have that necessity test. It should be noted that that second test is also in the Scottish Bill.

The hon. Member for Llanelli asked whether there will be a disincentive for devolved ports to grow. I am pleased to confirm that the Bill is clear that the sum in question is a fixed sum at the point at which this Bill is passed. For example, if a port has a turnover of £14 million, it will be devolved; if it then grows, it will remain devolved. There is no prospect of a clawback. In relation to a trust port, the argument for retaining responsibility for Milford Haven in Westminster is clearly made by the fact that it is responsible for 62% of all our gas imports. But this is again a step in the right direction and if, for example, as a result of the Welsh Government or the Welsh Assembly’s activity there is growth in the ports of Holyhead or Newport, they will remain part of the responsibility of the Welsh Government. That is a step in the right direction.

The hon. Member for Arfon mentioned that there is a difference between the way we treat water services and sewerage. The reason why one is mentioned in the Bill and the other is not is because we are now equalising the situation. As the hon. Gentleman knows, we are also looking carefully at the situation in relation to water, and more information will be forthcoming at a future point.

Several hon. Members, including the hon. Member for Ynys Môn (Albert Owen) and my right hon. Friend the Member for Clwyd West, highlighted issues in relation to energy. It is fair to say that this House has legislated to pass responsibility for wind farm developments to local authorities in Wales, and I think there should be a challenge to the Welsh Government as to why they do not trust local authorities with that responsibility. The Energy Act 2016 made that commitment to a local level of control on wind farms. I think we should all challenge the Welsh Government as to why they are unwilling to trust the local people on an issue of that nature.

The capacity of power lines was also touched on. Again, clarity is required here. It is correct to say that there will be a limitation in that power lines going across the border at a higher level than 132 kV will remain the responsibility of Westminster whereas other such matters will be devolved. This, too, is a significant step in the right direction that will make a real difference for economic development in Wales.

The hon. Member for Ceredigion highlighted three matters on the reservation list and asked why they had been reserved. One was the Severn crossing, which I touched on in an intervention. We believe that it is inappropriate to devolve powers over the Severn bridges when three of the four landing points are in England. That would be taking devolution to an extent that would bring it into disrepute. He also asked about prostitution, which does not fall into the category of legislating for criminal behaviour. It falls under schedule 2, because the aim is to ensure that there is no possibility of changing the legislation. We had to place it separately within the legislation in order to respond to legal constraints. He also asked about heating and cooling systems, and the aim there is to ensure that everything to do with electricity and gas appliances is regulated in the same manner across England and Wales. Again, this is an effort to ensure clarity.

My right hon. Friend the Member for Clwyd West asked about speed limits being devolved. It is important to point out that that was a recommendation by the Silk commission. The proposal was also part of the St David’s day process and there was agreement on it at that stage. Also, changes to speed limits in Wales are already being implemented at local authority level, so we believe that this is an appropriate change.

It is fair to say that this is a complex and difficult Bill. It has had a long gestation period, and it is been subject to significant scrutiny here in the House and in the Welsh Assembly, as well as by civic society in Wales.