Committee (4th Day)
Relevant Document: 5th Report from the Delegated Powers Committee
107C: After Clause 48, insert the following new Clause—
“PART 2AWELSH TRIBUNALSThe Welsh tribunals
(1) In this Part “Welsh tribunal” means—(a) the Agricultural Land Tribunal for Wales or Tribiwnlys Tir Amaethyddol Cymru;(b) the Mental Health Review Tribunal for Wales;(c) a rent assessment committee constituted in accordance with Schedule 10 to the Rent Act 1977 (including a leasehold valuation tribunal and a residential property tribunal);(d) the Special Educational Needs Tribunal for Wales or Tribiwnlys Anghenion Addysgol Arbennig Cymru;(e) a tribunal constituted in accordance with Schedule 3 to the Education Act 2005 (registration of inspectors in Wales: tribunals hearing appeals under section 27);(f) a tribunal drawn from the Adjudication Panel for Wales or Panel Dyfarnu Cymru;(g) the Welsh Language Tribunal or Tribiwnlys y Gymraeg.(2) Her Majesty may by Order in Council amend subsection (1)—(a) so as to remove or revise a paragraph,(b) so as to add or substitute a tribunal whose functions— (i) are exercisable only in relation to Wales, and(ii) do not relate to reserved matters (within the meaning of the Government of Wales Act 2006), or(c) so as to make amendments (to provisions of this Part or other enactments) that are consequential on an amendment within paragraph (a) or (b).(3) No recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, the National Assembly for Wales.(4) Subsection (3) does not apply to a statutory instrument containing an Order in Council that only makes—(a) provision for the omission of a paragraph in subsection (1) where the tribunal concerned has ceased to exist,(b) provision for the variation of a paragraph in consequence of a change of name or transfer of functions, or(c) amendments within subsection (2)(c).Such an Order in Council is subject to annulment in pursuance of a resolution of the Assembly.”
My Lords, the government amendments in this group demonstrate the pragmatic and progressive approach that the Government are taking in this Bill to the interface between devolved matters and the wider justice system of England and Wales. The amendments are designed to do two things. First, they will create a statutory office of President of Welsh Tribunals to oversee the work of the devolved Welsh tribunals. Secondly, they will allow for the movement of judges between different Welsh tribunals and between reserved Her Majesty’s Courts & Tribunals Service tribunals in England and Wales and the devolved Welsh tribunals, to share expertise in a way that cannot happen under current legislation.
These measures are the culmination of discussions with the Welsh Government, the Ministry of Justice and the senior judiciary. Although the clauses and accompanying schedules are fairly lengthy, reflecting some technical but necessary aspects of the provisions, the overriding purpose is simple: to improve the way in which the workload of the devolved Welsh tribunals is managed and to maximise flexibility in the deployment of judicial resources in the Welsh tribunals.
I will deal with the creation of the statutory office of President of Welsh Tribunals before moving on to discuss the flexible deployment measures in more detail. As noble Lords may be aware, there are currently seven devolved tribunals which are the responsibility of the Welsh Government. The full list is set out in Amendment 107C and includes, among others, the Special Educational Needs Tribunal for Wales and the Welsh Language Tribunal.
Each tribunal currently has its own chairperson, but Mr Justice Wyn Williams has undertaken an informal, presidential-style role in respect of the relevant tribunals, acting as a central point of contact for all leadership judges in them. By putting the role of President of Welsh Tribunals on a statutory footing in Amendment 107DA, we acknowledge the important work that Mr Justice Wyn Williams has done, while bringing greater consistency to operations and the provision of pastoral support to the leadership judges in the relevant tribunals. The fact that Mr Justice Wyn Williams has performed this role on an informal basis for some time is perhaps the best indication that there is a need for a permanent statutory position.
Noble Lords will be aware that the Lord Chancellor and Lord Chief Justice have legal duties to increase diversity in the judiciary. For that reason, the Government consider that the selection and appointment process should be as open and transparent as possible.
The new schedule inserted by Amendment 119AA provides for a two-stage process for the appointment of a person to this new statutory role. At the first stage, the Lord Chief Justice can recommend a candidate for appointment. If the person chosen is a current or former judge of the High Court or the Court of Appeal, and the Welsh Ministers and the Lord Chancellor agree with his recommendation, the appointment can go ahead. Where those conditions are not met, for example because there were two or more promising candidates, the Lord Chief Justice would be required to ask the Judicial Appointments Commission to recommend somebody for appointment. This is similar to the two-stage process that exists in relation to the Senior President of Tribunals, who carries out a similar role in relation to the First-tier and Upper Tribunals that exercise jurisdiction across England and Wales. If the Judicial Appointments Commission was invited to carry out a recruitment campaign, the new schedule created by Amendment 119AA makes it clear that its guiding principles of selection on merit and promotion of diversity would apply, just as they would in any other campaign carried out in England and Wales.
On flexible cross-deployment, the measures in Amendment 107FA are related specifically to members of the Welsh tribunals being deployed from one Welsh tribunal to another, giving the president greater flexibility in the way judicial resources are managed and the ability to respond effectively to peaks and troughs in the workload of the tribunals. In addition, the Welsh Government agreed with the Lord Chief Justice, the Senior President of Tribunals and the Lord Chancellor that it might be beneficial if judges could move between reserved HMCTS tribunals and the devolved Welsh tribunals, if this were needed to meet urgent business needs. Amendments 107GA and 107H would provide the legal basis for cross-deployment to occur. They would allow judges from the Welsh tribunals to sit in the First-tier Tribunal and for judges from the First-tier and Upper Tribunals to sit in the Welsh tribunals, subject to the agreement of the senior judiciary on both sides. In reality, the Government anticipate that it is more likely that judges would be deployed from HMCTS tribunals into the Welsh tribunals than vice versa, but these amendments would permit movement in either direction. I hope the Committee will agree that both the creation of the office of President of Welsh Tribunals and the measures on cross-deployment are worth while.
There is also an opposition amendment in this group. I look forward to hearing from the Opposition on that and will then respond to the points made. I beg to move.
My Lords, I shall speak to Amendment 108 in my name, which seeks to devolve the youth justice system in Wales. The amendment is perhaps slightly incongruously linked with this bank of amendments before the House.
The ineffective and complex mix of devolved and non-devolved bodies that manage the Welsh youth justice system means that a fragmented approach is the best we can hope to achieve. The argument for the devolution of the youth justice system has been made by many experts in both policy and practice, including former Youth Justice Board chair, Professor Rod Morgan, who noted that it is illogical to have a system where factors linked to youth offending are often related to devolved services, such as education and training, social services and health, while youth offenders are dealt with through non-devolved services such as the police, youth offending teams and youth courts.
My party colleague, North Wales Police and Crime Commissioner Arfon Jones, highlighted how a devolved youth justice system would provide an integrated and coherent children’s policy for Wales. Through a clear devolution settlement, the accountability, opportunities to innovate and the simplification of the way the youth justice system operates in Wales would lead to significant improvements for vulnerable children and young adults.
Understandably, the English youth justice system, on to which elements of the Welsh system continue to be tacked, is concerned with English problems, particularly gangs and urban violence. In Wales, rural issues and poverty underpin the challenges faced. By creating a clean break between the two systems, we could enhance outcomes for children at risk in both nations, allowing policies and practices to be targeted and focused on the issues of greatest importance in both places.
As another party colleague of mine, Liz Saville Roberts, highlighted in the other place, the Howard League for Penal Reform found out about our efforts to devolve youth justice and provided us with the following statement:
“When it comes to Welsh children in trouble with the law, Wales should be able to come up with a Welsh solution to a Welsh concern. This is particularly the case because both social services and education policy are already devolved and it is a welfare-led approach which will prove most effective for troubled children. The Welsh Youth Justice Board already recognise this in their ‘children first’ approach and there is an opportunity to build on that distinctiveness and protect it from any Westminster-led reforms that fail to take into account the specific needs of Welsh children”.
Coming from where it does, that quote ought to carry a lot of weight.
The practical benefits of devolving the youth justice system are clear. It is outlined in the recommendations of the Silk commission, as I am sure the Minister will readily recall. It is exemplified by the fact that it is already devolved to Scotland and Northern Ireland, and it is reinforced by the fact that the Government already said they are looking to devolve aspects of youth justice to areas of England. Can the Minister explain to the people of Wales why establishments such as the Greater Manchester Combined Authority are set to gain increased competence over youth justice but the established National Assembly for Wales, with a track record on closely related issues, is not?
I hope the Minister will listen to the advice of those involved in the sector and either support this amendment or bring forward an amendment on Report that will devolve the remaining aspects of the youth justice system to Wales.
My Lords, there is a mass of important material in this substantial group of amendments but I draw attention to one particular issue arising from government Amendment 107H, which would introduce a new clause. It appears that that would allow the Lord Chancellor to amend a section of primary legislation, so this clause would create a new Henry VIII power. Parliament ought always to be on the alert when new Henry VIII powers are proposed by the Government. It would be appropriate and helpful if the Minister explained the Government’s justification for this. I see the noble and learned Lord, Lord Judge, in his place but do not know whether he is minded to deploy his forensic powers in examination of this particular amendment. If he is, it would be otiose for me to say more.
My Lords, I support the Government’s approach on tribunals. The position on tribunals has been sorted in England and I was party to the discussions that went on at that time. The provisions put forward by the Government seem very sensible. I note in particular the question of cross-deployment of members of the tribunals, not merely within Wales from tribunal to tribunal but also with English counterparts. That indicates something I have said in earlier debates: there is nothing so arcane about Welsh law passed by the Welsh Assembly that it would be impossible for those brought up in the same traditions in England and Wales to be able to cope perfectly adequately with the issues that may arise.
I also support Amendment 108, to which my name is attached. The Welsh division of the Youth Justice Board has operated very successfully in Wales and created new partnerships with social services, education and health—which are all devolved matters. There is a consensus view across what I hesitate to call the “stakeholders” in Wales in this area that it should be a devolved service. As the noble Lord, Lord Wigley, pointed out, the opportunities for its improvement and for experimentation would no doubt then be possible.
My Lords, this group of amendments relates to Welsh tribunals. We welcome the fact that the UK Government have brought forward these provisions. The new role of President of Welsh Tribunals will provide judicial leadership in support of the Welsh Government’s programme of tribunal reform. The ongoing reform of the Welsh devolved tribunals is designed to strengthen judicial independence and provide service improvement and consistent standards across England and Wales.
Another amendment in this group relates to youth justice. There is a great deal of good practice in terms of Welsh public services working closely with the UK Youth Justice Board for the benefit of the child affected, but it is worth noting that this is one of the few areas of policy relating to children and young people that is not devolved to Wales. There is a danger that services may be commissioned for young people generally in Wales, while those in the youth justice system will not be able to access them. This is one of the reasons why the Welsh Government would like to see the youth justice system devolved. But the view on our Benches is slightly different, in that we believe that we should wait for the full publication of the report by Charlie Taylor who is investigating this matter, and we believe that this is one of the areas on which our proposed justice commission should focus. I look forward to what the Minister has to say on these amendments.
My Lords, I thank noble Lords who have participated in the debate on this group of amendments. I shall first deal with the points made in relation to Welsh tribunals and the President of Welsh Tribunals. I thank noble Lords for the general welcome for provisions that strengthen Welsh tribunals and their operation in Wales.
In relation to Amendment 107H, I say to the noble Lord, Lord Howarth, that I do not see anything irregular in this because the power to be exercised by the Lord Chancellor in relation to adding tribunals and so on to the list is subject to affirmative resolution in new Section 107H(3). So that would be entirely regular—but perhaps I misunderstood the noble Lord.
The provision to provide power for the Lord Chancellor by statutory instrument to amend primary legislation is—or ought to be —exceptional and needs some justification.
I stand to be corrected on this, but under new Section 107H(3) it is subject to an affirmative resolution of each House of Parliament, and that is entirely appropriate.
Opposition Amendment 108 was ably moved by the noble Lord, Lord Wigley, and supported equally ably by the noble Lord, Lord Thomas of Gresford. As we have discussed on many occasions during the passage of the Bill, the Government’s position is clear: the justice system, including youth justice, should be a reserved issue. I am sure the noble Lord will not be surprised by that response.
Under this model, the Assembly will continue to exercise legislative competence over key areas that impact on youth offending in Wales, such as health, children’s services and education. The Assembly and the Welsh Government will continue to be heavily involved in the management and rehabilitation of young offenders through partnership with the police—I note the comments made by the noble Lord, Lord Wigley, in relation to Arfon Jones the police and crime commissioner for North Wales—and devolved services under the Children and Young People First joint strategy, while a single system for managing young offenders across England and Wales is maintained.
In short, there is a very effective partnership at the moment. I appreciate that that is, to some extent, dependent on the chemistry of the people involved, so I will write on this issue to explain how it is operating at the moment—because it appears to be operating more than satisfactorily, as far as I can see. I note the comments by the noble Baroness, Lady Gale, in relation to the Charlie Taylor review. I agree that it is an important review that obviously the Government will look at.
The noble Lord, Lord Wigley, referred to the Silk commission and my role in it. The commission’s second report found that youth justice services work well and that there is close working between devolved and non-devolved partners. Its recommendation on devolution was aimed at promoting greater integration. It is quite true to say that there was a recommendation regarding devolution, but it was in the context of devolving more than youth justice. The noble Lord will know that the St David’s Day agreement that followed did not present any consensus on devolving justice. Accordingly, it is the Government’s position that all aspects of the justice system, including youth justice, should be reserved. However, we recognise the need for the close working relationship which appears to be working very well at the moment.
Will the Minister address my point that there is devolution of a different kind going on with youth justice being devolved to areas such as Manchester, yet they are not having a totally separate Home Office or judicial structure of their own? In these circumstances, and given the fact that the Labour Party, the Liberal Democrats, a lot of Cross-Benchers and ourselves support this movement and the Silk commission’s recommendation, will he look at this matter between now and Report to see whether there is room for greater devolution, at least of large parts of this, to the Assembly in order to get a coherent service in Wales?
My Lords, I thank the noble Lord for that contribution. I was coming on to deal with devolution to areas of England, to which the noble Lord referred, and to say that I will cover that in the letter that I am writing in relation to the current arrangements in Wales. My understanding—I have had a look at this—is that it does not involve devolution of policy issues in the way that this would to the Welsh Government. It will not allow English cities or regions to have separate policy arrangements, which I think is what the noble Lord is seeking. But I will cover that in the letter, as well as the arrangements that are likely to be in place in the areas of England where we are looking at devolution—Manchester, Liverpool, the West Midlands and so on. But, in short, I think that it is devolution of a different sort.
I shall move on and talk about some of the cost implications that would be involved in replicating some of the functions that appear to be working well, partly by the purchase of custodial places in England owing to the lack of, for example, secure establishments in North Wales and secure training centres across the whole of Wales. That would be a necessary part of any devolution package. Perhaps more importantly, reserving legislative competence for youth justice ensures that the Government can apply a coherent approach to criminal justice and the management of offenders across all age groups, while enabling the joined-up working that is happening at the moment in Wales on the issues affecting youth offending.
I recognise the significant and continuing role of devolved authorities in delivering youth justice services, as happens now, and the level of co-operation which already exists on the ground between devolved and non-devolved organisations. I put on record my thanks to the devolved and non-devolved organisations that are making it work. However, it is the Government’s view that not accepting the amendment will ensure that we have the most efficient, effective and consistent way to deliver youth justice services across England and Wales within the single legal jurisdiction.
Amendment 107C agreed.
Amendment 107D had been withdrawn from the Marshalled List.
Amendment 107DA (in substitution for Amendment 107D)
107DA: After Clause 48, insert the following new Clause—
“President of Welsh Tribunals
(1) The Lord Chief Justice of England and Wales may appoint a person to the office of President of Welsh Tribunals or Llywydd Tribiwnlysoedd Cymru.(2) The President of Welsh Tribunals is not a Wales public authority for the purposes of the Government of Wales Act 2006.(3) Schedule (President of Welsh Tribunals) makes further provision about the President of Welsh Tribunals and about appointments under subsection (1).(4) A holder of the office of President of Welsh Tribunals must, in carrying out the functions of that office, have regard to—(a) the need for the Welsh tribunals to be accessible;(b) the need for proceedings before those tribunals—(i) to be fair, and(ii) to be handled quickly and efficiently;(c) the need for members of those tribunals to be experts in the subject-matter of, or the law to be applied in, cases in which they decide matters;(d) the need to develop innovative methods of resolving disputes that are of a type that may be brought before those tribunals.(5) The President of Welsh Tribunals is responsible—(a) for the maintenance of appropriate arrangements for the training, guidance and welfare of members of the Welsh tribunals within the resources made available by the Welsh Ministers;(b) for representing the views of members of the Welsh tribunals to the Welsh Ministers and to other members of the National Assembly for Wales.”
Amendment 107DA (in substitution for Amendment 107D) agreed.
Amendment 107E had been withdrawn from the Marshalled List.
Amendment 107EA (in substitution for Amendment 107E)
107EA: After Clause 48, insert the following new Clause—
“Directions as to practice and procedure
(1) The President of Welsh Tribunals may give directions as to the practice and procedure to be followed by the Welsh tribunals.(2) The president or chairman of a Welsh tribunal may give directions as to the practice and procedure to be followed by that tribunal.(3) A power under this section to give directions includes—(a) power to vary or revoke directions made in the exercise of the power;(b) power to make different provision for different purposes (including different provision for different areas);(c) (in the case of directions by the President of Welsh Tribunals) power to make different provision for different tribunals.(4) Directions under this section may not be given without the approval of the Welsh Ministers.(5) Subsection (4) does not apply to directions to the extent that they consist of guidance about any of the following—(a) the application or interpretation of the law;(b) the making of decisions by members of the Welsh tribunals. (6) Subsection (4) does not apply to directions to the extent that they consist of criteria for determining which members of the Welsh tribunals may be chosen to decide particular categories of matter; but the directions may, to that extent, be given only after consulting the Welsh Ministers.(7) Before the President of Welsh Tribunals gives directions under this section he or she must consult the president or chairman of each Welsh tribunal to which the directions relate.(8) Before the president or chairman of a Welsh tribunal gives directions under this section he or she must consult the President of Welsh Tribunals.(9) A person giving, varying or revoking directions under this section must publish the directions, or the variation or revocation, in whatever way the person thinks appropriate.”
Amendment 107EA (in substitution for Amendment 107E) agreed.
Amendment 107F had been withdrawn from the Marshalled List.
Amendment 107FA (in substitution for Amendment 107F)
107FA: After Clause 48, insert the following new Clause—
“Cross-deployment of members of the Welsh tribunals
(1) In Schedule 9 to the Agriculture Act 1947 (Agricultural Land Tribunal etc), in paragraph 15A, after sub-paragraph (1) insert—“(1A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Agricultural Land Tribunal may, at the request of the Chairman of the Agricultural Land Tribunal and with the approval of the President of Welsh Tribunals, act as a member of the Agricultural Land Tribunal.”(2) In Schedule 10 to the Rent Act 1977 (rent assessment committees), after paragraph 5A insert—“5B_ A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of a rent assessment committee in Wales may, at the request of the president or vice-president of the panel and with the approval of the President of Welsh Tribunals, act as a member of such a committee.”(3) In Schedule 2 to the Mental Health Act 1983 (Mental Health Review Tribunal for Wales), in paragraph 5—(a) after sub-paragraph (1) insert—“(1A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Tribunal but who is eligible to decide any matter in a case under this Act may, at the request of the President of the Mental Health Review Tribunal for Wales and with the approval of the President of Welsh Tribunals, act as a member of the Mental Health Review Tribunal for Wales.”(b) in sub-paragraph (3), after “sub-paragraph (1)” insert “or (1A)”.(4) In section 333 of the Education Act 1996 (Special Educational Needs Tribunal for Wales), after subsection (4) insert—“(4A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Tribunal may, at the request of the President and with the approval of the President of Welsh Tribunals, serve as a member of the Tribunal.”(5) In section 75 of the Local Government Act 2000 (Adjudication Panel for Wales), at the end insert—“(12) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of the Adjudication Panel for Wales may, at the request of the president or the deputy president (if any) and with the approval of the President of Welsh Tribunals, act as a member of a tribunal drawn from the Panel.”(6) In Schedule 3 to the Education Act 2005 (registration of inspectors in Wales: tribunals hearing appeals under section 27), in paragraph 1, after sub-paragraph (3) insert—“(3A) A member of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals) who is not a member of a tribunal constituted to hear an appeal under section 27 may act as a member of such a tribunal at the request of its chairman and with the approval of the President of Welsh Tribunals.”(7) In Schedule 11 to the Welsh Language (Wales) Measure 2011 (nawm 01) (the Welsh Language Tribunal), after Part 2 insert—“PART 2ACROSS-DEPLOYMENT OF TRIBUNAL MEMBERS9A A member of the tribunal listed in section (The Welsh Tribunals) of the Wales Act 2016 (the Welsh Tribunals) who is not a member of the Tribunal may, at the request of the President and with the approval of the President of Welsh Tribunals, act as a member of the Tribunal.””
Amendment 107FA (in substitution for Amendment 107F) agreed.
Amendment 107G had been withdrawn from the Marshalled List.
Amendment 107GA (in substitution for Amendment 107G)
107GA: After Clause 48, insert the following new Clause—
“Cross-deployment of tribunal members and judges
(1) A member of a Welsh tribunal may act as a member of the First-tier Tribunal if—(a) the Senior President of Tribunals asks the member to do so, and(b) the President of Welsh Tribunals agrees to the request being made.(2) A judge or other member of—(a) the First-tier Tribunal, or(b) the Upper Tribunal,may act as a member of a specified Welsh tribunal if the President of Welsh Tribunals asks the member to do so and the Senior President of Tribunals agrees to the request being made.(3) Subsection (2) does not apply to a tribunal member who is a relevant judge.(4) A relevant judge may act as a member of a specified Welsh tribunal if—(a) the President of Welsh Tribunals asks the judge to do so, and (b) the Lord Chief Justice of England and Wales agrees to the request being made.(5) In subsections (2) and (4) “specified” means specified in the request.(6) In this section “relevant judge” means—(a) a judge of the Senior Courts;(b) a deputy judge of the High Court;(c) a Circuit judge;(d) a deputy Circuit judge;(e) a recorder;(f) a district judge;(g) a deputy district judge;(h) a District Judge (Magistrates’ Courts);(i) a Deputy District Judge (Magistrates’ Courts);(j) the holder of an office listed in—(i) the first column of the table in section 89(3C) of the Senior Courts Act 1981 (senior High Court Masters etc), or(ii) column 1 of Part 2 of Schedule 2 to that Act (High Court Masters etc).(7) A reference in this section to—(a) the President of Welsh Tribunals,(b) the Senior President of Tribunals, or(c) the Lord Chief Justice of England and Wales,includes a reference to an individual designated by that person to exercise the person’s functions under this section.(8) A designation made by a person under subsection (7) that is in force immediately before the person ceases to hold the office in question continues in force until varied or revoked by a subsequent holder of that office.”
Amendment 107GA (in substitution for Amendment 107G) agreed.
107H: After Clause 48, insert the following new Clause—
“Power to amend section (Cross-deployment of tribunal members and judges)
(1) The Lord Chancellor may by regulations amend subsection (2) of section(Cross-deployment of tribunal members and judges)—(a) so as to add a tribunal to those listed,(b) so as to remove or revise a reference to a tribunal added under paragraph (a), or(c) so as to make amendments (to provisions of this Part or other enactments) that are consequential on an amendment within paragraph (a) or (b).(2) Regulations under this section may not add a tribunal whose functions—(a) are exercisable only in relation to Wales, and(b) do not relate to reserved matters (within the meaning of the Government of Wales Act 2006).(3) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.(4) Subsection (3) does not apply to a statutory instrument containing regulations that only make—(a) provision for the omission of a reference to a tribunal that has ceased to exist, (b) provision for the variation of a reference in consequence of a change of name or transfer of functions, or(c) amendments within subsection (1)(c).Such an instrument is subject to annulment in pursuance of a resolution of either House of Parliament.”
Amendment 107H agreed.
Amendments 108 to 110 not moved.
Clauses 49 to 52 agreed.
Clause 53: Consequential provision
111: Clause 53, page 42, line 38, at end insert—
“( ) If a statutory instrument containing regulations under subsection (2) includes provision within devolved competence or provision modifying a devolution enactment, the Secretary of State must send a copy of the instrument or, if subsection (7B) applies, a draft of the instrument to the First Minister for Wales and the First Minister must lay it before the Assembly.”
My Lords, this amendment is in my name and those of my noble friend Lady Morgan and the noble Lord, Lord Wigley. It is the first of a group of nine amendments dealing with the issues that arise from Clause 53. I also acknowledge that in this group are amendments in the name of the noble Lord, Lord Elis-Thomas.
Before I turn my attention to the substance of the amendments, I remind the Committee that their established provenance, as it were, comes from amendments drafted and promoted, in some cases, by the Welsh Government and, in other cases, by the National Assembly. Given that, I hope that due weight will be attached to the amendments because of where they have come from and what they propose. I also draw attention to the fact that concerns about this clause have been brought to our attention not only by the National Assembly and the Welsh Government but by two reports from this House—one by the Delegated Powers Committee and a further one by the Constitution Committee. I shall draw to the attention of the Committee what those two reports say in their concerns about this clause.
It is not surprising, mind you, that this clause has attracted such attention. As we have just been reminded, yet again here is a clause that introduces a Henry VIII power. We have been seeing an increasing tendency to use Henry VIII powers. The phrase “Henry VIII power” harks back to the fact that similar provisions can be found in early Tudor statutes—for example, a Statute of Sewers in 1531 and, more interestingly, the statute of Wales of 1542-43, have such powers in them. I need not tell anyone in this Committee what a Henry VIII power is, but we might as well remind ourselves: it is a power that allows the Secretary of State to modify, amend, repeal or revoke any piece of primary legislation through a statutory instrument.
I suggest that the power in Clause 53 is a Henry VIII power-plus because of the way in which, in subsection (8), the clause defines primary legislation:
“In this section ‘primary legislation’ means … an Act of Parliament”,
“a Measure or Act of the National Assembly for Wales”.
In other words, the clause will allow the Secretary of State to modify, repeal or amend any Measure or Act of the National Assembly for Wales. As the clause stands, the Secretary of State can do so unilaterally. There is no provision in the clause to involve, in any meaningful way, either the Welsh Government or the National Assembly, whose Measures and Acts are their property. I strongly believe we should look at a process by which the National Assembly could scrutinise and approve any such proposed statutory instrument.
I therefore turn to the first of the reports from this House and the comments of the Delegated Powers Committee on this clause. I have a feeling that the Delegated Powers Committee is getting increasingly exasperated by the way in which these Henry VIII powers are being introduced and, for that very reason, by Clause 53 in particular. I remind the Committee what the Delegated Powers Committee said about Clause 53:
“a Bill should not as a matter of routine confer a Henry VIII power such as that in clause 53”.
That is the first of its exasperated comments. The second is, as that committee has repeatedly said on other Bills that have included Henry VIII powers, that,
“where a Henry VIII power is included in a Bill, it must be fully explained and justified in the delegated powers memorandum”.
No such full explanation or justification has been included in the memorandums on this clause.
Interesting and almost as potent is the committee’s observation in paragraph 43 of the report:
“Regulations which amend or repeal ‘primary legislation’ as so defined are subject to the affirmative procedure in both Houses of the UK Parliament. However, there is no requirement in clause 53 for the Secretary of State to consult or seek the approval of the Assembly or Welsh Ministers before making regulations which amend a Measure or Act of the Assembly. We note with disappointment that no explanation is given in the memorandum”.
I turn to the second of our committees that have reported on this clause, the Constitution Committee. It picks up strongly the issue that there is nothing in the clause allowing the Assembly to scrutinise, or indeed possibly approve, any of these statutory instruments. It quotes—effectively, in my view—a concern expressed by the Constitutional and Legislative Affairs Committee of the Assembly:
“Regulations which seek to change the law that only applies in Wales and was made by the National Assembly, must be approved by the National Assembly. This is a basic matter of constitutional propriety”.
Paragraph 88 of the Constitution Committee report—the committee’s conclusion, which is in bold—states:
“Clause 53 would permit legislation passed by the National Assembly for Wales to be amended by statutory instrument at the behest of a UK Government minister without the consent, or indeed involvement, of the National Assembly or Welsh Government. The House may wish to consider whether it would be more appropriate for the consent of the National Assembly to be required—as, for example, is the case for certain statutory instruments made under the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011”.
The committee is prompting us to adopt the position that these amendments seek, which is to involve, in a formal way, the role of both the Welsh Government and the National Assembly in the scrutinising of any such statutory instruments.
I had not noticed the two interesting precedents quoted in that paragraph. I looked up the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011, and both have within them a requirement that agreement or consent should be obtained from either the Welsh Government or the National Assembly before statutory powers can be exercised. So in some way we have precedents. I know it will be argued that there are precedents the other way as well, and that in fact in most devolution legislation this kind of provision has not been included. I would make the simple case that we are evolving our devolution process, and surely this would be one sensible way to evolve.
What do the amendments do? I shall not burden the Committee with a detailed account of all of them; I shall take the two that pave the way for a number of the consequential amendments. Amendment 111, which I am in the process of moving, states:
“If a statutory instrument containing regulations under subsection (2) includes provision within devolved competence or provision modifying a devolution enactment, the Secretary of State must send a copy of the instrument or, if subsection (7B) applies, a draft of the instrument to the First Minister for Wales and the First Minister must lay it before the Assembly”.
That is the paving process, which begins to include the First Minister, the Welsh Government and the Assembly. Amendment 113, in my name and that of my colleague, states:
“A statutory instrument containing regulations under subsection (2) that include—
(a) a provision within devolved competence modifying any provision of primary legislation, or
(b) a provision modifying any devolution enactment in primary legislation,
may not be made unless a draft of the instrument has been laid before, and approved by, a resolution of the National Assembly for Wales”.
I submit that both those amendments are sensible and propose perfectly workable arrangements.
I wondered what was the case against, other than the fact that these provisions have not been made in previous devolution Acts. I searched to find out what the other place had said about the clause. I have to say that it never really got round to debating it in any deep or thorough way, but in Committee, on 11 July, it was mentioned. The burden of the Minister’s response was: “These powers are of a very minor character. All they will do is tidy up statutes”—I will come in a minute to the concept of tidying up statutes—“and you don’t need elaborate arrangements or processes because, anyway, we will consult the Welsh Government. How do you think we could possibly introduce a statutory instrument of this kind without consulting the Welsh Government?”. It is not the Welsh Government who should be consulted; it is the National Assembly. It is not the constitutional property even of a Welsh Government; Measures and Acts are the constitutional property of the National Assembly. The notion that there can be some informal consultation with the Welsh Government is wholly inadequate.
I would love to believe that we could have tidy statutes. This is my 13th Parliament, now spanning more than 50 years. When I think of the hundreds of Bills and statutes that I have seen come and go through the other place and this place, I have a sneaking suspicion that a large majority of them were not very tidy, to say the least. They were not so tidy because so many of them were just amending an Act passed a year or two before, which had obviously been got wrong.
Although I love the idea that this is all about tidy legislation, as Welsh Members here present know, in Anglo-Welsh terms, there is a particular connotation to the word “tidy”—“They are a tidy family” or “He’s the tidy child”. It is captured marvellously in the personification of Welsh tidiness, that wonderful character Mrs Ogmore-Pritchard, who ran a guesthouse but did not believe that any guests should come across the threshold, because they would make the place untidy. If these provisions are just a question of tidying up legislation, perhaps we should not call this a Henry VIII power; we might suggest the name of Mrs Ogmore-Pritchard.
Whatever minor piece of tidying-up legislation the statutory instruments may bring, I cannot see the case against allowing the National Assembly and the Welsh Government to scrutinise and, where necessary, approve them. I do not know whether one can objectively talk about a tidy Bill or a tidying-up amendment. The National Assembly may well want to scrutinise and check whether it is just a tidying-up process or whether there is a matter of greater substance.
I therefore have very great pleasure in moving the amendment.
My Lords, it is a delight to follow my noble friend Lord Rowlands, whom I first met as an extremely enthusiastic Welsh Office Housing Minister in 1974. He is as enthusiastic as ever, and his enthusiasm for devolution and for protecting and developing it and everything to do with Welsh administration has not waned since that time.
As is often the case with our parliamentary Bills, the description of Clause 55 and Part 4 as “consequential provision” is totally inappropriate. I shall mainly address the amendments in my name in the group. Whenever I see the name of the Secretary of State for Wales—the name of the office, I should say, because there are distinguished former Secretaries of State present—referred to in devolution legislation, as a former Presiding Officer, I always ask why. I particularly ask why here for the reasons already set out and on the basis of the evidence given not just to committees of this House—we have heard about the Constitution Committee report—but to the Constitutional and Legislative Affairs Committee of the Assembly. As I announced in the previous debate, I am now returned to that committee, although with a different affiliation.
As we know, it is the responsibility of such committees to look at legislative proposals from a constitutional point of view and assess their validity and constitutional propriety. The discussions of the National Assembly committee included one with the erudite and experienced Constitution Committee of this House. I was delighted that we met together, because it confirmed everything we had thought for ourselves. Therefore, we have the full support and authority of this House in what we are saying, and the authority of the distinguished lawyers I have cited before and will no doubt cite again when we debate these issues.
Professor Thomas Glyn Watkin, in evidence to the Constitutional and Legislative Affairs Committee of the National Assembly on 22 June this year, emphasised that he was just as concerned about the provisions that now appear in Clause 53 as he was when they first appeared in the draft Bill; they have continued or been revived in the current Bill. It is a basic constitutional principle that a United Kingdom Secretary of State should not change legislation made by the elected Assembly of Wales. I would argue that Clause 2 is contrary to that principle. To go back to a discussion that the noble and learned Lord, Lord Judge, and I had in a previous sitting in Committee, how can we state that normally, Parliament will not legislate on behalf of the Assembly on matters which are in the competence of the Assembly, and yet give powers to a Secretary of State to change legislation?
Professor Thomas Watkin’s view is very clear: any power which changes the law of the Assembly should be exercised in the Assembly. It is the Assembly that should be able to say whether it is acceptable to change the law. He goes further: he says that the approach in the clause,
“highlights the fact that the powers of Westminster—even in devolved areas—are still superior in terms of their voice”.
That was said by a senior legal academic in Wales, and those views are shared by Professor Rick Rawlings. There should be further amendment to this clause, as I seek in the amendments in my name, to ensure that the consent of the National Assembly is always required when such a power is exercised. These amendments have the support, as I indicated, of the Constitutional and Legislative Affairs Committee; the imprimatur, if I may so describe it, of the Llywydd, the Presiding Officer; and the advice of the Assembly legal services.
We have to emphasise that in this House we are dealing with absolutely clear constitutional principles. Regulations that seek to change the law but which apply only in Wales and are made by the National Assembly must always be approved by the National Assembly. That is a simple case of constitutional propriety, as has been argued so eloquently already by my noble friend Lord Rowlands. I would regard any attempt by another legislature to change National Assembly law without consent as constitutionally unsound. As I have already said, it goes against the principles of Clause 2.
I know what the Minister will say because we have discussed these matters. He will not accept my amendments, but I ask him to consider whether it is appropriate sometimes that he should apply his well-known constitutional skills and excellence as an academic lawyer to his practice of politics—even in this House—as he used to apply them so effectively when we both developed devolution in those early days together. I know that this is an unfair argument. It is an argumentum ad hominem, which is inappropriate, but I plead with him, even at this stage of our discussions, and certainly between now and Report, to reconsider. I will not say to him what I said once to a senior politician in Wales—“Go and pray”—but I ask him to pray in aid all the legal advice that we have given him in this House.
My Lords, I have the privilege of being a member of the Constitution Committee, but I speak on my own behalf. I do not have the privilege of being a Welshman but I have the privilege of looking at a statute; I have the privilege of remembering what a baleful influence Henry VIII was on the history of Wales, and his baleful influence looks as though it will continue. The 1536 Act was intended to crush the Welsh nation and the Welsh language. The devolution process was intended to row back hundreds of years of history.
We are being invited to give Henry VIII powers to a Minister, by secondary legislation, to amend, modify, repeal or get rid of—whatever language we care to use—primary legislation. I have a very strong view on this, and shall address the House interminably about the besmirching effect on our constitutional arrangements of such clauses. However, I do not have to stop there in this instance. If Parliament chooses to give Henry VIII powers to the Minister, that is Parliament’s choice, but here it is giving Henry VIII powers to a Minister to reject, modify, get rid of or dispose of the legislation of the National Assembly—in other words, to eradicate, nullify or replace a statutory provision, enacted by a democratically elected legislature of our United Kingdom, on which the people living in Wales will have acted while the particular legislation has been enforced, and all without any consent from the Assembly. That seems an astonishing insult to the democratic process. The affirmative procedure that will undoubtedly be suggested as the solution does not—I say this with great respect—address the democratic deficit.
The solution to the problem involves having another look at Clause 2 and transposing it into Clause 53. I do not need to spell this out. It is perfectly obvious that the consent of the Welsh Assembly is needed. I reject in Clause 2 that weasel word “normally”, which has all sorts of connotations that are not helpful to the analysis. There is another word beginning with “n” which should take its place: never.
My Lords, I shall speak to Amendments 120 and 120A, first to Amendment 120, standing in my name and those of my noble friends Lord Murphy of Torfaen and Lord Kinnock and the noble Baroness, Lady Randerson. It is a very straightforward amendment. Clause 2 introduces a new requirement that Parliament,
“will not normally legislate with regard to devolved matters without the consent of the Assembly”.
That was at the heart of the amendments that have just been addressed. It is an admirable clause, and its logic should surely apply to the Bill as well. In other words, the Bill should not come into effect—which is what the terms of Amendment 120 spell out—without the legislative consent of the Assembly. That is all it is asking for. I know that the Minister has worked very closely with Welsh Government Ministers, and his officials with theirs, so it seems to me that there should be no objection on his part to this amendment. Indeed, I hope he will respond in a conciliatory way because in that way, I think, he will also expedite progress on the Bill.
I turn to Amendment 120A, standing in my name and that of my noble friend Lord Murphy of Torfaen. It will ensure that the Bill cannot come into force unless the Treasury has laid before each House of Parliament a document which sets out a fiscal framework for Wales agreed by the United Kingdom Government and the Welsh Government. As Your Lordships are aware from my speech at Second Reading, I am deeply sceptical that Wales will benefit from income tax devolution and fearful that Wales will actually lose out. The Treasury will not permit much-needed borrowing powers for Wales unless these are set against the revenue-raising powers that this Bill provides for. The First Minister desperately needs that borrowing to invest in infrastructure—from new roads and rail links to relieve chronic congestion, to new hospitals and schools. What is more, the Treasury will not otherwise provide the cover it could so easily do at such minuscule interest rates as currently exist for that infrastructure investment. I think this is financial smoke and mirrors—Treasury subterfuge. Yet the Government have trapped Wales between a rock and a hard place.
I am suspicious that Wales is being badly short-changed by this income tax devolution, which is what I seek to address in this amendment. It is not about the substance of devolution, because that has already been debated, but about the fiscal framework that accompanies it. We do not yet have sight of the fiscal framework to accompany tax devolution, though we are grateful to the Minister for promising, in answer—and on the record—to my question on Second Reading, that we would be able to scrutinise it very carefully by Report. I am also grateful for his recent letter on the subject. All I can say is that it will have to be a mighty, mighty generous fiscal framework to Wales to persuade me to support it. The Treasury in a generous frame of mind will be a novel experience for us all. I speak as someone who, like my noble friend Lord Murphy, has negotiated with the Treasury as a Cabinet Minister on behalf of Wales.
Therefore I wish to put a series of arguments to the Minister which will need to be fully addressed by the fiscal framework. In the time that he has left to tidy up that framework, I hope he will address them.
I draw first on the authoritative 2010 report of the Independent Commission on Funding and Finance for Wales, chaired by Gerald Holtham. The key point is that Holtham acknowledged explicitly the risk that Wales’s income tax base might grow more slowly than the United Kingdom’s income tax base—that is to say, the risk of differential tax base growth. If that happened, the Wales budget would shrink relative to the UK as a whole and the degree of redistribution to Wales from richer parts of the UK would reduce.
Holtham noted that one option could be to index deductions from the block grant to the growth over time of the devolved tax base in Wales. This would completely offset a devolved income tax in Wales and eliminate any risk arising from differential tax base growth. Other options would only partially eliminate this risk. So Holtham came up with a compromise, concluding in paragraph 5.25 that the,
“best compromise appears to be very infrequent reviews of the tax bases of the devolved administration and a consequent adjustment to deductions from the block grant”.
Such reviews and adjustments would require negotiations between the Wales Government and UK Ministers. Holtham suggested reviews every 12 to 15 years. Frankly that is far, far too long a period in my view, especially with the outlook for the British economy looking so uncertain with Brexit, as the Chancellor confirmed in his Statement today.
Holtham made no recommendation for any kind of Treasury assurance to ensure that Wales did not lose out. The Holtham report simply recommended that the block grant should be reduced by an equivalent amount in the first year of the new system and that in,
“subsequent years, the size of the block grant deduction should be calculated to reflect the growth of the relevant income tax bases across the UK as a whole”.
That leaves the Wales budget open to being squeezed due to the Wales income tax base growing at a slower rate than that of the UK as a whole, with no guarantee that the Treasury would top up the block grant to fill the gap, meaning that Wales could certainly lose out. Holtham recommended that the block grant should be based on a needs-based formula that would determine budgets across England, Wales and Scotland. The three most relevant factors determining need would be demography, deprivation and costs.
Based on past spending in England, Scotland and Wales, Holtham recommended that Wales should receive £115 per person to spend on devolved activities for every £100 per person spent on comparable activities in England. Will that be achieved by the fiscal framework—I hope that the Minister will reassure me—or will Wales be left with a funding gap? Holtham acknowledged that, had his needs formula been applied in 2010-11, Wales would have received only £112 for every £100 spent on devolved activities in England, due to weaknesses in the Barnett formula. This would have left Wales with a shortfall, a funding gap of about £400 million. Will the fiscal framework eliminate that gap?
I also refer to the report by the respected Wales Governance Centre, Income Tax and Wales, published in February this year. On page 4 of the executive summary, it chillingly warns that,
“the method chosen to reduce the Welsh block grant to account for the additional Income Tax revenues has the potential to cause losses of hundreds of millions of pounds each year to the Welsh budget”.
Hundreds of millions each year—that is a massive risk, surely; a serious risk of hospitals and care homes closing, teacher numbers being cut, and local government budgets being savaged still further on top of the current round of austerity. Those issues need to be addressed in the fiscal framework.
The Wales Governance Centre draws attention to important developments since the Holtham and Silk commissions. UK Government decisions to raise the personal tax allowance have drawn disproportionately more of Welsh incomes out of the income tax base than across the UK as a whole. So while UK income tax receipts have grown by 6% across the UK since 2010-11, the equivalent figure for Wales is only 2%—worryingly, only one-third of the UK figure. That is because Wales has income levels below the UK average. Fifty-five per cent of all taxpayers’ income in Wales comes from individuals earning less than £30,000 per annum compared with 42% across the UK.
When in November 2015 the previous Chancellor of the Exchequer announced the Government’s decision to drop the referendum requirement for income tax devolution to Wales, he also declared that they would protect the Welsh budget by introducing a floor underneath Wales’ relative per capita funding, to save it from any so-called “Barnett squeeze”. But lack of clarification about this proposed Barnett floor has prevented the Wales Governance Centre from checking in detail how it might interact with income tax devolution and subsequent block grant adjustments—so we just do not know. The floor may be flawed, but nobody can tell.
I find all that extremely worrying. Wales is being pushed to take a leap into the economic darkness through tax devolution. Today’s Office for Budget Responsibility report, Economic and Fiscal Outlook—Devolved Taxes Forecast, has added to my concern. I refer particularly to table 2.6 on page 16. It leads to three specific questions about the likely squeeze on the Welsh government budget if income tax were to be devolved, to which the Government need to provide cast-iron answers in the fiscal framework.
First, how great would the cut to the Welsh budget be if the trend since 2012 for the Welsh share of UK income tax to fall each year continues after 2019, rather than stabilises in three years’ time at 1.25%, less than it was in 2012, for the rest of the OBR forecast period up to 2020-21? What if the OBR’s assumption proves wrong? How hard would the Welsh budget be hit?
Secondly, what would be the loss of income tax in Wales and consequential squeeze on the Welsh government budget if productivity growth and therefore real wage growth in Wales falls below the trend growth for the UK as a whole, assumed in today’s OBR report? How much further would the Welsh share of UK income tax fall due to the consequential rise in the proportion of taxpayer income in Wales attributable to individuals on relatively low incomes? This will surely happen if investment in Wales falls behind investment in the UK, or if Brexit hits the Welsh economy harder than it hits the UK economy, or if London and the south-east of England attract an ever-increasing share of new public investment. The latter was recently signalled by the decision of the transport department to defer electrification of the Great Western rail line to Bristol only days after the National Infrastructure Commission called for both road and rail links along the Oxford-Cambridge corridor to be upgraded, a recommendation endorsed by the Chancellor in his Autumn Statement today, although he made no mention of rail electrification investment to south Wales.
Thirdly, in view of the OBR’s latest forecast in table 2.8 of today’s report that Welsh income tax in 2020-21 will be £417 million lower than in its November 2015 forecast—that means that in just over a year we will have lost £417 million from the income tax take in Wales, in the OBR forecast—how much greater would the squeeze on the Welsh government budget become in the absence of a new Barnett floor, and without a super-humanly protective new fiscal framework, which I just do not believe the Treasury will concede? I hope that the Minister confounds that disbelief. Just eight months after its last forecast, in other words, the OBR is projecting a £417 million reduction in tax revenues, which is a massive amount for the Welsh budget.
I believe that offloading income tax to Wales is being driven to shrink the UK state. Conservative government economic devolution is a neoliberal objective, stunting the redistributive power of the state, and in this case stopping Wales benefiting from revenues redistributed from wealthy London and the south-east of England, where fully 40% of UK GDP is concentrated, and where the economy and therefore tax revenues are growing much faster. The north-east of England has a similar GDP per head and demographic to Wales, yet it will continue to benefit from that redistribution where Wales will not, at least not without radical compensating measures in the fiscal framework. If those compensating measures are as effective as they should be to top up the Treasury block grant to protect Wales, what on earth is the point of income tax devolution in the first place?
For all progressives, whether to be found on the Labour, Liberal Democrat, Plaid Cymru, Cross—and maybe even on the Tory—Benches, surely the great virtue of modern Britain is that we have pooled and shared both risks and resources right across the UK to ensure common welfare and decent standards of life for all our citizens, regardless of nationality or where you live. This is part of what it means to be citizens in the same United Kingdom society. We share the gains and the pains. For generations there has been redistribution from richer to poorer parts of the UK, whether former mining communities in the Welsh valleys or English regions such as Cornwall and Durham. Of course some of that will continue because not all income tax is being devolved—for now at least.
I understand that the proposed 10p income tax devolution to Wales is the equivalent of around 20% of the Welsh block grant—a fifth of the Welsh Government’s budget. The question therefore is: will that huge amount continue to be protected through the fiscal framework, against the warnings of the Holtham report and the Wales Governance Centre, and my own concerns as expressed in the last few minutes? That is a really big question for Wales, which has a large fiscal net deficit. The UK Treasury annually subsides Wales by nearly £15 billion, a massive amount equivalent to the entire Welsh government block grant. There are immense dangers to Wales which Welsh voters will be unable to resist by being deprived of a referendum. In the current climate, there is a danger that Wales is sleepwalking into potential impoverishment.
For that reason—and I conclude on this; I apologise for my argument being at some length, but I think the issues it raises are substantive and need to be put on the record—I have tabled this amendment requiring parliamentary scrutiny of the fiscal framework and, most importantly, agreement to its detailed terms by the Welsh Government before the Bill can come into force. Given the spirit in which the Minister has responded to many of the amendments moved and tabled in the last few weeks, I very much hope that he will be able to accept this amendment. If there is a technical question around it, he may well be able to come back on Report to achieve the same effect; namely, that we will have the chance to scrutinise in some detail—perhaps by the committees of this House as well—the nature of the fiscal framework and what it will mean in view of the concerns that I have expressed, and which the Holtham report and the Wales Governance Centre have flagged up.
My Lords, I would like to ask a question of the noble Lord, Lord Elis-Thomas, about his Amendment 117. I am puzzled as to why in the last line of that amendment he has used “or” and not “and”. As drafted, his amendment would allow either House of this Parliament a veto on a statutory instrument made in Wales, and the role and power of the Assembly would be discretionary. That would seem to frustrate his own purpose. I am the more puzzled because in his Amendment 114 he uses “and” and not “or”. I would be intrigued to know why he has altered the drafting between one amendment and the other.
I turn to the amendments just now proposed by my noble friend Lord Hain. I say simply that I strongly support his proposition that the Bill should not become law until a legislative consent Motion has been passed by the Welsh Assembly. It would be ironic in the extreme if these powers were to be imposed upon the Welsh Assembly. I know that the legislation is the product of an enormous amount of consultation between the Government here, the Government in Wales and the National Assembly. None the less, it would seem at the very least a courtesy and clearly appropriate, within the proper spirit of devolution, that the legislative consent Motion should be expected and required from Wales to endorse this legislative enactment.
I also want to say a word about my noble friend Lord Hain’s Amendment 120A. He has given a very serious, important and compelling warning as to the dangers for Wales of being charged with income tax-altering powers—and perhaps coming under pressure actually to use them—without there being a reliable guarantee by the Government of the United Kingdom that Wales will have the resources to enable it to take advantage of those powers towards rates on income tax, without it leading to the fiscal impoverishment of Wales and the wider impoverishment of the Welsh economy and people. I give my strong support to my noble friend’s suggestion that none of the legislation that we have been debating in the Bill should come into force until that fiscal framework is in place. Indeed, I would go further. I suggest to the Minister that we should not proceed to Report on the Bill until we have that fiscal framework, because it seems very difficult for the House rationally to take decisions about what powers should be reserved and devolved in the absence of any clear picture of what resources will be available to Wales from 2020 onwards, following the expiry of present undertakings.
In our debates on the reserved powers, the Minister has been highly constructive and very generous again and again in his willingness to take away the proposals made in various amendments and consider them further. We know that he seeks to provide a decent, generous and sustainable provision for devolution in Wales and it would be helpful to the House, and I dare say even helpful to him, if we did not proceed to a further stage in the passage of this legislation until the Government have also resolved these internal discussions that are taking place. In my view, the Bill was introduced prematurely to Parliament. A huge amount of work had gone into it: there have been many iterations and radical revisions of legislative proposals for devolution to Wales in this phase, and the Minister has always played a constructive part. It would be better, if there is time within this Session of Parliament, if we did not move hastily to Report until both issues have been clarified. What will be the fiscal resources in the longer term and what will be the formula or pattern of fiscal resourcing for Wales? We should not proceed further with the legislative process until the Government are much clearer than they have been hitherto on what exactly it is that they want to devolve.
May I extend to the noble Lord the courtesy of responding to his question relating to the amendment standing in my name? In the absence of an effective form of co-legislating between this House and the National Assembly for Wales, what I have sought to do in the process of Committee is to present to this House under my name—because there was no other way of doing it—a series of amendments which have been debated within the work of the constitutional affairs committee. They emanate from the Presiding Officer and in some cases I have even borrowed wording from the Welsh Government, with their permission, and wording from within the committee itself. We are thereby offering the Minister, as he sits before me, a whole choice—a menu—of alternatives to deal with the issues that he has created for himself. I hope that he will be able to take some of them up and that that answers the question.
The noble Lord, Lord Elis-Thomas, is not only a master of procedure both in the Welsh Assembly and in this Parliament; he is also most ingenious politically.
My Lords, I support my noble friend Lord Rowlands on his tidy amendment, which comes from a tidy friend. I have had the great pleasure of knowing my noble friend for 46 years; in fact, I was still in the sixth form when he first became a Welsh Member of Parliament. I know that the Minister has been hugely constructive during proceedings on the Bill. I hope that he will listen carefully to the points made by my noble friend, the noble and learned Lord, Lord Judge, and others with regard to Amendment 111.
I also support my noble friend Lord Elis-Thomas on his amendments, particularly on what he said about the role of the Secretary of State for Wales having changed dramatically. When he was a new Presiding Officer and I was a new Secretary of State, I had a desk and a seat in the National Assembly. I also had an office there. When I had finished some years later in 2009, I had lost both my seat and my office. That was a measure of the Assembly growing up and beginning to understand that we do not want Secretaries of State interfering any more in what it does.
I am sure that my noble friend will want to explain to the Committee that this happened with the full consent of the holder of the office of Secretary of State, and that our relationship was always one of positive development.
I am grateful to my noble friend. I want in particular to support my noble friend Lord Hain and his two amendments. For the whole of the Labour Government—from 1999 onwards, anyway—he and I held the position of Secretary of State for Wales between us. Two things emerged which were themes in that job—he has already touched on this. One was ensuring that there were good relations between the Assembly in Cardiff and the Government and Parliament in London. It seems to me that Amendment 120, which talks about the legislative consent Motion, is a vital link. I do not think that this Bill would be worth anything unless the Welsh Assembly agreed with it. It would be a pointless, meaningless Bill.
More particularly, on Amendment 120A, with regard to the fiscal framework, the Minister—and his boss—will know that relations between spending departments and the Treasury are never easy. Most of my time as a territorial Secretary of State was spent in negotiations with a less than benevolent Treasury, even when we thought that there was a lot of money about. It would try to stop and, occasionally, it would try to obstruct. I will not rehearse the arguments that we had some days ago on the devolution of income tax and a referendum but the danger with the devolution of income tax is that the Treasury will do its best to ensure that it keeps as much money as it can in negotiations between the Welsh Assembly—and the Secretary of State and Minister acting on the Assembly’s behalf—and the Treasury. There is an important issue here that, if the way in which the Assembly gets its money is to be dramatically changed—it is a dramatic change; I expressed earlier that I am quite dubious about the good effects of that—it will not necessarily be in terms of the democratic nature of income tax but the practical, realistic figures that result from its introduction. The people of Wales must not lose out upon the introduction of income tax powers for Wales and, ultimately, there should be a benefit to the people as a consequence of this new fiscal framework.
I know that we cannot hold up a crystal ball, but my noble friend made a very powerful case with regard to the resource base in Wales. We are not a rich nation and the amount of money that we can raise in income tax is low, as has been indicated even today in the figures that the Government have put out with the Autumn Statement. The amount that comes from every penny raised in Wales is effectively much less than can be raised in the rest of the United Kingdom, because of the need to ensure—as my noble friend rightly said—that we share and distribute our resources.
This amendment asks the Minister to tell us—on Report I assume, by which time there will hopefully have been an agreement on the fiscal framework—that the Bill should not proceed unless that fiscal framework is such that it is, at worst, neutral, and, at best, an improvement for the people of Wales in terms of what they get out of the settlement. There is no point in having a Bill that introduces the devolution of income tax if the Welsh people are going to be worse off because of the interrelationship between that and the block grant.
I have great pleasure in supporting all the amendments that have been proposed this evening.
My Lords, I, too, support fervently and earnestly these amendments. I admire very much the eloquence and force with which those main arguments have been articulated, particularly, if I may say so, the magisterial rebuke that was delivered by my noble and learned friend Lord Judge.
It is not enough just to safeguard legislation in Cardiff. That of course, has to be done; it would be a nonsense to create a sister parliament—as it was described by Speaker Martin when the Cardiff Assembly was established—and, at the same time, to treat it as a meaningless plaything. But that is not the whole point. Most of the legislation they let into Wales is Westminster-based so that, in so far as protection is concerned, it would have to be protected not just in Cardiff but here as well, otherwise the main thrust of this issue would be missed.
I endorse everything that has been said by those who have held up this question of the template, as it were, of Clause 2. The Sewel protection, which was endorsed in Scottish legislation, has been perpetuated in this Bill. There is the danger that if nothing is done at all, the powers that we are discussing could make meaningless everything that is contained in Clause 2. I deliberately say “could make meaningless”, because there is the possibility that Clause 2 is meaningless already. In other words, if it were a case of Clause 2 being inserted in order to build a shield or carapace to protect the constitutional entity of Wales, it would be a very severe attack upon that protection. But, if in fact it were nothing more than merely declaratory of what was happening in any event, with the sovereign power of the Westminster Parliament deciding what was or was not necessary, it would of course be utterly meaningless. I do not think it necessary for us to dwell any further on that matter but it should be held up as a template for this piece of legislation.
My third point is that Henry VIII was no great benefactor as far as Wales was concerned. The whole purpose of the Acts of Union was not only to say that Wales should not exist but that it never had existed. It was said that,
“the dominion, principality, and country of Wales … is and ever hath been incorporated, annexed”,
and included within the greater realm of England. We never were there at all. Certainly, as far as Henry VIII clauses are concerned, they should be dealt with very carefully, because they erase the authority of Parliament —or they are, at any rate, in a position to threaten that, at their very worst.
I remember reading a book when I was a student by Sir Gordon Hewart, who was Attorney-General in, I think, the late 1930s. The book is called The New Despotism; it is an examination of the vast growth in powers delegated to Ministers by way of regulations. He saw this as a very great threat to parliamentary sovereignty. He was not talking about Henry VIII clauses but about the positive powers given to Ministers from day to day by way of regulations. If there was a new despotism then, now—three-quarters of a century and more later—that despotism has grown enormously. I would urge that thought be given to the exercise of delegated powers to Ministers. More and more are given every year and Parliament, even with the help of the massive effort of this House to scrutinise, finds it more and more difficult to sieve everything that goes through. And those powers are increasing. What Sir Gordon Hewart would have said of these negative powers I know not but, if there was a despotism three-quarters of a century ago, there is potential for very considerable despotism now.
I urge the House to accept the arguments put forward so magnificently by my noble and learned friend Lord Judge and indeed by those powerful bodies, the Delegated Powers Committee and the Constitution Committee of this House. They are dangerous powers to use. We should use them with very great circumspection in any event. However, in Wales there is a principle involved—namely, that you do not set up a parliament which you intend to be a genuine devolved Assembly, and then treat it as a meaningless plaything.
My Lords, we have heard some stunning contributions this evening on an incredibly important aspect of the Bill. We have heard a devastating critique of Clause 53, in particular by my noble friend Lord Rowlands. I thank him for giving so much attention to an extremely difficult aspect of the Bill for the Assembly to live with. I urge the Minister to think very seriously about this clause, which is about repealing provisions in primary legislation. Within this House, there is an ability to look at those provisions, as the noble and learned Lord, Lord Judge, said. Both Houses can have the opportunity to look at what is being proposed. However, that opportunity is not available to the Assembly. That needs to be underlined. It is deeply discourteous to the Assembly and wrong in principle.
If the Secretary of State proposes by order to modify parliamentary legislation or tidy it up, as my noble friend Lord Rowlands suggested, quite rightly he cannot do that without Parliament’s express agreement. In the same way, the Assembly’s legislation should be protected from modification up to and including repeal unless the Assembly is first asked to give its approval to a draft order proposing such a modification. The consent of the Assembly is needed, as the noble Lord, Lord Elis-Thomas, suggested.
Secondly, we seem to be continually going back to the problems with Clause 2. I again urge the Minister to listen to what the noble and learned Lord, Lord Judge, and the noble Lord, Lord Elystan-Morgan, said about that clause. I know that the Minister was not persuaded that there was a need to amend it as we suggested. But I think it was common ground that a parliamentary Bill modifying the Assembly’s legislative competence could proceed only with the Assembly’s consent. That is an important feature of the devolution settlements. But the problem is that Clause 53 envisages that the Secretary of State can, with the approval of each House of Parliament, modify any Act of Parliament in consequence of provisions in this Bill.
Given the subject matter of the Bill, the Acts vulnerable to such modification are most likely to be the earlier Welsh devolution legislation—the 2006 Act and the 2014 Act. If modifications to those Acts were proposed by way of a parliamentary Bill, the Assembly’s consent would be required. But the Government apparently envisage that, if the modifications are to be given effect by a Secretary of State’s order under Clause 53, it can proceed without the need for Assembly consent. That cannot be right.
Amendments 111, 113 and others in this group address the two points that I have outlined. Their effect in summary is that, if the Secretary of State proposes to use his order-making powers to modify Assembly legislation, that should be subject to prior Assembly consent. That requirement for prior Assembly consent in respect of a proposed Secretary of State order is also to apply if the order envisages a modification of a devolution enactment—in other words, a provision of either the 2006 Act or the 2014 Act. In that way, the fundamental principle that Assembly consent is required before its functions or competence can be modified is preserved. I urge the Minister to think very carefully before proceeding any further with the Bill. This fundamental principle undermines the democratic integrity of the Assembly.
I thank my noble friend Lord Hain for drawing attention to the point that a legislative consent Motion needs to be passed by the Assembly, and the financial framework settled. I hope that Treasury Ministers were listening to what he had to say, but I will make sure that the Assembly Minister who will negotiate this issue hears what my noble friend had to say, because he underlined some important issues. We cannot see Wales lose out financially as a result of the Bill.
I know that we have previously had reassurance from the Minister on the need for a legislative consent Motion before the Bill is passed. If he could underline that once more for us, it would give us confidence. When the Minister replies to the debate, I hope that he will talk us through the final sequencing of the next part of the consideration of the Bill. What will the sequencing be? When will the financial framework be necessary? When will the legislative consent memorandum be put before the Assembly? When will the Motion come before it? If the Minister could talk us through that sequencing, it would be very useful.
My Lords, I thank noble Lords who have participated in the debate on the amendments in this group. I shall first discuss Amendments 111 to 119, and thank the noble Lord, Lord Rowlands, for moving Amendment 111. I understand the points that he made. He was ably backed up by the noble Lord, Lord Elis-Thomas, the noble and learned Lord, Lord Judge, and others. I think that the arguments basically boil down to two strands. The first is the type of issue that is subject to this tidying-up exercise, as we see it. The second issue concerns equality of treatment of the Assembly in relation to Parliament. I will deal with both points.
First, it is not anticipated that the provision in Clause 53 will be used for anything more than minor consequential amendments. I urge noble Lords to be very careful about what they wish for in relation to this. I will double-check examples and write to noble Lords about them. But if, for example, the issue is one of tidying up an enactment to provide that a parish council in England is a community council in Wales, I suggest that that sort of issue is best dealt with in the way set out in the Bill. However, given the understandable concerns that have been raised, I will write to noble Lords giving examples in relation to that.
On the point the Minister has just made, would it be possible to amend the Bill to make it clear that this power is intended to deal only with minor, consequential amendments? If the Bill were able to say that in terms, it might be helpful. It might also be helpful to the courts in future if they found themselves attempting to construe the legislation.
My Lords, I am grateful for the intervention of the noble Lord, Lord Howarth. I also thank him for his very kind comments earlier. I will cover these issues in a letter, if I may, as I would like to go away and have a look at this. I am certainly not making any commitment on that but I would like to give examples of how this has been used and how we anticipate that it will be used in the future.
The second issue is in many ways a more serious concern, certainly for somebody who has been a Member of the Assembly and knows that it has to be dealt with in a proper constitutional and respectful way—so I listened very carefully to what was said there. This has been a very considered debate. However, if we were to provide a role in approving regulations such as was suggested, it would be anomalous and would introduce unnecessary complexity into the process. I will explain why that is the case. In reality, we would discuss with the Welsh Government any proposed changes that impacted on Welsh legislation.
To illustrate the anomaly, the Assembly acts in exactly the same way as Parliament does. For example, the Assembly has recently passed the Renting Homes (Wales) Act 2016. Section 255 of that Act includes a power for Welsh Ministers to make consequential amendments to any enactment. “Enactment” is defined in Section 252 of the Renting Homes (Wales) Act to include Acts of Parliament and secondary legislation made under Acts of Parliament. Further, in the last two years two-thirds of Assembly legislation has had similar provisions. So, in relation to the equality argument, we are dealing in exactly the same way here as in Parliament. Noble Lords may say that that does not answer the first point, and it does not—but it certainly answers the point about equality.
I do not think that it does. There is a difference between a legislature which is developing new legislation within the framework previously laid down by this Parliament because there is no other legislative framework, and making provision—which therefore distinguishes itself from the rest of the United Kingdom—and what a United Kingdom Parliament might seek to do, and for what reason, to intervene in the legislative process of what might be regarded as a subordinate legislature. Those are the differences, and that is where the concerns come from.
My Lords, much as I have the greatest respect for the noble Lord, that is not a tenable argument in law, as I am sure he knows. I take the point about the political dimension, as he knows, but on the legal aspect, the two bodies operate in just the same way. However, as I say, I will write to noble Lords on that. I understand the arguments being put forward, by the noble Lord, Lord Rowlands, in particular, as well as his point about the evolving devolution process, which makes this type of arrangement sensible where there is reciprocity. I will write to noble Lords on that point.
Amendments 120 and 120A were spoken to effectively by the noble Lord, Lord Hain, who took us through some of the financial aspects that have to be considered. I understand that. First, on something I have stated many times, although I will certainly state it again, we will not move to Third Reading—as I said at Second Reading—until there is a legislative consent Motion. So, if there is no legislative consent Motion—and there may not be; that is an issue for the National Assembly for Wales and the Ministers of the Welsh Government—we will have no Third Reading.
In relation to Report, I understand from discussions with officials—this may well be confirmed by Members of the Opposition Front Bench, who obviously have had discussions with Welsh Ministers—that there is a desire for us to move to Report so that we are closer to the sort of Bill that we will see at the end and so that the Welsh Government can then move to the legislative consent Motion, content that we are moving in an appropriate way. So we are keeping in touch on that, but I understand that there is a consensual element here to having Report, the first date of which is already public and will take place before Christmas.
We will have two days on Report to reflect on many of the important issues we have dealt with, and the second day will be soon after we come back in the new year. As I understand it—the noble Baroness pressed me on this issue—we are hoping for a legislative consent Motion in the middle of January before moving to Third Reading shortly after that. That is the suggested choreography, but of course we are in the hands of the Welsh Government and the National Assembly for Wales in relation to the legislative consent Motion. I cannot be definitive about that but I can be definitive, as I think I have been in the past, that we will not move to Third Reading until we have the legislative consent Motion. I should also say that there is pressure elsewhere in the legislative programme, as I am sure noble Lords will accept.
Just briefly, given what the Minister has just said, does that mean that the fiscal framework will not be available to be scrutinised before the Assembly has given its legislative consent Motion? In other words, if he is promising it only by Third Reading, is he saying that the legislative consent Motion would have to be passed by the Assembly without the fiscal framework being agreed—or, indeed, without both Houses having had a look at it?
The noble Lord raises a point about my stating that we would not proceed until Third Reading. That is a restatement of what I said at Second Reading—I checked that before coming to the House. As I have indicated, the precise timing of the legislative consent Motion is not dependent on me, the Government, the House of Lords or on the House of Commons but on agreement between the Treasury and Welsh Government Ministers and then the agreement of the National Assembly for Wales.
On the fiscal framework document, the noble Lord will know that the Bill has already been through the other place and will go back there for consideration of government amendments—we have many government amendments that are measures that we all agree upon. But I am not sure that in any event that would give the opportunity for consideration of the fiscal framework as it will be only Commons consideration of Lords amendments: so they will only be able to consider any amendments we make on Third Reading.
I will endeavour through representations to see what additional information we can give on the discussions. Another meeting is due on 1 December, and from what we can gather, discussions are going well—I have heard this from both the Welsh Government side and our own Treasury side. I will endeavour to give an update as to where we are on 1 December. If we are able to give additional information, I will be happy to do that—but to some extent that will depend on the consent of the Welsh Government as well as our own Government. I do not foresee any problem on that, but obviously that is for them to determine. The date of the legislative consent Motion is dependent not just upon having the fiscal framework agreed, as I understand it; it then has to be considered by the Constitutional and Legislative Affairs Committee of the National Assembly—I can see that the noble Baroness, Lady Morgan, is indicating agreement to that.
My Lords, I understand that the committee is about to begin consideration.
I am most grateful to the noble Lord, who I know sits on that committee and plays a leading part in it. I assure the noble Lord that if I can help and be forthcoming with any information, it will be made available.
On the other issue raised by the noble Lord, Lord Hain—the fiscal framework and the discussions on it—first, it is not for me to enter into these negotiations. They are going on between the Treasury and Welsh Government Ministers, and whatever my political differences with Carwyn Jones, Mark Drakeford and others, I have no doubt about and in fact have the highest opinion of their abilities and insight. This is a consensual arrangement. If they do not want an agreement on proposed terms, they have the option of not saying so—and if there is no legislative consent Motion, there is no Bill. So there is no question of a pistol being applied to anybody’s head; the issue is for the National Assembly to determine.
Having been there, I have the greatest respect for the Ministers and officials. That is being hammered out, I gather that robust discussions are taking place and I am sure, and hope, that they are considering the best interests of Wales. But any representations by noble Lords opposite should be made to the First Minister, the Finance Minister and others in those discussions. It is not for me or for us to shadow manage what they are doing—and, I am sure, doing very effectively.
That probably summarises the Government’s position. I have given the undertaking sought; I will do my best to make information available on the fiscal discussions as they become available. I understand what noble Lords say about protecting Welsh interests, but under these devolved Administrations and in these devolved days, it is for the Welsh Ministers and the National Assembly for Wales to bring forward the legislative consent Motion. With that, and with those undertakings, I urge the noble Lord to withdraw his amendment and other noble Lords not to press their amendments.
My Lords, I listened carefully to the Minister, as always, and I am fascinated by this concept of “reciprocal” and the promise of a letter that will describe to us how this will work or has worked. Does the Welsh Assembly exercise such power to intervene to change English legislation?
My Lords, I am not sure whether it has, but I will try to give the noble Lord that information. The material point is that it can, just as we can. I am not sure how many times that has been exercised, but I will endeavour to cover that in the letter.
Again, I shall look forward to that letter. I do not know how other noble Lords feel but I just find it very difficult to believe that there should not be a provision of the kind we have been trying to introduce. If the United Kingdom Parliament chooses, unilaterally, to seek to amend legislation that belongs to the National Assembly, it has to have some form of consent or approval. That is a fundamental principle of constitutional propriety and property.
Another point that I had meant to mention—again, I will cover it in the letter; I appreciate that it does not fully answer the point but I shall try to give examples—is that the identical power exists in relation to Scotland.
I am looking forward to this collection of letters—a few have already been mentioned. I am happy to beg leave to withdraw the amendment but I warn the Minister that we will come back to this issue on Report.
Amendment 111 withdrawn.
Amendments 112 to 119 not moved.
Amendment 119A had been withdrawn from the Marshalled List.
Clause 53 agreed.
Amendment 119AA (in substitution for Amendment 119A)
119AA: Before Schedule 5, insert the following new Schedule—
“PRESIDENT OF WELSH TRIBUNALSPART 1APPOINTMENTDuty to fill vacancies
1 (1) If there is a vacancy in the office of President of Welsh Tribunals, the Lord Chief Justice must appoint a person to that office.(2) Sub-paragraph (1) does not apply to a vacancy while the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers all agree that it may remain unfilled.(3) In this Schedule “the Lord Chief Justice” means the Lord Chief Justice of England and Wales.The two routes to appointment: agreement under this paragraph or selection under Part 2
2 (1) The Lord Chief Justice, before he or she may appoint a person to the office of President of Welsh Tribunals, must consult—(a) the Lord Chancellor, and(b) the Welsh Ministers.(2) Sub-paragraphs (3) and (4) apply if—(a) the outcome of consultation under sub-paragraph (1) is agreement between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers as to the person to be appointed, and(b) the person holds or has held office as—(i) an ordinary judge of the Court of Appeal in England and Wales, or(ii) a puisne judge of the High Court.(3) The Lord Chief Justice must appoint the person to the office of President of Welsh Tribunals, subject to sub-paragraph (4).(4) Where the person—(a) declines to be appointed, or does not agree within a time specified to him or her for that purpose, or(b) is otherwise not available within a reasonable time to be appointed,the Lord Chief Justice must, instead of appointing the person, consult afresh under sub-paragraph (1).(5) If the Lord Chief Justice has consulted under sub-paragraph (1) but sub-paragraphs (3) and (4) do not apply following that consultation, he or she must make a request to the Judicial Appointments Commission (“the Commission”) for a person to be selected for appointment to the office of President of Welsh Tribunals.PART 2SELECTION BY THE JUDICIAL APPOINTMENTS COMMISSIONEligibility for selection
3 A person is eligible for selection in pursuance of a request under paragraph 2(5) only if he or she satisfies the judicial-appointment eligibility condition on a 7-year basis.The selection process
4 (1) On receiving a request from the Lord Chief Justice under paragraph 2(5) the Commission must appoint a selection panel. (2) The panel must have an odd number of members not less than five.(3) The members of the panel must include—(a) at least two who are non-legally-qualified,(b) at least two judicial members, and(c) at least two members of the Commission.Contributions to meeting more than one of the requirements may be made by the same person’s membership of the panel.(4) The panel must—(a) determine the selection process to be applied;(b) apply the selection process;(c) make a selection accordingly.(5) As part of the selection process the panel must consult—(a) the Lord Chancellor;(b) the Welsh Ministers.(6) One person only must be selected for the appointment to which a request relates.(7) Sub-paragraph (4) applies to selection under this paragraph and to selection under regulations made under paragraph 7.(8) A selection panel is a committee of the Commission.Merit and good character
5 (1) This paragraph applies to any selection by a selection panel appointed under paragraph 4.(2) Selection must be solely on merit.(3) A person must not be selected unless the selection panel body is satisfied that he or she is of good character.(4) Neither “solely” in sub-paragraph (2), nor Part 5 of the Equality Act 2010 (public appointments etc), prevents the selection panel, where two persons are of equal merit, from preferring one of them over the other for the purpose of increasing diversity within—(a) the group of persons who hold offices for which there is selection by panels appointed by the Commission, or(b) a sub-group of that group.Encouragement of diversity
6 (1) A selection panel appointed under paragraph 4, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection.(2) This paragraph is subject to paragraph 5.Regulations about selection
7 (1) The Lord Chancellor must by regulations made with the agreement of the Lord Chief Justice and the Welsh Ministers—(a) make further provision about the process to be applied in a case where the Commission receives a request under paragraph 2(5);(b) make further provision about—(i) membership of selection panels appointed under paragraph 4, and(ii) the process that is to be applied in a case where a selection panel is required to be appointed under that paragraph;(c) secure, subject to paragraph 8 and any provision within paragraph (2)(d) that is included in the regulations, that in every case referred to paragraph (a) or (b)(ii) there will come a point in the process when a selection has to be accepted, either unconditionally or subject only to matters such as the selected person’s willingness and availability, by or on behalf of the Lord Chief Justice.(2) The regulations may in particular— (a) provide for process additional to the selection process applied under paragraph 4(4), including post-acceptance process;(b) make provision as to things that are, or as to things that are not, to be done—(i) as part of the selection process applied under paragraph 4(4), or(ii) in determining what that process is to be;(c) provide for paragraph 4(4)(c) not to apply where, or to the extent that, the Commission decides that the selection process applied under paragraph 4(4) has not identified candidates of sufficient merit for it to comply with paragraph 4(4)(c);(d) give powers to the Lord Chief Justice, including—(i) power to require a selection panel to reconsider a selection under paragraph 4(4) or any subsequent selection,(ii) power to reject a selection under paragraph 4(4) or any subsequent selection, and(iii) power to require the reconsideration of a decision mentioned in paragraph (c);(e) provide for particular action to be taken by the Commission or a selection panel after the panel has complied with paragraph 4;(f) provide for the dissolution of a selection panel appointed under paragraph 4;(g) provide for a person to cease to be a member of such a panel where the person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s members;(h) provide for a person to become a member of such a panel where another person ceases to be a member of the panel or where another person’s membership of the panel ceases to contribute to meeting a requirement about the panel’s members;(i) make provision for or in connection with assessments, whether pre-acceptance or post-acceptance, of the health of persons selected;(j) provide for the Lord Chief Justice to nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise functions given to the Lord Chief Justice by the regulations;(k) make provision as to the meaning of “non-legally-qualified” and “judicial member” in paragraph 4(3).(3) Regulations under this paragraph—(a) may make different provision for different purposes;(b) may make transitory, transitional or saving provision.(4) The power to make regulations under this paragraph is exercisable by statutory instrument.A statutory instrument containing regulations under this paragraph may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(5) This paragraph is subject to paragraph 8.Withdrawal and modification of requests
8 (1) The Lord Chief Justice may withdraw a request under paragraph 2(5)—(a) with the agreement of the Welsh Ministers, or(b) if, after consulting Welsh Ministers, the Lord Chief Justice considers the selection process determined by the selection panel is not satisfactory, or has not been applied satisfactorily.(2) The Lord Chief Justice may modify a request under paragraph 2(5) with the agreement of the Welsh Ministers. (3) If a request is withdrawn in part or modified, the selection panel may, if it thinks it appropriate because of the withdrawal or modification, change any selection already made pursuant to the request, except a selection already accepted.(4) The Lord Chief Justice may not withdraw a request under sub-paragraph (1)(b) if a selection made pursuant to the request—(a) has been accepted unconditionally or subject only to matters such as the selected person’s willingness and availability, or(b) in exercise of power conferred by regulations under paragraph 7, has been rejected or required to be reconsidered.(5) Any withdrawal or modification of a request must be by notice in writing to the Commission.(6) In the case of a withdrawal of a request, the notice must state whether it is under sub-paragraph (1)(a) or (b).(7) In the case of a withdrawal under sub-paragraph (1)(b), the notice must state why the Lord Chief Justice considers the selection process determined by the selection panel is not satisfactory, or has not been applied satisfactorily.(8) If or to the extent that a request is withdrawn—(a) the preceding provisions of this Part of this Schedule cease to apply in relation to it;(b) any selection made on it is to be disregarded.(9) Withdrawal of a request to any extent does not affect the power of the Lord Chief Justice to make another request in the same or different terms.Effect of acceptance of selection
9 (1) Subject to the following provisions of this paragraph, where the Lord Chief Justice accepts a selection made under paragraph 4(4) he or she must appoint the person selected.(2) Before making the appointment the Lord Chief Justice may direct the Commission to make arrangements in accordance with the direction—(a) for any assessment of the health of the person selected that the Lord Chief Justice considers appropriate, and(b) for a report of the assessment to be made to the Lord Chief Justice.(3) Sub-paragraph (4) applies in any of the following circumstances—(a) the Lord Chief Justice notifies the Commission that he or she is not satisfied on the basis of a report under sub-paragraph (2)(b), having consulted the Welsh Ministers, that the health of the person selected is satisfactory for the purposes of the appointment;(b) the person selected declines to be appointed, or does not agree within a time specified to him for that purpose;(c) the person selected is otherwise not available within a reasonable time to be appointed.(4) Where this sub-paragraph applies—(a) the selection accepted and any previous selection for the appointment are to be disregarded;(b) the request pursuant to which the selection was made continues to have effect;(c) any subsequent selection pursuant to that request may be made in accordance with the same or a different selection process.PART 3TERMS OF OFFICETenure, removal, resignation etc
10 (1) If— (a) a person is appointed to the office of President of Welsh Tribunals on terms that provide for him or her to retire from the office at a particular time specified in those terms (“the end of the fixed term”), and(b) the end of the fixed term is earlier than the time at which the person is required by the 1993 Act to retire from the office,the person shall, if still holding the office at the end of the fixed term, vacate the office at the end of the fixed term.(2) Subject to sub-paragraph (1) (and to the 1993 Act), a person appointed to the office of President of Welsh Tribunals holds that office during good behaviour, subject to a power of removal by Her Majesty on an address presented to Her by both Houses of Parliament.(3) It is for the Lord Chancellor to recommend to Her Majesty the exercise of the power of removal under sub-paragraph (2).(4) In this paragraph “the 1993 Act” means the Judicial Pensions and Retirement Act 1993.11 A person who holds the office of President of Welsh Tribunals may at any time resign that office by giving the Lord Chief Justice notice in writing to that effect.12 (1) The Lord Chief Justice, if satisfied by means of a medical certificate that a person holding the office of President of Welsh Tribunals—(a) is disabled by permanent infirmity from the performance of the duties of the office, and(b) is for the time being incapacitated from resigning the office,may, subject to sub-paragraph (2), by instrument under his or her hand declare the person to have vacated the office; and the instrument has the equivalent effect for all purposes as if the person had on the date of the instrument resigned the office.(2) A declaration under sub-paragraph (1) with respect to a person is of no effect unless it is made with the concurrence of—(a) the Lord Chancellor, and(b) the Welsh Ministers.Remuneration, allowances and expenses
13 The Welsh Ministers may pay to the President of Welsh Tribunals whatever amounts they determine in respect of—(a) remuneration;(b) allowances;(c) expenses.Oaths
14 (1) A person appointed to the office of President of Welsh Tribunals must take the required oaths in the presence of—(a) the Lord Chief Justice, or(b) another holder of high judicial office (as defined in section 60(2) of the Constitutional Reform Act 2005) who is nominated by the Lord Chief Justice for the purpose of taking the oaths from the person.(2) Sub-paragraph (1) applies whether or not the person has previously taken the required oaths after accepting another office.(3) In this paragraph “the required oaths” means—(a) the oath of allegiance, and(b) the judicial oath,as set out in the Promissory Oaths Act 1868.”
Amendment 119AA (in substitution for Amendment 119A) agreed.
Schedule 5: Minor and consequential amendments
Amendments 119B to 119G
119B: Schedule 5, page 101, line 9, at end insert—
“6A In section 116M (duty to disclose information on Welsh land transactions to HMRC), in subsection (1), for “A person who is a member of the Welsh Government” substitute “The Welsh Revenue Authority”.”
119C: Schedule 5, page 111, line 34, leave out “6(9)(g), (i) and (j)” and insert “6(2), (3) and (9)”
119D: Schedule 5, page 111, line 34, at end insert—
“( ) section 6A(11);( ) section 6B(5) and (7);”
119E: Schedule 5, page 112, line 13, leave out “6(9)(g), (i) and (j)” and insert “6(2), (3) and (9)”
119F: Schedule 5, page 112, line 13, at end insert—
“( ) section 6A(11);( ) section 6B(5) and (7);”
119G: Schedule 5, page 112, line 33, leave out “or 37”
Amendments 119B to 119G agreed.
Amendment 119H had been withdrawn from the Marshalled List.
Amendment 119HA (in substitution for Amendment 119H)
119HA: Schedule 5, page 113, line 31, at end insert—
“Judicial Pensions and Retirement Act 1993 (c. 8)
48A In Schedule 5 to the Judicial Pensions and Retirement Act 1993 (retirement provisions: the relevant offices), after the entry for the Senior President of Tribunals insert—“President of Welsh Tribunals”.”
Amendment 119HA (in substitution for Amendment 119H) agreed.
119HB: Schedule 5, page 114, line 6, at end insert—
“52A In section 77 of that Act (adjudications) omit subsection (5).”
Amendment 119HB agreed.
Amendment 119J had been withdrawn from the Marshalled List.
Amendment 119JA (in substitution for Amendment 119J)
119JA: Schedule 5, page 114, line 39, at end insert—
“Constitutional Reform Act 2005 (c. 4)
55A In section 109 of the Constitutional Reform Act 2005 (disciplinary powers: interpretation), in subsection (5), after paragraph (da) insert— “(db) President of Welsh Tribunals;”.”
Amendment 119JA (in substitution for Amendment 119J) agreed.
119K: Schedule 5, page 115, line 3, at end insert—
“Commissioners for Revenue and Customs Act 2005 (c. 11)
56A In section 18 of the Commissioners for Revenue and Customs Act 2005 (confidentiality), in subsection (2)(j), for “the Welsh Ministers” substitute “the Welsh Revenue Authority”.”
Amendment 119K agreed.
Amendment 119L had been withdrawn from the Marshalled List.
Amendment 119M (in substitution for Amendment 119L)
119M: Schedule 5, page 115, line 30, at end insert—
“Tribunals, Courts and Enforcement Act 2007 (c. 15)
59A(1) Section 47 of the Tribunals, Courts and Enforcement Act 2007 (co-operation in relation to judicial training, guidance and welfare) is amended as follows.(2) In subsection (4)(a) and (b), after “the Senior President of Tribunals” insert “or the President of Welsh Tribunals”.(3) In subsection (5)(c)—(a) omit “or” at the end of sub-paragraph (iii);(b) at the end insert “, or(v) a judge, or other member, of a tribunal listed in section (The Welsh tribunals) of the Wales Act 2016 (the Welsh tribunals).””
Amendment 119M (in substitution for Amendment 119L) agreed.
Amendments 119N and 119P
119N: Schedule 5, page 119, line 16, at end insert—
“Welsh Language (Wales) Measure 2011 (nawm 1)
82A In the Welsh Language (Wales) Measure 2011 omit section 124 (practice directions).”
119P: Schedule 5, page 119, line 24, at end insert—
“The Special Educational Needs Tribunal for Wales Regulations 2012 (S.I. 2012/ 322 (W.53))
83AA In the Special Educational Needs Tribunal for Wales Regulations 2012 omit regulation 28 (general powers).”
Amendments 119N and 119P agreed.
Schedule 5, as amended, agreed.
Clause 54 agreed.
Schedule 6 agreed.
Clause 55: Commencement
120: Clause 55, page 43, line 32, at end insert—
“(1A) Subsections (2) to (7) are subject to subsection (1B).(1B) The following provisions may not come into force until the Welsh Assembly has passed a legislative consent motion in respect of this Act—(a) sections 1 to 52,(b) section 53(1), and(c) Schedules 1 to 5.”
My Lords, I hope that the Minister will give an assurance that a Treasury Minister will write to me specifically answering the points that I made earlier. On that basis, I will not move the amendment.
Amendment 120 not moved.
Amendment 120A not moved.
121: Clause 55, page 43, line 39, at end insert—
“(e) section 41, and sections 37(4) and (6) and 40(4) for the purposes of section 41.”
Amendment 121 agreed.
Clause 55, as amended, agreed.
Clause 56 agreed.
In the Title
122: In the Title, line 2, after “Ministers” insert “and about Welsh tribunals”
Amendment 122 agreed.
Title, as amended, agreed.
Bill reported with amendments.