My Lords, there are a number of huge and very different amendments to be considered in this grouping, so I hope that the House will be tolerant as I address the many key issues that need to be discussed under the broad heading of reservations.
Much of the debate on and scrutiny of the Bill have focused on whether particular subject areas should be devolved and form part of the legislative competence of the National Assembly for Wales. The tussle over exactly what the responsibilities of the UK and the Welsh Governments are is the focus of this Bill. Nevertheless, I am keen not to lose sight of the slightly more abstract and structural issues in the Bill, and of the lack of underlying principles—underlined by the Constitution Committee in the Lords—as to what should be reserved. The failure to have a Bill based on sound constitutional principles has created further complexity rather than simplifying and clarifying the approach, which is what the move from a conferred powers model to a reserved powers model was meant to deliver.
The Delegated Powers Committee and the Constitution Committee in the Lords have drawn attention to the broad interpretation that the courts have taken to the “relates to” test. The committees suggested that applying this test to a lengthy list of reservations—far longer than for other regional parliaments—could have significant implications for devolved competence. At best this will lead us back again to the Supreme Court and could reduce the competence of the National Assembly, often in areas where it already holds that competence.
The Minister sought to reassure the House of the impact of the purpose test, which determines whether a matter relates to a reserved matter, but we have no
way of knowing how effective this will be. Never before have we seen a reserved powers model with as many reservations as we have in this Bill. My fear is that while many thought that the shift to the reserved model would facilitate the progress of devolution, it might turn out to have the opposite effect.
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I will press the Minister on a specific issue, which relates to the purpose test and the way the Bill addresses whether the Assembly can make what is referred to as “ancillary” provisions. The fact is that the Welsh Assembly needs to have the facility to make laws, but just as importantly it needs to be able to enforce those laws. This enforcement role clearly would impact on the reserved area of justice. The Assembly would need the ability to step on the toes of the England and Wales justice system, despite not having the clear legal right to do so under the reserved system, in order to see through laws which come under its area of legal competence. Without this, the Assembly’s Bills will not work. This is not a new facility but one that already exists.
The Wales Bill follows the Scotland Act, but we have a very different situation from Scotland because so much more is devolved there, including the justice system. This restriction in Scotland has very little impact on the devolution settlement, but that is simply not the case for Wales. So the Bill remains complex and unclear. The Government have amended their Bill to remove the wording that makes the ancillary provisions so confusing, but this has led to a further problem because conferring functions on a court in civil proceedings would now become subject to a necessity test, which was not the case before. This necessity test has significant repercussions, because it will curtail the Assembly’s ability to enforce its own laws. When making provision to enforce the law, we believe that only one option would be available, and that is the one that has least effect on the law on reserved matters. The danger here is that defendants in a court case could routinely be able to raise in their defence the question of whether the relevant Assembly Act went beyond its powers. They might question whether the law really was the option that had least effect—whether it was “necessary”.
In response to this concern, the noble Lord, Lord Bourne of Aberystwyth, defended the UK Government in Committee by contending:
“Allowing the Assembly to modify these areas puts at risk the uniformity on which the single jurisdiction is based”.
He also said:
“The law on reserved matters is, by definition, not an area of the law that should be open to wide-ranging alteration by the Assembly in this manner. This is vital to effect a clear boundary between what is devolved and what is reserved”.—[Official Report, 7/11/16; col. 987.]
Here is where the fundamental flaw in the Bill lies—a flaw which runs through its spine and which has been there from the beginning of its drafting. It derives from 20th-century, pre-devolution thinking. How can it be said that, in a jurisdiction that has two legislatures, there is uniformity? There is not, there will not be and there cannot be. The justice system is not a subject that can be reserved with a clear line; it is a mechanism
that a legislature needs in order to frame and enforce its laws. Until the Government accept that, the Welsh devolution system will be flawed.
I wonder whether the Minister might agree to a modification based on the words he himself used to describe the necessity requirement—a word I understand has been repeated by the UK Government in correspondence—namely, a change from the use of the word “necessary” to “proportionate”. It has been said that the intention here is to ensure that any relevant provision in an Assembly Act is proportionate, and that the Welsh legislature should have “options” in this respect. If that is the case, and if the UK Government truly believe that the Welsh legislature should have options, the test that should be applied should be one of proportionality and not of necessity. I would be grateful if the Minister could address that issue in his reply.
That is the heavy constitutional bit over. Let us turn now to issues that are much easier to relate to. I thank the Minister for listening to our concerns on a whole range of matters. The Government have agreed to our points that reservation on a whole raft of areas was simply unjustifiable and have recognised that in many areas in the Bill there was a push-back from powers that the Welsh Government already possess. I am very pleased that we have managed to come to an accommodation on so many areas, and that the following matters—I think it is worth listing the areas where we had particular concerns and where we have seen movement—will now no longer be reserved to the UK Government: water and sewage; heating and cooling; an involvement for the Welsh Government in maritime search and rescue; exceptions for social security in terms of financial assistance; adoption; planning of railways that start and end in Wales; the community infrastructure levy; compulsory purchase of land; and building regulations. We have to give credit where it is due. We are very grateful to the Minister for listening to our concerns on these matters and we are grateful that he has tabled his own amendments on those issues. They are not all where we want them to be, but the Government have listened and we are grateful.
The Lib Dems have submitted an amendment on the devolution of anti-social behaviour and dangerous dogs. We understand that there are times when it makes absolute sense to deal with anti-social behaviour at a local level. This is particularly relevant on some of our more difficult housing estates. We would, on the whole, support the narrowing of anti-social behaviour reservation, but not its removal altogether. We welcome the fact that the UK Government have already conceded to remove the housing element. However, the blanket nature of the Lib Dem amendment would devolve Parts 1 to 6 of the Anti-social Behaviour, Crime and Policing Act 2014, which is huge in scope. The amendment would mean devolving, among other things: the power of arrest, arrest without warrants, rules of courts and special measures for witnesses. We think that is probably going too far at present.
While the Government have, once again, not given a reason for not devolving powers over dangerous dogs, I can foresee many practical reasons against implementing two separate policies on this issue between
Wales and England. Are we going to stop every tourist coming into Wales and check their dog’s DNA to see whether it complies with the Dangerous Dogs Act? Until we are satisfied that there would be a practical way to enforce issues surrounding dangerous dogs and narrowing the scope of the amendment, I am afraid we cannot support this suggestion.
I turn now to Amendment 82. There is no doubt that alcohol misuse is a major public health issue and a principal cause of preventable death and illness in Wales. It can lead to a number of health and social harms, particularly for a significant minority of people who drink to excess. Given these impacts and the direct links with devolved responsibilities for public health and the NHS, there is a pressing need to tackle alcohol misuse. The Assembly and the Welsh Government must therefore be equipped with a vast range of tools at their disposal. Policies that control the way in which alcohol is sold and supplied are widely acknowledged to be among the most effective mechanisms for tackling alcohol-related harms. The current reservations place unnecessary and inappropriate constraints on action to tackle alcohol availability in Wales. As of October, UK courts have declared in favour of the Scottish Government in this respect. There is no real justification in principle for why this matter should not be devolved to Wales.
Finally, I should like to focus on a particular area where we still have very real concerns. This relates to allowing the Welsh Government to have power over employment and industrial relations in the public sector. I refer to Amendment 90. Some have suggested that the whole purpose of the Wales Bill is to close off the ability of the Welsh Government to legislate on trade union matters relating to public services. We are aware that, during consideration of the Trade Union Bill in this House, a letter was leaked which confirmed that the Welsh Government had a strong legal case for resisting the attempt by the UK Government to curtail the power of trade unions in Wales in relation to public sector services which have been devolved under the conferred model. Government lawyers were aware of the previous Supreme Court judgment which suggested that Wales was in its rights to legislate on farmworkers’ pay, despite employment law being a reserved matter for the UK Government, as agriculture was and is a devolved matter. If that logic were carried through to the issue of trade union rights in relation to public services, then, under the current conferred powers system of government, it is clear on which side the Supreme Court would be likely to come down.
The Minister has been generous in recognising that in many areas there has been a pushing back of the Welsh Government’s current powers through the introduction of the new reserved powers model, and he has agreed to bring in an accommodation and to introduce exceptions in the new system to maintain the status quo in terms of the Assembly’s responsibilities. However, on the matter of trade union rights in relation to public services in Wales, the Government have been deaf to our concerns.
I make it clear that we are not asking for employment rights to be devolved wholesale. However, we are asking the UK Government to recognise that they
have little, if any, understanding of how public services such as health and education are provided in Wales. They have demonstrated little recognition of the fact that the partnership approach to trade unions adopted by the Welsh Government has meant that we have not had a strike by junior doctors in Wales as there has been in England, and that the health boards and others who are responsible for the delivery of services think that imposing methods which may or may not be appropriate for England should not be imposed on Wales. Indeed, they think that doing so could be damaging and counterproductive.
However, I am concerned about a wider discussion here. The Secretary of State has said time and again that he would like to see this as the definitive Bill in terms of setting out the relationship between the Welsh Assembly, the UK Parliament and both Governments for the foreseeable future. The noble Lord will be aware that the Welsh Government will imminently introduce their own Bill on trade unions, which will overturn last year’s attempt by the UK Government through the Trade Union Bill to interfere in a devolved area of competence—namely, the provision of public services devolved to Wales. This will be introduced and accepted under the conferred powers model of government, and it will set the Welsh Government on course for a constitutional battle with the UK Government. If the UK Government insist on resisting the amendment, the only option open to them will be to refer the matter to the Supreme Court or introduce new legislation to overturn the new Welsh law. Far from putting to bed the issue of the relationship between the Welsh Government and the UK Government, not accepting the amendment will open up another constitutional front which will likely run for years and cost taxpayers millions of pounds.
If we do not receive assurances on this issue from the Minister, I advise him that we will be moving that amendment to a vote. I respectfully ask him to reconsider his attitude towards all the amendments that we are proposing but towards this one in particular to avoid a constitutional punch-up—something that we are all anxious to avoid.