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‘Lack of clarity’ in Wales Bill

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screen-shot-2016-11-22-at-09-41-16A REPORT on the Wales Bill, published by the House of Lords Constitution Committee, has stated that the lack of clarity over the demarcation of powers between the UK Parliament and Welsh Assembly not only risks future litigation, but the need for further legislation to clarify the settlement.

The report welcomes the move from a ‘conferred powers’ model (where the Welsh Assembly can only legislate on matters specifically devolved to it) to a ‘reserved powers’ model (where Welsh Assembly can legislate on any subject not explicitly ‘reserved’ by the UK Parliament). The reserved powers model offers a relatively clear and simple division of powers, as well as allowing the Welsh Assembly ‘constitutional space to legislate’. However, the Committee say that the way the Wales Bill implements the reserved powers model undermines these key advantages.

The complexity of the settlement set out in the Wales Bill, in which numerous legal tests interact with hundreds of matters reserved to the UK Government and Parliament, risks the courts being asked to make decisions about whether the National Assembly for Wales has the power to make laws in certain areas. The Committee contrasts this with the simpler settlement set out in the Scotland Act 1998, where the subjects reserved to Westminster are relatively limited, ensuring greater clarity about the devolution of powers.

The Committee also point out that in some areas, the list of reserved matters is so extensive, and the number of legal tests that must be met for the Assembly to use its powers are so vague, that the switch to a reserved powers model is likely to actually result in a return of power from the Welsh Assembly to Westminster.

The Committee call on the Government to explain whether the Wales Bill is actually intended to reduce the legislative competence of the Welsh Assembly in some areas and, if not, what steps they plan to take to ensure that the competence of the Assembly is not inadvertently reduced.

The Committee notes, for example, that absolute restrictions on the Assembly’s ability to modify criminal law in relation to sexual offences may affect its ability to exercise its legislative competence in relation to the protection and well-being of children and young adults.

The Committee notes that there is ‘no evidence of a clear rationale’ for the powers devolved by the Wales Bill and calls on the Government to explain the principles which underpin the devolution proposals set out in the Bill.

The Committee points out that in its recent report, The Union and Devolution, it recommended that further devolution should be managed in a coherent way based on sound principles and clarity about the purpose of the proposed devolution. It says the Government has failed to provide a clear rationale for the scope of powers devolved by the Wales Bill.

Lord Lang of Monkton, Chairman of the House of Lords Constitution Committee, said: “My Committee have taken a long and serious look at devolution within the UK in the last year and we bring that experience with us in examining the Wales Bill.

“We welcome the Wales Bill’s move from a ‘conferred powers’ to a ‘reserved powers’ model of devolution. However, the list of reservations is so extensive, and the legal tests that govern the Assembly’s powers so complex and vague, that it could be a recipe for confusion and legal uncertainty. The outcome is likely to be increased litigation as the courts are asked to decide exactly where the boundaries of the Assembly’s authority lies.

“We are disappointed that there is no clear explanation from the Government as to the rationale for the scope of the powers being devolved under the Wales Bill. As we noted in our report, The Union and Devolution, devolution must take place on the basis of appropriate principles to ensure that the devolution settlements evolve in a coherent way, rather than in a reactive, ad hoc manner.

“The Bill also risks, in some areas, actually reducing the powers of the Welsh Assembly. We have asked the Government whether that was their intention, and if not, how they intend to avoid unintentionally diminishing the Assembly’s powers.

“The Wales Bill starts Committee Stage in the House of Lords next week. This is the first stage where amendments can be made and debated and where the detail of the Bill is examined closely. I hope our report will be helpful to the House in informing that debate.”

This week, the Director of the Welsh Governance Centre, Professor Richard Wyn Jones, also raised concerns that the Wales Bill was being ‘rammed through Parliament’, and suggested that it could be blocked by the Welsh Government. Speaking to the BBC, he said: “It is genuinely hard to find people who aren’t directly involved on the UK government side with a good word to say about this legislation, certainly in terms of the detail,” he said.

“What was striking, we did have a consensus, an all-party consensus, in terms of moving to a reserved powers model.

“What’s particularly depressing is, in the enactments of that good intention, we’ve reached a stage where everybody who is looking at this in a relatively dispassionate way is pointing to some fundamental problems.

“I don’t think that anybody is going into this wanting it to fail, in terms of the critics. This is the only piece of legislation on the table, there is a sense the status quo is unsatisfactory and so people want this to work.

“There have been lots of constructive suggestions for change from the Welsh Government, from the National Assembly presiding office, and yet the legislation is being rammed through Parliament with, so far, only very small changes being conceded.”

However, the Leader of the Welsh Conservatives, Andrew RT Davies, described the ‘landmark’ legislation as offering ‘greater clarity and accountability than ever before in the devolved era’.

“Labour had 13 years in power to address concerns over where power resides and made no meaningful attempt to establish a lasting settlement. Whereas Conservatives have delivered a significant breakthrough, demonstrating our party’s commitment to devolution and the place of Wales as a full partner in the UK,” he added after the MPs gave the Bill an unopposed third reading in September.

“We now have an opportunity to move on from constitutional affairs, and the Welsh Government must now make best use of the tools at its disposal and deliver for Welsh communities; creating jobs, developing the Welsh economy and improving our public services.”

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Politics

WG settles ‘scandalous’ land sale case

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THE WELSH GOVERNMENT has settled a claim against its former advisors about land sales which took place under a purported regeneration scheme.

The Regeneration Investment Fund for Wales (RIFW) had issued proceedings against Amber Fund Management and Lambert Smith Hampton concerning the portfolio sale of 15 properties in 2012.

The settlement has been reached on a commercial basis and without any admission of liability by any party.

The detailed terms have been incorporated into a confidential settlement agreement between the parties.

The Welsh Government Minister for Local Government, Julie James, said the £40.7 million tied up in the Fund can now be made available to support future investments across Wales.

RIFW was set up as an arms-length body by the Welsh Government to allow the Welsh Government to raise money which could then be used to fund regeneration and investments in Welsh businesses.

It was a complete shambles.

One of the advisors appointed had previous connections with one of the parties which bought some of the land at an undervalue.

Vital information was not relayed to the RIFW’s board by the Welsh Government and Board members were kept in the dark about transactions carried out in their name.

Under the oversight of their appointed agents and Welsh Government civil servants, RIFW sold publicly owned assets by private treaty and without prior valuation at a price that reflected the assets’ existing use, under sale terms that provided only limited protection to the public interest in their significant future development values, and via a negotiation process that left RIFW lumbered with undesirable assets.

The Chair of the Senedd Public Accounts Committee, Nick Ramsay MS, said: “The out of court settlement between the Welsh Government and the former advisors of RIFW effectively brings a curtain down on a very sorry and lamentable episode.

“The hasty sell-off of publicly-owned land at bargain-basement prices effectively deprived Welsh taxpayers of tens of millions of pounds which could’ve been used for essential services.

“We look forward to examining matters further with the Permanent Secretary and Head of the Welsh Government Civil Service, Shan Morgan, at our next meeting on Monday, November 23.

“We will be asking what robust steps have been taken to avoid history repeating.”

RIFW was set up as an arms-length body by the Welsh Government to sell off land around Wales including in north Wales, Monmouthshire and Cardiff, and use the money, in conjunction with European funding, to reinvest in areas in need of regeneration.

But the Public Accounts Committee found that the body was poorly managed, poorly overseen by the government, and that, because of a change in the direction of RIFW, from one of regeneration to property asset disposals, some of the Board members felt they lacked the necessary knowledge and expertise to fulfil their roles.

It also learned that the Board was not presented with key information regarding the value of the land in its portfolio, or of expressions of interest from potential buyers.

Fifteen plots of land, originally supposed to be sold separately, were instead sold as a single portfolio at a price which did not take into account potential use of the land in the future. This decision resulted in Welsh taxpayers missing out on tens of millions of pounds of funding.

The Committee learned that one of the organisations charged with offering expert advice to the Board, Lambert Smith Hampton Ltd, had previously acted on behalf of a director of the buyer of the land, South Wales Land Developments Ltd (SWLD), and signed an agreement to do so again one day after the sales went through.

The Committee concluded that the RIFW Board had been poorly served by its own expert advisors.

Angela Burns MS – Shadow Minister for Government Resilience and Efficiency – said: “The Fund was established to sell valuable packages of Welsh Government land, with the money used to support regeneration schemes. However, evidence has since emerged that shows that the sale of RIFW’s assets was undertaken at a loss of tens of millions of pounds. A loss which was borne ultimately by the Welsh Taxpayer and yet another example of the complete inability of this Labour Government to be fiscally prudent.

“Millions of pounds have been squandered, millions that could have been invested in our education and health systems or spent building Wales’ economy or supporting some of our more vulnerable citizens. It’s an absolute scandal and the real scandal is the Welsh Government can slide out of their responsibility for this debacle”

Included in the scandal are:

  • Fifteen sites sold for £21 million; with the taxpayer missing out on staggering sums of money
  • A site in Rhoose purchased from RIFW for less than £3m – sold on for almost £10.5m South Wales Land Developments Ltd. Taxpayers losing out
  • An Abergele site purchased from RIFW for £100,000, without overage, and sold for £1.9million. Taxpayers losing out
  • Land in Lisvane sold for £1.8million – worth £39million.

 

Welsh Conservatives also claim the Welsh Government has squandered £1 billion on other projects, including:

  • £221m on uncompetitive Enterprise Zones
  • £9.3m on flawed initial funding of the Circuit of Wales
  • £97.9m on delays and overspend on the A465 Heads of the Valleys Road
  • £157m on the M4 relief road inquiry
  • Over £100m propping up Cardiff Airport
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Politics

UK not ready for Brexit

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A REPORT published last week by the UK’s National Audit Office (NAO) says that although government departments have made progress in recent months implementing the changes required to systems, infrastructure and resources to manage the border at the end of the post-EU Exit transition period, it is still likely that widespread disruption will occur from January 1, 2021.
In its fourth report assessing government’s preparations at the border, the NAO highlights that planning for 1 January 2021 has built on work done for previous EU Exit deadline.
The report says COVID-19 has exacerbated delays in government’s preparations and significant risks remain, particularly in relation to implementing the Northern Ireland Protocol and trader readiness more generally.
Departments have made progress towards implementing the systems, infrastructure and resources required to operate the border in relation to Great Britain at “minimum operating capability” by January 1 and are reasonably confident most will be ready, but timetables are tight.
The ability for traders to move goods under transit arrangements is a key element of the government’s plans but some elements will be challenging to deliver in their entirety.
HMRC currently estimates that there will be around 6.3 million movements of goods under transit arrangements in the year following the end of the transition period. If all the planned arrangements are not ready, this could have an impact on the ease with which traders can import and export goods.
There is little time for ports and other third parties to integrate their systems and processes with new or changed government systems, and contingency plans may need to be invoked for some elements.
In part as a result of the delays caused by COVID-19, there is limited time to test individual elements and resolve any emerging issues; ensure elements operate together; familiarise users with them in advance and little or no contingency time in the event of any delays.
Even if the Westminster government makes further progress with its preparations, there is still likely to be significant disruption at the border from January 1, as traders will be unprepared for new EU border controls which will require additional administration and checks.
The government’s latest reasonable worst-case planning assumptions, from September 2020, are that 40% to 70% per cent of hauliers will not be ready for these new controls and up to 7,000 lorries may need to queue at the approach to the short Channel crossings,6 such as Dover to Calais.
The government’s plan for reducing the risk of disruption at the approach to the short Channel crossings is still developing, with various issues yet to be resolved. It intends to launch a new GOV.UK web service called ‘Check an HGV is ready to cross the border’ for hauliers to check and self-declare that they have the correct documentation for EU import controls before travelling and obtain permits to drive on prescribed roads in Kent.
However, there is more to do on how ‘Check an HGV’ will be enforced and how it will work together with traffic management plans for Kent.
Government is preparing civil contingency plans, such as to ensure continuity of the supply of critical goods and medicines in the event of any disruption to supply chains.
On October 13, the Department for Transport announced it had awarded contracts to provide additional freight capacity for over 3,000 lorries a week on routes avoiding the short Channel crossings.
However, COVID-19 is making civil contingency plans more difficult to enact, with local authorities, industry and supply chains already under additional strain.
The UK Government will also need to implement the Northern Ireland Protocol from January 1. However, due to the scale and complexity of the changes, the lack of time and the impact of ongoing negotiations, there is a very high risk it may not be implemented in time.
The government has left itself little time to mobilise its new Trader Support Service (TSS), in which it has announced it is investing £200 million, to reduce the burden on traders moving goods to Northern Ireland and to help them prepare.
It will be challenging to establish the TSS by 1 January 2021. Work needs to be done to identify NI traders and sign them up to use the service; recruit and train the staff required; develop software to enable traders to connect to HMRC’s systems; and deliver educational activities to traders.
There is also ongoing uncertainty about the requirements for the movement of goods under the Protocol. Therefore, there is still a high risk that traders will not be ready.
The government is spending significant sums of money preparing the border for the end of the transition period and, in 2020 alone, announced funding of £1.41 billion to fund new infrastructure and systems, and wider support and investment.
Despite this, there remains significant uncertainty about whether preparations will be complete in time, and the impact if they are not. Some of this uncertainty could have been avoided, and better preparations made, had the government addressed sooner issues such as the need for an increase in the number of customs agents to support traders.
The NAO says that government must continue to focus its efforts on resolving the many outstanding issues relating to the border and develop robust contingency plans if these cannot be addressed in time for the end of the transition period.
Gareth Davies, head of the NAO, said: “The January 1 deadline is unlike any previous EU Exit deadline: significant changes at the border will take place and government must be ready.
“Disruption is likely and the government will need to respond quickly to minimise the impact, a situation made all the more challenging by the COVID-19 pandemic.”
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Campaigners Thank Local MP, Ben Lake, for Championing Community Energy

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Today campaign group, Power for People, thanked local MP, Ben Lake, for holding a debate last night in the House of Commons to promote community renewable energy by creating a ‘Right to Local Supply’ in law.

Central to the debate was a proposed new law, known as the Local Electricity Bill, that Mr Lake is co-sponsoring and which is supported by 212 MPs. The Bill aims to help rebuild local economies whilst increasing clean energy generation.

If made law, the Bill would empower community-owned local energy companies to sell locally generated renewable electricity directly to local households and businesses.

Currently customers can only purchase electricity from nationally licensed utilities. The Bill’s supporters say this means money people use to pay their energy bills is not helping to rebuild local economies and local clean energy infrastructure.

Responding to the debate, Energy Minister, Kwasi Kwarteng MP, said, “It is certainly something that I as the Energy Minister will be willing to engage with and have a discussion about … I think that with a co-operative spirit, we can get very far.”

Campaigning group, Power for People, are calling for MPs and the government to make the Bill law and are leading a supportive coalition of organisations including Community Energy Wales, Community Energy England, Community Energy Scotland, WWF, Greenpeace, Friends of the Earth and the RSPB. 62 local authorities have also pledged their support.

Ben Lake, MP for Ceredigion, said, “A Right to Local Supply will empower and enable new community energy companies to sell energy that they generate directly to local people which will accelerate our transition to clean energy and help strengthen local economies. The Local Electricity Bill would enshrine this in law and I will do all I can to ensure it succeeds.”

Power for People’s Director, Steve Shaw, said, “We thank Ben Lake for holding a debate on the Local Electricity Bill in the House of Commons. If made law, the Bill would unleash the huge potential for new community-owned clean energy infrastructure and for this to boost local economies, jobs, services, and facilities in communities across Ceredigion, Wales and the rest of the UK.”

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