Separation of the Legal Jurisdiction of England and Wales

Wales Bill – in the House of Commons at 1:17 pm on 5 July 2016.

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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.”

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.

Amendment 9, page 2, line 1, after “law” insert

“and review of the justice system in Wales”.

This amendment amends the heading of Clause 1 in consequence of the proposal in amendment 7 to review the functioning of the justice system in Wales.

Amendment 7, page 2, line 3, at end insert—

“(2) The Lord Chancellor and the Welsh Ministers must keep the functioning of the justice system in relation to Wales under review with a view to its development and reform, including keeping under review the question of whether the single legal jurisdiction of England and Wales should be divided into a jurisdiction for Wales and a jurisdiction for England.

(3) In exercising their duty in subsection (2) the Lord Chancellor and the Welsh Ministers must have regard to—

(a) divergence in the law and its administration as between England and Wales,

(b) the need to treat the Welsh and English languages on the basis of equality, and

(c) any other circumstances in Wales affecting operation of the justice system.

(4) The Lord Chancellor and the Welsh Ministers may appoint a panel to advise them on the exercise of their functions in this section.

(5) The Lord Chancellor must make an annual report on the functioning of the justice system in relation to Wales to the Welsh Ministers.

(6) The Welsh Ministers must lay the report before the Assembly.

(7) The Lord Chancellor must lay the report before both Houses of Parliament.”

The provision in the Bill recognises the existence of a body of Welsh law made by the Assembly and the Welsh Ministers. The new subsections to be inserted after that provision by this amendment require the Secretary of State to keep the justice system as it applies in relation to Wales under review with a view to its development and reform, having regard in particular to divergence in the law as between England and Wales.

Amendment 10, page 2, leave out lines 4 to 6.

This amendment removes subsection (2) of the proposed new section 92B of the Government of Wales Act 2006 (recognition of Welsh law). Subsection (2) seeks to explain the purpose of subsection (1) of that section.

Clause 1 stand part.

Amendment 23, in clause 2, page 2, line 12, leave out “normally”.

This amendment removes the word “normally” from the recognition that the Parliament of the United Kingdom will not normally legislate on devolved matters without the consent of the National Assembly for Wales.

Amendment 3, page 2, line 12, leave out “legislate with regard” and insert “enact provisions relating”.

This amendment is a consequence of amendment 4, which defines the meaning of “devolved matters”.

Amendment 24, page 2, line 13, after “Assembly” insert—

“(a) there is an imminent risk of serious adverse impact on—

(i) the national security of the United Kingdom, or

(ii) public safety, public, animal or plant health or economic stability in any part of the United Kingdom,

(b) the legislation specifically addresses that risk,

(c) the imminence of the risk in relation to Wales makes it impractical to seek the consent of the Assembly,

(d) no Bill has been passed under section 110(1)(a) specifically to address the risk, and

(e) no subordinate legislation specifically to address the risk has been laid before the Assembly and has come into force.”

This amendment specifies the circumstances in which Parliament can legislate on devolved matters on behalf of the National Assembly for Wales without its consent.

Amendment 4, in clause 2, page 2, line 13, at end insert—

“(7) For the purpose of subsection (6), a provision relates to a devolved matter if the provision—

(a) applies in relation to Wales and does not relate to a reserved matter.

(b) modifies the legislative competence of the Assembly, or

(c) confers a function on, or removes or modifies a function of, any member of the Welsh Government.”

This amendment defines the meaning of “devolved matters” for the purpose of the statutory recognition of the convention about Parliament legislating on devolved matters proposed by Clause 2.

Amendment 25, page 2, line 13, at end insert—

“(7) In this section, “devolved matters” means matters that—

(a) are within the legislative competence of the Assembly;

(b) modify the legislative competence of the Assembly;

(c) modify a function of the Assembly;

(d) modify a function of a member of the Welsh Government exercisable within devolved competence (and “within devolved competence” is to be read in accordance with section 58A).”

The amendment defines devolved matters for the purposes of Clause 2.

Clauses 2 and 4 stand part.

Amendment 26, in schedule 4, page 94, line 10, at end insert—

“National Assembly for Wales Commissioner for Standards.”

The amendment adds the National Assembly for Wales Commissioner for Standards to the list of Wales public authorities.

Amendment 27, page 94, line 10, at end insert—

“National Assembly for Wales Remuneration Board.”

The amendment adds the National Assembly for Wales Remuneration Board to the list of Wales public authorities.

Schedule 4 stand part.

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Environment, Food and Rural Affairs), Shadow PC Spokesperson (Education), Shadow PC Spokesperson (Health), Shadow PC Spokesperson (Women and Equalities) , Shadow PC Spokesperson (Energy & Natural Resources), Shadow PC Spokesperson (Local Government), Shadow PC Spokesperson (Justice)

Diolch yn fawr, Dirprwy Lefarydd. Nineteen years have passed since the 1997 referendum to establish the Assembly. It is now clear that to have our own democratically elected Government and legislature is the settled will of the people of Wales. I note with disappointment and surprise the Secretary of State’s recent refusal of an invitation from the Chair of the Assembly’s Constitutional and Legislative Affairs Committee to give evidence on the Bill. I would argue that now, especially, is the time for co-operation and the sharing of knowledge.

Clause 1 is a very welcome addition to the Welsh devolution dispensation. Any clause to recognise the permanence of the institution is, of course, overdue. Amendments 17 to 22 are not controversial, and they deal with two technical issues. First, amendment 17 and amendment 22, which is consequential on amendment 17, change the place in the Government of Wales Act 2006 in which the text of clause 1 would appear. I know that the Presiding Officer in the Assembly, Elin Jones, has made this point, and I share her view that the declaration of the permanence of the Assembly should be given prominence in the Bill. Placing it in section 1 of the 2006 Act would achieve that.

Secondly, amendments 18 to 21 reflect the constitutional separation of the legislature, the National Assembly of Wales, and the Executive, the Welsh Government, by dealing with them in separate new provisions to be inserted into those parts of the Government of Wales Act 2006 that deal respectively with the Assembly and the Government. These are probing amendments and we do not intend on pressing them to a vote, but I hope that the Secretary of State will agree to accept these proposals and to table his own amendments at the next stage.

I do, however, intend on pressing amendment 5 to a Division. This amendment deals with what was perhaps the key focus of the prelegislative stage of the Bill and remains, in our view, the main reason that it fails to achieve what the Secretary of State has said he wanted to achieve: that is, to produce a lasting devolution settlement for Wales.

Since the original Government of Wales Act 1998, we have been forced to change the devolution dispensation four times. If enacted, this Bill will become the fifth dispensation. The perpetual modifications have been necessitated by sustained reluctance from successive UK Governments, both Labour and Tory, to legislate with the long term in mind. Although all of Wales’s devolution Acts were described as settlements to settle the debate for a generation, not one of them has achieved that aim. It is clear to me that this Bill will continue that trend, unless, of course, the Secretary of State changes course.

Many, if not most, of the criticisms of the Bill made by politicians, lawyers, civil society and academics alike have been of clauses or sections that have been justified as necessary by the Secretary of State in order to maintain the single unified legal system of England and Wales. The inclusion of clause 3—this will be discussed next week—and in particular its much-debated necessity test is down to the fact that the Welsh legislature operates within a shared jurisdiction. The inclusion of clause 10, on justice impact tests, which have been subject to questioning and criticism since the publication of the latest Bill, is down to the fact that justice is a reserved matter—a reservation that is apparently necessary to safeguard the shared jurisdiction. These are among the contents of the Bill that are intended to prevent the Assembly from making any provisions that will impact on so-called public authorities. Again, these are in the Bill to protect the unified legal jurisdiction. As the Wales Governance Centre and University College London report stated:

“Complexity is piled on complexity...the potential for legal challenge casts a long shadow”.

I remind the House that Wales is unique in the world in having a primary law-making legislature without a jurisdiction. Scotland has a wholly separate legal jurisdiction, and the Scottish settlement is simpler as a result. It avoids the complex and unnecessary exceptions and reservations. The relative stability of the Scottish devolution settlement, when compared with the turmoil in Wales, is stark. It is rare that Wales passes a law without the threat of legal challenge from somewhere.

If there were a practical need to maintain the unified legal system, it would be worth making these compromises elsewhere in the Bill and perhaps worth the legal battles. However, I have yet to hear a genuine, practical reason for doing so. The most frequently made argument against creating a separate Welsh jurisdiction is that it is unnecessary and costly, and that divergence between the law as it applies to Wales and the law as it applies to England is minimal. To those who make those arguments I say two things. First, to say that divergence is minimal is to continue the short-term approach of previous Governments and to ignore the fact that divergence will do nothing but increase as the Assembly continues its work and as the institution gains more maturity and responsibility.

Photo of Mark Williams Mark Williams Liberal Democrat, Ceredigion

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

Photo of Jonathan Edwards Jonathan Edwards Shadow PC Spokesperson (Treasury), Shadow PC Spokesperson (Business, Innovation and Skills), Shadow PC Spokesperson (Transport), Shadow PC Spokesperson (Foreign Intervention)

Amendment 5 is very well worded, if I may say so, because it was drafted, word for word, by the Labour Government in Cardiff. They wanted a separate legal jurisdiction for Wales, and they promised it as a major pledge before the Assembly election. What does my hon. Friend think it will say about the authority of Carwyn Jones among his colleagues here in London if the Labour party does not support that amendment today?

Photo of Paul Flynn Paul Flynn Shadow Leader of the House of Commons, Shadow Secretary of State for Wales

What the hon. Lady has said is entirely fair, but we must come to a practical conclusion. It is clear that the undertaking we gave as a party to support the line taken by Plaid Cymru still stands, but the practical problem is that the Government have firmly rejected it. In these circumstances, the sensible thing to do is to seek a compromise between the two positions, and that is what our amendment is designed to do.

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Environment, Food and Rural Affairs), Shadow PC Spokesperson (Education), Shadow PC Spokesperson (Health), Shadow PC Spokesperson (Women and Equalities) , Shadow PC Spokesperson (Energy & Natural Resources), Shadow PC Spokesperson (Local Government), Shadow PC Spokesperson (Justice)

It is unfortunate to hear that argument in relation to standing up for Wales. On the one hand we have a Secretary of State who will not meet the Committee in the Assembly, and on the other hand we have a parliamentary Labour party that is not standing up for its colleagues in Wales.

But we move ahead. The second argument that I would use to those who argue against a separate Welsh jurisdiction is that, in many ways, the significance of divergence is beside the point. It is evident that these complex clauses and tests have to be included throughout the new Bill simply to accommodate the fact that Wales does not have a separate legal jurisdiction. Such clauses and tests, incidentally, have been described by distinguished legal experts, as I have mentioned, as

“a failure of comparative legal method” and, according to the constitution unit, they

“jar with basic constitutional principle”.

The inclusion of those clauses specifically because of the need to shore up the unified legal system is reason enough in itself, I would argue, to create a Welsh jurisdiction. To argue that it is unnecessary is to disregard completely the wealth of evidence that has emerged since the publication of the draft Bill last autumn. Stubbornly resisting that evidence will lead only to continued cases in the Supreme Court. I challenge anyone to justify making a Government accountable to a judge rather than to a legislature, but the Bill effectively enshrines such resort in law.

As our explanatory statement makes clear, amendment 5 was drafted by the Welsh Government, and it was included in annex C to the report by the constitution unit at UCL and the Wales Governance Centre earlier this year. I am, as I have mentioned, therefore very surprised to see the amendments tabled by Labour Members, which go against the views of their own party in Wales. I recognise that the official Opposition Front-Bench team has been through something of a reshuffle recently, and I am, incidentally, very pleased to hear that Paul Flynn has finally been offered the job that he should have been given a long time ago; I take this opportunity to welcome him to his post.

Photo of Susan Elan Jones Susan Elan Jones Labour, Clwyd South

There is a conciliatory note in what the hon. Lady says. In this great new world of conciliation, does she agree with her party leader in Cardiff, Leanne Wood, that what we need at this time is greater working together, even if it sometimes means in Cardiff greater working together between Plaid and Labour?

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Environment, Food and Rural Affairs), Shadow PC Spokesperson (Education), Shadow PC Spokesperson (Health), Shadow PC Spokesperson (Women and Equalities) , Shadow PC Spokesperson (Energy & Natural Resources), Shadow PC Spokesperson (Local Government), Shadow PC Spokesperson (Justice)

I am sure we will work together when it is for the best for Wales, but I understand that that is not the case in Cardiff, and Plaid Cymru will, of course, be standing for the arguments that we believe in our hearts to be for the best for Wales.

To reiterate, I ask the shadow Secretary of State for Wales to support our amendment, which will implement what his colleagues in the Welsh Government have been calling for. We have had the prelegislative scrutiny, and the evidence is there. It is clear that we must act to create a new Welsh jurisdiction, and the amendments tabled by Labour would simply kick the issue into the long grass. As I have said, Plaid Cymru is far from alone in making this call. The evidence supports our position and the Labour-run Welsh Government have called for this step—the wording on the amendment paper is theirs.

I warmly welcome the inclusion of clause 2. It is essentially a Sewel convention for Wales, setting out that the UK Parliament will not normally legislate on devolved matters without the consent of the Assembly. I stress the word “normally” because it brings me to amendment 23, in my name and those of my hon. Friends, which would remove that word from the clause. Quite simply, we do not believe that it is necessary. The UK Parliament should not legislate on devolved matters full stop. Amendment 24 would add an exception to that rule, allowing the UK Government to pass such legislation if there were an imminent risk to national security and the legislation in question specifically addressed that risk. We believe that is a sensible and pragmatic way forward.

Amendments 3 and 4, tabled by the leader of the Welsh Liberal Democrats, Mr Williams, seek to achieve broadly the same ends as our amendment 25. Ours are probing amendments. It is for the Government to look at them ahead of the Bill’s remaining stages.

I reluctantly welcome clause 4, with its accompanying schedule 4. It is an improvement on the utterly unworkable clause in the draft Bill. I have already mentioned that preventing the Welsh Government from modifying the functions of public authorities is one of the many complexities included in the Bill as a result of a blind insistence on maintaining the unified legal jurisdiction. Although the clause goes some way to easing the complexity, in my view creating a separate jurisdiction would negate the need for any complexities. As it stands, we have tabled amendments 26 and 27 to the clause; they would add the National Assembly of Wales Commissioner for Standards and the National Assembly for Wales Remuneration Board to the list of so-called Wales public authorities. The amendments speak for themselves and should not be considered controversial.

Photo of David Davies David Davies Chair, Welsh Affairs Committee, Chair, Welsh Affairs Committee 1:30, 5 July 2016

I begin by genuinely welcoming the two new members of the Opposition Front-Bench team. One, 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. 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.

Photo of Chris Davies Chris Davies Conservative, Brecon and Radnorshire

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?

Photo of David Davies David Davies Chair, Welsh Affairs Committee, Chair, Welsh Affairs Committee

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 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 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.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Labour, Torfaen

I will speak in favour of amendments 9, 7 and 10. It is always a pleasure to follow my constituency neighbour, David T. C. Davies. I welcome my hon. Friend 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. 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 the 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.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Labour, Torfaen

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.

Photo of Jonathan Edwards Jonathan Edwards Shadow PC Spokesperson (Treasury), Shadow PC Spokesperson (Business, Innovation and Skills), Shadow PC Spokesperson (Transport), Shadow PC Spokesperson (Foreign Intervention)

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.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Labour, Torfaen

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. Liz Saville Roberts 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.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Labour, Torfaen

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.

On reports to what will be the Welsh Parliament, we must look more broadly at justice in Wales, and not exclusively in relation to the jurisdiction. Wales already has a High Court district registry in Cardiff, which no doubt could be developed, and the Court of Appeal often sits in Wales. We need a real open justice system in Wales that is not just stuck in Cardiff, Swansea, Caernarfon or wherever, but is willing to go out and sit in different buildings and genuinely bring justice closer to the people. The pragmatic way forward on jurisdiction is by far the best because we would not bring all those disadvantages into play, but we can also build on the opportunity in amendment 7 to consider the whole justice system in Wales and ensure that we truly have access to justice for all.

Photo of Nia Griffith Nia Griffith Labour, Llanelli 1:45, 5 July 2016

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

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

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

Photo of Mark Williams Mark Williams Liberal Democrat, Ceredigion

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

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

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

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

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

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

Photo of Mark Williams Mark Williams Liberal Democrat, Ceredigion

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

Photo of Alun Cairns Alun Cairns The Secretary of State for Wales

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

Photo of Mark Williams Mark Williams Liberal Democrat, Ceredigion

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

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

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

Photo of Paul Flynn Paul Flynn Shadow Leader of the House of Commons, Shadow Secretary of State for Wales

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

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

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

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

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

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

Photo of Jonathan Edwards Jonathan Edwards Shadow PC Spokesperson (Treasury), Shadow PC Spokesperson (Business, Innovation and Skills), Shadow PC Spokesperson (Transport), Shadow PC Spokesperson (Foreign Intervention)

I honestly mean it when I say that I warmly welcome the hon. Gentleman to his post. He is a man of great principle, and I am a great admirer of his, and because he is a man of great principle and because he says he supports the meaning and wording of amendment 5, should he not act on those principles and support Plaid Cymru in the Lobby later?

Photo of Paul Flynn Paul Flynn Shadow Leader of the House of Commons, Shadow Secretary of State for Wales 2:00, 5 July 2016

We will not be supporting amendment 5, because we think it gesture politics; unless the Government change their mind, it is not going to get through. We are suggesting a practical compromise that might well be accepted by the Government.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Business, Innovation and Skills)

I also recommend my hon. Friend’s book, “Dragons led by Poodles”, and thank him for what he said about me in it. [Hon. Members: “What did he say?”] Hon. Members can read it for themselves later, rather than have me read it into the record.

Despite what my hon. Friend said about the grudging nature of legislation around devolution, has not the organic way in which Welsh devolution has progressed built support for devolution from the very narrow victory in the referendum back in 1997? Might not imposing a separate legal jurisdiction at the outset of this journey in the creation of Welsh law place unnecessary costs on Welsh citizens having to seek permission to take a case in another jurisdiction, when that matter could be dealt with organically as the Welsh body of law develops in the years to come?

Photo of Paul Flynn Paul Flynn Shadow Leader of the House of Commons, Shadow Secretary of State for Wales

I agree entirely with my hon. Friend. In my book, which begins with a dramatis personae, I awarded Welsh politicians a number of pompoms for being poodle-ish or flames for being dragon-like. I think he emerged with no pompoms and five flames, which was the top award. His point is absolutely right.

During the pre-legislative scrutiny, it became clear that the question of the jurisdiction was a fundamental one that had to be addressed in the Bill. As the hon. Member for Dwyfor Meirionnyddp said, the Plaid Cymru amendment adopts the approach in the Welsh Government’s alternative Bill. That is fine—we agree with that—but we are proposing a compromise that would address the issue in a more consensual way. That is the spirit in which we approach consideration of the Bill. In response to the intervention from the Secretary of State, I must say that I welcome the concept of working with the Welsh Assembly. I know that the Constitutional and Legislative Affairs Committee of the Welsh Assembly will be meeting throughout August to consider the Bill under our former colleague Huw Irranca-Davies. I am sure that it will have a great deal to contribute, and I hope that its suggestions will meet with an open door.

There is common ground among legal and constitutional experts that the current arrangements are not sustainable. The challenges can only grow as the Welsh statute book develops further in the fifth Assembly term—“the Welsh statute book” has a nice ring to it. We have not yet risen to the heights of cyfraith Hywel Dda and the days in the 10th century when Wales led Europe with progressive legislation. There was a law that said if a starving person had gone to through villages without being fed, he or she was entitled to steal without risk of prosecution. They had wonderful rules on the rights of women that were far in advance of anywhere else and they had practically no capital punishment. Eight hundred years later, England had 220 crimes for which people could be punished with death, including stealing from a rabbit warren and cutting down a tree. So we are building on the shoulders of the giants of the 10th century and Hywel Dda. We are a long way from it, but this is another step towards that progress.

The joint jurisdiction was based on the premise that there was a common body of law across England and Wales with a single set of administrative arrangements. That premise worked for the centuries following the Acts of Union but is now out of date. In essence, that premise is inconsistent with legislative devolution; it is simply impossible to argue for retention of the joint jurisdiction when the criminal and private law in England and Wales will increasingly diverge as a result of Assembly legislation. The starting point is that there must be robust joint arrangements between the Lord Chancellor and the Welsh Ministers to work through the issues and identify solutions, and the UK Government’s proposed official working group might add some value. In his intervention, the Secretary of State said that an invitation had been sent to the Welsh Government. I do not know about that, but we would like to see that joint working. It is certainly the desire of the Welsh Government.

Our amendments would achieve three things. First, there would be a duty on the Lord Chancellor and Welsh Ministers to keep the operation of the justice system under review, including the jurisdiction question. Secondly, they would be able to appoint an expert panel to advise them, which could be an invaluable source of legal expertise to focus on the practical issues. Thirdly, the work would have to be transparent and sustained, with an annual report laid before the National Assembly and Parliament.

The Secretary of State, like his predecessor, wants the Bill to offer a lasting settlement, and so do we, but that will not happen unless they put forward a credible and serious process for reforming the joint jurisdiction. There is a major gap in the Bill as it stands. Amendment 7 is proposed as a constructive solution that deserves cross-party support and we hope to press it to a Division.

Clause 2 provides statutory underpinning for the Sewel convention. Under our constitution, both Parliament and the Assembly can legislate for Wales on devolved matters, so it is important that there be a clear understanding between the two legislatures as to which will be the principal legislature on these matters. The convention normally resolves that issue in favour of the Assembly. Amendments 23 and 24 address that issue further. The convention also requires that if Parliament proposes to amend the legislative competence of the Assembly, that too should require the Assembly’s formal consent.

To be fair to the UK Government, they have always acknowledged that the Bill will require the Assembly’s consent if it is to proceed to Royal Assent. This is a matter not of controversy but of common sense and consensus between the parties. This aspect of the convention, however, is only set out in rather obscure terms in a devolution guidance note for civil servants. As drafted, clause 2 makes no reference to this aspect of the convention at all, so it is an incomplete statement of the real position. Clarity would be appreciated.

Amendment 4 is designed to fill that gap. It would provide a comprehensive statement of the circumstances when Assembly consent is required for parliamentary legislation. In particular, it would make it clear in the Bill that Assembly consent is required when a parliamentary Bill proposes changes to the Assembly’s legislative competence. I note that amendment 25 is broadly to the same effect. This is an important element in the Welsh devolution settlement, so clarity is required; it should not depend on what is written in devolution guidance note. I urge the Government to accept these reasonable and constructive amendments.

Photo of Guto Bebb Guto Bebb The Lord Commissioner of HM Treasury, The Parliamentary Under-Secretary of State for Wales

I join hon. Members in welcoming the hon. Members for Newport West (Paul Flynn) and for Swansea East (Carolyn Harris) to their places on the Front Bench. I fear that I have followed the hon. Gentleman’s political career for more than 40 years, which makes me feel very old. When he was the candidate in Denbigh during the 1974 general election, my father was the election agent for Ieuan Wyn Jones, who stood for Plaid Cymru. The hon. Gentleman clearly made a huge impression on my father, who followed his career avidly, but I am surprised that as a resident of Llansannan he did not appreciate the beauty and importance of the agricultural community in the way that he perhaps should have. When my wife had a bookshop, we recommended “Dragons led by Poodles” to many of our customers. It was one of our bestsellers in the year in question, so he undoubtedly contributed to my coffers then.

On behalf of myself and the Secretary of State, may I also thank the hon. Members for Llanelli (Nia Griffith) and for Clwyd South (Susan Elan Jones) for their constructive engagement on the Bill prior to the change of guard on the Opposition Front Bench? The Bill has been brought forward in a measured way, and we have attempted at all times to have a constructive engagement with all Opposition parties. The constructive engagement we had with the hon. Members for Llanelli and for Clwyd South was particularly appreciated.

I need to go through the amendments in some detail to provide reassurance where necessary and to explain the Government’s position on them. Let me deal first with amendment 17, which was tabled by Liz Saville Roberts. This is clearly an attempt to change the place where new part 2A is inserted into the Government of Wales Act 2006. The new part inserted by clause 1 enshrines the permanence of the National Assembly for Wales and the Welsh Government and recognises the body of Welsh law. Amendment 8, which was tabled by the Opposition, would change the title of new part 2A, making it broader in scope. Amendments 17 and 8 are consequential amendments, so I shall explain the Government’s position on them when I speak to other amendments.

Amendments 18 to 22, tabled by the hon. Member for Dwyfor Meirionnydd, are designed to insert into the Government of Wales Act 2006 separate statements on the permanence of the National Assembly for Wales and of the Welsh Government. The amendments rightly recognise the importance of new part 2A in confirming without any doubt in law what is widely understood—that the National Assembly and the Welsh Government are a permanent part of the United Kingdom’s constitutional arrangements.

I pay tribute to my hon. Friend David T. C. Davies and his work as Chairman of the Welsh Select Committee. I pay tribute, too, to his speech in which he highlighted the permanence of the Welsh Assembly in the UK’s constitutional arrangements. I accept his argument that a majority is a majority in a democratic vote. My mother-in-law argued on Sunday that we should try to avoid the result of the EU referendum, highlighting the fact that it was a very small majority on a very small turnout, whereupon I said to her that she was of the view that the 50.3% of the people of Wales who voted for the establishment of the Welsh Assembly should be respected. I stood by the democratic principle that a majority is a majority, but it was good to hear my hon. Friend the Member for Monmouth being so clear in his view that the Assembly is part and parcel of the UK’s constitutional arrangements.

It is fair to say that a great deal of consideration has been given to the content of this clause and its place in the 2006 Act, not only in the context of the draft Wales Bill, published last October, but in terms of the read-across from the Scotland Act 2016. As in the context of Scotland, I am keen to see this commitment expressed in a single clause to reflect the fact that the Assembly and the Welsh Government belong together as a part of the UK’s constitutional arrangements. I would, however, like to give further consideration to the most appropriate place to insert new section 92A in the Government of Wales Act 2006.

I shall deal next with amendments 5, 7, 9 and 10, which amend new clause 92B on the recognition of Welsh law. In its second report, published in March 2014, the Silk commission recommended that there

“should be further administrative devolution in the court system”, and it specifically provided for devolution in respect of the various divisions of the High Court, which should sit in Wales on a regular basis to hear cases—other than highly specialist cases—that arise in Wales. The commission stated that a High Court office should be established in Wales to co-ordinate High Court sittings in Wales; that the divisions of the Court of Appeal should continue to sit in Wales on a regular basis to hear cases that arise in Wales; and that High Court and Court of Appeal judges should be allocated to sit in Wales only if they satisfy the Lord Chief Justice that they understand the distinct requirements of Wales.

I am pleased to be able to state clearly from the Dispatch Box that many of the recommendations relating to administrative devolution, in fact, reflect the current position in Wales: the senior courts already sit in Wales; the administration of Welsh courts is overseen by Her Majesty’s Courts and Tribunals Service Wales; and court sittings are co-ordinated locally.

As for the broader question on the case for devolving legislative responsibility, this was one of the key issues examined in the St David’s day process, taken forward by my right hon. Friend Stephen Crabb. Hon. Members will be aware that, as set out in the St David’s day agreement, there is no political consensus on devolving justice. It has been clear from the debates we have had—very good separate debates—that it is difficult to argue that there is consensus on this point. Accordingly, my party’s 2015 election manifesto gave a clear pledge to continue to reserve justice and policing in Wales.

The Labour party’s 2015 election manifesto pledged to take forward proposals from the Silk commission to extend the power of the people of Wales over matters such as elections, transport and energy—all dealt with in this Bill—but it did not propose devolving justice to Wales. Looking at the result of the 2015 general election, it is difficult to argue that there is a majority to move forward on that issue. The votes gathered by the Labour party and the party I represent in 2015 suggest that majority opinion in Wales is firmly behind the proposals in this Wales Bill.

Photo of Jonathan Edwards Jonathan Edwards Shadow PC Spokesperson (Treasury), Shadow PC Spokesperson (Business, Innovation and Skills), Shadow PC Spokesperson (Transport), Shadow PC Spokesperson (Foreign Intervention) 2:15, 5 July 2016

There has, of course, been a material change in conditions, following the events of the last few weeks and the EU referendum. From our perspective, we just want to get the Bill on the statute book, so that we can move on to the next big debate about the future of our country. Is the Minister seriously saying from the Dispatch Box today, after the events of the last few weeks, with Scottish independence imminent in the next few years and with Irish unification never being closer since Lloyd George decided to split that country in two, that this Bill will hold Wales together for the next generation?

Photo of Guto Bebb Guto Bebb The Lord Commissioner of HM Treasury, The Parliamentary Under-Secretary of State for Wales

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 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 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 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.

Photo of David Davies David Davies Chair, Welsh Affairs Committee, Chair, Welsh Affairs Committee

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?

Photo of Guto Bebb Guto Bebb The Lord Commissioner of HM Treasury, The Parliamentary Under-Secretary of State for Wales

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 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.

Photo of Mark Williams Mark Williams Liberal Democrat, Ceredigion

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

Photo of Guto Bebb Guto Bebb The Lord Commissioner of HM Treasury, The Parliamentary Under-Secretary of State for Wales

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

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

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

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

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

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

So that the public can understand the divergence that has, to a limited degree, taken place so far, will the Minister tell us what proportion of the current law he considers to be distinctly Welsh, as opposed to England and Wales law? May we, in future, be given a regular update on that distinction, so that ordinary people understand where the law is diverging?

Photo of Guto Bebb Guto Bebb The Lord Commissioner of HM Treasury, The Parliamentary Under-Secretary of State for Wales

That is a good question, because it highlights the importance of ensuring that people in Wales understand where law is made. The percentage of Welsh law is currently tiny in comparison with the overall impact of the law on those people, but I think we should keep an eye on the position.

Clause 1 sets the scene for the new model of Welsh devolution that is presented in the Bill. It inserts a new part 2A into the Government of Wales Act, ensuring that, for the first time, the permanence of the National Assembly for Wales and the Welsh Government is confirmed. It recognises both as a permanent element of the United Kingdom’s constitutional arrangements, and as part and parcel of our nation’s constitutional fabric, and reflects the importance of the National Assembly and the Welsh Government to political life in Wales.

The Silk commission recommended that it be recognised that the National Assembly for Wales is permanent for as long as that is the will of the majority of people in Wales. In the St David’s day agreement, the Government gave an undertaking to enshrine that commitment in legislation, which we are delivering in clause 1; we did the same for the Scottish Parliament and the Scottish Government in the Scotland Act 2016. I think it fair to say that most Members welcome that certainty.

New section 92A also provides that the Assembly and the Welsh Government are not to be abolished except on the basis of a decision by the people of Wales voting in a referendum. I hope that such a referendum will not be forthcoming, but I think it important to recognise that the decision on whether we have a Welsh Assembly and a Welsh Government is a decision for the people of Wales, to be made by them.

New section 92B underpins the commitment to permanence by recognising that there is a body of Welsh law made by the Assembly and Welsh Ministers that forms part of the law of England and Wales. It is important that we recognise that in statute—which we are doing for the first time—while also recognising the elements that are common to England and Wales. Clause 1 is a declaratory statement, but its recognition of the contribution made by the Assembly and Welsh Ministers to the law of England and Wales is important none the less. Meanwhile, the Justice in Wales working group of officials that I mentioned earlier will consider what changes are necessary to reflect the distinctiveness of Wales within the administrative arrangements for justice, and, as I have said, I expect a report in the autumn.

Amendment 23, tabled by the hon. Member for Dwyfor Meirionnydd, seeks to broaden the scope of the commitment given in relation to the convention about Parliament’s legislating on devolved matters by removing the word “normally”. The commitment in clause 2 that Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly reflects the current convention on legislative consent. We gave a commitment to put that convention on a statutory footing in the St David’s day agreement, and that is what clause 2 does. The clause is also in line with the provision made in relation to the Scottish Parliament in the Scotland Act 2016. Since the convention was established, a legislative consent motion has always been sought before Parliament has passed legislation for Wales in relation to devolved matters. This is part of the normal working arrangements between the UK Government and the Welsh Government and we expect it to continue, but to remove “normally” from the clause would fundamentally change the convention. The “not normally” element of both the convention and clause is essential as it acknowledges parliamentary sovereignty and, within the clause, signals to the courts that this clause is not intended to be subject to adjudication.

Clause 2 implements a Silk commission recommendation and a St David’s day commitment. The Government have no plans to broaden that commitment.

Amendment 3 from Mr Williams, amendment 24 from the hon. Member for Dwyfor Meirionnydd, amendment 4 from the hon. Member for Ceredigion and amendment 25 from the hon. Member for Dwyfor Meirionnydd seek to define the conditions Parliament would have to satisfy to legislate without the consent of the Assembly. Amendment 24 would provide for an exception to the convention on legislative competence by setting out the circumstances in which Parliament could legislate with regard to devolved matters without the consent of the Assembly.

The convention deliberately does not define those circumstances. Parliament is sovereign, so both the Assembly and Parliament can legislate for devolved matters. Defining the instances in which Parliament can legislate for devolved areas would drive a coach and horses through this underpinning principle of devolution. We are talking about a measure that is devolving power, so that principle is important and needs to be retained.

There are occasions when it makes sense for Parliament to legislate in relation to matters devolved to the Assembly, and since the convention was established a legislative consent motion has always been sought before Parliament passes legislation for Wales in relation to devolved matters.

Amendments 3 and 4 seek to define the term “devolved matters” more specifically and more broadly than the current convention. That would, for example, also include Executive functions of Welsh Ministers, some of which are conferred in relation to reserved matters, so it could be problematic for those amendments to be supported. Under the current convention the UK Government will seek the Assembly’s consent when Parliament legislates on matters within the legislative competence of the Assembly. If parliamentary legislation seeks to amend a function of Welsh Ministers that is outside the legislative competence of the Assembly, the UK Government normally need only seek the consent of Welsh Ministers. The Silk commission made no recommendation to extend the convention in this regard. In view of the fact that the hon. Member for Ceredigion described the Silk commission as his Bible, I think he should take note of that point.

Assembly Standing Orders already require Welsh Ministers to notify the Assembly in a written statement about provisions in parliamentary Bills that have a significant impact on Welsh Ministers’ functions. It is right that this is a matter for the Assembly and Welsh Ministers, and I see no reason to change the convention clause 2 enshrines.

In the St David’s day agreement we committed to placing the convention on legislative consent on a statutory footing in the same manner as we have done for the Sewel convention in the Scotland Act 2016. Clause 2 inserts section 107(6) into the Government of Wales Act 2006 to reflect in statute the political understanding that already exists. The practice of obtaining the consent of the Assembly is well-established: a legislative consent motion is always sought before Parliament passes legislation for Wales that we consider is within the Assembly’s legislative competence. This has long been part of the normal working arrangements between the UK and Welsh Government and I fully expect this to continue. We will of course be issuing updated guidance to UK Government Departments to reflect the reserved powers model well before the new model is implemented.

One of the key aims underpinning the Wales Bill is to deliver much-needed clarity to the Welsh devolution settlement. The provisions in clause 4 are important in delivering that aim. The clause helps to draw a clear devolution boundary between what is reserved and what is devolved by defining clearly which public authorities are devolved and accountable to the Assembly and Welsh Ministers. Clause 4(1) inserts new section 157A into the Government of Wales Act 2006 to introduce devolved public authorities as “Wales public authorities”. All other public authorities are reserved authorities.

New section 157A(1) explains that Wales public authorities are those that meet conditions in new section 157A or those listed in new schedule 9A to the 2006 Act, inserted by schedule 4 to the Bill. The first condition in new section 157A(2) limits Wales public authorities to those bodies exercising functions only in relation to Wales. But there needs to be some flexibility in this rule because the Assembly can legislate in an ancillary way in relation to England, and can impose functions on devolved bodies in relation to England.

Subsection (3) makes it clear that such functions should be ignored in categorising a body as a Wales public authority. This flexibility ensures that devolved bodies—for instance, Natural Resources Wales—and regulation and inspection bodies for some devolved services can exercise some functions in England and still be Wales public authorities.

The second condition requires Wales public authorities to exercise functions that are not wholly or mainly reserved functions. Again this provides flexibility to ensure that devolved bodies with some reserved functions, like local authorities in Wales, can be Wales public authorities.

New section 157A(5) provides an order-making power to modify the list of Wales public authorities in new schedule 9A. An order is subject to scrutiny by both Houses of Parliament and the Assembly—which I think is a pretty good safeguard.

Clause 4 provides a clear separation between devolved and reserved bodies by defining the former as Wales public authorities and listing those authorities on the face of the Bill. It meets a key recommendation in the Welsh Affairs Committee’s pre-legislative scrutiny report.

Amendments 26 and 27 seek to expand the list of Wales public authorities in schedule 4 to the Bill to include the National Assembly for Wales Commissioner for Standards and the National Assembly for Wales Remuneration Board. The standards commissioner does important work as an independent authority appointed by the Assembly to safeguard standards and to address the public’s concerns. The Remuneration Board does similarly important work in ensuring that Assembly Members have the right resources to do their jobs properly. The provisions in clause 4, along with schedule 4, are intended clearly to define which public authorities are devolved and therefore which are reserved.

I understand that the Assembly’s Presiding Officer would like both these bodies included in the list of Wales public authorities for reasons of clarity. I would like to take some time to consider the categorisation of both bodies further and return to this matter on Report. That is not a rejection of the amendments, but we do need more time to consider the impact on the definition we have created in this measure. I hope that, in the spirit of that comment, the hon. Member for Dwyfor Meirionnydd will withdraw those amendments.

One of the Government’s key aims for this Bill is to deliver much needed clarity to the Welsh devolution settlement. Schedule 4 is important in delivering this aim, listing Wales public authorities to provide absolute clarity about those authorities that are accountable to the Assembly and Welsh Ministers. The Welsh Affairs Committee highlighted this as being needed in defining public authorities in this Bill, and I hope this revised Bill has delivered that clarity.

As the Government set out in our response to the Committee, we fully accept its conclusion that a list of reserved authorities would be long, and so the Bill includes a list of Wales public authorities that is far shorter and much easier to use, and which provides the clarity that was requested.

I therefore propose that clauses 1 to 4 and schedule 4 stand part of the Bill, and urge Opposition Members to withdraw their amendments.

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Environment, Food and Rural Affairs), Shadow PC Spokesperson (Education), Shadow PC Spokesperson (Health), Shadow PC Spokesperson (Women and Equalities) , Shadow PC Spokesperson (Energy & Natural Resources), Shadow PC Spokesperson (Local Government), Shadow PC Spokesperson (Justice) 2:30, 5 July 2016

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. 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.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Labour, Torfaen

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.

Photo of Liz Saville-Roberts Liz Saville-Roberts Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Environment, Food and Rural Affairs), Shadow PC Spokesperson (Education), Shadow PC Spokesperson (Health), Shadow PC Spokesperson (Women and Equalities) , Shadow PC Spokesperson (Energy & Natural Resources), Shadow PC Spokesperson (Local Government), Shadow PC Spokesperson (Justice)

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 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—