Wales Bill — House of Lords, 2016-12-14
Topic: Government Operations
Igor Judge (Crossbench, Unknown): My Lords, I shall not speak to Amendments 63 or 64, but I shall speak to Amendment 65. As the noble Lord, Lord Wigley, reminded the House, I had the privilege of being Lord Chief Justice of Wales for some time and I regard this as a constitutional question. I also recognise that at this time of the night, a speech like that of Welsh-born Henry V before the Battle of Agincourt—or before the walls of Harfleur—will not do very much for anybody, so I will confine myself to a few choice words, but maybe more than I intend I make this speech because this provision is simply a constitutional aberration. Here we are in the mother of Parliaments, an institution where the principles so movingly crafted by Abraham Lincoln on the blood-soaked field of Gettysburg, about government for the people by the people and of the people—democracy—is embodied. Yet we are to provide a Minister of the Crown with powers to amend, repeal, revoke and modify—perhaps I can use the word "disapply" to cover all those—any primary or secondary legislation. We do it all the time in what are called Henry VIII powers and we all let it happen. We should not, but we do—so let us face the fact that there are Henry VIII powers in this provision Secondary legislation can overrule primary legislation, but this is the malevolent ghost of King Henry VIII wandering through the valleys of Wales because, at least in the provision as it stands, if the primary legislation of this Parliament is to be overruled there are going to be regulations which would empower this House to overrule it. I disagree with the process but it is up to Parliament, and Parliament provides it. The necessary regulations are subject to parliamentary approval or annulment, but—this is the crucial but—the regulations that would empower the Minister to disapply legislation of the National Assembly for Wales are not subject to the equivalent control by that Assembly. We seem to have been discussing this legislation all day yet any part of it—primary, secondary, tertiary or whatever it may be—can be wiped out by a Minister without any consultation with anyone at the National Assembly for Wales. In other words, we would wipe out the enactments of a democratically elected Parliament that we call the National Assembly If I may say so, I find a ministerial diktat that is given such powers quite astonishing. It is astonishing that it is considered here in the mother of Parliaments. There is not a scintilla of control of the Executive envisaged in these provisions, which is why I describe them as a constitutional aberration. I am sorry to use strong language and I know I am not before Harfleur, but it is an insult to the democratic process which this Parliament created when the National Assembly for Wales was created. That is my prime concern, but I am concerned, too, about the legislation itself. Can we just remember that this is open to question as a piece of legislation? Clause 60 as it stands is inconsistent with the spirit and arguably, I suggest, with the precise language of Clause 2. If Parliament is normally precluded—as it would be for the reasons we have discussed this afternoon—from legislating about devolved matters without the consent of the National Assembly, why on earth should a Minister or the Executive, not Parliament, be given wide-ranging powers, including powers to disapply primary legislation of the Assembly by secondary legislation without any consent, without so much as a "by your leave"? There may be political consequences, but in law that is what we are being asked to consider I know that the Minister, who has dealt with me with the greatest possible courtesy, will no doubt point out that that is what happens in Scotland. So it does. We should be embarrassed that we allowed it to happen. The fact that it happens in Scotland does not alter the fact that it was an aberration there and will be an aberration here. I beg to move.