My Lords, we are again dealing with a very disparate group of amendments. Amendments 76 and 77, which stand in my name, seek to ensure that the National Assembly can continue to legislate on ancillary matters. My amendments have a similar objective to that of the amendments tabled by the noble Baroness, Lady Morgan of Ely, about which she has just spoken and which I certainly support. They are based on amendments recommended by the National Assembly Llywydd, or Presiding Officer, Elin Jones. In Committee similar amendments were tabled and forcefully supported by the former Assembly Llywydd, my noble friend Lord Elis-Thomas.
This is undoubtedly a hugely complex, intricate and fundamentally confusing area of legislation. It is so confusing that, as was outlined earlier, we have seen a whole range of answers from a variety of Government Ministers on the issue. In the Commons, my colleagues were initially told that including a provision to legislate in an ancillary fashion would,
“drive a coach and horses through the key principle underpinning the new model”.—[Official Report, Commons, Wales Bill Committee, 11/7/16; col. 87.]
Later they were told that their amendments were simply not needed as they were already provided for.
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Perhaps the closest we got to clarity was when we last debated this issue. In Committee, the Minister helpfully gave an extensive list of examples of where the Assembly’s legislative competence would not be hampered by the fact that it would no longer be able to legislate in an ancillary fashion. His hypothetical examples drew parallels with existing legislation in an attempt to enlighten us—but in all honesty I think that many of us were left scratching our heads. Why, if the Minister’s extensive list of examples is to be believed, is a provision allowing the Assembly to continue to legislate in an ancillary fashion not included in the Bill? This would give a level of consistency and clarity that is lacking in the current drafting.
The reason the current Llywydd and former Llywydd have called for this amendment is simple. The Llywydd of the National Assembly for Wales—indeed, the Presiding Officer or Speaker of any such legislative body—needs, first and foremost, clarity with regard to the powers and limitations of the body in question. Why, in this highly opaque area of legislation, in what is a hugely technical Bill, is the Minister choosing to instigate even further complexity and confusion?
As the Minister and his Welsh Office colleagues have reiterated so many times, we need a clear devolution settlement and not one that will further muddy the water. I can only assume that the Minister’s list of examples was an attempt to allay fears that his rejection of the Assembly’s ability to legislate in an ancillary fashion consituted a rollback of powers. However, I ask the Minister this simple question: if he does not seek to restrict the Assembly’s lawmaking powers, why oppose this amendment?
Sadly, I fear that restricting the Assembly’s powers is exactly what the Government are trying to do. For this reason, my party colleagues in Cardiff Bay requested that the Assembly’s research service should examine what Assembly legislation would have been outside competence if the Bill had been in place. Based on the work of Welsh Government lawyers, the research servie found that at least five pieces of legislation already on the statute book, and one Bill, would be outside the Assembly’s competence. This includes the Education (Wales) Measure 2009, Control of Horses (Wales) Act 2014, as well as flagship Welsh Government policies such as the Human Transplantation (Wales) Act 2013 and the Environment (Wales) Act 2016, which introduced the carrier bag charge.
Undoubetdly, the seemingly unending list of reservations was in part to blame for this. However, the removal of the Assembly’s ability to legislate in an ancillary fashion was the underlying factor which led to the uncertainty over whether these pieces of legislation would henceforward have fallen outside the Assembly’s competence.
As we know, the provisions of this Bill are not retroactive, so these Acts and measures will continue to hold true following the passage of this unwieldy Bill. However, the Minister surely can do little to do defend himself against claims that his refusal to accept these eminently sensible amendments is nothing but taking control away from the National Assembly and placing it in the hands of Westminster and Whitehall. I have to say that my colleagues in Cardiff Bay are incandescent about this and that a Bill facilitating such a reduction in powers is frankly unacceptable. I therefore support the amendments.
Many of the arguments also impinge on matters covered by Amendment 78, standing in my name and the name of my noble friend Lord Elystan-Morgan, but I shall keep myself in order as it has not yet been moved, and leave it to my noble friend to make the case in a few moments’ time.
I will allude also to Amendment 82, standing in my name and in the name of the noble Baroness, Lady Finlay of Llandaff, relating to enabling the Assembly to address alcohol-related issues. I shall leave it to the noble Baroness, who has a very impressive track record on such matters, to speak to that amendment, on which she has my full and enthusiastic support.
Amendment 85, standing in my name, should in fact have been grouped with the earlier amendments dealing with water, which have already been debated. Therefore, I shall not now speak to that amendment.
That brings us on to Amendment 92 standing in my name, which I do intend to speak to—but only to note that the compulsory purchase of land was on the list of reservations in the Wales Bill. However, I see now, at this late stage, that government Amendment 92A has been tabled and will achieve the devolution of this important function. The compulsory purchase of land is an essential facet of an array of devolved areas, including highways, planning, education services, housing provision and the health service. I welcome this move by the Government and thank the noble Lord, Lord Bourne, for listening to our concerns. I will therefore, having made those points, not press my amendment.
In conclusion, it is important to realise that, although some very worthwhile progress has been made, the Government must shift their ground on the issue of legislating on ancillary matters. Otherwise, they are heading for bitter confrontation—and that is not something that any of us want.