Wales Bill

Debate between Lord Hope of Craighead and Lord Elis-Thomas

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

[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.

[Lord Elis-Thomas]

My Lords, I am happy to follow the noble and learned Lord, Lord Hope, and his references both to the concept of Welsh law and to its meaning in the context of this Bill. I also say to him that I suspect there will be many more Wales Bills as a result of this Bill if it goes through in its present form. Our successors will be here debating these matters further.

The point of my small amendment in this group, Amendment 3, is to clarify that the law of Wales is more than what is made in the National Assembly for Wales, or indeed in this place as English and Welsh law, or by the decisions of the judiciary, since law is developed as the noble and learned Lord indicated. In this sense, the Explanatory Memorandum is much more informative than what is in the Bill itself. Paragraph 25 of the commentary on the provisions of the Bill makes it clear that:

“Subsection (1) confirms that there is a body of Welsh law made by the Assembly and Welsh Ministers. The law made by the Assembly and Welsh Ministers is … only part of the law that applies in Wales”.

I believe the noble and learned Lord, Lord Hope, made that point: the law of Wales is much broader, both historically and currently, than what is set out in the Bill. It is for that reason that I ask the Government to consider whether they can look for a wording that is more explanatory and of greater legal standing than that which they have currently adopted.

I will also quote, as I often do, my friend and mentor, the Reverend Professor Thomas Glyn Watkin. He told the National Assembly’s Constitutional and Legislative Affairs Committee, of which I was then a member, in evidence quoted as part of the committee’s report on the Bill:

“My own view is that there is now within the legal system of England and Wales three bodies of law that can be recognised: a body of law that applies only in Wales, a body of law that applies only in England and a body of law that applies in both countries. I think the legal system needs to adapt itself to that new reality, a reality that is growing as the body of law that applies only in Wales and the body of law that applies only in England increase in size”.

Turning again to the issue of jurisdiction, which my noble friend Lord Wigley so clearly set out in the context of his amendment, there is a link between the complexity of the Bill and the move to preserve a single and undifferentiated jurisdiction. It was made clear to us in the Assembly committee, both in a special seminar convened as part of our scrutiny of the Bill and in evidence, as we stated in our report at paragraph 28:

“It is clear to us that the UK Government’s policy to preserve the single jurisdiction has resulted in much of the complexity within the Bill”.

That is why I believe the Government will have to address this issue either tonight, next Monday or on Report. I absolutely agree with the noble Lord, Lord Crickhowell, that the complexity of the Bill is linked to the whole issue of the lack of flexibility on jurisdiction.