Wales Bill

David T C Davies Excerpts

Tuesday 5th July 2016 Commons Chamber

[David T. C. Davies (Monmouth) (Con)]

I begin by genuinely welcoming the two new members of the Opposition Front-Bench team. One, the hon. Member for Swansea East (Carolyn Harris), I have not known for that long, but she has always shown her willingness to work in a non-partisan way when that is called for. The hon. Member for Newport West (Paul Flynn) and I go back many decades. Although we have never really agreed, I think it is wonderful that he has found his way on to the Front Bench. I suspect it will take me even longer than him to get there, but you never know. We might even see a nonagenarian on the Front Bench one of these days, and I will put myself up if I am still here.

I will address the thrust of the Plaid Cymru amendments—most importantly, amendment 21 and the general view that Plaid Cymru Members want to underline the absolute permanence of the National Assembly for Wales within the British constitution. I speak as someone who campaigned against the Welsh Assembly—I was one of the leaders of the campaign against it, back in 1997—and voted against it. Subsequently, there was a discussion among those of us in the no campaign about what we should do next. After all, the Assembly had gone through on a turnout of only 50%, with a majority of less than 1%. About 25%—just one in four—of the Welsh public had voted for a National Assembly of Wales. There were discussions about whether we should demand a rerun, or take to the streets and protest that such an enormous constitutional change was taking place with the support of just one in four of the population. We discussed all those things and the anger that we felt about the plan for the Assembly going ahead.

We decided in the end that we needed to show some humility. It was not a case of whether we were right or wrong but of listening to the will of the Welsh public. Subsequently there was a referendum a few years later, when I campaigned against further powers for the Welsh Assembly. I do not like to say that I was wrong—no politician ever does—but I accept fully that I was on the losing side and that, once again, the Welsh public had spoken and made clear their support for a Welsh Assembly. I therefore wish to say that, as someone who was probably more anti the Welsh Assembly than anyone else in this Chamber—well, I would have said that a few years ago but now I am not so sure—I totally and utterly accept that the Welsh Assembly is there, and there to stay.

Despite my constitutional misgivings about the Assembly, and the fact that I predicted at the time that it would always be seeking more powers every couple of years, I have always thought that were obvious advantages to having a body that could take some control over matters that affect the people coming to see us in our surgeries. People always want to talk about health services and the NHS, for example, and I have always thought it easier to get hold of a Minister in the Welsh Assembly than Ministers in Parliament, probably because they do not have quite as much to do. Members of the Welsh Assembly are generally able to be in their constituencies more often than Members of Parliament, for obvious logistical reasons. There were always some advantages to be had; my concern was that we had left the English question unanswered, although we are starting to address that now.

I want to make it clear that I believe that it would be constitutionally outrageous for any party to come along and try to get rid of the Welsh Assembly. I certainly would not support that. I do not for a second think it is realistic to hold another referendum on the principle of whether we have a Welsh Assembly. I was on the losing side of that argument. Whether I was right or wrong is immaterial; I fought that case, I lost, and the people of Wales have spoken.

[Chris Davies (Brecon and Radnorshire) (Con)]

I am delighted to hear my hon. Friend’s comments, and one always listens to every word he says. Does he regret that there was no mechanism in the first Wales Bill to allow another look at whether the Assembly should exist?

[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.

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[Guto Bebb]

The hon. Gentleman is a passionate speaker and a strong advocate for his position. In a debate in Westminster Hall this morning, however, I warned of the dangers of creating history as we want to believe it to happen. I am not as yet convinced that there is enough evidence to suggest that Scotland is imminently about to leave the United Kingdom—[Interruption.] I am not convinced. There was a referendum two years ago that provided a fairly clear result. I think it would therefore be inappropriate to legislate on the basis of the wish list of the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards)—much as I enjoy that wish list and the passion with which it is articulated.

The Government are fully committed to maintaining the single legal jurisdiction of England and Wales. It has served Wales very well. It is also our firm view that it is the most effective, efficient and consistent way to deliver justice. The issues raised by the hon. Member for Torfaen (Nick Thomas-Symonds) highlighted some of the complexities that would be created if we moved away from that single jurisdiction at this point in time. The vast majority of law is not devolved, so there is no justification for a separate jurisdiction that would create significant upheaval and huge costs. It is worth highlighting that cost issues cannot be swept under the carpet. There would be a cost implication with very little benefit. I wonder whether Plaid Cymru Members have carried out a cost-benefit assessment to weigh up the benefits and the costs that would be incurred.

Amendment 5 envisages separate legal and court jurisdictions, administered by a common judiciary and court staff. It is designed to provide clarity, but I am not sure that it would. I think it would create more confusion, having the opposite effect—a point made by the hon. Member for Cardiff West (Kevin Brennan). The same people would be charged with administering two separate legal regimes where there is currently a commonality of law and procedure. This would have downstream consequences and it would impact on how the legal system works. It is difficult to justify such an impact on the basis of the current body of Welsh law.

We have heard the argument that the situation in Scotland and Northern Ireland is simpler because they have separate legal jurisdictions. I expected to hear that argument, but it ignores the historical reality that there has been—there always has been for that matter—a separate Scottish legal jurisdiction. I have engaged previously with the hon. Member for Carmarthen East and Dinefwr on the laws of Hywel Dda, who is rightly remembered for the legal system he put in place.

[David T. C. Davies]

Does the Minister also accept that Hywel Dda was very well known for the importance he placed on working with the English Government at the time, particularly with Edward the Elder and Athelstan? Is there not a great lesson for all of us here in terms of co-operation with the Welsh Assembly?

[Guto Bebb]

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

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

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

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

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

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

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

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[Stephen Doughty]

I wish to speak on clause 16 and the referendum on income tax powers. I preface my remarks by saying that I have always been an instinctive pro-devolutionist. I worked in the Assembly when it first began and I supported its establishment. I would go further than some aspects of the Bill in devolving powers and giving responsibilities to the Welsh Government. I support, as the First Minister has, a federal UK. I would like a constitutional convention and a written constitution that properly settles the duties and responsibilities of the respective Administrations across these islands. This is even more crucial in the aftermath of the EU referendum. I genuinely fear for the future of the UK at the moment. I have always considered myself a proud Welshman, but also proudly British and proudly European. I will continue to do so, but we have unleashed a whole series of very difficult questions in the aftermath of the vote that make our deliberations on the Bill all the more important.

[David T. C. Davies]

Does the hon. Gentleman agree that the citizens of Switzerland and Norway are Europeans and may be proud to be European? They are just as European as anyone else in Europe, and he would be just as European as a Norwegian or a Swiss person is after Brexit takes place.

[Stephen Doughty]

I am not going to be taken down that rabbit hole. I want to concentrate on the details of the Bill. I make my point because, despite having those views and pro-devolutionary instincts in supporting the most of the Bill—as I said, I am even willing to go further—I have also always believed in applying two tests to proposals put before us.

First, whatever is proposed must deliver better outcomes for the people of Wales. It is absolutely crucial that we look at this in the context of our unique history. Our history is not the same as that of Scotland, our legal history is not the same as that of Scotland, and the nature of our polity and development is not the same as that of Scotland. There are distinct and unique things about Wales that we should consider that do not apply to Scotland. We always have to ask: is this the right solution? I apply that particularly to issues such as policing, the justice system and criminal jurisdiction. I am not saying that they should not be looked at in the future, but I believe in a practical test of whether they will deliver better outcomes. It is not just about sticking a dragon on something and saying it will be done better; this has to be approached in a very cold and hard-headed way.

Secondly, I have always believed in the consent of the Welsh people when making major constitutional change. I support very much the intent of amendment 11, which I will support if it is pressed to a Division. We have considered the fiscal framework for Wales before moving forward with any devolution of income tax powers. There is a fundamental principle at stake here. Clause 16 would remove the requirement for a referendum. We have had two referendums in this country, one in Wales and one in Scotland. In Scotland, the question related to the devolution of income tax powers. It was the second question in the Scottish referendum of 1997 and it passed by 63.48%. The Scottish people were asked that question and voted for it separately from the question on whether there should be a Scottish Parliament. In Wales, we had a referendum on 3 March 2011 on a much lesser question, which was whether the Assembly should be able to make laws on the areas for which it already has responsibility. I did not think we needed that referendum at all. It was obvious that Wales should have had primary law making powers—it should have had them from the beginning. I always thought it absurd, sitting there in the early days of the Assembly discussing odd details of secondary legislation, that we did not have that primary law making power, so I am glad we have moved in that direction in terms of the Assembly’s core competences.

Whether or not people agree with devolving income tax powers, the question is a very fundamental one that changes the nature of the settlement for the Assembly and the Welsh Government. The question should be put to the Welsh people. I think it would pass in the current context, despite what some people say. Many in Wales would want to see it pass, and it should be put to them. It is a matter of precedent: we have had the two previous referendums, but we are not getting one on this question. I cannot understand why. We are not giving the Welsh people a voice. Whatever side people were on in the referendum campaign, it was crucial that the British had their say on such a fundamental decision.

I think that clause 16 is a mistake, but I will support our amendment 11, which goes fundamentally to the question of getting a fair fiscal settlement for Wales.