Wales Bill

Debate between Lord Hope of Craighead and Lord Crickhowell

Committee: 1st sitting (Hansard) : House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Crickhowell (Con)]

My Lords, I am enormously grateful to the noble Lord, Lord Wigley, for putting forward his amendment in the form that he has. He has produced a very long and complex amendment to be added to a very long and complex Bill—too long and complex, in the view of many of us. It is interesting that, by doing this in Committee, he did not attempt to do as one normally would when introducing a matter of this complexity: to go through the detail of the proposal he was putting forward and the wording that has been suggested, which he told us originated with the Welsh Government.

I am glad that one of the things the present Government have decided to do is to revert to a system where we have Green Papers, White Papers, draft Bills and pre-legislative scrutiny. That is the proper way to proceed with legislation.

Clearly, it is quite impossible in a short Committee stage in this House to go through any process of that kind, so while I understand why the noble Lord wants to put the case for a separate jurisdiction of this kind, I suggest to him and to the Committee that it cannot possibly be sensible to proceed in the manner he suggests. Indeed, the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Thomas of Gresford, have each tabled amendments which seem to try to place in legislation the working party which has already been established by the Government to look at this matter with calm deliberation and come forward with proposals for the future. That seems a sensible way forward. Translating the undertaking already given by the Government into some form of legislative commitment, as suggested by the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Thomas of Gresford, may well be a possible solution, and I am not coming out against that.

I note that in Committee in the other place the Minister replying on behalf of the Government confirmed that the working group had been established and said that it would report in autumn 2016. We are well into autumn 2016. Surely if there is to be a report, it should be produced to this House during the Committee stage, not when we have completed it.

While I understand the fervour and enthusiasm with which the noble Lord, Lord Wigley, has advanced his case, it seems to me that he has produced compelling evidence for why we should not proceed in the way that he suggests in this amendment and that we should follow the line set out by the Government in their working party and possibly consider the proposals put forward by the noble Baroness and the noble Lord to which I have already referred.

[Lord Hope of Craighead (CB)]

My reason for speaking at all is that I had the privilege of sitting in the Supreme Court of the United Kingdom in the first devolution case that came before that court from Wales. I think I was the first judge ever to use the phrase “Welsh law” because it seemed to me, even at that very early stage, that a body of law was in the process of developing which deserved to be recognised as such. For that reason, I am glad to see new Section A2 inserted by Clause 1, which recognises that there is a body of Welsh law. I am entirely in sympathy with that.

I am also broadly in sympathy with the broad thrust of the points made by the noble Lord, Lord Wigley. I have sympathy with him partly because I come from Scotland, which has its own system of law which was guaranteed when we entered into union with England to create the United Kingdom. It was part of the deal between the two countries that the Scots law that had evolved would continue to exist. We had the advantage of our own body of law, which was developed largely with the assistance of jurisprudence in the Netherlands and France. It was a different system of law from that of England. It was recognisably different, and it required different judges. That is not a requirement for the kind of jurisdiction that the noble Lord, Lord Wigley, is asking us to consider. There is not that kind of difference between Northern Ireland and England; their common law is basically the same. But the fact that they are different jurisdictions recognises the important difference of outlook between these two countries in the way their laws are developed.

Although I have said I am in sympathy with what the noble Lord, Lord Wigley, has said, I am bound to say that I find his amendment goes too far and too fast. It is asking us to take an enormous step without any assurance that there exists yet enough Welsh law to justify what would be done and as to whether we have the manpower and womanpower to create the judicial positions being contemplated. My preference, in sympathy with what the noble Lord, Lord Crickhowell, said, is for Amendments 5 and 10—I am not sure I mind particularly which of them—which would be a step towards considering, in a little more detail and at more leisure, how this matter should be handled. The noble Lord, Lord Wigley, will of course say, “That’s going to mean another Wales Bill”, but I am afraid that might be the price to pay for moving at the proper pace to make sure that the systems are properly designed. I would like to see a development of that kind, but it needs to be very carefully worked out, bearing in mind all the things that other noble Lords will no doubt say about the difficulty of creating a Welsh Bar, which will provide the essential requirements for the judiciary to develop.

I would also like the Government to consider whether their recognition of the body of Welsh law as the law made by the Assembly and Welsh Ministers itself goes far enough. I do not have an amendment to that effect, but the fact is that judges help to make the law too. The Supreme Court of the United Kingdom, which after all looks at Wales through the devolution system and has had Welsh lawyers appearing before it, has its own part to play in creating Welsh law, as I attempted to say in my opening remarks. I intervened really to support the noble Lord, Lord Crickhowell, and I hope, in a way, to support the noble Baroness, Lady Morgan, and the noble Lord, Lord Thomas of Gresford, in what they are about to say.