Wales Bill

(Limited Text - Ministerial Extracts only)

Committee: 1st sitting (Hansard) : House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, I wholeheartedly agree with the submission made by the noble Lord, Lord Wigley. He has adumbrated all the arguments that I can possibly think of in support of this amendment. It goes to the very heart of the question that this is essentially a contract, not inter-institutional in terms of the mechanics of Westminster, but a contract with the people of Wales.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank the noble Lord, Lord Wigley, for introducing this amendment, and the noble Lord, Lord Elystan-Morgan, for his contribution. The amendment seeks to define the trigger for a referendum to abolish the National Assembly for Wales and the Welsh Government, and would provide that the rules for such a referendum be drawn up by the Assembly in co-operation with the Electoral Commission. Clause 1 meets the Government’s commitment in the St David’s Day agreement and delivers the Silk commission’s recommendation that it should be recognised that the National Assembly is permanent so long as that is the will of the majority of the people of Wales. New Section A1(3), in Clause 1, states:

“In view of that commitment it is declared that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum”.

As matters stand, referendums are governed by the law relating to referendums, as passed by this Parliament, and I do not consider that there is any suggestion that that should be varied. The principle in the Bill establishes in statute what is already recognised to be the case—that the National Assembly for Wales and the Welsh Government are permanent parts of our constitutional fabric. The referendum provision strengthens this commitment and delivers on the second limb of the Silk commission’s recommendation. Although there has never been a question about whether these institutions are anything but permanent, it is only right that if they were to be abolished that would have to be on the basis of a decision by the people of Wales. Let me be clear that such a referendum is not envisaged, and so the noble Lord’s amendment deals with entirely hypothetical circumstances. I therefore believe that it is unnecessary. On that basis, I urge the noble Lord to withdraw the amendment.

[Lord Wigley]

Perhaps I may press the Minister to be a little clearer on this matter. Is he telling the House that there are no circumstances in which a Government in Westminster, in this Chamber or the other Chamber, could move to hold a referendum if the National Assembly for Wales were against holding such a referendum? Or is he saying yes, Westminster can pass such a referendum irrespective of the wishes of the National Assembly?

[Lord Bourne of Aberystwyth]

My Lords, the noble Lord will know that I do not set out the rules on the sovereignty of Parliament. He will be aware, as I am, that very recently we have seen situations that demonstrate the sovereignty of the people and the sovereignty of this Parliament, so nothing I say could obviate the possibility of a Parliament coming forward subsequently and reversing that. For example, it would be open to any Parliament here to repeal the Government of India Act. That would not be a sensible move and would not be politically realistic, but in terms of the sovereignty of Parliament, of course, that remains the case. This is an important declaratory principle that has not existed previously, indicating the permanence of the institution and the fact that it is the belief of this Parliament that it should not be done without the consent of the people of Wales.

[Lord Elystan-Morgan]

Does the Minister agree that this matter would be caught by the words of new subsection (6) in Clause 2:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly”?

In other words, it is the Sewel covenant. The Government would fall foul of that, it seems, if they were to act in a cavalier way.

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord for his assistance on this matter. He is right that this provision gives that convention statutory force but, of course, it does contain the word “normally”; therefore it is still subject to the will of the Parliament of the United Kingdom. He is right that in normal circumstances that would be impossible to do.

[Lord Elis-Thomas (Non-Afl)]

I do not wish to anticipate any major contribution that I may have to make on my own amendment on the word “normally” later on, but I do not believe that the Minister has really answered the question from my colleague the noble Lord, Lord Wigley, who asked whether the Parliament of the United Kingdom could legislate for a referendum on the future of the National Assembly without the consent of the Assembly. It seems to me that if we are legislating, as we are in the Bill, for the convention relating to the legislative consent Motions to be part of Welsh law and devolution law, then surely, in a situation where the future of the Assembly were subject to a referendum, consent should be sought. Or is the Minister allowing a little room for the removal of the Assembly without the consent of its Members?

[Lord Bourne of Aberystwyth]

My Lords, I think the noble Lord knows me better than to think that that is on my mind at all. I was not the person who brought forward this amendment. I am unable to rewrite the rules on the sovereignty of Parliament; I was merely pointing out the legal position in relation to this. There is a very clear declaration that is consistent with the Silk recommendation which was discussed by the Silk commission. It is not to be anticipated in any way that this Parliament would wish to do anything relating to the National Assembly except celebrate its existence. I make that absolutely clear; it is my position and the position of my party, as the noble Lord knows. I just point out that this cannot overrule the rules of science and of parliamentary sovereignty that exist independently of the amendment.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I am not sure that it is in order that I respond, but I will happily talk to the noble Lord outside the Chamber and report to other Peers. I have to say to the noble Lord that the declaratory statement was something pushed for by his party. I am very surprised that he then says that this does not have any significance, because his party pressed for it very hard. I would have thought he would welcome it being put in legislation.

[Lord Wigley]

I am grateful for that addition. Of course there are things that one declares. The question is whether one declares them intending them to have the force of law, which is what we are dealing with here—we are dealing with legislation. I will now go on from that; no doubt we can have a private conversation about it.

I believe that the people of Wales are entitled to know where they stand, in particular about the possibility that, if the going gets rough, Westminster can organise a referendum with a view to abolishing the National Assembly. That is not a good basis on which the Bill should be built. I welcome the declarations made regarding permanence. I was just looking for a way to ensure that that is the position in law, as well as in declaration, but we have probably taken this as far as we are going to this afternoon, so I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, with respect, I think that this is the next amendment.

[Lord Judge]

The Minister may well be right, but I listened to the noble Lord, Lord Elis-Thomas, talking about “normal” in the context of Clause 2. At some stage I want to make the point, so perhaps I may just finish making it, because I do not want to take long about it. Please can we look at the matter in the context of Clause 53 and, in particular, Clause 53(6) concerning statutory instruments, powers vested in the Secretary of State, affirmative resolution, and so on:

“unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”?

It totally omits reference to the National Assembly for Wales, yet in Clause 2 we are told that the Government will not normally legislate without the consent of the Assembly. Somewhere along the line, this bridge has to be crossed.

--- Later in debate ---

[Baroness Randerson (LD)]

My Lords, I rise with some trepidation among so many distinguished lawyers to make two brief points about the argument we have been having. The Government have acknowledged that there is a problem by setting up this working party, but I am not persuaded that they have done anything other than offer the working party as a sop to those who are concerned about this issue. If the working party was going to be rigorous and reach any kind of useful conclusion for us, it would have met several times by now. Otherwise it is up to the Government to say to us today that it will not be reporting this autumn but, rather, at some point in the distant future because it has discovered that there is a great deal of work to do. I therefore support the amendment tabled by my noble friend Lord Thomas because I believe that three years is a reasonable timescale for a commission to look rigorously and thoroughly at all the aspects of this.

I also endorse the comments of the noble and learned Lord, Lord Morris of Aberavon. The consolidation of Welsh law is becoming increasingly urgent. I know that the Minister is aware of it, having been a Member of the Welsh Assembly. Because the Assembly puts things on its website on the internet, they are not available in the printed format in which most law is available. People can find it difficult and complex to seek out legislation in order to find out which is the most recent version of the law. That issue needs to be discussed. Moreover, something that no one has mentioned so far in the debate is EU law, much of which has been incorporated into Welsh Assembly legislation. Once we have the great repeal Bill, I would ask the Minister how it is anticipated that this will be recognised within the single jurisdiction and whether the working party is considering the issue of EU law.

[Lord Bourne of Aberystwyth]

My Lords, this has been a wide-ranging debate on what is clearly an important matter. I turn first to the contribution of the noble Lord, Lord Wigley, who put his case very passionately, as he always does. He addressed some of the important issues in this. Perhaps I may make several points, the first of which relates to a matter he raised and which, I think, was touched on by the noble Lord, Lord Carlile, or perhaps it was the noble Lord, Lord Thomas of Gresford. The administration of the courts is quite separate, I think, from the issues of the actual sources of law and separate jurisdiction. The second point I would put to him and indeed to other noble Lords is that to some extent this is a question of semantics. We can say now that we have a separate jurisdiction because we have separate arrangements in relation to Wales. That is undoubtedly the case and some of them are already in place. So I appreciate the points that are being made, but there are shades of grey here. It is not as if it is all or nothing or as if separate arrangements are not being made for Wales now in relation to cases and judicial process; that is certainly the case.

I should also say that what the noble Lord is putting forward represents a massive change which I do not think is necessary. If you speak, as I have done, to people in the law schools of Wales and ask them how many students are actually opting to study devolved law as it is at the moment, you will find that it is a handful. I was stunned because I thought that far more would do so. I do not say that with any pleasure, but it is an indication of the fact that this is an evolving situation and as things stand we do not really have a pressing need for a separate jurisdiction in the way that he has talked about. I do not think that that is the case. Having spoken to practitioners and independent members of the Silk commission, I know that they, too, believe that there is a danger of throwing out the baby with the bathwater. The law schools of Wales recruit students not only from England but from overseas, which is a massive market for them. I know that the noble Lord would not want to jeopardise that. Practitioners, too, talk about the importance of the legal system that we have at the moment. That was exemplified by the noble Lord, Lord Carlile, in talking about the porous nature of the border and the fact that we have to recognise that.

It is right that the working party has met only once so far—I think that it is in Cardiff as we speak and is meeting legal practitioners and lawyers tomorrow. That was not suddenly set up; one cannot suddenly issue invitations in that way. The noble Baroness, Lady Morgan of Ely, was right to say that there is a forthcoming meeting—I think that it is on 7 November, although I am not absolutely certain of that date. The Welsh Government are invited to it, as they were to the first meeting—I think that they attended the first meeting, but I stand to be corrected on that . I will endeavour to ensure that ahead of Report—I will come back to the question of Report in a minute—noble Lords have a summary or details of what has happened so far and of the people on the working party.

All I can say about Report is that we do not know when it will be. I was rightly pressed to say that we would not get to Report because of the need for an LCM from Cardiff. I am not a magician; I cannot say with absolute certainty when Report will be, but I will endeavour to ensure that insofar as we have information, noble Lords are apprised of it as soon as possible and ahead of Report.

Turning to points made by others, I am grateful for the contribution of my noble friend Lord Crickhowell on the complex and detailed nature of the proposal, and to the noble and learned Lord, Lord Hope, who spoke of sympathy with the general point but acknowledged that we are not at this stage in a situation of wanting a separate jurisdiction. We need to ensure that separate arrangements exist for cases that have a Welsh dimension and that practitioners and judges are steeped in Welsh law if such cases involve Welsh law. I accept that and we are looking at it. I take the point that we should look at this matter on a continuing basis, because it is right that it is an evolving picture. I do not think that we are currently at the stage of wanting a separate jurisdiction, but we need those separate legal arrangements and to make sure that the interests of Welsh litigants, Welsh witnesses, Welsh practitioners and Welsh law schools are all taken care of.

I will take away the points made about the commission. I do not think that a statutory commission is the right answer, but we need a body that looks at this matter on an ongoing basis—I have sympathy with the point made by the noble Baroness, Lady Morgan, that it is an evolving picture. I have sympathy, too, with the points made by the noble Baroness and the noble Lord, Lord Elis-Thomas, about the sources of Welsh law. I shall take those away and reflect on them before Report.

I thank the noble and learned Lord, Lord Morris of Aberavon, who has vast experience not just of Wales but of the law, for his comments about the need for administrative arrangements and the consolidation of legislation—it was a point well made. My noble friend Lord Deben assured me that he was not being mischievous in putting forward his point; I did not think for a minute that he was. It is absolutely right that we need the evidence from the working party ahead of Report. As I have said, we know that Report is a little way ahead because of the need for an LCM from the Welsh Government before we can proceed, so I hope that we have that in place. The noble Lord, Lord Elystan-Morgan, speaks with great experience, both judicial and political. I take his point about the symmetry of a separate judicial system where one has a separate Parliament and can understand his cri de coeur as a Welshman, but, as he rightly said, we have to recognise that we need to address practical issues in relation to ensuring proper protection for Welsh practitioners, As to Welsh students and Welsh lawyers, we want the best Welsh lawyers to be able to serve in Wales rather than be encouraged over the border because they feel that a separate system has been set up. All those points need to be taken into account and I do not want to shy away from them in any way. We have to do what is right for Welsh law, but, as I have said, it is an evolving picture at the moment rather than one that demands a separate jurisdiction. With the assurances that I have given, I urge noble Lords not to press their amendments.