Wales Bill

Lord Hope of Craighead Excerpts

Report: 1st sitting: House of Lords
Wednesday 14th December 2016 Lords Chamber

[Lord Morgan (Lab)]

My Lords, I think this is an occasion on which we should not speak for more than a minute and a half, and that is my intention. I support the Government’s amendment, and I thank the Minister for his consideration, but I make it clear that I regard it as an interim statement—something that will not stand the test of time. As Welsh law develops, the case for a Welsh jurisdiction will become overwhelming. There is an old Welsh song that asks, “Who will be here in a hundred years’ time?”—“Pwy fydd yma mewn can mlynedd?”—and perhaps that is the view that one should take.

At the moment we have a Bill that gives the Assembly reserved powers. The legislative competence of the Assembly is growing, yet we have two different legislatures passing laws for the same small territory. That is a situation unique in the UK and in Europe, and it seems bound to result in confusion and perhaps, in due course, conflict.

The idea of a distinct Welsh jurisdiction is supported by the legal professions in Wales. University law departments see Wales as lacking a legal identity, which actually it had for 300 years after Henry VIII’s Act of Union, so we have to catch up with Henry VIII. The idea is supported strongly by the Lord Chief Justice, Lord Thomas of Cwmgiedd; his wording is careful but he has said that it is perfectly possible to have a single justice system with two separate jurisdictions within it. Similar views were expressed by the great Lord Bingham in his work The Rule of Law.

So this is a well-meant interim settlement, a stopgap, that will not last. There is a void in the devolution settlement and eventually we will need a permanent principal settlement, both for the sake of devolution in Wales and, frankly, for the sake of the union of the UK.

[Lord Hope of Craighead (CB)]

My Lords, I shall raise two short points. One is to commend the Government’s Amendment 1 and the skilled drafting that is revealed by it. However, there is no doubt that the wording that it seeks to replace was too tightly drawn. It looked only at the legislative part of the body of law that makes up, if one likes to put it this way, the body of England and Wales and, looking into the future, following the point by the noble Lord, Lord Morgan, it was designed to follow the law of Wales itself as it built up its own common law. What was missing was an acknowledgement that there is a body of law outside legislation that applies in both jurisdictions as part of the great heritage of the common law that England and Wales has exported around the world. It would be very sad if the common-law element was not accepted. So the word “include”, as the noble Lord, Lord Elis-Thomas, pointed out, carries with it a great deal. That is not expressed at length, thank goodness, because, as he put it, the simplicity and exclusivity of the language chosen does it all for us. It is very nice to see simple language being used so effectively in legislation, so this is an excellent amendment and I warmly support it.

As for Amendment 3, I recall long arguments during discussion on the Scotland Bill—which the noble Lord, Lord Wigley, may have listened to but I am not sure took part in—when we tried to persuade the Minister, the noble and learned Lord, Lord Keen, to drop the word “normally”, but he refused. The passage that the noble Lord, Lord Wigley, quoted from what was said in the Supreme Court last week was just a repetition of the points the noble and learned Lord made in response to those who were seeking to effect that change in the wording.