My Lords, this amendment, which stands in my name as well as the names of the Lord, Lord Wigley, and the noble Baroness, Lady Morgan of Ely, is dedicated to streamlining the constitutional transfer of authority to Wales and to making clearer the boundaries which, to some extent at the moment, are obfuscated. The effect of the amendment
would be to place the constitutional transfer of legislative and other parliamentary authority to Wales on a reserved basis, rather than a confirmed basis.
The meaning of that in lay terms is, as I am sure nearly every Member of this House appreciates, that there are two ways in which a sovereign parliament can transfer power to a sub-parliament. One is to transfer the totality of a subject heading and then say that there will be certain reservations, spelling them out—A, B and C—so that one knows exactly where that boundary is drawn. The other way of doing it is less simple and far more cumbersome: transferring piece by piece different legislative powers or, in a much wider way, describing certain subject areas but without setting out in detail exactly what they mean. The latter is what governs the situation in Wales, I am afraid.
Following the referendum of March 2011, and under Schedule 7 to the Government of Wales Act 2006, there are 20 subject headings ranging from agriculture to the Welsh language. They are not intended to be definitive of the powers that are transferred; they are more descriptive. Then, they are qualified—again, in a general way—rather than setting out exactly with ruthless correctitude what reservations and exemptions there are. One cannot overemphasise the difference between those two systems. One achieves the very best that devolution can achieve. The second brings out most of the weaknesses in the situation and guarantees great difficulties in future.
The Welsh Assembly has seen a number of developments over the past 16 years of its existence. It started off as, essentially, an executive body with very limited powers of delegated legislation. I think only 4% of the time of its plenary sessions was spent in the examination of legislation. Then, with the Government of Wales Act, things changed considerably. There was the provision under Schedule 3 that enabled what might be called the “salami slices” of authority to be conferred. Indeed, some such transfers did occur. But the fundamental change occurred, of course, following the referendum of March 2011 with those 20 areas of authority. They are very considerable in totality. The calculation of the Silk report is that they represent somewhere between 50% and 60% of the total expenditure of government in Wales. The area of jurisdiction is very considerable.
However, the system falls down on the question of ascertaining swiftly and clearly exactly what has been transferred and within what limits. I have used this expression before and do not apologise for it: it is such as to create a constitutional neurosis among those who practise the vocation of law in Wales. That of itself may not be a bad thing but it means that you have to chase little pieces of legislation almost like confetti. You have to trawl through various instruments and legislative provisions to get the truth. Even then, you may not be absolutely certain that you have covered everything that might be relevant. In addition, the exemptions are in such general terms as to be ineffective —and, indeed, perhaps downright dangerous, because of the dubiety created in such a situation.
The amendment therefore asks for a complete transfer, clearly and specifically, of a subject heading, and then a remorseless description of every exception that can
operate. That is no more than the Welsh people deserve, and I believe that a solid body of consensus has grown around it by now. It would mark the further maturity of the National Assembly for Wales, and would remove the areas of dangerous dubiety that exist. It is on that basis, and with some confidence, that I ask for support for this most necessary amendment to the constitutional situation in Wales. I beg to move.
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