Wales Bill — House of Commons, 2016-06-14
Topic: Mixed Topics
David Ian Jones (Conservative, Centre-right): I congratulate the Secretary of State on introducing the Bill. I have to say, however, that that should not be interpreted as meaning that I greet it with unalloyed enthusiasm. This is the fourth major piece of constitutional legislation aimed at conferring devolved powers on Wales in less than 20 years. The very fact that we are in the Chamber to debate this yet again shows just how flawed the original devolution settlement was and how important it is that, on this occasion, we try to get it right at the fourth time of asking The Secretary of State has very kindly presented a briefing note on the Wales Bill, in which he acknowledges that "there is more work to do", and that there are "unresolved issues" and "unfinished business". He goes on to say that he is looking to "amend the Bill if necessary during its parliamentary passage." I must say that he is probably not likely to be disappointed in that regard The opening clauses of the Bill follow the current fashion for declaratory legislation. We are solemnly told that the "Assembly and the Welsh Government are a permanent part of the United Kingdom’s constitutional arrangements." We are also told that they are "not to be abolished except on the basis of a decision of the people of Wales voting in"— yet another— "referendum." We are told that there is a "body of Welsh law", which should not of course be in any way confused with a Welsh jurisdiction. There is a declaration that in effect incorporates the Sewel convention into statute, in that the Bill declares that this Parliament "will not normally legislate with regard to devolved matters without the consent of the Assembly." Such declarations are all well and good, but they are in danger of overlooking the constitutional fact that this Parliament is supreme, which makes one wonder about their worth and whether they are in reality mere window dressing It is somewhat ironic that, having quite rightly abandoned the necessity test, the Government are now apparently introducing a normality test. As my right hon. Friend acknowledged, that means that the courts might intrude on parliamentary sovereignty by deciding or being asked to decide whether a piece of legislation passed by this Parliament is, so to speak, normal. The Bill does of course change the devolution settlement from a conferred powers model to a reserved powers model, which is deemed to make matters clearer. I have to say that I do not believe that a reserved powers model is, as many contend, a panacea. The reserved powers model is in reality simply a mirror image of the conferred powers model. The nature of the model is less important than the clarity of language, as other Members have pointed out That is particularly important in relation to whether the reservations are comprehensive. The danger is that if the reservations are not comprehensive, there will be problems. I am glad, for example, that my right hon. Friend has not emulated a former Secretary of State for Scotland, who made sure that Antarctica was a reserved matter, and that we will not therefore see an attempt to create a new Patagonia on that continent The necessity test has been abandoned to the extent that it is no longer the case that the Assembly can modify criminal and private law only where modification "has no greater effect otherwise than…is necessary to give effect to the…provision." That was a positive invitation to go to the Supreme Court. However, there is still a necessity test in relation to the law on reserved matters. Proposed new section 108A(3) of the Government of Wales Act 2006 will provide that Assembly Acts cannot modify the law on reserved matters unless ancillary to a provision that is not reserved, but modification cannot go further than is necessary to achieve the devolved objective. Words such as "necessary" and "normally" lack objectivity, and are therefore subject to interpretation, including, in difficult cases, by the Supreme Court. I do not believe, therefore, that simply changing the model of devolution will necessarily achieve the clarity that everyone wants. In Committee, I believe it will be necessary to test whether the reservations are truly comprehensive to avoid any further difficulties of the sort we have already experienced. To be fair, however, the Secretary of State has acknowledged that the Bill is a work in progress, and he will no doubt be expecting such tests and, if necessary, significant amendments in Committee I do not want to dwell too lengthily on individual provisions, but some matters are worth mentioning. First, as the Secretary of State will have anticipated from my interventions, I have a huge concern about the proposal that income tax varying powers in the 2014 Act should now be triggered without a referendum. As a Conservative, I have a particular concern, because at the last general election—despite the apparently rapid passage of time, I remind him that it was only just over a year ago—I and Conservative colleagues campaigned on the basis that the powers would not be triggered without a referendum. Indeed, when I was specifically asked on the doorstep whether the powers would be imposed on the Assembly without consent, I made it absolutely clear that a referendum was contemplated. I must say that it is positively disrespectful of the people of Wales for this Parliament to seek to impose new tax-raising competences without consulting them first That was done in the case of Scotland, and despite the interventions already made by Opposition Members, it is perfectly possible to formulate such a question and, in the case of Scotland, one that could be answered in the affirmative. If the Scots are entitled to that, surely the people of Wales should be entitled to the same level of respect. I invite the Secretary of State to think about that, and to consider whether, in the circumstances, the Bill should be amended by the deletion of clause 16 Secondly, although this may appear to be a minor point, I find it difficult to understand the rationale for devolving to the Assembly the setting of speed limits. Wales and England have a continuous, porous border, and every day there are many thousands of journeys back and forth across the border. It does not bear scrutiny that there should potentially be different speed limits on either side of that border—it makes no sense. I cannot understand what possible reason there could be for devolving the setting of speed limits. What mischief is it aimed at? Who asked for it? Why is it necessary Thirdly, there is the issue of electricity generating consents, set out in clause 36. I intervened on the Secretary of State about that. The 350 MW limit provided for in the Bill seems to have little practical significance, because wind generating stations are expressly excluded. The granting of energy generation consents for capacities of more than 350 MW will remain with the Secretary of State, and there are few conventional power stations with an output of less than 350 MW The worrying fact is that although the Bill is silent on the subject, it devolves competence to the Assembly for all onshore wind farms, with no upper limit at all. I refer the Secretary of State to the excellent Library note, which points out that the Energy Act 2016 has transferred competence for wind farm consents to local planning authorities. A piece of Welsh legislation with which I have no doubt we are all familiar, the Developments of National Significance (Specified Criteria and Prescribed Secondary Consents) (Wales) (Amendment) Regulations 2016, provides that all wind farm developments in Wales are designated as developments of national significance. According to the Library note, which I have no reason to doubt, that means that all such developments, whether of up to 50 MW or more than 50 MW, will be determined by procedures set by the Assembly Given the thrust of policy at the Department of Energy and Climate Change, I suggest that the consequence of that will be a rush to develop wind farms in Wales. Indeed, I suggest that there may be a free-for-all. Areas such as my constituency, Montgomeryshire and Brecon and Radnor, which already have a lot of wind farms, are likely to be under further pressure for wind farm developments.