Since we met in Committee last week, we have had the wonderful celebration of the Wales team’s great achievement in the European cup, which is a matter of enormous pride to us as a nation. I was delighted to see the celebrations on Saturday, which were the biggest thing to happen in Cardiff since VE-day and VJ-day, which I am sure we both remember, Mr Hoyle, if not since when Cardiff won the FA cup in 1926. These events will bring many benefits for the people of Wales. We feel pride not just in the skills of our team, but in the behaviour of our fans.
I saw a performance by the Secretary of State on television yesterday in which he was dancing with a ball on his head and foot. It seemed to be a wordless message; I did not quite get the point. Given these uncertain political times, he might have been auditioning for a future job as a circus performer, but perhaps there was a subliminal message that had he been substituted for Aaron Ramsey, the result of the Portugal game might have been different. None the less, we have had a moment of great happiness for our country. It is a joy to think that the beautiful national language in our anthem was probably heard by more people than at any time in its 3,000-year history. That intrigued many people, and Wales has been given a much sharper identity that will bring about practical benefits.
The Bill’s is proceeding in a consensual way. A great political tumult is going on about our ears, in various forms, but here is an oasis of calm and good sense, as all parties support a beneficial Bill that will give Wales further devolution. Progress on that is slow and endless, but the Bill is a step forward.
I will speak first to amendments 118 and 119. Amendment 118, together with consequential amendments to paragraph 6 of proposed new section 7A to the Government of Wales Act 2006 under schedule 1, and to paragraph 1 of proposed new schedule 7B under schedule 2, take us back to issues flowing from the Government’s insistence on retaining the single legal jurisdiction of England and Wales. In accepting that position, as we must following last Tuesday’s Division, we must now ensure that the Assembly has, within the single jurisdiction, powers that enable its legislation to be enforceable and effective, which is what amendment 118 would achieve.
In our view, the Bill as drafted would restrict the Assembly’s legislative competence inappropriately and reverse the competence given to the Assembly under the 2006 Act, section 108(5) of which allows the Assembly to make what might be termed “ancillary” provisions.
At present, the Assembly has competence to legislate on matters relating to one or more of the listed subjects in part 1 of schedule 7 to the 2006 Act. That Act also provides that the Assembly has powers to make provision about non-devolved matters when that is done to make a devolved provision effective or to enforce a provision if it is otherwise consequential or incidental to the devolved provision. My understanding is that this is not the UK Government’s intention, meaning that our old friend unintentional consequences might well apply.
I am sure that the Government do not, in common with all parties in the House, intend to prevent the Assembly from making provision to enforce or to make effective devolved legislation. However, the Bill currently either prevents that, or is unclear about to whether the Assembly will have the same ability as at present. Under the reserved power model, an Assembly Act will be outside competence if it relates to a reserved matter in proposed new schedule 7A. There is no express equivalent in the Bill to section 108(5) of the 2006 Act. Provisions relating to reserved matters will be outside competence and will not be law even if the intent of the provision in question is confined to making legislation effective or to enforce it. Other provisions are designed to address this issue, but Welsh Government officials have provided the Wales Office with several examples of when the Bill as drafted would have prevented uncontentious provisions in Assembly Acts from being included in that legislation.
These are not hypothetical problems. We have a strange history of the consequences of legislation. We have sometimes had legislation that was cumbersome and slow, while we have also seen judge-driven legislation involving Acts that were subject to adjudication by people outside Wales. Unless the Bill is amended as we propose, the Assembly’s ability to make its legislation enforceable and effective will be inappropriately constrained, and I do not believe that that is the Secretary of State’s intention. We shall not press the amendments to a Division, but I urge the Secretary of State to give very careful consideration to the issues that they raise, to instruct his officials to discuss them further with Welsh Government officials and to table amendments on Report that reflect an agreed position on this important issue.
Let me mention some of the general principles that should apply to our consideration of the schedule of reserved matters. In a reserved power model, it is for the UK Government to explain why the relevant subject matter must be reserved to the centre—to the UK Parliament and Government—for decision. Much of the schedule’s content is uncontroversial. It is common ground that matters such as foreign affairs, the armed forces and the UK’s security system should be determined at a UK level. On other matters, however, the situation is more contested. If reservations affect the Assembly’s existing competence, it is vital that the case for them is made explicitly and that the drafting of the relevant provision is precise and specific. That is essential to protect the Assembly’s ability to legislate coherently and within its competence.
Amendment 83 deals with policing, which is an interesting subject area in which change is desirable. The UK Government’s own Silk commission recommended devolution of policing on the basis that it is a public service that is a particular concern to people in their daily lives, and therefore similar to health, education
and the fire service. That conclusion was reached in the light of extensive evidence, including from professional police bodies, chief constables and police and crime commissioners. I understand that the four present PCCs in Wales are in favour of such a change, and opinion polls show clear public support for it.
Silk noted that devolution would improve accountability by aligning police responsibility with police funding, much of which already comes from devolved sources. In short, he argued that devolution would allow crime and the causes of crime to be tackled holistically under the overall policy framework of the Welsh Government. As Silk noted, present arrangements are “complex”, “incoherent” and “lack transparency”.
Policing is the only major front-line public service that is not at present the responsibility of the devolved institutions in Wales. That anomalous position means that it is significantly more difficult to achieve advantages of collaboration with other blue light services, which is strongly advocated for England in current Government policy, as well as with other relevant public services. Deleting the reservation would address that anomaly, but responsibility for counter-terrorism activity should not be devolved—I would continue to argue that it should be reserved under paragraph 31 of new schedule 7A. The Assembly would be able to legislate in respect of bodies such as the National Crime Agency and the British Transport police only with the consent of UK Ministers, because they are “public authorities” within the meaning of paragraph 8 of new schedule 7B, which restricts the Assembly’s powers in respect of such bodies.
After reflecting on the Silk commission’s recommendations, what is envisaged is the devolution of responsibilities predominantly for local policing. The key point is that devolution would enable police services in Wales to work even more closely alongside other devolved public bodies, with greater opportunities to secure improved community safety and crime prevention.
In England—this is a fine example on which we can base our recommendations—the UK Government are pushing forward the devolution of policing and justice powers with the greatest enthusiasm. Only last week, it was reported that the Minister responsible for prisons—the Under-Secretary of State for Justice, the hon. Member for South West Bedfordshire (Andrew Selous)—declared himself as
“a firm fan of devolution”.
Having signed over new powers to the mayor of Greater Manchester, he hailed
“a new dawn for the justice system”
that is
“run by locals, for locals”
and is an effective justice system that meets the needs of local people. However, in a reserved power model of devolution for Wales, there is an overriding imperative to keep the control of these matters in Whitehall. Where is the consistency and fair treatment for Wales? If something is good enough for Manchester, surely it is good enough for Wales.
Amendment 122 deals with antisocial behaviour. Whatever the outcome on policing, it is imperative that we do not reduce the Assembly’s existing competence for dealing with antisocial behaviour in devolved contexts. That is why there needs to be an amendment to paragraph 41 of new schedule 7A, which relates to antisocial behaviour. As drafted, the Bill would reserve
matters that are currently within the Assembly’s legislative competence, such as antisocial behavioural matters relating to housing or nuisance. That would represent a significant reduction of the Assembly’s existing competence, so the Welsh Government amendment would narrow the reservation to more closely reflect the current situation.
Amendment 123 is on the vexed subject of alcohol. As drafted, the Bill would reserve the sale and supply of alcohol, and the licensing of provision of entertainment and late-night refreshment. The amendment would deletion the reservations and allow the Assembly to legislate on those matters.
Alcohol misuse is a major public health issue and a principal cause of preventable death and illness in Wales. It can lead to a great many health and social harm problems, in particular for a significant minority of addicts and people who drink to excess for other reasons. Given those impacts and the direct link with devolved responsibility for public health and the NHS, there is a pressing need to tackle alcohol misuse, so the Assembly and Welsh Government must have the full range of tools at their disposal. Policies that control the way in which alcohol is sold and supplied are widely acknowledged to be among the most effective mechanisms for tackling alcohol-related harms. Regulating the availability of alcohol is an important way to reduce the harmful use of alcohol, particularly by tackling easy access to alcohol by vulnerable and high-risk groups. Licensing controls are an essential tool which must form part of the Welsh Government’s strategy to tackle alcohol- related abuse. The reservations place unnecessary and inappropriate constraints on action to tackle alcohol availability in Wales. Those powers are devolved in Scotland and in Northern Ireland, where similar public health challenges were faced, and they should also be devolved in Wales.
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The Bill, as drafted, would enable the Assembly to legislate on ports and harbours, and would also transfer additional Executive functions in respect of them from the Secretary of State to Welsh Ministers. That is welcome, and is in line with the Silk recommendations. However, the Bill also creates a specific category of “reserved trust ports”, on which the Assembly could not legislate and in respect of which Welsh Ministers cannot exercise any powers. The Bill defines reserved trust ports in such a way that only Milford Haven would be such a port.
Why is that reservation necessary? Silk did not recommend reserving any trust port, and neither did the St David’s day Command Paper. When giving evidence on the draft Bill to the Welsh Affairs Committee, the then Secretary of State said that the purpose of the clause was to reserve Milford Haven specifically as a strategic energy port owing to its status, but the United Kingdom Government, inconsistently, declined to cite energy security as a policy driver for an investment in Milford Haven to support the sale of the Murco refinery in 2014. Aberdeen trust port could equally be seen as a strategic energy port, given the importance of North sea oil to the UK, yet it was devolved to the Scottish Government. Why on earth should the same not happen to Milford Haven? Why should its control not be devolved to the Welsh Assembly?
The concept of a reserved trust port is unnecessary and inappropriate, and should be removed from the Bill. That would enable the Assembly to have legislative competence in respect of all trust ports in Wales, including Milford Haven. As recommended by Silk and the Welsh Ministers, powers should, by virtue of the amendments, extend to Milford Haven, as they will to other harbours in the country.
Amendment 124 covers employment and industrial relations in devolved public services. The devolved public service workforce, comprising those working in “Wales public authorities” as defined in the Bill, or engaged in public services that are contracted out or otherwise procured by such authorities, are intrinsically inseparable from the services and functions of those authorities, all of which work within the devolved sphere. The workforce are the main means by which authorities carry out their functions and provide services for the public. There is a well-recognised link between good employment practices and industrial relations within authorities, and the quality of the services that they provide for the public.
As the Bill is drafted, the Assembly would not be able to legislate on workforce matters in devolved services. The amendment proposes an exception, so that the general reservation preventing the Assembly from legislating on matters relating to employment and industrial relations would not undermine the Assembly’s ability to legislate in respect of devolved public services and the devolved public service workforce. The amendment would not undermine the shared framework and protections in respect of employment and industrial relations spanning the private and public sectors across the United Kingdom, but would give the Assembly a chance to augment them where appropriate, to support the effective delivery of devolved public services by Wales public authorities.
Amendment 195 deals with teachers’ pay and conditions. We agree that this reservation should be omitted. Education has been a devolved matter since the establishment of the Assembly, and retaining the reservation would be anomalous by comparison with the other devolution settlements, as confirmed by the Silk commission. Teachers’ pay and conditions are an integral part of the school system, and closely interrelated to the devolved education function. Maintaining this reservation and the associated Secretary of State’s functions, when the two education systems in England and Wales are diverging year on year, makes it more difficult for the Welsh Government to deliver Welsh priorities with the national pay systems and structures set up to support a different, English employment model. This is the whole principle of devolution about which we all agree.
The UK Government’s academisation programme, for example, does not require the same statutory compliance with the “School teachers’ pay and conditions” document that is required for all maintained schools in Wales. Additionally, the freedom in England for academies not to comply with the same professional registration standards does not operate in Welsh maintained schools. This means that the School Teachers Review Body report every year tends to reflect a different educational context. The relevance of the current process, driven by the fact that the Secretary of State’s remit to the review body does not reflect Welsh issues, is diminishing in relation to Wales. The Assembly should have legislative competence in this matter, and Executive responsibility should transfer
to Welsh Ministers to allow for the development of an effective workforce strategy that reflects the needs of Welsh schools.
Water and sewerage are covered in amendments 128, 127 and 129, and we seek the deletion of the reservations 90 and 91. There are several different aspects to policy on water. The Secretary of State is well aware of how sensitive a matter this has been for generations; I think he agrees it has been a matter of great contention. I recall many years ago going to inspect public toilets in mid-Wales and seeing a notice on them saying, “Please flush twice; England needs our water.”
There has been a recognition that water is a great national resource of Wales that is available in great abundance. We have a great richness in water resources, but, sadly, there is the great history of Tryweryn and other matters that concerned us over many years, when Wales was plundered for its natural resources without compensation.