Welsh Assembly Legislation (Attorney-General)

Oliver Heald Excerpts

Tuesday 15th October 2013 Commons Chamber

[Paul Flynn]

Absolutely. We could have saved lots of the bedroom tax if this had not been done. The legal cost incurred by the Welsh Government was £30,000, and about £15,000 was spent on civil service time in the Wales Office. The total bill was £150,000. Why? Because some pernickety piffle artist in the Attorney-General’s office was trying to make some kind of stand against devolution. He went through the might of the High Court. Five judges were there, looking dignified and wise in their wigs. The total number of judges who agreed with the Government was zero. It was a unanimous vote that this was a frivolous intervention.

[The Solicitor-General (Oliver Heald)]

While following the very excited way in which the hon. Gentleman is putting his case, I cannot let him get him get away with that, because the Court made it clear that it was a perfectly justifiable application, and in fact it clarified the law in an important way.

[Paul Flynn]

I think that a number of them agreed and the judgment was won.

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[Huw Irranca-Davies (Ogmore) (Lab)]

I congratulate my hon. Friend the Member for Newport West (Paul Flynn) not only on introducing the debate and on his excellent peroration on the stymieing of legislation and policy in Wales by the current Westminster Government, but on expounding on the narrative history of the Chartists and why it is relevant. I can only share his disappointment that we have so little time to debate this—we could go overnight, but, in compliance with the wishes of right hon. and hon. Members, we will try to avoid that situation.

The legislative competence order process was a previous mechanism for producing legislation in Wales. It was slightly cumbersome and convoluted, and required a great deal of detailed scrutiny in Parliament. However, it passed some cognisance of the growing authority of the Welsh Government. LCOs were much criticised at the time—rightly, in some ways, because they caused delay and were complex, even for the very good officials in the Wales Office in London and in Cardiff, and for Welsh Government officials, who worked through the minutiae. The intention—to afford proper scrutiny in Parliament and ensure that the Welsh Government could introduce their own measures under the process within their clearly devolved responsibilities and so on—was good. Yes, it caused delays, but there was a good spirit. We managed to pass LCOs into legislation, even after good scrutiny in Parliament by the Welsh Affairs Committee and others. There was never any intention to hold things up unduly.

The purpose was the growing relationship under the LCO system between the right scrutiny of this place at that time and the right role of the Welsh people, through their elected officials in the Welsh Assembly and the Welsh Government, to introduce appropriate measures from Wales. As my hon. Friend pointed out, that was not without its difficulties. It could sometimes be tortuous—even the now legendary red meat LCO took a little time to get on to the books, and that was one of the more straightforward orders—but we got there eventually. On all occasions, the intention of my right hon. Friends the Members for Neath (Mr Hain) and for Torfaen (Paul Murphy) was for their officials to work with officials in the Welsh Government and the Welsh Assembly to try to progress the measures through the LCO mechanism, which was imperfect but was what we had at the time.

What has followed, with the will of the Welsh people, is ostensibly an attempt to streamline the process to give clarity on where devolved responsibilities lie, and to allow the Welsh Government, the Welsh people and Welsh civic society to get on with passing their own laws—whether we, on both sides of the House, might agree or disagree with them ideologically—to define their own democratic path. As we have heard, it has not quite gone that way. For those on the Opposition Benches it feels like there has been by the current Secretary of State for Wales—I do not blame the Solicitor-General for looking quizzical—a maybe inadvertent but deliberate attempt to hold up, to challenge, to rebuke the Welsh people for being so impertinent as to actually bring forward their own legislation.

[The Solicitor-General]

I am surprised to hear the hon. Gentleman suggest that LCOs are better than the current system, whereby the National Assembly for Wales has primary powers in 20 areas. What is more, most of the Bills are going through without any difficulty. There have been difficulties with two, but the idea that we should go back to LCOs is wrong.

[Huw Irranca-Davies]

I could not agree with the hon. and learned Gentleman more. Perhaps I should clarify what I was saying: LCOs were clearly imperfect, but the new system is meant to be better. Even with the LCO paraphernalia—it was difficult and cumbersome—attempts were made within the constitutional arrangement, as my right hon. Friend the Member for Torfaen has made clear, to work through those difficulties. If necessary, and as a last resort, they would be escalated up the constitutional food chain for resolution at a higher level, but there was certainly not the seemingly macho political posturing of taking it outside of this place without recourse to internal mechanisms and straight to the Supreme Court. I can see only one possible justification for that: to prove some sort of point and say to the people of Wales and the democratically elected representatives in Wales, “Know your place.”

--- Later in debate ---

[The Solicitor-General (Oliver Heald)]

I start by thanking the hon. Member for Newport West (Paul Flynn) for initiating the debate. The issues raised are important and go to the heart of the UK’s devolution arrangements. It is clear that the issues have raised concerns among several hon. Members.

The hon. Gentleman, in his characteristic way, brought in history and his own political struggle over many years, and it was clear that he would like devolution to go further still. That is his viewpoint. I found the information about the three villages law of 945 particularly interesting, although I am not sure that it would be of current import and could cause some concerns if implemented by the current Government. It is not the Conservative’s stance on law and order, but it was an interesting piece of context.

The subject of the debate is the role of the Attorney-General in reviewing legislation passed by the National Assembly for Wales—a role that I share with him. Despite the comments of the right hon. Member for Neath (Mr Hain), this role was conferred by Parliament on the Attorney-General under the Government of Wales Act 2006. That was, of course, under a Labour Government, with their own approach to the issue of devolution. They had set forward a system of devolution that was a conferred powers model rather than the sort of model used elsewhere in the United Kingdom. As that happened, Parliament recognised that the devolution settlement for Wales must be made to work. The 2006 Act sets out the 20 “devolved” subjects in respect of which the National Assembly may legislate. It is the responsibility of this Parliament to legislate in any area that is not devolved.

The 2006 Act provides for the Attorney-General to consider each Bill of the National Assembly, so the Government look carefully at all legislation passed by it to ensure that it falls within the Assembly’s legislative competence. The Act provides that, where the Attorney-General or I consider a Bill to go beyond the Assembly’s competence, we can refer it to the Supreme Court to decide the question.

All of that recognises that it is in the nature of legislation that it may often appear to be about more than one thing. Where that happens with legislation passed by the National Assembly, a judgment has to be made about whether the legislation is about something that either is or is not devolved. The Government of Wales Act 2006 provides a means for the Attorney-General and, if necessary, the Supreme Court, to arrive at that judgment. If it did not, the devolution settlement could not work. The same power to refer a Bill to the Supreme Court is conferred on the Counsel General for Wales. In this way, there is an appropriate equality between the UK Government and the Welsh Government.

That illustrates an important point that I do not want to get lost in the debate. Something has been made of the idea that this Government are anti-devolution or are somehow determined to thwart the will of the Welsh Government and the democratically elected National Assembly for Wales. Where concerns arise, as the right hon. Member for Torfaen (Paul Murphy) said, most are resolved by a process of negotiation between the UK and the Welsh Governments. My officials have excellent working relations with their colleagues in the Wales Office and their opposite numbers in the Counsel General’s Office. The Attorney-General and I have excellent working relations, as one would expect, with the Secretary of State for Wales and with the Counsel General, Theodore Huckle QC. Together, we are working hard to try to reach agreement.

It was suggested by the hon. Member for Llanelli (Nia Griffith), the shadow Minister for Wales, that there was a problem with the UK Government making an effort to resolve issues before they escalated to the Supreme Court. It is, however, the last resort. The Wales Office, working with the Department for Environment, Food and Rural Affairs, has discussed with the Welsh Assembly Government concerns about the Agricultural Sector (Wales) Bill from the outset, and the Secretary of State wrote to the First Minister as soon as the draft Bill was available, expressing concerns about it—but the Welsh Government could not be persuaded to address them. The mechanisms provided under the Government of Wales Act 2006 will therefore need to be followed. Under its provisions, we are guardians of the Welsh devolution settlement and together we must put our efforts into making it work.

A reference to the Supreme Court is not a confrontational process. It does not amount to this Government or any Government picking a fight with the National Assembly. It is a simple recognition of the fact that a particular piece of Welsh legislation raises difficult devolution questions that are best answered by the independent Supreme Court. That process of resolution is to the benefit of the Welsh Government, the National Assembly and the UK Government. It is in all our interests that we fully and clearly understand the boundaries of the devolution settlement.

Full primary law-making powers are still relatively new for the National Assembly. It was the UK Government and the former Secretary of State, my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan), who facilitated the successful referendum in 2011 on the devolution of those powers to the Assembly, allowing it to pass its own laws in 20 devolved areas for the first time. That was a major departure in comparison with a legislative competence order, as it lodged the power squarely with the Assembly.

We are still learning about the settlement. Decisions by the Supreme Court about what is within the legislative competence of the Assembly allow us to establish the boundary with greater certainty, and the Supreme Court itself has recognised that when there is uncertainty, it is appropriate for a reference to be made to allow it to be resolved at the earliest possible stage. That was true of the byelaws case.

Having said all that, 1 do not want the House to think that a reference to the Supreme Court is made lightly, or is somehow to be seen as the easy way out. Several Bills have now been passed by the Assembly, and the vast majority are uncontroversial in devolution terms. For the most part, there is consensus with the Welsh Government and the National Assembly that the legislation passed is within competence.

It is clear from this evening’s debate that the reference of the Agricultural Sector (Wales) Bill has given rise to strong emotions, which were set out by the hon. Member for Swansea East (Mrs James). Given that the reference has been made, I do not think that I should discuss the arguments about, in particular, the competence of that Bill in any detail here. We shall await the Court’s decision. What I will say is that the reference relates to all the themes that I have already identified, and that the United Kingdom Government take the view that employment law is a UK competence.

The Attorney-General considers that the Agricultural Sector (Wales) Bill raises important questions about the extent of the Assembly’s legislative competence and the boundary of the devolution settlement. Despite the good working relationships that I have described and the efforts of the UK Government, it was not possible to persuade the Welsh Government that there was a way forward that would meet their concerns. That is why the Supreme Court will have to make the decision. It is a sign of the Government’s respect for the current devolution arrangements, and our wish to provide certainty and stability for those who work in the agricultural sector, that we are continuing the existing agricultural wages regime in Wales until the court case is decided.

The Government of Wales Act 2006 was introduced by the previous Labour Government. It provided a conferred model for Welsh devolution whereby subjects that were devolved and within the legislative competence of the Assembly were specified in the legislation. The present Government believe that the conferred model is right for Wales. The settlement is not perfect, and the Silk commission—which has been mentioned—is currently considering how it could be improved. The Government will respond to Part 1 of the commission’s recommendations in due course, and, as the House will know, there was a further consultation about stamp duty during the summer. The Government are determined to see the process through, and to make it work.

There is some room in the settlement for different views in certain areas about the extent of the National Assembly’s legislative competence. That is why the last Labour Government provided a mechanism for the Supreme Court to scrutinise Assembly Bills. However, I agree with the right hon. Member for Torfaen that, if possible, it should be the last resort.

It was this Government who enabled the referendum on full Assembly powers to take place. That is an achievement of which we are proud, and because of it we are seeing a growing and maturing legislature in Wales. That is what devolution is about.

The hon. Member for Newport West mentioned the Asbestos (Recovery of Medical Costs) Bill. It is true that there have been constructive discussions about the Bill, but that demonstrates that the UK Government are seeking to resolve the devolution concerns at the earliest possible stage.

I do not think that the hon. Member for Ogmore (Huw Irranca-Davies) should be so pessimistic. I realise that to some extent he was making a political case, and it was very nice of him to say how reasonable and fair-minded I am; I have always found him to be the same. However, I think that progress is being made. It is early days, and I believe that this will be seen as a major achievement which is proceeding effectively.

Question put and agreed to.