Draft Wales Bill (Morning sitting)

Liz Saville Roberts Excerpts

Wednesday 3rd February 2016 General Committees

[Stephen Crabb]

I will, and I will be very clear. In my discussions with Carwyn Jones, he told me that he regards “distinct” and “separate” as the same thing. They are words. He said that he regards a distinct and separate jurisdiction as amounting in practical terms to the same thing.

What I do believe is that as the body of Welsh-specific law grows, the judicial system will need to take account of the distinctiveness within Wales. I have discussed that with the Lord Chief Justice and the Lord Chancellor here. Work is needed to ensure effective delivery of the justice function in Wales to take account of the growing body of Welsh law, but that does not necessarily lead to a path of separate jurisdiction and splitting the single England and Wales jurisdiction, which has served the people of Wales well for centuries.

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

Surely we need to look more closely at what “separate” and “distinct” mean. “Separate” implies a different legal profession with a whole new set of courts. “Distinct” does not have to mean that. What we are hearing from the Assembly is “distinct”. All the requirements that go alongside that—necessity clauses—are what we would require to make this Bill work.

[Stephen Crabb]

The hon. Lady, for whom I have huge respect, is very knowledgeable about legal and constitutional matters. If, through the Select Committee of which she is a member or independently, she would like to provide me with details of what she regards as a distinct jurisdiction, we can measure it against what other people are saying they regard as a distinct jurisdiction.

Part of the problem is that no one knows what “distinct jurisdiction” means. We understand what “separate jurisdiction” means, but people are bandying about this term “distinct jurisdiction” as if it is now the answer, in the same way as people used to say, “We need a reserved powers model; that will sort out Welsh devolution” without thinking of the complexity underneath it. People are now saying “separate jurisdiction” or “distinct jurisdiction” without really having thought through what it means.

--- Later in debate ---

[Liz Saville Roberts]

It is a great pleasure to serve under your chairmanship, Mr Owen. After the Scottish independence referendum in 2014, the Prime Minister made a promise to the people of Wales that just as the rights of Scottish voters would be respected, reserved and enhanced, so too would the rights of Welsh voters. He promised that Wales would be at the heart of the devolution debate. Since then, the Wales Office has published a draft Wales Bill and presented it as the UK Government’s response to the cross-party Silk Commission. However, it was immediately apparent that the draft Bill has utterly failed to deliver the recommendations of the Commission, which the Tories established. I believe that there are people present in this room who were party to that.

Throughout Wales’s devolution journey, Plaid Cymru has consistently sought the best possible deal for everyone who has chosen to make Wales their home. That has and always will be our driving motivation as Wales’s national party. We hold true to the principle that the people who live in Wales are best placed to make decisions for Wales.

[David T.C. Davies (Monmouth) (Con)]

Does the hon. Lady accept that it is for people living in Britain to make decisions about what is in Britain’s best interests?

[Liz Saville Roberts]

It was distressing to hear about the students in Cardiff who have no one to speak for them. We recognise, however, that not all parties share this view. That is why we agreed to sign up to the Silk Commission—a cross-party Commission with nominees from each of the four parties represented here and in the Assembly, along with academic experts. It carried out extensive engagement and consultation with the public across all parts of Wales. It was a truly representative Commission.

It was deeply disappointing, therefore, to find the Secretary of State then choosing to forgo genuine consensus in favour of a process that can only be described as a means of determining the lowest common denominator. Far from being an agreement, as the Secretary of State likes to call it, “Powers for a Purpose” and the resulting draft Wales Bill that we are discussing today fall well short of the consensus that Silk worked so hard to achieve.

The heavy criticism that the draft Bill has received from all sides, including the Secretary of State’s party, is striking when contrasted with the consensus previously evident in Wales. What happened to the consensus that Wales’s natural resources should be in the hands of the people of Wales? What happened to the consensus that Wales’s Welsh language television channel should be in the hands of the people who use it? We find ourselves with a cherry-picked menu that trusts people in Wales to set their own speed limits, but considers drink-drive limits far too complicated.

[Jonathan Edwards]

I congratulate my hon. Friend on her passionate speech. Does she agree that perhaps the most revealing aspect of these proceedings is the way the new shadow Secretary of State for Wales is distancing herself from her predecessor’s position?

[Liz Saville Roberts]

I cannot say because I was not here at that time, but that is what I understand.

It is interesting that the menu on offer considers water to be too valuable a resource to be left in the hands of the people of Wales, but—fair play—it gives us control over sewage.

I have many concerns regarding the current list of reserved policy fields and will return to this later in my contribution, but I will start by focusing on the foundations of the draft Bill. I should stress first that Plaid Cymru warmly welcomes the move to a reserved powers model as a matter of principle; that is, to move away from the current model whereby the devolution settlement lists areas where the Assembly can legislate, to a model in which the settlement lists areas where it cannot.

There was an unusual and welcome consensus across all six of Wales’s biggest parties on the need to move to a reserved powers model over a number of years. This consensus stems from the frequency with which Welsh legislation is challenged in the Supreme Court and the lack of clarity on where responsibility lies, especially when compared with the Scottish dispensation. Moving to a reserved powers model was also about shifting the mentality and attitudes towards devolution. It should put the onus on the UK Government to justify why something should be reserved, rather than justifying why something might be devolved—devolution based on subsidiarity rather than on retention.

However, those principles—the foundations of the argument in favour of a reserved powers model—have been lost, and the result is a Bill that is simply not fit for purpose. We have unfortunately gone from a position as recently as May last year where all four parties represented in this Chamber today, as well as UKIP and the Greens, agreed on a way forward, to a position where, I am sad to say, it appears the Secretary of State is the only person who thinks the Bill delivers a workable settlement.

[Stephen Crabb]

The hon. Lady is making a good and important speech. Agreeing on moving to a reserved powers model, to use her phrase, is the easy bit. Of course, everybody can sign up to the principle of moving to a reserved powers model. The really hard bit is doing the wiring underneath it. How do you do that in the context of preserving the combined England and Wales jurisdiction? Even if one moves down the road of a distinct or separate jurisdiction, one does not get over the complexities. The hard bit is doing the detailed work to get the wiring right to make the reserved powers more able to work.

[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.

[Stephen Crabb]

Nobody has argued more forcefully than Plaid Cymru that the Welsh devolution settlement should mirror the Scottish devolution settlement. However, the necessity test, which the hon. Lady has taken a few minutes to malign and attack, appears in the Scottish devolution settlement.

[Liz Saville Roberts]

It does appear in the Scottish devolution settlement but it appears three times in the draft Bill. In Scotland, it refers to reserved matters but here, it also refers to criminal and private law. That is the significant question.

I challenge anyone to justify making a Government accountable to a judge rather than to a legislature, as the draft Bill effectively promotes. The report released this week by the Wales governance centre at Cardiff University and the constitution unit at UCL states:

“To restrict the choice of National Assembly members in matters likely to form parts of a great many Assembly Acts may be said to undercut their role as primary legislators, and to deny the institution…proper esteem in ‘the union of the nations of Wales and England’.”

The reasons that these mechanisms are listed as reserved is, according to the Secretary of State,

“to protect the unified legal system of England and Wales”.

All the criticisms that the Secretary of State has faced since the publication of the draft Bill—the cries of “unworkable,” “badly drafted,” “overly complex,” and so on—are a consequence of his blind loyalty to preserving the unified legal system, which has almost unanimously been described to the Welsh Affairs Committee by the legal profession as unnecessary, damaging and paradoxical.

Plaid Cymru, along with many legal experts, believes that it would be a sensible and—crucially—sustainable solution to create a separate legal system for Wales and the Welsh legislature. As the Wales governance centre’s report says,

“it would bring Wales more into the mainstream of sub-state constitutional arrangements in the common law world”.

It is noteworthy that that is also the long-term aim of the Labour Welsh Government.

We acknowledge that it would have financial and practical implications that would need careful consideration but, if the UK Government are serious about delivering a devolution settlement that stands the test of time, they need to adopt a long-term approach. Although that would be Plaid Cymru’s preferred solution, we recognise that not all parties have caught up with our position. The same cannot be said, however, of the creation of a so-called distinct but not separate jurisdiction. The evidence that the Welsh Affairs Committee has heard has been overwhelmingly in favour of this solution, as has that heard by the Constitutional and Legislative Affairs Committee in the National Assembly. I suspect that those who remain sceptical of this solution mistakenly fear the practical and financial implications that a separate jurisdiction might have, and do not fully understand—or perhaps do not want to fully understand—the simplicity of what is actually being proposed.

Creating a distinct jurisdiction need not be any more complicated—perhaps this is the definition that we have been looking for—than simply acknowledging in statute the existence of the law of Wales and the law of England that extend to the territory of Wales and the territory of England respectively.

[Antoinette Sandbach]

Can the hon. Lady explain why Welsh law does not have that current status and why she feels it needs to be put into statute? Surely it has that status already.

[Liz Saville Roberts]

Because we are arguing about the leeway and lock model, and the necessity clauses in criminal and private law, and that is creating so much complication. With this acknowledgment, we could move ahead.

[Stephen Crabb]

The hon. Lady is making an incredibly intelligent speech. I was struck by what she said about the geographical boundary and that moving to a distinct jurisdiction is as simple as that. Would she acknowledge that the Welsh Government, through their law making in the Assembly, have the ability to have impacts on reserved matters and matters affecting England? The draft Bill preserves that, albeit with a necessity test. What she is proposing with that geographically sharp distinction ends their freedom to do that altogether.

[Liz Saville Roberts]

It does seem to be a way forward in dealing with the necessity clauses, which are such a problem. The territory acknowledgement—

[Stephen Crabb]

That is rolling back.

--- Later in debate ---

[Liz Saville Roberts]

If I may continue, creating a distinct jurisdiction need not entail establishing a separate system of courts and separate legal professions, and it would evidently avoid the costs associated with doing so. It would, however, provide clarity on the territorial extent of the laws of the National Assembly for Wales, thus avoiding the need for the complex and restrictive drafting in the Bill, which has been the subject of such criticism.

The National Assembly does not want to legislate for England. It wants to legislate for Wales, and a distinct jurisdiction would allow it to do so effectively. In the words of the Lord Chief Justice of England and Wales:

“there is no reason why a unified court system encompassing England and Wales cannot serve two legal jurisdictions”.

The Secretary of State can hardly accuse the Lord Chief Justice of being a “nationalist lawyer”.

Returning to the list of reservations more broadly, the draft Bill is 71 pages long. Some 34 of those pages—half of the Bill—is a list of reservations. Provisions need only “relate to” one of the more than 220 matters in that list, making the Bill all the more problematic. As the report by the Wales governance centre and UCL states:

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

As I have said, the shift to a reserved powers model was supposed to be made in tandem with a shift in mentality to determine what needed to be reserved, rather than what might be devolved. It is clear that the Secretary of State has instead facilitated a Whitehall trawl of powers based on no evident principles. If he is serious about creating a lasting devolution settlement, he cannot simply flip the current settlement from the conferred powers model to the reserved model and then just allow Whitehall to pick and choose what powers it wants. The process must be built on the principles of clarity and workability, coherence and subsidiarity.

The Silk Commission expressed hope that the move to a reserved powers model would be an opportunity to rewrite the settlement to remove the defects of haste and inconsistency that have so far marred legislative devolution in Wales. The list of reservations certainly does not reflect that hope. The authors of the report by the Wales governance centre and UCL go as far as to say that

“it even suggests an unwillingness to take Wales seriously.”

In practical terms—this is only to be regretted—it will undoubtedly lead to even more partisan blame-shifting between Cardiff and London, which is the last thing that the public of Wales want or deserve.

The original report from the Wales governance centre, which was released before the draft Bill was published, offered a list of considerations for identifying functions that should be devolved:

“Is its retention…necessary for the functioning of the UK as a state…Does retention of a particular function make the governance of the UK generally less clear or comprehensible?...Does retention of a particular function undermine the workability, stability or durability of the devolution settlement?”

I will not return to the examples, but it is easy to put the reservations listed in the draft Bill through that test and to come up with some obvious questions. Those are the questions that the Secretary of State should be asking himself for each and every reservation in the Bill. He should justify each individual reservation. Simply making hundreds of reservations for no good reason is not acceptable. I welcome his comment that he will shorten the list of reservations in the Bill, but I hope he hears the calls of commentators and those of us in this room today that all reservations need to be individually justified.

The draft Bill has come under heavy criticism from all directions: from academia, business experts, legal experts and all four parties, including the Secretary of State’s. The workability of the Bill and the legal drafting—including the necessity tests, ministerial consents and the reservation of criminal and private law—stem from the Secretary of State’s obsession with maintaining a unified legal jurisdiction. The same unified legal jurisdiction was the excuse for opposing Wales-only legislation in the 1880s and the creation of a Secretary of State for Wales in the last century. Most recently, it was the reason for not giving Wales a reserved powers model from the outset of devolution. It is an unnecessary and damaging block on Welsh devolution that has affected, and continues to affect, the effectiveness of Welsh governance. The Tory party cannot deny the existence of the National Assembly for Wales, which, by existing, makes self-evident the existence of legislation that is distinct to Wales.

As the Wales Governance Centre and UCL report concludes, there is no quick fix to the legal problems in this draft Bill. It is not possible simply to replace the term “necessary” with an alternative such as “appropriate”. The problem is not terminology but the whole model, which the report calls

“the leeway and lock model”

and which is built around the unnecessary preservation of the unified legal system.

I recognise that the Secretary of State wants to hurry this Bill through and get the job done, but this issue is too important to pass legislation on with a nod and a wink. This Bill will be the foundation upon which the Welsh Government will operate for the foreseeable future—how it will govern health, education and economic development. It is in everybody’s interest that the Wales Bill makes devolution work better.

I hope that the Secretary of State will please recognise that the criticisms he faces are not merely political attacks. They are criticisms from experts, legal and otherwise, who want to see something that achieves exactly what he himself says he wants to achieve: a clear and lasting devolution settlement. The Bill as it stands will move us further away from achieving that goal.

Members will have read the conclusion of the comprehensive second report from the Wales governance centre and UCL, which recommended that Assembly Members reject the Bill. The opportunity to shape Wales’s constitution does not come around very often. This Bill is crucial to all of us who care about the future of our country, and when the time comes to vote, I do not want to be forced to vote against it. There are many things in the Bill that we welcome: powers over fracking; devolving further planning consenting powers over energy; electoral arrangements; and so forth. I should also take this opportunity to say that we welcome and are grateful for the opportunity to discuss a draft Bill. I think we have discussed it very thoroughly.

For Plaid Cymru—the Party of Wales, whose primary purpose is to empower the nation and the people of Wales to run their own affairs to vote against those powers would be a painful decision. I sincerely hope that the Secretary of State will not force me to do so. I urge him to take these criticisms on board in the constructive spirit in which they are intended, and to make the necessary changes before publishing the Bill itself. Finally, I urge him to reflect on the significance of what he is building. I suggest that the task of reshaping Wales’s constitution is far more important than keeping a date with a particular time slot in the parliamentary calendar. I am encouraged by his comments that suggest that the Bill will be drastically altered before it is published, as a result of this pre-legislative stage, but the Bill requires reconstruction and not mere tinkering. The Secretary of State needs to pause, to listen to the concerns of everybody around him and—please—to come back with a different Bill.