Wales Bill

Debate between Liz Saville Roberts and David Jones

Monday 11th July 2016 Commons Chamber

[Mr Jones]

I have never received anything but praise for Conservative signage, and I received even more praise for the vote leave signs that were notable by their presence throughout Wales.

This is a probing amendment and I do not intend to press it to a vote, but I would be grateful to hear from Ministers the rationale for these two proposals. Let me say again that at the very least they are confusing and at the very worst they have the potential to be positively dangerous.

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

I must take this opportunity to congratulate the Welsh team on giving us the brightest, most joyful memories of the past few weeks—it is safe to say that.

I rise to speak to the amendments standing in my name and those of my Plaid Cymru colleagues. They seek to amend schedule 7A of the Government of Wales Act 2006 and, thus, relate to clause 3 of this Bill, which deals with the legislative competence of the National Assembly for Wales. The vast majority of our amendments in this group seek to omit certain reservations from that schedule. The amendments are intended in some cases to restore competence in areas that are already devolved. In others, they are intended to devolve competence to the Assembly in areas that are devolved to Scotland. If the Government are not prepared to give the Welsh Assembly parity with the Scottish Parliament in these areas, we would ask for specific reasons to be given in each instance. Both the Welsh Affairs Committee in this place and the National Assembly’s Constitutional and Legislative Affairs Committee have written reports on the draft Wales Bill, with both calling on the UK Government to provide individual justifications for each of the reservations now contained in schedule 7A. As such, it is a great disappointment to my colleagues and I that the Government have not seen fit to provide us with these justifications. I invite the Secretary of State to explain why the Government have not been forthcoming in this instance. If valid justifications cannot be provided, the Government should amend the schedule so as to omit those areas outlined in our amendments.

Plaid Cymru has not been alone in saying—over many years—that the National Assembly should move to a reserved powers model. Indeed, the independent, cross-party Silk commission made just such a recommendation. Legal experts and much of civil society in Wales, recognise that adopting a reserved powers model should, in theory, provide greater legal clarity and workability. The idea of moving towards a reserved powers model has also been taken in Wales to symbolise a shift in Westminster’s attitude towards the Assembly, because it was assumed to be synonymous with a maturing of relations between the two institutions. Rather than having to justify devolving an area of competence, Westminster would be compelled to justify reserving an area of law; again, that should have represented a significant attitudinal shift, and a recognition of greater parity. The sheer length of the list of reserved areas in schedule 1 has made a mockery of that notion.

It should therefore have come as no surprise to the Wales Office that the original draft Wales Bill was met with such dismay by the Welsh Assembly and by civil society in our nation. The dismayingly long list of reservations, and the way in which the Bill went so far in some cases as to curtail powers already devolved, would fundamentally undermine the Assembly’s competence. It would do the opposite of what was, presumably, intended. Although we are grateful that the previous Secretary of State announced a pause in introducing the legislation, we still believe that schedule 7A shows a paucity of ambition for Wales and her legislature, and that is why we have drafted the amendments in this grouping.

Amendments 83, 86, 110 and 111 should be considered together, as they seek to devolve aspects of the justice system to the Assembly: the legal profession and legal services are dealt with in amendment 110; crime, public order and policing are dealt with in amendment 83; the rehabilitation of offenders is dealt with in amendment 86; and prisons and offender management are dealt with in amendment 111. As has been pointed out in this House on many occasions, and as was championed by my predecessor, Elfyn Llwyd, Wales is the only legislature that has no separate or distinct legal jurisdiction of its own. The matter of a separate legal jurisdiction was debated last week, so I will not repeat my arguments. Although I accept that the Tories fundamentally disagree with the need for a separate jurisdiction, I remain somewhat confused by the position of the official Opposition, who said last week that they supported it but abstained because the Government do not support it. If the official Opposition can only vote in favour of measures that are supported by the Government, they are not well fitted to being the official Opposition. However, given that our amendment was defeated last week, we will use the Report stage of the Bill to bring forward proposals on a distinct, rather than separate, jurisdiction. I hope that the House will be more open to working with us when that time comes.

As is well known, the Silk commission recommended the devolution of policing and related areas of community safety and crime prevention, and my party is resolute in our standpoint that Wales, like the other nations of the United Kingdom, should have responsibility for its police forces.

We are presenting amendment 83 at a time when it is being proposed that policing is devolved to English city regions—Manchester and Liverpool, for example. If the policing of these cities can be held to account in a devolved landscape, why not the policing of Wales?

Draft Wales Bill (Morning sitting)

Debate between Liz Saville Roberts and David Jones

Wednesday 3rd February 2016 General Committees

[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.