Draft Wales Bill (Morning sitting)

David Jones Excerpts

Wednesday 3rd February 2016 General Committees

[Nia Griffith]

The issue is, more than anything, the confusion. Everybody wants a clear settlement that will not cause problems. I am not the only one saying this. David Melding, the Conservative Assembly Member for South Wales Central, warns:

“Judicial review could become, if not the norm, then far from the exception. Welsh legislation would be drafted in an atmosphere of profound uncertainty, which itself would curtail its scope and ambition.”

Therefore, the Secretary of State has comprehensively failed his first test—clarity.

If the Secretary of State had really wanted to make the devolution settlement clearer, he could easily have reduced the number of tests that the Assembly has to satisfy before it can legislate. Those are the tests that decide whether a Bill is within the Assembly’s competence. This Bill increases them from nine to 13. Of course, the most controversial, understandably, are the so-called necessity tests. Quite why those tests were dreamt up is not clear. What is clear is that they will make it significantly harder for the Assembly to legislate. That is not just my view, but that of Paul Davies, the Tory Assembly Member for Preseli Pembrokeshire—a colleague from the same constituency as the Secretary of State. He said that

“it’s clear from the evidence...that introducing these tests would restrict the Assembly’s competence.”

As the Law Society said in its evidence to the Welsh Affairs Committee, “necessity” is not a term that is well understood by lawyers. It does not have an established meaning. In fact, the Assembly’s Director of Legal Services has pointed out that there are at least three completely different ways in which the term “necessity” can be understood. Quite frankly, it could mean anything, and the only way to establish what it means will be through reference to the Supreme Court, which is profoundly undemocratic.

[Mr David Jones (Clwyd West) (Con)]

I have considerable sympathy with what the hon. Lady is saying. The word “necessity” is not a term of science nor is it even a term of art. Nevertheless, does she not agree that it is entirely right that the Assembly should not legislate in areas that are beyond its defined competence, so a term has to be arrived at that achieves that?

[Nia Griffith]

Absolutely. There have to be certain consents and criteria, but our difficulty with the Bill is that it does not provide the clarity that we all want in legislation.

--- Later in debate ---

[Nia Griffith]

There has to be some sort of framework to define exactly where the Welsh Government can legislate. What we do not want is a situation where we continually dispute that, as that would not help.

[Mr David Jones]

I am grateful for the direction of travel that the hon. Lady is taking. Will she perhaps suggest a term that could be used to achieve the clarity that she desires?

[Nia Griffith]

It is for the Secretary of State to produce a Bill with some form of words that explains exactly how and when the Assembly can legislate. We want to see that in the Bill in a way that will actually work. At the moment, we have turned the clock back, and it looks as if we are asking for many different types of consent. We do not have clarity, but that is what we need. We have a situation where even Bills that have been passed will be contested.

[Mr David Jones]

rose—

[Nia Griffith]

I will not give way any more. It is for the Secretary of State to introduce better legislation. It is simply undemocratic to go continually to the Supreme Court, because it is not for judges to decide this, that or the other about what can be subject to legislation. We want legislation that makes the position clear, rather than having to go to court time after time.

The real problem is the sense that we are going back pre-2006, and rolling back things that have been introduced by the Assembly in the past few years. The Welsh Government have listed no fewer than 14 Acts in this Assembly’s term that would require additional permission from Whitehall if the Bill were in force. The Secretary of State has said that this is all about respect, but where is the respect in making it harder for the democratically elected Assembly to pass laws? The people of Wales did not vote in 1997 and 2011 for a Welsh Assembly hamstrung by Whitehall, able to legislate but only when UK Ministers allowed it. That completely undermines the autonomy of the Assembly and is a major step backwards. As Conservative Assembly Member David Melding has highlighted, that ends with the constitutionally unacceptable position of UK Ministers, who are not accountable to Assembly Members, telling the Assembly what it can and cannot do.

Of course, ministerial consent exists under the current system, but if the Secretary of State really wants to clarify and simplify the settlement, he would clear up the consent process. As the Silk Commission recommended, there should be general transfer of ministerial functions in devolved areas from Whitehall to Cardiff Bay, just as happened in the Scotland Act. The Secretary of State has given no good reason why Wales should be treated any worse than Scotland.

The Bill would make the system significantly more complicated, with the effect of rolling back the Assembly’s powers. In the words of the Assembly’s Constitutional and Legislative Affairs Committee:

“It is clear to us that the cumulative effect of the approach being adopted…is to reduce the Assembly’s legislative competence.”

Yet again the Bill would fail to deliver a fair and lasting settlement. Instead, it would take powers away from Wales and make it harder for the Assembly to do its job.

Let us turn to the reservations themselves. A primary purpose of the Bill is to introduce a reserved powers model, in order to bring greater clarity to the devolution settlement. The Silk Commission report says:

“In a reserved powers model, the settlement would set out clearly the limits of devolved competence. We would expect law-makers to legislate with greater confidence…rather than being constrained by uncertainty”.

Clarity is about the last thing that comes to mind when reading the 34 pages of reservations in the Bill, covering 267 separate powers, on everything from Antarctica to zebra crossings. Everyone agrees that the list is far too long. Indeed, Angela Burns, the Conservative Assembly Member for Carmarthen West and South Pembrokeshire, has described the list as unworkable. She said:

“The reservations, as they stand, will hinder the development of policy, will impact on the coherence and unity of legislation and will, in my view, muddy the waters between legislatures.”

Even the Secretary of State has said:

“When I read through the list of reservations I can see for myself that there are things where I think, you know, ‘For goodness’ sake, why is that being held back as reserved?’”

It is his Bill.

--- Later in debate ---

[Nia Griffith]

The problem is that we had the hon. Member for Montgomeryshire telling us that he may not even vote for the Bill; he describes it as an abysmal failure. We had the hon. Members for Vale of Clwyd, for Brecon and Radnorshire, for Monmouth, and for Gower—I see he has left his place—and, indeed, the right hon. Member for Clwyd West, all saying publicly that the income tax devolution that will be included in the final Bill is disrespectful to the Welsh people. So there is utter chaos on the Conservative Benches about the Bill. It is a remarkable situation.

[Mr David Jones]

I need to clarify the hon. Lady’s point. I did not say that I would oppose the devolution of taxation powers. What I said was that to impose such powers without a referendum of the Welsh people was, I felt, disrespectful to the people of Wales.

--- Later in debate ---

[Liz Saville Roberts]

Perhaps that is why the Presiding Officer of the Assembly has asked for a consolidation of previous Welsh legislation, because we are effectively building on the previous conferred models and trying to build a reserved model out of that. That is part of the problem we face. I will return to distinct legislation anon.

We are facing a draft Bill that claws back the powers for which the people of Wales voted overwhelmingly in favour in 2011; a draft Bill that, had it been implemented in that year would have required 20% of the current Assembly’s Acts to seek the consent of UK Government Ministers. We are facing a draft Bill that would allow Welsh legislation to be enacted only if it passes no fewer than 10, or perhaps a debatable number of tests on each provision within the Bill in question—certainly a wide range, a battery, of tests. Incidentally, distinguished legal experts have described the tests as

“a failure of comparative legal method”

and claimed that they

“jar with basic constitutional principle”.

Members of the Welsh Affairs Committee have been warned that this could lead to situations whereby legislators would choose to avoid amending the law—a chilling effect—despite it being the better option, for fear of opening a Pandora’s box of debate about what constitutes “necessary”.

Perhaps the most concerning legal aspect of the draft Bill is the reservation of criminal law and private law. These are not policy reservations, they are mechanisms—means—necessary for the enforcement of law. They are what animates the law. They will put policies into effect. They were not discussed as part of the St David’s day process, and, as Professor Thomas Glyn Watkin told the Welsh Affairs Committee, the introduction of these restrictions

“appears to deliberately ignore the express decision of the people of Wales regarding their Assembly’s legislative powers”.

Placing restrictions on the Assembly’s ability to make such modifications to the law not only drastically rows back on the 2011 referendum, but also restricts directly elected Welsh Governments from implementing their policies. It is no wonder that so many people have described the Bill as unworkable.

In fairness, it is proposed that the Assembly should be able to make modifications where such modification is:

“(a) necessary for a devolved purpose or is ancillary…to a provision which has a devolved purpose, and (b) has no greater effect on the general application of the private law than is necessary to give effect to that purpose.”

Simple. I hope Members will have detected that I did not understand what I have just said, although I may have said it with confidence. It asks the question of who is to decide whether a modification to the law is necessary for a devolved purpose or whether a modification has no greater effect than is necessary to give effect to a provision’s purpose. This is not a matter of semantics and niceties; it is a lawyers’ playground.

[Mr David Jones]

I agree with the hon. Lady. The word “necessary” is unworkable. Does she have an alternative formulation that would define the boundaries between what is and what is not devolved?

[Liz Saville Roberts]

I will come to that anon, rather than trying to answer briefly and then repeating myself. As I said, this is a lawyers’ playground and, exactly as the Secretary of State said earlier, means that we will end up in the Supreme Court, which is what we do not want.

--- Later in debate ---

[Ian C. Lucas]

I will make a little progress, because I am conscious that others want to speak.

I want to turn to the Chairman of the Welsh Affairs Committee’s comments. The EVEL proposals, appalling as they are, actually contain a kernel of something that could take constitutional considerations further. In general, I welcome the introduction of geographical Committees in the UK Parliament, because the public do not want more politicians. At the heart of Tony Blair’s defeat on his proposals for a north-east regional assembly was the powerful image of such an institution being a white elephant. Basically, for the general public it was unacceptable to have yet more politicians—the very problem that the hon. Member for Monmouth mentioned earlier. The creation of an English Grand Committee made up of MPs who are already elected creates a body capable of scrutiny with no additional costly elected members. It is a possible model for the scrutiny of legislation and budgets not only in England but throughout the UK.

As an MP from Wales, I am conscious of the differentiation of roles created by the devolution settlement across the UK. Some political roles are devolved to the Welsh Government, the most prominent of which is health, yet my constituents have a limited appreciation of the level of government that deals with their issues. Frankly, they do not care. They think that if they have a problem that is of sufficient importance for them to go to their MP about it, he should deal with it. That view extends not only to matters devolved to the Welsh Government. Barely a weekly surgery goes by without an issue being brought to me that is the responsibility of the local council. I deal with such issues, and I know that my parliamentary colleagues in England do exactly the same, yet the parliamentary process makes little concession to either the devolution settlement or the developed role of MPs as constituency advocates.

Politicians at different levels of governance operate as if they were on different floors of an office block that governs: local government on the ground floor; devolved jurisdictions, Members of the Scottish Parliament, Assembly Members or Members of the Legislative Assembly on the second floor; Members of Parliament on the third floor; and Members of the European Parliament on the floor above them. The time is right, in appropriate cases, to put those representatives on the same floor to scrutinise together in the interests of our constituents. The EVEL proposals, which suggest the creation of a separate parliamentary Committee to deal with appropriate legislation on a geographical basis, give an indication of how to achieve that.

For many years, as an MP from Wales I have advocated MPs and AMs working together on joint Committees for the benefit of our constituents. That should be considered further in the draft Bill. The health issues I have set out are examples of issues that need joint work to reflect the reality of NHS provision to my constituents. There has been great resistance to this proposal. Some see it as undermining the principle of devolution, but devolution is not separatism. It is incumbent on those of us who want devolution to work to work together, not separately, to make it work in practice. We must leave separatism to the nationalists.

Parliament needs to recognise in its procedures the role of devolved institutions by incorporating them into the scrutiny process. It must also recognise that, in England, that will mean MPs working in joint Committees with local government. Such Committees must, of necessity, be constituted on a regional basis. Just as the Conservatives propose creating a Committee of MPs in England in their EVEL proposals, Labour should go one step further and create Committees of MPs on a regional basis within England to scrutinise matters relating to that region. In England, that will mean extending Committee membership to local government leaders. In Wales and Scotland, it will mean Scottish Parliament and Welsh Assembly Committees admitting MPs, and parliamentary Committees admitting MSPs and AMs, as well as, where appropriate, local government leaders.

In appropriate cases, such Committees could extend across national boundaries, so that they could deal with issues that transcend boundaries, reflecting the reality of the situation on the ground for, for example, constituents in the part of the cross-border region of England and Wales that I represent. Such Committees would more accurately reflect the present governance of the UK. Governance is a process that integrates different levels of government, and such Committees would do the same.

[Mr David Jones]

I have a great deal of sympathy with what the hon. Gentleman is suggesting. Does he agree that the issue is not simply one for parliamentarians but for Government Ministers—the Executive—as well? There should be far more discussion of the alignment of policies between Governments.

[Ian C. Lucas]

I agree with that entirely. I do not pretend that what I have said this morning is a solution, but it is a starting point for a debate. The right hon. Gentleman knows that there is an appetite for cross-border working in Parliament, as shown by the recent establishment of the all-party parliamentary group for the Mersey-Dee and north Wales region.

The concept of regional representation in Government and in Parliament is neither novel nor past. As Prime Minister, Gordon Brown introduced regional Ministers. They were abolished by the coalition Government in 2010, but they were very effective. I dealt with them when I was a Minister in the Department for Business, Innovation and Skills. The Conservative Government have now created a Minister for the northern powerhouse. We should have a Committee to hold such people to account. Bit by bit, the Government are adopting the model through their proposals for regional devolution. To develop regional institutions within Government, we need the parliamentary equivalents. To work with other organisations, we need local government and devolved institutions to take matters forward. The move should be against the separatism that the Government have promulgated through EVEL. We should establish a Committee of elected representatives—MPs, AMs and councillors—who can hold the institutions of Government to account and more properly reflect the situation on the ground.

The tragedy of far too much of the constitutional reform since 1999 is that it has tinkered in a piecemeal way with our constitution, and the draft Bill is another example. Unfortunately, the Government are unlikely any time soon to consider an overall constitutional convention, which is what we need. Those of us who dearly love the United Kingdom need to agree to create such a convention to regularise the rules that we have. Until that happens, the proposal for a regional Committee, which can, if necessary, transcend boundaries, is a good way of taking forward a more accountable and effective governance structure that would address the needs of the people whom we represent.

[Mr David Jones]

It is a huge pleasure to serve under your chairmanship, Mr Owen. May I commence by congratulating the hon. Member for Llanelli on calling for this Welsh Grand Committee today? I have often felt that this Committee contributes more than is frequently recognised to the political life of Wales, and I am glad that we are sitting here again. I also congratulate the hon. Member for Dwyfor Meirionnydd on an excellent contribution to the debate.

This forum is important for Welsh MPs. I am pleased that we have the opportunity today to discuss the draft Wales Bill, which is the latest in an increasingly long line of measures put forward by successive Secretaries of State to address devolution in Wales. Our principal problem is that the devolution settlement as originally implemented was grossly defective. It was put in place in a hurry by the Blair Administration, and successive Governments since have had to make attempts to repair the damage done to the constitution of the United Kingdom as a consequence.

Like the Secretary of State, I started my journey as an avowed devo-sceptic. I have since become, as has Lord Murphy of Torfaen, a devo-realist, because it is clear that devolution will be a feature of the constitution of this country, at least for the foreseeable future. I congratulate the Secretary of State on attempting to put right what is in my view a defective settlement. However, I have huge concerns about this draft Bill, which I shall touch on later. Many have called for a move from a conferred powers model of devolution to a reserved powers model. The view that I have always taken, as has my right hon. Friend, is that simply to do that is not a panacea. We can have the same issues, but in mirror image, so to speak.

The proposed reserved powers model addresses some issues of concern, most importantly those of the silent subjects, which proved so problematic in the Agricultural Wages Board case. However, it is perfectly clear from today’s contributions in this Chamber and externally from experienced commentators that what is now proposed does not go far enough.

I do not want to deal with the specific provisions of the Bill at great length. However, I applaud my right hon. Friend for the reservation of policing from the devolution settlement. Policing is one of the three great public services. From a pragmatic point of view, it is perfectly clear that the Assembly has not so far proved successful in their stewardship of either health or education. I believe to confer competence for policing would be a step too far.

[Jonathan Edwards]

Is it the right hon. Gentleman’s position that policing should be re-reserved in the case of Scotland and Northern Ireland?

[Mr Jones]

I believe that is correct in the case of Wales. England and Wales, as we have heard at length today, is a conjoined jurisdiction. It makes far more sense for such an important public service as policing to be reserved. Furthermore, from a pragmatic point of view, let me say quite bluntly that I do not believe the Welsh Government would be able to handle policing. I think it would be beyond them.

I also have concerns about the proposed devolution of competence for harbours. Harbours are an important part of our economy. Again, I have concerns about the capacity of the Assembly to deal with them. On what may appear to be a minor matter, I think that the proposal to devolve competence for speed limits is, quite frankly, potty.

The problem with the draft Bill is not what is devolved and what is reserved. Those are matters for discussion, negotiation and rethought. The principal problems lie in schedule 2. This has been the subject of much discussion this morning. The core of the problem lies in the use of the word “necessary”. To decide the limits of devolution by an interpretation of the word “necessary” is a positive invitation for many more references to the Supreme Court.

It should be possible to arrive at a terminology. I had hoped that, when I intervened on the Shadow Secretary of State, she might have given thought to this matter and have a formulation herself, but it would appear not. Nevertheless, I suggest to my right hon. Friend the Secretary of State that considerable further thought needs to be given to the use of the word “necessary”. Otherwise, we will see many more cases referred to the Supreme Court, which is the last thing that anyone in this Chamber wants.

On the expression “reserved authority”, I see the need to refer to it. Increasingly, legislation emanating from the Assembly has imposed greater and greater burdens on non-devolved authorities and Ministries of State. It is quite right that those burdens should not be imposed and I believe, therefore, that they should be constrained. The expression “leeway and lock” has been used by the Wales governance centre in its recent paper. “Leeway and lock” sounds like the opening words of the 1951 test match. Nevertheless, I believe that it is important to define the area of competence wherein the Assembly operates and it is absolutely right that it should not be passing legislation that has unforeseen consequences on the reserved authorities referred to in the draft Bill.

It is right that, before any such burdens are imposed, the consent of the relevant Minister should be sought. It is, after all, the flipside of the provision that provides that where the Assembly’s competence is being invaded, the legislative consent motion should be sought. This can also be addressed by making provisions for a timescale within which consent can be given, or, as I think the Wales governance centre suggested, by a presumption in favour of a consent, unless consent is withheld within a certain time.