Wales Bill

Baroness Laing of Elderslie Excerpts

Tuesday 5th July 2016 Commons Chamber

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I beg to move amendment 17, page 1, leave out lines 5 to 9 and insert—

“In section 1 of the Government of Wales Act 2006 (the Assembly), after subsection (1), insert—”.

The amendment changes the place in the Government of Wales Act 2006 in which the text inserted by Clause 1 appears. Rather than in section 92A, references to the permanence of the Assembly would appear in section 1 of the Government of Wales Act 2006.

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

With this it will be convenient to discuss the following:

Amendment 8, page 1, leave out line 8 and insert “CONSTITUTIONAL ARRANGEMENTS FOR WALES”.

This amendment amends the title of the new Part 2A inserted by Clause 1 in consequence of the proposal in amendment 7 to require the review of the functioning of the justice system in Wales.

Amendment 18, page 1, line 10, leave out

“and the Welsh Government are”

and replace with “is”.

The amendment gives effect to separate provisions relating to the National Assembly for Wales, as the Legislature, and the Welsh Government, as the Executive.

Amendment 19, page 1, line 14, leave out “and the Welsh Government.”

The amendment gives effect to separate provisions relating to the National Assembly for Wales, as the Legislature, and the Welsh Government, as the Executive.

Amendment 20, page 1, line 16, leave out

“and the Welsh Government are”

and replace with “is”.

The amendment gives effect to separate provisions relating to the National Assembly for Wales, as the Legislature, and the Welsh Government, as the Executive.

Amendment 21, page 1, line 18, at end insert—

“( ) In section 45 of the Government of Wales Act 2006 (the Welsh Government), for the words in subsection (1) before paragraph (a) substitute—

(1) There is to be a Welsh Government or Llywodraeth Cymru.

(1A) The Welsh Government is a permanent part of the United Kingdom’s constitutional arrangements.

(1B) The purpose of subsection (1A) is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Welsh Government.

(1C) In view of that commitment it is declared that the Welsh Government is not to be abolished except on the basis of a decision of the people of Wales voting in a referendum.

(1D) The members of the Welsh Government are—”.”

The amendment gives effect to separate provisions relating to the National Assembly for Wales, as the Legislature, and the Welsh Government, as the Executive. The amendment changes the place in the Government of Wales Act 2006 in which the text relating to the permanence of the Welsh Government would appear.

Amendment 22, page 1, line 18, at end insert—

“( ) In the Government of Wales Act 2006, after Part 2 (the Welsh Government) insert—”.

The amendment is required as a consequence of changing the location of the provision relating to the permanence of the Assembly.

Amendment 5, page 2, leave out lines 1 to 6 and insert—

“Part 2B

Separation of the Legal Jurisdiction of England and Wales

Introductory

92B New legal jurisdictions of England and of Wales

The legal jurisdiction of England and Wales becomes two separate legal jurisdictions, that of England and that of Wales.

Separation of the law

92C The law extending to England and Wales

(1) All of the law that extends to England and Wales—

(a) except in so far as it applies only in relation to Wales, is to extend to England, and

(b) except in so far as it applies only in relation to England, is to extend to Wales.

(2) In subsection (1) “law” includes—

(a) rules and principles of common law and equity,

(b) provision made by, or by an instrument made under, an Act of Parliament or an Act or Measure of the National Assembly for Wales, and

(c) provision made pursuant to the prerogative.

(3) Any provision of any enactment or instrument enacted or made, but not in force, when subsection (1) comes into force is to be treated for the purposes of that subsection as part of the law that extends to England and Wales (but this subsection does not affect provision made for its coming into force).

Separation of the Senior Courts

92D Separation of Senior Courts system

(1) The Senior Courts of England and Wales cease to exist (except for the purposes of section 6) and there are established in place of them—

(a) the Senior Courts of England, and

(b) the Senior Courts of Wales.

(2) The Senior Courts of England consist of—

(a) the Court of Appeal of England,

(b) the High Court of England, and

(c) the Crown Court of England, each having the same jurisdiction in England as is exercised by the corresponding court in England and Wales immediately before subsection (1) comes into force.

(3) The Senior Courts of Wales consist of—

(a) the Court of Appeal of Wales,

(b) the High Court of Wales, and

(c) the Crown Court of Wales, each having the same jurisdiction in Wales as is exercised by the corresponding court in England and Wales immediately before subsection (1) comes into force.

(4) For the purposes of this Part—

(a) Her Majesty’s Court of Appeal in England is the court corresponding to the Court of Appeal of England and the Court of Appeal of Wales,

(b) Her Majesty’s High Court of Justice in England is the court corresponding to the High Court of England and the High Court of Wales, and

(c) the Crown Court constituted by section 4 of the Courts Act 1971 is the court corresponding to the Crown Court of England and the Crown Court of Wales.

(5) References in enactments or instruments to the Senior Courts of England and Wales have effect (as the context requires) as references to the Senior Courts of England or the Senior Courts of Wales, or both; and

(6) References in enactments or instruments to Her Majesty’s Court of Appeal in England, Her Majesty’s High Court of Justice in England or the Crown Court constituted by section 4 of the Courts Act 1971 (however expressed) have effect (as the context requires) as references to either or both of the courts to which they correspond.

92E The judiciary and court officers

(1) All of the judges and other officers of Her Majesty’s Court of Appeal in England or Her Majesty’s High Court of Justice in England become judges or officers of both of the courts to which that court corresponds.

(2) The persons by whom the jurisdiction of the Crown Court constituted by section 4 of the Courts Act 1971 is exercisable become the persons by whom the jurisdiction of both of the courts to which that court corresponds is exercisable; but (despite section 8(2) of the Senior Courts Act 1981)—

(a) a justice of the peace assigned to a local justice area in Wales may not by virtue of this subsection exercise the jurisdiction of the Crown Court of England, and

(b) a justice of the peace assigned to a local justice area in England may not by virtue of this subsection exercise the jurisdiction of the Crown Court of Wales.

92F Division of business between courts of England and courts of Wales

‘(1) The Senior Courts of England, the county courts for districts in England and the justices for local justice areas in England have jurisdiction over matters relating to England; and (subject to the rules of private international law relating to the application of foreign law) the law that they are to apply is the law extending to England.

(2) The Senior Courts of Wales, the county courts for districts in Wales and the justices for local justice areas in Wales have jurisdiction over matters relating to Wales; and (subject to the rules of private international law relating to the application of foreign law) the law that they are to apply is the law extending to Wales.

92G Transfer of current proceedings

(1) All proceedings, whether civil or criminal, pending in any of the Senior Courts of England and Wales (including proceedings in which a judgment or order has been given or made but not enforced) shall be transferred by that court to whichever of the courts to which that court corresponds appears appropriate.

(2) The transferred proceedings are to continue as if the case had originated in, and the previous proceedings had been taken in, that other court.”

This amendment replaces the Bill’s proposed recognition of Welsh law with provisions to separate the legal jurisdictions of England and of Wales, as drafted by the Welsh Government.

Amendment 9, page 2, line 1, after “law” insert

“and review of the justice system in Wales”.

This amendment amends the heading of Clause 1 in consequence of the proposal in amendment 7 to review the functioning of the justice system in Wales.

Amendment 7, page 2, line 3, at end insert—

“(2) The Lord Chancellor and the Welsh Ministers must keep the functioning of the justice system in relation to Wales under review with a view to its development and reform, including keeping under review the question of whether the single legal jurisdiction of England and Wales should be divided into a jurisdiction for Wales and a jurisdiction for England.

(3) In exercising their duty in subsection (2) the Lord Chancellor and the Welsh Ministers must have regard to—

(a) divergence in the law and its administration as between England and Wales,

(b) the need to treat the Welsh and English languages on the basis of equality, and

(c) any other circumstances in Wales affecting operation of the justice system.

(4) The Lord Chancellor and the Welsh Ministers may appoint a panel to advise them on the exercise of their functions in this section.

(5) The Lord Chancellor must make an annual report on the functioning of the justice system in relation to Wales to the Welsh Ministers.

(6) The Welsh Ministers must lay the report before the Assembly.

(7) The Lord Chancellor must lay the report before both Houses of Parliament.”

The provision in the Bill recognises the existence of a body of Welsh law made by the Assembly and the Welsh Ministers. The new subsections to be inserted after that provision by this amendment require the Secretary of State to keep the justice system as it applies in relation to Wales under review with a view to its development and reform, having regard in particular to divergence in the law as between England and Wales.

Amendment 10, page 2, leave out lines 4 to 6.

This amendment removes subsection (2) of the proposed new section 92B of the Government of Wales Act 2006 (recognition of Welsh law). Subsection (2) seeks to explain the purpose of subsection (1) of that section.

Clause 1 stand part.

Amendment 23, in clause 2, page 2, line 12, leave out “normally”.

This amendment removes the word “normally” from the recognition that the Parliament of the United Kingdom will not normally legislate on devolved matters without the consent of the National Assembly for Wales.

Amendment 3, page 2, line 12, leave out “legislate with regard” and insert “enact provisions relating”.

This amendment is a consequence of amendment 4, which defines the meaning of “devolved matters”.

Amendment 24, page 2, line 13, after “Assembly” insert—

“(a) there is an imminent risk of serious adverse impact on—

(i) the national security of the United Kingdom, or

(ii) public safety, public, animal or plant health or economic stability in any part of the United Kingdom,

(b) the legislation specifically addresses that risk,

(c) the imminence of the risk in relation to Wales makes it impractical to seek the consent of the Assembly,

(d) no Bill has been passed under section 110(1)(a) specifically to address the risk, and

(e) no subordinate legislation specifically to address the risk has been laid before the Assembly and has come into force.”

This amendment specifies the circumstances in which Parliament can legislate on devolved matters on behalf of the National Assembly for Wales without its consent.

Amendment 4,  page 2, line 13, at end insert—

“(7) For the purpose of subsection (6), a provision relates to a devolved matter if the provision—

(a) applies in relation to Wales and does not relate to a reserved matter.

(b) modifies the legislative competence of the Assembly, or

(c) confers a function on, or removes or modifies a function of, any member of the Welsh Government.”

This amendment defines the meaning of “devolved matters” for the purpose of the statutory recognition of the convention about Parliament legislating on devolved matters proposed by Clause 2.

Amendment 25, page 2, line 13, at end insert—

“(7) In this section, “devolved matters” means matters that—

(a) are within the legislative competence of the Assembly;

(b) modify the legislative competence of the Assembly;

(c) modify a function of the Assembly;

(d) modify a function of a member of the Welsh Government exercisable within devolved competence (and “within devolved competence” is to be read in accordance with section 58A).”

The amendment defines devolved matters for the purposes of Clause 2.

Clauses 2 and 4 stand part.

Amendment 26, in schedule 4, page 94, line 10, at end insert—

“National Assembly for Wales Commissioner for Standards.”

The amendment adds the National Assembly for Wales Commissioner for Standards to the list of Wales public authorities.

Amendment 27, page 94, line 10, at end insert—

“National Assembly for Wales Remuneration Board.”

The amendment adds the National Assembly for Wales Remuneration Board to the list of Wales public authorities.

Schedule 4 stand part.

[Liz Saville Roberts]

Diolch yn fawr, Dirprwy Lefarydd. Nineteen years have passed since the 1997 referendum to establish the Assembly. It is now clear that to have our own democratically elected Government and legislature is the settled will of the people of Wales. I note with disappointment and surprise the Secretary of State’s recent refusal of an invitation from the Chair of the Assembly’s Constitutional and Legislative Affairs Committee to give evidence on the Bill. I would argue that now, especially, is the time for co-operation and the sharing of knowledge.

Clause 1 is a very welcome addition to the Welsh devolution dispensation. Any clause to recognise the permanence of the institution is, of course, overdue. Amendments 17 to 22 are not controversial, and they deal with two technical issues. First, amendment 17 and amendment 22, which is consequential on amendment 17, change the place in the Government of Wales Act 2006 in which the text of clause 1 would appear. I know that the Presiding Officer in the Assembly, Elin Jones, has made this point, and I share her view that the declaration of the permanence of the Assembly should be given prominence in the Bill. Placing it in section 1 of the 2006 Act would achieve that.

Secondly, amendments 18 to 21 reflect the constitutional separation of the legislature, the National Assembly of Wales, and the Executive, the Welsh Government, by dealing with them in separate new provisions to be inserted into those parts of the Government of Wales Act 2006 that deal respectively with the Assembly and the Government. These are probing amendments and we do not intend to press them to a vote, but I hope that the Secretary of State will agree to accept these proposals and to table his own amendments at the next stage.

I do, however, intend to press amendment 5 to a Division. This amendment deals with what was perhaps the key focus of the prelegislative stage of the Bill and remains, in our view, the main reason that it fails to achieve what the Secretary of State has said he wanted to achieve: that is, to produce a lasting devolution settlement for Wales.

Since the original Government of Wales Act 1998, we have been forced to change the devolution dispensation four times. If enacted, this Bill will become the fifth dispensation. The perpetual modifications have been necessitated by sustained reluctance from successive UK Governments, both Labour and Tory, to legislate with the long term in mind. Although all of Wales’s devolution Acts were described as settlements to settle the debate for a generation, not one of them has achieved that aim. It is clear to me that this Bill will continue that trend, unless, of course, the Secretary of State changes course.

Many, if not most, of the criticisms of the Bill made by politicians, lawyers, civil society and academics alike have been of clauses or sections that have been justified as necessary by the Secretary of State in order to maintain the single unified legal system of England and Wales. The inclusion of clause 3—this will be discussed next week—and in particular its much debated necessity test is down to the fact that the Welsh legislature operates within a shared jurisdiction. The inclusion of clause 10, on justice impact tests, which have been subject to questioning and criticism since the publication of the latest Bill, is down to the fact that justice is a reserved matter—a reservation that is apparently necessary to safeguard the shared jurisdiction. These are among the contents of the Bill that are intended to prevent the Assembly from making any provisions that will impact on so-called public authorities. Again, these are in the Bill to protect the unified legal jurisdiction. As the Wales Governance Centre and University College London report stated:

“Complexity is piled on complexity...the potential for legal challenge casts a long shadow”.

I remind the House that Wales is unique in the world in having a primary law making legislature without a jurisdiction. Scotland has a wholly separate legal jurisdiction, and the Scottish settlement is simpler as a result. It avoids the complex and unnecessary exceptions and reservations. The relative stability of the Scottish devolution settlement, when compared with the turmoil in Wales, is stark. It is rare that Wales passes a law without the threat of legal challenge from somewhere.

If there were a practical need to maintain the unified legal system, it would be worth making these compromises elsewhere in the Bill and perhaps worth the legal battles. However, I have yet to hear a genuine, practical reason for doing so. The most frequently made argument against creating a separate Welsh jurisdiction is that it is unnecessary and costly, and that divergence between the law as it applies to Wales and the law as it applies to England is minimal. To those who make those arguments I say two things. First, to say that divergence is minimal is to continue the short-term approach of previous Governments and to ignore the fact that divergence will do nothing but increase as the Assembly continues its work and as the institution gains more maturity and responsibility.