Wales Bill

Stephen Doughty Excerpts

Tuesday 5th July 2016 Commons Chamber

[Guto Bebb]

It is currently envisaged that the group will report in the autumn, and, as things stand, that is its aim. I hope that that satisfies the hon. Gentleman, at least in terms of clarity.

It is important to understand what the group will and will not do. It will consider the administrative and operational implications of a shared but single legal jurisdiction, but it will not discuss broader constitutional questions such as whether there should be a separate jurisdiction. The Government’s view is clear: the single legal jurisdiction of England and Wales is the most effective, efficient and consistent way to deliver justice. I hope that provides the clarity for which Members have been asking.

Amendment 10 seeks to omit subsection (2) of the proposed new section 92B of the Government of Wales Act. Subsection (2) recognises that a body of Welsh law made by the Assembly and by Welsh Ministers forms part of the single legal jurisdiction of England and Wales, while giving due regard to the boundaries of competence set out in the Bill. It is important for the Assembly to have full and effective powers to enforce its legislation on devolved matters, and in order to achieve that, a growing body of distinct law will necessarily continue to be made by the Assembly and Welsh Ministers.

The Bill provides for that throughout. In particular, paragraphs 3 and 4 of new schedule 7B, which schedule 2 inserts into the Government of Wales Act and which the Committee will debate next week, make it clear that the Assembly may modify the private law for a devolved purpose, and that only certain core elements of the criminal law are outside its competence. Those elements are listed in paragraph 4 of the new schedule. The Assembly will, for example, be able to create and modify offences when they are for the purpose of enforcing devolved provisions.

Subsection (2) of new section 92B is intended to be helpful, explaining that the purpose of the provision is to recognise the ability of the Assembly and Welsh Ministers to make laws forming part of the unified legal system of England and Wales. The new section constitutes a declaratory statement, and does not bestow any further powers on the Assembly than are provided for elsewhere in the Bill. It is, however, important in that it enables the contribution made by the Assembly and Welsh Ministers to the law of England and Wales to be recognised for the first time, while having due regard to the other provisions in the Bill. Subsection (2) is required to clarify that the statement must be considered in the context of the rest of the Bill. Without it, there might be uncertainty about the meaning of subsection (1).

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

So that the public can understand the divergence that has, to a limited degree, taken place so far, will the Minister tell us what proportion of the current law he considers to be distinctly Welsh, as opposed to England and Wales law? May we, in future, be given a regular update on that distinction, so that ordinary people understand where the law is diverging?

[Guto Bebb]

That is a good question, because it highlights the importance of ensuring that people in Wales understand where law is made. The percentage of Welsh law is currently tiny by comparison with the overall impact of the law on those people, but I think we should keep an eye on the position.

Clause 1 sets the scene for the new model of Welsh devolution that is presented in the Bill. It inserts a new part 2A into the Government of Wales Act, ensuring that, for the first time, the permanence of the National Assembly for Wales and the Welsh Government is confirmed. It recognises both as a permanent element of the United Kingdom’s constitutional arrangements, and as part and parcel of our nation’s constitutional fabric, and reflects the importance of the National Assembly and the Welsh Government to political life in Wales.

The Silk commission recommended that it be recognised that the National Assembly for Wales is permanent for as long as that is the will of the majority of people in Wales. In the St David’s day agreement, the Government gave an undertaking to enshrine that commitment in legislation, which we are delivering in clause 1; we did the same for the Scottish Parliament and the Scottish Government in the Scotland Act 2016. I think it fair to say that most Members welcome that certainty.

New section 92A also provides that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision by the people of Wales voting in a referendum. I hope that such a referendum will not be forthcoming, but I think it important to recognise that the decision on whether we have a Welsh Assembly and a Welsh Government is a decision for the people of Wales, to be made by them.

New section 92B underpins the commitment to permanence by recognising that there is a body of Welsh law made by the Assembly and Welsh Ministers that forms part of the law of England and Wales. It is important that we recognise that in statute—which we are doing for the first time—while also recognising the elements that are common to England and Wales. Clause 1 is a declaratory statement, but its recognition of the contribution made by the Assembly and Welsh Ministers to the law of England and Wales is important none the less. Meanwhile, the Justice in Wales working group of officials that I mentioned earlier will consider what changes are necessary to reflect the distinctiveness of Wales within the administrative arrangements for justice, and, as I have said, I expect a report in the autumn.

Amendment 23, tabled by the hon. Member for Dwyfor Meirionnydd, seeks to broaden the scope of the commitment given in relation to the convention about Parliament’s legislating on devolved matters by removing the word “normally”. The commitment in clause 2 that Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly reflects the current convention on legislative consent. We gave a commitment to put that convention on a statutory footing in the St David’s day agreement, and that is what clause 2 does. The clause is also in line with the provision made in relation to the Scottish Parliament in the Scotland Act 2016. Since the convention was established, a legislative consent motion has always been sought before Parliament has passed legislation for Wales in relation to devolved matters. This is part of the normal working arrangements between the UK Government and the Welsh Government and we expect it to continue, but to remove “normally” from the clause would fundamentally change the convention. The “not normally” element of both the convention and clause is essential as it acknowledges parliamentary sovereignty and, within the clause, signals to the courts that this clause is not intended to be subject to adjudication.

--- Later in debate ---

[The Parliamentary Secretary, Cabinet Office (John Penrose)]

Clauses 5 to 7 deal with elections to the Assembly and local government elections in Wales. Clause 5 concerns the power to make provision about Welsh Assembly elections. It flows from the St David’s day agreement, which states that powers relating to elections to the National Assembly for Wales should be devolved. Essentially, the clause gives Welsh Ministers an order-making power to make provision about the conduct of Welsh Assembly elections. It also gives the Secretary of State, subject to the agreement of Welsh Ministers, the power to make regulations to combine the polls at Welsh Assembly elections with UK parliamentary elections and in theory—this will not matter much in future—with European parliamentary elections, too.

Clause 5 substitutes section 13 of the Government of Wales Act with a proposed new section 13. It broadly transfers to Welsh Ministers the power exercised by the Secretary of State to make provision by order about the conduct of Welsh Assembly elections. The new section provides that the powers of Welsh Ministers are aligned with the legislative competence of the Welsh Assembly. It also sets out the scope of the order-making power and makes it clear that it enables provision to be made on a number of matters, including the registration of electors and the limits of election expenses for individual candidates. It also allows Ministers to combine polls: when more than one poll is held on the same day, they will decide how the polls will be administered.

The clause also devolves matters relating to the allocation of regional members at an election, the process for challenging an election and what should happen if there is a vacancy in the Assembly. It also inserts a new section 13A into the 2006 Act that gives the Secretary of State the equivalent power to combine polls at Welsh Assembly elections with UK parliamentary elections and European parliamentary elections. For example, an extraordinary general election for the Assembly could be held on the same day as a general election for the UK Parliament. The exercise of this power by the Secretary of State will be subject to the agreement of Welsh Ministers and subject to the affirmative resolution procedure here in the UK Parliament.

Clause 6 concerns the timing of elections in Wales and implements the St David’s day agreement, which states that while conduct of Assembly elections and local government elections in Wales should be devolved, the Assembly should not be able to decide to hold its elections on the same day as general elections to the UK Parliament, the European Parliament or local government elections in Wales. This aspect of the administration and conduct of Assembly and local elections will therefore remain reserved to the UK Parliament.

By way of background, to date, each general election that has been held to the Assembly—there have been five in total—has been held in a different year from ordinary local elections in Wales. Further, the Wales Act 2014 amended section 3 of the Government of Wales Act 2006 so that ordinary general elections to the Assembly are now held every five years rather than every four. This, and the provision in the Fixed-terms Parliaments Act 2011, which it superseded, avoided the Assembly general election and the UK parliamentary general election clashing in 2015 and will avoid such a clash in 2020, as the next ordinary general election to the Assembly is now scheduled to be in 2021.

The next scheduled local elections in Wales are due to be held in 2017. The Local Authority Elections (Wales) Order 2014, made by Welsh Ministers, provided for the local government election date to be moved by one year in order to avoid a clash with this year’s Assembly election. The clause says that in the event of a clash, Welsh Ministers can make an order specifying the alternative day on which the poll of the ordinary Welsh Assembly general election shall be held. It also transfers the existing power of the Secretary of State to move the date of an Assembly ordinary general election by up to one month to Welsh Ministers, and that where this power is exercised, that new date cannot fall on the same date as a UK parliamentary general election or European parliamentary election.

The clause also includes provisions that prevent local government elections in Wales from being held on the same day as an Assembly general election. If there is a clash, Welsh Ministers can make an order specifying the alternative day for the local government election to held.

Clause 7 ensures co-operation between Welsh Ministers and UK Ministers over the online individual electoral registration digital service for Assembly elections and local government elections in Wales. The Assembly is free to decide on a franchise and a registration process for these elections, but as a practical matter, where the Welsh Government wants changes to the GB-wide Digital Service, they will need the approval of UK Government Ministers to do so.

[Stephen Doughty]

To clarify, if Assembly Ministers have the ability to change the provisions about the registration of electors and potentially to move to an automatic system of registration, which ensures that we have people registered, unlike the current system, how will that work with future UK parliamentary elections or other elections? Will they then be using the system that the Welsh Ministers have decided on or will there be a different register for those elections?

[John Penrose]

As the hon. Gentleman will be aware, we already run two very heavily overlapping but subtly different electoral registers for local council elections and parliamentary elections. There are different qualifications. For example, an EU national who currently lives in a British city might be eligible to vote in a local council election and not in a UK parliamentary election, so we have two heavily overlapping but not identical registers. The same applies to Scottish parliamentary elections to Holyrood. That will continue, and should the Cardiff Assembly decide that it wants to change things in some way it will have the competence to do so for the electoral roll for Cardiff Assembly elections, but it will not have the competence to change the registration process or scope for UK parliamentary elections as that is a reserved matter to be decided in this place. I hope that clarifies things for the hon. Gentleman.

[Stephen Doughty]

It helps to clarify things in one respect, but does the Minister not accept that there could end up being a very significant discrepancy in the numbers registered for an Assembly election versus a UK parliamentary election? The public do not understand these things in the context of the complexities of all the registers and lists; if they have registered to vote, they would expect to be able to vote in all elections. Given the huge discrepancy between registration for UK parliamentary elections and registration for the EU referendum—and given the fact that the Boundary Commission is not using the figures for the EU referendum—does he not accept that there might be a huge discrepancy in this regard too?

--- Later in debate ---

Finally, I take this opportunity to refresh the memory of the Committee that, were Wales to be equipped with a separate legal jurisdiction, there would simply be no need to jump through the hoops implicit in justice impact assessments. Clause 10 once again reminds us that underpinning the Wales Bill is the need to prioritise the single unified legal system of England and Wales, hedging the Assembly’s legislators about with an excess of checks and balances, rather than empowering them. We oppose clause 10 and we will vote against it when the time comes.

[Stephen Doughty]

I wish to speak on clause 16 and the referendum on income tax powers. I preface my remarks by saying that I have always been an instinctive pro-devolutionist. I worked in the Assembly when it first began and I supported its establishment. I would go further than some aspects of the Bill in devolving powers and giving responsibilities to the Welsh Government. I support, as the First Minister has, a federal UK. I would like a constitutional convention and a written constitution that properly settles the duties and responsibilities of the respective Administrations across these islands. This is even more crucial in the aftermath of the EU referendum. I genuinely fear for the future of the UK at the moment. I have always considered myself a proud Welshman, but also proudly British and proudly European. I will continue to do so, but we have unleashed a whole series of very difficult questions in the aftermath of the vote that make our deliberations on the Bill all the more important.

[David T. C. Davies]

Does the hon. Gentleman agree that the citizens of Switzerland and Norway are Europeans and may be proud to be European? They are just as European as anyone else in Europe, and he would be just as European as a Norwegian or a Swiss person is after Brexit takes place.

[Stephen Doughty]

I am not going to be taken down that rabbit hole. I want to concentrate on the details of the Bill. I make my point because, despite having those views and pro-devolutionary instincts in supporting the most of the Bill—as I said, I am even willing to go further—I have also always believed in applying two tests to proposals put before us.

First, whatever is proposed must deliver better outcomes for the people of Wales. It is absolutely crucial that we look at this in the context of our unique history. Our history is not the same as that of Scotland, our legal history is not the same as that of Scotland, and the nature of our polity and development is not the same as that of Scotland. There are distinct and unique things about Wales that we should consider that do not apply to Scotland. We always have to ask: is this the right solution? I apply that particularly to issues such as policing, the justice system and criminal jurisdiction. I am not saying that they should not be looked at in the future, but I believe in a practical test of whether they will deliver better outcomes. It is not just about sticking a dragon on something and saying it will be done better; this has to be approached in a very cold and hard-headed way.

Secondly, I have always believed in the consent of the Welsh people when making major constitutional change. I support very much the intent of amendment 11, which I will support if it is pressed to a Division. We have considered the fiscal framework for Wales before moving forward with any devolution of income tax powers. There is a fundamental principle at stake here. Clause 16 would remove the requirement for a referendum. We have had two referendums in this country, one in Wales and one in Scotland. In Scotland, the question related to the devolution of income tax powers. It was the second question in the Scottish referendum of 1997 and it passed by 63.48%. The Scottish people were asked that question and voted for it separately from the question on whether there should be a Scottish Parliament. In Wales, we had a referendum on 3 March 2011 on a much lesser question, which was whether the Assembly should be able to make laws on the areas for which it already has responsibility. I did not think we needed that referendum at all. It was obvious that Wales should have had primary law making powers—it should have had them from the beginning. I always thought it absurd, sitting there in the early days of the Assembly discussing odd details of secondary legislation, that we did not have that primary law making power, so I am glad we have moved in that direction in terms of the Assembly’s core competences.

Whether or not people agree with devolving income tax powers, the question is a very fundamental one that changes the nature of the settlement for the Assembly and the Welsh Government. The question should be put to the Welsh people. I think it would pass in the current context, despite what some people say. Many in Wales would want to see it pass, and it should be put to them. It is a matter of precedent: we have had the two previous referendums, but we are not getting one on this question. I cannot understand why. We are not giving the Welsh people a voice. Whatever side people were on in the referendum campaign, it was crucial that the British had their say on such a fundamental decision.

I think that clause 16 is a mistake, but I will support our amendment 11, which goes fundamentally to the question of getting a fair fiscal settlement for Wales.

[Jonathan Edwards]

I rise primarily to speak to new clauses 2 and 3 in my name and those of my hon. Friends the Members for Arfon (Hywel Williams) and for Dwyfor Meirionnydd (Liz Saville Roberts). I intend to push them to a vote, with the leave of the Committee, but I understand that that will take place on the second day of the Committee, as opposed to today.

Amendment 32 is a technical amendment that should not be controversial. The Welsh language has thankfully gained official status in Wales. The National Assembly is a bilingual body and official statements must be made in both languages. There is, therefore, no need for the Bill to include such a provision. I support the principle of clause 8, which essentially means that before any changes can be made to the new constitutional powers devolved in the Bill, the support of two thirds of Assembly Members would be required. This would essentially require cross-party consensus to change the name of the Assembly, people’s entitlement to vote, the electoral system, constituency numbers and the number of elected representatives in the National Assembly.

I look forward to a swift consensus developing around renaming the National Assembly “the Senedd”, which would help to create clearer boundaries between the legislature and the Executive. Despite previous changes to the Welsh constitution, far too many people and commentators cannot distinguish between the work of the Executive, the Welsh Government, and the work of the legislature, the National Assembly. I also look forward to a consensus developing around votes for 16-year-olds. If an individual is old enough to start full-time employment or serve in the armed forces, they must have a say over who gets to form the Government. Extending the franchise to 16-year-olds during the Scottish referendum was a huge success, and we should aim to replicate it in Wales, not least because it would mean only eight more years before my daughter can vote for herself, as opposed to filling in my ballot paper—following strict instruction, I hasten to add.

[Stephen Doughty]

The hon. Gentleman and I disagree on many issues, but on this we are in firm agreement. I have heard from many constituents, particularly when visiting schools and colleges, that young people want the franchise extended to 16 and 17-year-olds. I spent a lot of time campaigning on the Scottish referendum, and it was clear to me that, if we engage younger people in the political process, not only can they take part fully in the debate but they can add to it. We should all support that.

[Jonathan Edwards]

I am grateful for that intervention. I think that we can move swiftly on this in Wales and build a consensus in the Assembly. It would be a very progressive move, as the hon. Gentleman has just outlined.

--- Later in debate ---

[Jonathan Edwards]

That is a damning indictment of the current situation. I have faith in my own people and my own country to be able to develop our own economy and create wealth. The big plus of devolving fiscal powers is that it would incentivise the Labour Government in Cardiff to stop spending money on their pet projects and start concentrating on increasing tax revenues to spend on public services. That is why I support the devolution of fiscal powers.

[Stephen Doughty]

I have great faith in the Welsh people as well, and I have a lot of faith in the Welsh Labour Government. However, does the hon. Gentleman not accept that even in the short to medium term Wales would be poorer? Wales is a net recipient of funding from the rest of the UK, and that helps benefit all the people in Wales. In the short term, we would lose out. Does he not accept that?

[Jonathan Edwards]

The powers as envisaged do not involve the complete block grant. The block grant—the total money available to Wales—will not change on day one. The only issue of contention is the fiscal framework; I have been making that point. The devolution of the fiscal power itself is not an issue in terms of making Wales poorer on day one.

There is also a technical reason why we should be fully devolving income tax powers. It is far more difficult to create a fair fiscal framework to accompany the partial devolution of income tax as opposed to full devolution. The result of this would be to enable future Welsh Governments to continue to avoid responsibility for their mistakes. In the interests of transparency, accountability and—critically—incentivisation, I hope even at this late stage that the UK Government will accept my new clause 3.

A key element of ensuring that the devolution of income tax is devolved successfully is the empowerment of the National Assembly to set income tax thresholds. New clause 2 aims to achieve this objective and I will press it to a vote on the second day of Committee, with the Chair’s permission. If we have time, I would also like to press new clause 3. We will discuss these new clauses on Monday.

New clause 2 is of vital importance as we embark on the journey of devolving income tax powers. The setting of thresholds is a key component of being able to use those powers based on domestic considerations. The Welsh economy in comparison to other parts of the UK is, regrettably, currently a lower-wage economy, a concern raised by Labour colleagues. New clause 2 would enable the National Assembly ultimately to determine the number of income tax thresholds and the levels at which they are set, including, critically, the basic rate. That freedom would enable the Finance Minister of the Welsh Government, whoever he or she may be, to set innovative income tax structures aimed at maximising revenues for the Welsh Exchequer to invest in Welsh public services, but also to encourage wealth creation and encourage investment.

It has been a consistent policy of the current Chancellor to increase personal allowances—in other words to increase the rate at which people begin paying income tax. Brexit may lead to a radical reversal of this policy in the coming months and years by the next Chancellor as revenues reduce. However, the key point is that as long as the ability to set personal allowances is reserved to London and Wales has a low-wage economy, decisions by Chancellors here could have a significant impact on the revenue available to invest in Welsh public services.

It really is all or nothing when it comes to the devolution of income tax and, as someone who supports making the Welsh Government fiscally responsible, I very much hope that the UK Government decide to support the former. Diolch yn fawr iawn.

[Nia Griffith]

I shall speak to several amendments, in particular amendment 11, which provides that income tax powers may not be devolved to the Welsh Assembly until a fiscal framework has been approved by both Houses of Parliament and the Welsh Assembly.

We have always said that a fiscal framework must ensure that Wales is not disadvantaged by taking on the devolution of some income tax powers. In the wake of the EU referendum result, it is all the more urgent that the Government develop a coherent and redistributory regional funding strategy not just for Wales, but for the whole of the UK.

The EU uses specific criteria for designating the areas that should receive structural funds by comparing the income of an area with the EU average. Areas in Wales such as the valleys and west Wales have benefited because they have a GDP that is less than 75% of the EU average, as has Cornwall, and many other areas have benefited because their GDP is between 75% and 90% of the EU average, including south Yorkshire and Merseyside. It is, broadly speaking, a needs-based system. As Members across the House will remember, Holtham recommended that funding for Wales should be based on a needs-based formula. However, a sophisticated formula would take time to develop.

It is simply unacceptable for Wales to accept the devolution of income tax without an order in both Houses and the consent of the Welsh Assembly, because those measures would give elected Members the chance to discuss the funding and the fiscal framework so that we do not see a cut to our funding and then get told to make up the rest by increasing income tax.

[Stephen Doughty]

I wholeheartedly agree with the point about the potential trap for Wales. Does my hon. Friend share my concern and that of many of my constituents about the uncertainty that is being created for projects such as the south Wales metro, which was due to be funded by the EU? We are not clear where that £150 million of funding will come from. If we do not have clarity on Wales’s fiscal framework and on whether we will be better off or not, projects like that will be in doubt.