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House of Lords Hansard
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11 November 2014
Volume 757

Report

Amendment 1

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1: Before Clause 1, insert the following new Clause—

“Reserved powers for the National Assembly for Wales

The Secretary of State shall, within six months of the passing of this Act, lay a report before both Houses of Parliament on further legislative steps needed to establish a model of reserved powers for the National Assembly for Wales, which shall include a detailed timetable for implementation of this new model.”

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My Lords, this amendment, which stands in my name as well as the names of the noble Lord, Lord Wigley, and the noble Baroness, Lady Morgan of Ely, is dedicated to streamlining the constitutional transfer of authority to Wales and to making clearer the boundaries which, to some extent at the moment, are obfuscated. The effect of the amendment would be to place the constitutional transfer of legislative and other parliamentary authority to Wales on a reserved basis, rather than a confirmed basis.

The meaning of that in lay terms is, as I am sure nearly every Member of this House appreciates, that there are two ways in which a sovereign parliament can transfer power to a sub-parliament. One is to transfer the totality of a subject heading and then say that there will be certain reservations, spelling them out—A, B and C—so that one knows exactly where that boundary is drawn. The other way of doing it is less simple and far more cumbersome: transferring piece by piece different legislative powers or, in a much wider way, describing certain subject areas but without setting out in detail exactly what they mean. The latter is what governs the situation in Wales, I am afraid.

Following the referendum of March 2011, and under Schedule 7 to the Government of Wales Act 2006, there are 20 subject headings ranging from agriculture to the Welsh language. They are not intended to be definitive of the powers that are transferred; they are more descriptive. Then, they are qualified—again, in a general way—rather than setting out exactly with ruthless correctitude what reservations and exemptions there are. One cannot overemphasise the difference between those two systems. One achieves the very best that devolution can achieve. The second brings out most of the weaknesses in the situation and guarantees great difficulties in future.

The Welsh Assembly has seen a number of developments over the past 16 years of its existence. It started off as, essentially, an executive body with very limited powers of delegated legislation. I think only 4% of the time of its plenary sessions was spent in the examination of legislation. Then, with the Government of Wales Act, things changed considerably. There was the provision under Schedule 3 that enabled what might be called the “salami slices” of authority to be conferred. Indeed, some such transfers did occur. But the fundamental change occurred, of course, following the referendum of March 2011 with those 20 areas of authority. They are very considerable in totality. The calculation of the Silk report is that they represent somewhere between 50% and 60% of the total expenditure of government in Wales. The area of jurisdiction is very considerable.

However, the system falls down on the question of ascertaining swiftly and clearly exactly what has been transferred and within what limits. I have used this expression before and do not apologise for it: it is such as to create a constitutional neurosis among those who practise the vocation of law in Wales. That of itself may not be a bad thing but it means that you have to chase little pieces of legislation almost like confetti. You have to trawl through various instruments and legislative provisions to get the truth. Even then, you may not be absolutely certain that you have covered everything that might be relevant. In addition, the exemptions are in such general terms as to be ineffective —and, indeed, perhaps downright dangerous, because of the dubiety created in such a situation.

The amendment therefore asks for a complete transfer, clearly and specifically, of a subject heading, and then a remorseless description of every exception that can operate. That is no more than the Welsh people deserve, and I believe that a solid body of consensus has grown around it by now. It would mark the further maturity of the National Assembly for Wales, and would remove the areas of dangerous dubiety that exist. It is on that basis, and with some confidence, that I ask for support for this most necessary amendment to the constitutional situation in Wales. I beg to move.

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My Lords, it is with pleasure that I support the amendment tabled by the noble Lord, Lord Elystan-Morgan. There are three reasons why I do so. First, the Welsh Assembly has won its right to a new and better model of government, and its right to be granted, like Scotland, all the powers not reserved to Westminster.

Secondly, with experience, it is now indefensible, within a small kingdom, to have different forms of government —for Scotland, Northern Ireland and Wales. Hence my firm belief, which I have advocated for some time, in the need, particularly post the Scottish referendum, to appoint a constitutional convention, with greater authority than the Kilbrandon royal commission because it would have party leaders on it, to give it maximum authority. Royal commissions have fallen out of favour; Kilbrandon itself was inconclusive. The thrust was there for devolving government, but the options were many.

Thirdly, with the symmetry of equality of powers for the three Governments, we could then consider the part that England would play in a federal state. I explored the proposals of the MacKay commission in my National Library Archive lecture last November, and surmised then that there would be a great deal of agonising before any agreement was reached. I trust that my party will take a statesmanlike view and a broader perspective than short-term number-crunching, and will make the good governance of the whole of the United Kingdom paramount.

The arguments against my noble friend’s amendment, which I have learnt from the considerable time that I spend in Spain, my favourite European country, amount to “mañana”—or, to paraphrase St Augustine, “Oh Lord, make me good—but not yet”. However, I am confident that the ever efficient Whitehall machine has already done a great deal of the spadework. Indeed, it had done that as far back as the devolution Bill of 1976, of which I was the architect—and, I suspect, also did it as part of the work on the schedule of powers in the most recent Act, to which my noble friend referred. Those powers were not delineated lightly. So, from my experience of legislating, my noble friend’s proposal of six months seems a perfectly reasonable time within which to bring forward proposals.

At Second Reading, we heard some quite ill informed criticism of the present arrangements. As the architect of Harold Wilson’s Bill, I plead guilty, together with the other members of the Government I was proud to serve. I was warned then that this was a novel and untried proposal, and that reserved powers would be much simpler. Let me enumerate briefly the realpolitik facts—they can be proven historically—about why the decision was taken on granting powers as opposed to reserving powers.

First, we were spoilt for choice by the many proposals of the Kilbrandon commission, which deserve rereading. Secondly, the first draft of the Queen’s Speech in 1974 did not include any devolution proposals. I was warned in the first few days of the new Government to send an amendment to No. 10 to include devolution, and I did so—as it happened, from my sick bed. The reason for the omission was that the Cabinet Office drafters thought that a reforming Labour Government would have other, more general, priorities in the first year of government.

Thirdly, my great fear was that there would be a Bill for Scotland but not for Wales—mañana again. Wales might come at the tail end of a Parliament. My mission was to hang on to the coat tails of Scotland and, if necessary, compromise my ambitions to ensure that there would be contemporary Bills in the early years of the Labour Government.

Fourthly, the Labour Party was split, and many of my colleagues lacked appetite for any kind of devolution.

Fifthly, the Cabinet was split. The Prime Minister was the main protagonist and appointed his two deputies in turn, Ted Short and Michael Foot—such was the importance of the committee—to chair the Cabinet committee dealing with the day-to-day work of drafting the Bill. The difficulties, fears and doubts of all Whitehall departments were paraded in the twice-a-week meetings of that committee.

Eventually, one of the greatest and most intellectual civil servants, Sir Michael Quinlan, a distinguished future Permanent Secretary in the Ministry of Defence, was appointed to head the Whitehall machine. I tend to gauge the prospects of success of a particular policy by the quality of the civil servants appointed to run it. I knew with the appointment of Sir Michael—he was Mr Quinlan then—that we would get the proposals over the hurdle of the Cabinet legislative committee.

If anyone wants intellectual analysis of our political difficulties, I invite him to read or reread the admirable diaries of the period written by my noble friend Lord Donoughue, who had a ringside seat at many of the all-day meetings in Chequers and elsewhere. They are historical proof of the difficulties resulting from the different views of the Cabinet. The opposition changed from meeting to meeting: Roy Jenkins, Denis Healey, Elwyn Jones and so on—all big beasts. At one time, my noble friend says, they were quarrelling like monkeys at Chequers. It was only the steadfastness of the Prime Minister that got us through, and I am eternally grateful to him.

The intellectual defence of our proposals, which we now find inadequate, was that we proposed what we thought we might get away with in the party, in the House of Commons and in Wales. That was the realpolitik. In the event, we were proved wrong because of, as Mr Macmillan once said, “Events, dear boy, events”. Now is the opportunity to right the wrong. I, for one, marvel, now that everyone—well, almost everyone—is a devolutionist, how far we have moved in the 55 years of my parliamentary life.

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My Lords, it is a delight to follow the noble and learned Lord, Lord Morris of Aberavon, and to learn some aspects of this question that I had not been aware of before. I am very glad that he has added his considerable expertise and weight to support the amendment. I am delighted to support the words of my noble friend Lord Elystan-Morgan and I am grateful to him for putting this amendment forward. I pay tribute to him for his consistent advocacy for the maximum self-determination for Wales within the framework that we are discussing.

I moved a very similar amendment to this in Committee, supported by my noble friend Lord Elis-Thomas. I do not intend to repeat the arguments that I put forward then, but I would like to highlight two points. First, the basis for having a reserved powers model is that it would be similar to that in Scotland and Northern Ireland, so it at least has arguments of symmetry in its favour as well as the practical arguments that have already been outlined. Secondly, the reserve powers model was unanimously recommended by the Silk commission, which included people from all four parties in Wales. There were some discussions before coming to that conclusion, and clearly it is something that should carry weight.

The principle of that amendment in Committee was supported by noble Lords on all Benches. It was supported by the noble Lord, Lord Crickhowell—I was delighted at that time to hear his words—and by the noble Baroness, Lady Morgan of Ely, the noble Lords, Lord Thomas of Gresford, Lord Rowlands, Lord Richard and Lord Anderson, as well as my noble friends Lord Elystan-Morgan and Lord Elis-Thomas.

In her response to that amendment, the noble Baroness, Lady Randerson, said:

“I am delighted that there is now a broad consensus that moving to a reserved powers model of devolution is desirable”.

She assured the Committee that the Wales Office was,

“working proactively on how we go forward to a new reserved powers model … we must … ensure that sufficient work is done on the reserved powers model so that there is cross-party agreement”.—[Official Report, 13/10/14; col. 26.]

She was then challenged by the noble and right reverend Lord, Lord Harries of Pentregarth, as to why the reserved powers model,

“cannot be accepted in principle in the Bill, with all the details to be worked out in due course”.

In reply, the noble Baroness said that she would,

“take it away and think about it”.—[Official Report, 13/10/14; col.28.]

She invited me to withdraw my amendment, saying that events were moving on very rapidly. It was on that basis that I withdrew the amendment that I had put forward.

Well, we are now at Report stage. I warmly invite the noble Baroness, Lady Randerson, now to indicate that the Wales Office has indeed worked proactively on this matter and can now accept the amendment and tell the House of the anticipated timescale to get the constitutional change put into effect.

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My Lords, I very much enjoyed the history lesson that we received from the noble and learned Lord, Lord Morris. It was a revelation of what life was like in the Labour Cabinet at that time. I also have a great deal of sympathy for what he said about the need for a commission to look at the whole devolution package of constitutional change, and I have also expressed my views on that.

As the noble Lord, Lord Wigley, has reminded the House, I have already expressed sympathy for the reserved powers model. I have just one point to make, which arises from the phrase in the amendment,

“within six months of the passing of this Act”.

The noble and learned Lord, Lord Morris, has said that a great deal has no doubt already been done and it should be possible to get a measure together within about six months. We have heard that the Wales Office has probably been doing some work on it. However, this Bill is likely to pass into law quite quickly, and I am a little concerned, if more work needs to be done, that the implementation of this proposal might be required almost exactly at the time of the general election—or perhaps even worse, in the interesting period that may follow it, when attempts are being made to form a coalition Government.

It does not seem to me to be very wise that a new Government in those circumstances should be required, almost as their first act, to bring in this measure. My concern is that by using that phrase “within six months of the passing of this Act”, the noble Lord may have inadvertently created an unnecessary obstacle and difficulty. I would be happy with the general thrust of the amendment if we had a rather more relaxed timescale so that, if the matter has to go beyond the general election, it would enable it still to be dealt with expeditiously but not in the immediate aftermath of that general election.

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The six months is not set in stone at all. I think it necessary to have some idea of a timetable to concentrate the mind, as Dr Johnson might have said. However, I do not think that six months is sacrosanct. If a manuscript amendment or any such change was appropriate, I would willingly be prepared to make such amendment.

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But the fact of the matter is that this is a requirement, as the amendment is now drafted. It would be necessary to find some way, perhaps at Third Reading or in some suitable way, to give the flexibility that he is prepared to allow.

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My Lords, I, too, was very much interested in the historical statement that we had from the noble and learned Lord, Lord Morris of Aberavon. His was a very important speech, which I am sure will find its way into the history books of the time.

I indicated in Committee that, in the Bill that I drafted in 1967, we had a reserved powers model which was presented by Lord Hooson in the Commons and by Lord Ogmore in this House. Shortly after that, I gave evidence to the Kilbrandon commission and called for a reserved powers model. When the Government of Wales Act was going through in 1998, I was calling for a reserved powers model. If this amendment today were for a reserved powers model, I would be in very considerable difficulty. However, the amendment tabled by the noble Lord, Lord Elystan-Morgan, is one of timing and, as he has just indicated, he is prepared to be flexible about that timing. In such circumstances, I am prepared to defer to the views of my noble friend the Minister, who I know shares my views on this issue.

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My Lords, I thank the noble Lord, Lord Elystan-Morgan, for his amendment and for the flexibility that he has just expressed. As he says, we have now achieved critical consensus in support of a reserved powers model, which is a result of the growing esteem in which the reputation of the Welsh Assembly is held and the maturing of time.

I think that it now strikes almost everybody—I hope that it strikes the coalition Front Bench—that it is a matter of simple equity between Wales and Northern Ireland and Scotland that devolution should be reconfigured for Wales so that it is on a reserved powers basis. That must make pragmatic sense because it is highly undesirable that questions of policy jurisdiction should have to be resolved in the courts. This is a policy for which the time is ripe. Whether it will be precisely ripe in six or nine months’ time is something that we can consider, but the noble Lord is drawing attention to a matter upon which we should now seek to precipitate universal agreement.

I was fascinated by the historical excursion of my noble and learned friend Lord Morris of Aberavon and I would demur in only one respect. It is presumptuous for me to do so, given his vast experience of these matters, but I am apprehensive about his proposal for the scope and make-up of a constitutional convention. It has suddenly become very fashionable to favour a constitutional convention, since the dramatic and very difficult events that occurred in Scotland—indeed, in the United Kingdom—only a few weeks ago.

I am not against a constitutional convention, and I think it would be a good idea to have senior politicians as members of such a convention along with academics who are deeply expert in these matters, constitutional lawyers, appropriate representatives of civil society and so forth. However, I think it would be a very bad idea for party leaders to be members of such a convention. They would be prudent to keep their distance from the convention, because the problem for a convention is that, toil as it will and wise as its members may be, almost certainly they will get it wrong. As my noble friend acknowledged, the Kilbrandon royal commission was inconclusive. I think he even said of himself and his colleagues and partisans in that Labour Cabinet, “In the event we were proved wrong”.

The complexity and scale of potential constitutional change is such that even the wisest are most unlikely to hit upon a blueprint for the future of our constitution that will prove as universally beneficial as they hope and stand the test of time. Even the preternatural wisdom of those who met at Philadelphia seems now to be tested by events. Many people consider that the constitution of the United States of America has become pretty dysfunctional. Well, it has served its purpose very well for a very long time. But there are many other instances of constitutional conventions that have started off in a blaze of optimism and ended in a blaze of political destruction, so we should be very cautious about this. Constitutional change occurs most benignly when it is incremental and incrementalism has been the approach for constitutional change in Wales.

The amendment of the noble Lord, Lord Elystan-Morgan, proposes one more phase of incrementalism. It invites us all to acknowledge that the moment has come for devolution to be reconstituted on a reserved powers model. Let us be content with that as we think further and feel our way forward on some of the more difficult aspects of all of this.

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My Lords, I rise because I feel that there ought to be an examination of what the noble Lord has just said. I am very unhappy about this amendment although I agree with it in terms of the next increment. I just think that we are fumbling around in constitutional discussions without taking things in the round. It is all right talking about increments but there has been no constitutional incrementalism as far as England is concerned. That is our problem and we ought not to allow ourselves to continue with these bits—a bit here, a bit there—with no real consideration of the totality of the United Kingdom.

We are fumbling in the dark and I very much hope that my noble friend will not accept this amendment, not just because of the time but because I hope she will go back to the coalition Government and say that, although it may be tough, there comes a moment in a nation’s life when it has to consider what its constitution ought to be as a whole, not just in bits, and what happens to the other bits when you change some of them. We must face up to it. I know it is not going to be perfect and I know it is going to be very difficult but if the choice is between randomness and trying to work something out, I am in favour of rationality. I want people to think this through and try to discover what the balance ought to be.

As the son of a Welsh-speaking father I have some reason to congratulate the Welsh people on the way in which devolution has worked in the Principality. I am not speaking against this because I do not think that it should continue; I am merely saying that the United Kingdom matters too much for it to be left—

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I am most grateful. I am very much in sympathy with what my noble friend is saying. Does he agree with me and others that a royal commission might well be the answer here?

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Well, it would seem the obvious answer, but the real question is that the United Kingdom matters too much for it to be the result of a series of random decisions about each bit of it. We ought to start the other way round.

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Does the noble Lord not agree that if it were not for the pressure for change in Scotland and Wales in particular, and perhaps in Northern Ireland, England would do nothing? Therefore, if we do not have that pressure, there is no incentive. Rationality is all very well, but you need to do something.

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I quite agree with my noble friend, but that pressure is there. It has been there, and it has meant that we have had to do things. I have always believed that we should have worked this out rationally before we were pressurised into it, but pressurised we have been. It is not going to stop now. Let us make the answer rational. Let us not just say that we will add another bit here and another bit there and hope that the result is something sensible. I believe the moment has come to grasp this nettle, not to say that it is too difficult. Let us do it as well as we can. It will not be perfect, but I suggest to the noble Lord that it is more likely to be closer to perfect if it has been thought through rather than if it happens accidentally.

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My Lords, I did not intend to speak in this debate until I heard the speech from the noble Lord, Lord Deben. I shall make two points. First, he is absolutely right that the constitution of the United Kingdom as a whole needs a good looking at. There is no question about that. It needs looking at rationally, sensibly and at a very high level. Therefore, I have for a long time been in favour of some kind of convention or royal commission which would do precisely that task. That is one issue.

The other issue is what you do about Wales now. You cannot mix the two up and pretend that the Welsh issue is not an issue that has to be dealt with before the royal commission begins to sit. The position with the Welsh Assembly at the moment is that it has—to use the noble Lord’s phrase—an irrational system whereby it is entitled to legislate. I would have thought that the noble Lord would agree that perhaps some rationality should be brought into the Welsh system. You would then at least have conformity between Wales and Scotland.

The relationship between the devolved Administrations and the centre is precisely the issue that then has to be looked at by a royal commission when it comes to consider the constitution as a whole. I do not think you can just pretend that the situation in Wales does not really exist and wait for the deliberations of a royal commission, which may take some time, as they usually do, and when it reports, the report usually takes a long time to be properly considered. I think there is a distinction there.

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My Lords, I am a little reticent to enter the debate on the basis of rationality because I once had to resit an examination in logic, happily in the university of which I am now the chancellor, so some things work out. This has been an extremely illuminating debate for all of us, not least because we have had further highlights from the memoirs of the noble and learned Lord, Lord Morris of Aberavon, which I am sure many noble Lords have already read. I remember those days in the 1970s very vividly. I pay tribute to him for his consistency in this matter and for his consistency at that time. He has pointed out how he was so keen to ensure that there was not a flanker movement on the part of the Scots, as there always is in politics and occasionally is in sport. He ensured that the issue of Wales stood alongside the issue of Scotland at that time. We had a few cups of tea, and other things, at that time to discuss these matters, and we are where we are today because of the way that he stood firm.

If this is the day of the eulogy of the conferred powers model, I want to say some positive things about it. I was elected Presiding Officer in the Assembly, and I had to work with the three constitutions we have had so far: the executive period; the transitional period of the late lamented—perhaps not—requests for permission to legislate; and now the period post the 2011 referendum on the conferred model conferring full legislative powers with exceptions.

As I mentioned in Committee it is important to say that in constitutional theory, as far as I am concerned, conferred powers with reduced or no exception, bring us to the same place as reserved matters. It means that the subject set out in Schedule 7—the latest and most relevant model—and Clause 108 of the Government of Wales Act 2006 gives us those powers as defined. There is no ambiguity there.

I hate to disagree, gently, with my noble friend Lord Elystan-Morgan. We have both been through a long political journey together and I always value his judgment, now as I did then. But we have the strong determination of the Supreme Court on the agricultural wages board in July. It sets out quite clearly that there cannot be an interpretation of the Government of Wales Act and the relevant Schedule 7 which does not take literally what is in the schedule, nor seek to surmise that there are any other ways of defining the powers as was suggested by certain other law officers of another government. So the position is clearer than he was indicating. Having said that, I speak strongly in favour of moving to the reserved powers model as very clearly set out in the report of my noble friend Lord Richard, which one day will be fully implemented, I hope sooner rather than later.

This move to establish reserved powers is now supported by all parties in the National Assembly. This is very important to me; I have worked closely with both my colleagues on the Government Front Bench over the years, when I was presiding in the Assembly, to ensure that the constitution worked to the extent that we could make it work. Working together, cross-party, has been the basic feature of the success of devolution in Wales. Let that be clearly understood. But there is a flip-side to that. When all parties in Wales agreed, and when all leaders came together as they did in the debate that we had a couple of weeks ago on the future of devolution in Wales, the cross-party agreement said that the National Assembly:

“Seeks confirmation that the Reserved Powers model will be instituted for Wales”.

That is what we are doing by means of this amendment. It has been confirmed by the UK Government through a Minister who was also a Minister in the National Assembly for Wales, and aided by a colleague on the Front Bench there who was leader of the Welsh Conservatives, clearly a very high ranking position in the National Assembly. It is good to have them both here responding to this debate. So I will now give them the opportunity of responding. I emphasise that I always enjoy my debates with the noble Lord, Lord Deben. We agree on most things environmental. I know he is of proper Welsh stock in terms of his theological roots, but he, like me, has wandered in the direction of Anglicanism.

The noble Lord’s key point is rationality and he asked why this is happening in Wales and not in England. I am so old-fashioned in constitutional matters that I still believe in the self-determination of peoples. If people request democratic change, that is a test of whether it should be considered; it is also a test of its acceptability. I absolutely agree with the noble Lord, Lord Howarth, that incrementalism has worked in Wales, because the people of Wales have seen the gradual development of our devolution as something they can support, over successive polls and referenda. It is on that democratic basis that this has happened. It is not something that has come out of nowhere. In the United Kingdom, as we now call it—it has been called lots of things in its history, and may be called other things in future—the relations between the peoples and nations of this island have always been negotiated in this ad hoc way. It is not irrational, it is democracy.

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My Lords, far be it from me to intervene in a discussion among the representatives of the people of Wales on their devolution, but I wanted to make an observation. As someone who was involved in negotiating a reserved powers model some years ago, I can tell noble Lords that it is not the Valhalla that they expect it to be; it has its downsides as well as its upsides.

I wanted to comment on some of the remarks from the noble and learned Lord, Lord Morris of Aberavon. First, on the consistency issue throughout the United Kingdom, I do not think that it will be achievable to have an entirely consistent model everywhere. Indeed, why should we necessarily have one? The famous vow issued immediately before the Scottish referendum had a section in it that almost supersedes devolution, by almost implying that the Scottish Parliament will be a totally free-standing and permanent institution that is not in future perhaps capable of being legislated over by this Parliament. That is one interpretation of the vow.

The noble Lord, Lord Deben, made a significant point when he said that the people of England may feel left out of the constitutional debate. There is quite a bit of substance in that, but I point out to him that it is the Government who have brought forward in this year alone the Northern Ireland (Miscellaneous Provisions) Act, which brought more powers to the Northern Ireland Assembly, as well as the Scotland Act, which gave more powers to Scotland—and now they are bringing forward the Wales Bill. Parliament can respond only to the legislation that the Government of the day bring on to the Floor of the House—and it is the Government who are bringing forward these Bills.

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The noble Lord is saying what I said—that this is how it is being approached and I think that it should be approached in a different way.

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The noble Lord will get no argument from me on that. How we are going about our business is a tragedy in many respects. Obviously, this Government have tried hard on the economic front, and so on, to help us recover, but their Achilles heel has been how they have dealt with constitutional matters. This is only part of it; there are other examples from the earlier days of the coalition Government, when things were brought forward that were not successful. So there is no question that we need to get a grip. There are those with much more parliamentary experience than me—and, whether it is through conventions or royal commissions, we have got to get a grip on this.

I see that the noble Lord, Lord Sewel, the Lord Chairman of Committees, is in his place. The question of how this Parliament relates to the devolved institutions has not been satisfactorily resolved. The Minister will know that on a number of occasions I have raised issues about the fact that the Sewel convention operates in a particular way; it was a product of its time. By removing this House from anything to do with the day-to-day running of the devolved regions is a mistake. It was a historic mistake in my own part of this country because, if Parliament had had some engagement between 1920 and the late 1960s, we might not have ended up in the position we were in. Noble Lords should not believe that it is not possible for something similar to happen in Scotland, Wales or any other form of devolution. This Parliament cannot absent itself, because it is voting on how the resource, in very large measure, will be dispensed by these devolved Administrations.

In our devolution debates, I said that there was a risk that the devolved institutions would become giant ATM machines, and that local people would see all this money flowing out and the local politicians all at it, cutting the tape. I am sure that the Minister has had her day of glory doing that, as did many of the rest of us who were devolved Ministers. The fact is, if we run out of money or do not have enough, as is the position at home, the evil Westminster Parliament is to blame. We cannot have our cake and eat it, so there is an issue to be resolved on how the people of England are dealt with. They are becoming frustrated and angry, which cannot be right. That cannot be good for the United Kingdom.

I also just observe on this amendment that, as the noble Lord, Lord Elystan-Morgan, has already conceded, the six-month deadline is neither practicable nor realistic. I am sure that he will bring forward proposals to amend that in due course.

The Government are continuing to introduce these Bills, and they are being brought forward in a totally independent process from looking at the wider constitutional issues. The more Bills on devolution, the less consistent the United Kingdom becomes. That only exacerbates the position of the people of England, which must be resolved. It is entirely inconsistent that the regions get these powers, if indeed that is what they want; if anybody thinks that the people of Northern Ireland are queuing up for more powers, with the sole exception of corporation tax, I have to say that that is not our position. On the idea that we have income tax powers devolved to Stormont, for instance, I do not particularly look forward to paying 99p in the pound. I think that is where we would end up. At the moment, I believe that the incremental process is the right model to follow. I hope that we get off the blocks, whatever we do in England, but things cannot be left as they are. I think that everybody knows that.

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My Lords, in declaring my interest as recorded in the register, I mention in particular my chairmanship of the Society of Conservative Lawyers. In an attempt to satisfy my noble friend Lord Deben, I refer him to a very detailed report on devolution as a result of a group headed by a senior barrister, Anthony Speaight QC, which concluded that the time has come to move from a conferred powers model to a reserved powers model in Wales. That should be put in the context of other necessary changes.

I greatly welcome the consensus which exists, and which I have heard in this House today for us to move forward on the reserved powers basis in Wales. I, of course, agree with my noble friends Lord Crickhowell and Lord Thomas of Gresford that the timetable set out here is unrealistic. I look forward to hearing from my noble friend how we should proceed. My message is simply that the time has come, and let us now move on.

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I shall be very brief. The noble Lord, Lord Empey, made an interesting speech and I have much sympathy with so much of what he said. He said that you cannot have your cake and eat it, but of course you can; you cannot eat your cake and have it. We should get that aphorism right in this House. We are in danger of getting things in a real muddle if we are not careful. My noble friend Lord Deben, as always, made an extremely persuasive, articulate and convincing speech, and I think that we have to move to a royal commission very soon before we get more tangled up in constitutional change that has not been properly thought through. When we were debating the future of this House, time and again people were saying that form must follow function. That is right. We have to determine what the respective Governments within the United Kingdom do before we make final decisions on how they relate to each other. While I accept that the Bill before us—one of a series of random Bills, as my noble friend Lord Deben said—has to be dealt with, I infinitely regret the constitutional incoherence with which this coalition Government have behaved over the last four years. They have not served the commonwealth in any way whatever.

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My Lords, it is wonderful to listen to noble Lords who worked so hard to establish the Welsh Assembly and have the battle scars showing the history of all that went on. The establishment of the Assembly was a gift to my generation and the generation that follows it. Even more importantly, people support it and, indeed, are asking for more powers for the Welsh Assembly. However, it is worth noting that the appetite for independence in Wales has dropped to an all-time low of 4%.

I have a degree of sympathy with the position adopted by the noble Lord, Lord Deben, as this hotchpotch of constitutional efforts to put things together lacks any consistency or coherence. That is the way we have traditionally done it and that is why the Labour Party supports the establishment of a constitutional convention. However, if you follow the logic, you would have to throw out the whole Bill and I do not think that we would like to see that happen. There is an appetite for the Bill to go through. We want to see some important points in this legislation being adopted, particularly the ability for the Welsh Assembly to have borrowing powers. Having said that, it is also important to draw attention to the fact that the constitutional model on which the Welsh Assembly is established has passed its sell-by date. This amendment seeks a massive simplification and clarification of that system of governance over the current so-called conferred powers model.

At present, it is not at all clear what is devolved to Wales. As the noble Lord, Lord Elystan-Morgan, pointed out, if you want to be absolutely sure about that, you have to consult countless Acts and be an expert on constitutional law. That does not help transparency or accountability, both of which are important when there is a clear problem about the way in which people relate to politics. At the very least they need to know who is responsible for what. The introduction of a reserved powers model would help that.

On two occasions, the Welsh Government have been challenged in the courts in relation to their power in certain policy areas. On those two occasions, the UK Government lost the case against the Welsh Government, most recently in relation to the retention of the Agricultural Wages Board in Wales. Thankfully, even the Government have now seen sense and recognise the need to change to a reserved powers model. In Committee, the Minister suggested that a lot of proactive work is already being done on how to move towards a new reserved powers model. We look forward to hearing more detail of how the Government intend to do that. However, the Minister also suggested that pushing for this now would prolong the process and cause serious problems for the Bill in the other place. I do not concur with that assessment because we know that there is a cross-party consensus for this position. We know that much of the work has already been done, as was indicated by the noble and learned Lord, Lord Morris, so we do not understand why the Bill cannot refer to the reserved model and accept in principle that which we all agree with. It makes sense to be given clarification on this prior to the general election and the Assembly election. We understand that there may be a problem with the timing but we are looking for clarification. It makes sense to lay the report before the end of the six-month period; you do not have to take six months in its entirety. There is no reason why we cannot get on with it before then.

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My Lords, there has been a strong sense of history here today and I would say that this Bill adds its little bit to that history.

Amendment 1, in the name of the noble Lord, Lord Elystan-Morgan, would require the Secretary of State to lay a report before both Houses six months after this Bill has received Royal Assent, setting out a timetable of the legislative requirements for a move to a reserved powers model for the National Assembly. As many noble Lords have said, Amendment 1 reflects the general consensus that a move to a reserved powers model for Wales is desirable. The noble Lord, Lord Elystan-Morgan, explained the disadvantages of the conferred powers model and the noble Lord, Lord Elis-Thomas, referred to working with that model. As a Minister in the Wales Office working with that model on a daily basis, I am well aware of the issues. Several noble Lords have provided us with a vivid analysis of the weaknesses of the current model. The noble and learned Lord, Lord Morris, said of the 1970s model that the Government proposed what they thought they could get away with. One may possibly make the same judgment of the late 1990s model, which is the one that was used to establish the Assembly. It is reflected, of course, in the conferred powers model.

A change to a reserved powers model would provide much needed clarity in the devolution settlement—clarity which would make further referrals to the Supreme Court less likely. The Government fully agree with the underlying intention of the noble Lord’s amendment, if not with its detail. Rather than waiting for Royal Assent of this Bill, the Government intend to take forward work over the next few months to produce a reserved powers framework for Wales. Through cross-party discussions and discussions with the Welsh Government, my right honourable friend the Secretary of State and I intend to produce that reserved powers framework and a set of commitments to further devolution agreed by all the parties by St David’s Day 2015. This will be a comprehensive look at the whole picture. Several noble Lords have discussed the need for a constitutional convention. I am sure noble Lords will recognise that this is not something for today. However, in respect of Wales, the Secretary of State—

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I apologise for interrupting my noble friend but I am very troubled about these artificial symbolic dates. Fixing something by Burns Night or by St David’s Day does not march well with the constitutional consistency and coherence that I talked about.

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The noble Lord possibly does not recognise the importance of St David’s Day in Wales. However, the day is chosen not simply because it has significance within Wales but because it falls conveniently before the next election and before the start of the campaign proper of the next election.

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The Minister has made a very important concession. Clearly, the Government have listened very carefully to what was said in Committee, but the problem remains of what vehicle will be used to bring this new consensus into operation. The noble Baroness will know how difficult it is to find a slot in the legislative programme. It is also very difficult, obviously, for the Government to give any firm undertakings. How does she respond to that?

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The noble Lord makes an important point. By moving forward on a cross-party basis, it is the intention to ensure that there is commitment across the four parties in Wales to ensure that the Bill can come forward in the early stages of the next Parliament.

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I apologise because I had to leave the Chamber for part of this debate. I do not understand. If my noble friend is talking about doing this by St David’s Day, which I think is in April—

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In March; forgive me or I shall ask people to tell me when Burns Night is. If my noble friend is talking about doing this within six months, why on earth is she against the amendment?

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The amendment refers to starting within six months of Royal Assent to this Bill—and, of course, that will not take place for some time yet, even assuming that it has a swift passage through the other place.

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I may have misheard, or it may have been a slip. Did the noble Baroness say St David’s Day 2016 or 2015?

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I will of course look at the record but I was firmly intending 2015. I think noble Lords understand that.

Perhaps I may have a moment to flesh out a little further the plans that my right honourable friend the Secretary of State and I are attempting to achieve. We are determined to achieve a comprehensive approach to the next stage of devolution in Wales and to achieve cross-party consensus. The simple fact, therefore, is that the noble Lord’s amendment is unnecessary.

The Government are committed to taking forward an ambitious programme for Welsh devolution and to achieve that programme through agreed, cross-party discussions. It is an ambitious timetable—much more ambitious, certainly, than that proposed in the amendment —but it is achievable and the Government are committed to delivering on it. Indeed, it is important to note that we are already working on this.

In this context, I urge the noble Lord to withdraw his amendment because the Government are determined to deliver on these commitments. We want to establish a common set of commitments that all parties in Wales have signed up to for the 2015 general election. This is an historic opportunity to achieve a major step towards a lasting and fair devolution settlement for Wales so that we are not constantly, year in and year out, having an ongoing discussion about what the next powers to be devolved to Wales should be. We want to settle this for the foreseeable future. I therefore urge the noble Lord to withdraw his amendment.

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My Lords, seldom have I been so proud to be a Welshman and a Member of this august House. It has been an excellent debate. Many issues have arisen—some of them bordering on the philosophical, if not the metaphysical. One could spend many hours on the matters raised by the noble Lord, Lord Deben. All I say to him on the issue of the survival of the Anglo-Saxons, as far as the parliamentary institutions are concerned, is that he can sleep quietly, peacefully and happily in his bed. There is no danger that they will be swamped by the Celts on the fringes of the United Kingdom. It is an old question. It was raised in Gladstone’s time in 1893. The difficulties then were regarded by him as being insurmountable—of dividing a purely English issue from those matters that were directly or indirectly relevant. That will be the whole question. However, that is a matter for another day.

We have had an excellent debate and I am very grateful indeed to everyone who has contributed to it. The hallmark of the debate was unity. The consensus on this matter transcends every political boundary. That has not come about by accident. I have already paid tribute to the noble Lord, Lord Bourne of Aberystwyth, and to the noble Baroness for the work that they have done over a long period in laying the foundations of such a consensus.

The Minister has graciously told the House of plans that the Government already have to bring about these changes. Clearly, work has been done already. It would not have been possible for the seventh schedule to the 2006 Act to be contemplated—the 20 different areas of authority—without considering with some care exactly where that left one. However, I still think, with the greatest respect to my noble friend Lord Elis-Thomas, that there are massive ambiguities. However, it is not for an ex-circuit judge to try and animadvert on the wisdom or otherwise of the attitude of very senior judges in this matter.

The offer made by the Minister is generous but turns on many contingencies. Presumably, the work will be done by 1 March—not 1 April—2015. Then it will be for the next Government to decide exactly when and how the proposals will be brought into law. Who will the next Government be? Is there a Delphic oracle who can tell us? Can anyone read the runes or look at the entrails and tell us who is likely to succeed? If we pass the amendment—I will ask the House to divide on the matter—we will be giving the noble Baroness strength vis-à-vis Her Majesty’s Government. We will be placing solidly and clearly, and with total resolution, exactly where we stand. I say “we” because I hope that I can speak for the people of Wales in this matter. There is unanimity and a sense of urgency. Time is of the essence. Therefore, I hope that the noble Baroness will not think me churlish. It is as much to strengthen her arm and in no way to frustrate her position that I ask the House to divide.

Division 1

11 November 2014

Division on Amendment 1

Content: 146
Not Content: 215

Amendment 1 disagreed.

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