Wales Bill

Kevin Brennan Excerpts

Tuesday 5th July 2016 Commons Chamber

[Paul Flynn]

We will not be supporting amendment 5, because we think it gesture politics; unless the Government change their mind, it is not going to get through. We are suggesting a practical compromise that might well be accepted by the Government.

[Kevin Brennan (Cardiff West) (Lab)]

I also recommend my hon. Friend’s book “Dragons led by Poodles”, and thank him for what he said about me in it. [Hon. Members: “What did he say?”] Hon. Members can read it for themselves later, rather than have me read it into the record.

Despite what my hon. Friend said about the grudging nature of legislation around devolution, has not the organic way in which Welsh devolution has progressed built support for devolution from the very narrow victory in the referendum back in 1997? Might not imposing a separate legal jurisdiction at the outset of this journey in the creation of Welsh law place unnecessary costs on Welsh citizens having to seek permission to take a case in another jurisdiction, when that matter could be dealt with organically as the Welsh body of law develops in the years to come?

[Paul Flynn]

I agree entirely with my hon. Friend. In my book, which begins with a dramatis personae, I awarded Welsh politicians a number of pompoms for being poodle-ish or flames for being dragon-like. I think he emerged with no pompoms and five flames, which was the top award. His point is absolutely right.

During the pre-legislative scrutiny, it became clear that the question of the jurisdiction was a fundamental one that had to be addressed in the Bill. As the hon. Member for Dwyfor Meirionnyddp said, the Plaid Cymru amendment adopts the approach in the Welsh Government’s alternative Bill. That is fine—we agree with that—but we are proposing a compromise that would address the issue in a more consensual way. That is the spirit in which we approach consideration of the Bill. In response to the intervention from the Secretary of State, I must say that I welcome the concept of working with the Welsh Assembly. I know that the Constitutional and Legislative Affairs Committee of the Welsh Assembly will be meeting throughout August to consider the Bill under our former colleague Huw Irranca-Davies. I am sure that it will have a great deal to contribute, and I hope that its suggestions will meet with an open door.

There is common ground among legal and constitutional experts that the current arrangements are not sustainable. The challenges can only grow as the Welsh statute book develops further in the fifth Assembly term—“the Welsh statute book” has a nice ring to it. We have not yet risen to the heights of cyfraith Hywel Dda and the days in the 10th century when Wales led Europe with progressive legislation. There was a law that said if a starving person had gone to three villages without being fed, he or she was entitled to steal without risk of prosecution. They had wonderful rules on the rights of women that were far in advance of anywhere else and they had practically no capital punishment. Eight hundred years later, England had 220 crimes for which people could be punished with death, including stealing from a rabbit warren and cutting down a tree. So we are building on the shoulders of the giants of the 10th century and Hywel Dda. We are a long way from it, but this is another step towards that progress.

The joint jurisdiction was based on the premise that there was a common body of law across England and Wales with a single set of administrative arrangements. That premise worked for the centuries following the Acts of Union but is now out of date. In essence, that premise is inconsistent with legislative devolution; it is simply impossible to argue for retention of the joint jurisdiction when the criminal and private law in England and Wales will increasingly diverge as a result of Assembly legislation. The starting point is that there must be robust joint arrangements between the Lord Chancellor and the Welsh Ministers to work through the issues and identify solutions, and the UK Government’s proposed official working group might add some value. In his intervention, the Secretary of State said that an invitation had been sent to the Welsh Government. I do not know about that, but we would like to see that joint working. It is certainly the desire of the Welsh Government.

Our amendments would achieve three things. First, there would be a duty on the Lord Chancellor and Welsh Ministers to keep the operation of the justice system under review, including the jurisdiction question. Secondly, they would be able to appoint an expert panel to advise them, which could be an invaluable source of legal expertise to focus on the practical issues. Thirdly, the work would have to be transparent and sustained, with an annual report laid before the National Assembly and Parliament.

The Secretary of State, like his predecessor, wants the Bill to offer a lasting settlement, and so do we, but that will not happen unless they put forward a credible and serious process for reforming the joint jurisdiction. There is a major gap in the Bill as it stands. Amendment 7 is proposed as a constructive solution that deserves cross-party support and we hope to press it to a Division.

Clause 2 provides statutory underpinning for the Sewel convention. Under our constitution, both Parliament and the Assembly can legislate for Wales on devolved matters, so it is important that there be a clear understanding between the two legislatures as to which will be the principal legislature on these matters. The convention normally resolves that issue in favour of the Assembly. Amendments 23 and 24 address that issue further. The convention also requires that if Parliament proposes to amend the legislative competence of the Assembly, that too should require the Assembly’s formal consent.

To be fair to the UK Government, they have always acknowledged that the Bill will require the Assembly’s consent if it is to proceed to Royal Assent. This is a matter not of controversy but of common sense and consensus between the parties. This aspect of the convention, however, is only set out in rather obscure terms in a devolution guidance note for civil servants. As drafted, clause 2 makes no reference to this aspect of the convention at all, so it is an incomplete statement of the real position. Clarity would be appreciated.

Amendment 4 is designed to fill that gap. It would provide a comprehensive statement of the circumstances when Assembly consent is required for parliamentary legislation. In particular, it would make it clear in the Bill that Assembly consent is required when a parliamentary Bill proposes changes to the Assembly’s legislative competence. I note that amendment 25 is broadly to the same effect. This is an important element in the Welsh devolution settlement, so clarity is required; it should not depend on what is written in devolution guidance note. I urge the Government to accept these reasonable and constructive amendments.