Committee (1st Day)
1: Before Clause 1, insert the following new Clause—
“Report on reserved powers
The Secretary of State shall lay a report before each House of Parliament which shall lay out a timetable for the transfer of the National Assembly for Wales to a reserved powers model of governance within six months of the passing of this Act.”
My Lords, I am pleased to have the opportunity to move Amendment 1, standing in my name and that of my noble friend Lord Elis-Thomas, who will be speaking a little later. He brings a valuable insight into matters relating to the National Assembly’s competence, having served with distinction as its first Presiding Officer for 12 years.
It is particularly appropriate that this should be the first legislation with which we deal in our first day after the Summer Recess, coming as it does within a month of the Scottish referendum. Scotland and Wales are, of course, two different countries, and we are, as nations, at different stages in the process of securing greater independence. The debate about, and the outcome of, Scotland’s referendum does not of necessity impact on the Bill, but in reality it cannot but do so.
As the Prime Minister, David Cameron, acknowledged within hours of the outcome being known, there will be a need for constitutional change in order to deliver the commitments made to Scotland by all three UK parties, and that, in such a process, the needs of Wales and Northern Ireland, and indeed those of England, will be taken fully on board. Mr Cameron said that it will be vital to achieve,
“a balanced settlement, fair to people in Scotland and importantly to everyone in England, Wales and Northern Ireland as well”.
A tight timetable for bringing forward such proposals and acting upon them has been promised to Scotland and has been repeated today. No doubt the Government will be eager to keep their pledges. I trust that they will be equally committed to delivering for Wales in a timely fashion.
We in Wales are fortunate in that regard, as we have not only this Bill before us today, which provides a vehicle for legislative change, but also the benefit of the two reports of the Silk commission that have been published. The commission was of course set up by the present Government with all-party representation and came to unanimous conclusions. The Government do not have to go away and start from scratch. They have the work of their own commission readily at hand. It would be strange, indeed perplexing, to the people of Wales if the Government did not move forward with alacrity on that basis.
My first amendment, which I am now moving, goes to the very heart of the issue regarding the National Assembly and to the weaknesses of the devolution provided by the 1998 Act. The proposals for Wales were fundamentally different to those provided for Scotland. Scotland’s 1998 Act provided a reserved powers model of government. In contrast, the powers of the National Assembly for Wales were prescriptive. That has led to a lack of clarity and to the unfortunate spectacle of legal wrangles in the courts as to whether the Welsh Government acted within their powers. My noble friend Lord Elis-Thomas will no doubt have much more to say about those issues.
The Silk commission, in its wisdom, recognised the significance of this problem and recommended that Wales should also have a reserved powers model of devolved government. It said that,
“a reserved powers model for Wales … would bring greater consistency and coherence across the United Kingdom … After careful assessment of the evidence we formed the firm view that a reserved powers model would be superior to the current arrangements, and that it would better satisfy our principles of clarity, coherence, collaboration, accountability, subsidiarity, stability, effectiveness and efficiency”.
I am very pleased to see that Amendment 18A, in the name of the noble Baroness, Lady Morgan, has been grouped with these amendments. I am delighted that our minds are working along similar tracks. As I understand it, all four parties in Wales are fully signed up to supporting such a change. So what we propose here is in no way controversial. I suggest that it is something that noble Lords from all Benches in this House would be proud to support.
I can almost hear the words forming themselves in the mind of the Minister—the noble Baroness, Lady Randerson. She might eagerly agree with me that such a move would have the Government’s unqualified support but might say that now may not be the right time or that this Bill is not the appropriate vehicle. I will address those considerations. The most pressing reason for us to legislate on this matter in this Parliament is to ensure that in May 2016, when the next Assembly elections take place, they will be held in circumstances where all parties and electors know that Wales’s Government, after May 2016, will be working within a reserved powers system. The beginning of a new Assembly is the appropriate time to do that and the parties, in drawing up their manifestos for that election, can do so happy in the knowledge that they will not become enmeshed in the sort of legal challenges that sadly we have seen under the present basis of devolved power.
Some might argue that including these provisions in this Bill does not give Parliament adequate opportunity to consider the detail of the legislative changes proposed. I would answer that in two ways. First, we are not venturing into uncharted waters. For both Scotland and Northern Ireland, the reserved powers model exists. All we need to know is the detail of what will be reserved. The Silk commission has done invaluable work in this area.
Secondly, we might recall that the time that elapsed between the Wales Bill of 1998 receiving its Second Reading and the completion of Lords amendments was just seven months. This amendment is immensely generous in its time provision, giving the Secretary of State up to six months to bring forward his report for a firm timetable, which would aim at having the matter concluded and the necessary legislation enacted to be operational by the Assembly elections of May 2016.
There is a third argument: as there is all-party consensus in the matter, it should not warrant the odium that some might feel in the other Chamber that the initiative has come from here. If we build into the Bill the appropriate legislative hook by passing the paving amendment of the type I have proposed, MPs in the other place can use that to put forward their own proposals to provide a reserved powers model. If we do not pass an amendment in this place, the other place will be technically unable to return to the matter. In other words, we are providing for them the platform they need to consider and—I hope—achieve such a change.
My colleagues and I fully realise that this amendment goes beyond the provisions of the Long Title. That is why we have tabled Amendment 63 to the Long Title to enable us to consider in the Bill such matters as have been raised by the second Silk report. There is nothing unusual in amending a Long Title to broaden the scope of the Bill. Indeed, the Government have tabled Amendment 62 to do likewise for another purpose.
I move briefly to Amendment 2A, which is grouped with this amendment and was tabled in case Amendment 1 is rejected for any reason. Amendment 2A lists in detail the legislative subjects that we in Plaid Cymru believe should now be transferred to the competence of the National Assembly. They include matters such as police and prison services, broadcasting, natural resources and energy, and transport, which the second Silk report recommended should be devolved to the Assembly. It also goes further than Silk in proposing that matters such as criminal justice and the Welsh constitution should be devolved immediately.
We put forward these proposals in the spirit of the proposals for substantial new devolved powers being given to Scotland’s Parliament and in the spirit of the Prime Minister’s pledge that Wales should not be left behind. As the First Minister for Wales intimated, if devo-max is appropriate for Scotland it should also be appropriate for Wales, even if some of the detail of necessity will vary.
There is a remarkable degree of cross-party unity in the National Assembly on this matter. Given the way that Scotland has been urged to work on the basis of cross-party consensus, I very much hope that this will not be rejected when it is happily seen to be arising in the context of Wales. However, having gone to the lengths of laying out in detail the type of matters we feel should be devolved—and the list is neither exclusive nor exhaustive—I readily concede that we would much prefer to have the issue addressed by moving along the lines of Amendment 1 on the basis of reserved powers.
Devolution has been seen rightly as a process, not an event. Today’s Bill gives a most timely opportunity for that process to move forward. My party, Plaid Cymru, aspires to see very much greater independence of political action being in the hands of the Welsh people. However, we accept that in the context of this Bill we are able to move towards a home rule Parliament, with some matters still being reserved for Westminster. We put these amendments forward in a positive and constructive manner to improve the government of Wales. I hope that we shall have a positive response from all parts of the Chamber. I beg to move.
My Lords, I did not realise that this would be merely a double act, so I hope I shall say a few things that will excite other people to take part in the debate.
Amendment 3 in this group, which stands in my name as well as that of the noble Lord, Lord Wigley, gives the Government another simple option, which is within the existing structure of the Government of Wales Act 2006, in the relevant clause, Clause 108, and the relevant schedule, Schedule 7. This is not the place for me to discourse at any length on the convoluted—or “crablike”, as it was called by the Electoral Reform Society Wales—forward movement of devolution in Wales. The noble Baroness, Lady Randerson, was part of all this and knows it as well as I do. However, it may be an opportunity to remind the House how far we have come in so short a time.
We moved from an executive Assembly, which was in essence a corporate body and therefore a type of local government structure, established at a time when local government was already moving to a cabinet and a scrutiny system. In effect it was the 1978 Act, taken off the shelf of the library of the old Wales Office, dusted down and put forward as a new Bill. I will not say who told me that; it would not be fair to him, because he is now a distinguished retired public lawyer in Wales—I have just given away his identity.
The effect of that was that we were set on a development that was unworkable. The first important and essential act of the Members of the Assembly, when they arrived there in 1999, was to take over the function of debate for themselves. The key outcome, early on in 2000, was a resolution passed by the Members of the Assembly to seek the maximum possible powers within the Act: the maximum possible opportunity to act as a parliamentary-type body.
The first First Minister was called the First Secretary, but when the right honourable Rhodri Morgan came to power, by a change of leadership within the Labour Party and a vote of the Assembly—it is still a matter of dispute; I recollect very clearly what happened, but I will not bore noble Lords with my version—he decided to call himself First Minister. He also decided to call his colleagues in the Cabinet not Cabinet Secretaries but Ministers and to call the Government—previously, we did not really have a Government, although there was a Cabinet—the Welsh Assembly Government.
Unfortunately, as I have said in other places and will not repeat for too long here, that only confused matters even more, because to set together the two terms “Assembly” and “Government” in the same name is to deny the basic separation of powers between scrutiny and executive action. Then along came my distinguished friend, the noble Lord, Lord Richard. In a major report delivered to the Welsh Government in 2004, he set out a route through this mire which still stands at my bedside—if I ever wake up early, rather than am unable to get to sleep, I turn to it. That report set out a clear structure for how the Assembly should function.
We did not quite get to that, but we moved from executive devolution into a form of influencing primary legislation by the request for Orders in Council and legislative consent Motions of this House and the other place. That was a recipe for further conflict, because it became a political argument between the Westminster Government and the Welsh Government as to what we could do. Then we came to the second part of the 2006 Act, which was later implemented by the referendum in 2011 and enabled us to initiate primary legislation—but all that was still within what is known as the conferred powers model.
Amendment 3, inspired as it partly is by the most brilliant recent judgment of the Supreme Court on the issue of the Agricultural Wages Board, sets out that it is possible to retain our present constitutional model—that is, conferred powers—and achieve far greater competence simply by removing exceptions. The Minister will say that I am seeking to remove all exceptions. Yes, I am by the amendment, but I am just giving the Government something to think about. The exceptions that I seek to remove would raise all sorts of interesting issues, such as hunting with dogs—not a controversial issue in the part of Wales that I represent, but I appreciate that it is controversial elsewhere. In more important areas, it would include energy and transport policy. The effect would be to simplify the way in which the legislation and the constitution of Wales are defined.
My question to the Government arises from my amendment. Before I say this, I have to declare a personal interest. I have been reselected. There was a vote, but the other candidate was AN Other, so I got through. My next term may or may not be my final term at the Assembly; that is a matter for divine providence as well as for me and my constituency party. Why are we now likely on the present timetable—unless the statement to come or the Minister in her response make it clearer to us—to delay the substantive reform of our constitution again beyond 2016 to 2021, if Scotland and Northern Ireland are proceeding apace? Merely to implement either the first report from the commission on the constitution, or even the second one, by 2016, will not give the National Assembly the full powers in its current area of responsibility—whereas this amendment, which removes exemptions, will do so.
Therefore, I ask the Minister to address in particular the need to timetable change in Wales at least at the level of Northern Ireland, if not of Scotland. Clearly, at the moment Wales still has third-grade devolution. It is time we changed that. This matter has to be debated fully, not just in this House but in Wales itself. There is an emerging consensus—and every time we move forward on devolution in Wales it is through all-party consensus. I am very keen to retain that. So I am not pushing any particular amendment; I am asking the Government to give us the assurances that we require.
My Lords, I have followed one basic principle fairly consistently: when one has had major responsibility, one should stand aside when one hands over and not be a nuisance by pursuing the matter much further. After eight years as Secretary of State for Wales, I have deliberately kept out of debates about Welsh affairs and left it to others, so I had not intended to say much during today’s proceedings. My second reason for not saying much is that I am in the middle of some uncomfortable medical tests this week and I will not be here for the whole of this evening’s proceedings, or the proceedings over the next couple of days.
However, I was struck by these amendments and thought that a few words might be constructive and helpful. I listened with a good deal of sympathy to what was said about Clause 1 and the report on reserved powers. That caused me no great difficulty and I shall listen with great interest to what my noble friend on the Front Bench has to say about it. I was, however, somewhat alarmed by Amendment 2A. I was rather relieved when, in his introduction to it, the noble Lord, Lord Wigley, at least qualified his enthusiasm for the proposed new clause. I think that he was suggesting that it was a testing amendment and might not be pursued too vigorously, at least at this stage.
Similarly, I sympathise with some of what the noble Lord, Lord Elis-Thomas, had to say on Amendment 3, particularly his final comments about the pace of change. There are important issues to be considered in the aftermath of the Scottish referendum. I am not unsympathetic to that. I was, however, a bit startled by the omission in the amendment of all the exceptions.
That takes me back, rather neatly, to my doubts about Amendment 2A. I confess that it is a long time since I have looked at the Government of Wales Act 2006. I must have done at the time, but it is not as familiar to me as it clearly is to the two noble Lords who have just spoken. I got it down from the shelf and read Schedule 7. I find the extent of what is proposed in Amendment 2A rather alarming. We see the proposed transfer of, essentially, the responsibilities of the Home Office, including youth justice, criminal justice and the courts, sentencing, legal aid, the Crown Prosecution Service and judiciary, and the prison and probation services. That takes us to some of the responsibilities of my right honourable friend Mr Grayling.
What struck me about these provisions is that many of them involve matters of constitutional significance. As a member of the Constitution Committee, I feel almost certain that if these matters were being pursued with vigour at this time, the Constitution Committee would want to examine them carefully and draw its thoughts and conclusions to the attention of the House. I am pretty certain that we would not want to go further along the road at this time without that kind of advice.
The same goes for Field 38, which refers to,
“the Welsh constitution and electoral arrangements”.
That is broad and sweeping, too. If you want to start on that, it would have implications not just for the constitution of Wales in electoral arrangements but almost certainly for other parts of the United Kingdom as well. Again, therefore, I am sure that those issues would need to be looked at much more closely before we pursued them further.
On the subject of broadcasting, I note only that now that I live about 500 yards from the border of Wales with England, I find myself in the extraordinary situation where my Sky set is directed to England rather than Wales, although I live in Wales. I have to have an adjustment on my set so that if I wish, as I often do, to look at the Welsh news in the morning, I have to switch to the appropriate item. I make that point only because it identifies the fact that broadcasting is not a simple and straightforward matter, confined to only England or Wales. Broadcasting has a much wider sweep and I think that we would want to think a good deal more carefully before we moved down that road.
My only point in rising at this time is to say that, yes, I will listen with sympathy and some interest to what my noble friend on the Front Bench has to say about the report on reserved powers and, possibly, the timetable. However, I urge caution about how far the other amendments may take us. It would be rash at this stage in proceedings on a Bill, which, after all, has already been examined in considerable detail by another place, if we were to sweep on to what would be a major set of changes to the devolution settlement. That might make progress on the Bill more difficult and not easier.
My Lords, many of us warned that the referendum vote in Scotland between Second Reading and Committee was likely to change the nature and tone of the debate on the Bill and it has very much turned out that way. The Scottish referendum has changed the tone of that discussion and the discussion of the constitutional development of the UK as a whole, with our hitherto ad hoc approach to constitutional reform found wanting. There is a desperate need now to review the entire constitutional structure of the UK—and Wales, of course, needs to be at the centre of that discussion.
We have to remember that the cri de coeur from Scotland was not just about constitutional arrangements but a cry from members of civil society and the public, who feel cut out of that political process. It was a plea from people to heed the fact that they do not feel as if they are being listened to. We have to recognise the depth of the disillusionment that has developed regarding the nature of government and its relationship with citizens. It is imperative that we now reach a new constitutional settlement that will lay the foundations for a new, reformed democracy throughout the United Kingdom. There has to be a wider process to draw a settlement reflecting the aspirations of all the UK’s constituent parts. It is time for our constitution to be put on a much more coherent footing. It is also important to respect and honour the promises that were made to Scotland during the referendum campaign. The appetite for more powers in Wales has also been stronger.
We need to recognise that much of what we debate in this Bill needs urgently to be set within that UK context. It would be a mistake to stop the Bill in its tracks, pending the establishment of a convention. We must press on with the Bill, but not compromise any future discussion about Wales’s relationships with the rest of the United Kingdom As far as possible, we need through this Bill to future-proof what we have before us. It is also worth noting that, since the referendum in Scotland, the appetite in Wales for independence has gone down to 3%: for “Wales”, do not read “Scotland”.
It is important that we press on with the Silk 1 commission proposals, which are the basis for this report. That is not least because the Assembly desperately needs the borrowing powers to inject further energy into the growth of the economy. Since Second Reading, the new Secretary of State for Wales has settled into his new role—we noted with interest his interventions at the Conservative Party conference. We are delighted to see that he is coming round to our position on changing to a reserved power model for the Assembly.
I thank the noble Lord, Lord Elis-Thomas, for talking us through the tortuous attempts at working towards the devolution settlement that exists today. We are delighted that the coalition Government have seen sense in relation to the issue of reserved powers. They have said publicly that they will legislate to change from the conferred model to the devolution of reserved powers model, but we are disappointed that they have not come forward with an amendment to this Bill.
This has been extensively covered within Silk 2. As this is such a fundamental issue, where we now have cross-party agreement, why can we not get on with the work of changing the model of devolution in the Bill, or at least prepare the groundwork for it? It is not a party-political issue. Anyone setting up a new constitutional settlement would not start from where we are now. We need to remember that there were some difficult birth pangs to the establishment of the Assembly, which came about with a hair’s breadth of a majority. This is one of the reasons why we developed this rather Heath Robinson approach to devolution. However, we have moved on. Devolution is now the settled will of the people of Wales. Indeed, they are asking for further devolution of powers.
As outlined by the noble Lord, Lord Wigley, the reserved model will clarify and simplify where responsibility for which policies resides. It will produce greater certainty about the scope of the Assembly and the responsibilities of Welsh Ministers. We have a long way to go with this. More than half the Welsh population thinks that it is the UK Government who are responsible for health matters, so it is a good job that the Prime Minister has stopped attacking the Welsh health system, as the Welsh think that he is responsible for it.
The reserved powers model would increase accountability by empowering people in Wales to understand that settlement better. The UK’s Changing Union project has said that the reserved powers model would benefit civil society organisations, politicians, civil servants and the general public—in short, the democratic process as a whole. It would place the relationship between Cardiff and London on a much more stable and adult footing.
On two occasions, the UK Government have taken the Welsh Government to the Supreme Court to question the Assembly’s ability to legislate in certain areas. They have done this because of the lack of clarity in the conferred model system. Every time this happens, it costs the Government £150,000. They have lost on two occasions, most recently, as was said, in relation to the Agricultural Wages Board. The five Supreme Court judges decided unanimously that it was within the Welsh Government’s competence to set the minimum rates and benefits for agricultural wages.
Once again, it is worth emphasising that we need to get this right for Wales, but there needs to be a discussion within the broader context. I think that our advice to any future proposed constitutional convention, which may look at devolving powers away from Westminster to the regions of England, would be, “For goodness’ sake do not follow the conferred model of devolution”.
Before the noble Baroness moves on from that point—I do not mean to interrupt her speech, in which I find much common ground from a Scottish perspective—perhaps I may offer her one observation, although not necessarily one for her to comment on much further. It is certainly the case that we found in the referendum in Scotland that a considerable number of Scots did not appreciate that the NHS had been devolved to the Scottish Parliament since 1999, under a different model. Perhaps it is not just the fact that the power resides in the institution but the continuing need to have citizenship awareness among the population that is vital. Whichever model is going forward for the Assembly, perhaps that reflection may be of assistance.
The noble Lord makes valid points about clarity about where the powers are and the fact that information to the public is crucial so that they understand who is responsible for what. There is still a degree of confusion about this and we need to think it through in a very clear way if we are looking at a much more structured response to the devolution settlement within the United Kingdom as a whole.
I now turn to Plaid Cymru’s amendment to link the reserved powers to an immediate transfer of the recommendations of Silk 2. It is worth emphasising that the whole Labour Party feels quite positive about the vast majority of the recommendations contained in Silk 2. The case for further devolution of power has been well made by the commission. I thank the noble Lord, Lord Bourne, for his work on that commission and welcome him to the Front Bench. We are delighted to see him there. It is important that people understand that the Welsh Government have also responded positively to the recommendations.
With this amendment, Plaid has gone further than Silk in recommending, for example, the wholesale transfer of power over broadcasting, as was suggested, and energy, where the recommendations by Silk are far more nuanced. We are anxious to support many of the recommendations in Silk 2, but we feel that it would be more appropriate for us to include those recommendations within an election manifesto so that we can have the endorsement of the general public for this additional significant transfer of powers.
On Plaid Cymru’s Amendment 3, I do not blame them for attempting this power grab—that is what you would expect of nationalists—but to remove all current exceptions to current permitted areas of the Assembly would entail a huge extra amount of responsibility and the duplication of roles that are better shared at UK level. It would seem rather unnecessary that in the field of agriculture, where Wales already has legislative competence, we should establish our own legislation on, for example, scientific or other experimental procedures in relation to animals. Do we really want to establish our own agricultural import and export rules? Imagine the bureaucracy that that would entail. For every job that we would have to create to make that work, we would have to cut one from our health or education services or from another area that currently receives funding. We understand what the amendment is trying to do but think that it is going a bit too far.
This is about competence. It is the ability to do things, were one wanting to do them in that way. In the United Kingdom, we already have institutions, such as the Joint Nature Conservation Committee, which are virtually federal and in which powers and responsibilities are shared between Scotland, Wales and Northern Ireland. This is not about, of necessity, compelling the Welsh Government or the National Assembly to accept the competence; it is the indication, especially after the Supreme Court ruling of July, that the competence of the National Assembly in the current model is based on those definitions, made by subject in Schedule 7 of the 2006 Act, with exceptions. By deleting exceptions, I sought to highlight the nature of the competence and the possibility of using the reduction of exceptions as a way of translating further powers.
I understand what the noble Lord is saying. The problem is probably that we need a much more detailed discussion about what those exemptions should be and to what extent they should or should not be duplicated. If this is a probing amendment, that is fine—we understand that that is the case. But taking this big step at the moment would be wrong.
Finally, I ask the Minister why an amendment on reserve powers has not been submitted if the Government have changed their position. Why cannot we now get on with the job? We know that there is cross-party consensus on this; let us not waste any more time.
I support Amendments 1 and 18A, but I do so from a rather different position. I am not a censorious critic of the conferred powers model. In the early days of the devolution settlement it was a reasonable and sensible way in which to confer powers. Indeed, in paragraph 4.3, even Silk acknowledges that there was value in the conferred powers model. The incremental argument made for additional powers made sense; it helped the Assembly and the Assembly Government to have greater competence and capacity in those fields.
However, I am now overwhelmingly in favour of moving to the reserve powers. The way in which additional powers have been granted, the whole issue of taxation and, down the line, the whole issue of Silk 2, make it imperative that we proceed and create the process to the greater reserve powers model. I do so not as a critic of the conferred powers model but from the realisation that, in fact, dramatic change has taken place and with that there is a need for the change of model that we have imposed. Therefore, I cannot quite understand why the Government, although they are not perhaps dragging their feet, have not been willing from the Dispatch Box to confirm that it is their objective, too, and that they agree with and support the processes described in Amendments 1 and 18A to proceed towards the reserve powers model. I hope that we hear a different tone from the Dispatch Box today.
Having said that, I, too, like the noble Lord, Lord Crickhowell, cannot support Amendment 2A—and nor does Silk. There is a much subtler discussion in Silk of the issues of criminal and civil justice than the rather bald list provided in that amendment. So unless it has been tabled with tongue in cheek, I cannot support that amendment. Silk did a very skilful job in assessing in detail, particularly in Chapter 10, the difficulties of transferring civil and criminal justice issues, even in police areas. In Silk one often reads that we will have to have cross-border co-operation—a real, meaningful co-operation between either side of the border—to make anything work in the criminal justice and civil fields. So I cannot possibly support Amendment 2A, but I certainly support Amendments 1 and 18A.
We support Amendment 1. As the leaders of devolution as opposed to independence in Wales, we have always supported reserve powers. The Bill that I drafted in 1966 was for a Parliament for Wales on a reserved powers basis, including provision for criminal justice and the courts. I rather fancied the position of Chief Justice of Wales that I laid out in the drafting of that Bill. I was a lot younger in those days, of course, but not lacking in ambition.
The one part of Amendment 2A that I query, however, is on the Welsh constitution and electoral arrangements going to the Welsh Assembly. It is impossible to have a federal system of government and any form of devolution if the proposal is that those should be left to the Welsh Assembly itself. What has occurred to me over the past few weeks is the anomaly that would arise if there were to be English votes for English laws in the other place. English laws would be subject to the scrutiny of this House, and consideration and amendment in this House; whereas laws passed by the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly are not subject to such scrutiny. When one poses or considers that anomaly, it is obvious that there has to be a considerable constitutional discussion as to how the whole settlement eventually evolves.
For example, in my view, this House should be abolished and replaced by an elected—on a proportional basis, of course—federal body that would deal with scrutiny of legislation from all the devolved Governments. A very much more sensible route and settlement lies along those lines, although it would obviously take a considerable amount of time and we are dealing with this Bill at the moment. The reserved powers issue can be settled much more quickly and that is why I support Amendment 1.
My Lords, there is a great deal of agreement in all parts of the House on many of the matters we are discussing. Although we are speaking on certain, limited planes, we are at the same time looking at the whole question of devolution.
Many people will say that devolution in Wales took off with the referendum of 1997. That is not strictly correct because no transfer of authority from Westminster to Wales was involved in that matter. The transfer proposed was a significant transfer from the executive authority of Welsh Office Ministers—of course democratised by that authority being an elected body, meeting in the name of the Welsh people. It was a great, historic event but not classical devolution as such.
Be that as it may, there have been in this discussion a few cautionary voices, as one would expect. I respect much of what has been said by the noble Baroness, Lady Morgan. In the case of the noble Lord, Lord Crickhowell, one could perhaps say that the voice was rather more than traditionally cautionary, and was somewhat Cassandra-like. However, that is not something that I wish to deal with in detail at the moment.
The thrust of what we are practically all agreed on is that there should be a reserved powers model. There are two excellent reasons for that. One is selfish, if I may say so as someone who has been a solicitor and barrister, and later a circuit judge. It is to avoid a whole generation of Welsh lawyers having constitutional neuroses. It means that if you want to be sure of whether something has been transferred in a particular field, you might have to look at not just a score of different legislative sources but perhaps much more than that. It is like confetti—all over the place—when it could so easily have been done in a different way by a total bulk transfer, subject to exceptions (a), (b), (c) and (d).
It would not be all that difficult if one were to tackle this straightaway on the basis of Part 4 of the Government of Wales Act 2006. Under the provision, the House will recollect that there were 20 areas of devolved authority ranging from agriculture to the Welsh language. What is referred to in each and every one of those paragraphs is just a heading. It might well be argued that although you could easily draft a Bill—you could write it out almost on the back of an envelope, and that seems to me to be the way in which some legislation has been proposed over the past few weeks—you could never be absolutely certain of what you were including if you dealt with it in that bulk umbrella way. However, I doubt whether the difficulties are as great as that, because when the Government of Wales Act was passed there was careful scrutiny as to the content of each and every one of those 20 categories. Thus I should think that successive Governments and those who advise them have a pretty clear idea in each case of exactly what has been devolved and what has not been devolved.
Therefore it seems to me that on a selfish basis, as far those who practise the great vocation of the law is concerned, there is much to be said for cleaning up in this particular way. In so far as constitutional maturity is concerned, there is everything to be said in favour of that model. I hope that the Government will not plead the vehicular defence and say that this is not the vehicle by which to do this, but will say that this is something that can be done quickly. I suspect that some thought has been given to it over the years. I suspect too that the Government may well have anticipated what Silk concluded in this particular context.
Turning to Amendment 2A, I am a great admirer and respecter of both the noble Lords concerned, the noble Lords, Lord Wigley and Lord Elis-Thomas. I have known them almost since boyhood. Both have been committed home rulers since boyhood. Few people now alive in Wales have contributed more to the effort to raise the constitutional level of this land and nation. They have cast a generously broad net. One might well say that if one looks in detail at some of what that net might contain, then clearly there might be certain difficulties. However, I do not think that the situation is as bleak as is suggested.
In fact, many responsible bodies in Wales, whose membership cuts across party loyalties of all sorts, have spoken for many years about the position of the police in relation to the Welsh Assembly. I speak as one with knowledge of the matters that come before the courts from time to time—or used to when I was in practice—and the general case is this. The matters relating to the police, youth justice, drugs and various other agencies—some of which have clearly been devolved and others which have not—make out a case for at least the transfer of certain police functions. I am not arguing for the total transfer of certain police functions that have not already been devolved to be devolved to the Welsh Assembly. Such arguments are found in Silk, and indeed many other responsible bodies have come to much the same conclusion. So it is not chimerical or irresponsible to mention that matter.
Let us take broadcasting again, for example. Paragraph 20 of Schedule 7 to the Government of Wales Act transfers all responsibilities in relation to the Welsh language, save and except the legal position of the Welsh language in the courts—nothing else. An intelligent layman would therefore be well excused if he said that broadcasting in Wales in the Welsh language must have been included within the umbrella of paragraph 20. That is not so, as we found very much to our cost some years ago when the issue of S4C arose. I shall not go into the detail of that now but something that was crucial to the very future and success of the Welsh language had not been devolved in the slightest degree.
I think that the 20 areas of authority included in Schedule 7 to the 2006 Act could easily and safely be transferred, and very little would need to be done in addition to the information that the Government already have in that regard. It would show good will on the part of the Government and responsibility, candour and integrity in relation to the promises made some weeks ago in the heat of the Scottish referendum. If they mean what they say—and I am prepared to accept that they do mean what they say—this could be in earnest of that good will and integrity.
My Lords, this has been an extremely interesting debate to start the Committee proceedings on this Bill. In response, I begin by reminding noble Lords of the intention behind the Bill. It encompasses three strands: first, issues flowing from the Green Paper issued by the Wales Office early in this Parliament; secondly, amendments to the Government of Wales Act requested by the First Minister; and, thirdly, measures to introduce fiscal accountability and borrowing powers recommended by the Silk 1 report, which so far have been sadly lacking in the Welsh devolution settlement.
Many of us here today are anxious to see the Silk 2 recommendations implemented, and I assure noble Lords that the Wales Office is working actively on that at the moment. Unfortunately, the Silk 2 report was produced too late for us to bring forward legislation in this Parliament. The Silk commission acknowledged that fact and said that it realised that many of its recommendations were for manifestos. The fact that it brought forward its second report too late in this Parliament does not mean that we cannot achieve anything from Silk 2 before the election. We can make a number of recommendations on which we can make progress. We can also prepare for further legislation, and we are doing so.
The Scottish referendum has ensured that a new devolution settlement for Wales is very much on the agenda, and I hope that there is cross-party agreement on that. However, Silk 2 was clear that its legislative recommendations were for party manifestos, and rightly so because, as has been referred to this afternoon, there needs to be discussion, debate and public information before people vote on a number of issues, obviously including this one.
These amendments from the noble Lords, Lord Wigley and Lord Elis-Thomas, seek to leapfrog that manifesto process—understandably perhaps. Plaid Cymru wants to air its manifesto in advance and this is a very good opportunity to do so. Unfortunately, the amendments are poorly thought through, for reasons that I will outline in a moment. It is also important to note that some of the new powers suggested in the amendments, as other noble Lords have said, were not recommended in Silk 2. We therefore need that manifesto process and an element of public discussion in order to have the cross-party agreement, which, I am sure noble Lords will agree, is essential if one is to move forward firmly on constitutional reform.
In tabling Amendments 1, 2A and 3, the noble Lords, Lord Wigley and Lord Elis-Thomas, seek to devolve additional powers to the Assembly. It is worth pointing out that Amendment 18A, in the names of the noble Baronesses, Lady Morgan and Lady Gale, is nearly identical in wording to Amendment 1. Amendment 2A seeks to put Silk 2 recommendations in the Bill in a broad-brush manner that is not appropriate for such far-reaching changes. Through this amendment, the noble Lords seek to insert 18 new subjects into the list of devolved subjects in Schedule 7 to the Government of Wales Act 2006 on which the Assembly can pass measures. Amendment 3 seeks to amend Schedule 7 to the Government of Wales Act to remove all the non-devolved exceptions to the devolved subjects. This would broaden significantly the 20 subjects on which the Assembly can already legislate and have the effect of going very much further than the Silk 2 recommendations. Amendments 1 and 18A require the Secretary of State to set out a timetable in a report before both Houses of Parliament for the move to a reserved powers model in Wales.
I am delighted that there is now a broad consensus that moving to a reserved powers model of devolution is desirable. The noble Lord, Lord Elis-Thomas, pointed out that I had worked within the current Government of Wales Act in the Welsh Assembly. Of course, I deal with the Act daily in the Wales Office and I understand its complexities. In the Wales Office we are working proactively on how we go forward to a new reserved powers model. I assure noble Lords that there is no hanging back on that issue.
The noble Lord, Lord Wigley, talked about the six-month timetable on reserved powers. Of course, any timetable of that nature comes across the issue of the general election. The important thing that we must do now is ensure that sufficient work is done on the reserved powers model so that there is cross-party agreement and, after the general election, a commitment to move forward with all possible speed. We must also enable that commitment to be kept where possible.
The noble Lord, Lord Elis-Thomas, talked about how far we have come in a short time. When we get impatient on the development of devolution, it is useful to remember how far we have come in 15 years, but there is very much further to go. We are certainly not looking at a delay until 2021. I remind the noble Lord that this Government ensured that there was a referendum in 2011 to give the Assembly full legislative powers. That meant that the Assembly assumed those additional powers mid-term. It is important to bear in mind that it is quite possible for the Assembly to move forward mid-term.
The noble Baroness, Lady Morgan, spoke very positively about moving forward with devolution. I strongly welcome the Labour Party’s conversion to the reserved powers model. Some of us have been criticising the original model for Welsh Assembly legislation for a very long time. I agree with the noble Baroness that it is important to note that the tone and nature of the debate on devolution has changed, and that we need to respond to that and to create a new constitutional settlement. I agree with her that the danger is that if you move forward too fast, you can do so in a haphazard manner. You need to ensure that you have a full public discussion about the aspects of this and that you move forward in a certain way. We have concerns about the complexity of the current devolution settlement. The last thing we want is to replace it with one that is equally complex.
I want to make absolutely clear to noble Lords that none of us in government—I am sure that this is shared across the Chamber—wants to see repeated legal challenges to the competence of the Assembly. It is not good for the Assembly, the Welsh Government or the UK Government. We need clarity. We are committed to making progress on that. Unfortunately, in the short term, the amendments tabled by the noble Lords, Lord Wigley and Lord Elis-Thomas, would deliver anything but clarity. They would broaden the settlement and, crucially, Amendment 3 would remove exceptions and carve-outs that currently ensure that issues such as monetary policy and the regulation of international trade remain decided at a UK level. I am sure noble Lords would agree that it is appropriate that monetary policy and international trade are decided at a UK level.
I was very interested in what the noble Baroness had to say about the reserved powers model. She comes from one branch of the coalition—if I may put it that way—which has been in favour of reserved powers for a long time. Will she assure us that the other branch of the coalition is now also in favour of the reserved powers model?
My Lords, my right honourable friend the Secretary of State for Wales made it absolutely clear at the recent Conservative Party conference that he believes that Wales needs to move to a reserved powers model. It is also worth noting that the recent legal judgment, to which reference has been made today, on the Agricultural Wages Board was sufficiently far reaching to ensure that many people have reconsidered the situation in the light of that judgment.
The amendments in the names of the noble Lords, Lord Wigley and Lord Elis-Thomas, would put in place in the short term a broad but poorly defined settlement until the Government put forward a timetable for putting in place reserved powers. It will disappoint noble Lords in some cases that the Government have made clear repeatedly that this Bill is not the appropriate place for implementing Silk 2 recommendations. If we seek to use the Bill for that purpose we risk—I say this very seriously to noble Lords—lengthening the process and causing serious problems for the Bill in the other place. I remain completely committed to ensuring that we get the Bill through and I do not want to put the Bill at risk in any way. By widening the Bill considerably, it would have a very difficult passage in the other place. Given the proximity of the general election, we would find it difficult to ensure that the Bill passed before the end of the Session. Therefore, I certainly do not intend to put this at risk.
I thank the Minister for giving way. I have listened to her with great attention. I can well understand the need for extensive discussion in manifestos as well as in the other place and the points made by the noble Lord, Lord Crickhowell, and various other people. However, as there is such unanimity about the reserved powers model, why can this not be accepted in principle in the Bill, leaving the question of its implementation and the timetable open? It does not have to be six months, but it could be accepted in principle if it is now accepted by all parties. The only point that has not been made about why it should be accepted is a very important philosophical and political point about subsidiarity. The Minister has not addressed the issue of why it cannot be accepted in principle in the Bill, with all the details to be worked out in due course.
The noble and right reverend Lord raises an interesting point and I will obviously take it away and think about it. In so far as thought has been given to this so far, we have been thinking about the scope of those reserved powers being included in legislation at the same time as the principle of reserved powers. There would possibly be issues and problems with separating out the principle from the scope of those powers, but I will certainly reflect on what the noble and right reverend Lord has said.
On that point, potentially some substantial time may have elapsed before the principle of reserved powers comes into operation. The extent of the conferred powers has been shown by the Supreme Court judgment in fact to be highly flexible. To what extent has the Wales Office taken on board the effect of that judgment? Can we be assured that there will be no unnecessary legal challenges in future and that we have learnt the lessons of that judgment?
Noble Lords can certainly be assured that, first, the Wales Office has studied that legal judgment very carefully and, secondly, that across government there is a determination to move ahead with devolution, and the development of devolution, on a cross-party basis, where it is possible to do so. There is a determination to ensure that we work proactively with the Welsh Government on issues. Indeed, that refers back to the Silk 2 recommendations, which included a number of mechanisms for improving relationships between the UK Government and the Welsh Government. That is very much at the forefront of our minds at this moment in terms of making progress.
In conclusion, our focus in the Bill is on implementing the first part of the Silk commission’s recommendations, and that must remain its focus. I urge noble Lords not to put the Bill at risk in the hope of something even better. Do not reject jam today in the hope of even more jam tomorrow. Use the progress in devolution that the Bill encompasses as a sound basis for further devolution. Do not for one moment entertain the idea that the best way of moving forward is to stand still and in some ways set this Bill aside and start again. We insist that this is a positive step forward and it is important that we demonstrate the cross-party agreement that exists on the further development of devolution.
The Leader of the House of Commons chairs the new Cabinet Committee, which is looking at devolved powers for England, Wales and Northern Ireland alongside powers for Scotland. This afternoon, my right honourable friend the Secretary of State for Wales is meeting Welsh spokespeople from the other place across the parties in order to discuss devolution. Similar cross-party meetings have taken place within the Assembly among the leaders of the political parties there. The Prime Minister and the Deputy Prime Minister have made it clear that they want Wales to be at the heart of the debate on further devolution. The devolution committee includes the Secretary of State for Wales, and I also attend. It is important to note that the Wales Office has a strong voice at those meetings. Events are moving on rapidly. I therefore urge the noble Lord to withdraw the amendment.
My Lords, I thank all noble Lords who have taken part in this debate: my noble friend Lord Elis-Thomas, the noble Lords, Lord Crickhowell, Lord Thomas of Gresford, Lord Elystan-Morgan and Lord Rowlands, the noble Baroness, Lady Morgan, and a number of Peers who intervened. I thank the noble Baroness, Lady Randerson for her response. I am somewhat disappointed at the tone of the Minister’s response, particularly given the virtual unanimity in relation to Amendment 1. I welcome the noble Lord, Lord Bourne, to his Front-Bench responsibilities. There is some irony: I look at the Front Bench where there are two Members who were in the Assembly in 1999. I look at this Bench and at the Back Bench opposite. It seems that the Assembly is slowly taking over here. Some of us want to see the process happening in the other direction.
The consensus that was reached by the Silk commission on this matter and the consensus of this House with regard to the reserved powers are ones that need to bring out of the Government a firmer commitment that we have had today. I appreciate that work is going on on these matters, but that is not enough. I accept the comments that have been made in relation to Amendment 2A. Of course that goes further. I understand that it would not carry a consensus and that may be a reason for not going forward on that basis. But I remind the House that the powers in Amendment 2A are ones that have been committed now with regard to Scotland and have been committed with alacrity. We may very shortly hear more about that in this Chamber. If there is an imperative that drives those forward with great speed in Scotland and if there is a total commitment by the Prime Minister to make sure that Wales does not fall behind, how on earth can they be rejected out of hand? I accept that they will not be taken into the Bill, but I very much hope that between now and the new year there will be some indication of further legislation to meet those points. Otherwise, the commitments that have been made do not have the value of the print in which they have been expressed.
The Prime Minister’s pledge that Wales will not miss out means that these issues must be considered, and quickly. But even if the Government cannot accept the matters covered in Amendment 2A, and if they are not prepared to go down the route of Amendment 3, which was addressed by my colleague, we should certainly have a commitment that specific proposals will be brought forward in this Parliament and that further legislation can be concluded quickly after the general election of May 2015 to be in force from May 2016, when the new Assembly comes into being.
I just have a point of clarification. I listened very carefully to the noble Lord’s speech, and I agree with the Minister that there is some awareness. However, some elements of the powers within this clause were of course part of the Scottish Parliament, understandably because of the legal system, which was there beforehand. Some were devolved because of the Scotland Act 2012, and some aspects of these are being considered by the Smith commission, so it is perhaps not entirely the case that they all reside in the Scottish Parliament alone.
We have in the grouping of these amendments brought two different fields into play, and they need to be addressed separately to that extent. Of course matters related to the Home Office are already devolved to Scotland. We are very much aware of that, and that is one reason why matters such as policing, to which the noble Lord, Lord Elystan-Morgan, referred a moment ago, have wide support across the party-political divide in Wales and should be devolved rapidly.
Even though I accept what the noble Baroness said with regard to bringing in changes mid-Assembly, that may be appropriate with regard to some of the background systems and the concept of reserved powers without changing any of the actual detail of the portfolios being devolved. But if we are talking about further devolved portfolios of the sort that will come into play in Silk 2, they most certainly need to be specified before the 2016 election so that the issues within those portfolios can be addressed by the parties putting forward the manifestos for that election. I understand what the noble Baroness is saying in regard to the theory, but in regard to the practice we need to have that further detail.
I return to Amendment 1. I reject the suggestion made by the noble Baroness that this has been poorly thought out. It has been drafted on very good advice.
I am very grateful that the noble Baroness is taking the opportunity to clarify that, because that will be helpful for Members in all parts of the House. It is quite clear that we have a cross-party consensus, as the noble and right reverend Lord, Lord Harries, mentioned a moment ago. It will be very helpful if we could have some indication between now and Report as to how exactly this is going to be taken forward.
Although there is a mention of “within six months” in the amendment as a period for bringing forward proposals on reserved powers, that does not mean that we need to take the whole six months. I believe that the process can be completed within four months, before Prorogation for a general election. It will be very useful if this has been clarified at that stage, even if some of the detailed legislation has to be taken forward thereafter.
I also reject the suggestion—it is always made at this stage of a Bill, as we are coming nearer Royal Assent—that if we send it back with changes to another place that will open a can of worms. I do not believe it will because I think the same cross-party consensus exists in another place as exists here. If there is that general agreement with regard to the reserved power model, let us just get on with it, not hold back.
The noble Lord might reflect that while there might be consensus within Wales on this issue among political parties, there are a very large number of English MPs in the other place who will quite rightly want to discuss this in the context of their own situation. I fear that we could find the process very heavy going if we started to expand this Bill beyond its original intention.
My Lords, heaven help us if English MPs are going to start voting on matters of purely Welsh concern, but I take the point. I am sure the other point is understood across this Chamber as well.
The issue that I want to stress before withdrawing this amendment—obviously at this stage it is a probing amendment—is please, between now and Report, can we firm up the intentions in general with regard to reserved powers? I reserve the right to come back at Report if that is not done. I hope we can achieve that without that being necessary and that the consensus in this Chamber today will be carried through and can work for the benefit of Wales. I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Amendment 2 had been retabled as Amendment 2A.
Amendment 2A not moved.
Amendment 3 not moved.