Wales Bill — House of Lords, 2016-11-07
Topic: Government Operations
Dafydd Elis-Thomas (Non-Affiliated, Unknown): My Lords, we come to the end of our scrutiny of Part 1 and to the group of clauses subtitled, "Executive competence etc". The Minister will not be surprised to know that I am particularly interested in the "etc", because the issue of the competence of the Assembly and how it is defined in law is one that he and I have followed throughout our political careers in Welsh devolution—or should we now say "Welsh reserved matters"? The Assembly has developed away from a body that did not have an Executive: the notion of an elected body—that is, the legislature—and a Government—an Executive—were confused in the original Government of Wales Act 1998, which was really a rewritten version of the Wales Act 1978. But that was the form of constitution with which we had to work. It is not just a matter of what politicians work with but the understanding of the constitution outwith the political class and the ability of the electorate to engage with the constitution that I have always been deeply concerned about I am not sure where we are going in the detail of this Bill. In the attempts to define the functions of Ministers and the transfer of ministerial functions, which we are dealing with in these clauses, we have not moved much further in clarity of understanding of what devolved matters are about and how Ministers derive their functions. I pray in aid the Explanatory Notes, which in introducing us to the delights of Clause 18 tell us about new Section 58A, inserted into the Government of Wales Act 2006, which seems to be taken as the urtext of our constitution—I may come back to that later this evening with the question of consolidation. The Explanatory Notes emphasise that that new section inserted into the Act, "confers common law type powers on Welsh Ministers; these powers are described as executive ministerial functions and they will be exercisable both in relation to devolved functions and ancillary to executive functions conferred on", Ministers in reserved areas. It goes on to say: "Subsection (5) defines what is meant by an executive function; this does not include any prerogative functions" Clearly, the earlier Statement in this House, repeated from the Commons, and the judgment of the High Court has been much about the definition of "prerogative" and its limits and potential in defining what Ministers can do. If we are being told that Welsh Ministers have no functions by virtue of any legislation or the prerogative, how do they derive their functions? There is no explanation known to me or my advisers for the exclusion to which I have just referred During the debate in the other place, the Government said that they intended to transfer, "as many of these functions as we can".—[Official Report, Commons, 5/7/16; col. 835.] That is, they will transfer to Welsh Ministers pre-commencement functions and devolved powers. What is the present ministerial position on that, and on the draft transfer of functions order which was promised to be brought forward in later stages of the Bill? In particular, I would like a clearer explanation of why the approach adopted in the Scotland Act 1998 has not been adopted in how we define the functions of Welsh Ministers. I beg to move.