Draft Wales Bill

Stephen Crabb 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.

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[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.

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[Mr Mark Williams]

I know his question, but I am not going to give him an answer because he tried it on the hon. Member for Llanelli. A debate is going on about the question of a distinct—not separate—jurisdiction. The genie is out of the bottle and if the Secretary of State wants a resolution—I know he is sincere about that—that issue must be addressed and I think it should be addressed in the Bill.

Sir Paul Silk said that politicians should be open to a review between the Assembly Government and the Westminster Government and a time period of 10 years was referred to, which is probably too long, given the debate that we have had. That issue will not go away. Hon. Members still here in a few years’ time—I hope to be—will have to revisit the Welsh jurisdiction issue unless it is dealt with soon.

[Stephen Crabb]

The hon. Gentleman is making a good speech. I urge a bit of caution in the discussion about distinct and separate jurisdiction, because I fear that history is slightly repeating itself. Two or three years ago in Welsh Grand Committee and on the Floor of the House people were saying, “We need the reserved powers model,” but simply to say that we will move to a distinct jurisdiction would not tackle the problems of the complexities of consenting that we have been talking about. It does not tackle the complexities around the spillover effects of the Welsh Government making law that affects reserved matters or has an impact in England. All those really difficult and contentious issues still need to be addressed, whether we are maintaining the joint jurisdiction or somehow moving to a distinct or separate jurisdiction.

[Mr Mark Williams]

Of course, the Secretary of State is right. That is the difference between the draft Bill and the final Bill that he will present before us in due course. He partially answers my point. He is right that three or four years ago people were talking about a reserved system. That is what is being proposed now. My point is that unless the issue of a distinct jurisdiction is dealt with, he or his successors will have to deal with it in a few years’ time.

I will end in the same way as the hon. Member for Dwyfor Meirionnydd, my neighbour in west Wales, ended her speech. I want to vote for the Bill. I want the march to devolution—in my party’s case, to home rule—to continue. I want to vote for the Bill on Second Reading, but I can only do so if certain changes are made. The Secretary of State is making very encouraging noises about listening to people. He needs to address the concerns that we and others in Wales right across the board in civil society, as well as our colleagues in the National Assembly, have raised. He needs to make those changes.

--- Later in debate ---

[Stephen Kinnock]

I agree absolutely with my hon. Friend. It an issue of clarity, common sense and making progress. The message that the Secretary of State for Wales has received from both sides of the Committee, and from our very own favourite AM, Mr David Melding, will be heard loud and clear. The critical point is to ensure that the Bill is not made in London, but is developed in collaboration with Wales. I welcome all the feedback that has been given today.

The lack of clarity also means that we run the risk of the Bill being questioned from the point of view of politicising the approach. For example, clauses 13 to 16 state that Westminster will retain control of ports with a turnover of £14.3 million. Lo and behold, that means that Milford Haven would remain under UK Government control. To my knowledge, the Secretary of the State has not made it entirely clear—it is not clear from the Bill —why it is necessary for Milford Haven to remain under Westminster’s jurisdiction. I am sure that the right hon. Gentleman would want to make that clear in the Bill and to dismiss any damaging speculation that it might be because the Government are preparing to privatise the port.

[Stephen Crabb]

The hon. Gentleman is making a thoughtful and interesting speech. May I allay his fears on this point? One of the voices that has not had enough air time in this whole constitutional debate is that of the business community. However, on the issue of ports, and especially a large, strategic energy port such as Milford Haven, the voice of the business community came through loud and clear. This is entirely to do with UK strategic issues, despite any scaremongering that we might hear from the hon. Gentleman or his political colleagues regarding potential privatisation.

--- Later in debate ---

[Byron Davies (Gower) (Con)]

It is a great privilege to serve under your chairmanship, Mr Hanson. I apologise that I am suffering from terrible flu at the moment, so I hope that you can hear me okay.

I was recently a Member of the National Assembly for Wales, of course, and I think I am unique among Welsh Conservatives here in having been a Member of the National Assembly for Wales and a Westminster MP. I have seen the Welsh Government working at first hand and I have several concerns about the way they operate.

My first concern is that while I get the fact that we need to have tax devolution, and that the Government need to show competence and to be answerable for the money that they raise and how they spend it, the Welsh Government in Cardiff Bay have recently overseen an appalling piece of financial mismanagement—the regeneration investment fund for Wales. Tens of millions of pounds are being wasted, so it is worrying to think that we will suddenly hand down to Wales tax-raising powers. There is a certain arrogance about the Welsh Government’s response to the loss of those millions of pounds, so I am really concerned that, should we give them tax devolution and these tax-raising powers, they will follow the same sort of path. I cannot say how much I feel for the people of Wales if they are to suffer such mismanagement.

[Stephen Crabb]

My hon. Friend makes an important point. I understand his long-held, strong views about our being careful about devolving taxes to Cardiff Bay. He highlights the scandal of that sale of land and the loss to the taxpayer, but until and unless the Welsh Government become a more responsible body by being accountable for the money that they raise as well as how they spend it—as long as they carry on as a big spending Department—we will get more of these scandals and more of that careless use of public money.

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[Gerald Jones]

I am not sure where the hon. Member for Brecon and Radnorshire was going with that. Clearly, we want a system that works and that provides a framework for moving the Assembly and devolution forward.

The Assembly’s Constitutional and Legislative Affairs Committee’s report on the draft Bill says:

“The necessity tests have elicited considerable reaction amongst those who have provided us with evidence and it is fair to say that these tests have received very little support.”

We should accept the principle that the Assembly should be able to legislate freely in the areas devolved to it without having to prove that its actions are necessary.

[Stephen Crabb]

There is nothing in the draft Bill that makes the Welsh Assembly consider whether legislating in a devolved area is necessary. This is about a spillover effect in reserved areas impacting on England and the underlying principles of civil and criminal law. There is freedom to act as long as it can be satisfied that the impact is no greater than necessary. There is nothing about satisfying an overall test of whether legislating in a devolved area is necessary.

--- Later in debate ---

[Hywel Williams (Arfon) (PC)]

It is a pleasure to serve under your chairmanship, Mr Hanson. I apologise to you and the Committee for my slightly late arrival; I was detained by the Prime Minister’s statement.

I thank the Secretary of State for allowing us this pre-legislative stage for discussion. The Bill has sparked some vigorous debates about what Wales’s constitutional position should look like, not just among politicians but in civil society, although possibly not for the people on the streets of Aberavon. I hope that we will have sufficient time to think about and discuss the draft Bill and the responses to it, not least by bodies such as the Wales Governance Centre. I would like to thank the centre for its excellent and useful report that was launched in Parliament last night. I also look forward to the report by the Welsh Affairs Committee. The discussions will take place not only today and tomorrow, but through the next weeks and months, so that parliamentarians and, more importantly, the people of Wales can come to a considered view, not subject to the time constraints of a party or parties facing difficult Assembly elections.

While I am glad that legal issues around workability and drafting are under the spotlight before the Bill is published in full, we have not had adequate time to scrutinise in debate the policy areas in the list of reservations. Members have mentioned the lack of a guiding principle in the list, and that absence is fairly clear. As far as I know, little effort has been made to justify the reservations as a group and the principle behind them. However, they do need to be justified.

I will give a small and obscure example. Members will recall that this morning I asked the Secretary of State for the justification for retaining alcohol and entertainment licences, and I referred to schedule 1 referring to schedule 7A, and so on. I would like to tell the Committee a very brief story about the debates around the Licensing Act. At that time, a number of local licensees told me that they would like to apply for their licences in Welsh. I asked the Secretary of State for Culture, Media and Sport at the time whether application forms could be made available in Welsh. The Secretary of State, now safely ensconced in the upper echelons of the BBC—I think that is today’s equivalent of running away to sea—was embarrassed because he had no answer. He countered by offering me a meeting. At the meeting, I suggested the names of a number of translation companies, which could turn the forms around in a day. Inevitably, he said it was not as simple as that. It was not a mere matter of translation. Eventually, Welsh forms turned up, some 18 months later, long after the aforementioned licensees had despaired, and had applied for and been granted the licences in English.

I doubt that the Cardiff Government would be remiss in the first place, but if they were, they would get their skates on. Yet now, apparently, alcohol and entertainment licences must be retained here, although licensing is a local authority function and local authorities work through the Welsh, not the UK, Government, in general. I do not why it is in the list unless it is because DCMS insists that it is.

When I asked the Secretary of State all those years ago why he had not ensured that Welsh forms were available, he eventually confessed that a mere 13 years after the advent of the Welsh Language Act 1993, after 13 years of apparently serving the people of Wales well, his Department—the Department for culture, for heaven’s sake—still had no Welsh language plan. Is this the same Department that now insists that it retain the power over Welsh entertainment and alcohol licences, let alone S4C—I, of course, welcomed the announcement made today—or is the decision for our own Secretary of State?

There are many other points to be made. I will not repeat the words of my hon. Friend the Member for Dwyfor Meirionnydd about the true consensus that we achieved with Silk versus the Bill that is now before us, which has been called the lowest common denominator. However, I think it is clear that the erosion of the work of the Silk Commission has hampered the Secretary of State in his stated aim of achieving a long-term settlement.

Reference has been made to policing, and I note the concerns of the right hon. Member for Clwyd West. Policing was also referred to by the hon. Member for Montgomeryshire, who is no longer in his place. Policing is devolved in Scotland and in Northern Ireland, but it is reserved in Wales—I am not quite sure why. What makes it necessary to reserve policing in Wales when it is not necessary to do so elsewhere in the UK?

The hon. Member for Gower referred to the complexities of cross-border considerations. I just want to say that it would be for the Secretary of State to argue the case for reserving, and it is not for me to argue why that should not be. I would point out that the police forces themselves support the devolution of policing. The former chief constable of Gwent Police highlighted in her evidence to the Silk Commission the fact that the Home Office develops initiatives based on the English Partnerships landscape without considering the different landscapes in Wales. That intra-Wales issue could be addressed by the devolution of policing.

The crime priorities in Wales are different. England has a knife crime problem that has not affected Wales in the same way, but that dictates the priorities of the Welsh police forces regardless. Those police forces are unique within the UK because they are non-devolved bodies operating within a largely devolved public service landscape. In the usual way, it is a case of follow the money, and where does the money for the police come from? It tends to come, as we all know, from the Assembly itself.

The police are required to follow the agendas of two Governments—currently of a different political hue. To reserve policing prevents us from achieving greater clarity and efficiency by uniting devolved responsibilities such as community services, drugs prevention and safety partnerships with those currently held by UK Government. In my view, that is linked to the question of legal jurisdiction. I will not rehearse the argument made by my hon. Friend the Member for Dwyfor Meirionnydd this morning, but the unified jurisdiction has been a block on progress.

I should like to consider briefly the reservations that we have about energy. Plaid Cymru compromised during the Silk Commission. We believe that full responsibility should be transferred to the Welsh Government, just as it is in Scotland, but in the interests of compromise, we agreed to support an arbitrary limit of 350 MW. We compromised on that in return for compromises elsewhere, but given that the report has been cherry-picked our compromise is now meaningless. We gave in, but we do not seem to be getting anything back. Under the current proposal, the Swansea bay tidal lagoon would fall within the remit of the National Assembly, but the proposed Cardiff and Colwyn bay lagoons would be a matter for this place.

[Stephen Crabb]

I find the point that the hon. Gentleman has made fascinating, because this is the first time that I have heard anyone who was involved with the Silk Commission describe a process of fudge and political compromise. I thought from previous contributions to the debate that the commission was characterised by high-minded principle, but the hon. Gentleman is saying that it was all a bunch of trade-offs to achieve consensus, which did not have the buy-in of Her Majesty’s Government or of the official Opposition, so there was no great Silk consensus based on principle.

[Hywel Williams]

The principles of the Silk Commission and its recommendations are quite clear—further devolution —however, as the Secretary of State knows better than I, in the process of discussion people take positions on the basis of what is before them. We decided to compromise on our long-held belief that there should be no limits. There is an interesting case that illustrates why this might be so. In the village near the town where I live, near Caernarfon, there is a hydro-electric scheme. It was initially going to generate 49 MW, because at 50 MW it would have to come to the attention of the Department of Energy and Climate Change in Whitehall. When the limit was mooted to be 350 MW, the proposed capacity was immediately raised. What we have here is an example of legislation preventing economic development that we would all want to see—the production of green electricity —because of an arbitrary limit. That is one of the reasons why we did not want such an arbitrary limit, but it is now 350 MW, which we have agreed to.

I will not refer in any detail to the contribution of my hon. Friend the Member for Dwyfor Meirionnydd, excellent as it was. It was a model for first speeches in a Welsh Grand Committee and I am sure that it will repay close reading. She said that there was little shift in mentality. There has been a change, but not a change in the world view. We heard contributions from the hon. Members for Monmouth and for Wrexham, who discussed English votes for English laws. That is a problem. I raised a point of order in the Chamber when we were debating the student issue, asking how I would represent the thousands of English students who live in Bangor, many of whom voted for me, and who will be affected by that decision. They would be unrepresented, especially if the vote went a different way. That issue needs to be addressed.

I am suspicious about the suggestion from the hon. Member for Wrexham that we have a joint committee of Assembly Members and Members of Parliament, along with local councils in both Wales and in England. That would be a camel by design, but perhaps we could meet in Ludlow, as the Council of Wales and the Marches used to do. There are some excellent restaurants there, I am told, but even that could not attract me to the proposal.

The right hon. Member for Clwyd West said, quite rightly, that the reserved powers model is not a panacea and needs to be discussed. I certainly agree about that. He did not believe, as I have said, that the Welsh Government should handle policing, and there is a debate to be had about that. The hon. Member for Torfaen made an interesting reference to horses—not camels—and he made a good point that there would be legal challenges daily, which is something that animates everyone on the Committee. We want a proper solution that would not be subject to the attention of the courts.

The hon. Member for Vale of Clwyd suggested that decisions made during the St David’s day process were directed by what was in the press on that day. As a long-term politician, God forbid that we take any notice of the press at all. The hon. Member for Ceredigion said that clarity was at the heart of democracy, and I agree with him entirely, as I do on many matters. He also addressed the issue of a distinct jurisdiction. The hon. Member for Montgomeryshire decried the negative tone of the discussion. In last night’s meeting to launch the report by the Welsh Governance Centre direct reference was made to the negative tone of the coverage of that report. Given that the press are not here, I might say that there was a direct reference to the Western Mail’s completely negative coverage.