Wales Bill - Committee (1st Day)

– in the House of Lords at 4:20 pm on 31st October 2016.

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Relevant document: 5th Report from the Delegated Powers Committee

Clause 1: Permanence of the National Assembly for Wales and Welsh Government

Amendment 1

Moved by Lord Wigley

1: Clause 1, page 1, line 19, at end insert—“( ) A referendum under subsection (3) may only be held following a vote in the Assembly in favour of holding a referendum for the purpose mentioned in subsection (3).( ) The rules relating to any referendum held under subsection (3) must be drawn up by the Assembly in cooperation with the Electoral Commission.”

Photo of Lord Wigley Lord Wigley Plaid Cymru

My Lords, this amendment goes to the heart of the Government’s intentions relating to the permanence of the National Assembly. The Bill as it stands contains the words:

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

But what is the Government’s intention, and what do they really mean by those words?

I am aware that the introduction of those words follows a similar declaration in relation to Scotland’s Parliament—that it is a permanent part of the governmental system of that country. In Scotland, the demand for that grew from the Scottish assertion of a claim of right: that sovereignty in Scotland comes from the people. That is fundamental to the developments in that country over the past 25 years. It was central, indeed, to the initiative taken by the late John Smith when Labour leader, and it was the background to the Scottish convention which brought the question of a Scottish Parliament back on to the political agenda in the late 1980s.

I believe that this principle should equally apply to the National Assembly. As it was established—and later emphatically confirmed—by referenda of the people of Wales, it is only right that the National Assembly can be abolished only by the democratic vote of the people of Wales.

My amendment deals with the circumstances in which such a referendum can take place. I believe that it would be totally unacceptable if Westminster were to decide, against the wishes of the National Assembly, to hold a referendum on its abolition. That would make a total nonsense of the provisions in Clause 1 about the permanence of the Assembly. It would be a creature only in existence at the behest of Westminster. Equally, if the rules for such a referendum were drawn up by Westminster, there is no knowing what impediments might be contained within them. One has only to think back to the 1979 referendum, with its 40% rule, which meant that on a 50% turnout, there had to be a four-to-one majority in favour of the Assembly for it to be established. That rule applied in Scotland too, where, unlike Wales, there was a majority in favour of the Assembly, but it was overruled because of the 40% rule.

My amendment, therefore, does two things. First, it provides that the right and responsibility for holding any such referendum should lie exclusively in the hands of the Assembly itself. Secondly, Amendment 1 provides that the rules for that referendum should be drawn up by the Assembly in co-operation with the Electoral Commission. These two safeguards ensure that this Bill does indeed legislate for the permanence of the Assembly and recognises—as, I think, do all true democrats in this Chamber—that the future of the Assembly should lie in the hands of the people of Wales alone, and not be beholden to the whims and wishes of the Government of the day here in Westminster. As such, this is fundamental to our vision for the status and future of the Assembly. I ask the Government to accept this amendment or, if it is in any way technically deficient, to bring forward their own amendment on Report to reach these objectives. I beg to move.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

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

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Communities and Local Government, The Parliamentary Under-Secretary of State for Wales

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

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

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

Photo of Lord Wigley Lord Wigley Plaid Cymru

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

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Communities and Local Government, The Parliamentary Under-Secretary of State for Wales

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

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

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

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

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

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Communities and Local Government, The Parliamentary Under-Secretary of State for Wales

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

Photo of Lord Elis-Thomas Lord Elis-Thomas Plaid Cymru

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

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Communities and Local Government, The Parliamentary Under-Secretary of State for Wales

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

Photo of Lord Wigley Lord Wigley Plaid Cymru 4:30 pm, 31st October 2016

My Lords, I am grateful to the noble Lord, Lord Elystan-Morgan, for his contribution and my noble friend Lord Elis-Thomas for his intervention—I nearly said my erstwhile colleague.

Photo of Lord Elis-Thomas Lord Elis-Thomas Plaid Cymru

Call me whatever you want to.

Photo of Lord Wigley Lord Wigley Plaid Cymru

I will not in this Chamber.

There seem to be two central points that have not been properly resolved. The first relates to a declaratory statement in legislation. I suspect that that is not something regarded as a strong principle in the systems we run because when we start pressing them we find they do not mean much more than the paper they are written on. Of course this place could pass laws that reverse the force of gravity, but they would not mean anything. The question is what they mean by this, especially, as my noble friend Lord Elis-Thomas said, in the context of the legislative consent orders required for all the legislation where the Assembly is involved. The Assembly is involved in this legislation because it is the Assembly that would be at stake and which would be involved in the undertaking of the practical aspects of a referendum. The legislation would therefore require a legislative consent order. If the Assembly said no, is the Minister then saying that that would be overruled? If it can be overruled in those circumstances, how does the principle apply in others when the Westminster Government might feel ill disposed towards policies put forward in Cardiff? This needs more clarification than the Minister has given so far. I invite him to clarify it.

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Communities and Local Government, The Parliamentary Under-Secretary of State for Wales

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

Photo of Lord Wigley Lord Wigley Plaid Cymru

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

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

Amendment 1 withdrawn.

Amendment 2

Moved by Lord Wigley

2: Clause 1, page 2, leave out lines 1 to 6 and insert —“PART A2ESTABLISHMENT OF TWO DISTINCT JURISDICTIONSA2 Legal jurisdictions of Wales and of England The legal jurisdiction of England and Wales becomes two legal jurisdictions, that of Wales and that of England.A3 The law of Wales and the law of England (1) The law of England and Wales is divided into the law of Wales and the law of England.(2) All of the law that extends to England and Wales immediately before the coming into force of this section—(a) except in so far as it applies only in relation to England, is to extend to Wales (and becomes the law of Wales), and(b) except in so far as it applies only in relation to Wales, is to extend to England (and becomes the law of England).(3) In this section “law” includes—(a) rules and principles of common law and equity,(b) provision made by virtue of an Act of the United Kingdom Parliament or an Act or Measure of the National Assembly for Wales, and(c) provision made pursuant to the prerogative.(4) 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). A4 Senior Courts system (1) The Senior Courts of England and Wales cease to exist (except for the purposes of section A8 (3) and (4)) and there are established in place of them—(a) the Senior Courts of Wales, and(b) the Senior Courts of England.(2) The Senior Courts of Wales consist of—(a) the Court of Appeal of Wales,(b) the High Court of Justice of Wales, and(c) the Crown Court of Wales, each having the same functions in Wales as are exercisable by the corresponding court in England and Wales immediately before subsection (1) comes into force.(3) The Senior Courts of England consist of—(a) the Court of Appeal of England,(b) the High Court of Justice of England, and(c) the Crown Court of England,each having the same functions in England as are exercisable 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 Wales and the Court of Appeal of England,(b) Her Majesty’s High Court of Justice in England is the court corresponding to the High Court of Justice of Wales and the High Court of Justice of England, and(c) the Crown Court constituted by section 4 of the Courts Act 1971 is the court corresponding to the Crown Court of Wales and the Crown Court of England.(5) Subject to section A9—(a) references in enactments, instruments and other documents to the Senior Courts of England and Wales (however expressed) have effect (as the context requires) as references to the Senior Courts of Wales or the Senior Courts of England, or both; and(b) references in enactments, instruments and other documents 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.A5 County court and family court (1) The county court and the family court cease to exist (except for the purposes of section A8 (3) and (4)) and there are established in place of them—(a) the county court of Wales and the family court of Wales with the same functions in Wales as are exercisable by the county court and the family court (respectively) immediately before this subsection comes into force, and(b) the county court of England and the family court of England with the same functions in England as are exercisable by the county court and the family court (respectively) immediately before this subsection comes into force.(2) For the purposes of this Part—(a) the county court is the court corresponding to the county court of Wales and the county court of England, and(b) the family court is the court corresponding to the family court of Wales and the family court of England. (3) Subject to section A9 references in enactments, instruments and other documents to the county court or the family court (however expressed) have effect (as the context requires) as references to either or both of the courts to which they correspond.A6 Judiciary etc. (1) All of the judges, judicial office-holders and other officers of Her Majesty’s Court of Appeal in England or Her Majesty’s High Court of Justice in England become judges, judicial office-holders or officers of both of the courts to which that court corresponds.(2) All of 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 functions of both of the courts to which that court corresponds are exercisable except that (despite section 8(2) of the Senior Courts Act 1981)—(a) a justice of the peace assigned to a local justice area in England may not by virtue of this subsection exercise functions of the Crown Court of Wales, and(b) a justice of the peace assigned to a local justice area in Wales may not by virtue of this subsection exercise functions of the Crown Court of England.(3) All of the judges, judicial office-holders and other officers of the county court become judges, judicial office-holders or officers of the county court of Wales and the county court of England.(4) All of the judges, judicial office-holders and other officers of the family court become judges, judicial office-holders or officers of the family court of Wales and the family court of England except that (despite section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984)—(a) a justice of the peace assigned to a local justice area in England is not a judge of the family court of Wales, and(b) a justice of the peace assigned to a local justice area in Wales is not a judge of the family court of England.A7 Legal professions (1) Every legal practitioner who would (but for this Part) at any time after the coming into force of this Act be entitled to carry on a reserved legal activity for the purposes of the law of England and Wales, in proceedings in England and Wales or before the courts of England and Wales, has at that time the same entitlement for the purposes of the law of England and the law of Wales, in proceedings in England and proceedings in Wales and before the courts of England and the courts of Wales.(2) In this section-“legal practitioner” means every solicitor, barrister, notary, legal executive, licensed conveyancer, patent attorney, trade mark attorney, law costs draftsman, accountant or other person who, in accordance with the Legal Services Act 2007 (c. 29), is entitled to carry on a reserved legal activity;“reserved legal activity” has the same meaning as in the Legal Services Act 2007.A8 Division of business between courts of Wales and courts of England (1) The Senior Courts of Wales, the county court of Wales, the family court of Wales and the justices for local justice areas in Wales are to apply the law extending to Wales (including the rules of private international law relating to the application of foreign law). (2) The Senior Courts of England, the county court of England, the family court of England and the justices for local justice areas in England are to apply the law extending to England (including the rules of private international law relating to the application of foreign law).(3) All proceedings, whether civil or criminal, pending in any of the Senior Courts of England and Wales, the county court or the family court (including proceedings in which a judgment or order has been given or made but not enforced) must be transferred by that court to whichever of the courts to which that court corresponds appears appropriate.(4) The transferred proceedings are to continue as if the case had originated in, and the previous proceedings had been taken in, that other court.SupplementaryA9 Power to make further provision (1) Her Majesty may by Order in Council make provision (including provision amending or otherwise modifying any enactment or instrument, including this Act) that appears appropriate in consequence of, or otherwise in connection with, the provision made by this Part.(2) The provision that may be made under subsection (1) includes in particular provision relating to—(a) courts,(b) tribunals,(c) the judges, judicial officers and other members and officers of courts and tribunals,(d) the Counsel General or other law officers,(e) the legal professions,(f) the law relating to the jurisdiction of courts and tribunals, and(g) other aspects of private international law (including, in particular, choice of law, domicile and the recognition and enforcement of judgments and awards).(3) No Order may be made under subsection (1) unless a draft of the Order has been laid before, and approved by resolution of—(a) each House of the United Kingdom Parliament, and(b) the National Assembly for Wales.””

Photo of Lord Wigley Lord Wigley Plaid Cymru

My Lords, I am delighted to have the opportunity to move Amendment 2, which addresses an issue that has been widely debated in Wales: establishing distinct jurisdictions for Wales and for England respectively. I immediately acknowledge that I am not a lawyer by background. It is a matter of regret that Plaid Cymru does not have in this Chamber a Member with in-depth experience in the law. I beg the indulgence of noble Lords, in particular of noble and learned Lords, who are much more knowledgeable than me in these matters.

I also speak to the other amendments grouped with mine. Amendments 4 and 5 in the name of the noble Baroness, Lady Morgan of Ely, calls for a Justice in Wales commission to reveal whether the existing single jurisdiction of England and Wales should be divided in two, one for Wales and one for England. I shall also speak to Amendment 10 in the name of the noble Lord, Lord Thomas of Gresford, which calls for a commission on jurisdiction to examine the desirability of a separate and distinct legal jurisdiction in Wales. I await the cases that will be made by the noble Baroness and the noble Lord relating to their respective approaches to this matter, but should my amendment for any reason not be accepted, I would certainly regard their amendments as steps in the right direction that I would support.

I accept that there are divided opinions among lawyers on these matters. I suspect that a majority of legal people in this Chamber might not initially warm to my proposals. I ask any doubters to consider that there has already been keen debate on this issue within legal circles in Wales—the range of amendments being debated emanating from different parts of this Chamber bears that out. I ask noble Lords to accept that there are leading legal brains, such as Sir Roderick Evans and Winston Roddick QC, who have long campaigned in favour of Wales having its own jurisdiction. In his memorable Lloyd George memorial lecture in 2008, Winston Roddick stated, “My view is that a devolution settlement, by which the Assembly is given full legislative competence but not the responsibility for the administration of justice, would be dysfunctional, constitutionally unsound and demeaning to Wales’s developing constitutional status”.

In fact, the need to address the divergence between Wales and England was recognised long before primary law-making powers were devolved. In the first four years of devolution over 1,100 statutory instruments were approved by the Assembly. A very large proportion of these were unique to Wales or reflected distinct differences to those pertaining to similar instruments operational in England, with these differences reflecting the different circumstances of Wales. As long ago as 2004 Professor Tim Jones and Jane Williams wrote an article in which they stated that Wales was emerging as a separate jurisdiction that needed to be separately recognised. If that was true then, how much greater is that need now and how much greater again will it be in another five or 10 years?

Notwithstanding the force of these points I feel I should address wider and more general questions in justifying the change that I advocate. One might argue that the separate or distinct jurisdiction requires a defined territory, a law-making body within that territory empowered to make laws for it and a judicial system within it to administer those laws. However, discussion of a separate or distinct Welsh jurisdiction must have regard for the wider UK context. England and Wales, and Scotland and Northern Ireland, have their legal jurisdictions, but none of them is separate in a watertight fashion. The Scottish judicial system enforces laws made in Westminster, as it does laws made in Edinburgh. The same is true of Northern Ireland in the Belfast/Westminster context.

In addition, important elements of the tribunal systems that operate in each jurisdiction are organised on a UK or GB basis and function alongside intra-jurisdictional tribunals. There is also the Supreme Court of the United Kingdom, which sits at the pinnacle of the judicial system of each jurisdiction. A Welsh jurisdiction would not be separate in an isolationist sense, but would take its place alongside the other jurisdictions of the UK and therefore perhaps the word “distinct” is more appropriate.

A question concerning the difference between separate and distinct jurisdictions might be exercising some noble colleagues, and I understand that. What does it mean in practice? A distinct jurisdiction will consist of a unified court system, encompassing Wales and England, but applying two distinct bodies of law: the law of Wales and the law of England. The infrastructure is therefore in place, minimising costs. A distinct jurisdiction may over time grow into a separate jurisdiction and that will reflect the evolution of our devolved Government.

As I understand it, the case is based on the need for there to be absolute clarity with regard to the legal rectitude of a legislative action taken by the Welsh Government. This will build up over time in terms of the primary and secondary legislation passed, amended and no doubt sometimes annulled by the National Assembly, and by the plethora of court cases that over time will create the interpretive framework for such laws and regulations.

In the earlier years of devolution—the years through which we are living—there will no doubt be lawyers practising in Wales and England who will be able to keep a focused eye on the law and its interpretation on both sides of the border. As the years go by and the volume of relevant legislation accumulates, it will become increasingly difficult to ride both horses without slips and mistakes. In one sense there is already an embryonic Welsh jurisdiction. There are approximately 15 tribunals that function in Wales. I believe that one was actually created by the National Assembly itself. Responsibility for these rests with the Welsh Government.

A Welsh jurisdiction could have whatever structures and institutions it is decided are needed to best serve the interests of Wales. There is no template that has to be followed and a jurisdiction, once created, is not immutable. It can change and develop as needs dictate; for example, the present Northern Ireland jurisdiction is structurally different from that originally set up. Creating a jurisdiction for Wales is having a clean sheet of paper and deciding on what we need at this stage. It is the opportunity to create a structure that meets the demographic, geographic and linguistic needs of Wales and, most of all, its democratic needs in the context of our devolved legislature and its responsibilities.

I will now address the reasons for creating a Welsh jurisdiction. First, the argument cited most often, as I have mentioned, is that Wales is developing a body of law that is different from the law of England, and those differences will increase as devolution progresses. It is a good, valid and attractive argument but it is not the only one and not necessarily the most persuasive. The differences between the laws of Wales and the laws of England are unlikely ever to be fundamental. There are no differences so fundamental between the laws of Northern Ireland or Canada or Australia and, say, England and Wales that a judge could not come to terms with them.

Secondly, the refinement of the “different law” argument into constitutional terms is, to my mind, far more persuasive. The judiciary, as the third pillar of government, needs to be properly in place in Wales to support the progress of devolution and to act in relation to the Welsh Government as the judiciary in London acts in relation to Westminster. I contend that the joint jurisdiction has not served Wales particularly well. Institutions of the law from the courts to prisons have been developed according to templates set to accommodate the large cities of England and not the needs of Wales. The infrastructure of the administration of justice has never been developed on a whole-Wales basis. It is not acceptable that there is, for example, no Crown Court west of Swansea or between Swansea and Caernarfon, and no Crown Court between Merthyr and Mold. County courts and magistrates’ courts have been closed in a way that would be unthinkable if the jurisdiction was run from Cardiff. Wales is able to decide on the siting of its schools and hospitals but not its courts and prisons.

Thirdly, I contend that legal services are an important economic driver and the development of a jurisdiction in Wales would provide a boost to the Welsh economy, which would by no means be limited to the legal professions. Wales is treated for the purposes of the present jurisdiction as a circuit of England, and work from Wales goes to support employment and career structures in England. We need to maximise the opportunities for the brightest of our young people to work in Wales. That is what devolution should be about and it is as relevant in the context of the law as it is in other walks of life.

Fourthly, many positives could grow out of having a Welsh jurisdiction. It would be small and able to react quickly and effectively to the need for change. It could, for example, develop innovative rehabilitation initiatives, which are linked to responsibilities already devolved to Cardiff. The importance of this was recognised by Gordon Brown a few years ago. Following the Good Friday agreement, criminal law was a reserved matter and it continued to be until 2010. In a speech delivered on 16 October 2008, Gordon Brown, then Prime Minister, sought to encourage the Northern Ireland Assembly to seize the opportunities that the devolution arrangements offered, and he said:

“There is something more vital at stake for your entire society, something that only the completion of devolution can deliver. How can you, as an Assembly, address common criminality, low-level crime and youth disorder when you are responsible for only some of the levers for change, and when you have responsibility for education, health and social development but have to rely on Westminster for policing and justice? The people of Northern Ireland look to you to deal with these matters because to them they are important. Full devolution is the way to deliver better services, tailored to the needs of all communities, regardless of the politics. It is the best way for you to serve them”.

The fifth justification I would advance relates to the Welsh language. Although in recent years attitudes towards the use of Welsh in the administration of justice have changed for the better, nearly half a century after the passing of the Welsh Language Act 1967 we still have a system that is fundamentally English and which accommodates the Welsh language only when it has to. Welsh and those who wish to use it remain in an inferior legal position and this is something that we in Wales have to put right. There is a growing call for a distinct jurisdiction for Wales. Recently, a majority of witnesses at the Welsh Affairs Select Committee in the other place recommended that the diverging body of distinct Welsh law could be best served only by this distinct jurisdiction. Lawyers and constitutional experts alike reiterated the case to that committee that to establish a clear and lasting legal settlement for Wales, a distinct legal jurisdiction is necessary. Academic and constitutional expert Professor Richard Wyn Jones summed it up in a pithy and memorable phrase. He said that a Welsh jurisdiction represents,

“the constitution catching up with the legislative reality”.

The amendment which I have tabled is based on the wording proposed by the Government of Wales and supported by First Minister Carwyn Jones, himself a barrister. I understand that the Welsh Government have recommended this wording after taking expert legal advice on the matter. Emphasising the Welsh Government’s continued support for a distinct legal jurisdiction, the Counsel General for Wales and Labour AM, Mick Antoniw, this month described a distinct Welsh legal jurisdiction as an inevitability. He claimed that a distinct jurisdiction would also offer the National Assembly,

“an opportunity to develop a Welsh solution to … UK … reforms”,

which are widely seen as “reducing access to justice”. This facility would lead to tangible benefits for the people of Wales.

I would also point out, as the Minister well knows, that the Silk commission—of which he was of course a distinguished member—accepted that there would in due course be a pressing case for a Welsh jurisdiction, even if at this point in time the need is not so overwhelming. It recommended that a facility should be developed so that within a decade such a new structure could come into existence. It recognised that, over time, the case should become increasingly irrefutable as the body of Welsh law accumulates and public policies in Wales and England inevitably follow divergent paths. I am told that if we do not have our own distinct jurisdiction in Wales, we shall be the only legislature in the world that does not. That such a situation exists is a reflection of the practical need for such a facility.

Personally, I would have liked to see the Government taking the lead in this matter and bringing forward their own proposals in the Bill by way of provisions to allow for a distinct jurisdiction. If they cannot bring themselves to support my proposal or the facility offered by Amendments 4, 5 and 10, I believe that they should at the very least bring forward on Report a new clause providing for an order-making facility which could be triggered when there is general recognition of the need for distinct jurisdictions, without the need for yet another Wales Bill. I believe, as did the Silk report, that this will be the case within a decade. The growing importance of this issue was recognised by the House of Lords Committee on the Constitution in its report last week, when it pressed the Government to keep the issue “under review”, in its words.

Let us for once look forward and thereby avoid the need for a whole series of Wales Bills demanding legislative time at Westminster. I ask the Minister to consider this between now and Report if the Government cannot accept my amendment today. I shall look forward to the contribution of colleagues far more knowledgeable than me in these matters and I beg to move.

Photo of Lord Dear Lord Dear Deputy Chairman of Committees 4:45 pm, 31st October 2016

At this stage, I should advise the Committee that if Amendment 2 is agreed to, I cannot call Amendments 3 and 4 by reason of pre-emption.

Photo of Lord Crickhowell Lord Crickhowell Conservative

My Lords, I am enormously grateful to the noble Lord, Lord Wigley, for putting forward his amendment in the form that he has. He has produced a very long and complex amendment to be added to a very long and complex Bill—too long and complex, in the view of many of us. It is interesting that, by doing this in Committee, he did not attempt to do as one normally would when introducing a matter of this complexity: to go through the detail of the proposal he was putting forward and the wording that has been suggested, which he told us originated with the Welsh Government.

I am glad that one of the things the present Government have decided to do is to revert to a system where we have Green Papers, White Papers, draft Bills and pre-legislative scrutiny. That is the proper way to proceed with legislation.

Clearly, it is quite impossible in a short Committee stage in this House to go through any process of that kind, so while I understand why the noble Lord wants to put the case for a separate jurisdiction of this kind, I suggest to him and to the Committee that it cannot possibly be sensible to proceed in the manner he suggests. Indeed, the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Thomas of Gresford, have each tabled amendments which seem to try to place in legislation the working party which has already been established by the Government to look at this matter with calm deliberation and come forward with proposals for the future. That seems a sensible way forward. Translating the undertaking already given by the Government into some form of legislative commitment, as suggested by the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Thomas of Gresford, may well be a possible solution, and I am not coming out against that.

I note that in Committee in the other place the Minister replying on behalf of the Government confirmed that the working group had been established and said that it would report in autumn 2016. We are well into autumn 2016. Surely if there is to be a report, it should be produced to this House during the Committee stage, not when we have completed it.

While I understand the fervour and enthusiasm with which the noble Lord, Lord Wigley, has advanced his case, it seems to me that he has produced compelling evidence for why we should not proceed in the way that he suggests in this amendment and that we should follow the line set out by the Government in their working party and possibly consider the proposals put forward by the noble Baroness and the noble Lord to which I have already referred.

Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers

My reason for speaking at all is that I had the privilege of sitting in the Supreme Court of the United Kingdom in the first devolution case that came before that court from Wales. I think I was the first judge ever to use the phrase “Welsh law” because it seemed to me, even at that very early stage, that a body of law was in the process of developing which deserved to be recognised as such. For that reason, I am glad to see new Section A2 inserted by Clause 1, which recognises that there is a body of Welsh law. I am entirely in sympathy with that.

I am also broadly in sympathy with the broad thrust of the points made by the noble Lord, Lord Wigley. I have sympathy with him partly because I come from Scotland, which has its own system of law which was guaranteed when we entered into union with England to create the United Kingdom. It was part of the deal between the two countries that the Scots law that had evolved would continue to exist. We had the advantage of our own body of law, which was developed largely with the assistance of jurisprudence in the Netherlands and France. It was a different system of law from that of England. It was recognisably different, and it required different judges. That is not a requirement for the kind of jurisdiction that the noble Lord, Lord Wigley, is asking us to consider. There is not that kind of difference between Northern Ireland and England; their common law is basically the same. But the fact that they are different jurisdictions recognises the important difference of outlook between these two countries in the way their laws are developed.

Although I have said I am in sympathy with what the noble Lord, Lord Wigley, has said, I am bound to say that I find his amendment goes too far and too fast. It is asking us to take an enormous step without any assurance that there exists yet enough Welsh law to justify what would be done and as to whether we have the manpower and womanpower to create the judicial positions being contemplated. My preference, in sympathy with what the noble Lord, Lord Crickhowell, said, is for Amendments 5 and 10—I am not sure I mind particularly which of them—which would be a step towards considering, in a little more detail and at more leisure, how this matter should be handled. The noble Lord, Lord Wigley, will of course say, “That’s going to mean another Wales Bill”, but I am afraid that might be the price to pay for moving at the proper pace to make sure that the systems are properly designed. I would like to see a development of that kind, but it needs to be very carefully worked out, bearing in mind all the things that other noble Lords will no doubt say about the difficulty of creating a Welsh Bar, which will provide the essential requirements for the judiciary to develop.

I would also like the Government to consider whether their recognition of the body of Welsh law as the law made by the Assembly and Welsh Ministers itself goes far enough. I do not have an amendment to that effect, but the fact is that judges help to make the law too. The Supreme Court of the United Kingdom, which after all looks at Wales through the devolution system and has had Welsh lawyers appearing before it, has its own part to play in creating Welsh law, as I attempted to say in my opening remarks. I intervened really to support the noble Lord, Lord Crickhowell, and I hope, in a way, to support the noble Baroness, Lady Morgan, and the noble Lord, Lord Thomas of Gresford, in what they are about to say.

Photo of Lord Elis-Thomas Lord Elis-Thomas Plaid Cymru

My Lords, I am happy to follow the noble and learned Lord, Lord Hope, and his references both to the concept of Welsh law and to its meaning in the context of this Bill. I also say to him that I suspect there will be many more Wales Bills as a result of this Bill if it goes through in its present form. Our successors will be here debating these matters further.

The point of my small amendment in this group, Amendment 3, is to clarify that the law of Wales is more than what is made in the National Assembly for Wales, or indeed in this place as English and Welsh law, or by the decisions of the judiciary, since law is developed as the noble and learned Lord indicated. In this sense, the Explanatory Memorandum is much more informative than what is in the Bill itself. Paragraph 25 of the commentary on the provisions of the Bill makes it clear that:

“Subsection (1) confirms that there is a body of Welsh law made by the Assembly and Welsh Ministers. The law made by the Assembly and Welsh Ministers is … only part of the law that applies in Wales”.

I believe the noble and learned Lord, Lord Hope, made that point: the law of Wales is much broader, both historically and currently, than what is set out in the Bill. It is for that reason that I ask the Government to consider whether they can look for a wording that is more explanatory and of greater legal standing than that which they have currently adopted.

I will also quote, as I often do, my friend and mentor, the Reverend Professor Thomas Glyn Watkin. He told the National Assembly’s Constitutional and Legislative Affairs Committee, of which I was then a member, in evidence quoted as part of the committee’s report on the Bill:

“My own view is that there is now within the legal system of England and Wales three bodies of law that can be recognised: a body of law that applies only in Wales, a body of law that applies only in England and a body of law that applies in both countries. I think the legal system needs to adapt itself to that new reality, a reality that is growing as the body of law that applies only in Wales and the body of law that applies only in England increase in size”.

Turning again to the issue of jurisdiction, which my noble friend Lord Wigley so clearly set out in the context of his amendment, there is a link between the complexity of the Bill and the move to preserve a single and undifferentiated jurisdiction. It was made clear to us in the Assembly committee, both in a special seminar convened as part of our scrutiny of the Bill and in evidence, as we stated in our report at paragraph 28:

“It is clear to us that the UK Government’s policy to preserve the single jurisdiction has resulted in much of the complexity within the Bill”.

That is why I believe the Government will have to address this issue either tonight, next Monday or on Report. I absolutely agree with the noble Lord, Lord Crickhowell, that the complexity of the Bill is linked to the whole issue of the lack of flexibility on jurisdiction.

Photo of Lord Judge Lord Judge Judge 5:00 pm, 31st October 2016

My Lords, as a former Lord Chief Justice of Wales and England, I want to make just a couple of points. The word “normally” in Clause 2 is a weasel word. It does not mean anything very much in legislative terms. I am perfectly well aware that it is in the Scotland Act, but what is this supposed to mean:

“the Parliament of the United Kingdom will not normally legislate”?

Who decides what is normal? If the Parliament of the United Kingdom decides, the Assembly is ruled out.

I am particularly concerned about Clause 2 in the context of Clause 53—

Photo of Lord Judge Lord Judge Judge

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

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

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

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Shadow Spokesperson (Wales)

My Lords, I tabled Amendments 4 and 5 to establish a justice commission for Wales. Like the noble Lord, Lord Wigley, I apologise for not having the legal background or brilliance of the noble and learned Lords, Lord Hope and Lord Judge, to speak as I would like on the amendments, but I will do my best.

The noble Lord, Lord Wigley, made some relevant and serious points which need to be considered. It is premature to establish a separate legal jurisdiction for Wales, but there is without question an issue that needs to be addressed. I shall briefly summarise the background and explain why the commission is needed and what it would achieve.

There is clear consensus among constitutional and legal experts that there is a problem here that must be addressed. The creation of the National Assembly as a legislature with primary legislative powers, operating within a single jurisdiction of England and Wales, creates a situation which will throw up difficulties in the medium to long term. That single legal jurisdiction, to quote from those who have promoted this Bill in the other place, “has served us well”. Yes, it may have done that, but it has served us well in different times. It served us well when the laws that applied across England and Wales were the same laws—when this place was the only legislature that could enact the laws of the jurisdiction. That is no longer the case and has not been for some time.

It is worth emphasising the point made by the noble Lord, Lord Elis-Thomas. There is no question but that the UK’s Government’s anxiety to protect the joint jurisdiction is the source of many problems in the Bill. We accept that some constraints have been removed, but there remain many reservations and restrictions whose primary purpose is to protect the consistency of law across England and Wales. The problem is that that consistency no longer exists: the horse has already bolted. The reality is that there is already a growing divergence of law which is the inevitable consequence of legislative devolution. The law on education, planning, the environment and social services is now fundamentally different in Wales. Without reform of the jurisdiction to reflect this divergence, there are risks to the rule of law and the administration of justice. By necessity, a single jurisdiction involves a single body of law that extends across its territory. A single jurisdiction implies that the law is the same across that territory. The laws of England and Wales—already vast—must now absorb the increasing divergence between laws that apply only to Wales and those that apply only to England. This is highly complex, so how can we be sure that the citizens will understand the law or even that solicitors, barristers and judges will apply the correct law? This is not a debating point: these are real practical risks and they are increasing.

This issue demands a serious response and the UK Government see no need for concern on the grounds that this single jurisdiction has served Wales well. That misses the point. The shared jurisdiction served Wales well for four and a half centuries when Wales did not have its own legislature. That is no longer the case. The single jurisdiction is out of sync with the way that Wales is governed. It has not caught up with reality. But it is okay, because we have a glimmer of hope. All is going to be fine because the Ministry of Justice has set up a working group—what in Wales we call a committee—of Whitehall officials. The noble Lord, Lord Crickhowell, referred to this. Its birth was not auspicious: it was a party to which the Welsh Government were apparently invited but had not received their invitation. Never mind: it has now met, but we and the Welsh Government are in the dark as to its progress. Will the Minister enlighten us on some key points in relation to that working group? How many meetings has the group held? What engagement has there been with legal practitioners who understand the day-to-day realities of practising law in Wales? What is the work programme and when can we expect to see the report? Will we have it before Report stage?

It is an incredible coincidence that today, when we are debating this, the Welsh Government have received an invitation to the working group’s second meeting. That is great news, but we should be concerned that that progress is not a serious way of demonstrating a commitment to the fundamental importance of this work. This is why we think it is important to bring forward a commission on which the Welsh Government have equal status and to which they are able to bring their expertise and that of those who have real knowledge of the Welsh justice system. We have no confidence that this informal working group will be capable of producing a serious response to the challenges I have outlined. Maybe it will: let us see if we can see something before Report stage. It is important to have a much more credible mechanism for taking this issue forward which will be independent of government and consist of senior judiciary and other practitioners who already have the authority and expertise required. Such a mechanism would provide a forum for developing solutions to problems that cannot be avoided and would be transparent in producing an annual report on progress against an agreed remit.

For all its flaws, one of the positive impacts of this Bill is that we have had to focus our minds on this key issue. It is clear that the single jurisdiction is no longer fit for purpose in its current form. What exactly should come in its place and how it should operate are questions that necessitate detailed analysis of the situation and the evidence of the problems caused. Much thought needs to be given to what is the right way forward. The relevant body should comprise those with most experience of the problems, and legal and constitutional experts adept at finding solutions. These problems will not go away. The proposed commission would provide a mechanism for addressing them. That is the purpose of this amendment. I hope that the Minister will support it.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, those of your Lordships who were here at Second Reading will recall that I told the House that when I was in my 20s and full of ambition and great principle, I thought that it was necessary, when drafting a Bill for the parliament of Wales back in 1967, to have a separate Welsh jurisdiction to determine the laws that that parliament would pass. As I indicated at Second Reading, I have changed my view; I think it is a matter of complete practicality. I disagree with the noble Lord, Lord Wigley, who said that the joint jurisdiction has not served Wales well. There is no joint jurisdiction. There is a single jurisdiction and it has operated over four centuries to provide the same standard of justice in Wales as in England. When he was called on to give an example of where it goes wrong, he talked about courts, as though a Welsh parliament would create new Crown Courts west of Swansea or in mid-Wales and would have the funds, judicial power and practitioners to man such a system. It is purely a practical question. To demonstrate that, I quote from the noble Lord’s amendment. Under the heading “A6 Judiciary”, the amendment states:

“All of the judges, judicial office-holders”,

and others,

“become judges … of both … courts”— that is, the existing judges would continue to operate in both England and Wales. The amendment then proposes:

“All of 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 functions of both of the courts to which that court corresponds”.

In other words, practitioners and judges in criminal courts could operate in both England and Wales. Where is the separate jurisdiction in that? Proposed new Section A6(3) states that all the existing judges and others should become judges in the courts of both England and Wales. The same situation is proposed for family courts and the legal profession. Therefore, the proposal put forward by the noble Lord, Lord Wigley, is that existing judges and practitioners should operate in the courts of both countries. How could that be possible if there were such a distinct and arcane system of Welsh law that only Welsh practitioners could understand it? Lawyers are accustomed to dealing with separate parts of the law, whether it is Welsh law, administrative law, the law relating to trusts or whatever. Practitioners and judges deal with differences between the laws passed by the parliament in Wales and those passed by the Parliament in England. There is no problem with judges doing precisely that. At the moment an Administrative Court sits in Wales and deals with legislation passed by the Welsh Assembly quite adequately—the Lord Chief Justice and an old friend of mine, Mr Justice Wyn Williams, sat in such a case last week—and no problem arises from that. However, the hare has been started, and for that reason I have advanced, as a matter of practicality, my Amendment 10.

The noble Lord, Lord Crickhowell, and other noble Lords referred to the working party that has been set up to consider the question of a separate jurisdiction, which has met only once so far, as we understand it. There is no transparency about what it does or about the appointment of its members, and no suggestion as to when it will produce a report that will be of any use. The noble Lord, Lord Crickhowell, hoped that it would be received this autumn before we finish these proceedings; I very much doubt that that will happen if it has met only once so far and has not met the Welsh Government at all, as the noble Baroness said a moment ago. I suggest that a body of commissioners should consider the issue—it is a live issue in Wales, so let there be a body to consider it—but that it should take evidence in public so that everybody can hear what is being talked about and it does not happen behind closed doors. The Welsh Government and the academics of Wales can give such evidence as they think fit, it can be tested and considered, and ultimately a report should be produced within three years of its constitution to deal with the problem that has been put forward.

The amendment put forward by the noble Baroness, Lady Morgan, suggests a sitting commission that continues for all time, so that the issue is never put to bed. To my mind, this issue has been raised so it should be dealt with properly and considered, a report should be put forward, and if legislation follows from that so be it. However, from a purely practical view based on years of experience as a member of the Wales and Chester circuit and as someone who has dealt with the law on both sides of the border and had experience of other jurisdictions abroad, in the Far East, Jamaica, Trinidad and places like that, I believe that a separate and distinct jurisdiction for Wales is not necessary and should not be followed through.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench 5:15 pm, 31st October 2016

My Lords, I support the amendment in the name of the noble Lord, Lord Wigley, with all the Celtic fervour that I can muster. The principle is undoubtedly a proper one, but the technicality is narrow. Some arguments turn upon the existence of Welsh law—its distinctive character—and they are not without their merit. However, that to my mind is not the issue, which is the juxtaposition of a parliamentary jurisdiction and a court jurisdiction. I would go so far as to say that there is something wrong with the constitutional geometry of the situation where more than one parliament operates within the sphere of one legal jurisdiction. That is the essence of it.

Even if there was no difference whatever between Welsh and English law in this matter—and we know there is—it would still be the case, parliaments having the inimitable bent to go their own way, that to have two or more parliaments operating within a single jurisdiction is wrong. I think I heard the noble Lord, Lord Wigley, say that he doubted whether there was any situation in the whole world where that is so, but I ask the Minister—not perhaps in his ministerial capacity but in his capacity as a very distinguished professor of law—whether in any democratic system in the world there is an instance of two parliaments operating within a single legal jurisdiction.

Having said that, I appreciate that there are difficulties, and I have profound respect for what has been said by the noble and learned Lords, Lord Hope and Lord Judge. A great deal has already been started and been done. The Administrative Court has been referred to and it is undoubtedly a success. In addition—I think that the noble and learned Lord, Lord Judge, had a great deal to do with this—the civil and criminal divisions of the Court of Appeal were given every encouragement to meet in Wales, and they did so on many occasions.

There are many trends of that kind; nevertheless, the basic problem still has to be met. We have already heard of the situation in Scotland and Northern Ireland. The Isle of Man, Guernsey and Jersey have their own parliaments and their own jurisdictions. As a matter of legal purity, there should never be a situation where more than one parliament operates within one jurisdiction. Having said that, I appreciate that there are practical difficulties.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, I joined the Wales and Chester circuit of the Bar 45 years and two months ago. I went to chambers in Chester, where my noble friend Lord Thomas of Gresford was already well established, and I confess that I learned a great deal from him, almost all of it good. It is therefore with a good deal of pleasure that I rise to support his amendment.

I have some sympathy with the noble Lord, Lord Wigley, in his aspirations for Welsh institutions, but I fear that I have to come to the same conclusion as my noble friend Lord Thomas—that what he proposes is not needed and nor would it work. Speaking only for myself, I suspect, I have long been in favour of the creation of a separate Wales division of the High Court to cover civil and criminal proceedings. Although a great deal has been done, which I shall mention in a moment, we still do not quite have that formal division. In my view, that would be an excellent measure, well understood, and it would possibly allow Wales to have some appointments that would be appropriate to such a division, such as a presidency of the division—there are presidents of the other divisions of our senior courts. I think that that would be met with approval throughout the legal profession in Wales, although, as I shall set out in a moment, it is not necessarily those in the legal profession who are the right people to decide these things.

I join in the tribute that has been paid to the noble and learned Lord, Lord Judge, who as Lord Chief Justice did a great deal to give the Welsh jurisdiction an identity which previously it had not had for several hundred years. Of course, as I think my noble friend said at Second Reading—I have certainly heard him say it in your Lordships’ House—there used to be a chief justice of Wales. Indeed, he and I appeared at the Chester city quarter sessions, in the building of which there is a large portrait of a former chief justice of Wales—the well-known Lord Jeffreys or Judge Jeffreys. He is not necessarily the best precedent for such an appointment; nevertheless, there is that precedent. There could be a president of a Wales division, although not in a Jeffreys-like way—who, by the way, was not half as bad as history has made him out to be. Of course I will give way to my noble friend.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

Your Lordships will appreciate that I was born in Acton on the Jeffreys estate.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

I am delighted to hear that. My noble friend’s sense of justice certainly does not in any way imitate that of Lord Jeffreys of the Bloody Assizes.

However, what I am suggesting is that the presidency of a Wales division of the High Court would have real attractions within Wales.

I would also like—I know that the noble and learned Lord, Lord Judge, would associate himself with this—to praise the actions of the current Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, who was born in south Wales and has frequently reminded us of that fact. Indeed, the noble and learned Lord, Lord Thomas, has evolved what was introduced by the noble and learned Lord, Lord Judge, and given further credibility to the respect that is given to Wales as a jurisdiction where relevant and appropriate.

One group who have hardly been mentioned in this debate is the poor old litigants who go to law in Wales. I had the great privilege of representing Montgomeryshire as its Member of Parliament for 14 years. It sits on a long stretch of the Welsh border. It is quite common for a customer to walk into an estate agent in, say, Llanfyllin, and negotiate the purchase of the property in another branch of that estate agency in Shrewsbury. It is very common—I may have done it myself—to go and look at a new car in Welshpool, but negotiate the price of that new car with somebody in Shrewsbury or some other English town. It is important for Wales that we develop as strong a financial services industry and venture capital industry in Wales as possible, but we need those English and foreign investors who want to take part in such transactions to have the confidence that they work in a predictable legal environment.

This is my final example, although I could give dozens. We need to be sure that those who face a trading standards dispute that arises with a company that operates both in Wales and in England should not have to be faced by someone like myself scratching their expensive head in chambers and saying, “Oh, we’ve got a private international law issue here; a conflicts of law issue on which I will have to write you an extremely learned opinion”—at whatever my hourly rate for the time being happens to be. I do not think that we should inflict those disputes and problems on litigants. Inevitably, that is what would happen after time.

There are many common law jurisdictions around the world and they of course pay enormous respect to the decisions of what was formerly the House of Lords and is now the Supreme Court, and which pay lower levels of respect to senior courts as you go down the hierarchy of courts. But inevitably there would be judgments in a separate Welsh jurisdiction that would be inconsistent with judgments in the English jurisdiction or any other common law jurisdiction such as the Scottish jurisdiction—which as the noble and learned Lord, Lord Hope, knows, has a different origin—or for that matter the jurisdiction in Northern Ireland.

While I would not wish to leave things necessarily as they are and I welcome the proposal made by my noble friend of a detailed and one-off review, creating a completely separate set of law for Wales would be to turn the clock backwards rather than forwards and would have damaging effects on potential litigants in Wales and on the economy of Wales

Photo of Lord Deben Lord Deben Conservative

My Lords, we are present at one of the most unusual occasions that I can remember. This is an occasion on which lawyers almost universally want to have a less complicated system in which they are less able to find reasons for charging people more money for doing more work. As the House knows, I have a particular penchant for intervening in debates that are largely among lawyers because it is important that they should not be allowed to have unique control over the way in which the law is worked. It therefore pains me to say that I am entirely on the side of the well-argued case put by the noble Lord, Lord Thomas of Gresford. He has explained exactly why there was no need to go down this route.

However, there is one thing that I hope my noble friend will help me with. I do not understand why the Government have set up a working party at this point which it appears will not report in a way that can help this House and which appears to be dilatory in the invitations it has issued. My concern reflects a point raised by my noble friend Lord Crickhowell: this House deserves better. I would like to know what the working party concludes. It would be easier for us to make proper decisions were the working party to have given us its information before we make them. The reason I have risen to speak is not only because of my long-standing interest in Welsh affairs, but because this House is very often treated rather poorly by the system. If we are to do the job of careful examination of Bills properly, we should have the information beforehand and not be told that there is a working party which will report afterwards. By then we will have missed the opportunity of being informed and doing our job properly.

I hope that my noble friend will not take it amiss, but this is a case which I have had to raise constantly in this House because it has become something of a habit not just of this Government but of previous Governments—to suggest that because they are having discussions, it does not count that we cannot have discussions as a result of their discussions. Discussions between civil servants, however noble, are not the same as discussions between parliamentarians, so we ought to have the information before we finalise our views.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 5:30 pm, 31st October 2016

My Lords, I rise to make a brief point which I believe will be of practical importance. Some three years ago I gave evidence to the Constitutional Committee of the Welsh Assembly. It was my view that while there was undoubtedly a growing body of Welsh legislation the time was not yet ripe to deal with it in the way proposed by the noble Lord, Lord Wigley. There will come a time when we will have to grapple with it but it is certainly not a matter of urgent importance now and there are serious practical points of difficulty in moving in that way.

I say this against the background that so much has been done in an administrative way; I join in the tributes paid to the former Lord Chief Justice, the noble and learned Lord, Lord Judge, who moved so much of the work of the higher courts to Wales, followed by the present Lord Chief Justice, Lord Thomas of Cwmgiedd. The work has been done and it has met many of the problems, one of which is that more cases of this kind should be set down in Wales. The process should start there as opposed to being started in London.

The serious issue is the consolidation of legislation already passed by the Welsh Assembly. Over the years that the Assembly has been in existence, Act after Act has been passed, particularly during the most recent period. Any practitioner, be they in Wales or in England, who has to advise a client in Wales on a matter arising in Wales concerning property, employment and so on, has to turn up a whole host of literature in order to give proper and responsible advice, otherwise he will be accused of being negligent. I hope that before it is too late the Welsh Assembly will use its powers and resources to consolidate the existing legislation and thus make it easier for practitioners and ordinary litigants.

Photo of Baroness Randerson Baroness Randerson Liberal Democrat Lords Spokesperson (Transport)

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

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

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Communities and Local Government, The Parliamentary Under-Secretary of State for Wales

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

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

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

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

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

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

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

Photo of Lord Wigley Lord Wigley Plaid Cymru 5:45 pm, 31st October 2016

My Lords, I am grateful to the large number of colleagues who have participated in this debate: the noble Lords, Lord Crickhowell, Lord Elis-Thomas, Lord Thomas of Gresford, Lord Elystan-Morgan, Lord Carlile and Lord Deben; the noble and learned Lords, Lord Hope, Lord Judge and Lord Morris of Aberavon; and the noble Baronesses, Lady Morgan of Ely and Lady Randerson. A common thread that appeared to run through it was a recognition that, in the Minister’s own words, we have an evolving situation. It is a situation that is under scrutiny by virtue of the body that is looking into the matter. As the Select Committee on the Constitution, of which the noble and learned Lord, Lord Judge, is a member, reported last week, there is a need for the Government to keep a constant eye on this evolving situation to see how it is working out. As the Silk commission recognised, there may be a need in due course for a change in law to accommodate the structures that are necessary so that there is a system working in Wales that reflects our own legislation and growing body of law. To the noble Lord, Lord Carlile, who cited cases, I say that, irrespective of the complexity of crossing the border, decisions will be taken within the framework of one set of laws or the other. The body of law in Wales is there; it is growing and it will continue to grow. Therefore the need to accommodate it will be there, however it is done. It may not be possible to do it by virtue of my proposals here, although the Welsh Government have also supported it. As the noble Lord, Lord Thomas, recognised, there is a need for a perhaps one-off review along the lines that the noble Baroness, Lady Morgan, proposes in her amendment. In other words, there is a general acceptance that it will need to be accommodated.

I hope the Minister will be able to tell the House that if it is not possible to do it within the framework of this Bill, as it seems it will not be, given the timescale for Report, the Government will be open to the possibility—if legislation is needed, and as the noble Lord, Lord Elis-Thomas, said—of further Wales Bills. I would rather that this could be dealt with now, but there may be a need to legislate by virtue of the facts that have been presented to this Committee. The point made by the noble Lord, Lord Elystan-Morgan, that we are the only place in the world that will have its own separate legislature but not its own system of jurisdiction to run in parallel with it, was not refuted. That must tell us something, and it should inform us, as experience unrolls in Wales with regard to the workings of the Assembly and the body of our law, that we may need to do something about it. I hope the fact that it has been raised today will serve to ensure that a focus is kept on these issues and is not allowed to die away, and that at the appropriate time—and there will come a time when this needs to be acted on—there will be no shying away from the needed legislation if that is what best serves Wales and these islands generally. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendments 3 to 5 not moved.

Clause 1 agreed.

House resumed.