Wales Bill

Mark Williams Excerpts

Tuesday 5th July 2016 Commons Chamber

[Mr Mark Williams (Ceredigion) (LD)]

Like the hon. Lady, I am a member of the Select Committee on Welsh Affairs, and I can back up, to a large extent, what she is saying. Was she as surprised as I was by the body of evidence that came from civil society, the legal profession and beyond during our Select Committee inquiry into the now redundant Wales Bill?

[Liz Saville Roberts]

I agree entirely with the hon. Gentleman. The sheer weight of that evidence underlines the fact that we struggled to find other points of view.

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[Nia Griffith (Llanelli) (Lab)]

I rise to support amendment 7, to reaffirm my support for the Bill, and to thank the Secretary of State for bringing it forward so quickly. We would all like it to be enacted as soon as possible. I also thank him for recognising the growing body of Welsh law, and for his initiative to set up a body to consider that. Amendment 7 would confirm that body in writing in the Bill, meaning that a report on the state of affairs is made on a regular basis. As my hon. Friend the Member for Torfaen (Nick Thomas-Symonds) so eloquently expressed, this is not a simple issue about which we can just have a yes or no discussion; it is a growing body of law and a number of complex issues arise. If that measure was included firmly in the Bill so that a report was made on a regular basis, we would have the opportunity to consider the direction things were going in and whether any changes were needed. The amendment states clearly that the report will consider

“whether the single legal jurisdiction of England and Wales should be divided into a jurisdiction for Wales and a jurisdiction for England.”

We want that practical, sensible solution included in the Bill so we can be certain that the review will continue to take place, and so that recommendations and reports come from that, which may or may not lead to a different view on things as that body of law grows. I reaffirm my support for the Bill, and I hope that amendment 7 will be included.

[Mr Mark Williams]

It is a privilege to serve under your chairmanship, Mrs Laing. I reiterate my support for the amendments on the permanence of the National Assembly. I think that they originate in the office of the Presiding Officer who co-represents the Ceredigion constituency, but regardless of our constituency interests, there is huge sympathy and empathy with the principle of permanence right across the Committee—perhaps there are one or two exceptions on the Government Benches.

Amendments 3 and 4 are probing amendments like those tabled by the hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts). I do not intend to divide the Committee on those amendments, but I wish to elicit from the Minister a little more detail that is currently not in the Bill. To avoid clashes between the two legislatures on devolved matters, this Parliament has hitherto adopted a self-denying ordinance, and would not normally legislate on devolved matters without the consent of the National Assembly.

I believe there is a consensus on the Opposition Benches, which is reflected by my amendment and amendments 24 and 25 tabled by Plaid Cymru, that the new provision does not provide a complete statement of the circumstances in which the Assembly’s consent is required in respect of parliamentary legislation. The Bill fails to mention the circumstances in which proposed legislation would modify the legislative competence of the Assembly itself. The amendments seek to clarify that. The requirement for consent in itself is not the issue. The Bill will at some point require the assent of the National Assembly for Wales, but in the interests of clarity and transparency the amendment sets out the circumstances when the Assembly’s consent should normally be required. I think it provides a tidier definition of devolved matters.

The meat of this grouping relates to a separate, although interestingly in this debate not a distinct, jurisdiction. I understand the principle behind Plaid Cymru’s amendments. We have heard about a separate jurisdiction and less about a distinct jurisdiction. The Government have gone as far in the Bill as to acknowledge and recognise a body of Welsh law. That is an important principle, but it is where we take that principle that concerns me. I am led in the direction of the Labour party’s amendment, which follows the stance established in the increasingly dated Silk report, which is something of a bible to Liberal Democrats. Silk, in that now slightly dusty report, talked about reviewing the case for devolving legislative responsibility for the court service—sentencing, legal aid, the Crown Prosecution Service and the judiciary—to the National Assembly. I think he would endorse the speech just made by the hon. Member for Torfaen (Nick Thomas-Symonds) and the case for a broader review of the legal system in Wales. Silk also talked about the need, in recommendation 34, for a “periodic report” by the UK Government, in consultation with the Welsh Government, to the UK Parliament and to the National Assembly on how access to justice is improving in Wales, and that there should be a regular dialogue between the Lord Chief Justice of England and Wales and Welsh Ministers on the administration of justice in Wales.

The groundwork has therefore already been done for the Labour party’s amendment. It requires the Secretary of State to keep under review the justice system as it applies in relation to Wales, with a view to reform. For some of us, the inevitable divergence of English and Welsh law being open to the possibility of reform is critically important. As a Liberal, there is still the question of timing. There is a very clear Plaid Cymru amendment. We have something that has been described as more pragmatic. Simplistically, we could say that it beefs up what Silk was talking about some time ago.

The Government have acknowledged that this is an issue by providing legal clarity on a Welsh body of law. They have also acknowledged it through the creation of a judicial working group. We talked on Second Reading about the principle of setting up the Government’s working group, which is welcome, but I do not believe it is sufficient to address the issues before us today. I am led to believe that the Welsh Assembly Government have not been invited to participate in its work.

[The Secretary of State for Wales (Alun Cairns)]

rose—

[Mr Williams]

I will stand corrected if that is actually the case. I am seeking clarification and it looks like I am about to get it.

[Alun Cairns]

I can absolutely confirm that an invitation was sent to the Welsh Government some weeks ago. We have not yet received a response.

[Mr Williams]

I am grateful to the Minister for that update. That should create some food for thought at the other end of the M4, because co-operation and collaboration between both Administrations on these issues is vital.

I still have concerns about timetabling. On Second Reading, the hon. Member for Dwyfor Meirionnydd spoke about timetabling and about the working group concluding its work by September. That suggests this House—or the other place, as the Bill proceeds—would not have much of an opportunity to deliberate on its work, which is a concern. Does the working group have the opportunity to engage with civil society in the way the Welsh Affairs Committee did when it received evidence on distinct and separate jurisdictions? That is important.

I support the idea of the commission, which follows a suggested precedent that we need to review these matters. As I said on Second Reading, of all the issues in the Wales Bill we have been talking about, legal jurisdiction is the one that will not go away. It needs to be addressed and I am not sure that that can be done in one amendment today. It needs to be addressed in a substantive review. If it is not addressed in a substantive review, I fear that if some of us are lucky enough to be in this House in years to come, we will be returning to another Wales Bill to deal with it.

[Paul Flynn]

The hon. Member for Ceredigion (Mr Williams) ended on a sombre note. Wales Bills are not just for St David’s day, they are for life—possibly for eternity. We have seen the tortuous birth pangs of devolution in Wales go on and on. The Bills we passed were grudging Bills. This place is neurotically power-retentive. We allow little bit of power, we take it back and then we allow it little bit more. Part of the problem has been the divisions that have existed over the years and a lack of conviction on the need for a Welsh Assembly and Welsh Government. Happily, I believe those days are gone. All parties have a desire to provide good legislation that will give the Assembly and the Government in Wales more stability and more durability.

May I say what a delight it is for me to be in this position as a shadow spokesman on the Opposition Front Bench? It is an extraordinary thing, but these jobs are rather like London buses: you wait 26 years for one and then two come along together. I am delighted to be accompanied by my hon. Friend the Member for Swansea East (Carolyn Harris). I am also comforted by the presence of my hon. Friends the Members for Llanelli (Nia Griffith) and for Clwyd South (Susan Elan Jones), who are on a temporary respite which I am sure will last for days. But I have this job. It is not the best job I have ever had: it is a zero-contract job, a zero-pay job and a zero-hours job that could end at any moment.

We are all conscious that we are just a matter of weeks from the terrible murder of our colleague, Jo Cox, who said memorably in her maiden speech that

“we are far more united and have far more in common than that which divides us.”—[Official Report, 3 June 2015; Vol. 596, c. 675.]

That is what I intend to concentrate on. I agree very much with the points made by the hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) and I certainly do not want any futile dispute. The Government have made it clear that they will not move on some of the main points that we and the Welsh Government are very much in favour of, so we take the position that the sensible thing is to try to find a third way or middle course.

I believe we are in a better position than we have ever been in. A book entitled “Dragons led by Poodles” on the first devolution referendum was published when there were deep divisions in my own party. We are happy today that, in particular after the example of the Welsh football team, we are dragons led by dragons. We have the great joy of seeing the brilliant success of our footballers—the best we have ever seen. We take great pride in that. It has done so much for Wales that everyone is Welsh now. I heard someone on the radio say they owned two Bryn Terfel records and did that entitle him to call himself Welsh? It is suddenly fashionable and desirable to be Welsh. The whole world wants to be Welsh and that will bring us tangible benefits.

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[Guto Bebb]

I appreciate that there are quite a few experts on Hywel Dda in this place. It is certainly the case that he took a co-operative approach. As I said previously in a debate with the hon. Member for Carmarthen East and Dinefwr, Hywel Dda was perhaps very good in some respects, but he allowed the murder of his brother-in-law for his own personal gain in the kingdom. So perhaps he was not perfect.

Let me return to the serious issue of the separate legal entity. I think that, for all the talk of Hywel Dda, it would be a mistake to ignore the historical context. We are where we are. We legislate not in terms of what we would like to see, but in terms of what is practical and what is right at this point in time, and I think that the Bill has struck the right balance in that respect.

We recognise the validity of some of the points that were raised during pre-legislative scrutiny. Wales has a distinctive legal identity. It has two legislatures, and a growing body of law made by the Assembly and Welsh Ministers. The Bill recognises that, and there is clearly a need to ensure that it does so in the context of maintaining the single jurisdiction of England and Wales. Our position is clear: we are recognising reality in the context of a system that currently works very well for Wales and the United Kingdom.

Amendments 7 and 9 call for the Lord Chancellor and Welsh Ministers to keep under review the functioning of the justice system in relation to Wales, including the question of whether the single legal jurisdiction should be separated into a jurisdiction for Wales and a jurisdiction for England. The case for that was argued by the hon. Members for Torfaen and for Newport West.

This is an important issue, and it should be considered carefully. The St David’s day process considered the position for and against devolving justice, and ultimately found no consensus in favour of implementing the Silk commission’s recommendation. As I have said, the Government firmly believe that the most effective, efficient and consistent way to administer justice is under a single legal jurisdiction.

Despite the devolution of powers to Wales, under this Bill and the Government of Wales Acts before it, and despite the increasing amount of legislation made by the Assembly, the vast majority of laws apply equally across England and Wales, and will continue to do so. The Government therefore pledged to continue to reserve justice and policing in their election manifesto, as I mentioned earlier. However, I agree with the principle that the functioning of the justice system must be kept under review, especially given the continuing divergence in law to which I have referred.

It is for that very reason that my right hon. Friends the Justice Secretary and the Secretary of State for Wales have established a working group to consider the administrative changes needed to meet the administrative and operational demands of diverging legislation in a Welsh context. The group will represent the key areas affected by the changing legislative Welsh landscape, and will consider a range of circumstances affecting the operation of justice in Wales. I can tell the hon. Member for Ceredigion (Mr Williams), who raised the point in his speech, that the Welsh Government have been invited to be represented on the group, but the invitation was issued to officials in that Government, so there should be no condemnation of any political forces—any Ministers—in the Assembly. We expect a positive response to the invitation.

[Mr Mark Williams]

Will the Minister clarify—I am sure that he is on the verge of doing so—the time frame for the joint working group? I understood that it would conclude its work in the autumn. The amendment proposes a real review over a lengthier period as the divergence between Welsh and English legislation becomes a reality.

[Guto Bebb]

It is currently envisaged that the group will report in the autumn, and, as things stand, that is its aim. I hope that that satisfies the hon. Gentleman, at least in terms of clarity.

It is important to understand what the group will and will not do. It will consider the administrative and operational implications of a shared but single legal jurisdiction, but it will not discuss broader constitutional questions such as whether there should be a separate jurisdiction. The Government’s view is clear: the single legal jurisdiction of England and Wales is the most effective, efficient and consistent way to deliver justice. I hope that provides the clarity for which Members have been asking.

Amendment 10 seeks to omit subsection (2) of the proposed new section 92B of the Government of Wales Act. Subsection (2) recognises that a body of Welsh law made by the Assembly and by Welsh Ministers forms part of the single legal jurisdiction of England and Wales, while giving due regard to the boundaries of competence set out in the Bill. It is important for the Assembly to have full and effective powers to enforce its legislation on devolved matters, and in order to achieve that, a growing body of distinct law will necessarily continue to be made by the Assembly and Welsh Ministers.

The Bill provides for that throughout. In particular, paragraphs 3 and 4 of new schedule 7B, which schedule 2 inserts into the Government of Wales Act and which the Committee will debate next week, make it clear that the Assembly may modify the private law for a devolved purpose, and that only certain core elements of the criminal law are outside its competence. Those elements are listed in paragraph 4 of the new schedule. The Assembly will, for example, be able to create and modify offences when they are for the purpose of enforcing devolved provisions.

Subsection (2) of new section 92B is intended to be helpful, explaining that the purpose of the provision is to recognise the ability of the Assembly and Welsh Ministers to make laws forming part of the unified legal system of England and Wales. The new section constitutes a declaratory statement, and does not bestow any further powers on the Assembly than are provided for elsewhere in the Bill. It is, however, important in that it enables the contribution made by the Assembly and Welsh Ministers to the law of England and Wales to be recognised for the first time, while having due regard to the other provisions in the Bill. Subsection (2) is required to clarify that the statement must be considered in the context of the rest of the Bill. Without it, there might be uncertainty about the meaning of subsection (1).

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[Liz Saville Roberts]

I rise to speak against clause 10 and the imposition of an obligation on the Assembly to undertake and publish justice impact assessments for Assembly Bills. Such assessments are intended to set out the potential impact of a Bill’s provisions on the justice system in England and Wales, and specifically on the Crown Prosecution Service, the Serious Fraud Office, courts and prisons. The obligation to undertake justice impact assessments—or justice impact tests—in Westminster Departments is voluntary in the sense that the UK Ministry of Justice provides guidance as a tool to help policy makers find the best way to achieve their policy aim. If the guidance approach is appropriate for Westminster, why should it be deemed acceptable to place an obligation on the Assembly by means of its own Standing Orders?

[Mr Mark Williams]

I share the hon. Lady’s concerns over clause 10. In many ways the Bill includes a welcome approach for the Assembly to regulate its own affairs, so does she agree that this measure is inconsistent with the rest of the Bill?

[Liz Saville Roberts]

It is also being imposed on the Assembly through its own Standing Orders. In that same spirit, surely the Standing Orders of the Assembly should be a matter for Assembly Members alone, especially bearing in mind that the Bill trumpets its credentials as the harbinger of a new model of reserved powers. No other legislature in the UK is denied the freedom to decide on its own legislative process and Standing Orders. There is nothing of the kind in Northern Ireland, Scotland or England, and nothing currently in Wales. No reciprocal arrangement is in place whereby UK Government Bills are required—voluntarily or otherwise— to assess what impact they will have on Assembly responsibilities in Wales. What impact, for example, will the building of the super-prison in Wrexham have on public service provision in the area, the national health service and transport?

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[Jonathan Edwards]

I am grateful for that intervention. I think that we can move swiftly on this in Wales and build a consensus in the Assembly. It would be a very progressive move, as the hon. Gentleman has just outlined.

[Mr Mark Williams]

Did the hon. Gentleman also detect from polls in the last fortnight a healthy appetite among 16 and 17-year-olds for participation in the decision that we, as adults, were able to make and which they, as young people, should have been able to make?

[Jonathan Edwards]

That is another valid dimension. It was clear that the younger generations were very much in favour of remaining a part of the EU. The morning after the referendum, I was the guest speaker at the graduation service of Coleg Sir Gâr, the local further education college, and in particular the Gelli Aur campus, which specialises in agriculture courses. I started my speech by apologising to those generations of young people—mostly 16 and 17-year-olds—who had been unable to participate in the referendum but for whom the decision made on their behalf will arguably leave a far greater legacy.