The Assembly met at 13:30 with the Deputy Presiding Officer (David Melding) in the Chair.
Y Dirprwy Lywydd / The Deputy Presiding Officer
Order, order. The National Assembly is in session.
[R] signifies the Member has declared an interest. [W] signifies that the question was tabled in Welsh.
Y Dirprwy Lywydd / The Deputy Presiding Officer
Item 1 is questions to the Minister for Finance and Government Business. I’m going to group questions 1 and 8. Question 1 is Mohammad Asghar.
The Communities and Tackling Poverty Portfolio
1. What priorities were considered by the Welsh Government when allocating funding to the communities and tackling poverty portfolio? OAQ(4)0640(FIN)
8. Will the Minister make a statement on the funding allocation to the communities and tackling poverty portfolio in the 2016-17 draft budget? OAQ(4)0648(FIN)
As set out in our draft budget, our commitment to social justice and protecting the delivery of front-line services underpins everything we do.
Thank you, Minister. One of the key aims of your Government is to create a fair society, free from discrimination, harassment and victimisation, with cohesive and inclusive communities. Since your draft budget cuts the communities and tackling poverty budget by £3 million in cash terms, what consideration was given to meeting this aim, at a time of increasing hate crime and rising tension among the communities in Wales?
Well, of course, if we had had your Welsh Conservative budget back in 2011, the cut to local government social justice would have been 12.5 per cent. But as we have had the settlement, which has produced our draft budget, of course, we then seek to deliver in terms of the quality objectives of the Welsh Government. And it is important that that does include the equality and inclusion grant, and the role that we can play in terms of protecting and safeguarding our community cohesion co-ordinators, which, of course, we are supporting and funding.
Minister, as part of the very welcome announcement by the Minister for Communities and Tackling Poverty last month of £2.8 million for the community facilities programme, the Underwood Baptist Church in my constituency will have a new extension, providing a kitchen and toilets, and allowing more groups and more activities to take place. Previously, the Hope Centre in Somerton—a Communities First area—had substantial funding. Will you ensure that Welsh Government continues to support this vital community fabric, which allows community activity and regeneration to take place across Wales?
I thank John Griffiths for that question, because our draft budget for 2016-17, ‘Fairer, Better Wales’, does set out plans for allocating over £230 million in new capital investment. But that is very targeted, and the Minister for Communities and Tackling Poverty did announce on 22 December £2.8 million funding for 10 projects through the community facilities programme. And, of course, not only is that supporting Underwood Baptist Church, it’s also supporting, for example, Llanfairfechan community library in Conwy, it’s supporting the Penparcau community forum in Ceredigion—that’s a former Communities First area—and also KPC Youth in Bridgend. And, of course, these are all communities where the funding will help tackle poverty.
Minister, as far as funding is concerned, has the Communities First programme, which set out to create prosperous, healthier and learning communities, in your opinion, provided us with value for money?
Clearly, the Communities First programme has been developed, evaluated, and improved to deliver further outcomes. The focus, of course, particularly on delivering outcomes in terms of jobs and training, has been demonstrated, in terms of the latest reports. But, also, we recognise the importance of Communities First investing in our most deprived communities, to ensure that our commitment to tackling poverty and social justice is upheld.
Minister, you will have seen the Institute for Fiscal Studies data, which shows that, under the current Government, the number of children whose families are in work but who are living in poverty has increased from 54 per cent to 63 per cent. We are getting what we know always happens with a Tory Government in Westminster: the rich get richer and the poor get poorer. And we now have to face the challenge of universal credit, which will again do the same as the tax credit reforms that were proposed. What evaluation is the Welsh Government taking of the impact of universal credit changes to families within Wales and the impact on the increasing poverty that will inevitably result?
Well, Mick Antoniw is quite right: the evidence from the Institute for Fiscal Studies and also our own Bevan Foundation, which published its analysis of Wales’s uptake of benefits currently last November—. If we just look at the IFS evidence, it showed that the total impact of the UK Government’s tax and benefit changes, including universal credit, mean that lower income households lose out more than households around middle income distribution, and these changes will increase the number of households in Wales, as you say, below the poverty line in both absolute and relative terms. But, let’s also look at the Resolution Foundation. They estimate that up to a further 600,000 children in the UK will fall into poverty once all the summer budget policy measures on tax, pay and benefits have taken effect, and two thirds of this increase is among children in working households. And, also, finally, the IFS’ analysis shows that the UK Government’s u-turn on the main tax credit cut will only provide short-term protection because tax credits will be phased out by 2018 and the planned cuts to universal credit were not reversed. So, that means the long-term impact, when all policy changes have been fully rolled out, remains broadly the same.
Minister, in terms of supporting Wales’s many diverse communities and helping to tackle poverty, would you agree with me about the importance of adequately funding to the best of our ability the voluntary sector, so that it is capable of playing a significant role in building and improving community cohesion? Furthermore, Minister, would you also agree with me that, in these times of heightened tensions created by the actions of extremist and far-right hate groups, we must support to the best of our ability those organisations that are seeking to help and work with our most vulnerable people and community groups?
Well, I completely agree with Jeff Cuthbert’s question and I think the short debate this afternoon, ‘A Nation of Sanctuary?’, will allow us to discuss many of these issues as an Assembly. We have, and I’ve already mentioned that we fund, eight regional community cohesion co-ordinators to work with local authorities to mainstream cohesion, tackle hate crime and make sure that there are systems in place for monitoring tensions. Also, the Minister for Communities and Tackling Poverty is working very closely with the third sector organisations that, Jeff Cuthbert, you mentioned, on how to implement fully our tackling hate crimes and incidents framework for action.
The Draft Budget (Priorities)
2. Will the Minister make a statement on the Welsh Government’s priorities when setting the draft budget for 2016-17? OAQ(4)0650(FIN)
Our budget for a ‘Fairer, Better Wales—Investing for the Future’ addresses our main priorities of health and health services, growth and jobs, educational attainment, and supporting children, families and deprived communities.
I thank you for that answer, Minister, and I welcome the Government’s draft budget, which contains record levels of investment in our health services and increased spending on social services, ensuring that people here in Wales continue to receive higher per capita figures for health and social care than they do in England. But do you agree with me that this investment demonstrates confidence in our NHS and its workforce and that the NHS in Wales is safe in Labour’s hands?
Well, we have demonstrated our confidence in the Welsh NHS. We’re allocating an additional £293 million to the NHS, including £200 million to support core delivery and to support a sustainable NHS. But, also, you mentioned health and social services and the importance of the extra support for the intermediate care fund; an extra £30 million in funding available for older people mental health services; an extra £33 million for capital; and, of course, those all-important figures we got last November that, in Wales, we’re spending on health and social services 7 per cent more per head than in England.
Obviously, in preparing your draft budget, finance Minister, you chose to give higher education a good kicking and, in particular, there is a danger that has been pointed out from the Higher Education Funding Council for Wales over the risk to research and development in our universities should the draft budget become a reality. Compare that with what the Chancellor announced here in Cardiff last week about the Catapult semiconductor centre—£50 million-worth of investment. Given the representations you’ve had, are you minded now to change the terms of the draft budget in relation to higher education so research and development can prosper here in Wales rather than leave for other parts of the United Kingdom?
Well, of course, higher education has been relatively protected from the impact of the UK Government’s cuts to our budget. Let’s just remember—an 8 per cent real-terms cut to our budget over the last five years, and another 4.5 per cent cut to revenue in the forthcoming years, compared to other parts. But, of course, the Minister for Education and Skills will provide a steer on Welsh Government priorities for higher education in his annual remit letter to the funding council shortly. And it will be for HEFCW to determine how it allocates its resources.
Minister, we know that very, very challenging decisions have to be made with the settlement we’ve had from the UK Government, but we know that part-time study plays a crucial role in widening the number of people who can access higher education, and it’s about empowering people to get work or progress in their careers. I am concerned, therefore, that any cuts in the money available to the higher education sector, resulting from the Welsh Government’s real-terms budget cuts, could disproportionately impact on part-time students. We know there’s a social justice issue here, a point made to me by the Open University. How is the Welsh Government taking this into account in determining its budget?
I think what is very important is that we had difficult decisions to make in terms of our priorities. It is very important to recognise that the further education budget for 2016-17 is protected from cuts, and I know that you will, and have, welcomed that, and, also, that we’ve provided an extra £5 million for apprenticeships and we’re providing a further £5 million to support an additional 2,500 apprenticeships next year. So, it is about ensuring that we can reach out to all sectors. And, of course, in terms of the opportunities for those people who perhaps want to go into part-time education and further progression in terms of education, further education often provides that route. But I do think it’s important also to recognise that we made the decision to put an additional £10 million in the budget for next year to ensure that no Welsh student faces tuition fees above the basic level, and we do continue that existing student support provision.
Minister, the books publishing industry is facing a 10 per cent cut in your draft budget, and this will have a direct impact on the Welsh Books Council, of course, but it will also have an impact on authors in Wales and on publishers and printers, such as Y Lolfa, Parthian, Golwg, Gomer and others in my constituency. We’ve seen huge progress over the past 10 to 15 years in the range and variety of books published in both Welsh and English in Wales, and that increase is put at risk with a cut of this unexpected scale. Prior to taking the decision to target a cut of 10 per cent in this particular sector, what assessment did you carry out of the economic impact of a cut of this scale on businesses?
Clearly, we do not wish, as Welsh Government, to be in the position of making these tough decisions in terms of cuts to very important parts of our sectors in terms of education and the book publishing industry, not just in terms of the opportunities for authors and writers, but also, for the businesses and the advice that they get. But, clearly, we have had a tough budget, and these decisions will have been considered in relation to impact assessments, which, of course, are afforded to all our budget decisions.
Questions Without Notice from Party Spokespeople
Y Dirprwy Lywydd / The Deputy Presiding Officer
I now call the party spokespeople to question the Minister, starting this week with the Welsh Conservative spokesperson, Nick Ramsay.
Diolch. Minister, what discussions have you had with the Minister for Public Services on mitigating the 2 per cent cut to the local government budget?
It is not only the Minister for Public Services. The settlement—which wasn’t 2 per cent; it was 1.4 per cent—has been widely welcomed. Everywhere I have been meeting with people over the past few weeks, it has been, within local government, a huge relief that we have been in the position where we made that decision to ensure that the cuts that were forecast and anticipated for local government did not take place.
Thank you, Minister, for that answer. That’s the first time I’ve heard local government welcoming a cut to their budget; you’re obviously speaking to different people to me. That cut is clearly going to cause serious hardship, but worst of all, as I’m sure you’re aware, that hardship is going to be unevenly spread, and will disproportionately affect rural authorities in Wales. I’ve got a breakdown of the settlements for the 22 authorities here: Ceredigion is down 3.4 per cent, my own authority of Monmouthshire is down 3.1 per cent and Powys is down a whacking 4.1 per cent—that’s a good bit of bargaining from the Liberal Democrats there. Why is your Government hellbent on penalising rural areas of Wales?
Can I just say that, in terms of the response from the Welsh Local Government Association on 9 December, councillor Bob Wellington said:
‘Times remain tough, but this settlement at least shows that Welsh Government Ministers are listening to local government leaders and working with us to protect local services from the worst impacts of austerity. Today's settlement offers a welcome slow-down in the daunting level of budget cuts…’
So, perhaps you’d like to also speak to your leader who, I’m sure, also would have welcomed the settlement in terms of the tough challenges that we had from the spending review from the Conservative UK Government.
Of course, in terms of looking at the situation, we are now in the period when we can consider the impact of the provisional local government settlement. I believe the Minister for Public Services also attended committee this morning, and now is the time to consider these issues. You know perfectly well that the formula is a formula that is agreed each year in partnership with local government, local authorities and the Welsh Local Government Association, who are represented on the group that considers changes to the formula, including independent members as well. This is a provisional local government settlement; it’s currently being consulted upon and discussions will take place as part of that process.
Thank you, Minister. I’m sure that Councillor Bob Wellington is pleased with the fact that Torfaen has only had a 1.7 per cent cut. However, councillor Peter Fox from Monmouthshire is far less pleased with his 3.1 per cent cut in Monmouthshire. You only have to look at the figures for urban areas to see the disparity from the so-called party of fairness. Cardiff is down 0.1 per cent, Newport is down 0.7 per cent and Merthyr Tydfil is down 0.9 per cent—coincidentally, all Labour local authorities. I think the people of Wales, Minister, deserve to know why this Welsh Government continues to allow rural authorities to be hardest hit. Isn’t it time for a new local government formula that recognises the costs associated with delivering services over larger rural areas? Sadly, isn’t the message that this budget, draft or not, is sending out to the people of Wales one that says ‘the Welsh Government doesn’t really give a toss about rural Wales, does it’?
Y Dirprwy Lywydd / The Deputy Presiding Officer
Order. I know things are getting very excitable as we approach the election, but language is important and elegance is important for proper political dialogue. So Members better watch it, including you, Mr Ramsay.
I would also like to quote directly from councillor Peter Fox, your leader and the Welsh Local Government Association Conservative group leader, because he also said in that response:
‘The announcement of the local government settlement shows that while the Welsh Government have listened on a number of key issues raised by local government, we clearly still need to fundamentally review the funding formula and take into account the needs of rural communities.’
He is recognising that he has a responsibility, as local government does, which I welcome. I also very much welcome Councillor Peter Fox’s—your leader’s—very full involvement in what is going to progress as a very important opportunity with the city deal for the region that your are part of.
Y Dirprwy Lywydd / The Deputy Presiding Officer
Now Plaid Cymru spokesperson, Alun Ffred Jones.
Following recent floods and the £3.5 million that’s been pledged to Welsh councils, where is that funding coming from? Is it coming from departmental budgets or from reserves?
That money is allocated as a result of decisions by the Minister for Natural Resources in terms of his budget flexibilities.
I assume, therefore, that the £3.5 million is funding already delegated within the budget. The First Minister has pledged, and I think there was confirmation of this yesterday, that the Talybont and nearby A55 flood prevention scheme will be fully funded. I would like confirmation of that. Is that funding coming from the budgets of the transport and environment departments?
We have made decisions, particularly in responding to the very difficult adverse flooding that took place after Christmas. As you know, it’s not just the £2.3 million; we’ve already also announced £1 million for local authorities for immediate repairs and maintenance for homes and properties. And, of course, the Minister responded in full yesterday in terms of the flood events and the allocation of funding that we’re making available.
I think what is very important is that we recognise that the flood allocation also includes funding from the European Union. That, of course, is very important in terms of the improvements to the A55 and recognising the issues there in terms of flooding and funding needs.
Thank you for that response, although it wasn’t an answer to the question that I asked. You’ve confirmed that the £3.5 million that has been set aside for local authorities is going to come from funding already allocated to the environment department. Can you tell me whether the funding for the scheme at Talybont and the nearby A55 is coming from that £3.5 million, or is it additional to that sum of money?
Well, the Minister for Economy, Science and Transport has written to all Assembly Members advising them of the work that’s ongoing between officials and Gwynedd Council on that scheme. It is a scheme to alleviate the effects of floodwater on Talybont and the adjacent A55. Gwynedd Council have been provided with the funding to progress on a detailed design of that scheme. And, of course, in being able to again respond to your questions, the Welsh Government has provided nearly £47 million to carry out improvements to the A55, £42 million to fund ongoing improvements to the tunnels, and previously £4.6 million for work on the Britannia bridge, safe havens and also emergency cross-overs. So, I think, just back to the EU funding contribution, which I know you would welcome, together with Welsh Government and EU funds, improvements to the A55 will be in the region of circa £50 million.
Y Dirprwy Lywydd / The Deputy Presiding Officer
Now the Welsh Liberal Democrat spokesperson, Peter Black.
Thank you, Deputy Presiding Officer. Minister, can you confirm that Her Majesty’s Revenue and Customs remains your preferred deliverer of the new Welsh tax powers that will be coming to us in 2018?
I think it’s still early days in terms of the final decision, which, of course, will be a final decision made by the Welsh revenue authority. Of course, you know that we have said that HMRC is, for us, at this stage in time, a preferred provider, but a great deal has to be done and a final decision will be made by the next Government.
Thank you for that, Minister. I hope the next Government is able to take into account the service standards that HMRC are currently delivering. A recent survey by the Institute of Chartered Accountants in England and Wales of all their members found that HMRC’s service standards remain below an acceptable level. Do you accept that there is a concern that the level of service that HMRC provides for those using its services is below par and that this may impact upon the successful roll-out of the new tax powers when they come?
I do think the issues around service standards are very important. In terms of service standards—and I said the final decision would have to be made by the next Government—it will very much depend on HMRC’s ability to meet those required customer service standards, and of course, the associated costs as well. I think it’s very important that we look at the series of options that we’ve got to ensure that Welsh devolved tax payers do receive the appropriate level of service on both land transaction tax and landfill disposals tax.
Thank you for that answer, Minister. I wrote to HMRC following their proposal to reorganise all the offices in Wales, asking them a series of questions about how that service will now be delivered once it’s all centralised in Cardiff. I was particularly concerned in terms of the answer I had that, as yet, they hadn’t determined how they were to deliver their services through the medium of Welsh once that service is reorganised. That indicates to me that HMRC do not have a mindset whereby they consider a bilingual service, which is going to be crucial to the delivery of the new tax-collecting powers that we will have.
Can I ask you, or the next Government, to make it a priority, when you determine who will be collecting these taxes, that bilingual services are absolutely crucial to that and that we would expect whoever collects those taxes to be able to deal with customers through the medium of English or Welsh?
I’m very glad to have the opportunity to confirm, again, that the First Minister wrote in November to the Financial Secretary to the Treasury to express his concerns about the impact of the HMRC closures, not just the impact it would have on rural communities in Wales in terms of jobs, but also on the Welsh language. HMRC obviously have existing Welsh language capacity. They have confirmed that they will work with us and the Welsh revenue authority to establish the requirements and costs for a Welsh-language service in relation to land transaction tax. They will, of course, have to consider the standards of the Welsh Language Commissioner in due course.
The Public Services Portfolio
3. Will the Minister make a statement on the allocation of funding to the public services portfolio? OAQ(4)0641(FIN)
The allocation to the public services portfolio was included in the draft budget, ‘Fairer, Better Wales—Investing for the Future’, which I published on 8 December.
I’m grateful to the Minister for that answer. The Welsh Local Government Association has made it clear that the proposed council mergers by your party could cost up to £268 million. In light of the WLGA’s figures, can you tell us what specific cost analysis and assessment you’ve made of the proposals for local government reorganisation in your role as finance Minister? Can you also tell us where exactly you are going to find this money, should these unwanted proposals go ahead?
Well, of course, this is fully explained and accounted for in the regulatory impact assessment.
European Structural Fund Projects
4. Will the Minister provide details of recent European structural fund project approvals in South Wales West? OAQ(4)0649(FIN)
Recent EU investments benefiting South Wales West include Swansea University’s Materials and Manufacturing Academy and leading business growth projects, the marine sector WaveSub project, and a number of pan-Wales skills, employment and business support projects.
Thank you for that answer, Minister. There are many ESF projects in the South Wales West region that have benefited our areas and the economy of our areas. As you pointed out, last week, you visited Swansea University’s new bay campus to actually launch the Materials and Manufacturing Academy, an innovative project to nurture and develop future captains of our industry. Such projects will provide potential investors and entrepreneurs with the confidence that Wales has the ability and skills to strengthen the engineering and advanced materials sectors, which can create jobs and grow our economy. Do you agree that such projects demonstrate the importance of being in the EU and how partnerships between industry, Government and higher education can actually build upon the EU funds?
I do agree, David Rees, and, of course, the Swansea innovation campus, supported by EU and Welsh Government funds, would not be there—. It’s a world-class campus. It’s helping to generate around £3 billion of economic impact in the region—that’s what’s anticipated in the next 10 years. Quite clearly, it would not be there if we were not part of the European Union. But I think what’s important about the visit I made, when I announced that £8.6 million, is the discussions I had with businesses, including Tata Steel and Weartech International, for example, based in Port Talbot, which are now enabling the research projects to take place as a result of the funding. This is a successor to the very successful EU-funded project, STRIP—Steel Training Research and Innovation Partnership.
The Welsh Government website states that European structural funds are available for north and west Wales, the Valleys and east Wales. On the back of concerns raised by a forward-thinking firm in my region about the level of detail on the website, my office contacted WEFO, who were unable to say what ESF funding streams applied in my region at all, even though a considerable part of my region is clearly made up of valleys. The public sector may be familiar with WEFO, but if that’s the response to an AM’s office, Minister, how would a curious and ambitious private business in my region engage effectively with WEFO to find out whether they were eligible for inclusion in any ESF funding programme or priority?
Businesses are fully engaged with WEFO, and I’ve already given some examples of businesses that I met last week. I do urge you, Suzy Davies, to go and see the impact of this new announcement I made on European funding. But I only have to, for example, mention Swansea-based Marine Power Systems, benefiting from £2 million of EU funds to develop a new wave technology, WaveSub, that’s harnessing energy from ocean waves. The EU-funded BEACON project also benefits the Swansea-based Innoture Medical Technology Ltd, companies such as not only Tata but BASF Coatings Ltd and General Electric, and, further into Llanelli, AnalysisPro Ltd. The private sector wants to proclaim and engage with us in terms of opportunities, and also showing what EU funds have meant for them.
Minister, New Sandfields Aberavon and Afan-Community Regeneration were awarded £231,000 last summer, aimed at increasing tourism on Aberavon seafront, something which, when I knock doors in the area, is something that they wanted to see developed, and rightly so. Can you say how many projects have been delivered in that time, and how that has translated, or is going to translate, into benefits for the community and the businesses along the seafront there?
Well, I’m grateful for that question because it gives me the opportunity to state that we’ve already announced EU investments worth over £440 million, driving a total investment of £965 million across Wales. But, of course, that drills down to the very local projects, which will make a difference in terms of Aberavon seafront. But the 25 per cent of our funds have already been approved in this new programme, and 57 projects. That does range from the kind of projects I’ve mentioned benefiting business and university to those projects that actually reach people, for example, people in South West Workways, which you will be very well aware of, which helps long-term unemployed and economically inactive people back into work.
5. What monitoring does the Minister’s department undertake on the financial reserves available to public bodies during a financial year? OAQ(4)0642(FIN)
The Welsh Government has a strong record of financial management and control. These controls include regular monitoring by my officials of expenditure against budgets scrutinised and approved by this Assembly.
Minister, what allowance would the Government allow local authorities to use those reserves to help them stop higher-than-inflation council tax increases in particular? The Vale of Glamorgan Council, for example, in your constituency and in my electoral region, has a very generous allocation of reserves, and ratepayers, year on year for the last couple of years, have had excessive rate rises. Would the Welsh Government, under the guidance it gives, allow for those reserves in part to be used to mitigate some of the increase that ratepayers might face this year?
I think, in terms of local government, we recognise this is local government and taxpayers’ money. Authorities have the responsibility to make effective use of funding to deliver services that they’re responsible for, but also chief finance officers have a statutory duty to report as part of annual budget calculations that the authorities maintain the adequate reserves in terms of liabilities. It is clearly the responsibility of the local authority to consider these issues and how they not only spend their funding but also set their council tax, in line with, of course, the Minister for Public Services’s guidance on these matters.
6. What additional funding will the Minister allocate to the economy, science and transport portfolio to improve the A55? OAQ(4)0653(FIN)[W]
Since I published the Wales infrastructure investment plan, I have allocated £42 million for route resilience and safety improvements to the A55.
Thank you. I am pleased that funding is to be available for flood prevention work on the A55 after the road had to be closed again in the Talybont area over the Christmas period, although it appears, from an earlier response, that this is not additional funding. It was entirely inappropriate, if I may say so, for the First Minister to try to put the blame on others for not having done that work earlier. He blamed the former Minister for transport, Ieuan Wyn Jones, claiming that he had cancelled the work when the project that Ieuan Wyn Jones was referring to in a decision taken some years ago related to a different part of the A55. People are not stupid. Now, does the finance Minister agree that Ieuan Wyn Jones deserves an apology in that regard and that the Government has to prove its commitment to the A55 and the people of north Wales by ensuring that processes take place far more swiftly to release funding and additional funding to deal with urgent issues such as flooding?
Well, I certainly want to be clear about our commitment to funding the A55, not just currently and in the future, but in the past. I have allocated £42 million over three years to accelerate an essential upgrade to the A55 Conwy tunnels improvements to ensure that that asset remains fit for purpose. Of course, in terms of the dreadful disruption for road users and people affected, as far as the A55 and flooding is concerned, we are working very closely, as the Minister said yesterday, with local authorities and partners, to find long-term solutions for some of the areas most prone to flooding. But I’ve already given information to Alun Ffred Jones in terms of the commitment we’ve made, including European funding, to address these issues, and I hope that is helpful in terms of the response in terms of our commitment to dealing with these issues.
North Wales residents are well aware of chronic gridlock issues on the A55. Following rejection of disastrous proposals for the Deeside corridor after the findings of a public inquiry in 2007, to which I gave evidence, the Welsh Government held public exhibitions last autumn on two proposed plans for easing congestion on the A494, A5 and A548 Deeside corridor now, but stated that the selection of the preferred route is expected before the end of 2016. What assurances can you therefore provide that the process is on course and will be funded—and the Welsh Government used the figure of £200 million—and when do you envisage diggers in the ground, actually working on this vital upgrade?
Well, the Minister for Economy, Science and Transport has advised and updated Assembly Members on the work that’s been undertaken, and also in terms of the timelines. And, of course, the Minister for Natural Resources yesterday was also able to respond to these issues. But I think it’s important that, in my recent budget, which I announced on 8 September, I included £3 million for progressing flood protection work in St Asaph and £3 million for the coastal risk management programme. That’s going to use innovative finance to fund £150 million of capital projects for coastal adaptation resilience to climate change.
You state that you are collaborating with local authorities with regard to the arrangement for those areas impacted by floods along the A55, but of course the First Minister has admitted that the A55 by now hasn’t been built to contemporary standards. Therefore, bearing in mind that you say you are going to ensure that there will be a fair allocation between north and south, and other areas as regards expenditure on the M4 if that goes forward, have you as a Government commissioned work to ensure that all the schemes for the A55 meet these new standards that the First Minister alluded to yesterday.
Well, that’s absolutely clear: it is the responsibility of the Minister for Economy, Science and Transport to ensure that that is the case. I think it is very important as well that we recognise that, actually, with Welsh Government and EU funds, improvements to the A55 will be in the region of circa £50 million, as I’ve already said, and that has to be delivered to the highest standards.
7. What discussions has the Minister had with the UK Government in relation to EU funding in Wales? OAQ(4)0652(FIN)
I am in regular contact with UK Government Ministers, including through the Joint Ministerial Council Europe. Last month, I met with David Lidington MP, the UK Minister for Europe, to discuss EU reform, the forthcoming EU referendum, the future of cohesion policy and plans for the UK presidency in 2017.
Minister, of course we are facing a referendum on our membership of the European Union. If the United Kingdom, as the member state, decides to withdraw from Europe, that would be a disastrous decision for Wales, and it would mean that we would be totally dependent on the Treasury to compensate us for all the European funding that we would lose as regards the common agricultural policy and the regional development policy. But, even if there was a renegotiation of our relationship with Europe, David Cameron has talked about taking that funding back into the Treasury, and even the leadership of the Labour Party is talking about that. What guarantee can you give us that, whatever happens with the referendum, Wales will not lose out financially as regards the funding that it receives from the European Union?
These are very important points that I’m able to raise as a Minister as a member of the joint ministerial council alongside colleagues from Scotland and Northern Ireland as well, particularly raising our concerns in terms of the prospects for Europe, and the prospects in terms of the opportunities and the threats that we have at the current time with the forthcoming referendum. I think it is very important that, at each opportunity—and the last meeting was in December—I emphasised the importance of structural investment funds continuing to be available, and also recognising the impact of those structural funds on our communities, regions, businesses and nation.
So, there are huge potential implications of the threat of exit from the European Union in terms of the referendum, and it is our duty now to ensure that Welsh interests and concerns must be given full consideration. Of course, I think, as the First Minister said yesterday, that’s what we’re focusing on at the moment—that the Treasury is very well and clearly aware of our concerns and the fact that we have to defend and protect those resources and those investments.
Does the Minister believe that the allocation of money by the Chancellor towards a compound semiconductor research and development centre in the Cardiff city region under Cardiff University will attract European funding, and could possibly lead to the establishment of the UK’s first semiconductor cluster?
I think this was very welcome. Also, I visited Cardiff University last year to see the development of the brain research imaging centre, which, of course, Julie Morgan will be very well aware of, and of course that was supported by Welsh Government and EU funds. But we’re also very engaged—officials in Welsh European Funding Office are very engaged—with Cardiff University about their institute for compound semiconductors, and that would support this emerging cluster. We’re also looking at ways in which we can see how the EU-funded SMART innovation could help support businesses in the cluster.
Minister, I’m sure you’ll welcome the announcement in November from the United Kingdom Government that they will publish a report at least 10 weeks before any referendum detailing the obligations and rights under European law arising from the United Kingdom membership of the European Union, and this would help to dispel certain myths and misunderstandings.
Well, of course we would. Not only is it welcome, it would have to be an obligation. But I think we have to ensure that we get the message over: what the impact of this could be as we move forward towards the referendum, because we’ve got to influence people before the referendum and make sure that they are fully aware of the impacts in terms of the referendum. It is vital that we do look at timescales and we also look at the significant operational implications in terms of potential UK exit and in terms of our European structural and investment funds.
Portffolio Gwasanaethau Cyhoeddus
9. Pa flaenoriaethau y rhoddodd y Gweinidog ystyriaeth iddynt wrth ddyrannu cyllid i’r portffolio gwasanaethau cyhoeddus? OAQ(4)0637(FIN)
The allocation for the public services portfolio was included in the draft budget ‘Fairer, Better Wales: Investing for the Future’, which I published on 8 December.
Independent analysis carried out for the Welsh Government shows that, when delivering health services to a population that is older than average, that should be taken into consideration when making allocations to that health authority—a point that has been acted upon by the health Minister. Would you agree with me that if that is true for health services, it’s also true for social services? What analysis are you carrying out for ensuring that allocations to the social services budget, most of which comes through the local government budget, reflect the need to deliver services for populations that are above average age, such as those in Powys?
This is important. Of course, we’ve already discussed this afternoon the role, in the development of the formula for funding in terms of local government, for social services—between Welsh Government and local government. Clearly, I think those particular issues in terms of health funding have been recognised over time, particularly in terms of rural health needs.
The Natural Resources Portfolio
10. Will the Minister make a statement on next year’s budget allocation to the natural resources portfolio? OAQ(4)0646(FIN)
Taking revenue and capital together, the natural resources MEG in 2016-17 will be £367 million. We have cushioned the impact of revenue reductions with a capital increase of £26 million.
In Wales, we have an extremely rich environment for harnessing wind, solar and hydro energy, which could help local authorities save money and indeed generate money for their local communities at a time when the Welsh Government budget is having to make difficult decisions for local government. On that basis, might you be able to consider some sort of targeted funding for local authorities, so that they see the opportunities for developing community energy and energy generated by local authorities as a business opportunity rather than a burden that they choose not to engage with?
We have, as a Government, as Jenny Rathbone is aware, been very supportive of local energy generation. The Minister for Natural Resources responded to this in his statement yesterday and in questions of this kind. We’ve provided technical support and targeted project development funding to local authorities over the past 10 years to develop local energy schemes.
As the body responsible for managing floods, it’s crucial that Natural Resources Wales get the resources that they need to carry out their functions effectively. But it does appear that NRW will face a cut of some 10 per cent in their revenue budget for next year. Can you tell us whether you believe that that is acceptable and what impact do you think that that will have on NRW’s ability to carry out its functions?
In the draft budget for next year, the MEG allocation for natural resources is £360 million, as I’ve said. This comprises £278 million revenue and £89 million capital. Taking that together, it will in fact be £9 million higher than the 2015-16 baseline of £357 million. We have cushioned, as I’ve said, the impact of revenue reductions with that capital increase of £26 million, which is very important to ensure that NRW is resilient and able to deliver on its objectives.
Sandy Mewies took the Chair.
Thank you, Minister.
[R] signifies the Member has declared an interest. [W] signifies that the question was tabled in Welsh.
Item 2 is questions to the Minister for Public Services, Leighton Andrews. Question 1 from Angela Burns.
Public Service Delivery (West Wales)
1. Will the Minister make a statement on public service delivery in west Wales? OAQ(4)0658(PS)
We set out our strategic reform agenda in ‘Devolution, Democracy and Delivery: Improving public services for people in Wales’.
Thank you, Minister. A number of my constituents have spoken to me about difficulties with waste collection and recycling. People, for example, use orange bags for recycling and black bags for general waste. Yet, it is extremely difficult to get hold of these orange bags, meaning that people cannot recycle as much as they’d like. Another example is that people wish to recycle by going to recycling plants, but they are often on a part-time basis, which means they have to travel further and use more of their fuel. In fact, it’s very difficult for those without cars who have to rely on public transport. Minister, I wonder what you could do to help solve this tension between the desire to promote constituents to be more sustainable and providing the means for them to practice this on a reliable basis.
The responsibility for waste and recycling, of course, lies with my colleague the Minister for Natural Resources. I’m very pleased that Wales has been highly successful in meeting recycling targets. We are first in the UK for recycling and indeed fourth in Europe. But, really, these are matters for the local authority in the area represented by the Member, and she should take these matters up directly with the relevant local authority.
Minister, it is county councils that provide most public services in west Wales. There are 17 counties in Wales facing a cut of some 2 per cent or less in the local government settlement. There are three counties, all rural, facing a cut of 3 per cent or more and Ceredigion is one of those. What is the factor within the formula that you believe has led to such a dramatic difference in these cuts between the three counties that I mentioned and the others, and are you willing to look at the proposal made by the WLGA to introduce a rural stability grant that will militate against the effects of those cuts for those counties that are facing cuts of 3 per cent or more?
The formula, of course, is agreed between Welsh Government and local government. Representatives of local government sit on the distribution sub-group. We review the formula on an annual basis. It is scrutinised by independent people on the basis of terms of reference agreed between local government and central Government. The factors within the formula that have a bearing on it are principally the issue of population numbers, sparsity and deprivation, of course, and those are the factors that bear most heavily on the formula.
I’ve not met a single local authority leader in Wales who believes the formula advantages their own authority. The reality is that some of the rural authorities, such as Powys, are funded per head on a much stronger basis than some of the urban authorities. So, I think, you know, the formula is complicated; we understand that. I think most in local government were expecting cuts of over 4 per cent, so the settlement that we came forward with, which is on average 1.4 per cent, has been generally well received by local government. We are currently out to consultation on the settlement, and we will look at the representations that come in during that consultation.
The Provisional Local Government Settlement for 2016-17
2. Will the Minister make a statement on the provisional local government settlement for 2016-17? OAQ(4)0657(PS)
I announced the provisional local government settlement for 2016-17 on 9 December. The settlement is now out for consultation and I will consider all responses before making my final determination in March.
Thank you for that answer, Minister, and I appreciate that the 1.4 per cent cut in the settlement for local government is a lot less than they were anticipating, and there are now going to be revisions to their proposals based upon the reduced cuts they now face. And Elin Jones has actually stolen my question in one sense, because I was going to ask the question: could you clarify that the settlement is based upon an agreed formula that seeks to address deprivation and inequality in our communities? And can you state what discussions took place with the WLGA on the formula prior to its use?
Yes. I’m grateful to my colleague the Member for Aberavon. The funding formula certainly distributes the available funding on the basis of relative need, and it makes use of a wide range of indicators of the demographic, social, economic and physical characteristics of authorities, including measures of deprivation and sparsity. Local government is fully involved in this process. We review the formula on annual basis, in consultation with local government through the distribution sub-group, whose members include representatives of local authorities, the WLGA and independent experts.
Acting Presiding Officer, I declare an interest as a member of Powys County Council. Minister, I have been contacted by the leader of Powys County Council who has raised a very serious concern about the proposed 4.1 per cent cut in the allocation of funding to the local authority. Now, concern has been expressed, of course, that there is no floor to provide a safety net to those councils that are adversely affected by the formula that, as we know, disproportionately affects rural councils. Will you provide a floor is my question, and, secondly, will you meet with me and a delegation from Powys County Council to discuss these concerns?
The leader of Powys County Council is perfectly able to make his representations clear through the consultation process that we are currently engaged in. I will repeat again that I made it clear at the time of the local government settlement that I did not intend to introduce a funding floor this year. The formula is agreed in consultation with local government. I’m not planning to review that. It seems to me that we’ve reached agreement with local government on the nature of the formula for this year.
Minister, you have stated quite clearly that you do not see merit in introducing a floor, but the fact is that, over the years, a floor has had to be introduced in various local government settlements to protect a variety of local councils over the years, and now we have the proposals by the Welsh Local Government Association for a rural stabilisation grant. Does that not indicate to you that there are issues around the nature of the funding formula? What discussions have you had with the Welsh Local Government Association about their proposals for a rural stabilisation grant? What discussions have you had with the finance Minister to have additional resources for your portfolio, so that you could respond positively to the Welsh Local Government Association’s proposals?
Well, I’ve had no conversations with the Welsh Local Government Association about their proposal. We are out to consultation on the provisional settlement at the present time. The reason there is no funding floor this year is because the funding settlement is better than many had feared. The overall cut is around 1.4 per cent across Wales. We’ve had funding floors in the past. We had a very severe reduction in local government spending last year. It was probably right to have a funding floor in place in that year. Can I remind the Member for Brecon and Radnorshire that Powys County Council is funded per head on a much stronger basis than most Valleys and urban authorities?
Questions Without Notice from Party Spokespeople
I now call the party spokespeople to question the Minister, and first this week is the Plaid Cymru spokesperson, Simon Thomas. I wonder, after asking their question, if people could be quiet and listen to the answers.
Thank you, acting Deputy Presiding Officer. Minister, when your Government reached a two-year budget deal with the Liberal Democrat group last year, did you expect it to include the local government settlement?
Well, I wasn’t involved in the detailed discussions with the Liberal Democrats, but what I will say to you is that we have a draft budget, we’re currently out to consultation on the provisional settlement, and I will make my decisions in respect of the final settlement on the basis of the representations that are made.
Well, Minister, I think that, when dealing with other parties, particularly the Liberal Democrats, you need to screw everything down. I think you should know that having been a member of the party. If you haven’t got agreement from the three opposition parties here, or one of the parties, about the local government settlement, I’m interested to know how you expect this draft settlement to be passed by the Assembly. It has serious implications for the rural authorities, as we’ve already heard, and for Pembrokeshire, Ceredigion and Powys in particular. It is important to note that the WLGA has commissioned Tony Travers already to re-look at the funding formula, but, in the meantime, precipitous cuts in funding are not conducive to a good budget and are not conducive to good service delivery. I’m sure you agree with that.
You’ll also be aware that, under the One Wales Government, when local government settlements were a little more generous, there was still a funding floor applied when they were inequitable. Now, you were Deputy Minister in that One Wales Government, you supported the funding floor at that stage when there were extremes of funding for some of the rural authorities. Why did you not introduce a floor this year, and did you not see it was necessary in order to gain support for your settlement?
Well, let’s be clear: funding floors should not be a permanent feature of the local government settlement. They should be there on a transient basis, and there should not be an expectation there will be a funding floor every year. In respect of the work done by Tony Travers for the WLGA, he is chairing an independent commission into the future of local government funding that goes beyond the formula, of course, and looks at the overall structure of funding. I’ve met him once already; I look forward to meeting him again. I have also established a finance futures group on behalf of the Welsh Government to look at the future of local government funding, and that is a much broader question than simply the formula, because it obviously includes issues such as non-domestic rates and other means of funding that are open to local authorities.
We are well aware of the policy of his party. His party wants to change the formula to move more resources to rural areas. They said that in their manifesto. The consequence of that, of course, will be that Valley and urban authorities lose out.
Well, it’s the Valley and urban authorities and the WLGA that are joining with the rural authorities to ask for rural stabilisation grants for this year. You’re absolutely right, Minister: the fact that we apply floors year in, year out does show that there’s something wrong with the funding formula, and that does need to be addressed, but there is a decision made and made urgently now. Local authorities have about three weeks before they start the statutory budget-making process. They cannot delay in that process waiting to see whether your Government will be able to smooth this deal through or not. Both the urban and rural authorities, together with the WLGA, have said, for this year—not addressing the whole formula issues, but for this year—that a rural stabilisation grant will smooth out those inequities in the process. Do you intend to accept that recommendation as part of the consultation process? And, if you do not, how do you expect to get this Assembly to agree your settlement?
Well, I don’t intend to determine my views on a consultation that has not yet finished. I will look at the representations that come in in the course of the consultation on the settlement.
The Welsh Conservatives’ spokesperson, Janet Finch-Saunders.
Thank you. Minister, Professor Colin Copus, director of the local governance research unit at De Montfort University, wrote recently that the larger local government becomes, the more the words ‘local’ and ‘government’ become redundant, as localism, community engagement and trust are lost, and larger bodies are often simply used as centralised public service delivery services. How do you respond to such criticism?
We have published our plans for local government reorganisation. We are currently out to consultation on the draft Bill, which I published in November. That includes, of course, a detailed regulatory impact assessment. It includes also a consultation on the map that we have published.
Thank you, Minister. The auditor general here in Wales has also voiced his fears that your merger plans have, quote,
‘affected…the ability of some councils to think beyond four or five-year horizons’,
while senior local authority staff have referred to the uncertainty of reorganisation as a huge distraction and a large cost, and singularly unhelpful in making sustainable services difficult to plan. Furthermore, the reduction by almost £0.5 million to the supporting collaboration and reform action in the draft budget does, by your own admission, have potential negative effects on the ability of our local service boards. Minister, how are you working with local authorities to address concerns that service provision may now suffer as a result of such a focus by yourself on your proposed merger model?
These are not my merger proposals—these are the Welsh Government’s proposals. Let’s be clear about that. The issue, I think, that we have to expect is that local government is always working in an atmosphere of uncertainty. And the key uncertainties facing local government at the present time are the uncertainties introduced by your Government’s austerity policies. They’ve set a climate within which they have to work that is very difficult. We have worked very closely with local government on the financial instability that is there at present. We held a joint seminar with the Welsh Local Government Association in November, which was well attended, and we looked at many different opportunities that were there for local government. We’ve published the KPMG study of the costs of administration in local government, which has found that local government, if operating to the standards of best practice across the whole of the UK, could be saving £151 million per year in terms of their administration costs. So, we work very closely with local government on the immediate and pressing priorities that they have.
Thank you, Minister. Now, as part of their 2016-17 settlement figures, local authorities in England have been given the opportunity to take up a four-year settlement to 2020, allowing funding stability and certainty to enable them to develop long-term, sustainable services and produce and support strategic collaboration with local partners. What consideration have you given to the calls of one of your leaders here in Wales—the leader of Wrexham council—only this week for the option of multi-year settlements here in Wales, and will you support that initiative?
I would very much welcome the opportunity to give local government greater certainty, with better overview of its future funding. The problem I have—and the problem the Welsh Government has—is that we do not have that certainty ourselves from the UK Government. So, we can look at planning ahead with local government; I hope that local government leaders will look very acutely at the way in which they plan to use their reserves over future years. But the potential for longer-term planning is not there while our settlements are not long term themselves.
Welsh Liberal Democrat spokesperson, Peter Black.
Thank you, Chair. Minister, in terms of the local government settlement, I think we’ve established that, last year, there was a floor, and this year there isn’t. Do you accept that, despite the very generous, and much more generous, local government settlement this year compared to last, the removal of the floor has, effectively, exacerbated and exaggerated the impact on rural authorities, because they no longer have that protection? So, as well as the formula working against them, the removal of the floor has also worked against them as well.
Well, as the Member knows, and as we discussed in committee this morning, if you have a floor in one year and you move to a year without the floor, then there is, effectively, through the formula, a catching-up exercise over two years in terms of the settlement that is then made, and that does produce a particular difficulty, I understand.
So, on that basis, could you explain why you didn’t consider, at the very least, a tapering mechanism to protect those rural authorities from that additional impact of removing the floor in addition to the formula?
Well, the view I took was very simply that you cannot go on having a floor in place, otherwise it becomes essentially a bolt-on to the settlement and that doesn’t seem to me to make sense. We’ve got to make a decision: is the funding floor there as a temporary, transitional arrangement, or is it meant to be a permanent part of the settlement? I don’t think it can be a permanent part of the settlement.
I accept, Minister, that there are issues with the formula and I accept also that—you know, you’re right, you can’t keep a floor in place permanently, but the issue really is a structural one around the nature of local government finance, not just about the formula itself, and that is what needs to be fixed in the long term. But, while we’re trying to fix that and while we’re trying to get to a position whereby local authorities maybe raise more of their money themselves as opposed to relying on central government, do you not accept that it would be right that there would be some form of stabilisation grant put in place to ensure that, at least where there are changes in finance for local government, there is a levelling out across authorities about the nature of that change, rather than some authorities having very small reductions and other authorities having very large reductions, and that it is right that Government looks at that and tries to find mechanisms to ensure that is in place until those structural problems can be put right?
In the abstract, I think the Member has a point. But I think there are some perverse incentives within the system. We have seen situations in the past, for example, where the existence of a floor has probably ensured that some local authorities have produced lower council tax increases than others simply because they knew they could rely on the floor to bring their financing up, and that itself is a penalty against those local authorities who do not have access to the funding floor. And that’s the trouble when you keep a floor in place for many years: you sometimes get a rather complacent attitude on the part of certain local council leaderships, where they avoid the necessary challenges they have in their authorities either to contain their spending or to look at what they’re expecting their local populations to contribute through the council tax. I am not prepared to allow that situation to continue.
Local Government Reorganisation
3. What public engagements has the Minister undertaken to explain the Welsh Government’s proposals for local government reorganisation? OAQ(4)0651(PS)
We ran an extensive public awareness campaign last year on our proposals for local government reform, and are now consulting publicly on the draft Local Government (Wales) Bill, which includes our proposals for local authority mergers, and I’ve held several public engagements with the Welsh Local Government Association.
Thank you, Minister, for that answer. Very often you get invited by Members from this Chamber to come out and meet residents and constituents in their regions or constituencies. When I go around the Vale of Glamorgan, for example, I find many, many people opposed to the reorganisation of local government. In particular, many Labour councillors and the leader of the Labour group and leader of the council there, Neil Moore, are opposed to it. I’ve yet to find out what the constituency Member’s view is on this. Would you come along with me, Minister, and engage in a public meeting to take these views on board first hand in the Vale of Glamorgan so that you can appreciate the sentiment behind why people want to retain the Vale of Glamorgan as a separate entity, because they’re very proud of their local area?
Can I say I’ve had many discussions with councillor Neil Moore, the leader of the Vale of Glamorgan council? I’m very pleased that we have a Labour administration in the Vale of Glamorgan and I know that if I was doing any public meetings on this subject in places like Barry I would be pointing out that the Conservatives want to take money away from places like Barry and move it to other parts of Wales.
Will the Minister confirm that the Welsh Government has asked Welsh councils not to make new long-term commitments in terms of expenditure and so on that could have an impact on the reorganisation of local government according to Labour’s plans? Of course, it’s the next Government and the next Assembly that will decide what sort of reorganisation should take place, if any. But isn’t such a request now, which actually ties the hands of authorities such as Anglesey, proof of the danger that this Government’s reform agenda and time table is impairing authorities’ ability to carry out their main function, namely to provide the best possible services now and in the future for their citizens?
Well, I don’t accept that, and let me explain to the Member why. The deadlines, the timetables, that we’ve published for our local government reform programme make it clear that we would not see the new authorities earlier than 2019, so people can plan with that basis of security. What we have done, of course, through the legislation put through this Assembly, is agree that we do not want to see local authorities embarking on long-term expenditure that would be nugatory or that would be inappropriate. And, of course, there are many local authorities already that are collaborating with others in order to provide a better service to their residents, and, indeed, to secure better value for money for their residents. And I would certainly encourage the leader of Anglesey to talk with the leader of Gwynedd and other authorities to see what can be done to provide better services for the people of Anglesey, and better value for money for the people of Anglesey.
Reorganise Welsh councils
4. Will the Minister make a statement on the Welsh Government’s plans to reorganise Welsh councils? OAQ(4)0648(PS)[R]
Our plans to reform Welsh councils are set out in the draft Local Government (Wales) Bill and accompanying documents, which were published for consultation in November.
Thank you for that answer, Minister. Can I also refer you to the Welsh auditor general’s comments about reorganisation, where he says that reorganisation is a distraction from service provision and has affected the ability of some councils to think beyond four- or five-year horizons? And he says that they need to think more long term. Can I ask you, Minister, given the confused message that the Welsh Government is sending out in terms of both improvement, and in terms of reorganisation, how are you addressing that particular confusion on the part of local councils in regard to your agenda?
I don’t think there’s any confusion about our local government programme, or about the need for service improvement. I think the auditor general is right to say that local authorities should not see local government reorganisation as a distraction from their duties to ensure service improvement at the present time.
Chair, can I also declare I’m a councillor—[Inaudible.]
Diolch, Ddirprwy Lywydd dros dro. Minister, last year, you established a workshop to consider the costs and benefits that could arise from local government reorganisation, and it was noted that an equalisation of council tax rates and school funding formulas must be recognised. Should these unwanted proposals go ahead, can you reassure my constituents that an equalisation formula should be introduced to minimise the impact of increased council tax payments on Pembrokeshire residents, given that at the moment, of course, Pembrokeshire residents enjoy the lowest council tax rates in Wales?
Can I say to the Member that we are consulting on the draft Local Government (Wales) Bill at the present time? We’ve published, alongside that, a very detailed regulatory impact assessment, which includes our overall costings. In all that documentation, he will find we’ve had a lot to say about a variety of things, including the issue of council tax harmonisation. I encourage him to read that and to make his representations through the consultation process.
The Serious Crime Act 2015
5. Will the Minister make a statement on the effect of section 76 of the Serious Crime Act 2015, which relates to domestic violence, on the provisions of the Violence Against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015? OAQ(4)0652(PS)
The Act complements the work we are already doing in Wales to improve the public service response to domestic abuse and other forms of gender-based violence and sexual violence. It brings a coherent approach to the devolved and non-devolved aspects of criminal justice.
Thank you for that, Minister. What measures will you introduce to ensure that there is co-ordination by public bodies of their public response and awareness-raising of safeguarding provisions that are now law in Wales under the Violence Against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015, and the provisions included in the Social Services and Well-being (Wales) Act 2014 that will be implemented on 1 April this year?
Yes, it’s obviously very important that there is close co-ordination between the implementation teams in the Department for Health and Social Services, and with my officials in the violence against women policy team, to look at the areas that could include overlap. One of those might be, for example, training, and the provision of information to support that training. We’re working with the Care Council for Wales, in fact, to ensure that the training programmes linked to the implementation of the Social Services and Well-being (Wales) Act 2014 and the Violence against Women Violence Against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 reflect one another. This also includes development of the social care workforce development partnership advice to encourage cross-referencing and alignment across local implementation of training.
Minister, the Serious Crime Act 2015 makes coercive or controlling domestic abuse a crime punishable by up to five years in prison, even if it stops short of physical violence. What plan does the Minister have to review the provision of Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 with regard to coercive and controlling behaviour?
We welcome the UK Government’s inclusion within the Serious Crime Act 2015 of a new coercive control offence related to domestic abuse. We supported the proposal and, indeed, we were consulted by the Home Office during its development to ensure that we were content that it reflected the interests of Wales. Obviously, we were looking at that at the very time that we were passing our own Act through this Assembly and are pleased that we have been able to move those two areas along together.
Flooding (Support for Local Authorities)
6. Will the Minister make a statement on the support available to local authorities in dealing with the impact of recent flooding? OAQ(4)0662(PS)[W]
Local authorities have a statutory duty to deal with emergencies such as flooding incidents and should plan accordingly. In response to the recent flooding, Welsh Ministers are making additional funding available to local authorities to deal with immediate repairs and maintenance resulting from these incidents.
Thank you very much. We’ve heard that it’s from the current budget of the Minister for Natural Resources that this £3.5 million will come. Can you confirm therefore, and you did make reference to this, how exactly that funding will be used and when discussions will commence with local authorities on the conditions in relation to making bids to the Government for this funding, from councils that have been affected?
Just to be clear, the Minister for Natural Resources announced £1 million of funding for emergency repairs and small-scale maintenance schemes, and the consequential funding from the Treasury provided a further £2.3 million. The First Minister asked that this be allocated to the natural resources department to provide further flood-risk funding to local authorities for immediate repairs and maintenance. Officials will be writing to all local authorities across the country, asking them to submit their applications for this funding and emergency works will be prioritised.
Minister, there is a scheme in Scotland where individuals or families can bid for a grant of £1,500, and affected businesses can make a bid for £3,000. Has your Government considered any similar scheme here? There are cases in Scotland where it’s not just the authorities that have suffered flooding problems that are eligible to bid for grants, but individual families living in other local authority areas. Have you considered such a scheme here?
The responsibility for flooding, of course, is with my colleague, the Minister for Natural Resources, and I suggest that the Member takes that issue up with him.
7. Will the Minister make a statement on the use of local authorities’ financial reserves? OAQ(4)0660(PS)
It is important that reserves are used strategically to support the necessary reforms required to ensure vital services are maintained and improved. We will act to prevent any irresponsible disposal of reserves.
Certainly, Minister, we would all agree that reserves do need to be used responsibly, but would you agree that keeping huge sums in reserve at a time when local government is under great financial pressure and facing the need to invest in capital projects and, in your own words, to prepare for rainy days, and, again in your words, it has been raining now for a year or two—? So, I’m sure that you would applaud Carmarthenshire council for their use of reserves in tackling the very problems that you yourself have raised.
Let me start by saying that I certainly think that councils need to use reserves prudently. I certainly think that reserves have a role in the transformation of services at the present time and, clearly, the current policies of austerity of the UK Government that we’re facing will require councils to look at the use of their reserves. However, having said all that, of course, it is essential that we do not see a situation where local authorities simply want to dispose of all of their reserves in advance of a local government reorganisation. So, I would suggest that council leaders who are intending to use their reserves are very careful with the language that they use.
Following on from that, Minister, I wondered, did you consider the level of reserves held by local authorities when determining the local government settlement?
Well, the formula is obviously what determines the local government settlement. I have given considerable guidance, however, on the use of reserves. Indeed, I’ve written to all councillors explaining to them how best to scrutinise the reserves that are held by their local authority. We’ve also published the amount of reserves that are held by local authorities on the Welsh Government’s website.
The Local Democracy and Boundary Commission for Wales
8. Will the Minister make a statement on the work of the Local Democracy and Boundary Commission for Wales? OAQ(4)0655(PS)
The Local Democracy and Boundary Commission for Wales’s role is to review local government areas and the electoral arrangements of principal areas in Wales.
Thank you. Minister, following the £130,000 that your Government spent on the largely ignored Williams commission, and, added to that, the cost to the taxpayer of over £434,000 last year for the Local Democracy and Boundary Commission for Wales, accusations of your Government wasting public money have been rife. Now, we’re talking over £0.5 million just on this alone. You’ve now stated that the nine completed electoral reviews, which you do not now intend to take forward, would only have been in effect anyway for three years. Given your long-proposed intention to centralise local government here in Wales, can you explain why you allowed this work to go ahead in the first place and also explain to this Chamber how you’ve allowed such a blatant waste of our hard-earned taxpayers’ money?
There are over 60 recommendations in the Williams commission review and they’ve all been acted on, I think, with the exception of two if I remember rightly. So, I consider that money to have been well spent. It has informed Government work not just in respect of local government reorganisation, but in respect of public service leadership and development across the piece. In respect of the specific reviews carried out by the local government boundary commission, let me say, we obviously need a local democracy and boundary commission for Wales, but it’s not the only work in which they’ve been involved. I considered that it was unwise to proceed with the proposals that have come forward, given our intention of fundamental local government reorganisation.
Local Government Reorganisation
Could I first of all declare an interest, as I’m a member of Caerphilly County Borough Council?
9. Will the Minister outline the impact of local government reorganisation on town and community councils? OAQ(4)0659(PS)
The proposals taken forward in the draft Local Government (Wales) Bill, published on 24 November, will strengthen the community and town council sector so that it has greater capacity and capability to take on responsibility for local facilities and services.
[Inaudible.]—words and we thank you for them, but we know from a recent independent review of community councils in Wales that a large percentage of councillors are co-opted or elected unopposed, rather than directly elected. In my opinion, there’s a danger that they’re not socially or economically a representative of the local population. What do you think can be done to make community councils more democratically accountable, and is paying them the answer?
Well, I share the views of the Member about the issues of co-option and, indeed, the difficulties of achieving diversity within the membership of town and community councils. We set out in the White Paper we published last February quite extensive thoughts on the future of town and community councils. It seems to me that we have a slightly patchy network of town and community councils across Wales. I would like to see them working more closely with principal local authorities and have better exchanges between them in terms of developing future support for their communities. We will be having a review of town and community councils, their boundaries and other factors by 2020, and I would be happy to hear from the Member on his views on their development.
Minister, you will be well aware that many of our town and community councils are so different, aren’t they, in terms of size and composition, even in terms of the responsibilities that they take on? Although you are looking forward to 2020, in the interim, are you minded to make any particular direction, particularly in terms of the precept?
No, I don’t think it’s for me to give a direction on the precept of town and community councils. The Member is absolutely right, of course, to say they vary in size, the largest town and community council being Barry at a size of around 45,000 and then we have some, I think, that are only in double figures in terms of their population size. I think it is difficult to generalise about them. Clearly, the fact that they can levy a precept is an advantage. It can help with the delivery of certain services, and some town and community councils are taking on a greater variety of services.
The Protection of Local Government Funding
10. Will the Minister make a statement on the protection of funding for local government in Wales by the Welsh Government over the course of this Assembly term? OAQ(4)0654(PS)
Yes. We have protected the funding for local government in Wales over the course of this Assembly term. This means that local government in Wales has not been subject to the level of cuts experienced by councils in England.
Thank you for that answer. Minister, as a consequence of the UK Government decision, since 2010-11, spending on local services in England has decreased by around 10 per cent in cash terms, while in Wales it’s increased by 2.5 per cent. What does this tell the people of Wales about the value the Welsh Labour Government place on public services, in a direct contrast to the Conservatives?
Well, my colleague the Member for Islwyn is absolutely right. It is true to say that spending on local government in England has decreased by around 10 per cent in cash terms. In Wales, it has increased by 2.5 per cent. We believe in local government in Wales. We continue to invest in local government in Wales during the life of this Assembly; that contrasts markedly with the situation in England. Of course, at the same time, council tax levels in Wales remain, on average, £158 lower than they are in England.
Minister, do you think that a council that is considering a 5 per cent council tax rise at the same time as revealing that it is having to return £1 million to Welsh Government that it was given for tackling poverty, because it was unable to spend it, deserves one of the lowest cuts to its RSG this year?
The funding formula delivers the settlement for local authorities. The issue that the Member identifies is an issue that she can take up locally with that authority.
Draft Local Government (Wales) Bill
11. Will the Minister make a statement on the draft Local Government (Wales) Bill? OAQ(4)0661(PS)
The Presiding Officer (Dame Rosemary Butler) took the Chair.
We’re currently consulting on the draft Local Government (Wales) Bill, which sets out our proposals for the reform of local government.
Thank you, Minister. The appointment of a public services staff commission under the draft Bill is a particularly important mechanism in the context of Westminster austerity budgets and the UK Government’s divisive Trade Union Bill. I’m very pleased that the Minister recognises these challenges. Would you agree with me that developing our public service workforce in partnership and in consultation with representative organisations should always be central to Government legislative agendas?
Yes, indeed. Obviously, we have established the public service staff commission initially on a non-statutory basis. This was a proposal that came from the trade unions. Obviously, we have a social partnership model of working here in Wales, through the workforce partnership council. I’m pleased that we’ve been able to discuss the future remit of the public service staff commission with that workforce partnership council, which will be the primary reference body for the public service staff commission. We work with the trade unions in Wales; we don’t seek to diminish their powers as the London Government does.
Minister, you’ve thankfully kicked your local government reorganisation plans into the long grass beyond the election. In fact, earlier, you distanced yourself from the draft local government Bill and said, ‘It’s not my Bill, it’s the Welsh Government’s Bill.’ Isn’t it a fact, Minister, we have no guarantee that this reorganisation will have the support to go through after the election? This was a flawed process from the start. You know it, everyone knows it. It’s no way to undertake a local government reorganisation, and you should back away fully from it now.
If that’s the Member’s contribution to the consultation on the Local Government (Wales) Bill, it won’t take me very long to read it. [Laughter.]
Y Llywydd / The Presiding Officer
Thank you, Minister.
Y Llywydd / The Presiding Officer
We now move to item 3, which is a motion to elect Members to committees. I call on a member of the Business Committee to move formally.
Motion NDM5921 Rosemary Butler
To propose that the National Assembly for Wales, in accordance with Standing Order 17.3:
(i) elects John Griffiths (Labour) as a member, and Chair, of the Standards of Conduct Committee;
(ii) elects Jeff Cuthbert (Labour) as an alternate member of the Standards of Conduct Committee for John Griffiths (Labour).
Y Llywydd / The Presiding Officer
Formally. The proposal is to agree the motion. Does anyone object? No. The motion is therefore agreed in accordance with Standing Order 12.36.
Motion agreed in accordance with Standing Order 12.36.
Y Llywydd / The Presiding Officer
We now come to item 4, which is a debate on the draft Wales Bill. The first motion is on the report by the Constitutional and Legislative Affairs Committee, and I call on the Chair of that committee, David Melding, to move the motion.
Motion NDM5911 David Melding
To propose that the National Assembly for Wales welcomes the report of the Constitutional and Legislative Affairs Committee on the draft Wales Bill.
Thank you, Presiding Officer. I move the motion. I’m very pleased indeed to start the series of debates that we will hold this afternoon on the draft Wales Bill.
The Secretary of State has stated that the draft Bill aims to provide a lasting settlement that will be a—now I quote—
‘stronger, clearer and fairer devolution settlement for Wales that will stand the test of time’.
This aim is ambitious and appropriate and is more expansive in its constitutional objectives than either the Government of Wales Act 1998 or GOWA 2006. Constitutional coherence requires that the powers of a government and the legislature to which it is accountable must be commensurate with its responsibilities. Otherwise, the essential energy of government is lost.
The Supreme Court grappled with this question in the Agricultural Sector (Wales) Bill, which the UK Government had referred to the Court, believing the Bill to fall outside the powers conferred on the Assembly. To achieve a reasonable match between devolved powers and responsibilities, the Supreme Court interpreted the range of powers invested in the Assembly broadly. So, the granting of a principal power—for example, each of the 20, soon to be 21, devolved fields—carries also the inferred grant of all adequate and appropriate means to execute them. In other words, Parliament, when passing GOWA 2006, intended the executive and legislative powers devolved to be exercised in a full and reasonable way.
Many welcomed the Supreme Court’s decision as a solution to the basic problem of Welsh governance, which had marked it out when compared to the Scottish settlement and that in Northern Ireland. Powers and responsibilities were, at last, reasonably matched. There was also a general consensus that a move to a reserved-powers model in Wales would be welcome because it could formalise, in statute, this position.
Indeed, the spirit of consensus is found in parts of the Bill and it is seen, for instance, in the internal organisation of the Assembly, which will now be a matter for us; the recognition of permanence, a very important constitutional principle; the additional powers we are to acquire; and also the power over elections.
Surely, after 18 years and three Acts dealing with Welsh governance, the people of Wales deserve a constitutional settlement stated clearly in statute. In presenting the UK Government’s proposals as a draft Bill, the Secretary of State has invited widespread discussion, albeit—I think it has to be said—within a tight timescale. He also stated to the Constitutional and Legislative Affairs Committee that the intention behind this approach was to identify improvements that could be made to the Bill. I quote him again:
‘I do expect the final piece of legislation that gets Royal Assent to be significantly different from the draft.’
This then has the potential to be a productive process and one that could leave a clear made-in-Wales stamp on the Bill.
If I now can move on to some of the substantial parts of the Bill. In his evidence to the committee, the Secretary of State outlined the approach taken to the list of reservations in the draft Bill. I quote him again:
‘The request that we put out to our colleagues in Whitehall was, ‘What is your interpretation of the current devolution boundary in your departmental areas given the existing legislation?’’
This approach appears, perhaps inadvertently, to have led us back to the status quo ante where powers and responsibilities are not properly matched. But perhaps this outcome is not that surprising, because Whitehall departments were asked to provide their own interpretation of the law and not to apply the ruling of the Supreme Court. Of course, Parliament—not, strictly speaking, the UK Government, but Parliament—has the right to respond to a Supreme Court ruling and set out a different direction in statute. Undoubtedly, it is their prerogative. Yet, to do this without securing a broad consensus is surely risky, and it invites the allegation that considered judicial reasoning designed to strengthen Welsh governance is being replaced by the preferences of a particular Government. Constitutions are not a matter for routine law, but rather require the long-term vision of statecraft. This is why consensus is such a key element in crafting constitutional law: only by lifting the matter above partisan politics can a settlement be secured.
I think that one of the design flaws in the draft Bill is the objective to make everything explicit relating to reservations, rather than allowing room for flexibility. Given the complex legal and administrative position of Wales and England, compared to Scotland or Northern Ireland, this approach regarding reservations is understandable, though ultimately debilitating. It is the very nature of the deep union between England and Wales that requires flexibility for Welsh governance to operate efficiently. The Supreme Court found this flexibility in the so-called silent areas that sometimes have to be called upon to allow the meaningful exercise of devolved functions. In its ruling on the Agricultural Sector (Wales) Bill, the Supreme Court stated:
‘This is not however a case in which the court has to turn to a dictionary in order to find out the meaning of an unfamiliar word. The problem is to decide what Parliament meant by the subject of “Agriculture”…’
It went on:
‘In this context, it is clear to us that agriculture cannot be intended to refer solely to the cultivation of the soil or the rearing of livestock, but should be understood in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry, as it is to that broader subject matter that legislative activity is directed.’
Many matters are silent because to make them explicit and reserved in legislation would have the practical effect of, at least on occasion, making principal powers inoperative or compromised. The Secretary of State himself seemed to recognise this when he pointed out to the committee the absurdity of reserving all silent matters when referring to hovercraft policy. In many federal states, this challenge is met by listing some powers as concurrent or shared to the extent that they can be used if limited to application in devolved areas, or where there is no wider public interest that demands action by central Government. Perhaps the point to be understood here is that no constitutional rules can deliver a perfect binary divide, and some system of exchange is always going to be required at the margin. The Secretary of State’s approach—to be fair—recognises this, which is why a system of consents would continue to operate. However, the current system of consents would be greatly expanded to meet the new constitutional position proposed by the UK Government, at least in draft. A better approach would be to base a reserved-powers model on the principle of subsidiarity. This would reserve those powers that are necessary to allow the UK Government to operate. Interestingly, when we ask the public what they want the UK Government to do and what they want us to do in this legislature, they give very clear and coherent answers. If a wider criteria is applied than that required for the UK Government to exercise the functions of central Government—a proper requirement, after all—we drift into the culture of a conferred-powers approach, albeit one dressed up as a reserved-powers settlement.
The awkwardness of basing devolved governance on a principle other than subsidiarity is demonstrated in the sheer quantity of reservations proposed in the draft Bill. They are numerous. Quite literally, they cannot be counted, although most who have attempted enumeration put the figure somewhere above 250. This is ominous. That some of the reservations contain certain exceptions—so, sending piecemeal some powers back to Wales—surely invites us to reach for Occam’s razor and simplify matters with a clear statement of subsidiarity. As things stand, the reservations run to 41 pages of the draft Bill, almost twice as many as in the Scotland Act. The meticulous drafting that has carved out so many reservations is undoubtedly a technical achievement, whatever we think of its practical consequences for the devolution settlement. But they do cause problems.
The landscape of Welsh governance narrows compared to the one provided by the Supreme Court’s judgment. The UK Government believes that this is to be welcomed because the border between central Government’s powers and devolved powers is clarified. And the UK Government points out that, where the competence of the Welsh Government needs to extend beyond this border so that devolved powers can be fully exercised, a system of ministerial consents will continue to operate as it does presently. But of course, the need for consent would increase, and this is surely a clear indication that the Assembly’s powers are set to reduce. By the Secretary of State’s calculation, four Assembly Acts would have required UK ministerial consent—that was 19 per cent of our output at the time the Secretary of State made that statement. It should be noted that the figure produced by the First Minister is much higher, at 76 per cent.
Unfortunately, the draft Bill does not follow practice in Scotland and Northern Ireland, where executive powers transferred to ministers match the devolved fields. The Welsh position will continue to be highly irregular from a constitutional standpoint, with executive powers over devolved fields being shared between UK Minsters and Welsh Ministers.
The draft Bill proposes a different way to deal with incidental or consequential changes to UK or England-and-Wales law to enforce Assembly legislation. Here, unlike over ministerial consents, the Scottish procedure is proposed, and on the face of it, this seems reasonable. Regrettably, things are not so straightforward, because the so-called necessity test is designed to preserve the single England-and-Wales jurisdiction and so ensure that modification to England-and-Wales law does not become too extensive, leading to what the Secretary of State has called ‘significant divergence’.
In Scotland, the necessity test—very rarely used, incidentally—is designed to prevent encroachment between two separate jurisdictions. Presently, the need to modify England-and-Wales law is regulated by a test of appropriateness, which seems suitable in a single jurisdiction operating in a much deeper legal and administrative union. The danger of shifting to a necessity test in our circumstances is that we would face the prospect of operating a narrower constitutional settlement, itself in narrow terms. Welsh governance would be slapped with a double whammy. How would the Assembly and Welsh Government operate when it could face legal challenge because its modifications to England-and-Wales law must be considered the least necessary to operate its devolved powers? Legal challenge or its threat could enervate government and remove the current scope the Assembly has in considering a range of legislative options based on their appropriateness.
The Welsh ship of governance would sail on turbulent and subjective seas. Judicial review could become, if not the norm, then far from the exception. Welsh legislation would be drafted in an atmosphere of profound uncertainty, which itself would curtail its scope and ambition. Taken to extremes, the very exercise of the legislative function could be compromised.
Presiding Officer, I’m not exactly in the vanguard when it comes to new technology, but even I Google, and I did Google ‘necessity test’ just to see what it came up with. It referred me to a case that came before the US Supreme Court—actually one of the most famous in its history, McCulloch v. Maryland—and it dealt with the principle of a necessity test. I will now quote a little bit from that judgment:
‘Where the law is not prohibited’—
they here mean in the constitution—
‘and is really calculated to affect any of the objects entrusted to government, to undertake here to inquire into the degree of necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.’
It was the chief justice, John Marshall, who delivered this judgment in 1819—197 years ago he looked at this issue of a necessity test. Incidentally, he invented the concept of judicial review.
These judgments of necessity are properly left to the legislature. Detailed judicial oversight of a legislature’s discretion should be rejected. Judicial review should be based on concepts such as reasonableness or appropriateness, not necessity. To date, of all the devolved administrations, Wales has been by far the Supreme Court’s best customer. This sorry patronage would continue if Welsh governance was based on such subjective sand.
The draft Bill, whilst containing welcome elements, is not yet in a fit state to command consensus. We believe that it should not proceed until it is significantly amended. One approach would be to pause proceedings and use the evidence gathered in scrutinising the draft Bill to prepare a consolidating Bill, in close collaboration with the key players—ourselves, the Assembly; the Welsh Government; legal practitioners; civic society; and, of course, the UK Parliament.
Should the UK Government proceed with the current timetable, the draft Bill needs to be amended so that the Bill introduced to Parliament contains the following: the removal of the necessity test or its replacement by a test based on appropriateness; a system for requiring Minister of the Crown consents that reflects the model of the Scotland Act 1998; a significant reduction in the number and extent of specific reservations and restrictions consistent with a mature, effective and accountable legislature that is to acquire income tax powers through the same Bill; a distinct jurisdiction in which Welsh Acts extend only to Wales—a distinct jurisdiction, note, in which Welsh Acts extend only to Wales, not a separate jurisdiction; a system in which Welsh Acts modify England-and-Wales law as appropriate for reasonable enforcement; and, finally, a clear commitment that a bilingual consolidation be carried out during the current Parliament.
I look forward to the comments that Members will now make.
Y Llywydd / The Presiding Officer
I call on the First Minister, Carwyn Jones.
Thank you, Llywydd. Can I thank David Melding for his contribution? I think it’s not going too far to say that his views and his knowledge on constitutional issues do command the respect of all in this Chamber. The way in which he put the motion before us this afternoon is an indication of his view, as he expressed explicitly in what he said, that this is a matter that should be beyond party politics and the focus should be rather on providing a lasting constitutional settlement for the people of Wales, and, indeed, the people of Britain.
The Bill in its current form is, to my mind, flawed in the sense that, first of all, it seeks to hold together a single jurisdiction of England and Wales and to prevent divergence in the law. That cuts across the 2011 referendum result where there was no suggestion that somehow there would be some kind of limit on the amount of law that the National Assembly could actually produce.
It also needs to be revisited for the multiple reasons that the Member has listed, mainly issues of reservations, the necessity test and, of course, the other issues that restrict the ability of the Assembly to operate, particularly, of course, with regard to Minister of the Crown consents.
Can I say that the Welsh Government welcomes this report? We do invite the Assembly, of course, to resolve, according to the motion on the order paper. We do agree with the committee’s concerns with the current draft of the Wales Bill. The report itself is an excellent piece of work, produced, as has already been stated, to a very tight timescale indeed.
In an earlier report last summer, the committee called for a Bill that enshrined the principles of subsidiarity, clarity, simplicity and workability. They are the right principles, and we agree with the committee that the Bill does not meet those principles. Nor does the Bill actually meet the Secretary of State’s own aspirations, which were for a stronger, clearer and fairer devolution settlement for Wales that will stand the test of time. The difficulty with the process has been that, from the very beginning, other departments in Whitehall were asked to offer their view of where the devolution boundary, rather than what the view of the Wales Office should be according to where that devolution boundary should lie. It shouldn’t come as a surprise, then, that many Whitehall departments have interpreted the devolution boundary in such a way that is more favourable to them than is the current case after the Agricultural Sector (Wales) Bill judgment. But the committee’s findings and the weight of evidence underpinning those findings must be taken seriously.
There are elements of the Bill, of course, that we welcome. We support the provisions that will enable the Assembly to become, in effect, a self-governing institution. It’s right that the Assembly should be able to decide on its own electoral system and procedures. I look forward to the day when this institution is called a Parliament, a Welsh Parliament, and that is something that I very much welcome as part of the Bill.
But we know that in other important respects, the draft Bill is not fit for purpose. It weakens Welsh devolution. It makes it hugely difficult for any Government of any party to understand what the boundaries of devolution are. It makes it difficult for any party to go into an election campaign safe in the knowledge that what it proposes in terms of legislation is actually possible to carry out. And that, of course, leaves a fundamental gap in our democracy when political parties are not able to do that.
We know it expands considerably the need to seek UK Ministers’ consent for Welsh Bills. It would increase complexity and the risk of legal challenge, and, most crucially, it would move us away from the will of the people of Wales as expressed democratically in the 2011 referendum.
Llywydd, I will, of course, address the subsequent motions; I understand that I’m able to address them individually. Of course, I’ll go into more detail with regard to some of the points that I have made, but could I, at this stage, very much support the motion that is before us now, which is to welcome the report, and to thank the committee itself and its Chair for providing us with such a thorough report that will form the basis of our debates this afternoon.
Y Llywydd / The Presiding Officer
I call the leader of the opposition, Andrew R.T. Davies.
Thank you, Presiding Officer. I welcome the opportunity to contribute in this critical and timely debate, which focuses on a piece of legislation that potentially could mark a historic moment for Wales.
The Constitutional and Legislative Affairs Committee’s scrutiny of the Bill is a key component of the pre-legislative scrutiny, and I look forward to the Secretary of State for Wales’s response to it. Welsh Conservative Members will support all six motions today.
In its current form, the legislation is not perfect, hence its draft form. CLAC are clear about that, the Conservative group have been clear about that and, indeed, the Secretary of State has been clear about that. However, whilst it is right to debate CLAC’s concerns in detail, we must also not lose sight of what the draft Wales Bill is, and primarily what it is seeking to achieve—a reserved-powers model for Wales. This is something that political parties across this Chamber have called for for many years. We know that Lord Richard of Ammanford called for this as early as 2004, and parties across this Chamber have advocated such a system for many years. It is now being delivered thanks to the Conservative Government in Westminster.
New powers for Welsh Ministers: the Bill will also give major new powers to the Welsh Government and Welsh Government Ministers, whether that be in relation to building regulations, marine licensing, conservation in the Welsh offshore region, or linked to the appointments on Ofcom’s board’s composition. These are powers that have been wanted to come to Wales for many years, and, again, the UK Government is delivering.
New powers for the National Assembly for Wales: vital new powers could also be on the way to the Assembly in terms of running its own affairs, including the powers over all elements of Assembly elections, and, indeed, the decision about the name of this institution. This is something that I have advocated for many years—the calling of the Assembly now to become the Welsh Parliament. And that decision will come to this Assembly once the Bill completes its passage.
The permanence of this place. Of course, it is also hugely significant that the draft Wales Bill is working to make the National Assembly for Wales and Welsh Ministers a permanent part of the UK constitutional arrangements. That is a statement I’m sure every single Member in this Chamber will warmly welcome.
So, whilst the changes that are going to be made via this Bill have much to be celebrated, there is a wider package to look at, and all this forms part of the wider package of what the UK Government is delivering for Wales. And we shouldn’t let this debate pass by without acknowledging the significance of that wider package, from the historic funding floor for Wales to the removal of the need for a referendum before introducing a Welsh rate of income tax. These are historic times for this place, for devolution and for Wales: a funding floor within the Holtham range, a truly financially accountable Welsh National Assembly and Welsh Ministers, something again I would hope we would all support. Speakers from the Conservative group will cover some of the other aspects of the CLAC recommendations and report in turn, but, as we discuss areas of contention, we must all remember that the Secretary of State has already made clear and said that the Bill that receives Royal Assent is likely to look markedly different from the one we are debating today.
We want to see the list of reservations come down from some 267, which is too many. We know that colleagues in Westminster agree with this. We are eager to see the replacement system sought in relation to the necessity testing and the Minister of the Crown consents. Again, we know that colleagues in Government in Westminster agree to finding solutions on this issue.
We continue to support the single jurisdiction for England and Wales. The scope and extent of Welsh law does not justify its own legal entity in the short to medium term. Equally, however, with the body of Welsh law growing and the exploration of a more balanced or distinct approach that attains its singularity of legal union that legislates for differences pertinent to Wales, it is the future in developing one that could come into its own being. And Welsh Government Ministers today speak out firmly in favour of consolidation. We shouldn’t also forget the plethora of Welsh Government legislation that would benefit from consolidation to improve accessibility and clarity. We know that this is something CLAC has spoken about elsewhere in its making laws inquiry. So, whilst future consolidation is a critical area of consideration, I would encourage that we do not take the risk of setting things into reverse momentum on the aspiration for the devolved settlement, discarding many of the hugely positive historic provisions that are within the Bill. Indeed, in evidence to the Welsh Affairs Select Committee, the Secretary of State has indicated that it is his belief that this will be the only piece of legislation in this Parliament to address constitutional arrangements around the devolution settlement.
To conclude, we know the draft Wales Bill is not perfect. Draft legislation rarely is. Members across this Chamber should embrace the willingness and eagerness of the Westminster Government to seek a consensus and deliver improvements. However, we must not lose sight of what this Bill is aiming to achieve: a historic, clear, lasting settlement, ensuring the permanence of this place, long-requested new powers, and a reserved-powers model. On this side of the Chamber, we look forward to working with the UK Government closely and constructively to deliver that for Wales.
Y Llywydd / The Presiding Officer
I now call on the leader of Plaid Cymru, Leanne Wood.
Diolch yn fawr iawn, Lywydd. I’m pleased to be able to contribute to this debate on the report of the Constitutional and Legislative Affairs Committee on the draft Wales Bill. I’d like to thank David Melding for his work as committee Chair and for his opening remarks to this debate. I’d also like to thank other committee members.
It’s clear that we have an authoritative and considered report before us this afternoon, and I’m confident that we can express a majority view of this National Assembly. We’ve previously debated this issue as a Chamber in response to a Plaid Cymru motion, and I’m pleased that today’s report comes to similar conclusions to that debate that we held back in October. But I would acknowledge that an Assembly committee report such as this has even greater authority and clarity in terms of the evidence from witnesses than a party political debate.
Llywydd, on 7 October, the majority in this Assembly supported the point made by Plaid Cymru that the creation of a Welsh legal jurisdiction would be the most effective and desirable legal framework to accompany the implementation of a reserved-powers model. The Assembly also chose to reject any form of a reserved-powers model that would unwittingly remove or constrain powers already exercised in this place. Further, the Assembly reiterated that it wanted to proceed with reserved powers, provided the legal basis could be correct.
Since the draft Wales Bill was first published, the Wales Office has shifted its tone. They’ve moved from talking about a furious reaction, and being surprised by that, to claiming that the criticism was coming from, ‘nationalist lawyers and academics’, to finally stating that they are now in listening mode. There is an acknowledgement from the Secretary of State that he could look again at the scope of reservations, and I know that he will be studying today’s debate and the evidence in the report on those wider issues. We can only hope that the report, and the evidence that it contains, is treated with respect, and the scrutiny work of this Assembly is treated with respect.
It’s already clear, at this stage, that the Secretary of State will not deliver a Bill that fulfils the recommendations of the Silk commission. We are, instead, going to proceed on the basis of the veto that was used against Silk during the St David’s Day process. In the view of Plaid Cymru, this is a political failure. It has made the Bill flawed in terms of reaching consensus and attracting wide support, which was one of the Wales Office’s main objectives when they first published this draft Bill.
There is also a legislative failure, in that it seems, for many of the witnesses, that this Bill simply won’t be legally effective. It won’t bring clarity, it won’t bring certainty and it will still be open to legal challenge—far more than the equivalent settlements for Scotland or for Northern Ireland. The reason we’re in this position is clear once you’ve read the report. The UK Government has conceded on reserved powers without realising that, to implement reserved powers, you need a jurisdiction, and you need to reform the regime for Crown consents. There’s a contradiction here that renders the Bill unworkable in its draft form, and that’s why we have suggested that we should reject the Bill through the LCM process unless significant changes are made. A better outcome would be to see the Bill radically improved and passed with the consent of this place, even if it falls short of what Plaid Cymru wants from the current process.
We in this Chamber need to speak with a majority voice on the future direction of our democracy with regard to this Bill. People in Wales are not fully engaged with constitutional issues, but I know from my own community that they expect the institutions of Wales to function correctly and coherently. People out there are not interested in the minute detail, but they want, and they expect, this Assembly to be an effective legislature with the freedom to make Welsh law. After all, that is what they voted for back in 2011. There is genuine interest out there in the laws that this Assembly has made so far, and what it might do in the future, and it’s our responsibility to improve the ability of this parliament of ours to work for Wales.
So, I welcome today’s report, and I look forward to further discussions with colleagues from all sides in this Chamber, so that we can hopefully get to the point where we are speaking with national unity as the scrutiny process carries on.
Y Llywydd / The Presiding Officer
I now call on the leader of the Welsh Liberal Democrats, Kirsty Williams.
Thank you very much, Presiding Officer. Could I begin by stating on behalf of my group how much we welcome the report by the Constitutional and Legislative Affairs Committee? I would like to thank the Chair, David Melding, members of that committee, and the clerking team, for being able to produce such a comprehensive and thorough piece of scrutiny in what is, indeed, a very short time frame. The quality of the analysis and discussion is first class, is excellent, and gives us, I believe, the strongest possible evidence to take to the Secretary of State, to deliver reforms and changes to the drafting as it currently stands.
Presiding Officer, in many ways, we are extremely privileged that this has fallen to our generation, the opportunity to fulfil the ambition of my party’s forefathers who’d dreamed of a parliament for Wales. As we move forward from the imperfect legislation of 1998 that created this institution, through to the fundamentally flawed legislation of 2006, which has partly got us into the mess that we currently find ourselves in, we do have yet another opportunity to move forward once again and to create that parliament for the people of Wales, to create a lasting settlement: a settlement that gives clarity, importantly, yes, as the First Minister said, to political parties and Governments that find themselves in this room, but, equally importantly, clarity to the people of Wales so that they can hold the people of this room to account for their actions or inactions; and, a settlement that no longer sees us second guessing in committee as to whether what we are proposing to do, or would like to do, will end up before the Supreme Court. The stated aim of the Secretary of State is one that I share—indeed, I think all of us here in this Chamber share—that clarity, that long-lasting and that ability to deliver for the people of Wales. But, my concern is, and my party’s concern is, that the Bill as currently drafted will not deliver on the Secretary of State’s own stated aims—ones that I agree with.
As described so eloquently by the Deputy Presiding Officer earlier in the debate problems are numerous and they are highly complex. Of course, as the leader of the Conservatives said, there are steps forward in this draft legislation that are to be welcomed and are not inconsiderable: the establishment of the permanence of this institution, the ability to control its own affairs and its elections, and, indeed, there are sections of public policy that we have long argued across this Chamber that should be the business of this institution that will, finally, be delivered.
I believe now, and my party believes, that we need this time and the open-mindedness, it seems, of the Secretary of State to address the current flaws and weaknesses in the draft Bill. These have been clearly explained in the report that is before the Chamber this afternoon: issues around ministerial consents, the necessity tests and the list of reservations that goes on and on and on, seemingly with little coherent rationale as to why some things will be devolved and why some things will be held in Parliament. For my party, it’s not just about simply reducing the number. The number itself is not important. What is important is the raft of powers that comes to this place being appropriate and coherent, and I do not see any coherence behind the list as currently drafted. Not only is it not coherent, it does not live up to the recommendations of both Silk reports: reports that received the unanimous backing of this institution.
Some would see this as a conspiracy, a deliberate attempt to denude this institution of powers or to stop Wales having control over its own destiny. I don’t see it as a conspiracy, but I do believe it arises out of a desire to emulate the drafting of Scottish legislation and trying to squeeze that into a system without really, truly recognising that without the separate body of Welsh law what that actually means in reality for us. We cannot simply take drafting for Scotland and place it into a Welsh context when we do not have the same issue around the legal jurisdiction. As the debate goes on, Presiding Officer, I and other colleagues will look at the individual problems that have been highlighted by the report. I hope that we can use this opportunity to explain coherently and clearly our concerns, but also the opportunities that this period of having draft legislation before us gives us to make the appropriate changes and to deliver a piece of legislation that will deliver for Wales. Thank you.
Y Llywydd / The Presiding Officer
I call on the Chair of the Constitutional and Legislative Affairs Committee, David Melding, to reply to the debate.
Thank you, Presiding Officer. Can I thank the First Minister and the other party leaders for the tone of their contributions, which were constructive, properly critical, but always seeking a way forward and a consensus? I think all of you made, in one way or another, the point that we need to act as an Assembly and have a proper role, and to lead us really, in terms of Welsh governance, to a better place.
The First Minister said that we need a settlement, and I think this has to be emphasised. This is the fourth attempt at getting to a settlement. Most people don’t change their cars as frequently as we’ve had fundamental constitutional Acts—the fourth in 18 years coming along, or whatever it is. So, we need to get it right, and principles like clarity and subsidiarity clearly need to be applied. That’s how we get rational coherent law. Can I thank the First Minister and the other leaders for what they said about the committee’s report? I think it does carry weight. That weight is because it’s unanimous, and all Members made such a vital contribution, and brought such insight to the report. Without that, it would not have been possible to have issued a report that would have what I hope will be the influence it needs to have to shape the draft Wales Bill.
We were magnificently supported by our secretariat, with their wide-ranging expertise and ability to channel our energies in the most productive way. I think they’re quite representative of the Commission staff, and it’s appropriate that we acknowledge their commitment. Without them, we certainly couldn’t do the job we do.
The First Minister also said that some parts are to be welcomed. It is, to use that Victorian image, the curate’s egg. It is good in parts, but, of course, it needs to be good in a coherent fashion as a statute, so that it can stand the test of time. Andrew R.T. Davies emphasised that it is a draft Bill and, therefore, we shouldn’t be surprised that it needs improvement, and we need to add and subtract from it, and I think that is a fair point. The test here is not what the draft looks like; it is what we end up with in terms of the Bill that’s introduced to Parliament and eventually enacted. He did say that the reserved-powers model is desirable. I think that does represent the consensus that’s been around for quite a long time now, and for him, and I have to say personally for me as well, that is encapsulated by the word ‘parliament’, which I would welcome. I note some people liked the more—. I was going to say, ‘liked the French approach of calling it an “Assembly”’, but I suppose we did borrow the word ‘parliament’ from the French in the first place, but it was such a long time ago that we’ve now appropriated it ourselves.
Leanne Wood, I must thank you for mentioning the quality of evidence that we received from a wide range of witnesses, and I think that has given the report great authority. We really have been able to build on the remarkable insight of some expert witnesses, who have devoted careers to public law and proper governance and improving parliamentary scrutiny and improving law-making. You did say that consensus is important; you made those points a little more sharply perhaps than the others, but that’s on the record, and it’s important that that’s heard. Underlying all this, I think, is your view that the Assembly’s view has to be respected, and really we do need to play our full part in this law-making process, and in shaping a coherent constitutional law for Welsh governance.
Kirsty Williams, I thought, started very poetically, saying how our generation is actually privileged to be dealing with these fundamental questions, and that is true. How many people—there are still 20-odd of us, I think, who are here from 1999—serve in an entirely new institution? It is a privilege, but it’s about time we got it all right, I think, and now’s the time. And I think that was the force of what you were saying. You said that there is a need for a rational approach and a principled approach, by which I think you’ve got to base these sort of wide-ranging statues that need to command support and need to work for decades on firm principles, and subsidiarity is by far the best principle on which to base this constitutional law in our committee’s view.
You also made the point that we need a made-in-Wales solution and not simply to look at what’s done in other jurisdictions such as Scotland, Northern Ireland or indeed in Westminster. There are some things that we could follow and usefully use, but we have to shape it in a way that is coherent for our pattern of government here in Wales. So, I thank all the leaders for their interesting, thoughtful and generous remarks and I look forward to the following debates that will now occur this afternoon. Thank you, Presiding Officer.
Y Llywydd / The Presiding Officer
The proposal is to welcome the report of the Constitutional and Legislative Affairs Committee on the draft Wales Bill. Does any Member object? No objections. Therefore the motion is agreed unanimously in accordance with Standing Order 12.36.
Motion agreed in accordance with Standing Order 12.36.
Y Llywydd / The Presiding Officer
Now, today’s debate on the draft Wales Bill is unprecedented. It is our way of presenting our collective view on the future powers and position of this Assembly to the people of Wales, the UK Parliament, and UK Government. By speaking today with one voice, the Assembly’s shown how important this issue is for the future of devolution. The next Wales Bill must leave the Assembly with a fuller, clearer and more workable set of powers to make decisions for the people of Wales. The recommendations of the Constitutional and Legislative Affairs Committee, and my own contributions as Presiding Officer on behalf of the Assembly, provide solutions to the UK Government that would improve the Bill significantly, and I hope that the UK Government will respond positively to them.
Y Llywydd / The Presiding Officer
We now move to the other motions on the agenda, and the next motion relates to consolidation of Welsh constitutional law during the current Parliament and I call on the Chair of the committee, David Melding, to move the motion. David Melding.
Motion NDM5912 David Melding
To propose that the National Assembly for Wales notes the Constitutional and Legislative Affairs Committee’s view that if the UK Government proceeds with the current timetable for the draft Wales Bill, it should commit to carrying out a bilingual consolidation of Welsh constitutional law during the current Parliament.
Presiding Officer, I move the motion. I’m sure the Assembly will be relieved to hear that, in the specific debates that now follow, I shall just make a brief introduction and then I will respond to the comments that Members make.
We believe that fundamental constitutional law is best developed as consolidated legislation, particularly as it aids accessibility for the citizen. We suggested in our report that the UK Government pause proceedings to prepare a consolidating Bill. However, if the UK Government continues with the current timetable for the draft Wales Bill, we believe it should commit to carrying out a bilingual consolidation of Welsh constitutional law during the current Parliament. We consider that this work could be achieved most effectively by working with Welsh Government and with the Law Commission. I look forward to the remarks that Members will now make.
Since becoming an Assembly Member, I’ve disagreed with the policy of this Welsh Government more than once, but the one thing that I’ve striven to do, mainly as the result of my membership of the Constitutional and Legislative Affairs Committee, is to try and see that our legislation, regardless of its policy content, is of the highest quality. The reputation of this Assembly as a primary legislature matters, not just for Wales, but also for other legislatures and Governments of the UK, which need to respect and understand the seriousness of our functions.
Obviously, I’m certainly no expert, and make no claims as to my ability to help achieve this aim, but it’s my firm belief that, if we are to help the people of Wales to understand the status of Welsh law in our constitution, then its quality is something that we need to be able to demonstrate and, to demonstrate it, then our law must be accessible.
I have stood before Welsh Ministers in the past and accused them of missing opportunities to make the best law that they can because they have failed to take opportunities to improve and consolidate law when they could have. The Historic Environment (Wales) Bill before us at the moment is a perfect example of that. While it’s true to say that a consolidating statute can go out of date virtually on the day it is made, a consolidating statute that restates and sometimes updates the legal position on a given matter is, for a considerable time, the best one-stop-shop for access to the law. So, I cannot let pass the argument that, on this occasion, it is the UK Government that has missed the opportunity to make the best and most accessible law it could have, because it has failed to consolidate law when it might. I simply remind Welsh Ministers, lest you are tempted, of course, to really wade in on this point, that we can still see the plank in your own eye on this.
That, of course, does not diminish the arguments for consolidation and the Secretary of State himself observes that the two main statutes developing devolution in Wales, quote, ‘have been proved not fit for purpose’. And I agree with him—not necessarily because the policy intent of those Acts was controversial, but because the quality of those statutes was not as high as it could’ve been.
The introduction of reservations dressed up as exceptions into a statute creating conferred powers and then leaving a crater of silence between them has proven, I think, a howler of the first order, and it has been left to the Supreme Court to state what the law actually is. While I know that some, perhaps, will think I’m heretical in saying this, I find it difficult that a Supreme Court statement of the law should be the last word on a settlement regarding devolution.
This is why, despite my firm preference for consolidation, I cannot subscribe to the idea of scrapping this draft Bill and starting again. We need a Bill sooner rather than later, because we need a restatement of the law by a legislature. While the draft list of reservations, the draft description of certain concepts like private law and criminal law, the justification for the draft necessity tests, and the scope of the draft consent provisions, threaten to take a restatement of the law too far the other way, we and the Secretary of State have an immediate and present opportunity to resolve those issues now to improve the draft enough to develop a publishable Bill that makes the current stage of devolution clear and certain, and which, incidentally, means that we do not lose the chance for the soonest devolution of the new powers that were listed by Andrew R.T. Davies in the previous debate.
Now, the draft, as it stands, does not create that clarity and certainty at the moment, but it still could. The Secretary of State has been quite open that he expects the Bill that he introduces to look quite different—unsurprising when what this legislation is supposed to achieve is so ambitious and, by its nature, complicated. One of the joys of draft Bills, I think, is that you get more than one go at getting it right. You get a good long run at consultation, as we’ve seen here, which is why I’m rather bemused at the Welsh Government’s rejection of a recommendation in another recent CLAC report, in which we suggested that more routine publication of draft Bills might be a good idea. Many of the arguments made today to CLAC and to the Welsh Affairs Select Committee must be heard by the Secretary of State and acted upon in order to make the eventual Bill reflect the current stage of devolution clearly and certainly.
But if there’s hope for this Bill, what of consolidation? One of the advantages of leaving consolidation until later in the parliamentary cycle is that time will tell. We have to recognise that the move from a conferred to a reserved model is no simple aim, even though it’s desired by all parties. Time will tell what the new Wales Act gets right and gets wrong and what might need some revision before consolidation. Later consolidation offers a chance to consult and draft provisions about bilingual UK legislation too, and that is something that the motion proposes. So, I invite Members to consider whether having that time to test the effect of legislation, rather than surmise what those effects might be prior to consolidation, may ultimately produce better consolidated law, better quality law. In which case, I hope the Secretary of State, who has not written off the idea of future consolidation, is happy enough to consider it to bid for time for that consolidation before the end of this Parliament.
I of course support the motion and I recognise the considerable work, and, I think, very impressive work, that has been done in the Bill, but I do have very, very considerable reservations about whether this Bill will be made fit for purpose. I certainly hope it is, but certainly no legislation is better than legislation at this stage, which, we’re told, is going to be the last legislation, if it is not effective and if it does not deliver what we actually want it to deliver. Bad legislation would be worse than no legislation, which is why my main comments are really relating to the timetable.
We were promised, I think, during the early debates on this—using, I think, David Melding’s analogy of how many times the car has actually been changed by legislation—a legislative Rolls Royce and we ended up with a legislative Reliant Robin or Robin Reliant. The legislation, perhaps to take another analogy from Morecambe and Wise, maybe has all the right bits in it, but not necessarily in the right order, and the question is whether it is really salvageable in the format that it is actually in.
The problem goes back, I think, to the way in which the draft Bill has actually been brought about and the lack of any real detailed and substantive engagement with Welsh Government and Welsh officials in the actual construction of a Bill that was based on a common set of ideas and principles as to what the legislation was about and what its aim was to achieve. If you want to get an understanding of the, I think, confusion and the contradictions that now appear within the Bill, you need only look at the Secretary of State for Wales’s evidence recently to the Welsh Affairs Committee in Westminster. Now, on the issue of a timetable, of course, that was raised in the Welsh Affairs Committee and, of course, what Stephen Crabb said then was:
‘I don’t think we are late. If we go back to the timetable that we had in mind, this process has been going on for a year or more already. We started this whole process in November last year, following the Scottish referendum and the work that the Smith Commission was doing’,
et cetera. So, basically, he’s saying that we’ve had plenty of time to do it, we’ve had plenty of time for discussion, and let’s just press on. That, to me, is exactly the wrong thing to do. What is far more important is the engagement and the—[Interruption.] Yes, I will.
I thank the Member for giving way. In actual fact, what the Secretary of State has said is that the draft Bill that we see before us now will not be the way that the Bill looks upon gaining Royal Assent, so I think you need to recognise that in your comments.
Well, I was actually quoting from the transcript of his evidence, which actually went on to say:
‘We had the St David’s Day process, the inter-party discussions leading up to March before the election, so there has already been a considerable amount of time.’
What I’m challenging is that, in actual fact, that was not the case, because, if you look at the correspondence between the Secretary of State for Wales and the Welsh Government, what you actually find is that everyone was almost kept blind as to what the content of the draft Bill was going to be until almost September or October. Certainly for those of us in this Chamber, the first sight we had of it, really, was in a couple of months. Now, I’d say that is not an acceptable way of proceeding, but it seems to me that it has contributed to a conflict of ideas and understanding of what this is actually about.
So, whereas I support the whole concept of potential consolidation, I very much take the point that this is the last-chance saloon for a piece of substantive legislation in this Westminster Parliament, which is why it is all the more important that we actually get it right. The position that I would take and the reservations that I would make are these: when we actually see the Bill itself—not the draft Bill, but the actual Bill that is presented, if it is not very, very substantively, if it is not fundamentally, changed to take on board the various representations that have been made, some of which we will be dealing with during the course of the additional motions that are coming on to, then it seems to me that we do have to actually call into question whether the Bill is actually fit for purpose. We won’t know until we actually reach that stage. But when we have the debate on some of the other items of the Bill, particularly the jurisdiction and the necessity test and so on, again, the evidence that was given by the Secretary of State for Wales shows, certainly in my opinion, either a lack of a grasp of what the key constitutional issues are—. Unless that is actually rectified and translated into a more effectively drafted Bill that actually has proper partnership and engagement with this Assembly and with the Welsh Government, then I would rather we hesitate to actually proceed with something that is not going to be workable and is going to be more damaging in the future.
Y Llywydd / The Presiding Officer
Yr Arglwydd / Lord Elis-Thomas
Thank you very much, Dame Presiding Officer, for the opportunity to contribute to this debate as a member of the Constitutional and Legislative Affairs Committee since October of last year. It has been a privilege to collaborate with other members of that committee, and that’s the first point that I want to make, and I want to congratulate not only my fellow members of the committee but also all of the parties in this Assembly on their ability to collaborate on constitutional issues. That demonstrates that we are a mature institution. In this case, I want to pay a particular tribute to the Dame Presiding Officer and her chief legal advisers for all of the work that they have done, not only in assisting us as a constitutional committee, but also their willingness through you, Dame Presiding Officer, to state very clearly the fundamental constitutional principles that should underpin all legislatures and all Parliamentary bodies.
Yr Arglwydd / Lord Elis-Thomas
I have to say—and I fear that I may have said this before in discussing these issues—that the experience of trying to question the Secretary of State was not as constructive as it should have been. I will be very careful not to take advantage of my position to criticise the Secretary of State in this place, because I have another place beyond Paddington station where I can also do so. I don’t want to waste too much of the Assembly’s time in discussing the evidence of the Secretary of State, but it does speak for itself. I do not blame him personally, but I do blame the fact that the Wales Office had failed to develop a constitutional understanding, which certainly existed during the period of the two predecessor Governments, in my experience. Certainly, when I was undertaking the role of Presiding Officer in this place, the discussions that I had with secretaries of state on how the constitution of Wales would operate through consecutive Government of Wales Acts were negotiations where I didn’t always agree, although I always agreed with Paul Murphy, because it is impossible to disagree with Paul Murphy. Those negotiations, and particularly perhaps with Lord Hain, as he is now—Peter Hain—when he was Secretary of State, on how the constitution could be developed, were discussions that were very constructive.
Yr Arglwydd / Lord Elis-Thomas
So, unfortunately, there has been a failure to understand what a constitution is, how important a constitution is, and that the Wales Acts and the Government of Wales Acts are not just another Parliamentary Act. These are the Acts that put forward the constitution of the country and our modus operandi here. Therefore, there are fundamental principles, which are missing, particularly the principles that you have set out most clearly, Dame Presiding Officer, in your criteria, namely a clear settlement, which is practical with no roll-back of Assembly competence.
Yr Arglwydd / Lord Elis-Thomas
The major weakness for me in terms of the draft Wales Bill is that it is so complex and confused. If we do believe in democracy, that there should be an opportunity for everyone who participates or is involved in the democratic process to understand what they are doing, that the words of the dear Raymond Williams about an ‘educated and participating democracy’ go together, and that democracy should be educated and participatory, then how can you participate in something that you do not understand?
Yr Arglwydd / Lord Elis-Thomas
This is a very fundamental issue. Whatever the opponents of the European Union say about the European Union, the constitutions and treaties of the European Union, as set out in legislation passed in Westminster, and as they are in all other member-state parliaments, are relatively clear as compared to the Government of Wales Acts, namely the Welsh constitution. Therefore, that is why I think that this particular motion that we are discussing here today on attempting to consolidate constitutional law is crucially important.
Yr Arglwydd / Lord Elis-Thomas
As is stated in a previous report of the Constitutional and Legislative Affairs Committee on law-making in Wales, and I quote,
Yr Arglwydd / Lord Elis-Thomas
‘Consolidation of law means taking an area of law that has fallen into disrepair as a result of layers of amendments and modification, and producing a single clean text, in accordance with best contemporary practice’.
Yr Arglwydd / Lord Elis-Thomas
If there is any example of a law that has fallen into disrepair, then I fear that our broken-down constitution here in Wales, perhaps, is the best example. As we know, the Law Commission has a specific responsibility in terms of consolidation, as part of its statutory function. Therefore, there is no excuse for this work not to be undertaken. There is no excuse that we couldn’t work with the Law Commission, and to commission them to assist in the work of consolidating this law. I have to say that I am of the opinion that the responses received from the Secretary of State as to why there was no consolidation were very confused in terms of their underpinning principles.
Yr Arglwydd / Lord Elis-Thomas
Therefore, I do have one constructive suggestion that we may wish to consider for the next Assembly, namely this: if we do have a Constitutional and Legislative Affairs Committee in the new Assembly, as I’m sure we will—certainly there will be something similar—then we should discuss with the Law Commission the extent to which we as an Assembly can get to grips with the work of trying to simplify, consolidate and bring clarity to our own constitution. That becomes even more important, of course, because the powers will come to us in order to manage our own affairs and to act on issues such as the electoral system and, of course, Assembly Member numbers and so on. As was stated earlier by the First Minister and the committee chair, when we do become autonomous in terms of our own constitution, as is appropriate, then having a clear constitution should be one of those main recommendations.
Yr Arglwydd / Lord Elis-Thomas
There is a need—as the committee report has stated previously, in terms of law-making in Wales—to use clear language in drafting, and also to draft bilingually. This is what gives me the greatest pride, because the Welsh Senedd is far more intelligent and far more clever than the Westminster Parliament, as we have developed this method of working bilingually. In that regard, we are more akin to the regional and federal parliaments in another very intelligent country, namely Canada, and to very many other nations within the European Union. But I don’t think that Westminster understands the meaning of bilingual drafting. In that sense, they perhaps don’t understand the way in which legal accuracy and linguistic accuracy develop as a result of having to think in two language simultaneously. There are clear recommendations made by the committee on having a long-term plan of increasing the number of Bills that are co-drafted and there are a number of important recommendations that have been made by the Counsel General and by lawyers for the Assembly Commission as to how that could work. Therefore, as we seek the consolidation of Welsh constitutional law, and for that to be done effectively and bilingually, within the current parliamentary term in Westminster, we know that they won’t do that, because they simply don’t understand the meaning of bilingual working. So, perhaps the challenge for us is to do that ourselves.
Could I begin by saying that we support wholeheartedly the motion before the Assembly today and the recommendation by the CLAC committee? What we do know is that good law is law that is easily understood by those people who are subject to that law. The danger of not proceeding with a consolidated piece of legislation is that it can be incredibly complex for people to understand the legislative basis on which this institution exists. You would be required to sit there with the original Act—the 2006 Act—and the new piece of legislation, if people were to have a proper understanding. So, our preference, certainly, as a party, is to use the opportunity to create a piece of consolidated legislation. The Welsh Government in this term, for instance, has seen the value of consolidated legislation in the social services Act, by trying to bring social care law under one umbrella, so that people, practitioners and those subject to the law are able to quite clearly see the legislative basis of the social care regime in Wales. Obviously, the committee report recognises that that might not be possible within the stated timeframes of the Secretary of State, so commitment to the consolidated process during the term of this Parliament is, I think, to be welcomed.
But I must say, Presiding Officer, the irony, to listen to Mick Antoniw’s contribution this afternoon about why no law would be better than bad law—Mick, I appreciate that you were not here in previous Assemblies where many of us had fundamental disagreements with the original legislation that was drafted in 1998, and certainly had massive reservations about the legislation that was drafted in 2006. But those of us who believe in the devolution project, who believe in the desire to create a Welsh Parliament, actually worked with those pieces of legislation because they moved us along the path. I think we’re in danger here—[Interruption.] Of course.
I don’t disagree, and I very much followed all those debates and what was going on with that particular legislation. But there’s a difference with legislation that doesn’t go as far, perhaps, as you want, or that you don’t think is as good as it could be, but is nevertheless moving you along, and the potential risk we have, if there is not radical change to this particular Bill, that what it will actually do is take us backwards. It will not only be more restrictive, but will create an even more adverse constitutional situation. Of course, I don’t want to see that situation, but of course I just raise it because it makes the point that, unless we have fundamental change, we have to really question where we’re going with the legislation in its current format.
Believe me, Mick, for those of us who had to stomach the possibility of a Secretary of State for Wales vetoing legislation, which was essentially what we had under the 2006 GOWA Act, that was a bitter pill to swallow. I think we’re in danger here of being held to ransom by both parties: a Secretary of State who says, ‘If you don’t do it now, that’s it—there are no further opportunities’, but also, I must say, Mick, by a Labour Party that might say, ‘It’s either our way or it’s the highway’. We have an opportunity here and we must use the opportunity here to work to take the devolution settlement forward. I for one will not vote for any piece of legislation—my party never would—that would hand powers away from this institution and back to Westminster. But we must use this opportunity, and not turn our face against it, at this time—but use this opportunity to take the settlement forward. Our preference would be for a consolidated Bill, but the committee does offer an alternative solution if that is not possible. I just think we need to be mindful on both sides not to be blackmailed and not to lose the opportunity.
Y Llywydd / The Presiding Officer
I call on the First Minister, Carwyn Jones.
Thank you, Llywydd. It’s worth reflecting first of all on the history of this Bill. I offered the Secretary of State the opportunity to work with him on drafting a Bill before last summer and during the course of the summer. That offer was not taken up. When I saw part of the draft Bill—I didn’t see all of it—I said to him at the time that this would not get support, and that it needed to be looked at once again. I said to him that, if it was going to be delayed, I’d support him in that. It was more important to get it right. He didn’t take up that offer, and now we find ourselves where we are now.
When I had discussions, when the Bill first appeared, with the leader of Plaid Cymru and the leader of the Liberal Democrats, I think they both thought I was exaggerating the problems in the Bill. But when they saw the Bill for themselves they could see that there were fundamental flaws in the Bill in terms of the devolution settlement.
The irony is that the devolution settlement that we have at the moment is wider than what’s actually in the Bill itself. I don’t want to be in a situation where the choice is what we have or the Bill as it is, because what we have now is wider. I’d rather have a Bill that actually takes devolution forward, and the Bill doesn’t do that at the moment.
The problem with the Bill, which will be exceptionally difficult to overcome unless there is a fundamental change to it, is that, at it’s very heart, it seeks to preserve the single jurisdiction of England and Wales. No reason is given for that, but that’s at its very heart. The practical consequence of that is this obsession that there must be minimal difference in the law between England and Wales. That’s fundamentally against what the devolution referendum result was in 2011, and it cuts fundamentally against, I think, what the Secretary of State himself wants. It’s very, very difficult for me to see at this moment in time how this current Bill can actually be made right, given the fact that it is so flawed at its heart. That is something that will need to be addressed. [Interruption.]
Y Llywydd / The Presiding Officer
Just on this point, I think the First Minister’s put his finger on a particular problem here—I think it’s the lack of attention from the Wales Office to addressing this, but it is curious that we have a referendum that has agreed this process and this path for this Assembly to take. We haven’t had a referendum on tax-varying powers, and I’m happy with that, but tax varying will set up a different tax jurisdiction in Wales, as compared to England, yet we’re not prepared to have the same to apply to the legal jurisdiction.
I agree. If I could, I’ll deal with the issue of the jurisdiction a little later on. But I deal with it now because it’s not simply a question of what the courts look like, it’s the fundamental heart of what the Bill looks like. That’s the difficulty that we face. I would urge the Secretary of State as well to take more ownership of the Bill. There have been occasions where he has sounded as if it is not his Bill. For example, he talked about street pedlars and traders and he said, ‘I was surprised to see that in the Bill’. It’s his Bill. He must give the impression that it is a Bill that’s drafted by him and not for him. That is something that I’d urge him to do.
In terms of the motion itself, consolidating legislation, well, we agree with the committee that clarity and accessibility of the law to citizens is paramount. In no context is this more important than the fundamentals of how Wales is to be governed. It’s important for the transparency and accessibility of our democratic institutions in Wales and for clarity on their role within the governance of the UK as a whole. Were this draft to become law, the fundamentals of Wales’s devolution settlement would be spread across four different Acts. If we are not to see consolidating legislation this time around, it’s got to come pretty soon in order to provide that clarity.
It’s already difficult for politicians, civil servants and lawyers to understand the complete picture—it would make it more complex. It is already complex for lawyers in Wales to understand which law applies and where to get that law from. This would actually translate that problem on to a UK level as well. So, it must be tackled—if not this time around, it must be tackled in the future. Silk 2, of course, called for a wider consolidation of Welsh legislation and that must surely include the constitution. There needs to be a consolidated document that sets out the constitution of Wales in a logical, coherent and accessible way. It’s challenging—I don’t pretend that it’s not. It’s challenging, but perfectly achievable, though it will take time. I would not want to see consolidating legislation be given preference to the need to strengthen Wales’s devolution settlement over the next year or two.
We know that detailed work has already been done by ourselves as a Welsh Government to improve the draft Bill. We’ve laid down some of the foundations for that consolidation. And of course it’s right to say that any consolidation should have equal status in Welsh and English. But there’s absolutely no doubt at all that there must be a body of law that sets out the Welsh constitution in one document. If that is not to happen this time around, it must happen soon. That’s why we support the motion that is before us at this present time and the committee’s views on that.
Y Llywydd / The Presiding Officer
I call on the Chair of the committee to reply to the debate—David Melding.
Presiding Officer, can I thank Members once again for their thoughtful remarks? They were quite wide-ranging, and that’s to be expected; we can’t necessarily compartmentalise all these arguments.
I thought Suzy Davies started absolutely in the right place—we need accessibility and people need to know where the law is and how they can access it. We need to apply this in our domestic law making and we’ve not always done that. That’s certainly the view of the committee and you’ve reiterated it there. Consolidation does serve the public interest quite profoundly. There’s a thicket in terms of the current statute book, which really makes it difficult, even for expert lawyers sometimes, to understand the law in its fullness in any particular area. You did then say that you don’t want to start all over again and then just sort of dump the current draft, I suppose, and not take it forward as amended. And I think other Members have hinted at that as well—that we do need to move forward, and the First Minister said in the next year or so. But, you know, consolidation could be conducted over the course of the next three or four years, and you could put a scheme of work in to do that, and that’s very much the tone at the heart of the approach we’ve taken in the report. You know, there are two ways we could go—we could sort of pause things and aim for a consolidation, or we could amend the current draft and then consolidate, but with a strict timetable attached to that.
Mick Antoniw asked the question: is the draft salvageable? And, indeed, this was a discussion we had in the committee. And we’ve come to the view that it could be amended. They’re very significant amendments—these are not minor modifications. They are significant, so I’m sure they’ll be taken in that spirit by all Members in their remarks. And it’s right that we state that clearly and give weight to it, because the current draft doesn’t command a consensus—quite clearly it doesn’t.
I think I’d say that what you said about—in many ways, the difficulties we are currently in are because we’ve not had enough of a made-in-Wales approach, and the First Minister said this as well in that he was disappointed that there wasn’t a fuller engagement between the Wales Office and the Welsh Government. And, really, if we need to get where we should go in terms of a draft that does command consensus and then can proceed through Parliament, then we have to get it right with a proper made-in-Wales approach. That is urgently needed.
Dafydd Elis-Thomas commended all the parties in broad terms on their record of working together constructively on Welsh governance in the Assembly, and I do think it’s a remarkable thing. You know, I go back to 1999; I came in as part of a group that did all it could, really, to stop the Assembly ever being established, so, you know, when I make remarks now to some people in my own party about, perhaps, how this draft needs to be fundamentally improved, I have to examine my own record on constitutional matters. If we go back far enough, then I blush, really, at some of the things I said before 1999. But it is true that the decisions, the profound decisions the people of Wales made in 1997 and then in 2011 in the referenda have been respected by all parties. That’s been the starting point, you know—know what you think now, and what the people said, and working with that decision, and that’s why I think we have this excellent record.
Can I thank you for the remarks you made about the Presiding Officer’s involvement in all this? It was perhaps remiss of me not to have done so, but, anyway, I’ll leave that for others to judge. And I think the correspondence that the Presiding Officer has entered into with the Secretary of State is key to everything, really, that needs to be done to improve the draft to make it one that can command a consensus.
I suppose if we went to see the same play we would give different reviews of that performance, and I must say I thought the Secretary of State performed quite well when he gave evidence, and I was pleased about how candid he was. He did say that Whitehall had driven this process largely in terms of reservations, and I thought that it was a surprising thing to have said as directly as that. And we did draw the key evidence we needed, I think, for our report, and his involvement, anyway, from what he said. So, I thought that exchange was a productive one. What he said about bilingual working and looking to other states that really get this right, like Canada and the way they work bilingually—I mean, that is so important and something we should cherish and need to take further.
Kirsty Williams—good law can be understood. Who can disagree with that? And the very complexity of a legal instrument is itself a sign of its deficiency, to a large extent. I think that’s absolutely right.
Then the First Minister, as I said earlier, talked about the difficulties pre legislation or pre the draft appearing, and I take that as a commitment to work very hard to put things right now, and that the resources of the Welsh Government will be brought into play to ensure we can get a draft that commands consensus. We can’t accept one that is going to reduce our powers. I mean, that is not going to command support in this Assembly; it simply won’t. And that message has to be clearly understood by all involved now.
I do agree with you that the issue of stopping divergences in law between England and Wales is a problem now because you can hardly have two legislatures and expect them not to pass their own laws on the matters that they’re competent to deal with. Divergence is inevitable. Otherwise, what on earth are those legislatures doing? Not very much, I suppose. Really, we’ve got to grasp these points and not hide away from the consequences.
When you said, ‘Consolidation, yes’, ‘not immediately’—I think is what you were saying—‘but soon’. And, obviously, that was one of the options that the Constitutional and Legislative Affairs Committee put in its report, and I note that. Can I again thank all Members? I urge you to support this motion
Y Llywydd / The Presiding Officer
The proposal is to agree the motion. Does any Member object? No objections. Therefore, the motion is carried unanimously in accordance with Standing Order 12.36.
Motion agreed in accordance with Standing Order 12.36.
Peter Black took the Chair.
The next motion relates to the necessity test, and I call on the Chair of the Constitutional and Legislative Affairs Committee, David Melding, to move the motion.
Motion NDM5913 David Melding
To propose that the National Assembly for Wales notes the Constitutional and Legislative Affairs Committee’s view that the draft Wales Bill should be amended to remove the necessity test or replace it with a test based on appropriateness.
Again, I move the motion, Chair.
As I indicated earlier in today’s debate, the necessity test is designed to preserve the single England-and-Wales jurisdiction and so ensure that modification to England-and-Wales law does not become too extensive, leading to significant divergence, as has already been referred to in the earlier motions. We believe that, in relation to legislation that applies otherwise than in relation to Wales, that modifies the law on reserved matters and that modifies private or criminal law, the Assembly should be allowed to legislate as it considers appropriate to achieve policy objectives in devolved areas. This isn’t a free-for-all. We can’t use this power to extend the limit of devolution as we wish, but we can use powers appropriately to make our devolved functions and powers effective, and that is simply what is behind this part of the debate we’re having.
Such an approach would make it clear that it is the Assembly rather than the courts that is responsible for determining the legislative choices to deliver specific policy objectives. It would also ensure that the Assembly retains its accountability to the electorate. In other words, we will have the profound characteristics that are needed for a full legislative body. Thank you.
I would like to thank David Melding for dealing with this part of the Bill in his opening statement, and I don’t believe that we need to add much to that, given that he dealt with it so ably at that point. But I think it is appropriate just to draw the Assembly’s attention to two specific matters related to the necessity test that is in the Bill as it stands.
First of all, as has just been restated by David Melding, this is a part of the Bill to ensure that Wales and England remain as part of a single jurisdiction. That path doesn’t have to be chosen. It’s the decision of the Westminster Government to maintain that single jurisdiction, and I note that the Conservative Party, even though they agree, I think, with the majority of the motions before us today, want to maintain that single jurisdiction, at present anyway. Accepting that—although that isn’t the position of Plaid Cymru—I think it is vitally important that any tests that take place within that regime are subject to political will, that is to parliamentary will and a vote by the electorate, because it is crucially important that these tests aren’t used in a way to hinder the opinion of the Senedd in Wales to legislate in a devolved area or a non-reserved area under the new regime. That’s the danger, of course, with having the necessity test as part of the Bill as it stands, and this will open the door to Ministers of the Crown in Westminster deciding whether it is appropriate or not for this place to legislate in an area that a referendum has decided, and Westminster legislation has decided, has been devolved to the Senedd.
I do not fear differences in law in England and Wales—I think that that follows as result of political decisions in both places. I’m of the opinion, and we’ll discuss this later, that a separate legal jurisdiction is an answer to this dilemma. But, because that’s not an option at present, it’s vitally important that this part of the Bill is amended in the way that the Constitutional and Legislative Affairs Committee suggests.
I note particularly the evidence from the Presiding Officer herself, from the First Minister and from Professor Thomas Glyn Watkin, who has been responsible, of course, for so much legislation in the past by the Welsh Government, and that they were all of the opinion that these tests will only open the door to more legislation in relation to decisions by the Assembly. It doesn’t simplify the process, and neither does it make it easier for us to legislate here. It certainly doesn’t make it easier for the ordinary person to comprehend and understand what their political options are as they vote, or how that will then lead to political decisions in the Assembly that will lead to different laws in England and Wales.
The only thing that I would want to ask the Chair of the committee to consider, in closing this debate, is what is proposed by the committee as an alternative solution to the necessity test, which is that that should be replaced by a test based on appropriateness. Even though I understand the concept, I’m also aware that a number of people have said, since the publication of the committee report, that that in itself has the same kinds of difficulties in terms of interpretation and in terms of the possibility that it could lead to additional court cases.
I don’t know whether the committee has had an opportunity to reconsider these issues following publication, but it’s very important that we as an Assembly today unite behind the report, and unite behind the suggestion of a better interpretation by the committee. If we don’t have a separate legal jurisdiction, the Bill will have to work within a single jurisdiction for England and Wales. That means that the necessity test as it stands in the draft Bill should be replaced.
I’m pleased to take part in this debate this afternoon, which specifically looks at the draft Wales Bill’s necessity tests, and we on this side of the Chamber will, of course, be supporting this motion today.
My understanding is that these new tests have been proposed as part of a wider set of tests to determine legislative competence, and there has been plenty of discussion on this particular issue, not only throughout the Constitutional and Legislative Affairs Committee’s inquiry, but in the wider public domain too. Of course, as we’ve heard from the Chair of the Constitutional and Legislative Affairs Committee, the committee is quite clear that the necessity test should either be removed or replaced by a test based on appropriateness. I’m pleased that the Secretary of State has also recently made his position quite clear and stated that he is willing to consider other alternatives. Therefore, I’ve no doubt that this matter will continue to be debated and considered throughout the draft Bill’s legislative process.
The UK Government’s rationale in looking to introduce these tests is that a no-greater-effect-than-necessary test would ensure that any modification by the Assembly to the general application of private and criminal law should have no greater effect than is necessary to give effect to the purpose of the provisions it seeks to enforce. Now, currently, under section 108(5) of the Government of Wales Act 2006, Assembly legislation is within competence if it provides for the enforcement of Assembly legislation or is otherwise appropriate for making such a provision effective. However, it’s clear from the evidence received by the Constitutional and Legislative Affairs Committee’s inquiry that introducing these tests would restrict the Assembly’s competence. So, should the Bill remain in its current form, there are, undoubtedly, a number of areas that would compromise the Assembly’s ability to legislate freely in devolved areas. These are, of course, how any changes to the law might affect England, the law on reserved matters and the general principles of private law and criminal law.
The underlying concern for many, including myself, is whether the necessity test would result in further legal challenges when legislation is introduced by the Assembly and, more widely, whether the test would reduce the Assembly’s legislative competence much more generally. The entire purpose of the draft Wales Bill is to create a lasting devolution settlement for Wales, and that’s why it’s so important that the result of this Bill is not to hinder or limit the Assembly’s role as a legislature.
I appreciate that the Secretary of State’s intention is to protect the unified legal system of England and Wales. However, to do this and to also provide the Assembly with the flexibility to modify the general principles of private law and criminal law proportionally would create real difficulties in practice. For example, in practice, what happens if, in the future, the Assembly and the UK Government and Parliament arrive at different conclusions as to what is deemed ‘necessary’? These are the types of questions that need to be considered throughout the passage of this Bill.
I appreciate that the necessity test has operated as part of the reserved-powers model in Scotland with no real problems, but, as the Chair of the Constitutional and Legislative Affairs Committee has already said this afternoon, it is very rarely used. My understanding is that the necessity test in Scotland doesn’t refer to criminal or private law as, of course, they have a separate jurisdiction and they also have a smaller number of reservations. In evidence to the Constitutional and Legislative Affairs Committee, Emyr Lewis highlighted this particular point, adding that, and I quote:
‘If you have a large number of reserved matters, the chances of being hit by the test become much greater. So, therefore, the greater the number of reserved matters, the greater the risk that you will fall foul of this test’.
Of course, here in Wales, a larger number of reserved matters is proposed, and so there is a real likelihood that more and more legislative proposals will not meet the criteria of this test.
Protecting the unified legal system of England and Wales also raises the issue of parity of treatment between the Assembly and the UK Parliament. Surely, if these necessity tests for the Assembly are for matters that apply only in Wales, then it is wholly appropriate that the same criteria are met in England for England-only matters. As the Member for Mid and West Wales said, Professor Thomas Glyn Watkin’s evidence to the committee’s inquiry was clear in that he said, and I quote:
‘The answer will undoubtedly be that the UK Parliament is a sovereign legislature and that its law-making cannot be so restricted. However, the answer is not a solution to the problem but an integral part of it. Does the UK Parliament even intend to impose a self-denying convention of similar import upon itself when legislating for England only?’
In other words: will Parliament apply necessity tests on itself when legislating for England-only matters? I highly doubt it.
So, where does that leave the Bill’s necessity tests? Well, clearly, there is firm evidence and room for considerable amendments to this part of the Bill. The Secretary of State has made it clear that one of the underlying principles behind the Bill is not to do anything that prevents Welsh Government or the Welsh Assembly from legislating freely in devolved areas. I wholeheartedly support the Secretary of State’s intention and I sincerely hope the UK Government take on board the conclusions made in the Constitutional and Legislative Affairs Committee report. Wales deserves a legislative structure for the future that provides clarity and substance and that does not lead to complexity and further legal dispute. Fortunately, this is not the end of the Bill’s legislative passage, and the Bill has a long way to go before it will be enacted. In the meantime, I hope that UK Government and the Welsh Government continue to engage on these matters and that all steps are taken to ensure that this Bill is as strong and robust as it can be. This Bill must deliver for the people of Wales, and that means ensuring that the Assembly’s legislative competence is not diminished. Acting Deputy Presiding Officer, we all know that the purpose of any legislature is to make laws and that governing parties are then accountable to the electorate for their policies. Let’s make sure that this Wales Bill fully supports that principle. Thank you.
I have a number of concerns about the way in which the whole concept of the necessity test has actually emerged, and I’m not actually confident that the Secretary of State has changed his opinion on that. I certainly hope that there is a significant change, because this is a fundamental flaw in this particular Bill. It is effectively a red line, it seems to me, in this legislation as well. In the recent evidence to the Welsh Affairs Committee, again, what the Secretary of State for Wales was saying is that effectively anything that may impact in any way on the underlying principles of England and Wales laws is to be opposed. This is where the whole issue of the necessity test then begins to merge into the whole concept of the single jurisdiction argument that has been developed. I think it is the fundamental flaw in the actual thinking of the Wales Office; it may not be the Secretary of State for Wales. I don’t want to criticise him individually, but it’s just that by reading the transcript you get some idea of the actual thinking of the Secretary of State for Wales, but not necessarily the Wales Office itself. Certainly, when he gave his evidence further on, having at one stage said, basically, that it would take you to a position where there should not be any need for any ministerial consents, and that Welsh Government should be able to legislate openly and freely even if that meant going across into areas that are devolved, those were his grounds for saying that therefore you can’t do it because it will intrude on the jurisdiction of England and Wales. That was the justification for that test.
There was also further confusion around this area when, of course, he was asked about his views on the Bill and he said, ‘I’ve yet to meet anybody who can explain to me why a draft Bill that gives more powers to Welsh Government and the Welsh Assembly is somehow also, at the same time, reducing competency. The two things do not make sense.’ But, for those of us who have actually been listening to the arguments and following the arguments, it actually makes perfect sense because we had the experience of the Agricultural Sector (Wales) Act 2014, where the courts very clearly understood that there may be a prime objective with legislation in a devolved area, but to make it effective you have to go into other areas of law, and as long as those are secondary, that is perfectly compatible. That made perfect sense and gave the flexibility that actually is needed. Of course, the necessity test and the problems over jurisdiction that have been identified are ones that actually do pull back on the competency of this Assembly, and the Bill as drafted would actually take away powers and be more restrictive in us being able to translate policy, where necessary, into legislation.
With regard to the appropriateness test, I have to say that my view is that the necessity test just needs to be taken out. It doesn’t need to be in legislation. You don’t need any other form of conditionality in it if the legislation is properly drafted. There was one Conservative MP who, when debating this, said that it would be appropriate for the Assembly to choose whether a law was appropriate, but that Whitehall would step in if it wasn’t. I think there are also problems with the appropriateness. I think there are also problems with the appropriateness test as well. It’s one of my past experiences. When you wanted legislation not to be effective, you’d all stick in a phrase such as, ‘as far as reasonably practicable’. That phrase has actually kept lawyers in employment for actual decades. It has kept the Court of Appeal and the Supreme Court working year after year, because what does it actually mean? What does ‘appropriate’ mean? What does ‘necessary’ mean? [Interruption.] Well, absolutely. Who actually decides it? [Interruption.] No, I was in the Court of Appeal myself on that very issue. But what does it actually mean, and who actually determines it?
What I was confident about with the evidence that the Secretary of State for Wales did give was that when he was actually pressed on this point he said, ‘At the moment, I’m more interested in looking at if there is any suitable alternative to the necessity test, but if it is the conclusion of the committee—the Welsh Affairs Committee—that we should knock it out altogether, then let me hear it’. I would much rather we have a very clear position: that our preferred position, quite clearly, is that we should knock it out altogether. It isn’t necessary. There’s no necessity of a necessity test, and the legislation would be a lot clearer without it.
I’d like to take this opportunity to say how privileged I feel to be taking part in this historic debate today. Also, I’d like to associate myself with the remarks of Kirsty Williams, my neighbour Lord Dafydd Elis-Thomas and others, in thanking David Melding for his chairing of the committee. My colleagues on the committee and the whole clerking team have worked so hard to bring forward the report that we have today.
Turning to the necessity tests themselves, they certainly raised some eyebrows here in Cardiff bay when the draft Bill was first published and have been pored over by aficionados of policy ever since. I’ll be frank: no-one has actually raised the issue with me in a surgery or on the No. 39 bus. It isn’t something that immediately sends blood rushing to the head. But what people do care about is that their Government and this National Assembly are delivering for them. They care about what is being done to support them and to improve their lives. That is why the necessity tests do concern me, as they seem to represent, as has been said around this Chamber already, a substantial roll-back in our capacity to deliver for our constituents. The necessity tests are a broad brush, creating—as we’ve heard—a limitation on Welsh legislation so as to avoid treading on the toes of Westminster. It appears that the Secretary of State was clear that the Bill has been shaped by the need to implement, and I quote,
‘a reserved powers model within the single legal jurisdiction of England and Wales.’
But I fear that that goal has been missed, and that the best option, going forward, is to create some form of distinct legal jurisdiction for Wales, which I have no doubt we will discuss at length later and on future occasions. There has been an attempt to create a clear line between Westminster and Cardiff, similar to what is the case in Scotland. But the problem is, as Emyr Lewis told us, that the test is very complex and it’s far broader than what actually happens in Scotland. Professor Thomas Glyn Watkin, in his evidence, claimed, and I quote again:
‘The reason, in my view, that there have been fewer problems in Scotland is that the number of reservations is far smaller, so the space left in which you can legislate is much greater.’
Paul Davies went on to develop that quote in his own contribution. More broadly, ‘necessity’ has a range of meanings, and there will be uncertainty until the first of many Supreme Court cases comes up on this issue. While the Secretary of State seeks clarity, I fear we will just end up back in the Supreme Court if this continues, making, as Mick Antoniw said, an effective job creation for the legal profession. We risk returning there for every law we pass, as people will simply argue that whatever sanctions we create are not necessary. As the Electoral Reform Society has also warned us in their evidence, in its strictest form, a policy could be seen as necessary only if there’s no other alternative policy available using other levers. Whether that policy would be viewed as inferior by the Welsh Government would be an immaterial issue. This does not allow for great scope in policy-making, is open to constant challenge, and sets obstacles to good, joined-up policy making. I believe that this Assembly should be able to legislate in the areas as we consider appropriate to achieve policy objectives in the devolved areas, which largely appear to be our current settlement under section 108(5) of the Government of Wales Act 2006, and it is only right, which provides, among other things, that Assembly legislation is within competence if it provides for the enforcement of Assembly legislation or it is otherwise appropriate for making Assembly legislation effective.
Yr Arglwydd / Lord Elis-Thomas
The important question on this issue of the necessity test in the Bill is: who asks the question, who sets the question, and who answers that question? This is like some sort of examination that’s been written by the examiner—there is only one answer, and it’s all in the examiner’s hands. Therefore, there is quite a simple solution to this, which is very clearly set out in our report as a committee, namely to run along with the powers that will come to us as Assembly, where we are responsible for our own organisation as an autonomous Assembly, and where we have responsibility for our own arrangements internally, responsibility for our own name—although that’s not such a problem for me; as David Melding will recall, I side with those in the French revolution who were members of the ‘assemblée nationale’, not those who were members of the ‘parlement’ with the king, but that is a historic issue.
Aelod Cynulliad / An Assembly Member
Yr Arglwydd / Lord Elis-Thomas
Thank you. I see that I do have some support from the direction of another former student of an excellent university in north Wales. But let’s get back to the issue. What’s important is that we will have responsibility for our own name, for the numbers of Assembly Members, for our internal arrangements—responsibility for our own constitution, if truth be told. Therefore, as part of that, the obvious thing to do is to say that it is the Assembly that should define what is necessary, and no-one else. That makes the situation entirely clear, and, if there are four tests, as there are here, in terms of necessity, then the Assembly should be able to legislate on those issues, adapt law on retained issues, modify private law and criminal law, and whatever else needs to be done in devolved areas. That is the simple solution, or, as has been suggested already by my colleague and friend, Mick Antoniw, we should actually omit it altogether.
I call on the First Minister, Carwyn Jones.
Thank you, acting Presiding Officer. Can I say at the outset that we agree with the committee when it says that the restrictions being imposed on the ability of the Assembly to modify criminal and private law run counter to the core functions of a legislature. I have to say, looking at where we are now, where almost literally there is nobody who supports the necessity test, we have to ask the question of why it was in the Bill to begin with. A lot of difficulty could have been avoided if there’d been early engagement and this wholly unnecessary necessity test had been removed from the Bill before it was even published.
At present, as we know, the Assembly can modify the law of contract, common law and other areas of private law and criminal law wherever those modifications relate to a devolved subject. That might include, for instance, simplifying how contracts work in, or creating a criminal offence where that’s appropriate to make Assembly legislation effective. But the draft Bill curtails this ability significantly. It is a red line. There’s no question about it. There’s a red line—my colleague Mick Antoniw is right—because it limits the Assembly’s powers in a wholly unacceptable way. It limits the Assembly’s powers to modify the private law to provisions that are, and I quote, either ‘necessary for a devolved purpose’ or ‘ancillary’ to another provision within competence.
‘Necessary for a devolved purpose’: it’s for the courts to decide what that might look like, and so we already are in the territory of the courts deciding what elected representatives should decide. It’s possible, for example, that a court might turn around and say, ‘Well, I’m sorry, but you could achieve this in another way; you don’t have to pass a law’. That’s not for the Supreme Court to tell an elected legislature, but they might come to that conclusion. They might say, ‘Well, actually, you don’t need to pass this law because there is a law going through Westminster that’s pretty similar, and you could just have Welsh clauses in that Westminster Bill, so you don’t need your own Bill; it’s not necessary’. These are the problems that a necessity test throws up.
But, on top of that restriction, there’s another one: any provisions modifying the civil or criminal law must pass a further test of necessity in respect of the general application of the private or criminal law—is it necessary when considering the general application of the private or criminal law? I have no idea what that means. That is an invitation to my former profession to make a lot of money. It is not clear, and the last thing we want is more lack of clarity in this Bill. There is a difference—and I listened carefully to what Paul Davies said—between the general principles of the law and the general application of the law. The general principles are the foundation of the law; the application is how those laws work in practice. I wouldn’t want to see a difference in the general principles of the law between England and Wales. I think common law principles should apply in both, as they do in Northern Ireland, as they do in the Australian jurisdictions, much of the USA, and the Crown dependencies. I understand that. But the general application—as soon as we start talking about that, we raise questions of whether, in fact, the Assembly should be able to change the law at all, except in very, very limited circumstances. That cuts across the 2011 referendum result. It also means, of course, that it makes it very difficult indeed for people in Wales to understand what the Assembly can do. William Powell is right: people aren’t talking about the Bill. People don’t talk about Wales’s constitutional framework. But they soon will when they find the Assembly can’t do things that they voted for, and that’s the issue that we must deal with.
So, we have here a recipe for complexity and endless legal challenge. We know that ‘necessity’ can mean different things in different contexts. It makes it very difficult to predict how the test will be interpreted by the courts. It’s like getting into a car and you don’t know at which point the brakes might fail, but you know they will at some point—because you’ve no idea what view the Supreme Court might take. You don’t know whether your Bill will be challenged, you don’t know whether the Bill will be clear, and you have no idea whether you can deliver a legislative programme. That is not in anyone’s interest, whether it’s any Member of this Assembly or indeed anybody who lives in Wales.
It’s also correct that decisions, if the Bill stays as it is, about how best to give effect to Welsh laws will actually shift from elected Members to judges. Is that really what we want? Because I don’t think it is. I don’t think that’s what the judges want either, and that is something that we need to avoid.
There is a necessity test in the Scotland Act, that’s true, but it’s in wholly different circumstances, in the context of a country with a wholly different legal system, wholly different principles underpinning that system, and, of course, where there is far greater devolution.
Now, picking up on the point that Mick Antoniw raised, I do know that the motion calls either for the removal of the necessity test or its replacement with a test based on appropriateness. Well, my preference would be to remove the test altogether. The issue of whether a law is appropriate is a matter for the elected Members of this institution and not for the courts. It’s for Members to decide whether a law is appropriate. True to say that, if there was an appropriateness test, it would be less rigorous than a necessity test, but the key point here is we’re talking about making legislation on devolved matters effective, and how to achieve that must ultimately be a matter for this institution, this Assembly—soon, hopefully, to be a Parliament—to decide.
Every test that a Welsh Bill needs to pass is another hurdle and another opportunity for challenge in the courts. The purpose of this Bill, it is said, is to avoid the court challenges of the last five years, not to encourage more of them. If it stays as it is, there will be far more challenges and it’s exceptionally important that we see this test disappear from the Bill.
I call on the Chair of the Constitutional and Legislative Affairs Committee to reply to the debate.
Thank you, Chair. I think we’ve heard a range of powerful contributions on this; we’re really getting to the heart of the matter. I’ll just refer to one or two points that Members raised, rather than respond in greater detail.
Simon Thomas asked, ‘Well, what’s “appropriateness”?’, and could that be used in a similar fashion if people were intending to restrict our powers. Appropriateness is a general concept and it doesn’t have the barriers that a necessity test would bring. We would still have to act appropriately and that is reasonable because, if we were, in our modifications to England-and-Wales law, not really focusing on achieving the objectives of a devolved policy, but just using it as a way of extending our competence via the back door, then it wouldn’t be right. So, we do need to behave appropriately, we do need to—. Our action needs to be directed against the range of devolved functions that we have, and have we acted appropriately, not ‘was that the best option for us to take or the one that was necessary and had the least disturbance, or whatever, in other areas?’ So, appropriateness is not a club to beat us with. It is a more general concept and one that is widely understood and used regularly, I think, when judicial review takes place, for instance.
Paul Davies said that the Secretary of State had stated that the draft Bill should allow for the full exercise of devolved powers, or the Bill that emerges out of the draft version should allow for the full exercise of devolved powers, and I also think that is the Secretary of State’s intent. But it’s also clear that, to meet that good intention now, some significant amendment will have to be made to the draft Bill.
Mick Antoniw said this was a fundamental flaw and I think that is a fair comment. I think we do arrive at a real problem about how a necessity test could operate in our constitutional circumstances, which are very different from the ones that prevail in Scotland, as the First Minister noted.
William Powell referred to the No. 39 bus and they don’t talk about these issues, and they shouldn’t. But they will talk if we can’t make the reforms to public services and improve the general state of law to allow effective delivery of public services or promotion of enterprise and culture—whatever it is—the range of responsibilities that we have. You said necessity has a range of meanings. It is subjective and that is a real danger, which is why lawyers have not traditionally—judges have not traditionally liked it. I suspect that lawyers, who get paid for their opinions, like it a bit more.
Dafydd Elis-Thomas—. You know, I could hear John Marshall, I think, saying ‘It is for an Assembly to determine what is necessary’, because we are the ones who scrutinise, we are the ones that have been elected, we are the legislature, but that doesn’t mean we can do anything we like; I mean, no legislature in a democratic system operates like that. There are limits and boundaries, but bringing a test of necessity on what a legislature wants to do—you don’t really have a coherent legislature at the end of that type of reasoning.
Then the First Minister made this point that the necessity test runs counter, really, to the essential function of a legislature. I completely agree. It is one of our red lines; how can it not be if we want to continue as a proper and full legislature? It would also be a recipe for complexity, and certainly would require an awful lot of judicial interpretation, which, obviously, would go against the whole reason, really, for approaching the draft Bill and trying to ensure that we have a full, proper and enduring settlement. I urge Members to support the motion.
Thank you. The proposal is to agree the motion. Does any Member object? The motion is therefore agreed in accordance with Standing Order 12.36.
Motion agreed in accordance with Standing Order 12.36.
The next motion relates Minister of the Crown consents and I call on the Chair of the Constitutional and Legislative Affairs Committee, David Melding, to move the motion.
Motion NDM5914 David Melding
To propose that the National Assembly for Wales notes the Constitutional and Legislative Affairs Committee’s view that the draft Wales Bill should be amended to include a system for requiring Minister of the Crown consents that reflects the model in the Scotland Act 1998.
I move the motion, Chair. The approach adopted in the draft Wales Bill in relation to the Minister of the Crown consents reduces the Assembly’s legislative competence. This is because the draft Bill requires such consents to be provided in connection with functions that are not currently required under the existing devolution settlement.
The Secretary of State’s comparison of the Assembly having to consent to UK Parliament legislation on devolved matters, with the requirement in the draft Bill for the UK Government Ministers to consent to certain Assembly legislation, is not a fair one. The convention of Parliament legislating on devolved matters is based on legislature-to-legislature consent. It is different from the Assembly as a legislature having to seek the consent of UK Government Ministers and executive to legislate in an area that is already devolved. If the UK Government Ministers refuse consent, it amounts to an executive overruling a legislature in an area that is already devolved, which is constitutionally unacceptable.
We believe this anomaly is easily remedied by replicating the approach adopted in the Scotland Act of transferring to the Welsh Ministers almost all Minister of the Crown functions in relation to devolved subjects. This would contribute greatly to improving the clarity, simplicity and workability of the devolved settlement, as well as being in line with the principle of subsidiarity. It would ensure that the Welsh Government’s legislative programme was not conditional on the consent of an executive in the form of UK Government Ministers. The approach we suggest would also fit with the Secretary of State’s underlying principle behind the draft Bill of not preventing the Assembly from legislating freely in devolved areas. I look forward to hearing the views of Members.
There is, sometimes, an unfortunate perception, in my opinion, that discussions of constitutional issues are a distraction from the bread-and-butter politics that directly affects the lives of the citizens we serve. But decisions on—to continue the metaphor—the production of bread and the distribution of butter take place within a constitutional context, and that context defines the choices open to us. I trust the Welsh public enough to believe that they appreciate this connection, and understand why we, on occasion, spend our time debating the intricacies of legislation about legislation and decisions about the way decisions are made. The following, I feel, is a good example of the real-world effects that a constitutional decision can have. I read the excellent report of the Constitutional and Legislative Affairs Committee with great interest and would speak to one passage in particular that relates to motion NDM5914. In paragraphs 100 to 108, the report quotes from Keith Bush QC on the limitations that the Bill as it currently stands would place on the powers of this Assembly. He notes that the provisions of the Bill extend protection beyond Ministers to include Government departments and other public authorities and removes the exception of the restriction that applies where provisions are incidental to, or consequential on, Acts of this Assembly. In other words, the current Bill would not just constrain our ability to legislate, but also limit the ability of the Welsh Government to take executive action.
As an example, having spent many interesting hours negotiating with David Jones, the former Secretary of State, on the inclusion of the police and safeguarding boards, I know how complex and time-consuming the current system can be. But, quite simply, a safeguarding board that doesn't include the police is no sort of safeguarding board at all, and I do not need to remind Members of the vital importance of these bodies in protecting the most vulnerable children and adults in Wales. And so we persevered. On the basis of this experience, I would share Keith Bush’s grave concerns regarding any change that would make this process even more difficult.
Keith Bush offers an alternative: that is, to replicate the provisions of section 53 of the Scotland Act 1998. This would mean that, with a handful of exceptions, the Welsh Government would be able to exercise executive functions on exactly the same matters as those on which it can legislate. Mr Bush feels that this is a more logical approach and, on first reading, I concur. I would, however, like to hear in more detail what this would mean in practice. Would this, for instance, allow the Welsh Government to take executive action relating to all England-and-Wales bodies to the extent that some of their functions are subject to Welsh legislation? If this is the case, would there be a need to amend the provisions of the Social Services and Well-Being (Wales) Act 2014 and other legislation that imposes an ongoing duty to seek consent from, or inform, Ministers of the Crown of the intention to take action in regard to bodies such as safeguarding boards?
For all the many faults of its drafting, this Bill does present an opportunity to increase consistency, simplicity and democratic accountability. I would also like to remind this Assembly, as the leader of the Liberal Democrats has already done, that the Social Services and Well-being Act is an example of successful and sensible bilingual consolidation of legislation. There is every reason why this piece of legislation must do the same on a constitutional scale and provide an enduring Wales Act. For those reasons, I wholeheartedly support this and the other recommendations of the committee and very much hope that our parliamentarians will heed.
The matter of Crown Minister consents goes to the heart of the process of legislating, and it takes us back to the first Act passed by this Assembly following the 2011 referendum, which was the Local Government Byelaws (Wales) Act 2012. It was a very strange situation to be in, after a successful referendum result, for this institution to see its first Act being challenged in the Supreme Court. The way that it is recommended that this process of Crown consent should work in terms of the areas that are reserved makes similar challenges more likely in future, especially because that list of areas that are reserved for Wales is, shall we say, unusually long as compared to the situation in Scotland or Northern Ireland.
As Keith Bush QC stated, in this draft Bill, what we have is a different proposal for dealing with Minister of the Crown consents as compared to the Government of Wales Act 2006. In truth, it talks about making the regime stricter than it was before the 2006 Act. It extends the consents beyond Ministers, to include public bodies. It gets rid of the restriction on pre-commencement functions and it also gets rid of the exception that already exists, and I quote:
‘incidental to, or consequential on, any other provision contained in the Act of the Assembly.’
It’s technical language, of course, but the argument that the people of Wales would identify with and understand is that this, very simply, is a step back in terms of the Assembly’s powers, depending on how and when they will be used and how the UK Ministers respond. In fact, Keith Bush QC then uses even stronger terms, when he states that this will give UK Ministers the power, in his words, to
‘interfere in the affairs of the Welsh legislature’.
The result, of course, is that the legislative programme of any Government here in Wales would be dependent on the consent of Ministers at the United Kingdom level. That makes no kind of sense, and it goes against the fundamental principles of devolution.
Plaid Cymru, therefore, would certainly commend the committee’s view that a system of requesting Crown consents should be introduced, which reflects the Scotland Act 1998. The regime in Scotland is clearer and it is simpler. The Secretary of State, as you will recall, has committed to look again at Crown consents if the committee feels strongly in regard to this issue. So, this debate today certainly does send that very clear message that the Secretary of State should be true to his word and that that should lead to change.
There is another point to make to conclude, which is that we here today are dependent on the comparison with Scotland to try to seek a better and clearer devolution system here in Wales. Equality with Scotland perhaps means something different to what it meant six months ago, but it should be a fundamental principle that Wales should not be treated less favourably that other devolved Governments and legislatures. The matter of Crown consent, of course, is not the only area where we should have similar arrangements to Scotland. To make this Bill work, we need to cut down on the number of areas that are reserved, and we have to see a Welsh legislature being established.
We know that the Conservative Government at the United Kingdom level is not willing to introduce that at present. That means, inevitably, that we will have to come back to this in future to try and strengthen the devolution arrangements again to try and catch up again with Scotland.
Wales, I think, has spoken with a strong and united voice on the proposals so far today, but the situation, I think, that we are facing reminds us, perhaps, that we need to raise our voices more and do that much earlier on in the process in future.
Thank you, acting Deputy Presiding Officer. This draft Bill initiates the move to a reserved-powers model of devolution—a restructuring recommended by the Silk commission and a recommendation that gained cross-party support in the Assembly. There was further cross-party acknowledgement of the proposals set out in the St David’s Day agreement and I welcome that there will be cross-party acknowledgement that this draft Bill implements the commitments made in that agreement.
The focal point of the consideration of the draft Bill proposal is the conferred-powers model of the Government of Wales Act 2006, to be replaced by a reserved-powers model. To some extent, it follows the pattern of the Scotland Act of 1998 and is a modified form of the Northern Ireland Act of 1998. It is clearly vital that all parties throughout Wales demonstrate that they clearly understand that we are in the consultation stage in the consideration of the structure and context of this draft Bill.
The Secretary of State for Wales has already acknowledged the criticism around the Minister of the Crown consents mechanism, stating that the United Kingdom Government would be happy to reassess the issue. But it should also be acknowledged that the Conservative United Kingdom Government policy in relation to all devolved institutions is that their power should be widened. In a clear example, the Secretary of State accepts that all views are valued on both sides of this question in forming opinions during the progression of this Bill.
I intend to quote, as two previous speakers, from Mr Keith Bush—it is worth while putting in context that he was a distinguished lawyer and a legislative counsel to the Welsh Government and then was the chief legal adviser to our own Assembly. He makes this comment:
‘Different aspects of law and government do not take place in water-tight compartments. The line between what is intended to be devolved and what is not can never be defined with total certainty. There will always be some potential for disagreement.’
But, clearly, it is essential that we keep that disagreement to a minimum.
The Secretary of State also highlighted for the first time every single Government department across Whitehall has been engaged in thinking about devolution in a structured, coherent way and in consideration of what responsibilities are reserved. The Secretary of State has questioned those conclusions and says the list has been worked through but accepts that there is probably quite a lot of scope for looking at it again and simplifying it.
The move to a reserved-powers model provides the opportunity for achieving the aim of matching devolved legislative competence and devolved executive functions. In notes in the comments from the Constitutional and Legislative Affairs Committee, we believe that a made-in-Wales approach, with joint working across UK Government departments and with the major players in Wales would help to restore the consensus and ensure a Bill that both Westminster and Wales could be satisfied with and that the Welsh Government’s programme for legislation—although I’m not sure it has demonstrated little vision towards enhancing the quality of life of people in Wales—is not conditional on the executive consent of UK Government Ministers.
It is also worth repeating, perhaps, Professor Richard Wyn Jones’s view that some of the political heat will be taken out of the debate once the Assembly elections have taken place in May of this year. The Welsh Conservatives believe that we must grasp the opportunity to engage in taking forward proposals that will produce a robust new devolution settlement that works for all the people of Wales. We need to build upon the Secretary of State’s commitment that the United Kingdom Government will seek the consent of the Assembly to legislate in devolved areas. Is it both right and fair that the Welsh Government should seek the consent of the United Kingdom Government to legislate for bodies it is responsible for? Furthermore, acting in a responsible manner, it is clearly appropriate to consult with UK Ministers, such as in the Ministry of Defence, because they are the largest landowner in Wales on issues affecting it, as we would consult with any other stakeholder, particularly in major manufacturing, on any proposed legislation to direct enhancements in their industries.
Now, it’s very rare that I would dare to take issue with my distinguished and esteemed colleague David Melding, but it was just on his touching on the curate’s egg. Members will recall this is, in fact, shall we say, a note by George du Maurier on true humility, published in a cartoon in ‘Punch’ in 1892? The bishop said to his curate, ‘I believe, Mr Jones, you have a bad egg’, and the reply was—and I quote it, hopefully, ‘I assure you, my Lord, parts of it are excellent.’ So, what we have, as our own Mr Jones has said—nobody would suggest that this Bill is a bad egg. I’m sure there are parts of it that are excellent.
In its current form, the draft Wales Bill does not allow an Assembly Act to remove or modify any function of a reserved authority which it has defined as a Minister of the Crown, Government department or other non-Welsh public authority. This would be unique to Wales, which, unlike Northern Ireland and Scotland does not have the level of devolved legislation and competence to match its devolved executive functions. A solution could be to replicate the Minister of the Crown consents as reflected in the Scotland Act 1998 and the Northern Ireland Act of the same year. These confer executive powers on Scottish and Northern Irish Ministers throughout areas of devolved legislation. The CLA committee notes this would improve the workability of the devolution settlement and ensure the Welsh Government’s ongoing programme of legislation was not conditional on that executive consent.
The Welsh Conservatives would support this position, because it fundamentally adds the required robustness to the legislation that it currently lacks. In accordance with that committee’s findings, it fits with the Welsh Secretary’s goals of the Bill ultimately allowing the Welsh Government to legislate without hindrance in all presently devolved areas. We will continue to work with the Wales Office in cementing a common definition of a reserved body and to assess the full scope of the Assembly’s legislative powers.
The history of devolution over the last two decades does not allow us a blank canvas to draft this Bill. However, the picture is not complete and we must all ensure that we offer a constructive comment and deliver a Bill that makes a lasting settlement to ensure the future requirements of the people of Wales, and for students of history, let us not be like the remarks upon the Habsburgs—the situation is desperate but not serious.
If the issue of the necessity test is, as currently drafted, a fundamental flaw in this legislation. I think that, combined with the proposals around ministerial consents, should be very worrying to all of us here in this Chamber. I believe it’s yet another example of where the actual drafting of the Bill, in its current form, does not fulfil the ambition of the Secretary of State himself. As has already been quoted by the Deputy Presiding Officer, the Secretary of State says his underlying principle in approaching this legislation is not to prevent the Assembly or the Welsh Government to legislate freely in devolved areas, yet the report states very clearly in paragraph 109 that, after the careful consideration of the evidence put forward to the committee, they were clear that
‘the cumulative effect of the approach being adopted in relation to the Minister of the Crown consents is to reduce the Assembly’s legislative competence.’
Nobody—nobody in this Chamber, surely, is content with that.
Now, I have heard in other places that this issue around gaining consent—and it is gaining consent, not simply consulting, like William Graham said that we would consult with the Ministry of Defence. It’s not about consulting the Westminster Government. This is about receiving consent. I’ve heard it said in some other conversations I’ve had, ‘Well, this is matter of fact’, ‘This happens on a daily basis’, ‘This is no big deal’, ‘These are easily achieved.’ So, I think the former Deputy Minister for social services is quite right to remind us of the history of the social services Bill where, for very many months, we were scrutinising that legislation, looking at that legislation, and being constantly told that there was a lack of clarity from the Welsh Government because consents could not be achieved from the Secretary of State for Wales regarding very important fundamental aspects of that legislation. That went on for months and months and months. So, this idea that, somehow, these ministerial consents are not an issue, are not problematic or are easily obtained, is not simply borne out by the experience that we have had over the last four years. Sometimes, I’ve also heard it said, ‘Well, we don’t need to worry because we now have a Secretary of State who is far more amenable to the issue of Welsh powers’, but we have to legislate for every eventuality. We have to legislate now for not just this Secretary of State, who may be amenable to those discussions, but we have to legislate for every Secretary of State, from whichever party, who may not take that attitude. We cannot rely on the goodwill of an individual. We have to legislate for our future and for this institution, and for the Welsh Government’s future. I think that is vitally important.
Now, the CLA committee offers us a way forward, which seems reasonable, although I would like to see further detail of how, in effect, that would work. I hope, once again, that in the spirit of wanting to use this pre-legislative process to achieve clarity and longevity, the Secretary of State will look very seriously at the proposition from the CLA committee. Thank you.
Yr Arglwydd / Lord Elis-Thomas
As we went through the process at committee of scrutinising the Bill and gathering evidence on it, what struck me was that there were fundamental constitutional principles that emerged, and that those were clear to us, as members of the committee, particularly as we considered the issues from one week to the next. They were very clear to our intelligent witnesses—I’m bound to mention the Rev Professor Thomas Watkin because he is a former professor of law at one of the eminent universities of Wales, which, of course, is in north Wales. But he was emphasising the fundamental constitutional principle that any move by another Government to limit the powers of this legislature is anti-democratic in a very fundamental way, and that was because this democracy is entirely based on, and indeed has been created by the desires and wishes of the people of Wales in two—well, three, if you count the one that was lost in 1979, referendums. Then, as that political will grew stronger, as it did in the previous referendum of 2011, that brought forward a more autonomous legislative regime to this place—and this is the fundamental principle—without having to request the consent of Ministers of the Crown in Westminster. Here we are, almost being dragged back to a very unhappy period of my professional life. Indeed, the First Minister, who I respect a great deal, and I almost came to quite a strong disagreement during that period, when we had to request consent from the Westminster Government to legislate. I am sure the First Minister will recall that situation. I was in a very unfortunate situation, where I didn’t have a vote here, and I had been bold enough to suggest to him, ‘Okay, I’ll go to Westminster, to my colleagues there’—of course, the dearly departed Richard Livsey in the forefront, as the Liberal Democrats have been on these questions over the years—’to try to prevent the Government from passing the Order’, because we didn’t agree with the role of the Secretary of State on the timing of that particular piece of legislation, and on the timing of the limited judicial powers that we had to be implemented. Well, now, once the 2011 referendum was agreed, I thought that those days had long gone, and that there would never again be a time when Ministers in Westminster could tell this legislature what to do. Therefore, these particular proposals are entirely contrary to the principle of subsidiarity and are entirely contrary to the democratic mandate principles of two referendums. Therefore, we must oppose them.
The points that I wanted to make have already been made.
In that case, I call the First Minister, Carwyn Jones.
That puts pressure on me, then, acting Presiding Officer. [Laughter.] Can I begin simply by saying that, at the very beginning of these debates, David Melding made reference to the different methods of calculation that the Secretary of State and I had made in terms of which Bills could have been passed during the course of this Assembly, freely and without the need for consent. Our estimate is that some 76 per cent of Bills could not have been passed freely through this Assembly because they would have needed an element of consent. The Secretary of State takes a different view. His view is that, even where consent was needed, it was given anyway, or would have been given, therefore that is not a restriction on the Assembly’s powers. I don’t accept that. Where there is a need for consent at all, particularly in devolved areas, that is a restriction on the Assembly’s powers. Again, this is an issue where there is, it seems, no support, particularly for the retention of Minister of the Crown powers in devolved areas. The question, again, I ask is: why was it in the Bill in the first place, if that was an issue?
We know that the draft Bill makes the current position worse by introducing new consent requirements. I had thought that Minister of the Crown consents would wither away over time. Now we see a Bill where they are going to be extended potentially in the future. That means that this Assembly will not be able to pass Bills freely in the way that it should, without having to wait for Minister of the Crown consent. It is not simply an issue of consent being denied, because that is a rarity. It’s the issue of consent being delayed, which then, of course, delays legislation going through this Assembly. It is not a question of the Secretary of State being able to give consent quickly. The Secretary of State has to consult around Whitehall and argue with Whitehall departments as to whether consent should be given. So, even if we have somebody who is amenable—and we have somebody who is more amenable than his predecessors at the moment—that doesn’t mean necessarily that that Secretary of State could give the consent anyway. So the reality is we are back where we started. It would be adding to a process that is cumbersome and bureaucratic, and it’s irreconcilable with the Secretary of State’s expressed desire for
‘A settlement that fosters cooperation not conflict between either end of the M4’—
that is a southern-centric view, I have to confess—and for
‘Welsh laws to be decided by the people of Wales and their elected representatives’.
That is not the case when Ministers of the Crown consents exist in areas that are devolved.
The second question is the existence of Minister of the Crown consents in areas that are not devolved. There is a point to be made here. I accept that some Whitehall consents will be needed where Assembly legislation affects reserved matters. But the model for that should be the model—it has already been said—that has been adopted in Scotland and Northern Ireland. There is no reason whatsoever to treat Wales differently in that regard, and I certainly hope that that is where we will be: that Wales will be in a position of equality with Scotland and Northern Ireland and there will be no more question of the UK Government having a role in determining whether this Assembly can pass legislation of its own free will in areas that are wholly devolved.
I call on the Chair of the Constitutional and Legislative Affairs Committee, David Melding, to reply to the debate.
Can I thank Members once again for their helpful, insightful contributions, starting with Gwenda Thomas, who has practical knowledge of how these systems operate? I thought you gave us a very vivid example around safeguarding boards, and whether they should include the police. That’s at the heart of all this because a comprehensive extension of the requirement for consent to UK public bodies would involve many repetitions, potentially, of that type of requirement and possibly frustration in terms of achieving a particular objective in a clearly devolved field. So, I do think that example was a very telling one.
Rhun ap Iorwerth did focus on the fact that the consent regime is extended in the draft Bill and becomes stricter, particularly, as I’ve already referred to, in its extension over UK public bodies. William Graham, in a charming contribution, if I may say, talked about the curate’s egg. Well, I suppose what it comes down to is: was the curate being polite to the bishop or fully truthful in terms of his evaluation of that particular culinary foodstuff? But he did say that the Secretary of State was prepared to look at this again, and I’d certainly welcome that. He made, I thought, a really important observation, which no-one else has mentioned today, that the general view of the UK Government has been that devolved institutions should be strengthened and they should receive fuller powers where possible. This is true in Northern Ireland. It’s certainly true in Scotland, with the Scotland Bill going through its final stages, I think, at the moment. Frankly, I think that’s what we expected that the move to a reserved-powers model would involve here in Wales. But it doesn’t seem to have happened, or been achieved in the draft. I do welcome what you said, that we need a made-in-Wales approach to restore the consensus. I think that is right.
Kirsty Williams amplified this by saying that this part of the Bill does not achieve the stated ambitions of the Secretary of State, and he should return to those ambitions. They were right. The approach was, initially, we thought, expansive and generous, and really looking at how a full settlement could be achieved. You raised the issue of how active consent would be. Is it just a super form of consultation? Would it be a big deal? Well, you know, if it’s not a solid requirement, why have it there? If it’s perfunctory, what’s its purpose? I think scrutiny is all about testing out these sorts of ideas.
Dafydd Elis-Thomas just stated the obvious constitutional principle: it’s not for an executive that is not accountable to this legislature to limit the use of our powers in devolved fields. It’s not appropriate, and that needs to be stated clearly. We do not want to go back to the LCO system of rather unhappy memory, although I suppose it was a bit of an advance in its day on what we had before. But perhaps that’s damning it with rather faint praise.
The First Minister said that, in his view, 76 per cent of Bills would have needed consent. The Secretary of State says that’s not really a fair figure because lots of the legislative output would have been consented to. But, you know, again, one comes to this question: if it’s so perfunctory, why is it a requirement? It’s at best a clumsy process. It’s the sort of legislative equivalent of a taxi journey from Cardiff bay to Pontypridd via Pembroke. I mean, why go through the trauma of that inefficiency and put into question the ultimate legislative destination? So, we should use the Scotland model. I think that should be a clear message and you can do that by supporting this motion.
The proposal is to agree the motion. Does any Member object? The motion is therefore agreed in accordance with Standing Order 12.36.
Motion agreed in accordance with Standing Order 12.36
The Presiding Officer took the Chair.
Y Llywydd / The Presiding Officer
The next motion relates to the reservations and restrictions and I call on the Chair of the committee, David Melding, to move the motion. David Melding.
Motion NDM5915 David Melding
To propose that the National Assembly for Wales notes the Constitutional and Legislative Affairs Committee’s view that the draft Wales Bill should be amended to reduce significantly the number and extent of specific reservations and restrictions consistent with a mature, effective and accountable legislature that is to acquire income tax powers.
Thank you, Presiding Officer. I move the motion. The list of reservations is clearly too long. Even the Secretary of State has acknowledged that. We, like many witnesses and consultees, expressed concern over the overall effect of the extensive number of reservations, which is to reduce the competence of the Assembly to make laws, which is the function of this legislature.
In our view, the extent of the reservations should develop from, and not reduce in any way, the competence provided in the 21 subject areas contained in Part 5 of Schedule 7 to the Government of Wales Act 2006. This would be consistent with the outcome of the 2011 referendum. In addition, the reservations should be based on clearly identified principles, the most important of which is that of subsidiarity, as the Presiding Officer has so eloquently emphasised. In our view, the absence of a principled approach has contributed to the excessive number and complexity of the reservations. I look forward to Members’ contributions.
David Melding has already alluded to the fact that there’s so many exceptions it really does undermine the credibility of the Bill. It seems to me that it’s a bit like a lawyers’ job creation scheme because it creates so many possibilities.
I particularly wanted to refer to the exclusions around the all-important issue of energy policy, not just the specifics, but the whole policy around energy generation and transmission, which is absolutely key to Wales’s future. Section 17 permits us to have planning consent for energy projects with a generating capacity of up to 350 MW, which is welcome, and this is in line with the Silk commission recommendation. But, it does mean that larger schemes of strategic importance would still be decided by the UK Government. The Silk commission based their recommendation on the Swansea tidal lagoon, which comes within the benchmark of the 350 MW, but it does mean that schemes like the Cardiff tidal lagoon, which is somewhere between 1,800 and 2,800 MW, would, under this proposal, in all likelihood be decided outside of Wales. The Royal Town Planning Institute wants the 350 MW threshold to be removed.
There’s an exhibition in the Oriel that some of you may have seen at lunch time that demonstrates just how amazing the Swansea lagoon is, not just as a piece of engineering, but also as a piece of landscaping, and as an amenity for people to enjoy, which is very much down to the imaginative way in which the landscaping has been devised. Because the decision on the planning aspect of it was decided in Whitehall, it was disaggregated from the landscaping and environmental aspects of it, which was unfortunate and I wouldn’t want that to happen in the case of the Cardiff one, because how it looks and how people can engage with it are really important to engage with public acceptance of such a large project. Therefore, it is crucial to be able to see those things as one.
So, the RPTI argued on two grounds that if all energy decisions are devolved, it promotes a comprehensive strategy around renewables and, as well, it would bring Wales into line with Scotland and Northern Ireland. I can see no reason for Wales to have less say on energy than the other two nations.
However, planning decisions around energy are just one thing. Strategic decisions about the generation, transmission, distribution and supply of electricity, which are specifically excluded under the draft Wales Bill, are a considerable concern to me.
The other exclusion that seems to make a mockery of our ability to seize our own destiny—economically and socially—is that energy conservation is also excluded, other than the encouragement of energy efficiency, otherwise than by prohibition or regulation. So, we’re not in a position, under this draft, to provide any financial incentives or penalties to get people to do the right thing, which means that it really does tie Wales’s hands. So, I think that is something that really needs looking at.
It also prevents the Welsh Government from prioritising community energy schemes getting access to the grid. We know that this has killed several community energy schemes stone dead, as the grid has asked for a connection fee that has been several times the value of the product’s construction costs. Ofcom, which came to see the environment committee today, said they cannot act on this without specific guidance from the Department of Energy and Climate Change. If that is not forthcoming, the reserved-powers model means that the UK Government policy would take precedent, whatever the will of the National Assembly, and I do not think that that is a matter that should be decided in London. It would be much more appropriately decided here in the National Assembly.
I have other concerns, particularly around food policy. The longer the UK Government fails to act on the regulation of non-food masquerading as food, which is poisoning our populations, the more I want the National Assembly to have the powers to act to protect our people, although I acknowledge that it would be more sensibly done across the UK.
But, to go back to the crucial issue for me of energy generation and transmission, the current system gives inordinate and dominant power to private monopolies, locks out new entrants, hampers our ability to deliver on cheaper, more reliable clean energy, deliver on our climate change obligations, as laid out in the Well-being of Future Generations (Wales) Act 2015, stifles innovation and enterprise, and prevents us developing one of our most promising assets—i.e. our natural resources—in support of a healthier, wealthier Wales. So, I do hope that the UK Parliament will think again on this, and that the UK Government will see sense.
Before I start to discuss the depth of the motion before us, I just wanted to also add how delighted I am to be here at what I think is a really crucial point in the development of Welsh society and our Welsh Parliament. Because the draft Wales Bill is part of a long journey that was started over a decade ago by Lord Richard of Ammanford; a journey on which Silk 2 was a vital staging post; a journey that’s seen political consensus and the collaboration of Welsh civic society; a journey with the purpose of enabling greater accountability to the people of Wales by the Government of the day; and a journey that’s resulted in the St David’s Day agreement, which seeks to create a settlement that will be fair, will be clear and will be durable. I am immensely proud that it is a Conservative Government in Westminster that recognised the need for the home nations, including Wales, to have the freedom to embrace devolution in their own ways, to reflect when and how their peoples want further devolution. It is a Conservative Government who understands that power without true accountability is an empty mandate. And it is a Conservative Government that has grasped the moment, that has understood that our time has come, and has delivered the draft Bill before us today. We are on a journey, and this is just part of it.
There is much to commend in the draft Bill, but there is still much that needs to be worked on, and the motion that I speak to today is one such area that needs further analysis and consensus by both administrations. I am grateful for the work done on identifying the extent of the work that is required by the Chair, the members and the team of the Constitutional and Legislative Affairs Committee.
The objective of moving to a reserved-powers model, as set out in the draft Bill, is to provide a clear separation of powers, obviously, between what is devolved and what is reserved. Of course, in the years that we’ve operated under a conferred model, we have sought to make law in accordance with the devolved areas of competency—a basis where the UK Parliament have ceded responsibility in key areas and where the National Assembly or the Welsh Government have either kept within those competencies or sought agreement to legislate from Westminster. A reserved-powers model turns the construct on its head and, in effect, says that we can legislate on anything that is not expressly reserved.
As it currently stands, the draft Bill posits an unworkable set of reservations, which, if continued, would frustrate the capability of the Assembly to legislate on behalf of the people in matters that affect just Wales. It has always been my view that the list of reservations proposed by section 3 and Schedules 7A and 7B were drafted by civil servants in Whitehall who were simultaneously trying to get to grips with the enormity of devolution and how the current models worked in different home nations. And they got some of it wrong. The process should not have started exclusively with civil servants based in Whitehall. It should have been a collaborative process from the start. The process and discussions of Silk 2 were not the equivalent of consulting either the Assembly or, indeed, the Government on what might have been included in the draft list. The way the list of reservations has been arrived at makes it very difficult for there to be scrutiny of the arguments civil servants put to themselves in deciding what should go onto the reserved list.
‘Reserved’ and ‘conferred’ are not matching negatives of one another, and, by moving to a reserved model, Whitehall needs to grapple with the notion that many of the silent subjects in the current conferred settlement have become reserved matters under the new Bill, and this is the nub of the problem. Currently, the National Assembly can legislate on these silent subjects, provided that the purpose of the legislation also relates fairly and realistically to a subject in Schedule 7 of the Government of Wales Act 2006, and a retraction of this capability would not further the devolution of legislative competencies. However, Whitehall seems to have taken the view that, if an area is silent, it hasn’t been devolved, and that is where the boundary has been drawn in this draft Bill. An example of a silent area that will be affected if there’s no change to the list of reservations is that of the compulsory purchase of land. Wholly reserving this area will cause difficulties across other devolved areas, such as education, health, highways and a range of local government functions. It is crucial that a reservation that can negatively affect existing competencies, including those that are so important to helping Wales along a path towards prosperity, are removed in the final Bill.
I was heartened by the evidence the Secretary of State gave to the Constitutional and Legislative Affairs Committee, and I noted that he not only felt that the list of reservations was too long and could create some element of complexity, but that he also expressed a willingness to try and not only reduce the number of reservations but to improve clarity over the reservations. Indeed, the Secretary of State went so far as to express surprise at some of the matters being reserved.
We are in the position of needing to move to the reserved-powers model in order to improve our accountability, and yet an unforeseen consequence has been that this large list of reservations narrows the scope of the National Assembly’s competence rather than broadens it. The reservations, as they stand, will hinder the development of policy, will impact on the coherence and unity of legislation and will, in my view, muddy the waters between legislatures. We would have to consider the effect of policy proposals on over 200 reserved matters rather than the effect on any one conferred area. Above all, the vast majority of people in Wales will not understand what the National Assembly is responsible for, what powers the Welsh Government has, and how they can hold all of us to account.
A number of organisations and individuals have expressed concern over the list of reservations. None of the political parties in the Assembly is comfortable with the proposals in the draft Bill, and the Secretary of State himself has concerns and has undertaken to rework the principles of the list given the further examination of the draft Bill. I do welcome this, and I would ask this Chamber to bear in mind that the purpose of a draft Bill is just this: to enable debate, to scour for problems, to test proposals, to flesh out ideas. I do sense a tetchiness that it has not come as a perfect Bill before us all, but no draft Bill ever is and it is up to us to make the case.
We are not at the end of our journey and I would urge the Secretary of State, I would urge the Welsh Government—and First Minister, you play a crucial role in this—and I would urge Whitehall, to cleave to the principles of the St David’s Day agreement and to create together a settlement that will be fair, that will be clear and will be durable. We must hold our nerve on this matter. The journey may not yet be over, but the destination is in sight. We shouldn’t just throw it all away because we are not happy with what we see before us. We must work together to change it to be the settlement that we want for Wales in the future.
I’d reiterate some of the comments that were made. You’re right: we’re not happy with the draft Bill, you’re not happy with the draft Bill, the Welsh Government isn’t happy with the draft Bill. Even the Secretary of State himself isn’t happy with his own Bill. Well, how on earth did we get to where we are today? There are serious questions that need to be answered, I think.
But I’ll start by endorsing, of course, the committee’s view that the draft Wales Bill should be amended to reduce significantly the number and extent of specific reservations. The issue of reservations, of course, is largely a political one. But it also affects, as we’ve heard, the coherence of the Bill and the effectiveness of the reserved-powers model. It’s also fair to recognise that the UK Government and the Wales Office do have a political view on how the Welsh constitution should develop, as we all do, rather than simply maybe having a legalistic view, which probably would have provided the clarity that many of us are looking for.
The current and previous UK Governments have both responded to external stimuli when making proposals for increased powers for Wales. The UK coalition Government held the Silk commission, which, of course, was directly dependent on the outcome of the 2011 powers referendum, according to the text of the coalition agreement between the Conservatives and the Liberal Democrats. The current UK Government also responded directly to the result of the 2014 Scottish independence referendum, both during the coalition period—with the Prime Minister claiming that Wales should be at the heart of the debate about the future of the union—and under the current Conservative majority Government, of course, with the Secretary of State for Wales stating that he would look at the Smith recommendations coming from Scotland and see whether they would be applied for Wales. But, of course, what we have here isn’t fulfilling Silk, let alone Smith.
As an example, there’s been a majority in this Assembly in favour of devolving policing since Labour changed its position on the matter during the latter part of 2011. The Silk commission, through a process of compromise, came up with a coherent set of recommendations that included criminal justice being unreserved over a phased period of time. Plaid Cymru would absolutely have compromised on that issue, but that, of course, has been lost because of the lowest-common-denominator approach adopted during the St David’s Day process.
The motion tabled in the name of David Melding also notes, of course, that we have the prospect of acquiring income tax powers as a mature, effective and accountable legislature. It would be a very strange situation if our policy powers don’t match the maturity being offered on financial powers. It would be very reminiscent, of course, of the half-way houses and messy compromises that we’ve endured here since 1999—half-way houses, which, by the way, have never worked, I’m sure we would all agree.
The specific reservations in the Bill are therefore a product of a flawed process and we only have to look at a lot of the evidence presented to the committee to underline numerous concerns that have been highlighted time and time again in this debate. There is no coherent view in the Bill of what powers Wales should have as a mature, devolved nation. We’re even hearing people talking about devolving powers to Wales here and there in a piecemeal fashion. We have the possibility of sport safety and on hovercrafts being proposed recently.
So, the time has come now, I think, for us to turn the debate on its head. The debate should always be about what should be reserved and not about what should be devolved. There is a key example in energy, of course, which has already been referred to, under the 350 MW limit consent for the Swansea bay tidal lagoon, which would not be reserved. But consenting, of course, for the other proposed lagoons around the Welsh coastline would be reserved. That is not coherent.
The obvious way forward on reservations would not necessarily be replicating Plaid Cymru’s demands—we accept that. There is always a question, of course, of a political mandate, But the way forward would be consensus through, as we’ve already had, an independent commission or direct negotiation between Welsh and UK Governments, with the Welsh Government, of course, representing the majority opinion of this Assembly.
So we should now change the terms of debate and challenge the UK Government to justify what should be reserved to Westminster. A smaller list of reservations means more clarity, less complexity and less scope for legal challenge. It also means less narrowing of the Assembly’s powers due to necessity tests or whatever replaces them. There is no way that a list of reservations as long and complex as the draft Bill can work in practice, and we need to see it cut down to something much more similar to Scotland’s. If we really want a more sustainable settlement, then cut it down to a level that represents parity with that nation.
I very much support the Constitutional and Legislative Affairs Committee’s view that we need to significantly reduce the number, and, indeed, the extent, of specific reservations and restrictions, consistent with the mature, effective and accountable legislature about to get income tax powers. I agree with that, Llywydd, because reducing these limitations on our powers is an important aspect of the changes required, and also because it acknowledges the context of the devolution journey in Wales, which a number of Assembly Members have already referred to, and I do believe it’s worth reflecting on that history.
One reasoned response to historian Gwyn Alf Williams’s question, ‘When was Wales?’, is ‘since 1999’. Because, before the Assembly, Wales had little opportunity to shape its own destiny here in Wales. So, 1999 was a huge step forward, but also, of course, a great challenge: to set up a devolved assembly and government with little in the way of existing foundations: no separate education system, legal system, substantial civil service, such as Scotland had, for example.
So, as I think some Members have reflected upon in this debate today, Llywydd, those of us who have been fortunate enough and privileged enough to be here since the very beginning have been part of that journey—the journey that followed the secondary legislative powers that we had to begin with. So, we’ve been through that experience of using those secondary powers, and then through to the legislative competence Orders and Measures, and then, thankfully, to primary powers, thanks to the people of Wales and their support in the referendum. I’m sure that the LCOs and the Measures will provide fertile ground for study for constitutional experts, academics and students for some time to come, given their rather innovative and unique nature, but, for those of us that have been through that history and the twists and turns involved, I think it has been a period of some frustration as well as excitement at the developments that took place. But consistently, I think, we’ve been talking about obtaining the tools to better serve our communities here in Wales, and it’s always been in that context of powers for a purpose. So, you know, some people see these constitutional debates as sterile and not really about on-the-ground delivery for communities here in Wales, but it’s a pretty obvious thing to say—but it needs to be said repeatedly—that we are seeking the tools to do a proper job, as it were, for our nation of Wales.
So, in that context, Llywydd, we now have this draft Wales Bill before us, and it really is a major opportunity, isn’t it, to put in place a lasting settlement, to move beyond that history and some of those frustrations, to put in place something that will stand the test of time. We can go on, of course, once we get the legislation in place, if we do it effectively, to tell it as it is, as it were, by changing our name to the Welsh Parliament, as other Members have referred to, and, indeed, increasing the number of Assembly Members, again for a purpose, a practical purpose: for better governance and scrutiny. I hope very much, as other Members have mentioned, that we will go on to take those very important steps longed for for many people across Wales over decades and longer.
So, Llywydd, Wales needs a Bill and an Act that provides firm foundations for the exercise of primary law-making powers well into the future. It’s clear, isn’t it, from the debate we’ve had today and the debate that’s preceded today, that this Bill will not do that without fundamental change. Members have set out the changes required, and indeed, the Constitutional and Legislative Affairs Committee has laid out those necessary changes.
So, Llywydd, I think it’s absolutely clear that there is a strong, clear consensus here today and across Wales, civic society, academics, legal experts and many others that we do need these changes that many Members have referred to today. We do have a strong consensus. The change must be firmly based on subsidiarity and it must address that clear consensus of concern, which I think is so very importantly expressed during this crucial debate, which has gone on for quite some time here today, but I think necessarily so. When we reflect on that debate and we see the changes that hopefully will come, we will see that it is time well spent.
I’m very grateful to John Griffiths and indeed also to Llyr Gruffydd for setting this particular section of the debate in its historical context. I think it’s fair to observe that, at a much earlier stage in its gestation, this Bill did have a Liberal Democrat midwife in the room, although, following our departure from Government, things have, as we see, gone badly awry. I think it would also be fair to observe that there are some areas where progress is made in what is before us today. Particularly, I would join Professor Roger Scully in hailing the fact that we would at last have control over our own electoral arrangements—I think that’s important—although I agree with Jenny Rathbone’s comments with regard to the energy consents: this is a step forward but it doesn’t go far enough. We heard that emphasised in a ministerial scrutiny session in our Environment and Sustainability Committee just this morning. We would clearly need to go further in this and other areas.
We have long sought devolution of powers for policing and criminal justice, and it is particularly disappointing that we did not secure agreement on this in the St David’s Day process. That is something that we need to revisit.
Regarding the reservations list itself, it is clear that this is very much a Whitehall interpretation of where the current boundaries lie between SW1 and CF99. We must keep a watchful eye indeed on what’s going on in Westminster departments with regard to any attempt to reverse the Agricultural Wages Board decision in the Supreme Court and any underhand attempt to claw back powers for Westminster.
We must also ask ourselves, as others have observed, whether it is truly a reserved-powers Bill. While there are obvious powers to reserve, the Wales Office also seems to propose that powers over hovercraft, dangerous dogs, gender recognition, driving instruction, exploitation of coal and betting should be controlled by London. This is indeed a bizarre list. Would seeing these powers invested in Wales mean the unravelling of our constitution? I think not. I believe that we must espouse the values of subsidiarity, as has been argued already this afternoon. We must work on the basis that powers are invested in the Welsh people and that they then should be transferred up where the case is made. I don’t think that Whitehall would have a difficult time convincing us that defence or space exploration should be reserved matters benefiting from common purpose and direction, economies of scale and so on, but I would love to hear the argument that other powers are best held at Westminster, because I don’t believe that that has any basis.
Since this is the first time I’ve spoken in this debate, can I take the opportunity to thank David Melding, as chair of the committee that has led both the investigation and the inquiry and also the debates this afternoon? I think many of us are very grateful to him for his leadership, which he’s shown again in the Chamber. But also I thank staff and the witnesses, whose patience I think we tested on a number of occasions during our inquiry. It was an important inquiry and it was important to get it right. In reviewing the draft Bill that was presented to us, I do take the points that have been made by Angela Burns this afternoon that a draft Bill is a draft Bill, and we accept that, but we read that Bill with the words of the Secretary of State in our ears. When he was here last summer speaking in the Queen’s Speech debate he was very, very clear about his ambitions and his visions for that Bill and he was clear about what he wanted that Bill to achieve—a secure place for this institution in the constitution of the United Kingdom and also to settle the question of devolution for a generation. He was very, very clear about his ambition to create clarity and stability in the settlement, and I think the disappointment that’s been articulated by many speakers this afternoon is borne not simply of reading the Bill, but also reading the Bill and knowing the ambitions that were set for it by the Secretary of State himself. I think that is certainly the perspective that I come from.
When I looked and read through the draft Bill, what struck me, and I think has struck many people, is that one of its fundamental weaknesses is that there appears to be little evidence of any intellectual or philosophical underpinning of it. The Secretary of State appeared—and he said this in evidence to the committee—and he went on a round robin around Whitehall asking civil servants and other Ministers what they would like to see remaining as a reserved power and then put it straight in the Bill without any examination of that process at all, seemingly, and without any idea of what the cumulative effect of all of those reservations would actually achieve for the powers available here, but also for the balance of powers between here and Westminster and the implications of that for the wider constitution. Having made that mistake, he then decided to put in a whole series of Scottish clauses into the legislation, which, of course, are designed for a situation where the number of reserved powers is significantly smaller. The consequence is that you have a Bill that is inconsistent, unworkable and profoundly disappointing in all sorts of different ways. If he had taken a different stance right at the beginning, then perhaps we wouldn’t be having a debate of this nature this afternoon.
It’s difficult for anybody here to understand why the powers that are being made available to Wales are so different and so limited when compared with either Northern Ireland or Scotland, or even, when we consider policing, Manchester. It appears to me that there is little consistency and little sense of vision when we review that sort of situation. That isn’t a tetchy point; that is a point of absolute analysis of what is being offered. Many of us felt—and we were warned in evidence not to be too optimistic, I accept that—that a reserved-powers model would be a means and a way of resolving the problems that Kirsty Williams and others have described that we’ve experienced over the last couple of decades.
But this is a reserved-powers model that has been created on a conferred-powers mentality, and, as a consequence of that, it is the worst possible reserved-powers model. It has received the support of no significant part or element of Welsh life, as far as I can see. We heard from no witnesses in front of the committee who supported the Secretary of State in what he was proposing and his approach. Nobody at all came to the committee providing written or oral evidence saying that they supported the structure and the architecture of the Bill that was being proposed. That, I think, is a very, very great disappointment.
The evidence that has been provided by committees of the National Assembly, I think, is equally as important, because it demonstrates not only issues where reservations should not have been made, but also where the competence of this place is being limited and reduced. If we are—and I agree very much with the point made in his opening speech by the First Minister—in this place to be a parliament, it has to be a parliament in fact and not simply in name. That means that it has to have the powers that are commensurate with a parliamentary democracy within the United Kingdom and that means a comparison with the other home-rule parliaments that exist within the United Kingdom. That, I think, is a starting point for where we need to be.
I agree with the points that were made by the committee and were outlined by David Melding in his introduction. The principle of subsidiarity should have been the starting point for this process, but not simply subsidiarity in a vacuum, if you like, but within a vision of what the United Kingdom has to be, itself. All too often, our debates on the powers of this place revolve around the powers of this place. We also need to recognise that we need to have a vision of the powers that are reserved and that are rightly and properly held in Westminster for the effective function of the United Kingdom state. That means that we need to have a very clear vision of what that happens to be. The most coherent and convincing vision that I’ve heard outlined was that of the Welsh Government, which, I think, based its views on the Calman commission in 2009, in evidence to the House of Lords committee on this matter, where it described the United Kingdom as an economic union, a political union and a social union, and that the powers that need to be held in the United Kingdom have to be powers to ensure that there are no barriers to trade or to business and employment across the different parts of the United Kingdom, and that the politics and the social union—so important, I think, to ensure a sense of unity amongst the different peoples of the United Kingdom—are reserved powers, and that those reserved powers have a coherence in themselves. So, we’re not simply talking about devolved powers that have a coherence, but reserved powers that have a coherence as well.
And I believe that we also need to look at how we share responsibility for some issues, particularly in the cultural sphere. We’ve been debating broadcasting in recent times, and I think broadcasting is an example where economic regulation should rightly be held by the Westminster Parliament and be a UK responsibility, but the cultural impact of broadcasting and the place of Wales and the peoples of the United Kingdom, as demonstrated on our screens and by our broadcasters, is rightly something that this place and other parliaments would take an interest in.
Let me finish on a point about the issues of finance. I agree with the position taken by the Secretary of State on the devolution of income tax powers. I don’t believe that a referendum is necessary for that, but I do believe that an Assembly and a parliamentary process has to lead and underpin that process. I don’t believe that the Secretary of State should be able to take that decision somewhere up in Whitehall or Westminster, or somewhere else, to telephone or write to the First Minister, or whoever, and say, ‘This is happening whether you like it or not, and it’s going to happen in this way whether you like it or not’. That is not a respect agenda, and neither is it emblematic of a relationship between institutions within a federal system. And we need to have a process for the devolution of these additional powers, and it needs to happen with the consent of this place as well.
Let me just say in closing that when we do have those powers here, we do need to look at how the redistribution of wealth within the United Kingdom actually works and works fairly for everybody in the United Kingdom, and not simply a means of us saying, ‘Well, we want more money here or we want more money there’, which, of course, is a fair position to take, but a means of ensuring that there is fairness across the United Kingdom. If Wales was in the happy situation of having a gross domestic product that is higher than the average—higher than many parts of England, Scotland or Northern Ireland—I would be very happy for this country to pay into that UK pot to be redistributed to other parts of the United Kingdom that need it and that are poorer—a fundamental part of an economic and social union. But that has to be done fairly, and I don’t believe that the Treasury can be trusted, quite frankly, to do that fairly. So, we need to have a UK institution that will be responsible for the distribution and redistribution of wealth across the United Kingdom. Thank you.
When the Secretary of State for Wales gave his evidence before the Welsh Affairs Committee on the issue of reservations, he said that
‘If there are quirks in the list of reservations that clearly stick out as, “That looks odd. Why would you be holding that back, given that you have devolved other areas?” then let’s bring that out, make the case for that, for example things like street pedlars, which is one of the reservations in the list’.
Now, that makes you wonder, doesn’t it, whose Bill it actually is and who is actually in control of the Bill. And that probably explains why it is that the list of reservations we have has got no explanation as to why they’ve been reserved, what the logic is and what the impact would actually be on this place and on devolution.
When the committees came to actually consider the impact of the draft Bill, certainly the committees I was on found that it was almost impossible to actually work out what we could do, because it was such an extensive list, and because the reserved-powers model would undermine the Supreme Court judgment on the Agricultural Sector (Wales) Bill, effectively, it would mean that this place would be almost paralysed; it would be able to do little more other than to administer what it is currently doing. And that paralysis was almost the reason why the committees were unable to actually say, ‘What impact would this have on these areas of responsibility?’, because no-one could actually work it out, so bad was the drafting and so extensive was the list.
One of the areas I was pleased to see in the correspondence from Welsh Government to the Secretary of State for Wales was to actually say, ‘Why on earth is gambling included?’, and that followed on from the individual Member debate we had here and the motion that was passed here. But if it’s good enough for Scotland, why shouldn’t it be here? Why shouldn’t we, as a public health matter, be able to actually control fixed-odd betting machines and so on?
The main point I want to make is this: we’ve talked a lot about consents, restrictions and reservations and so on. But, of course, one area where we will still have to seek consent, in accordance with the Wales Act 2014, is in respect of fiscal powers in respect of devolved areas. I know I’ve raised this before, and I know it hasn’t formed much of the debate, but it seems to me it is still an important area, and that’s why I wanted to get that particular point on record. Because if, for example, we want to take a decision within our new powers that, for example, raised a levy on sugary drinks, or a hotel-room levy to help fund tourism, or as, indeed, with the asbestos Bill that I introduced some while back, we don’t have the power, unless we actually go under that procedure, under the 2014 Act, to seek the consent of Westminster. I think that is an area that has been overlooked in the discussions, in the debate and in the draft Bill. I don’t know whether it’s too late to try and rectify that. It hasn’t actually been scrutinised in any area, but it seems to me it is a major omission in the discussions that we’ve actually had.
I will be brief, because so many Members have made the points already that I would have wished to make. I have to say, listening to Angela Burns’s contribution, much of which I agreed with, I have to say, I did find some of it curious. If a Minister of the Welsh Government appeared before a committee when a committee was considering a Bill, and upon being asked why something was in the Bill said, ‘Yes, I’m surprised to see it there myself’, Members would be stunned by that response. Members would say, ‘Well, it’s your Bill, you should know’. It’s the same, I’m afraid, with the Secretary of State. He sometimes gives the impression that he is a bystander in a Bill that someone else has introduced. He isn’t. It’s not civil servants who introduced the Bill, he has. It’s his responsibility to ensure that he’s read it and is aware of what’s in that Bill. The Wales Office is not a big department. It’s very much a smaller department, compared to the size of the Welsh Government, and we could have offered this assistance at the very beginning. I’m surprised when I hear the Secretary of State say that, as if this Bill was nothing to do with him. It is his Bill at the end of the day.
In terms of the Bill itself, the fact is that there are 34 pages with 217 separate reservations. That tells you already that the Bill is too complicated and that there are too many reservations. It is still the case that discussions are taking place with other Whitehall departments where they are coming forward with their own proposals, still, which the Wales Office isn’t aware of. So, there was a meeting some weeks ago before Christmas when officials, not from the Wales Office, came and discussed devolution issues with Welsh Government officials. They said they wanted to see coracles and canoes removed from the devolved competence of the Assembly—I’m not aware of coracles existing anywhere else, apart from Wales—on the grounds that they are shipping. [Laughter.] I don’t think the Secretary of State knows that. But, it does show that there are officials in other Whitehall departments who are freelancing. Someone needs to get a grip of the process so that we can be confident that, when I am in discussions with the Secretary of State, the Secretary of State is fully across, and has control of, other Whitehall departments.
I’m not going to go through the list of reservations. I’ll just draw on some examples of where work needs to be done. It’s still anomalous that executive competence over civil contingencies does not rest with Welsh Ministers when it does in Scotland. It’s an issue in terms of responding to emergencies. Angela Burns is absolutely right in terms of what she says about compulsory purchase. Just to clarify, it’s the legislation around compulsory purchase that wouldn’t be devolved, and executive powers would still remain. The planning and the compulsory purchase systems are one and the same. Let’s say, for example, there were plans to consolidate the legislation in that area. It couldn’t be done, because compulsory purchase isn’t devolved. Similarly, the community infrastructure levy tax; it’s entirely a planning levy and yet there are no proposals to devolve it. She’s absolutely right in terms of what she says there.
Other areas: the licensing of opencast mining is for the UK Government, but land restoration is for the Welsh Government. Well, thanks for that, because that leaves us, of course, with the mess. When it comes to energy, yes indeed, there are proposals on the face of the Bill to see further, but it’s still limited devolution of energy consents. But the transmission of energy isn’t going to be devolved. So, in fact, there is an effective veto there for the UK Government in terms of whether an energy project goes ahead in Wales, because it can simply refuse to give consent for the transmission of that electricity. In Scotland, the executive consents are devolved. And of course, within the Bill itself, there’s a serious question mark as to whether the Welsh Government will have the ability to have separate pay and conditions in the public sector. They already exist, particularly in the NHS. On the face of the Bill, it would appear that we would not be able to have separate Welsh contracts, and that would mean, for example, that we would be tied by whatever was agreed in Whitehall, particularly in the NHS. Now that’s something that clearly rolls back on the current settlement. There are numerous other examples. The debate has gone on for a long time; I’m not going to go through them all. Other Members have identified other examples, but it’s quite clear that much more work needs to be done in terms of reservations. We support the current motion that we’re dealing with.
Y Llywydd / The Presiding Officer
I call on the Chair of the committee to reply to the debate. David Melding.
Thank you, Presiding Officer. Again, I think this is a very important area. We’ve had a long debate, so I shall just refer briefly to one or two points Members have made. Jenny Rathbone started by really diving into a very important area—a tidal lagoon; I don’t know if you can dive into a tidal lagoon, but anyway. Energy is hugely important for quality of life in Wales and for economic development and all sorts of things. On these areas, we really do need to develop consensus.
Angela Burns, I think I can probably sum up a lot of your contribution in saying there’s been too much Whitehall and not enough made in Wales, and I agree with that; I think that has clearly come through in the evidence. And the use of a mechanism that, if an area is silent, it should become reserved automatically, is hugely problematic. I think that’s at the heart of a lot of the problems we’ve ended up with. The principles of the St David’s Day agreement, and the consensus around that, would have been a better way to inform the development of the draft Bill.
Llyr Gruffydd said that we are all unhappy. In parts, we are content with what’s been proposed, but I think we’ve all recognised that the draft Bill needs significant improvement. When you say that we’re getting income tax powers, and surely then, our policy powers should match the magnitude of that shift, I agree. It is important that we see a coherent set of powers. The question should be: what powers does central Government need to operate? I think Alun Davies, in a very strong contribution, took this principle a bit further. It’s one I referred to in my opening address as well, and I think that has been lacking in this whole approach, and has led to a level of incoherence.
John Griffiths reminded us that this has been a journey. It’s been exciting in places, but it’s time to reach a coherent destination. I say amen to that.
William Powell urged the Secretary of State to call the midwife. No doubt that would be of great benefit and would see a more thorough application of the principle of subsidiarity. And then the very liberal principle that powers are invested in the people, and from there, they percolate through the various political institutions that are needed for effective governance.
Alun Davies, as I said, made a very important contribution. He said that he was disappointed that the Secretary of State’s vision that was expressed to the Assembly is not obviously apparent in the draft Bill. So, I think we should urge that that spirit is what now fuels the consideration of our next moves forward. Can I thank him also for commending the evidence we received from the Assembly’s committees? I’d failed to do that; it was an omission on my part, because we had excellent evidence on the likely consequences of reservations from the Assembly’s committees. So, I do thank the Members and the secretariats for that. We don’t want to end up with a reserved-powers model that is, in effect, limited by a conferred-powers mentality. That is not delivering what we thought had been established in the consensus following the Supreme Court judgment.
Mick Antoniw said that there’s no explanation, really, for the reservations, and we do need to have a principled, logical approach. Again, I completely agree with that.
Finally, the First Minister said that the list of reservations is not only too long, but has been expanded. That is alarming if that is true. And coracles as a form of shipping—may or may not be, I don’t know. No doubt journalists will follow that up to see if there is a danger of us losing our powers over coracles. But, there is a lack of clarity—he referred to the NHS—and there is a fear that the current settlement has been rolling back. And that’s not what should be informing this debate. I urge Members to support the motion.
Y Llywydd / The Presiding Officer
The proposal is to agree the motion. Does any Member object? There is no objection, and therefore the motion is agreed unanimously in accordance with Standing Order 12.36.
Motion agreed in accordance with Standing Order 12.36.
Y Llywydd / The Presiding Officer
The next and final motion relates to a distinct jurisdiction, and again I call on David Melding to move the motion.
Motion NDM5916 David Melding
To propose that the National Assembly for Wales notes the Constitutional and Legislative Affairs Committee's view that the draft Wales Bill should be amended to include a distinct jurisdiction in which Welsh Acts extend only to Wales and modify England and Wales law as appropriate for reasonable enforcement.
We believe there would be merit in exploring further the concept of a distinct Welsh jurisdiction as a means of delivering a clearer, more workable settlement. Within a distinct jurisdiction, Welsh Acts would extend only to Wales and modify what is currently England-and-Wales law as appropriate for reasonable enforcement.
A distinct jurisdiction is not a separate jurisdiction. Distinct bodies of Welsh and English law would be administered within a unified courts system in England and Wales. The Supreme Court would remain as the ultimate arbiter of both English and Welsh cases.
In our view, a distinct jurisdiction would have the benefit of recognising that there is a body of Welsh law that is distinct from English law. It will also highlight that distinction to the legal profession throughout the UK and for the benefit of citizens who from time to time need to access legal advice.
It’s about time that theory caught up with practice in this area. I’m sure not many people—certainly not many of our citizens—realise that, currently, the laws we pass extend to England and Wales, although they can only be applied in Wales. This may enable many people in Whitehall to sleep easier at night, but really it is a fiction, and it’s a damaging one, because it inhibits clear constitutional thought. I urge Members to support the motion.
Just a couple of short points on this. The evidence that Stephen Crabb, again, gave to the Welsh Affairs Committee continually places the issue of protecting a single jurisdiction as the main obstacle to a lot of the reforms, but it is very clear that there is quite a lot of confusion about what actually is being suggested, and the way in which the debate has been developing, so that we are now far more talking about the idea of a distinct jurisdiction. In fact, what he actually said was that
‘Whitehall’s view is driven by the view of the Government and the view of the Government is that a single joint jurisdiction across England and Wales, which has served the people of England and Wales very well for centuries, is still the right framework’.
He does give some light in the sense that
‘We can have the discussion, and I am, about how we strengthen the delivery of a specific justice function’.
Now, the only point I’d like to make is this: we’ve actually been down this road in the UK before, because we used to be susceptible to the European convention on human rights, and in actual fact, you can actually appeal from the UK, but you had to go to court in Europe in order to actually enforce the rights under the human rights convention. Of course, the Human Rights Act 1998 that was brought in by the Labour Government, all it did was actually enable you to have those rights within the UK courts. The way in which the courts actually dealt with effectively incorporating this new European jurisdiction into British law was to stick a tick box on the application forms in court: ‘Does this involve a matter involving the human rights law?’ If so, it would then go to a specialist judge.
The actual creation of a distinct Welsh jurisdiction is dead simple. It’s not rocket science. It’s not complicated. It’s not about taking over the courts or the judges. It’s not about breaking up the jurisdiction, the system that we actually have. All it actually requires is that, in any matter that comes before the courts, if it involves a matter of Welsh law, you have to identify it and there’s then an administrative process, and it goes into, effectively, a distinct Welsh jurisdiction—however you want to call it, whatever specific name you want to give it. So, there’s no great complexity to this, and I would hope that there will be no obstacle, and that the obstacles that have been raised will now be seen as outdated arguments. It seems very clear that the judiciary are moving along this way, and understand it. Certainly, the whole debate understands it as a way forward—a significant way forward—to creating a distinct jurisdiction that ensures that Welsh laws are properly dealt with, and have a proper environment. It takes many of the obstacles and obstructions that exist in existing drafting of the legislation away.
I’d like to also thank the CLA committee for their work on this report on the draft Wales Bill. If I can preface my comments on this issue by firstly pointing out that, whilst there are differences of opinion about this, we are in this position because the UK Government decided to press ahead with the process of deepening devolution and of seeking to make it work better. As David Melding pointed out in his earlier comments, this wasn’t always the case for the Conservative Party. So, let us be pleased that we are where we are, and we are actually looking now at a consensus for an improvement in the process and a desire on all parts to move forward, even if there are differences in how we do that.
I intervened earlier on Mick Antoniw and actually I agreed with a lot of what you said, Mick. I think that this does need to be got right. When you said—a point that was dismissed by many—that it was better to have good law rather than a preponderance of law, I think you were exactly right. I think we need to make sure that the laws that we pass in this place are the right laws—the right laws for Wales and right, indeed, for the United Kingdom, as a part of the union. That should be our starting point.
Turning to some of the concerns and this whole issue of a legal jurisdiction and whether it’s a single England and Wales jurisdiction, it’s been interesting to look through some of the wide range of consultation responses that were received when the Welsh Government sought views on this. Some of the responses—one or two, I think, from some Plaid Cymru councillors and members—want complete separation, a completely separate jurisdiction and, indeed, a court system. Other responses call for a continuation of the status quo and cite the costs of setting up a completely separate system. And, yes, a lot has been said about Scotland, and Scotland does indeed have a separate jurisdiction, as does Northern Ireland, but you do have to recognise that the England-Wales border is a different animal, as Gerry Holtham highlighted—it is a highly porous border with cross-border flows and 50 per cent, or thereabouts, of the Welsh population are living within close proximity of it. So, separate jurisdictions would have a much greater visible impact than in the other devolved nations of the UK. That is not an argument for saying that it shouldn’t be done—it is simply a fact of the matter and you have to think very seriously, of course you do, before you go down this road because there will be major consequences to creating a separate jurisdiction.
I agree with what many Members have said in that there is a sense that this has not been completely thought through as much as it should have in advance of this. The CLA committee is rightly clearly concerned that retaining a single legal jurisdiction may frustrate the needs of a growing Welsh identity and the will of the parties involved in the run up to the St David’s Day agreement and we have to take on board the concerns of the committee.
One thing is undeniable: devolution is a fact of life. There is a growing body of Welsh law that is distinct from English law and this will require a measure of increasing distinctness with time. This is a natural consequence of the devolution process—the process and not the event, as someone once famously referred to it—and that is a follow-on from the further powers referendum of 2011 and indeed the move to a reserved-powers model in the draft Wales Bill.
Going back to Simon Thomas’s point in the earlier debate—you said that it was ironic that the issue of taxes has been dealt with so much more easily than the issue of laws and yet, actually, the referendum in 2011 was about the issue of the full devolution of law, aside from reserved areas. I remember taking part in that referendum campaign and campaigning for a ‘Yes’ vote and I was telling constituents—I was certainly telling mine—that this was an issue about the devolution of law, not about taxes. Yet here we are now getting taxes down the line, devolved, without a referendum in terms of income tax, it would seem, while at the same time, an area that should not have been confusing at all, because a majority of Wales voted for it, has suddenly become a confusing area—. Well, it was not a majority in my neck of the woods, but that was a slightly different case and I’m not going to go back over those arguments. So, we are in a situation that I think many people do find surprising.
The fact is, if you have a distinct law-making process, you will also require, over time, a distinctive legal framework to support and administer it. That is not rocket science as other Members have said. As Dafydd Elis-Thomas said in the earlier debate, law making needs to be clear; it needs to strive to be understandable—that is the essence of democracy. You know that there have been lots of laments in here today about lethargy of pace towards a final settlement. Well, I’m less pessimistic about that. I would rather have—. I would point to the old adage about more haste and less speed. I would rather we get to a settlement that actually works in the longer term—in five years’ time, in 10 years’ time—and we’re not having to constantly re-tread these arguments over and over again, and our successors having to do that and try to get to a settlement that works. Let’s try and get it right.
As the Chair of the CLA committee said, in opening, the Secretary of State has said that the Bill that receives Royal Assent will be markedly different from the Bill before us today; something I’m sure many Members will welcome. I certainly do.
A ‘stronger, clearer and fairer devolution settlement’—those were the words of the Secretary of State. And as Andrew R.T. Davies said earlier, this Bill does actually contain a whole host of new powers for the Assembly, which we shouldn’t dismiss, including electoral powers, including, as many Members have said, the ability of this institution to decide what it calls itself. As people know, I personally favour National Assembly for Wales not Parliament, but that is beside the point. It will become the decision of this place; it will become the decision of the people of Wales, not the decision of the Parliament in Westminster. I think that is the right way to go.
I did agree with Gwenda Thomas, in her earlier comments, that people out there probably look at debates—if they look at debates like this at all—and probably think, ‘Why are they talking about that again? Why can’t they get on with the process of delivery?’ Yes, I agree with you that, actually, the process of how we get to delivering is important. That needs to be sorted out, but we also do need to keep an eye on the fact that if we do continue to talk about the constitutional situation, then people may get fed up of that and think, ‘Why aren’t they actually getting on with it?’ So, we do need to get this situation sorted out. That’s why I welcome the findings of the CLA committee.
In conclusion, you don’t necessarily need a separate jurisdiction, but you do need to look at ways of developing a distinct jurisdiction, as many Members have said. The question, then, is how best you achieve that, and this is where our focus should now be. One thing is clear: with the passage of time, like it or not, the laws of England and Wales are going to diverge and it would be bizarre if they didn’t. The legal jurisdiction within Wales will have to allow for this. This is simply the way it is, and the UK framework will have to keep up with it.
Until we heard the story about the coracle and the Whitehall civil servant, perhaps the debate we’ve had, although fascinating for ourselves, was a little lacking in some of the human touch, perhaps, that takes it on. But I think that the admiral of the port of Carmarthen will be distraught to know that coracles are going to be taken away from the control of the Welsh Government in Carmarthen.
I think, given the time and the debate that we’ve already had—and we’ve already been over some of these issues—I can illustrate what the committee is trying to address here by telling a story. It won’t be as entertaining as Max Bygraves, perhaps, but it will be a genuine story that illustrates the difference between what we have today in terms of jurisdiction: a distinct jurisdiction and a separate jurisdiction.
I was contacted last week by a constituent who was very excited to have found out that there is an Act passed, called the Self-build and Custom Housebuilding Act 2015. He was involved in rural housing in my region, and he was very keen to use this Act to encourage self-build homes in west Wales. So, he contacted me and said, ‘How can we use this Act to develop self-build homes in west Wales?’ So, I thought, ‘I’m usually awake in the Assembly; I don’t remember passing this Act. Let’s see what this is’. And, of course, it’s an Act of the London Parliament—it’s an Act of the Westminster Parliament. So, I went back to him and said, ‘I’ve had a quick look at the Act’—and thankfully, it’s only about four pages—‘and it only relates to English local authorities, national parks and so forth. I’m afraid we can’t use it in Wales, and I’m sure that if you write to the housing Minister, she will look at how regulations and other things might work in Wales.’ His response was quite interesting. He said, ‘But it says the Act extends to England and Wales. Why can’t I use the Act? It extends to England and Wales. Why can’t you simply pass the regulation? It says it extends to England and Wales. Pass the regulation in the Assembly to allow me, as a practitioner on the ground, to do what I want to do to support self-builders in Wales.’ That actually illustrates the confusion that comes around with this single jurisdiction, where we apply bits of the jurisdiction only in Wales, from our perspective, but in England they’re applying it in an England and Wales restriction. Of course, only last night we had the first-ever English votes for English laws debate in the House of Commons as well.
So, this is the confusion that’s emerging. And the more laws that we pass here, the more the confusion will grow. If we’ve got genuinely interested people who want to use legislation to deliver their job on the ground—supporting housing in this case—who are confused about this, then I think we need to do something about it. Clearly, Plaid Cymru is of the view that a separate legal jurisdiction will address this issue, which it clearly would, but that it would bring additional benefits in terms of building up the legal profession in Wales, expertise in Wales and repatriating some of those jobs that are now in London, perhaps, back to Wales. We’ve seen what happens in Northern Ireland. A separate legal jurisdiction for a country the size of Wales can work well, could be economically successful, could work with our universities in supporting the legal profession and be a success. That may not command the support of the whole Assembly. What may command the support of the whole Assembly today is the concept of a distinct jurisdiction, because, if we had a distinct jurisdiction, that Self-build and Custom Housebuilding Act 2015 would have said, ‘This Act applies to England only.’ My constituent wouldn’t have been confused, I wouldn’t have had to deal with an English piece of legislation, and we’d have all rested a lot happier.
Today, my group will support this motion regarding creating a distinct but not separate jurisdiction for Wales-only Acts of law. The Secretary of State has at least been clear on this point, saying, and I quote:
‘You do need to create some kind of boundary there if you’re to maintain the integrity of the single jurisdiction, which we’re committed to.’
Many of the problems that we’ve witnessed today, from the necessity tests to the ministerial consents would, I argue, clearly be seen to derive from the difficulty of creating a reserved-powers model within a single jurisdiction. It’s clear that this is at the heart of the Government’s approach to the draft Wales Bill. But we’ve never justified why there is such a strong commitment to that single jurisdiction when so many problems would be solved by the diverging of the jurisdictions in a managed and ordered way. We must question that commitment, and Simon Thomas has given an interesting illustration just now. The accidental reservations of private and criminal law to prevent a separate jurisdiction are not the same as other reservations. These are not policy areas, but rather ways of making policy. If we cannot lead in particular policy areas in Wales, what are we for? As Professor Watkin says, and I quote:
‘Structures for the administration of justice should keep pace with developments within the society which they serve.’
Welsh law is a nascent and evolving force and the administration of that justice must keep pace. We do not need to see a costly and ineffective duplication of administration in a separate Welsh court system. As the First Minister has previously said, we could see a shared court system, run by the Ministry of Justice with the same judiciary and administrative system, buildings et cetera, as is the case now. We know that the Welsh Government will be publishing the results of their work with the Lord Chief Justice in this particular direction. The Lord Chief Justice, recently said that, and I quote again:
‘It is right for me to say that there is no reason why a unified court system encompassing England and Wales cannot serve two legal jurisdictions’.
We know also that Welsh law is emerging. The professions need to know that and the structures need to reflect it. We must be cautious, however, not putting the cart before the horse, but we must also be willing to embrace a new jurisdiction. Our policy in the submissions to the Silk commission originally noted that we have no objection in principle to the development of a separate legal jurisdiction for Wales and that also, and I quote,
‘We accept that the case for a separate Welsh jurisdiction will be strengthened as divergence between laws in Wales and England increases.’
According to the Silk commission, as far as the connection between reserved powers and a separate jurisdiction is concerned, we understand from our discussions, including some with former Parliamentary Counsel that preserving the fundamental principles of law and basic legal rules would be possible under a reserved-powers model. Hence, a separate jurisdiction would not necessarily be a consequence of such a model. It appears that this is where such drafting has come from in this Bill. While the commission was not therefore convinced of the case for devolving the court system or creating a Welsh judiciary and legal profession at present, it went on to recommend that a separate Welsh court system and a separate Welsh judiciary is something that must be contemplated in the future and that the two Governments review the case for this within the next 10 years. Perhaps it is worth discussing that 10 years was perhaps too long a time frame and that this is a dynamic process and is moving at a faster pace. We would hope to see more detail on these proposals for a distinct jurisdiction, but it seems to echo our own calls for such a jurisdiction in previous debates, and also the proposals from the Welsh Governance Centre and University College London’s constitutional unit. We look forward to seeing the Secretary of State’s response to these particular proposals.
I must say, I did not start this process with any strong views on whether we should have a separate or distinct legal jurisdiction at all. I took the view that the means by which we deliver the law is simply a means to an end and not an end in itself. I’ve changed my mind. I’ve been through this process in quite some detail over the past period and it has been clear to me that, unless we do establish a jurisdiction of some description, then we are going to be continuing these debates and these discussions for a very long time indeed. It has become clear to me, whilst examining the draft Bill and the implications of a draft Bill and how that draft Bill would actually operate in reality, that the biggest obstacle and barrier we face to achieving the settlement that all of us have said we wish to see—a settlement that is clear, that has accountability written into it, where there is a clear sense of who does what either side of the border, and where we end the conflicts that we’ve seen in courts, politically and elsewhere in terms of delivery of policy—is a determination to preserve and protect a jurisdiction that, for most people, has little meaning at all.
If the purpose of the Bill is to preserve and protect the jurisdiction, I have to say I think that’s the wrong purpose to have. The purpose of the Bill should be to enhance the democracy of Wales and the United Kingdom. The purpose of the Bill should be to enhance the constitution of the United Kingdom. When I hear the arguments that are being put forward, the arguments against establishing a jurisdiction here in Wales, it seems to me that they are arguments of, ‘Yes, but not yet’—the arguments that we have heard many times about all aspects of devolution over the years. But, what we haven’t heard is a strong argument as to why this will create a conflict, a barrier, or a problem that doesn’t exist today, or why this will not solve the problems that do exist today. I have to say, my experience of Government tells me that, where there are issues, where you do not understand properly the difference in responsibilities for the Welsh Government and the United Kingdom Government, that creates conflict. Conflict is created not by clarity, but by the lack of clarity. A jurisdiction—and a separate jurisdiction—will create clarity. My view is that that clarity will be a powerful element of ensuring that we take conflict out of the devolution settlements within the United Kingdom. It’s not there as some sort of emblematic nationalist identity; it’s there as a pragmatic response to the sort of constitutional settlement that we have and we say we want to see and we want to see grow into the future.
We’ve discussed here this afternoon, and other times, the Supreme Court referral on the agricultural sector Bill. I have to say, I took the decisions around that and I took the decisions that we would legislate, I took the decisions that we would oppose the UK Government on that issue. I have to say, I thought the decision that I took to introduce legislation here and then the inevitable reference to the Supreme Court was a failure; not a success, but a failure. It was a failure of the process, it was a failure of the system, and it was a failure of the structures that we have today. Unless and until we’re able to achieve a situation where we do have far, far greater clarity within the structures of the United Kingdom, then there will be more and not fewer of those failures in the future. That is why I believe that we should—. I understand the arguments and I believe there’s a consensus here in favour of a distinct jurisdiction rather than a separate jurisdiction—I understand the arguments for that—but my fear is that this will be another messy compromise, that this will be the second-best option and that this will not provide us with the clarity and stability that we will need into the future. I think all of us, whatever our perspectives on these matters this afternoon, are united by a desire to move away from debates around the settlement to actually delivering our ambitions for that settlement. And all of us—. David Melding’s warning at the beginning of the debate was very clear: we do not want to see a Wales Act 2016 and then a requirement for another Wales Act in 2019, 2020, 2021—nobody wants that. And that is why I believe that we should look towards long-term stability in what we’re seeking to do today, and that we should look towards a jurisdiction that will provide and underpin that stability.
Yr Arglwydd / Lord Elis-Thomas
This will be my final word, but I want to start by disagreeing with my fellow committee member. What he did in passing that piece of legislation was not a failure, and neither was the consideration given to it by the Supreme Court a failure. It was a success because we had a clear definition of the constitutional situation that we are currently in, with the powers that we currently have and the model that we currently have of conferred powers. That definition—and I won’t praise individual judges or I may damage their reputation—. Perhaps they’ve gone far enough, but I might damage their careers. But, that definition is very clear and I have to say—and I think I may have said this before, possibly in this place— that I’d prefer to work with that clear definition provided by the Supreme Court of the powers that we have now, than what is being proposed in the current draft Bill. I think that is an entirely consistent position and a clear position to take.
Yr Arglwydd / Lord Elis-Thomas
Very briefly, there’s been a great deal of rubbish talked in terms of jurisdiction in relation to this. On this estate, in the Pierhead building, soon after he came to his esteemed position, the Lord Chief Justice of England and Wales said that we were already living in at least three jurisdictions. If we look at our constitution and our legislation, we know that we do have to accept what is in UK legislation, in European legislation, and I would also say in international law and particularly what is increasingly developing, particularly in terms of the environment, within the United Nations and the various international treaties, and the powers contained in them. So, we may be in four jurisdictions. And, therefore, jurisdiction is not—. The debate on jurisdiction, if it were ever anything, is putting the cart before the horse.
Yr Arglwydd / Lord Elis-Thomas
I will conclude by referring—. I’ve already referred to one brilliant legal witness and I want to refer to another: Emyr Lewis. He stated very clearly at the committee that he didn’t think that the court jurisdiction was the problem, but that we had these descriptions of bodies of law, of England and Wales law, for example, and also laws that are different in Wales to what they are in England. These are diverging more and more, but there is still a desire by some unintelligent people, such as civil servants in Westminster, to actually compress it all into one body of England and Wales law. Now, I can tell those people that, in the middle ages, there was no problem. In the Marches and in Wales there were three bodies of law living simultaneously.
Yr Arglwydd / Lord Elis-Thomas
Thank you. I’m pleased to have the support of my colleague from Monmouthshire on all occasions, of course. We had three systems of law running simultaneously and the lucky defendant in civil cases could choose: ‘Please, sir, can I be tried under Crown law?’, said one. ‘Please, can I be tried under the law of the Marches and the barons?’ I’m not sure if that was useful, and the other was very interesting: ‘Please, can I be tried under the laws of Hywel Dda?’ So, we’ve been here before. This idea that a divergence in law is a problem for lawyers—. As the First Minister has already said, it’s a benefit to them. Let’s not actually imagine that there is such a thing as England and Wales that still exists as it did in the past, because it truly never was the case.
Y Llywydd / The Presiding Officer
I call on the First Minister to speak on behalf of the Government. Carwyn Jones.
Thank you, Llywydd. Could I begin by saying that at the heart of the Bill is this issue, that it reserves the law in its entirety, and then confers powers out from that reservation? Because of that, it’s not truly a reserved-powers model. If we look at the law itself, can I say, from the beginning, as I start, that I was unconvinced about the need for a jurisdiction at the beginning of this process? Now, I am utterly convinced. Because I know that the issue of the preservation of the single jurisdiction is at the very heart of the flaw in the Wales Bill. It’s because of the single jurisdiction that the Bill is flawed. That’s why it has to be addressed.
We have a situation now where judges cannot sit in Wales unless they’re trained in areas of Welsh law. That’s happening now. We have practitioners—I’ve heard this from judges—who come into Wales and argue the wrong law because they think the law in England and Wales is the same. We have legislation that, on the face of the legislation, says that it applies to England and Wales, but it doesn’t. So, my question is: why the obsession with preserving the single jurisdiction? We know that things have changed. To say it’s been there for centuries is to ignore devolution, because we have a National Assembly. It is a law-making Assembly and, of course, in time, a Parliament.
Whilst, of course, I accept and agree with the motion itself, there are one or two issues that I think need further examination. I don’t understand the difference between a ‘distinct’ and a ‘separate’ jurisdiction, I have to say. You cannot have a distinct jurisdiction within a jurisdiction. So, the question I would ask is: what does that mean exactly? I’m sure part of the answer is that it would mean that laws only extend to Wales. But, what is the difference between a distinct and a separate jurisdiction? One way, possibly, of explaining it would be that a separate jurisdiction would have a separate court system; a distinct jurisdiction would be a separate jurisdiction, but without a separate court system. I accept that. One of the issues that I had with the issue of a separate jurisdiction was the cost of setting up a separate court system. But, the Lord Chief Justice himself has said there’s no need to do that. So, the cost of setting up a court system disappears. In fact, if the Ministry of Justice were to look at this carefully, they would understand that if we share a court system with them, we would have to contribute towards it, because we’re sharing the court system. There’s a saving for them. They haven’t quite twigged that yet, but they know that. We accept that that is going to be the case.
We know that there is an obsession with keeping the law of England and Wales, but, if you have a distinct jurisdiction, you cannot have a law of England and Wales. It has to be a law of Wales and a law of England. Is that such a radical move? England and Wales is the only jurisdiction anywhere in the world where there are two legislatures that pass laws in the same policy areas. It’s abnormal. That can never work in the long term. The UK does not exist as a legal jurisdiction. Scotland does. Northern Ireland does. The Isle of Man does. Jersey does. Guernsey does. There are hundreds of jurisdictions with the US. They all exist with very porous borders. So, actually, it’s not that radical a suggestion to set up a Welsh jurisdiction with a shared court system. Northern Ireland did it less than 100 years ago. Northern Ireland is half the size of Wales. The route through the courts in Northern Ireland leads ultimately to the Supreme Court. The route in the Scottish courts, in the civil courts, leads to the Supreme Court—not in the criminal courts, which are completely self-contained.
The issue of a porous border: well, again, in America, there’s any number of jurisdictions with porous borders. There is no more porous border than the border between Northern Ireland and the Republic of Ireland, and that’s a border between two sovereign states. And, if UKIP have their way, the border between the UK and the EU. That border is very, very similar to the border between England and Wales in terms of the travel across it, in terms of the settlements on both sides of it. There’s no problem there in terms of the fact that not only are there different jurisdictions, but, of course, they’re physically two sovereign states. So, the issue of the porousness of the border, to my mind, doesn’t apply.
If we take out the issue of the cost, and this is an issue that the Secretary of State and I have debated—take out that issue—the next issue that’s put in place is the issue of how would the professions work. Would it be possible for lawyers in Wales to practice in England? Good question, and an important question. The answer is, ‘Of course they would’. They’d have a unified court system with the same rules, the same procedures. When I was in practice, it wasn’t difficult to go and practice in Northern Ireland, or the Isle of Man, or Jersey, or Guernsey, or the Australian states, or New Zealand—but not in Scotland—because they were all common law jurisdictions. This idea that somehow there would be a barrier put in place for lawyers travelling between the two is nonsense because we see it in jurisdictions elsewhere. So, that argument goes out the window.
We’re at the point now, in dealing with the UK Government, where, when we say, ‘What is the point, then, of keeping things as they are?’, the answer simply is, ‘Because we want to’. There’s no more reasoning behind it. So, what we look at when we talk about a distinct jurisdiction is not something radical; it’s normal. It’s not something that somehow affects the unity of the UK, because the UK doesn’t have a legal jurisdiction. It’s a model that is replicated across many, many other parts of the world. It doesn’t carry a major cost, because we would not have a separate courts system, we would not have a separate penal system—they do carry costs; I understand that. There would not be a problem in terms of the legal professionals being able to operate in different jurisdictions either. So, we come back to this point: what is the point of keeping something that is so complicated when there is a simple alternative? That is something that we need to wrestle with, I would argue.
That said, the committee, of course, has looked at this in detail. It’s certainly a step forward to have a situation where we do not have laws that technically apply in England or laws that say that they apply across England and Wales but only apply in England and not in Wales. That can’t be tidy. We know that the jurisdiction as it stands is the fundamental flaw at the heart of the Bill. Unless that is dealt with, then that flaw will always remain. Now, I’m open to ideas that would show that there are other alternatives. What the committee has come up with is an interesting idea, but are we really saying that the Welsh Parliament, if it’s called that in the next Assembly term, will be the only parliament in the world without a jurisdiction, because that’s what it would be? It doesn’t mean it has to control all the laws. There are UK laws that operate in Scotland and Northern Ireland that operate within those jurisdictions. There’s no difficulty with that. It’s a widely accepted situation. But we have to understand that if we’re going to get a tidy, clear, simple settlement, then avoiding the issue is not an option. One of the options has been put forward by the committee. I welcome that, and there will be many other options, I am sure, that will be looked at over the course of the next few months.
Y Llywydd / The Presiding Officer
I call on the Chair of the Constitutional and Legislative Affairs Committee to reply to the debate—David Melding.
Thank you, Presiding Officer. As this will be the last contribution to this afternoon’s debates on the draft Wales Bill, can I thank all Members who have taken part? I think we’ve had a hugely important and constructive debate, or series of debates, and I think it does demonstrate that we want to come up with the solutions to the challenges of Welsh governance and what would be a settled constitutional position.
Mick Antoniw started this section by saying that a distinct jurisdiction is a simple, practical reform, and it does allow theory to catch up with practice. He referred, in this sense, that the judiciary are already more or less treating Wales as if it’s a distinct jurisdiction so that Welsh laws can be properly administered. And that very much reflects the tone of the evidence that we’ve had from various representatives from the judiciary.
Lots of people have referred to a separate jurisdiction, and I will reply to some of the First Minister’s questions in a moment, but can I say to Nick Ramsay that you did concentrate on a separate jurisdiction rather than what the committee recommended, which is distinct? I do think that that’s a distinction with a difference. I don’t think a distinct jurisdiction is just another name for a separate jurisdiction, as I will indicate. So, I would say to you that, in supporting this motion, and acknowledging that we do need a distinct jurisdiction, you are not, by doing that, saying that you agree with a move in the near future to a separate jurisdiction, if that helps you this afternoon.
Simon Thomas just demonstrated—
Will you give way?
I’ll give way.
Sorry to intervene. For the record, I think I do need to point out that I did support the CLA committee’s call for a distinct jurisdiction. I think that would be understood by most Members in the Chamber.
Yes, and, certainly, if you vote in favour of the motion, then that’s exactly what you’ll be doing, and it should not be confused with endorsing at this stage a separate jurisdiction. Perhaps I did not express myself very clearly.
Simon Thomas gave us an example of the current fiction that means that England-and-Wales law extends to England and Wales even when it is only applied in England, or applied in Wales—whatever. Your confused citizen ought to have been confused. He asked a very rational question. We don’t serve our electorate very well, I think, if we don’t attempt, at least, to bring some clarity to this area.
William Powell said that the administration of justice needs to keep pace with the consequences of devolution. Again, I think the judiciary absolutely take that on board. And that divergence is inevitable. Even if we continue under the current fiction that it’s meaningful to say that something only applies in England or Wales but extends to both, even if you keep on with that concept, divergence is inevitable, because more and more law is going to be made to be specifically applied in Wales, and more and more laws will be made specifically to be applied in England. Divergence is a consequence of devolved Government. It is going to happen, and it is going to increase.
Alun Davies said that to preserve and protect the single jurisdiction should not be one of the purposes of the Bill, however much you want a single jurisdiction, should that be your view, and I agree with that. I think that has been part of the problem. It is one of the design flaws, I’m afraid. I also think you were very wise in reminding us that conflict is very often just caused by a lack of clarity, and it leads to huge problems. Again, it doesn’t help the proper intergovernmental relations that you want to see develop if there’s just this horrible confusion as to who can do what.
Dafydd Elis-Thomas said that the Supreme Court did clarify our constitutional position, without question. It was a landmark judgment and it helped Welsh governance. It brought great clarity. And, of course, it did it by interpreting the intention of Members of Parliament when they passed the Government of Wales Act 2006. There is a danger that this clarity will now be lost. That would be backwards step, there’s absolutely no question about it, and we need to prevent that occurring. Then you talked about the overlapping jurisdictions, which is just part of modern governance, as it was part of medieval governance, and I’m sure we will all reflect on these deep historical judgments and comparisons that you’ve made.
The First Minister said that one of the problems with the draft Bill is that it reserves ‘the law’, and that is not a proper field to say is reserved, because law extends to all legislative action in public policy areas, and to reserve ‘the law’ in that sense is a confusing and unhelpful thing to do. It certainly, if you do that, means that, whatever you then say are the powers of the Assembly, then you are, in effect, conferring those powers on it, and it continues this conferred-powers mentality.
You also acknowledged that the judiciary now behave as if Wales is a distinct jurisdiction. Again, as I said earlier, that has been an impressive part of the constitutional affairs committee’s work, I think, just to see how effective the judiciary have been in responding to the challenges of devolution. You did then say you didn’t quite understand what a distinct jurisdiction is, compared to a separate jurisdiction. I would commend the report we did on the desirability, or otherwise, of a separate jurisdiction, published two or three years ago now. At great depth we examined this question.
In one way, a distinct jurisdiction is obviously an important move away from the concept of a unified jurisdiction at the moment, even if a unified system continues in terms of the administration of law in England and Wales. But it was our conclusion that, to coherently speak about a separate jurisdiction, we would have to look at the whole issue of criminal law and the administration of justice, particularly over things like penal policy and policy over the length of sentences for criminal offences. That sort of thing would inevitably have to come into play, and to have a separate jurisdiction that didn’t cover criminal law would be problematic, particularly for the public.
Also, a separate jurisdiction most certainly would need its own system of higher courts. I completely agree with you: you wouldn’t demolish all current Crown Courts or not use them. Of course, what would happen is that all current courts, the buildings, would just transfer to the Welsh jurisdiction. But, in terms of what would be necessary, there would have to be a Welsh high court and that would come at some cost—not prohibitive; there are easy ways of allowing higher courts, and even appeal courts, to operate that would continue to draw on the expertise that’s available on an England-and-Wales basis. You could have appeal court judges that sit as appeal court judges in London but then have a ticket also to deal with cases in Wales. That can happen, but you would have to look at all that if you were really aiming at a separate jurisdiction, and that does, I think, have a greater degree of magnitude in terms of the importance of the decisions being made than what we’re talking about in terms of a distinct jurisdiction.
A distinct jurisdiction would mean the laws we pass here apply and extend to Wales. That would be an important change. It would be a change that would permit us, then, to consider the full case for a separate jurisdiction, but it would not make a separate jurisdiction, as I’ve defined it, inevitable. With that, I close this afternoon’s series of debates and urge Members to support this motion.
Y Llywydd / The Presiding Officer
The proposal is to agree the motion. Does any Member object? The motion is therefore agreed unanimously in accordance with Standing Order 12.36.
Motion agreed in accordance with Standing Order 12.36.
Y Llywydd / The Presiding Officer
The six debates this afternoon have been agreed by the whole Assembly, and I would like to thank Members for their considered and well-thought-out contributions. I think it’s been very instructive, particularly on the future of the Welsh coracle fleet—something I hadn’t considered before. [Laughter.] So, thank you very much.
Y Llywydd / The Presiding Officer
We now move to the next item on the agenda, which is the short debate.
The Deputy Presiding Officer took the Chair.
Y Dirprwy Lywydd / The Deputy Presiding Officer
Will Members who are leaving the Chamber do so quickly and quietly, please? The final item, then, is the short debate, and I call on William Powell to speak on the topic he has chosen.
Diolch yn fawr, Ddirprwy Lywydd. I am very pleased to be able to bring forward this important debate today on this otherwise historic afternoon and evening and look forward to contributions from Jeff Cuthbert, Joyce Watson and Kirsty Williams on this topic. I would like to begin by inviting you to watch a short video that’s been produced by the Welsh Refugee Council, airing these issues. It will be before us just now.
A DVD was shown. The transcription in quotation marks below is a transcription of the oral contributions on the DVD. The presentation can be accessed by following this link:
‘Hannah Wharf: The Nation of Sanctuary would mean for Wales that it’s the first country in the world to demonstrate and actively commit to being a place of welcome and sanctuary for refugees and asylum seekers.’
‘Rocio Cifuentes: This is the worst refugee crisis since the second world war, and we have a history in Wales—during the second world war we opened our homes and our doors to welcome children and families fleeing from Hitler’s regime. We welcomed Jewish people from Austria, from Germany, from across Europe, so this is what we want to do now for children who are now fleeing war-ridden conflict zones. We want to offer that same sanctuary, welcome and a place for these people to build a new future and a new life in Wales.’
‘Hannah Wharf: It would mean that the Welsh Government shows its commitment through policy and then delivery and implementation of that policy and legislation to improve the lives of asylum seekers and refugees. It would mean that individuals and people living in Wales take an active role to welcome refugees into their communities, into their neighbourhood, into Welsh society.’
‘Mustafa Hameed: It can be either giving a donation of clothes, food, visiting your local refugee/asylum-seeking centre, supporting those people who are delivering those front-line services, or just basically smiling at an asylum seeker and refugee and just making them feel generally welcome, because they’ve been through so much.’
‘Betty Nyamwenge: It has helped me, actually most of all, to gain trust, because when I fled, I could not trust anybody. It was the fear, you know, the traumas and, you know, just cut off from everything. But, involving myself with City of Sanctuary, I regained my life and the generosity that I received is what keeps me moving forward and looking forward to how I can be part of the sanctuary even more, to, you know, provide the kind of help that I was given.’
‘Aliya Khalil: They changed our lives, they helped us, they showed us what to do, where to go, and that was really, really very important for my family because I felt—me and my family felt—like we were aliens. Yes, we feel very grateful to them and wish every asylum seeker could have this support and this help.’
‘Hannah Wharf: There’s a global humanitarian crisis and it is our responsibility as individuals, as society, as nations to play our part to ensure that people around the world have access to sanctuary. You can make a difference to the lives of refugees and asylum seekers: you can pledge your individual support for a Nation of Sanctuary; you can ask and lobby your organisation, where you work or where you volunteer, to pledge their support to City of Sanctuary; you can donate money and clothing to support services across Wales; you can join social media campaigns and lobby your AM or your local MP or your councillors; and you can create a community and a neighbourhood of welcome through being friendly, being kind and being nice to people who are newly arrived in Wales.’
Again, I’d like to put on record my thanks to the Wales Refugee Council for enabling us to show that film this afternoon. Wales is rich in culture and heritage. The story of refugees coming to our country from different lands around this globe is very much a part of that story. In the nineteenth century, Jewish refugees fleeing persecution in Russia and eastern Europe settled in our main city ports of Cardiff, Newport and Swansea. Similarly, Wales became a safe haven for Jews fleeing Nazi persecution, and migrants from across Europe and beyond have added to the diversity and the richness of our communities. In a smaller way, in my own family, the Black mountains, back in the late eighteenth and early nineteenth centuries, offered sanctuary to some members of my own family who’d been unfortunate enough to support Bonnie Prince Charlie in his unsuccessful bid for the throne and, as a result, suffered some persecution of their own kind. That’s part of my own story.
I was really proud recently to have had the opportunity to take part in a very important and poignant Nation of Sanctuary event held in the Senedd before Christmas, and hosted by our Minister. I spoke to a number of asylum seekers and refugees, some of whom were referred to and took part in the film. Many of them had suffered terrible ordeals before arriving in Wales and I was moved particularly by a number of the testimonies that I heard on that day. There were of course differing views voiced at the event, but the overriding message was that those seeking to find a safe haven from conflict or starvation not of their making are, and should be, welcome here in our country.
One speaker that we did hear from at the event was Rocio Cifuentes, director of Ethnic Youth Support Team, a charity based in Swansea. Rocio’s parents came to Wales from Chile when she was but a young child, in order to escape the Pinochet dictatorship, which killed thousands and created around 1 million political refugees. Through the financial support, quality education, housing and healthcare support that her parents were given access to, they were able to start a new life here in Wales and make an active contribution to the society of which they’re now part. Her father went to work as a teacher and has now worked as an educational psychologist for Swansea county borough for more than 20 years, whilst her mother qualified as a social worker and has worked in charities and for the local authority’s refugee support scheme as well as teaching Spanish to adult learners for over 30 years. I believe that this is a story that could be replicated many times over as to how we would benefit if Wales were to become a Nation of Sanctuary.
We have heard a lot in recent months about how we are facing the biggest refugee crisis since the second world war, and there are some shocking statistics out there that demonstrate just how severe the crisis that we face is. One in every 122 human beings on this planet is a refugee, asylum seeker or displaced person, and over half of those are children.
Conflict and persecution have forced over 4 million Syrian refugees into camps in Jordan, Lebanon and Turkey, and the International Organization for Migration has recorded the deaths of over 2,600—2,600—people crossing the Mediterranean in their desperation to find safety. The UNHCR report that over 42,000 people are being displaced in, or forced out of, Syria every day. Yet, in many ways, the narrative from politicians, commentators and some members of the public is hardening on this issue, and the UK Government’s Syrian vulnerable people’s resettlement scheme will see only 20,000 Syrian refugees resettled from refugee camps by 2020. This is wholly inadequate, and I’m very proud that my own party has been very strong in their condemnation of the UK Government’s inadequate response to this disaster.
Thankfully, there are a lot of really effective projects and hard-working organisations out there doing some fantastic work. For example, the Welsh Refugee Coalition is a coalition of organisations working in Wales with asylum seekers and refugees and with the communities in which they live, at every stage of their journey.
The City of Sanctuary organisations, which work in Cardiff, Swansea, and the more recently established Hay, Brecon & Talgarth organisation in my own region, operate with the aim creating a network of towns and cities throughout our country that are proud to be places of safety for people seeking sanctuary and helping them to integrate into those local communities. This worked very effectively indeed just last month, when Kirsty Williams and I were able to attend an event hosted by that Hay, Brecon & Talgarth team at Hay castle with refugees from Swansea, enabling them to spend time in the beautiful, if rather chilly, Welsh countryside and also to see an area of our country that they would not otherwise have had the opportunity to visit.
There is no easy solution to the refugee crisis that we face, and there’s certainly no clear consensus on exactly how many the UK as a whole should be accepting, nor on exactly what the impact will be on our local services. But what’s equally clear is that this refugee crisis is not going to go away, and the problem is likely to get worse, particularly as the winter months drag on. The recent reports from the besieged town of Madaya in Syria, where people are literally starving to death, are a stark reminder of this, and reporters have said that there are numerous other towns and cities across Syria that face similar circumstances.
The words we heard spoken in this Chamber towards the end of last year, when the refugee crisis really came to the fore, were very encouraging, and Members from every party were pleased to hear both the First Minister and the Minister for Communities and Tackling Poverty stating that refugees and asylum seekers are welcome in Wales.
We need more than warm words, however, and I’d like to highlight, in summing up, some of the particular points that were made in the video about what the Welsh Government can do: fund further advice, advocacy and support services; ensure that the outcomes of resettlement schemes are consistently monitored, so that effective systems can be established; use devolved powers over equalities, housing and social care so as to ensure that all people living in Wales, including asylum seekers and refugees, are treated with equal respect and dignity; promote the participation and inclusion of asylum seekers and refugees in local communities; and, of course, support the ‘Wales: Nation of Sanctuary’ initiative.
In conclusion, I believe the ultimate way of showing Wales’s commitment to helping to address the crisis would be to declare ourselves a Nation of Sanctuary, and I hope that the Minister will be able to give serious consideration to this proposal this evening. Although the Welsh Government has limited powers over who’s allowed into this country, there is so much more that could be done to make these refugees comfortable in their new land. I’m sure that we would welcome nothing more than a total commitment to Wales being what it always has been: a nation of sanctuary.
Can I thank William Powell for allowing me to speak? Wales has a long tradition of welcoming refugees during times of war and strife. Wales must continue to do this, and I am pleased that Caerphilly County Borough Council has taken the lead by becoming one of the first Welsh local authorities to accept a small number of Syrian refugees.
Despite the negative news headlines focusing on the issue of jihadist infiltrators, we must not forget that the overwhelming majority of refugees are genuinely fleeing conflict and persecution in their increasingly hostile home country. Ordinary Syrian people of all faiths have been caught between both the Assad regime on one side and the so-called Islamic State or Daesh on the other. Many now have little choice but to flee their home country to safety.
I too have met with the Welsh Refugee Council on a number of occasions and have seen the excellent work that they do to support and promote the welfare of refugees in Wales, many of whom are very vulnerable. My daughter, Sally Osborne, organised a fun event to raise money for refugees and also organised a clothes collection to donate unwanted items. My other daughter, Amy Wallace, who lives in—
Y Dirprwy Lywydd / The Deputy Presiding Officer
Quickly now, please. You can finish, but be quick.
My other daughter, Amy Wallace, from Cardiff Central, also organised a large van and drove to Calais in France to deliver clothes and other much-needed items to refugees who are stranded there. Indeed, Bargoed YMCA, where my constituency office is based, opened its doors and collected a vast amount of clothes and survival equipment, which were sent on to where they were needed.
As these examples show, I’ve been heartened by the response of ordinary Welsh people to the plight of the world’s refugees, despite the efforts of some politicians to opportunistically score points on the issue ahead of elections and referenda later this year.
I’m extremely grateful to William Powell for bringing this debate today, in the most sensitive of times, and actually addressing one of the most serious issues that need addressing. The video, really, said it all: it was extremely powerful, and the imagery within it has to appeal to our common humanity. As the speakers in that video said, and as has been expanded since, this is the largest refugee crisis since the second world war. We must have all been truly shaken by the images, and the most disturbing images and the stories that recall the darkest episodes of the past century, of death and destruction and starvation. Perhaps we believed we would never see those things again, but that is hubris at its most dangerous. It is the responsibility of this generation, of us, to make sure that we don’t repeat the mistakes of the past or ignore those warning signs. In Europe today, the fences are being re-erected, but international co-operation, not national chauvinism and isolation, is the only road to peace.
So, yes, let us celebrate the vision and humanity of groups like the Hay, Brecon & Talgarth Sanctuary for Refugees, yes, let us support—
Y Dirprwy Lywydd / The Deputy Presiding Officer
[Continues.]—local authorities like Ceredigion and Powys, who are inviting people within their borders, but, most of all, let us keep human kindness at the forefront of this.
Y Dirprwy Lywydd / The Deputy Presiding Officer
We’re well over time, but is Kirsty Williams still trying to attract my eye? Kirsty Williams. The subject merits flexibility. Kirsty Williams.
I’m very grateful for the indulgence of the Deputy Presiding Officer and I too would like to pay tribute to the work in my constituency under the Hay, Brecon & Talgarth group, and the concept of delivering respite days—so, for refugees who are currently housed in some of our big cities, the ability to come to the countryside and experience something different is very worth while. But can I ask the Minister—? Minister, you know that some of the most vulnerable groups are the unaccompanied children who find themselves scattered throughout Europe. Save the Children believe that Britain could take 3,000 of those unaccompanied, most vulnerable vulnerable children. What action can you take to put pressure on the Westminster Government to play its part in ensuring that there is a safe haven for those children, and that they should be allowed to come to our country and settle here?
Y Dirprwy Lywydd / The Deputy Presiding Officer
And the Minister for Communities and Tackling Poverty to reply—Lesley Griffiths.
Thank you, Deputy Presiding Officer, and I too welcome William Powell’s choice of topic for this short debate and for his and Jeff Cuthbert’s, Joyce Watson’s, and Kirsty Williams’s contributions about making Wales a Nation of Sanctuary for refugees. I think we do have a very proud history of offering shelter to those in need, and I think that’s really been very much reflected in the warm response of people across Wales towards this crisis. As the First Minister has clearly stated, the Welsh Government supports the principle of Wales as a nation of sanctuary.
Of course, a sanctuary must be a place where everyone can feel safe and secure. I think it’s important to emphasise that we have sought and received assurances from the UK Government that all of the Syrian refugees coming to the UK have been thoroughly vetted through a detailed two-stage process. We’re continuing to work to ensure that people from different backgrounds and cultures work together to combat all forms of extremism. I know that the police in Wales are particularly vigilant in dealing with terrorism and hate crime from whatever source it may come. I think, together, we are working to ensure that Wales continues to be a safe and welcoming place.
I fund a number of organisations that support refugees and asylum seekers, including the Welsh Refugee Council, the Trinity Centre in Cardiff, and the British Red Cross in Newport. Displaced People in Action and Oxfam Cymru are key players in the City of Sanctuary movement, and they’re members of the Syrian refugee operations board.
I’ve been very pleased to see that local groups have been forming to offer support, not just in areas that have already settled Syrian refugees, but as William Powell and Kirsty Williams highlighted, in rural areas such as your constituency and your region. I think, if Wales is to become a true nation of sanctuary, then we do need to encourage more areas that haven’t previously had links with refugees to offer support.
All 22 local authorities in Wales are preparing to play an active role in the UK Government’s Syrian vulnerable person resettlement programme. The Prime Minister introduced his own target of resettling 1,000 refugees before Christmas, and I considered that to be a very artificial deadline, because what I was very concerned about, and what I’m still very keen to see, is that local authorities have all the necessary services in place before they settle refugees. Nevertheless, I think it was really good to see Ceredigion, Torfaen, Caerphilly and Neath Port Talbot, none of which had had previous experience of resettling refugees, to be among the first local authorities in the UK—not just in Wales, but in the UK—to accept Syrian refugees. I really think that that sort of demonstrated the spread of support for refugees, and I think that that brings us closer to making a reality Wales as a nation of sanctuary.
Of course, immigration is not devolved. The Welsh Government doesn’t have any control over support received by asylum seekers or the numbers that are dispersed to Wales. Cardiff, Newport, Swansea and Wrexham have all seen increases in the numbers of asylum seekers that they’ve received.
My officials work very closely with the Home Office, with local authorities and the Wales Strategic Migration Partnership to identify challenges at an early stage, and then work in partnership to be able to identify any solutions. Similarly, while the First Minister has called on the Prime Minister to do more to help those who are travelling across Europe in search of safety, or who are currently in camps in Europe, I think this is a decision for the UK Government. I’ve had a meeting with Richard Harrington, the Syrian refugee Minister, and I’ve written to the immigration Minister on a number of occasions, raising issues, particularly over the immigration Bill and the lack of support for unaccompanied asylum-seeking children in Wales. I was very pleased that the immigration Minister did accept that the remit of the children’s panel in England should be extended to Wales, because it wasn’t initially.
To date, no unaccompanied refugee children have come to Wales as part of the programme. Kirsty Williams is quite right: we need to ensure the safety of unaccompanied children and, if necessary, when they’re here, we need to make sure that they don’t become victims of human trafficking. I know that that’s an area that Joyce Watson and I have discussed.
I’m concerned about the increasing number of asylum seekers who are facing destitution. My officials will be attending a destitution workshop organised by the Wales Strategic Migration Partnership next month and will then provide me with further information.
The UK Government has fully funded the first year of the five-year resettlement programme, and they’ve committed to assisting with funding in years 2 to 5. However, I think we need to continue to press it. It’s something that I’ve been doing over the past six months or so. We need to press for clarity on exactly what funding is available, and I have asked for a further meeting with the UK Government Minister for Syrian refugees on this topic. I’ve agreed to fund the eight regional community cohesion co-ordinators for an additional 12 months. That funding was due to end at the end of March of this year, but I recognise the key role that they play in their localities, to work with local authorities to prepare to resettle refugees through the programme. So, what I’ve asked my officials to do now is to work with the co-ordinators to come forward with a new one-year delivery plan.
As I said, the co-ordinators play a key role in ensuring there are systems in place for managing tensions at a local level and tackling hate crime. There are particular challenges, we know, in encouraging refugees and asylum seekers to report hate crime. Many of them have very preconceived ideas about the police, for instance. Again, we’ve been working with the police on the board to ensure that they’re aware of these concerns. Many of them are very fearful of drawing attention to themselves, thinking that that could affect their immigration status. So, I’ve asked the Welsh Refugee Council, as part of their funding, to encourage refugees and asylum seekers to report hate crime. The Wales Race Forum has identified tackling racism and race hate crime as one of its priorities. I’m really grateful to all the third sector organisations in Wales who are working to tackle race and faith-based hate crime.
Tackling hate crime is a key element in making Wales a true nation of sanctuary. No-one should be in fear of hate crime because of the colour of their skin, their faith or their immigration status. As Joyce Watson said, the video that opened your short debate, William Powell, was extremely powerful. It was very interesting to hear of refugees’ experiences, and I’ve met with refugees to hear about what they thought we could have done better when they first arrived in Wales. I thought what they were saying about ‘Just smile’—. You know, if you don’t have the money to donate or you don’t have items of clothing to donate, just be friendly, be nice, be kind to people who are settling in our country.
In conclusion, Deputy Presiding Officer, we will continue to work with local authorities and the third sector in Wales and to use the powers that we have at our disposal to ensure that Wales is a genuinely welcoming country. We are committed to the integration of refugees and asylum seekers, beginning on day 1 of their arrival, not just when they’re given leave to remain. So, the Welsh Government is committed to the principle of Wales as a nation of sanctuary. Thank you.
Y Dirprwy Lywydd / The Deputy Presiding Officer
Thank you. And that concludes today’s proceedings.
The meeting ended at 19:37.