Oral Answers to Questions

Nick Thomas-Symonds Excerpts

Wednesday 13th July 2016 Commons Chamber

[Guto Bebb]

My hon. Friend is absolutely right to highlight the importance of transport links for economic growth in north Wales. Last Thursday, I was at a summit in north Wales with the Welsh Government economic Minister and local government leaders. We discussed a proposal for improving rail and road links in north Wales as part of the north Wales growth deal.

[Nick Thomas-Symonds (Torfaen) (Lab)]

Central to rebalancing the Welsh economy are the metro projects and the city regions. Given that during the referendum campaign 13 Government Ministers signed a letter guaranteeing the continuation of EU funding, will the Minister ensure that none of those projects loses out as a result of our leaving the EU?

[Guto Bebb]

I think the hon. Gentleman is asking me to give a guarantee in relation to a future Government. That Government will be established by the new Prime Minister from this afternoon onwards. The key point is that the city deal was an initiative that showed the co-operation between the Westminster Government and the Welsh Government. It showed what could be done when Governments work together. The proposed investment in the south Wales metro is something that was not delivered by the previous Government during the 13-year period in which they could have made a difference.

Wales Bill

Nick Thomas-Symonds Excerpts

Tuesday 5th July 2016 Commons Chamber

[David T. C. Davies]

There was no mechanism but there was a second referendum a few years later. I forget the percentages, but a much clearer level of support was expressed for the Welsh Assembly in that referendum. Realistically, now, by the time of the next election there will be people who have lived their entire lives with a Welsh Assembly. I do not think that it is a greatly loved institution, but it is not greatly hated, either. It is just accepted, as part of the furniture.

The only point I would make to the hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) is this. Regardless of whether her amendment 21 gets the support of the Committee today, I think it is absolutely inconceivable that there will ever be any attempt to get rid of the Welsh Assembly. It is our duty to work with it and to remember what the Welsh public have said to us twice through referendums. I hope that we will all take the same view about all referendums in which the Welsh public have expressed their voice.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I will speak in favour of amendments 9, 7 and 10. It is always a pleasure to follow my constituency neighbour, the hon. Member for Monmouth (David T. C. Davies). I welcome my hon. Friend the Member for Newport West (Paul Flynn) to the Front Bench. He follows in a fine tradition of octogenarians serving in the Labour Front-Bench team. The one who sprang to my mind was Lord Addison, who left the Attlee Government in 1951 at the age of 82. I am sure that in my hon. Friend we have a fine 21st century successor to Lord Addison. When I first came to this House, I thoroughly enjoyed reading my hon. Friend’s book “How to be an MP”; I look forward to the sequel, “How to be a Front Bencher”.

I will speak on the issue of a separate legal jurisdiction for Wales. The hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) spoke about the wording of amendment 5. When the Wales Bill still contained the vast number of necessity tests that it did, there was a more powerful argument for a separate legal jurisdiction, but now that the necessity tests have been all but removed, save in two very specific circumstances, I do not think that any urgency for that remains. That allows us the chance to move forward far more pragmatically.

We have to be absolutely clear about the consequences of having a separate legal jurisdiction. I should say that prior to coming to this House I spent 11 years as a practising barrister in Cardiff and am still a door tenant, though non-practising, at Civitas Law. I have looked at situations where the permission of the court would be required to serve outside the jurisdiction—in other words, an additional barrier to access to justice would exist—if there was a separate legal jurisdiction. The list includes interim remedies, contracts, claims in tort, enforcement, claims about property within jurisdiction, trusts, claims by Her Majesty’s Revenue and Customs, claim for costs order in favour of, or against, third parties, admiralty claims, claims under various enactments, and claims for breach of confidence or misuse of private information. All those areas would require permission to serve outside the jurisdiction. That may have been rather a legal list, but let us think of its practical consequences. For example, let us suppose a constituent from Torfaen goes to Bristol and falls over. They will be put in a complicated legal position.

Health is also a cross-border issue. If someone who lives in Wales crosses the border for treatment, there will be complications in cases of medical negligence. When people from Wales drive to London on the M4 and if they have an accident on the other side of the Severn bridge, that will have suddenly taken place in a different jurisdiction. If someone buys a washing machine or some other product from England, consumer protection law will cause complications for someone in Wales who is seeking a remedy for a problem.

[Hywel Williams (Arfon) (PC)]

In his research, has the hon. Gentleman come across figures for how many cases are held in Wales compared with the number of cross-border cases?

[Nick Thomas-Symonds]

At the moment, anyone who issues a claim would have a choice about where to issue it. For example, when I practised in Cardiff, it was easy for me to issue something to my client in Bristol if I wanted to, so in a sense those statistics do not really add any meaning to my argument. Companies would have an element of uncertainty introduced to their business if they were to trade on a cross-border basis—the last thing I want is for Offa’s Dyke to become an additional barrier to access to justice.

[Jonathan Edwards]

The hon. Gentleman will be aware that Scotland and Northern Ireland have their own separate legal systems. Using his vast experience in that field, how does he think they should overcome those problems? I have been listening carefully to what he has been saying, and it seems as if he is fundamentally disagreeing with those on his Front Bench on this issue.

[Nick Thomas-Symonds]

I am not disagreeing with those on my Front Bench—I have made it clear that we are looking for a pragmatic way forward. For Scotland and Northern Ireland the history is very different, as I am sure the hon. Gentleman is aware. In Wales we can go back to the 1530s and the Tudors for the origins of the single legal jurisdiction, but the position is very different for Scotland and Northern Ireland.

Why do we now have the opportunity to consider a more pragmatic way forward? Amendment 7 makes it clear that there will be a review to consider the functioning of the system. The hon. Member for Dwyfor Meirionnydd made a point about having two legislatures within the single legal jurisdiction. That is unusual, but it does not mean that there cannot be a pragmatic way forward for the years ahead. Indeed, the amendment includes a proposal to always have regard to the divergence in the law. The Bill explicitly recognises the Welsh body of law, and there will be one because as the legislature goes forward, it will produce the case law to form that. There must be an annual report on the functioning of the justice system—something that I suggest all Members of the House should welcome.

[Liz Saville Roberts]

Does the hon. Gentleman agree that the current situation, whereby issues or disagreements about the status of legal proposals by the Welsh Assembly are resolved in the Supreme Court, is a satisfactory way for the legislature to proceed?

[Nick Thomas-Symonds]

Of course we would all like the Supreme Court to be used far less to resolve conflict between the Governments in Wales and in Westminster, but I am not sure that having a separate legal jurisdiction would have any real substantial short-term impact on that. The Bill is now far better and we have sought to improve it, but the clarity of the provisions—particularly removing all but two necessity tests—has made a great difference and I hope it will mean that there should be far less conflict in the Supreme Court.

--- Later in debate ---

[Liz Saville Roberts]

I am very grateful for the opportunity to close this debate, Sir Alan. I will restrict my comments to amendments 5 and 7 on jurisdiction, although I appreciate the comments the Under-Secretary made about the areas that he will reconsider. I intend to withdraw amendment 17 and to divide the Committee only on amendment 5.

In my opening speech, I referred to the arguments about divergence that are made against separate legal jurisdictions, but the overriding need to maintain a single legal jurisdiction leads to many of the complications and areas that cause a lack of clarity in the Bill.

Other issues were raised during the debate. The hon. Member for Torfaen (Nick Thomas-Symonds) made much of somewhat speculative cross-border cases. It is evident that Hadrian’s wall is no more a barrier to the functioning of law in the United Kingdom now than Offa’s Dyke would be in the future. It is effectively an argument for the right of Welsh lawyers to practise in Bristol, which is a very worthy cause but not what we are here to discuss.

[Nick Thomas-Symonds]

It was not so much speculation as experience that I was drawing upon. My point was not about lawyers, but about the uncertainty that would be created for my constituents and others by such cross-border cases if there were different jurisdictions.

[Liz Saville Roberts]

That very question is dealt with across the land border between Scotland and England. There is also a tradition in respect of Scotland and Northern Ireland.

I felt that Labour was almost clutching at straws to find ways to disagree with what Plaid Cymru was proposing. Indeed, our amendment 5 uses the very words proposed by the Labour Welsh Government.

I reiterate what the hon. Member for Ceredigion (Mr Williams) said: the issue of jurisdiction will not go away and we will continue discussing it in the future. It is an argument about gradualism that we have here today. We know that a separate body of Welsh law is developing, and as the Welsh Assembly matures, that body will grow. These questions cry out for an answer in the shorter term, rather than this piecemeal approach.

In closing, the historical realities of Northern Ireland and Scotland are indeed different from that of Wales, but we are making the historical reality of Wales today in this Committee and we should be proud of what we achieve. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 5, page 2, leave out lines 1 to 6 and insert—

“Part 2B

Separation of the Legal Jurisdiction of England and Wales

Introductory

92B New legal jurisdictions of England and of Wales

The legal jurisdiction of England and Wales becomes two separate legal jurisdictions, that of England and that of Wales.

Separation of the law

92C The law extending to England and Wales

(1) All of the law that extends to England and Wales—

(a) except in so far as it applies only in relation to Wales, is to extend to England, and

(b) except in so far as it applies only in relation to England, is to extend to Wales.

(2) In subsection (1) “law” includes—

(a) rules and principles of common law and equity,

(b) provision made by, or by an instrument made under, an Act of Parliament or an Act or Measure of the National Assembly for Wales, and

(c) provision made pursuant to the prerogative.

(3) Any provision of any enactment or instrument enacted or made, but not in force, when subsection (1) comes into force is to be treated for the purposes of that subsection as part of the law that extends to England and Wales (but this subsection does not affect provision made for its coming into force).

Separation of the Senior Courts

92D Separation of Senior Courts system

(1) The Senior Courts of England and Wales cease to exist (except for the purposes of section 6) and there are established in place of them—

(a) the Senior Courts of England, and

(b) the Senior Courts of Wales.

(2) The Senior Courts of England consist of—

(a) the Court of Appeal of England,

(b) the High Court of England, and

(c) the Crown Court of England, each having the same jurisdiction in England as is exercised by the corresponding court in England and Wales immediately before subsection (1) comes into force.

(3) The Senior Courts of Wales consist of—

(a) the Court of Appeal of Wales,

(b) the High Court of Wales, and

(c) the Crown Court of Wales, each having the same jurisdiction in Wales as is exercised by the corresponding court in England and Wales immediately before subsection (1) comes into force.

(4) For the purposes of this Part—

(a) Her Majesty’s Court of Appeal in England is the court corresponding to the Court of Appeal of England and the Court of Appeal of Wales,

(b) Her Majesty’s High Court of Justice in England is the court corresponding to the High Court of England and the High Court of Wales, and

(c) the Crown Court constituted by section 4 of the Courts Act 1971 is the court corresponding to the Crown Court of England and the Crown Court of Wales.

(5) References in enactments or instruments to the Senior Courts of England and Wales have effect (as the context requires) as references to the Senior Courts of England or the Senior Courts of Wales, or both; and

(6) References in enactments or instruments to Her Majesty’s Court of Appeal in England, Her Majesty’s High Court of Justice in England or the Crown Court constituted by section 4 of the Courts Act 1971 (however expressed) have effect (as the context requires) as references to either or both of the courts to which they correspond.

92E The judiciary and court officers

(1) All of the judges and other officers of Her Majesty’s Court of Appeal in England or Her Majesty’s High Court of Justice in England become judges or officers of both of the courts to which that court corresponds.

(2) The persons by whom the jurisdiction of the Crown Court constituted by section 4 of the Courts Act 1971 is exercisable become the persons by whom the jurisdiction of both of the courts to which that court corresponds is exercisable; but (despite section 8(2) of the Senior Courts Act 1981)—

(a) a justice of the peace assigned to a local justice area in Wales may not by virtue of this subsection exercise the jurisdiction of the Crown Court of England, and

(b) a justice of the peace assigned to a local justice area in England may not by virtue of this subsection exercise the jurisdiction of the Crown Court of Wales.

92F Division of business between courts of England and courts of Wales

(1) The Senior Courts of England, the county courts for districts in England and the justices for local justice areas in England have jurisdiction over matters relating to England; and (subject to the rules of private international law relating to the application of foreign law) the law that they are to apply is the law extending to England.

(2) The Senior Courts of Wales, the county courts for districts in Wales and the justices for local justice areas in Wales have jurisdiction over matters relating to Wales; and (subject to the rules of private international law relating to the application of foreign law) the law that they are to apply is the law extending to Wales.

92G Transfer of current proceedings

(1) All proceedings, whether civil or criminal, pending in any of the Senior Courts of England and Wales (including proceedings in which a judgment or order has been given or made but not enforced) shall be transferred by that court to whichever of the courts to which that court corresponds appears appropriate.

(2) The transferred proceedings are to continue as if the case had originated in, and the previous proceedings had been taken in, that other court.”—(Liz Saville Roberts.)

This amendment replaces the Bill’s proposed recognition of Welsh law with provisions to separate the legal jurisdictions of England and of Wales, as drafted by the Welsh Government.

Question put, That the amendment be made.

Wales Bill

Nick Thomas-Symonds Excerpts

Tuesday 14th June 2016 Commons Chamber

[Alun Cairns]

The hon. Gentleman raises an extremely important point. The intention of this Bill is to provide that clarity, from which there will be the opportunity for greater communication. All Members in this House and stakeholders have the responsibility to help to communicate this, but one key function of the Bill is to provide a clear line between what the UK Government are responsible for and what the Welsh Government are responsible for, so that anyone living or working in Wales clearly knows not only who to give credit to when policies are going right, but who to hold responsible where policies or the impacts of policies are not as effective as the policymakers might have thought at the outset.

[Nick Thomas-Symonds (Torfaen) (Lab)]

Does the Secretary of State agree that one of the other reasons why clarity is so important is so that we have far fewer examples of the Welsh Government and UK Government ending up arguing about things in the Supreme Court? Would clarity not assist in reducing that?

[Alun Cairns]

The hon. Gentleman is absolutely right about that, and this is the function of many of the clauses and much of the motivation behind them.

The Bill also strengthens Welsh devolution by devolving further powers to the Assembly and the Welsh Ministers. To complement the Assembly’s existing powers over economic development, the Bill devolves responsibility for ports in Wales. That will enable the Welsh Government to consider the development of ports in Wales as part of their wider strategies for economic development, transport and tourism. Major trust ports will remain reserved, given their national, UK-wide significance. That means Milford Haven, given its importance to the energy security of the whole of the UK, will remain reserved. We are also devolving consenting responsibility for all energy projects in Wales up to 350 MW, aside from onshore wind projects which are being devolved through the Energy Act 2016.

The Bill also streamlines the consenting regime for energy projects, providing a one-stop shop for developers by aligning associated consents with the consents for the main project. When the Welsh Government make a decision on a new energy project, they will also be responsible for consenting to the new substations, access roads and overhead power lines relating to that project.

--- Later in debate ---

[Nia Griffith (Llanelli) (Lab)]

It is said that devolution is a process, not an event, a journey rather than a destination, and that is certainly true when it comes to the Bill. The journey has taken longer than it should have done, because in the draft Wales Bill the immediate predecessor of the Secretary of State seemed determined to drive us along a tortuous and convoluted path, going back the way we had come. That was in spite of an extraordinarily united chorus of navigators—everyone from Cymdeithas yr laith to the Conservative group in the Assembly—telling him to turn round the other way. It was quite an achievement to unite everyone against that Bill. Mind you, the Bill was so bad that it would have made the Assembly’s job impossible, and it would definitely have taken Welsh devolution backwards, not forwards. I am glad, however, that the right hon. Member for Preseli Pembrokeshire (Stephen Crabb) eventually listened, put the brakes on, and prepared to change direction. We now have a piece of legislation that, while not perfect, is definitely a marked improvement.

I suppose like any lost driver, the right hon. Gentleman could be forgiven for hurling some irrational abuse at those of us trying to offer navigational advice. In February, he told us in no uncertain terms that we were launching some kind of separatist plot, that we had

“given up on the union”

and that all our criticism was actually a bid for Welsh independence. I hope that we can have a more sensible and measured debate today.

[Nick Thomas-Symonds]

My hon. Friend will remember from the Welsh Grand Committee debate on 3 February that the right hon. Member for Preseli Pembrokeshire (Stephen Crabb) said:

“There is nothing in the draft Bill that makes the Welsh Assembly consider whether legislating in a devolved area is necessary.”—[Official Report, Welsh Grand Committee, 3 February 2016; c. 61.]

Is my hon. Friend as pleased as me that finally the then Secretary of State realised what was in his own Bill?

[Nia Griffith]

Indeed, it was laughable at times when the former Secretary of State noticed things to which we assumed he had already given his approval.

I want to make it clear at the outset that we welcome the reserved powers model, for which we have been calling for some time, as we feel that it has the potential to clarify the devolution settlement, and we welcome each of the new powers contained in the Bill. As the party that established the Welsh Assembly, we want to see our devolution settlement strengthened, with more powers devolved from Westminster to Wales. We are glad that the Assembly will have new powers over transport, energy and elections. As with the areas it already controls, the Assembly will be able to use those new powers to make different choices that reflect the will of people in Wales.

The powers over shale gas extraction will allow the Assembly to take into account the very real fears that people in Wales have about fracking. Labour has made it clear that, as the necessary safeguards cannot yet be met, we should not push ahead with fracking. We welcome the powers over energy planning consents for projects generating up to 350 MW, but we would certainly like full powers over grid connections devolved to Welsh Government. I hope that that is what we will hear from the Secretary of State.

That would not solve the delays with the Swansea bay tidal lagoon, which are due to the failure by Conservative Ministers to agree a viable financial framework for investors to proceed. I very much hope that the Secretary of State does everything he can to speed up the review, so that we can have a world first in Wales, with all the positive spin-offs for our manufacturing industry, rather than letting other countries steal a march on us.

The power to change the name of the Assembly means that we could call it a Welsh Parliament. Responsibility for the voting age in Welsh elections means that the Assembly could introduce votes at 16 for elections to the Assembly and to local councils. Whatever the Assembly decides, what matters is that those decisions will be taken in Wales by elected Assembly Members.

--- Later in debate ---

[Chris Davies]

My hon. Friend makes an absolutely valid point. My theme is the centralisation of government in Cardiff Bay. That is not devolution to the people of Wales. Sadly, devolving further powers at this time, when that Government are not capable of handling the powers they have, is a bad way forward.

[Nick Thomas-Symonds]

I will just say in relation to the intervention by the hon. Member for Montgomeryshire (Glyn Davies) that the last time I went along to Torfaen’s planning committee it seemed to have some planning powers. To return to the point, the hon. Member for Brecon and Radnorshire (Chris Davies) is attacking the Welsh Labour Government. Will he show some respect to the people of Wales, who on five occasions have elected Labour as the largest party in the Assembly?

[Chris Davies]

The hon. Gentleman said the important thing, which was not said by the hon. Member for Ynys Môn (Albert Owen): the people of Wales have elected the largest party, not a majority party. That party has achieved government by a coalition—is it a coalition; is it a merger? I am not quite sure what it is down there at the moment. They do not seem to know down there either, so is now the time to pass on more powers?

There we have it. I have asked only for a devolution settlement that allows Wales to decide its own destiny and future and to play its part in the United Kingdom, and that is built on the firmest foundations of accountability and democracy. Let us give Wales desired devolution, not disappointment, and a settlement, not a setback. Most of all, let us give real democracy to Wales.

--- Later in debate ---

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to follow the hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) as another member of the 2015 generation.

I welcome the Wales Bill in its new form, which is a significant improvement on its first incarnation last October. There is still work to do, but I am reassured that the Secretary of State has made it clear that he will continue to have constructive discussions on the Bill with the Welsh Government, and there is still scope to amend the Bill during its passage through the House. I welcome the additional powers on elections, energy, transport and marine licensing. The Bill represents a further stage on the devolution journey that began under a Labour Government in 1999.

In the Welsh Grand Committee on 3 February, I highlighted three concerns about the Bill regarding ministerial consents, reservations and the necessity tests. As I said in an intervention on my hon. Friend the shadow Secretary of State, the then Secretary of State said:

“There is nothing in the draft Bill that makes the Welsh Assembly consider whether legislating in a devolved area is necessary.”—[Official Report, Welsh Grand Committee, 3 February 2016; c. 61.]

I am pleased that there has been a rapid move from denial to acceptance, and that changes have been made in that regard.

The necessity tests have not been scrapped completely, and they remain in the Bill, admittedly in a watered-down form, in clause 3 and new schedule 7B. They apply, first, if Welsh legislation touches on reserved matters and, secondly, if there is an effect beyond Wales. My hon. Friend the shadow Secretary of State made it clear that there may be scope to remove that altogether, and that may be something that the Secretary of State will consider during the passage of the Bill. Simpler ministerial consents are welcome. It is entirely right that the Welsh Government have the power to remove or modify UK ministerial powers in devolved areas without consent, and the shortened list of reservations is welcome too.

I spent some time teaching politics before entering the House and I remember many debates 10 to 12 years ago about pre-legislative scrutiny. Such scrutiny has been helpful for the Bill, and I pay tribute to the work of the Select Committee on Welsh Affairs and the Constitutional and Legislative Affairs Committee in the Assembly, as well as to my hon. Friend the shadow Secretary of State, particularly for the speech that she made in the Welsh Grand Committee in February.

I want to deal with the issue of jurisdiction. I should refer to my entry in the Register of Members’ Financial Interests, and declare that I am a non-practising barrister, following my door tenancy at Civitas Law in Cardiff. There is an emerging body of Welsh law, which is a reality, and it will grow in years to come as a consequence of the primary powers devolved in the 2011 referendum. I am pleased that that has been explicitly recognised in the Bill, and I welcome the working group to which the Secretary of State has referred. As I understand it, the group can take in representatives from the Wales Office, the Ministry of Justice, the Welsh Government and, indeed, the Lord Chief Justice, all of whom should be able to contribute.

The power to modify criminal and private law on matters in the competence of the Assembly is welcome too, along with clause 10 and judicial impact assessments. However, a steer on a distinct jurisdiction would be extremely useful, and was proposed by the Welsh Government in supplementary pre-legislative scrutiny evidence. That would assist in the longer term—we all want a lasting settlement, not one that is revisited. I do not, however, think that a separate legal jurisdiction is the answer to the problem. I approach this from the perspective of access to justice. I have been critical of the Government in other contexts and their record on access to justice, but that issue has to be borne in mind in the Bill.

At present, if someone wishes to take a legal action on something outside the jurisdiction, within the civil procedure rules—sadly, I can remember these things; this is covered in part 6—a number of requirements have to be met in order to do so. I do not want a constituent from Torfaen, who goes, for example, to Bristol, falls over or has an accident, and then wants justice in that matter to find that there are barriers in the way of securing that. As the working group goes forward, it must look at the access to justice issue and ensure that we have a pragmatic way forward—the kind of vision of devolution set out by my hon. Friend the Member for Ynys Môn (Albert Owen)—so that individual access to justice is at the heart of the matter. It would also be useful to have far fewer clashes in the Supreme Court. I hope that as we proceed, the Bill will be able to achieve that.

On the devolution of income tax, I echo the comments of my hon. Friend the Member for Llanelli (Nia Griffith), the shadow Secretary of State: it must be on the basis of no detriment to the current funding settlement for the Welsh Government.

My vision of the Bill is the vision of one of my hon. Friend’s predecessors as Member of Parliament for Llanelli, James Griffiths, whom I regard as one of the most underrated politicians of the previous century, particularly for his work as Minister for National Insurance after the second world war. He was the very first Secretary of State for Wales, appointed by a Labour Prime Minister, Harold Wilson, in 1964, and his vision was of strong devolution for Wales within a strong United Kingdom. That is precisely the vision that I have today, and I sincerely hope that we can achieve that by building on the Bill and passing it.

Oral Answers to Questions

Nick Thomas-Symonds Excerpts

Wednesday 25th May 2016 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

Given the Secretary of State’s previous answer on the effectiveness of tariffs, why do the UK Government keep being at the head of a blocking minority for reform of the lesser duty rule? Is it not the case that they simply have not done enough to save the British steel industry?

[Alun Cairns]

The hon. Gentleman is confused about the impact of the lesser duty rule, which relates to the framework. There are currently 37 trade defence measures in place. Where the European Commission has acted within the lesser duty rule, it has had a significant effect, be it in rebar, wire rod, seamless pipes or cold-rolled flat products. I could highlight a whole range of speciality steels where the tariffs are working within the lesser duty rule, because otherwise there would be an impact on other manufacturers and other costs. We need to work within the rule because it currently operates effectively.

Oral Answers to Questions

Nick Thomas-Symonds Excerpts

Wednesday 13th April 2016 Commons Chamber

[Mr Speaker]

I think that the hon. Gentleman was referring to the Secretary of State for Defence, the right hon. Member for Sevenoaks (Michael Fallon). Some name was mentioned, but it does not mean anything in the Chamber.

[Nick Thomas-Symonds (Torfaen) (Lab)]

Since 2012, Jobs Growth Wales has helped 15,000 people into meaningful employment. Given that youth unemployment is falling faster in Wales than in the UK as a whole, does the Minister agree that the UK Government could learn from the Welsh Labour Government in this regard?

[Guto Bebb]

It is interesting to note that an independent audit of Jobs Growth Wales has highlighted that some 80% of its spending has been inefficient. However, it is important to point out that successful jobs creation in Wales is dependent on co-operation between the two Governments, which is exactly what we saw in relation to Aston Martin.

Draft Wales Bill

Nick Thomas-Symonds Excerpts

Wednesday 3rd February 2016 General Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship for my first Welsh Grand Committee, Mr Hanson.

Our starting point has to be what the Secretary of State for Wales says in the foreword to the draft Wales Bill:

“We are determined to ensure the people of Wales have a clear and lasting devolution settlement… For too long Welsh politics has been dominated by constitutional debates about what is and is not devolved.”

I fear that, as it is, the draft Wales Bill is likely to create more and more debate, much of which will end up before the UK Supreme Court unless stringent and significant changes are made to the Bill. I shall give a few examples, starting with the issue of ministerial consent.

The provisions on ministerial consent on page 73 of the draft Bill mean that if the Assembly wants to legislate in a way that affects the power of a UK Government Minister, it must first ask for consent. In and of itself, that creates great uncertainty, because the powers of UK Government Ministers are set out in hundreds of statutes. Let me give one example of the kind of absurd consequences that could arise and why the provisions are an example of devolution being rolled back, not forward: the Control of Horses (Wales) Act 2014. Reservation 184 in the draft Bill is about arbitration. Section 7 of the 2014 Act contains a dispute resolution procedure to resolve disagreements between horse owners and local authorities. Under the draft Bill, that Act would have to be subject to ministerial consent. There we have it: horses in Wales having to be subject to a UK Government Minister in London. I do not know the Secretary of State’s view on horses, but no doubt we will have to find out if the draft Bill becomes a permanent fixture.

The Silk Commission said that one way to resolve uncertainties would be to transfer the powers in the devolved areas. I urge the Secretary of State to look at ministerial consents to see whether there can be such a simplification. Otherwise, we will simply be piling up work for the UK Supreme Court.

In an intervention on the Secretary of State this morning, I raised the issue of reserved powers. Yes, of course, a reserved powers model can work extremely well. I think the right hon. Member for Clwyd West pointed out that my predecessor as MP for Torfaen, who was twice Secretary of State for Wales, had spoken about the reserved powers model. There is nothing wrong with the model. The problem is that, first, it has to be pretty clear and, secondly, the number of powers that are and are not reserved has to be in line with the expectations of the Welsh people.

Conservative Assembly Member David Melding said of the reserved powers in the draft Bill:

“They are numerous. Quite literally, they cannot be counted, although most who have attempted enumeration put the figure somewhere above 250. This is ominous.”

The Secretary of State really should take that into account as he looks at how he can redraft the Bill. Dame Rosemary Butler put it this way:

“there is significant roll-back in the reservations themselves. A large number of matters which are not exceptions from the Assembly’s current competence have been made into reserved matters in the draft Bill.”

That is devolution being rolled back.

[The Secretary of State for Wales (Stephen Crabb)]

The hon. Gentleman highlights an important point and refers to comments by the Presiding Officer of the Welsh Assembly. Does he agree with the Presiding Officer’s presumption that all of those silent subjects were intended to be devolved, and therefore the Supreme Court judgment on the Agricultural Sector (Wales) Bill effectively makes all of those subjects devolved now if they can be linked in some way to a devolved purpose? Alternatively, does he agree with me that we should go back and understand Parliament’s intentions in making the existing devolution settlement and then extend the devolution boundary by a political process, rather than rely on the courts?

[Nick Thomas-Symonds]

With the greatest of respect to the Secretary of State, I do not think he has quite picked up the point I am making, which is this: the Assembly has already legislated on a number of matters that, under this Bill, it will have to seek his consent to legislate on. Another example of where his consent would have been required is the Human Transplantation (Wales) Act 2013. I am sure he is a generous man with his consent, but the reality of the situation is that where the Assembly has been able to legislate, the Bill now requires his consent to do it. That is a roll-back of devolution; it is as simple as that.

[Stephen Crabb]

The hon. Gentleman is getting confused. Under the existing settlement, the Act to which he just referred required ministerial consent. That consent was given, with no problem at all. Under the new settlement, because that Act has an impact on reserved matters or functions of a UK Minister of the Crown, it would still require consent. We should not see consents as some great problem. We need a way of regulating the interface between the UK Government and the Welsh Government.

[Nick Thomas-Symonds]

With respect, the Secretary of State has to understand that simplicity is the most important thing. The Silk Commission said—this is what the Presiding Officer of the Welsh Assembly was also referring to—that there must be scope for the situation where consent is not required in the 20 devolved areas. I cannot understand why the Secretary of State cannot see that. The roll-back of the devolution process is the danger of the Bill.

[Stephen Crabb]

Confused.

[Nick Thomas-Symonds]

If we want to talk about confusion, let us move on to necessity, because we will have some fun on that with the Secretary of State.

Let us be clear what the test of necessity actually means. The Assembly has to be convinced that Acts are necessary before it can act—that is what the necessity test says. There are plenty of examples in the Bill; there is one on page 69, if Members want to look at it. Let me tell the Secretary of State what the Wales Governance Centre at Cardiff University said:

“The concept of necessity-testing in the draft Bill represents a failure of comparative legal method… The use of necessity-testing in the draft Bill jars with basic constitutional principle.”

Why does it say that? It says that because necessity-testing is a concept that has essentially been taken from Scottish law, but in Scottish law it would refer only to cases where the law has to be modified in a very narrow, consequential way in relation to reserved matters, and not in the very broad sense that is being attempted in the Bill. That is the central problem.

This morning, the right hon. Member for Clwyd West kept asking, “What do you replace necessity with?” It is true that we could use a different word. We could use “reasonable” or “sufficient” if we wanted to, but none of that would deal with the basic problem, which is that that would ultimately have to be a subject of interpretation by the judiciary. The real problem is that the Secretary of State has to revisit the framework in which the necessity test arises; it has to be about the overall framework.

I practised in the courts in England and Wales for many years, and one problem is that the necessity test could end up before the criminal courts and the civil courts on a daily basis. That is what the Law Society of England and Wales has said about the extraordinary worry that there is about the Wales Bill. We could have the law being challenged on an almost daily basis, which certainly cannot be what the Secretary of State intends.

Further to those confusions, David Melding AM—my new favourite Conservative—said on 13 January:

“Judicial review could become, if not the norm, then far from the exception. Welsh legislation would be drafted in an atmosphere of profound uncertainty, which itself would curtail its scope and ambition. Taken to extremes, the very exercise of the legislative function could be compromised.”

My hon. Friend the shadow Secretary of State also referred to that pretty stinging criticism. With all this stuff floating around, I certainly would not mind being a fly on the wall at the next meeting between the Conservative AMs and MPs.

The Secretary of State now has an opportunity to take another look at the Bill. He has previously said, and I take him at his word, that he is in listening mode. I hope that he is still in listening mode and that he is willing go back and look at the Bill. The organic growth of devolution went from the Government of Wales Act 1998 to the 2006 Act and the referendum, and we are moving another step forward on the journey. We certainly do not want—to change the metaphor—the devolution car to go into reverse. Since the first Welsh Secretary of State took office in 1964, the Secretary of State is the only one under whose tenure the powers of Welsh Members of Parliament have been taken away. Not one of the previous Secretaries of State—

[Stephen Crabb]

Nonsense.

[Nick Thomas-Symonds]

Well, find me an example under a previous Secretary of State of English votes for English laws. You will not find one. Secretary of State, do not make a disastrous devolution Bill your second contribution to history.

--- Later in debate ---

[Alun Cairns]

Certainly, the Wales Office and the Government will listen to all the points that are expressed, but I was merely highlighting the one example that we have in modern history of a constitutional convention and how complicated that became to give a context for the difficulty of trying to resolve some of those issues.

I remind people who have been extremely critical of the draft Bill, the St David’s day agreement and the process that the Secretary of State undertook, of the Richard Commission and the amount of time that that spent, only to be rejected by the Government of the day. That left us with a complex situation and the LCO mechanism. How many of us remember how complicated that was, whether we were in the Assembly or in Westminster? It is therefore a bit rich for some people to suggest that there is a simple and straightforward way of resolving the issues. We are keen to listen to and develop the debate, and the draft Bill was published in that spirit.

To underline the points that were made at the outset, there is a lot of rhetoric and misunderstanding. Some comments that have been made in Committee are simply inaccurate. I will pick up on some of them shortly, including those made by the hon. Member for Clwyd South. The draft Bill is ambitious and extends significant amounts of new powers to the Assembly. Matters that have been raised—be it the necessity test or the consents—are not about limiting Assembly powers. There is no Machiavellian plot to clip the Assembly’s wings. It is about giving the Assembly the powers, with two Governments that have responsibility for matters that relate to Wales: the legitimate Welsh Government, who will have legitimate powers over devolved matters, and the UK Government. Who knows? In the long-term future, there may be a Labour Administration, although I do not expect that to happen for at least another two or three general elections. However, in future, Opposition Members in this Committee Room, who may be Ministers in such an Administration, could be grateful for the powers that the Bill will grant to marry the interface between Wales and the UK Government.

Not unexpectedly, several Members raised the necessity test, and I will not have time to go round all those who mentioned it. Let me clear up the misunderstanding that exists. The necessity test applies only when the Assembly seeks to legislate in relation to England, in relation to reserved matters and in relation to underlying principles of criminal and private law. It has nothing to do with the Welsh Government legislating in Wales on a devolved matter. The necessity test is about when something touches reserved matters and matters that could be deemed to be the responsibility of the UK Government.

I will give a practical, straightforward example relating to the education of a child with special educational needs. If that child, from Wales, is being educated in a school in England, Estyn would naturally have the responsibility for inspecting the provision for that child in the school in England. It would not have the authority to close the school in England, because that would be a matter for the UK Government, but it would have the power to go to that school in England. The necessity test is about making the Welsh legislation effective when it crosses the English border. That is one practical example: there are a whole host of higher education institutions that have bases in England. The necessity test is about making the Welsh legislation effective as it applies to England. That is the scope and the scale of the necessity test. It is about enforcing legislation made by the Assembly.

[Nick Thomas-Symonds]

Can the Minister confirm that that necessity test is taken from Scots law, where it is used in far narrower circumstances? Ministers are trying to massively broaden it in the Welsh context. Will he confirm that that is the case? Because it is.

[Alun Cairns]

I am grateful to the hon. Member for Torfaen. The reason I highlighted that practical example was to reject completely some of the accusations that have been made in a number of speeches about not granting the Welsh Government the powers to act in those devolved areas. The hon. Member for Torfaen made a point about legislation relating to horses. That is absolute nonsense as the Bill is drafted.

[Nick Thomas-Symonds]

Will the Minister give way?

[Alun Cairns]

I would like to give way, but in the limited time I have left I will not. I will happily write to the hon. Gentleman and share with any other interested hon. Member why the example relating to horses is not relevant. I apologise, but I have two minutes left and I want to talk very briefly about the “separate” and “distinct” jurisdictions.

The hon. Member for Dwyfor Meirionnydd came forward with the very practical suggestion of having the “distinct” jurisdiction governed by the geographical border. However, that in itself curtails the powers of the Assembly when it is enacting legislation in relation to England. That is an example of the complexity here: should we pursue the model presented by the hon. Member for Dwyfor Meirionnydd, we would roll back powers. This complexity explains why we are trying to tease out these issues, so that we can bring forward amendments that will work for Wales, but will also work for the UK Government.

In the minutes that remain, I want to talk about the Crown consents, the so-called English veto. I absolutely reject the accusations and the phrase. More than 50 legislative consent motions have been agreed between the UK Government and the Welsh Government over the past five years when the UK Government have touched devolved responsibilities. That is the responsibility of a mature Administration. If the Welsh Government want to act on non-devolved responsibilities, quite clearly a Crown consent would be the mature, natural approach to follow. If it works, and legislative consent motions have worked well over the past five years, in a mature debate, why cannot that work in the other way? The suggestions of rejecting and opposing them would be to grant the Welsh Government powers extending well beyond any other settlement. I do not think that that is what the Labour party wants and it is certainly not what the Conservative party wants. Plaid Cymru might want that, but it has a respected position, which is to seek independence. I do not think it is what the Labour party or the Government want.

Draft Wales Bill (Morning sitting)

Nick Thomas-Symonds Excerpts

Wednesday 3rd February 2016 General Committees

[Stephen Crabb]

The process was inclusive. I had discussions with them in Cardiff Bay as a group; we had discussions in this place with the Cardiff Bay leaders of the parties; and I met them all individually as well, so it was a process that encompassed both the Cardiff Bay bit of the Welsh political parties and Westminster.

The Conservative party went into last year’s general election with a clear package of new powers that we put to voters and the people of Wales made their decisions at the election. The package included putting in place an historic funding floor in the relative level of Welsh funding, as we committed to do in the St David’s day agreement. Members will recall that during Labour’s leadership election last year, the right hon. Member for Leigh (Andy Burnham) revealed that when he was Chief Secretary to the Treasury he knew that Wales was being sold short by the Barnett formula but admitted that he could not do anything about it. It took Conservatives in government to do something about the Barnett formula and bring forward an historic funding floor.

The St David’s day package also included making further progress on income tax. Hon. Members will know that in his autumn statement the Chancellor announced a decision to remove the referendum requirement for devolving a portion of income tax to Wales. We are doing that in recognition that the debate has moved on from the Wales Act 2014, and because we believe that income tax devolution will help deliver more accountable, responsible devolved government for Wales. Within the mature devolution settlement that the draft Bill will deliver, the Welsh Government simply cannot continue to be a purely spending Department. They need to take responsibility for raising money as well as spending it.

As part of the devolution package, we are also legislating for a new reserved powers model through the Wales Bill. Hon. Members for Welsh constituencies who have been in this House for a number of terms will recall that the call for a reserved powers model has been around for some time. I remember during discussion of the Bill that became the Wales Act 2014 a former Secretary of State, the former Member for Torfaen, saying on the Floor of the House, “Now is the time to move to a reserved powers model.” That was, of course, before we took forward the St David’s day process. At that time I warned that simply moving to a reserved powers model, in and of itself, is not a panacea. It does not fix all the complexities around the Welsh devolution settlement—in fact, moving to a reserved powers model throws up new complexities. It is not a quick fix that clarifies Welsh devolution. The detail of the wiring underneath is what matters, and that is where a lot of the controversy around the current Bill lies.

[Nick Thomas-Symonds (Torfaen) (Lab)]

On reserved powers, does the Secretary of State agree that it certainly does not bring clarification if there are 34 pages of reservations in the Bill?

[Stephen Crabb]

I broadly agree with that sentiment, but looking at the Scottish settlement, the list of reservations is also pretty long in the Scotland Act 1998. The point is to get the reservations right, spelling out which Government is responsible for what. We should not get hung up on how long the list is.

I said in evidence to the Welsh Affairs Committee and to the Welsh Assembly’s Constitutional and Legislative Affairs Committee that the list of reservations is one of the things I want to look at, along with the necessity test and ministerial consent, so that we get the detail right as we move from a draft Bill to a full one.

--- Later in debate ---

[Nia Griffith]

That is precisely my point.

[Nick Thomas-Symonds]

In her excellent speech my hon. Friend gave a series of quotations from Conservative Assembly Members and Conservative Members of Parliament. We certainly need an amended Bill to reduce conflict over the Supreme Court, and we need an amended Bill to reduce conflict in the Conservative party.

[Nia Griffith]

My hon. Friend put that very well indeed —[Interruption.]

Draft Wales Bill

Nick Thomas-Symonds Excerpts

Wednesday 3rd February 2016 General Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship for my first Welsh Grand Committee, Mr Hanson.

Our starting point has to be what the Secretary of State for Wales says in the foreword to the draft Wales Bill:

“We are determined to ensure the people of Wales have a clear and lasting devolution settlement… For too long Welsh politics has been dominated by constitutional debates about what is and is not devolved.”

I fear that, as it is, the draft Wales Bill is likely to create more and more debate, much of which will end up before the UK Supreme Court unless stringent and significant changes are made to the Bill. I shall give a few examples, starting with the issue of ministerial consent.

The provisions on ministerial consent on page 73 of the draft Bill mean that if the Assembly wants to legislate in a way that affects the power of a UK Government Minister, it must first ask for consent. In and of itself, that creates great uncertainty, because the powers of UK Government Ministers are set out in hundreds of statutes. Let me give one example of the kind of absurd consequences that could arise and why the provisions are an example of devolution being rolled back, not forward: the Control of Horses (Wales) Act 2014. Reservation 184 in the draft Bill is about arbitration. Section 7 of the 2014 Act contains a dispute resolution procedure to resolve disagreements between horse owners and local authorities. Under the draft Bill, that Act would have to be subject to ministerial consent. There we have it: horses in Wales having to be subject to a UK Government Minister in London. I do not know the Secretary of State’s view on horses, but no doubt we will have to find out if the draft Bill becomes a permanent fixture.

The Silk Commission said that one way to resolve uncertainties would be to transfer the powers in the devolved areas. I urge the Secretary of State to look at ministerial consents to see whether there can be such a simplification. Otherwise, we will simply be piling up work for the UK Supreme Court.

In an intervention on the Secretary of State this morning, I raised the issue of reserved powers. Yes, of course, a reserved powers model can work extremely well. I think the right hon. Member for Clwyd West pointed out that my predecessor as MP for Torfaen, who was twice Secretary of State for Wales, had spoken about the reserved powers model. There is nothing wrong with the model. The problem is that, first, it has to be pretty clear and, secondly, the number of powers that are and are not reserved has to be in line with the expectations of the Welsh people.

Conservative Assembly Member David Melding said of the reserved powers in the draft Bill:

“They are numerous. Quite literally, they cannot be counted, although most who have attempted enumeration put the figure somewhere above 250. This is ominous.”

The Secretary of State really should take that into account as he looks at how he can redraft the Bill. Dame Rosemary Butler put it this way:

“there is significant roll-back in the reservations themselves. A large number of matters which are not exceptions from the Assembly’s current competence have been made into reserved matters in the draft Bill.”

That is devolution being rolled back.

[The Secretary of State for Wales (Stephen Crabb)]

The hon. Gentleman highlights an important point and refers to comments by the Presiding Officer of the Welsh Assembly. Does he agree with the Presiding Officer’s presumption that all of those silent subjects were intended to be devolved, and therefore the Supreme Court judgment on the Agricultural Sector (Wales) Bill effectively makes all of those subjects devolved now if they can be linked in some way to a devolved purpose? Alternatively, does he agree with me that we should go back and understand Parliament’s intentions in making the existing devolution settlement and then extend the devolution boundary by a political process, rather than rely on the courts?

[Nick Thomas-Symonds]

With the greatest of respect to the Secretary of State, I do not think he has quite picked up the point I am making, which is this: the Assembly has already legislated on a number of matters that, under this Bill, it will have to seek his consent to legislate on. Another example of where his consent would have been required is the Human Transplantation (Wales) Act 2013. I am sure he is a generous man with his consent, but the reality of the situation is that where the Assembly has been able to legislate, the Bill now requires his consent to do it. That is a roll-back of devolution; it is as simple as that.

[Stephen Crabb]

The hon. Gentleman is getting confused. Under the existing settlement, the Act to which he just referred required ministerial consent. That consent was given, with no problem at all. Under the new settlement, because that Act has an impact on reserved matters or functions of a UK Minister of the Crown, it would still require consent. We should not see consents as some great problem. We need a way of regulating the interface between the UK Government and the Welsh Government.

[Nick Thomas-Symonds]

With respect, the Secretary of State has to understand that simplicity is the most important thing. The Silk Commission said—this is what the Presiding Officer of the Welsh Assembly was also referring to—that there must be scope for the situation where consent is not required in the 20 devolved areas. I cannot understand why the Secretary of State cannot see that. The roll-back of the devolution process is the danger of the Bill.

[Stephen Crabb]

Confused.

[Nick Thomas-Symonds]

If we want to talk about confusion, let us move on to necessity, because we will have some fun on that with the Secretary of State.

Let us be clear what the test of necessity actually means. The Assembly has to be convinced that Acts are necessary before it can act—that is what the necessity test says. There are plenty of examples in the Bill; there is one on page 69, if Members want to look at it. Let me tell the Secretary of State what the Wales Governance Centre at Cardiff University said:

“The concept of necessity-testing in the draft Bill represents a failure of comparative legal method… The use of necessity-testing in the draft Bill jars with basic constitutional principle.”

Why does it say that? It says that because necessity-testing is a concept that has essentially been taken from Scottish law, but in Scottish law it would refer only to cases where the law has to be modified in a very narrow, consequential way in relation to reserved matters, and not in the very broad sense that it is being attempted to include in the Bill. That is the central problem.

This morning, the right hon. Member for Clwyd West kept asking, “What do you replace necessity with?” It is true that we could use a different word. We could use “reasonable” or “sufficient” if we wanted to, but none of that would deal with the basic problem, which is that that would ultimately have to be a subject of interpretation by the judiciary. The real problem is that the Secretary of State has to revisit the framework in which the necessity test arises; it has to be about the overall framework.

I practised in the courts in England and Wales for many years, and one problem is that the necessity test could end up before the criminal courts and the civil courts on a daily basis. That is what the Law Society of England and Wales has said about the extraordinary worry that there is about the Wales Bill. We could have the law being challenged on an almost daily basis, which certainly cannot be what the Secretary of State intends.

Further to those confusions, David Melding AM—my new favourite Conservative—said on 13 January:

“Judicial review could become, if not the norm, then far from the exception. Welsh legislation would be drafted in an atmosphere of profound uncertainty, which itself would curtail its scope and ambition. Taken to extremes, the very exercise of the legislative function could be compromised.”

My hon. Friend the shadow Secretary of State also referred to that pretty stinging criticism. With all this stuff floating around, I certainly would not mind being a fly on the wall at the next meeting between the Conservative AMs and MPs.

The Secretary of State now has an opportunity to take another look at the Bill. He has previously said, and I take him at his word, that he is in listening mode. I hope that he is still in listening mode and that he is willing go back and look at the Bill. The organic growth of devolution went from the Government of Wales Act 1998 to the 2006 Act and the referendum, and we are moving another step forward on the journey. We certainly do not want—to change the metaphor—the devolution car to go into reverse. Since the first Welsh Secretary of State took office in 1964, he is the only one under whose tenure the powers of Welsh Members of Parliament have been taken away. Not one of the previous Secretaries of State—

[Stephen Crabb]

Nonsense.

[Nick Thomas-Symonds]

Well, find me an example under a previous Secretary of State of English votes for English laws. You will not find one. Secretary of State, do not make a disastrous devolution Bill your second contribution to history.

--- Later in debate ---

[Alun Cairns]

Certainly, the Wales Office and the Government will listen to all the points that are expressed, but I was merely highlighting the one example that we have in modern history of a constitutional convention and how complicated that became to give a context for the difficulty of trying to resolve some of those issues.

I remind people who have been extremely critical of the draft Bill, the St David’s day agreement and the process that the Secretary of State undertook, of the Richard Commission and the amount of time that that spent, only to be rejected by the Government of the day. That left us with a complex situation and the LCO mechanism. How many of us remember how complicated that was, whether we were in the Assembly or in Westminster? It is therefore a bit rich for some people to suggest that there is a simple and straightforward way of resolving the issues. We are keen to listen to and develop the debate, and the draft Bill was published in that spirit.

To underline the points that were made at the outset, there is a lot of rhetoric and misunderstanding. Some comments that have been made in Committee are simply inaccurate. I will pick up on some of them shortly, including those made by the hon. Member for Clwyd South. The draft Bill is ambitious and extends significant amounts of new powers to the Assembly. Matters that have been raised—be it the necessity test or the consents—are not about limiting Assembly powers. There is no Machiavellian plot to clip the Assembly’s wings. It is about giving the Assembly the powers, with two Governments that have responsibility for matters that relate to Wales: the legitimate Welsh Government, who will have legitimate powers over devolved matters, and the UK Government. Who knows? In the long-term future, there may be a Labour Administration, although I do not expect that to happen for at least another two or three general elections. However, in future, Opposition Members in this Committee Room, who may be Ministers in such an Administration, could be grateful for the powers that the Bill will grant to marry the interface between Wales and the UK Government.

Not unexpectedly, several Members raised the necessity test, and I will not have time to go round all those who mentioned it. Let me clear up the misunderstanding that exists. The necessity test applies only when the Assembly seeks to legislate in relation to England, in relation to reserved matters and in relation to underlying principles of criminal and private law. It has nothing to do with the Welsh Government legislating in Wales on a devolved matter. The necessity test is about when something touches reserved matters and matters that could be deemed to be the responsibility of the UK Government.

I will give a practical, straightforward example relating to the education of a child with special educational needs. If that child, from Wales, is being educated in a school in England, Estyn would naturally have the responsibility for inspecting the provision for that child in the school in England. It would not have the authority to close the school in England, because that would be a matter for the UK Government, but it would have the power to go to that school in England. The necessity test is about making the Welsh legislation effective when it crosses the English border. That is one practical example: there are a whole host of higher education institutions that have bases in England. The necessity test is about making the Welsh legislation effective as it applies to England. That is the scope and the scale of the necessity test. It is about enforcing legislation made by the Assembly.

[Nick Thomas-Symonds]

Can the Minister confirm that that necessity test is taken from Scots law, where it is used in far narrower circumstances? Ministers are trying to massively broaden it in the Welsh context. Will he confirm that that is the case? Because it is.

[Alun Cairns]

I am grateful to the hon. Member for Torfaen. The reason I highlighted that practical example was to reject completely some of the accusations that have been made in a number of speeches about not granting the Welsh Government the powers to act in those devolved areas. The hon. Member for Torfaen made a point about legislation relating to horses. That is absolute nonsense as the Bill is drafted.

[Nick Thomas-Symonds]

Will the Minister give way?

[Alun Cairns]

I would like to give way, but in the limited time I have left I will not. I will happily write to the hon. Gentleman and share with any other interested hon. Member why the example relating to horses is not relevant. I apologise, but I have two minutes left and I want to talk very briefly about the “separate” and “distinct” jurisdictions.

The hon. Member for Dwyfor Meirionnydd came forward with the very practical suggestion of having the “distinct” jurisdiction governed by the geographical border. However, that in itself curtails the powers of the Assembly when it is enacting legislation in relation to England. That is an example of the complexity here: should we pursue the model presented by the hon. Member for Dwyfor Meirionnydd, we would roll back powers. This complexity explains why we are trying to tease out these issues, so that we can bring forward amendments that will work for Wales, but will also work for the UK Government.

In the minutes that remain, I want to talk about the Crown consents, the so-called English veto. I absolutely reject the accusations and the phrase. More than 50 legislative consent motions have been agreed between the UK Government and the Welsh Government over the past five years when the UK Government have touched devolved responsibilities. That is the responsibility of a mature Administration. If the Welsh Government want to act on non-devolved responsibilities, quite clearly a Crown consent would be the mature, natural approach to follow. If it works, and legislative consent motions have worked well over the past five years, in a mature debate, why cannot that work in the other way? The suggestions of rejecting and opposing them would be to grant the Welsh Government powers extending well beyond any other settlement. I do not think that that is what the Labour party wants and it is certainly not what the Conservative party wants. Plaid Cymru might want that, but it has a respected position, which is to seek independence. I do not think it is what the Labour party or the Government want.

Oral Answers to Questions

Nick Thomas-Symonds Excerpts

Wednesday 18th November 2015 Commons Chamber

[Stephen Crabb]

I completely agree with my hon. Friend. The economy in Wales is getting stronger, thanks partly to new inward investment. Just a few weeks ago, I had the pleasure of welcoming Israeli investors to south Wales, where they announced £3 million of new investment, creating almost 100 new jobs. We should all be encouraged by the fact that inward investment in Wales is back to the level of the days of the Welsh Development Agency before the Welsh Labour Government abolished it.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I am pleased to hear the Secretary of State welcome the more than 100 inward investment projects in Wales in 2014-15. Will he now congratulate the Welsh Labour Government on making it possible?

[Stephen Crabb]

The important thing is to welcome the more effective partnership that now exists between the UK Government and the Welsh Government to deliver the inward investment. Of the new projects coming into Wales, 87% were secured on the basis of co-operation between the Welsh Government and the UK Government, and I have no hesitation in congratulating both.

Barnett Floor (Wales)

Nick Thomas-Symonds Excerpts

Tuesday 10th November 2015 Westminster Hall

[Nick Thomas-Symonds (Torfaen) (Lab)]

I beg to move,

That this House has considered a Barnett floor for Wales.

It is a privilege to have secured my first Westminster Hall debate, which is on an important topic affecting funding for Wales in general and my constituents in particular. We all know how difficult the funding settlements have been in recent years. The Welsh Government have faced great funding challenges, and local councils, including my own Torfaen County Borough Council, are struggling to make ends meet and doing their best to protect front-line services when less and less money is coming from Westminster.

[Christina Rees (Neath) (Lab)]

My hon. Friend is absolutely right to highlight the losses that local authorities have experienced and will continue to experience. In 2014-15, Neath Port Talbot’s budget was cut by £17 million. It has been predicted that, from April 2016, Neath Port Talbot will lose £18 million or possibly more, depending on the autumn statement. Public services have already been cut severely—

[Christina Rees]

I am simply making the point that we should not suffer from the Barnett formula.

[Nick Thomas-Symonds]

I am grateful to my hon. Friend for that intervention. The Neath Port Talbot example further illustrates and reinforces the point that I made about Torfaen.

The debate deals with an aspect of Westminster funding, the so-called Barnett floor. As Members are aware, Joel—later Lord—Barnett introduced the Barnett formula in 1978, when he was Chief Secretary to the Treasury, in the context of the devolution debate of that era. He did not originally intend that it should become a permanent feature, yet here, some 37 years later, it still governs the Wales-Westminster fiscal relationship.

More recently, in 2009, the interim report of the Holtham commission, “Funding devolved government in Wales: Barnett and beyond”, was published. It suggested that Wales was underfunded.

[Carolyn Harris (Swansea East) (Lab)]

Does my hon. Friend agree that, despite the 2009 Holtham report suggesting the implementation of a floor, it is frustrating that six years later we have still not seen it happen?

[Nick Thomas-Symonds]

My hon. Friend is entirely right. I will come to that in a moment.

The report suggested that Wales was underfunded by £300 million a year compared with how much English regions would receive were the Barnett formula applied to them. In 2010, when the final Holtham report, “Fairness and accountability: a new funding settlement for Wales”, was published, the underfunding gap was even wider, at about £400 million a year, using a needs-based formula.

As my hon. Friend has just pointed out, to prevent a further decline in relative funding per head for Wales, the Holtham interim report had called for a Barnett floor as a temporary solution until a new needs-based formula could be agreed.

[Huw Irranca-Davies (Ogmore) (Lab)]

May I take my hon. Friend’s thoughts back to 2008, when I was a Wales Office Minister? The budget for Wales had gone up from £7 billion to £14 billion; by the time we left office, it was £16 billion. It has now decreased significantly. Any false arguments over additional tax-raising powers are nothing compared with the fact that we now need the Barnett floor. When Labour was in government, it was Barnett-plus; we now need a Barnett floor.

[Nick Thomas-Symonds]

My hon. Friend makes a powerful point. Record investment in public services in Wales was made under the Labour Government. Indeed, the Conservatives were so impressed that in September 2007 the then shadow Chancellor of the Exchequer—now Chancellor—adopted our spending plans for the next couple of years. That is how impressed they were, although these days they seem to be taking a different view of that record investment.

The Barnett floor works by multiplying positive funding increments to Wales not only by the comparability factor and population share, but by a further percentage increment. The qualifier is that the formula is not intended to work in reverse, with negative funding increments, because that would simply widen the underfunding gap.

In October 2010, the National Assembly for Wales unanimously endorsed a motion for the implementation of a funding floor, to be followed by wider funding reform. Nevertheless, the coalition Government of 2010 to 2015 did not deliver.

[Gerald Jones (Merthyr Tydfil and Rhymney) (Lab)]

Does my hon. Friend agree that the Government should be acting with greater urgency on implementing the funding floor, given the Holtham commission statement that Wales could be underfunded by between £5.3 billion and £8.5 billion over the 10 years to 2020? Does he also agree that the Government’s lack of action on the matter suggests a lack of interest in achieving a funding floor and fairer funding for Wales?

[Nick Thomas-Symonds]

I agree entirely. The matter is urgent, but we are concerned about the Government’s lack of interest. The coalition’s programme for government in the previous Parliament stated that the priority was to reduce the deficit and that changes to the system could await stabilisation of the public finances, although why exactly the coalition Government were incapable of paying sufficient attention to Wales to deal with the issue—or even to start dealing with it—remains entirely unclear.

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

Given that the Barnett formula has been in question since 1978, why did the hon. Gentleman’s party not rectify the Welsh funding shortfall while it was in government?

[Nick Thomas-Symonds]

I repeat to the hon. Lady a point made powerfully by my hon. Friend the Member for Ogmore (Huw Irranca-Davies): in 1997 to 2010, we had what he called “Barnett-plus”, which was record investment in public services in Wales, to the benefit of both my constituents and hers.

[Wayne David (Caerphilly) (Lab)]

I had the privilege of succeeding my hon. Friend the Member for Ogmore as a Wales Office Minister and I held that post in the run-up to the 2010 general election. One of the things that we were proud of was the firm commitment in our manifesto to address that very issue.—Unfortunately, we lost the election.

[Nick Thomas-Symonds]

My hon. Friend makes a good point. In 2015, we also had a manifesto commitment on the Barnett floor; but unfortunately, we were again not in government after the election.

In 2012, consideration was given to how Wales’s share of future funding would not fall again when public expenditure started to rise—the so-called “Barnett squeeze”. In the autumn of that year, the UK Government formally agreed that there was a squeeze and that such convergence had taken place. They said that they would review the position at each spending review, to assess whether it would recur, and address the issue. Alas, I am afraid that they did not.

On 8 July, the Government’s lack of interest in Wales was perhaps summed up in the Chancellor’s Budget speech. In one short reference, he said:

“In Wales, we are honouring our commitments to a funding floor and to more devolution there, and investing in important new infrastructure such as the M4 and the Great Western line.”—[Official Report, 8 July 2015; Vol. 598, c. 329.]

That promise came five years after the Assembly had voted unanimously on the matter—five years later. Put simply, the people of Wales have waited long enough for the UK Government to deliver.

[Jonathan Lord (Woking) (Con)]

I congratulate the hon. Gentleman warmly on his first Westminster Hall debate. I am sympathetic to fairer funding for Wales in a needs-based system, but should not any adjustment or floor to make things fair come from the financial settlement of any country that has gained under the current, outdated Barnett formula?

[Nick Thomas-Symonds]

I agree with the hon. Gentleman that, during this Parliament, we have an opportunity to debate all such matters. The Scotland Bill continued its passage through the House only yesterday. This is the time to look at fair funding throughout the United Kingdom.

I ask the Minister to answer some specific questions. First, the Secretary of State for Wales said in the spring that the Government would deliver on a Barnett floor by the autumn. I would be grateful if the Minister gave us a more exact timescale, given that we are already into November.

Will the Minister confirm whether the proposals on the Barnett floor will be as proposed by the Holtham commission? Will he update us on what the indexation figure is likely to be? I hope that he will give us a cast-iron guarantee that the Holtham recommendation on a Barnett floor will be implemented in full before any further debate on fair funding for Wales. In this Parliament, as I said a moment ago, the Scotland Bill and the Wales Bill provide an ideal opportunity for such a debate to take place.

On Second Reading of the Scotland Bill on 8 June, I said that the Government must not see the different nations of the United Kingdom entirely in isolation; they must look at changes across the board and how they impact on each other. That said, the devolution settlement has become a central part of our constitution and we should not forget the positive benefits that devolution has brought since Labour introduced it in 1999.

The great socialist thinker, R. H. Tawney, thought that dispersal of power was best because

“It makes people more accessible to each other than a system where power is highly centralised and society is a tapestry of authoritarian links”.

That notion of accessibility, with decisions being made closest to the people they affect, has a modern resonance. He also said:

“The only sound test, in the first place, of a political system, is its practical effect on the lives of human beings”.

That is absolutely right and that is why today’s debate is so important.

The idea of a Barnett floor is not an abstract notion; it is a practical step that could make a difference to people’s lives and the services that they rely on. It has a short and medium-term aspect. I accept that it has less impact in a declining budget, but the principle should be implemented as soon as possible for its impact on positive increments. Put simply, the Government should act, and act now.

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

It is a pleasure to serve under your chairmanship, Ms Dorries, for what I think is the first time. I congratulate the hon. Member for Torfaen (Nick Thomas-Symonds) on securing the important debate, particularly as it is his first Westminster Hall debate. We have had an interesting discussion and I am grateful to the hon. Members for Neath (Christina Rees), for Swansea East (Carolyn Harris), for Ogmore (Huw Irranca-Davies), for Dwyfor Meirionnydd (Liz Saville Roberts), for Caerphilly (Wayne David) and for Merthyr Tydfil and Rhymney (Gerald Jones) for their contributions. I will do my best to answer all the points made.

I want to underline that the Government remain committed to delivering the St David’s day Command Paper, which will create a stronger, clearer and fairer devolution settlement for Wales. That, of course, includes the funding floor that the hon. Member for Torfaen and others have called for. The St David’s day agreement led to the draft Wales Bill, which was published on 20 October and is being considered as we speak.

The Bill will build a stronger Wales in a strong United Kingdom by devolving important powers over energy, transport and local government and Assembly elections. It will also make devolution work better, as the Assembly and the Welsh Government will be clear about the powers they have and the challenges to which they need to be able to respond.

I reaffirm the Government’s commitment to the introduction of a funding floor alongside the next spending review. It is worth clarifying the current positon of funding, which is an ever-dynamic environment. The Holtham commission’s report, to which the hon. Member for Torfaen and others referred, was established by the Welsh Government to analyse the relative level of needs in Wales compared with England in 2009 and 2010.

The work by Professor Holtham and his commission has had a significant impact on informing the debate in Wales and I pay tribute to him for his work. The report set out a range from 114% to 117% of comparable English funding per head in which it thought that funding for the Welsh Government would be “fair.”

The report also highlighted that the relative levels of funding provided to the Welsh Government had converged towards the average level of funding for comparable activities in England since the start of devolution. It was therefore interesting to hear the hon. Member for Ogmore talk about the increase in the Welsh block grant from £7 billion to £14 billion, because relative funding for Wales in that period deteriorated. It was from the commission’s range that the Welsh Government claimed that they were underfunded by £300 million back in 2010.

[Nick Thomas-Symonds]

On the Barnett squeeze, the coalition Government conceded that that had happened in 2012. Why has nothing been done in three years?

[Alun Cairns]

I will come to that point in a moment, but it is worth remembering that the Command Paper, which was agreed by all parties, was published earlier this year and that committed specifically to acting within the next spending review period. As I said, the Barnett floor and spending commitments for Wales will be published alongside that.

The £300 million spoken about compared with a budget of roughly £15 billion. It is also worth noting that when Holtham reported, there was total identifiable spending in Wales of approximately £29 billion.

A lot has changed since 2010, both financially and politically. A joint statement in 2012 by both Governments recognised the resonance of this issue in Wales. In particular, it recognised the Welsh Government’s concerns that their funding would converge further towards English levels. However, joint work with the Welsh Government at the previous spending review confirmed that funding is not forecast to converge during the period to 2015-16. That refutes the points made by several Opposition Members; that was joint work agreed with the Welsh Government. Furthermore, Holtham’s logic also illustrated that the relative level of funding per head had risen, or diverged to use the technical term, and it is now in the range that the commission regarded as fair.

--- Later in debate ---

[Alun Cairns]

I am grateful to my hon. Friend for that. I smiled as various points were being made in the Chamber that underlined not only the inaction during that period of Labour Administration, but the differing messages that are coming from Labour in Westminster and in Cardiff Bay.

[Nick Thomas-Symonds]

On the first point, given the intervention from the hon. Member for Cardiff North (Craig Williams) and the Minister’s response, I assume that they are now praising the last Labour Government’s investment and not trying to make out that it was our spending that caused the crash. On the second point, it is quite clear that we see the Barnett floor as a useful first step towards a needs-based solution in the future. There is no inconsistency in that.

[Alun Cairns]

The position has already moved since the hon. Gentleman’s first contribution to this debate.

To make some progress on the specific points raised, a lot of questions were asked about the timing. I remind hon. Members that earlier this year in the St David’s day Command Paper we committed, for the very first time, to introducing a floor to the level of relative funding provided to the Welsh Government, alongside the spending review. This Conservative Government made that historic commitment and we absolutely stand by it. On the question of urgency, we stand by what we said before the election and will deliver that.

The right hon. Member for Leigh (Andy Burnham) has admitted that when the Labour party was last in power and he was Chief Secretary to the Treasury he knew that the Barnett formula

“wasn’t fair to Wales and there would need to be changes”,

yet Labour did absolutely nothing about it. I will not accept any crocodile tears from Opposition Members. Although the right hon. Member for Leigh has since made that explicit comment, no action was taken in that whole period other than a diverging funding settlement for Wales relative to the rest of the United Kingdom.