Oral evidence: Pre-legislative scrutiny of the draft Wales Bill, HC 449Monday 9 November 2015
Oral evidence, 9 November 2015.
Witness
William Graham AM, Chair of the Enterprise and Business Committee of the National Assembly for Wales, gave evidence.
Chair
Mr Graham, thank you very much indeed for joining us this morning in your capacity as the Chair of the Enterprise and Business Committee. I have just been told that Alun Ffred Jones’s flight has been cancelled, so he might not be able to join us at 10.30. You may well have other things to do at 10.30 anyway so I do not want to let things overrun on that basis. May I start by asking your overall view of the Bill? What is good and bad and what would you change if you had the ability to do so?
William Graham
Thank you very much, Chair, for your invitation to come here today. My Committee was able to discuss it briefly last week and the Clerk has prepared some notes from that. The overall assessment of the Bill is very much that it is a work in progress. There are a lot of clarifications that the Committee would like to learn more about. It welcomes the devolution of ports policy, taxi regulation and speed limits. Those are all welcome and are all pretty well defined. I suppose we are looking again at the tests that the PO has suggested of clarity, workability and no roll-back. That is a concern. We looked at the reservations—I have no doubt that that will come out in questioning—as well as the necessity tests. Perhaps the second part will look at specifics. The overall assessment is that it is welcome. There has been a great deal of consultation on the Bill, in terms of the call for evidence with Silk, and then the consultation, negotiation, re-consultation, renegotiation—and we haven’t even reached the amendment stage yet—so I take the view that this is very early days.
Mr Mark Williams
You are right that it is very early days; this is the second hearing of the Committee in our pre-legislative scrutiny work, so there is a long way to go. Bearing in mind the work you and your officials have done to date, are there specific measures in the draft Bill’s schedule of subjects reserved to Westminster that take away power from this place? Do they affect any of your Committee’s powers to scrutinise? Have you picked up on any specific areas that represent a move away from devolution?
William Graham
Perhaps I may refer to the notes, because this is a somewhat complex area for non-legal Members. We looked at tests. I suppose the particular reservations were on trade and industry, transport and employment. I will start with trade and industry and reservation C6, on consumer protection. The current exception prevents the Assembly from legislating on consumer protection, the sale and supply of goods to consumers, consumer guarantees, hire purchase, trade descriptions, advertising and price indications. What we are looking at there is the additional words, “supply of goods and services to consumers”, which is a new concept and is narrower than the current exception. We ask for further clarification on that. The new settlement includes the wording: “Safety of, and liability for, services supplied to consumers.” We see that as a reduction in terms of the Assembly’s competence. Again, it would be helpful if the scope of those reservations could be explained at a later date. On the wording of the reservation relating to the regulation of estate agents, this list is an exception, currently in schedule 7, so, again, this reservation might well reduce the Assembly’s competence. In terms of reservation C7, on product standards, safety and liability, the new settlement reservation refers to: “Technical standards and requirements in relation to products in pursuance of an obligation under EU law.” It is not clear whether that reservation will have the effect of preventing the Assembly from making legislation that engages the technical standards directive. Further clarification is needed on the meaning and scope of the words: “The national accreditation body and the accreditation of bodies which certify or assess conformity to technical standards in relation to products or environmental management systems.” You see, we are getting into pretty technical stuff very early in our comments. On reservation C12—
Chair
Sorry, may I stop you there?
William Graham
Do you want me to go into this level of detail?
Chair
Probably not, otherwise we will run out of time.
Mr Mark Williams
It would be very helpful to the Committee if you could write to us about the work that has been undertaken.
William Graham
Quite so; we will do so.
Mr Mark Williams
A certain body of work has been done. It is ongoing—we all acknowledge that—but what is your instinct when reading that list? You are talking at the very least about a lack of clarity, and quite conceivably about powers being lost from this place and taken back to Westminster. As a Member of this place and the Chair of a significant Committee here, what does your instinct tell you?
William Graham
You have really touched on the main point. There is a great deal of suspicion that powers are to be taken back from the Assembly. I don’t quite have that opinion myself, but that is the general view. That is the problem with many issues in the Bill. We require a great deal more clarification on items that are generally welcomed in order to be sure that the powers that we currently have remain.
Mr Mark Williams
There has been a lot of criticism of the restriction that will mean the Assembly can change private and criminal law only so far as is necessary to give effect to a devolved purpose. Again, the assertion is that that could lead to a further reduction in the Assembly’s powers. What are your reflections on that?
William Graham
As much as it affects this Committee, it is not particularly worrying, so long as the clarification on those areas of law which we presently hold remains.
Chair
Thank you. I have a few supplementaries. Antoinette is first.
Antoinette Sandbach
Thank you. William, is it your view that your Committee and the Assembly generally have the resources to scrutinise the additional powers devolved? Obviously there are substantial powers coming in relation to roads, transport and other areas, so, as a Committee Chair, what is your view?
William Graham
I think the way in which the secretariat, particularly to both the commission and the Welsh Government for that matter, has gained much greater experience over the last 15 years fills me with hope that all these new measures will be well able to be properly scrutinised.
Antoinette Sandbach
You have obviously just given a list and I would be very grateful if, when you write to the Committee, you can indicate where, in the conferred powers model, you say those powers were conferred on the Assembly originally. You came up with a specific list that is clearly reserved, but can you identify where in the Government of Wales Act those powers are conferred from?
William Graham
I am grateful to my Clerk for preparing for such issues, because we intend to write to the Secretary of State to ask for clarification on those matters. I will be delighted to make that available to the Committee.
Christina Rees
A short supplementary. Going back to resources, do you think that the number of AMs should be increased? I understand that one AM sits on as many as four scrutiny Committees. Is this a way to create parity inasmuch as increasing to say 80 AMs would give the opportunity to have 40 men and 40 women?
William Graham
I do not think my Committee considered that specifically, but I think there is a general indication that more Members to help scrutinise legislation would be entirely helpful.
Chair
Would you like to put a figure on it? We heard a few bandied around earlier on.
William Graham
I think, from one of the studies that influenced me, it would be approximately 80 Members.
Liz Saville Roberts
(Translation) Thank you. You mentioned in your preamble that there had been a great deal of consultation on this. Of course, there was consultation on the Silk report, but to what extent did the process of reaching the draft we currently have reflect the consultation that happened through Silk? Do you feel that more, if not all, of the Silk recommendations should be reflected in the Bill?
William Graham
Broadly, I would certainly agree. This Committee has made representations to Silk on a number of issues, particularly on transport, and I would say that all the manifestos of the major political parties have a great deal of consensus on some of those issues. Not being party to those negotiations, I do not really know what happened, but, for example, in transport, the Welsh Government have put forward plans for a much more extensive organisation of the railways than the Bill presently allows. That is something that we urgently require clarification on, for example, in relation to franchising.
Chair
Thank you very much for that.
Craig Williams
Coming on to ports policy, I do not want to go into too much detail, but in terms of subsection (7)(a) and the further devolution of ports policy, do you think that goes far enough?
William Graham
I think it is a very good start. It is the very nature of devolution that it changes and alters. The hope would be that the Bill gives Welsh ports enough self-regulation so that they will be able to compete, because you know that we have enormous competition from both Bristol and Liverpool. So, in that way, the proposals in the Bill meet a great deal of those aspirations. More technical things about trust ports, and things like that, will come in time.
Craig Williams
I wonder whether I can ask you about the trust port plan, again without making it too dry. I think there are five trust ports in Wales, and one of them, Milford Haven, is being held by the UK Government. Do you think there will be a tidier way of doing that in the Bill, for UK infrastructure? Or do you think trust ports just do that very neatly?
William Graham
Again, we are back to clarification. You make a valid point about Milford Haven, which is an incredibly important port to the United Kingdom. One can understand the reluctance but, really, in my view, and I think in the view of the Committee, it would be better structured within the Bill to reflect the powers that the Welsh Government should have over all the ports in Wales.
Byron Davies
I have a question on roads. There are several elements to my question, and I will try to condense it if you can briefly answer my points. Do you think that devolving speed limits could cause problems along roads that sometimes re-cross the border? The Secretary of State tells us that the draft Bill does not prevent the Welsh Government from creating penalties to enforce speeding offences, and I wonder whether that is your understanding. Lastly, do you believe that the Welsh Government need control of drink driving?
William Graham
There has to be very proper consultation on the speed limit, because free movement is essential. Adequate signage when it changes from one limit to another should solve that—it need not necessarily be a major problem. We have not discussed drink driving in the Committee, and my personal opinion is that it should be reserved to the United Kingdom.
Chair
Any further questions on that, Byron?
Byron Davies
Sorry, yes. The Government say that there is consensus on devolving bus regulation, including the traffic commissioners’ functions. We have long talked about that. We talked about it in great detail when I was here. Are you concerned that the draft Bill does not devolve regulation of bus operators?
William Graham
I will answer your question this way. Members of the Committee will know how important buses are to the proposals for the metro. They are absolutely vital. The more control that the Assembly Government have over bus regulation, the better. The powers as presently proposed are certainly satisfactory and are greatly to be welcomed but, again, they probably require certain more technical aspects of the regulation itself. In essence, bus re-regulation might be necessary to make the metro viable.
Christina Rees
Does your view of the St David’s day consensus accord with that of the UK Government in relation to buses and more generally?
William Graham
What we understand is that, as the various stages have progressed, there has been pretty significant negotiation at governmental level, but there will always be issues that will not be agreed. The Assembly Government have great aspirations for rail, which, without repealing section 25 of the Railways Act 1993, will not be possible. Again, more clarification is needed.
Chris Davies
Thank you, William, and good morning. The last question touched on the St David’s Day agreement. We heard from the previous witnesses various differing terms in relation to the St David’s Day agreement. As an Assembly Member, what is your opinion on the St David’s Day agreement?
William Graham
I think the St David’s Day agreement set the whole tone, and many aspirations have been raised from that, not all of which are met in the Bill. I am confident that, with adequate clarification on these reservations, more people will be more happy than not.
Chris Davies
As an Assembly Member, what is your feeling about whether there was complete agreement on the St David’s Day agreement?
William Graham
I think there is broad consensus, as has been reflected in the various referendums that we have had in Wales. People are expecting more from this particular settlement.
Liz Saville Roberts
(Translation) You have said two interesting things. You have said that this draft is a good start, and that there will still be issues that are not agreed. Is the draft Bill in its current form likely to provide a permanent settlement?
William Graham
I am confident that, with clarification, yes. I refer back to the railways. As I said, most—well, I think all, in fact—the major political parties in Wales have suggested that the Welsh Government should control Network Rail. That is not met in the Bill, and the Secretary of State has set out reasons why that should not take place. That is just one example.
Liz Saville Roberts
(Translation) How are we going to get this clarity? We have heard the word “clarity” several times from several witnesses today. It is a very open term. How do we get clarity?
William Graham
As far as my Committee is concerned, we are going to write to the Secretary of State with all these reservations and the way in which we require further clarification. I think that once that has been achieved, we will look at it once again, but the Secretary of State has done his best to show that he is in listening mode. This has gone on now for some while. You have to come to a point where you put forward your point of view in terms of the Bill, and then the argument begins. That is what we are having now.
Antoinette Sandbach
William, you spoke in your opening remarks about various matters that had originally been reserved: for example, employment is in the list of reservations. In your view, do the schedules provide a degree of clarity? Previously, it was a conferred-powers model, with the whole of the exception being employment. We have seen some judicial law making in the Supreme Court judgment on the Agricultural Wages Act. In your view, does the schedule actually provide a much clearer skeleton, as it were, around the division of functions between the Assembly and Westminster?
William Graham
I would agree. The term “skeleton” is a very good one. Our concerns are particularly to do with job search and support, for example: the second tier, as it were, rather than employment law. It is the consequences of that.
Antoinette Sandbach
Sorry, can you clarify that? Your Committee is concerned—
William Graham
I accept that employment is reserved, but it impinges on, for example, job search and the aspects of that—how you retrain, and so on—and the powers granted to the Assembly Government to be able to do that. The skeleton is there. Again, we need more clarification on slightly more technical issues.
Carolyn Harris
Mr Graham, I will take you on to the railways now. The draft Bill says nothing about rail transport, other than to reserve legislative competence in relation to rail services. Are you satisfied with the progress on devolution of the Wales and borders rail franchise?
William Graham
That is one we are very concerned about. It goes back to the roads, in a way; it is a very fluid and also, I gather, profitable route, certainly for all those parts of eastern Wales. The Marches line is vital. I am sorry to say it again, but once more, further clarification and better particulars are required on that one. It is a very important route, not only to the people who use it but in terms of the operator also. That really does need urgent clarification.
Carolyn Harris
The parties to the St David’s Day process agreed that there needed to be a greater role for the Welsh Government in consultation on the inter-city cross-border rail franchise. Does the UK Government’s promise to review whether there is a need to strengthen arrangements satisfy this?
William Graham
In terms of the evidence the Minister has given to Committee, she gives us the very strong impression that she has a good relationship with the Department for Transport in Westminster, and on an official basis. They are looking to make the best use possible of the powers that are currently granted, although there is certainly greater aspiration in terms of rail transport across the board.
Craig Williams
I am interested in your view and the Committee’s view of the Wales and Borders franchise and the intercity service. Frustratingly, Wales does not have its own railway network, because a good chunk of the north-south link is in England. Obviously, that has a bearing on this. Presumably, in asking for clarification, you are never expecting Wales to have control over the borders, in terms of the Hereford-Shrewsbury line. How do you see things emerging?
William Graham
I think, in that respect, it is about the contribution of the line in terms of service and profitability, given the way it links into north and south Wales. The line is the line, isn’t it? You know what I mean. But it is extremely important if you are going to frame a franchise, because a lot of the routes that link into it—particularly those mid-Wales routes—will require substantial public subsidy, because they are a true service.
Craig Williams
But you recognise the timetabling implications in terms of most of that English section and the worries around that?
William Graham
Absolutely—and, of course, the complication, as it were, with Network Rail. We had some interesting evidence the other day after the difficulties with people leaving the matches in Cardiff. The complications between Arriva, Great Western and Network Rail were quite illuminating, shall we say, for the Committee. I commend the report on that to you.
Byron Davies
A very quick question. You said at the beginning of your answer to Carolyn Harris that you were very concerned about the franchise. Could you just expand on that?
William Graham
Again, it is the timescale, isn’t it? How can I describe it? I suppose the best way is to say that the engineering of the electrification has already caused complications. The Welsh Government have their own ideas on the franchise, and it remains to be seen how those ideas will be tested in the market.
Byron Davies
Is that your main concern?
William Graham
I suppose it is—yes, indeed. It is absolutely crucial that the franchise—or franchises—suits the needs of the people of Wales.
Chair
Thank you very much. I thank William Graham very much indeed for coming along this morning. I can confirm that, unfortunately, Alun Ffred is not able to join us, due to a cancelled flight, so the Committee will now go into private session for the next half an hour, until we are joined by Paul Silk. Thank you all very much. Examination of Witness
Witness
Sir Paul Silk, Chair of the Commission on Devolution in Wales, gave evidence.
Chair
Good morning, Mr Silk—Sir Paul, sorry, forgive me—and thank you for coming in to see us once again. We feel like old friends. May I start by asking Christina Rees to open?
Christina Rees
Thank you. Welcome. On devolution, you were the first Clerk of this Assembly and then you were asked to chair the Commission on Devolution in Wales. Will you give us your take on the draft Bill?
Sir Paul Silk
Thank you very much. It is a pleasure to be here. I do not think that we have met in this building before, although I have met your predecessor Committee in Westminster on several occasions. I was not actually the first Clerk of the Assembly. My predecessor was a man called John Lloyd, so I must not pretend that I was here from the very beginning. When I gave evidence to the Constitution Committee in the House of Lords, I said that there were some things with which I was disappointed about the Bill, having chaired the devolution commission, and I was disappointed at an earlier stage with what was in the St David’s Day agreement. That was because some of the things that we recommended in our commission’s report were not contained either in the St David’s Day agreement or in the Bill, I was not expecting to see them in the Bill, but they were causes of disappointment—such as no devolution of policing and justice. Many things, however, I was pleased to see in the Bill. The provisions of the Government of Wales Act 2006, in sections 29, 30 and 32, on the constraints on how Committees operate in this place, on the obligation for the Secretary of State to attend proceedings every year and on the right of the Secretary of State to take part in proceedings, are all being swept away in this Bill. Those are very good things as far as the Assembly itself is concerned. Many things in the Bill reflect what our commission recommended. For example, the Welsh Government and Assembly’s powers to be involved with electricity generation up to 350 MW is something we recommended. So although there was an element of disappointment, there are lots of things I was pleased to see in the Bill. Then there are a whole set of technical issues, which many people have already commented on. I am not a lawyer, but some of those technical issues need to be worked through and, in my view, there needs to be a solution acceptable to both the United Kingdom Government and the Welsh Government.
Chair
Sir Paul, if this Bill, even in some amended form, gains consent and passes through Parliament, with Assembly support, will that be the end of constitutional matters in the Welsh Assembly for years to come, or will it be followed—as so many others have been—within weeks or months by calls for further powers to be devolved to the Assembly?
Sir Paul Silk
When I appeared before the Constitution Committee in the House of Lords, Lord Cullen asked me exactly that question. I will repeat what I think I said to him. Space is left by the things that we recommended should be devolved but are not being devolved, and there will always be those who advocate that that space should be filled—particularly on policing and justice matters—so I think that if this Bill is passed in its present form, there will always be those who will argue that there are other things that ought to be devolved to Wales. No, I do not think it will be the end of the discussion.
Chair
I fear you are right.
Byron Davies
Sir Paul, good morning. Given what is in the Bill, do you think this place has the capacity to deal with what it has now, and do you think with the additions in the Bill it will be able to survive?
Sir Paul Silk
It was not the most popular thing that we recommended in our report, but we did recommend that the Assembly should be larger. Part of the reason why we recommended that was because we saw the problems of scrutiny. Already, under the 2014 Act, the Assembly will have tax-varying powers and will have to be responsible for taxation legislation. If it had responsibility for the new set of powers that we recommended—and, indeed, for the new set of powers it already has in this Bill—it would need to scrutinise all those things properly and adequately. We were particularly concerned by the imposition on Assembly Members. At present, I think most of them serve on at least two Committees, and some of them serve on three or four Committees. That is a hard job to do, and it is particularly hard, we thought in the commission, for Members of the Government party. A number of Members of the Government party are already taken off as Ministers and deputy Ministers, and that leaves very few Members of the Government party to do the work of scrutiny. As you may know, I spent most of my career in the House of Commons. In the House of Commons, you have a Ministry drawn from the House of Commons of about 80 or so Members. That means you have over 550 Members who are able to do the work of scrutiny. I am not suggesting for a moment that the Assembly should be anything of that sort of size, but we did think that it needs to have more Members to do the job of scrutiny as well as the people of Wales deserve.
Byron Davies
So you would advocate more Members to deal with the Bill?
Sir Paul Silk
Yes, more Members for the purposes of scrutiny.
Chris Davies
Good morning, Sir Paul. Great to see you with us. I am going to push you a little bit further on Mr Davies’s point, if I may. You say that, yes, the Assembly will need more Members. In your opinion, as somebody who understands the workings not only of the Assembly but of the House as well, how many Members would you suggest we should be looking at?
Sir Paul Silk
Of course, under the Bill, this will be something that will be the responsibility of the National Assembly itself.
Chris Davies
Yes.
Sir Paul Silk
We did not suggest a number in our commission report. There was a report that came out from the Welsh Governance Centre at Cardiff University, which thought that 100 was the right sort of number. I am not entirely ducking the question by saying that something between 80 and 120 would be the right parameter. I could see the Assembly doing the job that I would like to see it doing with 80 Members, but I think most academic observers talk about rather more than that—around 100.
Chris Davies
So we are in the region of 100 to 120.
Sir Paul Silk
I would say 80 to 100 is the sort of number that I would plump for, personally.
Chris Davies
Can I just ask one more brief question, Chair? Can I just ask for your understanding of the St David’s Day agreement?
Sir Paul Silk
My understanding of the basis of it?
Chris Davies
Yes.
Sir Paul Silk
Well, I am not privy to how the St David’s Day agreement was determined. I understand it was negotiated between the representatives of the political parties in London who decided on it, but I believe that representatives of the political parties here in Cardiff were brought into the process later. I have only heard that at second hand. I do not know how the St David’s Day process operated.
Chair
I think I had better bring in Liz Saville Roberts, and then hopefully, if there is time, we will come back to that.
Liz Saville Roberts
Am I moving on to the next question?
Chair
Yes. We will try to come back to things if we can.
Liz Saville Roberts
(Translation) On the report produced by your own commission, how broadly did you consult civic society? To what extent do you feel that your commission’s recommendations reflected the views of civic society? Moving on to the St David’s Day agreement, you have mentioned the process, but to what extent to you feel that that process, as you understand it, influenced the cohesive nature of the draft Bill, in comparison with your own work as a commission?
Sir Paul Silk
Through our commission’s work over two and half years, we attempted to engage as widely as possible with people up and down Wales—both individuals and representatives of civil society—in all sorts of ways. We saw that as absolutely imperative to coming up with something that would be widely acceptable, which was our remit at the very beginning. Did we always do that as well as we might have done? I think sometimes we asked ourselves whether some of the engagement sessions, which we had from Abertillery to Beaumaris, worked as well as they could have. But we tried and tried to use all sorts of social media and all sorts of other ways to try to find out what people thought, as well as meeting many organisations up and down Wales. As I understand it, the St David’s Day process was not anything like that. They looked at our recommendations, which we felt were based on our principles and were rational and coherent. The St David’s Day process has been characterised as the lowest common denominator. I can completely understand why that was necessary, to come up with something that all parties at Westminster were prepared to go along with, but it was obviously a lower bar than we thought was the right bar.
Chair
(Translation) Can I just ask a question on that point? Is there a risk that the vast majority of people who were ready to go out to the public meetings that you had throughout Wales were likely to be in favour of many more powers for the Assembly? A lot of people who are not willing to go out on wet nights I would be ready to accept will not want to see more powers for the Assembly at all, but they do not speak out.
Sir Paul Silk
I do not think that was the case. I remember a meeting in Newtown, for example, where we did not meet a lot of people who were in favour of anything to do with the Assembly, and that was replicated elsewhere. We certainly met people who were hostile to the Assembly and all its works, if I can put it like that, up and down Wales as well—in Wrexham, also.
Antoinette Sandbach
I want to clarify some evidence that we heard earlier. There was a suggestion that the political appointments—there were party representatives from four parties on your commission—were effectively delegates, authorised by their parties to negotiate. Will you clarify whether that was the case?
Sir Paul Silk
No, they were not delegates. They were appointed by the four parties represented in the Assembly and in the House. I was not privy to the process for that—each party decided that for itself. I remember that, very frequently, in meetings of the commission each of them would say, “Well, I’m here as myself, not as a delegate of the party.” At the same time, they were clearly the link between the commission and the views of the party, both in London and in Cardiff, and we expected them to go back and talk to their parties and come back to us with the sorts of parameters within which their parties would be happy with our recommendations. They were not delegates.
Antoinette Sandbach
So the St David’s Day agreement effectively reflects the agreed consensus between the elected representatives of parties, as opposed to the appointed representatives of parties who were on your commission?
Sir Paul Silk
Yes, I think that’s a reasonable thing to say.
Chair
Thank you very much. In that case, Craig Williams is next.
Craig Williams
Thanks. Sir Paul, I am thinking in particular about the commission’s second report. If that had been implemented in full, do you think that it would have given us a longer lasting settlement? I am interested on picking up on the point that Antoinette just made about how your commission was constituted. The expectation is that people should engage with their parties. Above and beyond that expectation, I take it that it wasn’t pushed and that that dialogue was very informal.
Sir Paul Silk
Yes. As a commission, we met party leaders and party representatives on a regular basis, both in London and in Cardiff. So we were able to speak to them as a commission. But we clearly expected, and I have every reason to suppose that it did happen, that the party delegates—I mean, party representatives; I shouldn’t use the word “delegates”, as they weren’t delegates—spoke to the people that they needed to speak to in their own parties, which were all different in each case.
Craig Williams
I went off on a tangent there, but I will come to my main point. Sir Paul, if we had implemented your commission’s second report in full, do you think that we would now be at a long-standing settlement?
Sir Paul Silk
I would hope so. When I appeared before this Committee before the election, I think I said to your Chair that I hoped that the recommendation would last for 25 years, and I remember your Chair expressing a certain amount of scepticism about that at the time. However, because we tried to found what we were saying on the basis of a coherent set of principles, we felt that it could be the basis for being a settlement for some time. Now, I fully understand that there will always be those who want to push further than that. There was one piece of uncompleted business in our recommendations, which was looking further at the justice issue. So, although we recommended that there should be some aspects of justice devolved straight away, we saw that there was a longer term over which other aspects of justice should be devolved. So it wouldn’t have settled things entirely.
Craig Williams
Policing and justice, I suppose, is the critical one in terms of how your commission came to its recommendations. Regarding our representative—I would not want to put words in his mouth—policing and justice is such a clear issue and line for our party, so how you came to your report must have been through a lot of compromise.
Sir Paul Silk
Well, I think that for any body that comes up with an agreed report when there are people from different political traditions and different political viewpoints——I am talking to one such body now—there has to be some compromise, and sometimes you have to pass over some things by not saying as much about them as you would want to say. I hope they are not too recognisable, but there are some seams in our report, and with a bit of archaeology you might be able to detect the fact that there was some disagreement inside the commission. Nevertheless, I was very pleased that we were able to produce a unanimous report and none of the members of the commission have stepped back from the report and said, “Well, actually, I don’t agree with what we said at the time.” It was, I think, important to be able to do that. When I was in the House of Lords Committee, I was with Kenneth Calman, who chaired the same type of commission in Scotland. Of course, the difference between his commission and mine was that the SNP were not members of the Calman commission, while Plaid Cymru was a member of our commission, and I am very pleased that we were able to have unanimity about our two reports, although there were representatives nominated by the four political parties that were members of the commission.
Chair
We have an expert here on policing who I think wants to ask a supplementary question on that point.
Byron Davies
I am not an expert on policing—at least not any more. My question was not about policing, actually. Was your report based on the overwhelming opinion of the people you interviewed or was it as a result of what you thought as a commission?
Sir Paul Silk
Well, we obviously took major account of the evidence we received, but the evidence points in different ways. To take the example of policing, there were, I recall, two police and crime commissioners who were in favour of the devolution of policing and one police and crime commissioner who was not. So we did not come to a conclusion that policing should be devolved because two were in favour and one was against; we had to come to a judgment on the basis of the evidence that we received from them, and of course, our own judgment.
Byron Davies
Your own judgment?
Sir Paul Silk
And our own judgment. We spent a lot of time at the end of the process on both reports thrashing out the more difficult issues and seeing where we could all agree.
Byron Davies
I could go on to ask you why you came to that decision on policing, but I do not suppose we have enough time for that.
Chair
Actually, we probably do.
Byron Davies
Okay. Could you give the rationale behind the policing to me then, please?
Sir Paul Silk
Well, I wasn’t anticipating being asked about that particularly, so I would have to go back and look at precisely what we said in our report. My recollection is that we felt that many aspects of day-to-day policing related very closely to the responsibilities of the Welsh Government. What we did not want to see devolved were issues such as the powers of constables and the Police and Criminal Evidence Act. We wanted those sorts of aspects of policing still to be controlled on an England and Wales basis, but we felt that safer communities were something for which the Welsh Government has responsibility and for which the police have responsibility, and bringing those two together—with the Welsh Government, which is, in our judgment, more responsive to the issues of policing inside Wales than a Government in London would be—was the rationale for our recommendations. I don’t agree, but I can understand why those recommendations were not acceptable to the Home Office.
Carolyn Harris
We have heard many analogies about the draft Bill—the ink is still wet; it is a work in progress—but given the draft as it stands, could you share with the Committee whether you think it is a pullback or an extension of powers?
Sir Paul Silk
Clearly, there are extensions of powers. There are new powers that the Welsh Government and the Assembly do not have at present, but which they would have if the Bill were enacted—so, in terms of energy, elections, and the removal of constraints on the Assembly’s operation, those are all extensions of powers. However, the argument that has been had, before this Committee and in the documents that this Committee has had sent to it, about whether some of the consequences of ministerial consents, of the necessity test and so on are a constraint on the Assembly is an ongoing story, and one where we will all want to see what your Committee concludes. The most recent document I read—yesterday evening—was the document from the United Kingdom Government to your Committee, with the 25 Bills that had been set out by the Welsh Government as Bills that could not be passed. I think the UK Government’s evidence was that there were just five, and of those five, in three cases, I think that they said consent would have been given. So that still leaves two, which is not 25, but it is a pullback of powers. I suppose what would concern me is—let’s assume that five is at one end of the spectrum and 25 is at the other—there is a dispute, potentially, in every one of those, and no one wants more trips to the Supreme Court because there are arguments about whether the Assembly has the power to legislate in a particular area or not. I don’t think that is in the interests of a coherent and workable long-term solution. The process of looking at a draft Bill should try—if I may say this—to find ways in which greater clarity can be put into that Bill in a way that will prevent litigation in the future. As I say, there clearly is a potential for litigation in the Bill as it is drafted at present.
Carolyn Harris
Thank you, Sir Paul.
Chair
Sir Paul, I just have a quick question. We have had some written evidence that has highlighted the difference of opinion between the Welsh Assembly Government and the Wales Office about whether those 25 Bills would or would not have passed, had this Act been in place. I don’t suppose you have seen that evidence, because it was sent to us over the weekend, but if we were able to send it to you, could you give your opinion as to whose opinion is the more accurate one?
Sir Paul Silk
I’m not a lawyer, so my opinion on that would not be worth reading.
Chair
I’m sure it would.
Sir Paul Silk
I hope that was the document I was alluding to just now—the document in either green or red.
Chair
It came out in orange on my screen, but that is almost certainly the one. Who did you think was more accurate? You are not really going to tell us that, are you?
Sir Paul Silk
The simple answer is: I am not a lawyer and I couldn’t come to a judgment about that. My concern would be that if one party says, “X,” and the other party says, “Not X,” that has to be judged eventually in court. One concern I have about that is the potential for anybody to raise these issues in any court if they feel the Assembly is legislating in an area that it does not have responsibility for. You can imagine that a clever barrister is going to be able, in any case of a criminal prosecution brought under legislation passed by the Assembly, to say, “Well, they didn’t need to do that. They could have done it in a different way. Look at the consultation document that they published. It said, ‘Here’s three ways we can achieve our objective. One of them needs criminal sanctions. One does not.’ They didn’t need to use criminal sanctions, so I’m raising this as an issue of competence for the Assembly’s legislation.”
Antoinette Sandbach
That necessity test, as I understand it, is in the Scotland Act and has not caused those kinds of problem. That is my first point. My second point is: didn’t we have that position anyway? When you look at the Bill on asbestosis or the Agricultural Wages Bill, the previous Government of Wales Act did not have sufficient clarity about what was devolved and what was not. By moving from the conferred to the reserved-powers model, at least there is a clearer list of what is in and out. You can argue about whether you agree with that, but it provides far greater clarity. Given the experience in Scotland—where, as I understand it, there have not been any such cases under the necessity provisions—is your analysis really right?
Sir Paul Silk
Again, I preface this by saying that, unlike you, I am not a lawyer. The difference in Scotland, as I understand it, is that the necessity test is not, as it were, so important, because the whole area of private law and criminal law is devolved in Scotland. It is within the competence of the Scottish Parliament and the Scottish Government, so the necessity test isn’t going to bite in the same way in Scotland. As to the greater clarity, absolutely. That was one of the reasons we recommended the reserved-powers model—because we felt it would lead to greater clarity. It met that principle, so it should be a clearer model than the conferred powers model was.
Mr Mark Williams
It would be useful to reiterate what you said about the process involved in the St David’s Day agreement. I had the dubious role of being my party’s representative in the St David’s day discussions. It fell into two parts. First, almost a tick box of running through your recommendations and the appropriateness, sitting in the Wales Office in London, of whether we thought they should or should not be devolved. Secondly, it was characterised by—this is leading to my question—a lack of discussion at that time on what we actually mean by the reserved-powers model. Noticeable by its absence in those discussions was the issue of a separate legal jurisdiction, whatever that means. In the context of that, the other thing noticeable about the St David’s day talks that you alluded to in your comment was the absence of, for most of that time, participation from elected representatives from this place. Elected representatives from this place were called in the last two meetings before the St David’s Day accord, or whatever we call it, was drawn up. To return to the main substance of what I wanted to ask, you were questioned by the House of Lords Constitution Committee on 21 October when you addressed the issue of a separate legal jurisdiction. I want to hear a little more about your vision for that in terms of the discussion about a separate legal jurisdiction or a distinct Welsh legal jurisdiction. That is pivotal to our debate about the effectiveness of a reserved-powers model.
Sir Paul Silk
Yes. This has been interesting. The idea of a distinct rather than a separate jurisdiction was not discussed at the time our commission was considering its work. It is an idea that was promoted by a group I was tangentially a member of from the Wales governance centre and the constitution unit at University College London. A very distinguished group of lawyers among that working party came up with this idea of a distinct jurisdiction. It was taken up by the Lord Chief Justice, no less, in his speech at the Legal Wales conference. To quote the Lord Chief Justice: “It is essential to distinguish carefully the different ways in which the term ‘jurisdiction’ is used...there is no reason why a unified court system encompassing England and Wales cannot serve two legal jurisdictions”. No less an authority than the Lord Chief Justice is talking about the idea of a distinct jurisdiction inside the court system of England and Wales. It is a bit of a red herring to talk about having to set up a whole panoply—there may be those who want that whole panoply of a justice system with separate professions and separate courts and a Lord Chief Justice of Wales. All that sort of thing is possible, but it is also possible to have two legal jurisdictions inside a single court system.
Mr Mark Williams
But on the weighting some of us would attach to that in terms of delivering that understandable, workable legislation, which some of us contend is not there yet, how much weight would you put on that as a prerequisite to this legislation actually delivering the reserved powers model?
Sir Paul Silk
I think it is one way forward. That group who produced the report in October has re-formed. I am a visiting member, if you like, or a country member of that group, and it will produce another report, we hope, sometime before Christmas, but certainly in the New Year. Among that group are a couple of people you will be seeing later today, but also Professor Rick Rawlings, who is a professor of constitutional law at UCL, and Sir Stephen Laws, who was formerly First Parliamentary Counsel. They will, we hope, produce more ideas along the lines of how you can square this particular circle in a way that will allow a Bill to operate without being trammelled in the way in which I think this Bill has been argued to be by the issues of a single jurisdiction.
Mr Mark Williams
Thank you.
Antoinette Sandbach
I would not call myself a distinguished lawyer at all, but I did at least have the opportunity to study law and practise it. Although I received training in company law it was never an area I practised in, but from that point of view I am aware that there are, for example, specialist company lawyers with specialist company courts that operate within the legal system, and you can argue it in other areas as well, such as insurance law or shipping. With the way you are talking about it, as a distinct legal jurisdiction, will there inevitably be a branch of the Courts Service that specialises in Welsh laws where there would be judges and lawyers trained specifically to look at either Welsh-only legislation or English and Welsh legislation and where that overlap is, but remaining within the UK—the England and Wales—jurisdiction?
Sir Paul Silk
I think that that is the sort of idea. Just on the court system, the Welsh Government—the National Assembly—has no responsibility and will have no responsibility for the law of defamation. There is not a separate jurisdiction therefore for defamation matters, and many other complicated and obscure parts of the law, and I do not think it would be in the interests of the people of Wales, personally, for us to be cut off from the expertise of some of the courts in London. However, that idea of a distinct jurisdiction could perhaps be pursued and could be beneficial in the context of the Bill if it does not involve setting up separate professions. One of the strongest advocates for not having separate professions for us in our work were the universities in Wales.
Antoinette Sandbach
I think that there is research out there that shows that when there was a choice of where proceedings could be issued, very frequently they were issued outside Wales because there was a perception, rightly or wrongly, that there may be greater independence and greater access to legal expertise in insurance or shipping or specialist areas.
Sir Paul Silk
One of the things that the Lord Chief Justice made great play of in that speech that he gave to the Legal Wales Conference was the need for the Welsh legal profession to up its game.
Craig Williams
Sir Paul, there is a really interesting area of debate around this. In terms of housing, if you are a landlord or a tenant there is absolutely no question that there is a distinct jurisdiction in Wales. I just wondered, when you were taking evidence in the commission and since you are experienced in this area, did you take any evidence, or is there a body of evidence out there, that says, “This has been going through our legal system for a while and there has been a problem”?
Sir Paul Silk
With?
Craig Williams
In terms of the legal system working in relation to Assembly Acts, which do interact. If you look at the landlords, at the Housing Acts, they have made their own case law. Is there any evidence out there at all, or anyone who wrote to your Commission, saying that there has been a problem in this area?
Sir Paul Silk
I cannot recollect anyone saying that to us.
Liz Saville Roberts
(Translation) What you have said about a separate jurisdiction, or rather a distinct jurisdiction, is interesting. You have also referred to the fact that your consultation took two and a half years. Given the discussions that we are having now on the various different interpretations of terms such as legal jurisdiction, is this Bill being discussed in haste? Are we rushing towards a piece of legislation perhaps for the wrong reasons and perhaps only because we have a slot in the Parliamentary year?
Sir Paul Silk
Well, if I can be indulgent enough to produce a quote from our report, we said: “Moving to a reserved powers model would be an opportunity to legislate for well-argued and rational reservations, drafted in a robust, considered and coherent way”. To answer your question, I think that “considered” is very important. We have had four devolution Acts already in Wales; this is the fifth. We don’t want another. I think all of us in this room would like not to have to come back for another session on another Wales Bill in the future. I would always argue for more time in the consideration of any legislation. My experience in the House of Commons and this place has persuaded me that there is far too much legislation passed by all sorts of Governments, and too much of it is done in too much haste. Not just in the context of this Bill, but because this Bill is an important constitutional Bill, I would say: take time. Do it properly. Do it right. There is no need to rush things. At the same time, I have had enough dealings with the business managers in the past to understand that they do not think like that. Every Government Department tries to promote legislation, because it is important for Ministers to feel that they have got the badge of success by getting Bills through Parliament. I can understand that there may not be another slot for another Wales Bill in the future, so you are a little bit between the devil and the deep blue sea. Yes, certainly I would advocate doing it more slowly and in a more considered way, and getting it right.
Gerald Jones
Clearly, we all believe that devolution in Wales should meet the needs of Wales, based on the needs of the people of Wales. Bearing that in mind, do you believe that the Scottish model in the Welsh context has been a sound basis for drafting the Bill?
Sir Paul Silk
I think, as we said frequently in our work, that the differences between Scotland and Wales are enormous. The number of people who travel across the Welsh border to work, both ways, is—I cannot remember the figures—10 times as many as those who travel across the border to work in Scotland, let us say. Scotland has a different legal tradition, which was preserved in 1707, and, of course, although it has Gaelic, we have the distinction of having two languages operating inside Wales. There are many differences between the two countries, so I do not think simply transposing everything that happens in Scotland to Wales is a sensible approach. You have to ask whether the things that are devolved in Scotland would sensibly be devolved to Wales. However, I think that the greater the similarity between the devolution settlements in Wales and Scotland, the easier it will be for the courts to interpret some of the issues that will come before them. We can already see that Lord Hope of the Supreme Court, for example, a Scottish judge, has used some of the judgments in relation to Scotland as persuasive in the case of Wales. I am sure that it would be useful for the Supreme Court to have similar principles adopted in the devolution settlement for Wales and the devolution settlement for Scotland. I can see that moving to the centre is something that could be desirable, but that doesn’t necessarily mean that everything that is devolved in Scotland should be devolved in Wales. I know that work is being led by Lord Salisbury, who is looking at a new Act of Union for the whole of the United Kingdom. I think Peter Hain is the representative on Lord Salisbury’s group from Wales, and there are representatives from Scotland and Northern Ireland. Lord Salisbury’s group, which is coming up with its own report shortly, is going to look for a common Act of Union for the whole of the United Kingdom. I think we are moving to the centre, but we will not necessarily end up in exactly the same place.
Liz Saville Roberts
(Translation) Mention was made previously of the necessity test, in relation to the Scotland Act, and it was compared with this draft Bill. You said at that time that the necessity test in the Scotland Act is relevant only to reserved powers, but here it is also relevant to private law and criminal law. Would it be better for us to pull necessity tests away from private and criminal law, or would legal jurisdiction be better? What is the best solution of those two options?
Sir Paul Silk
Could you just repeat the final part of that?
Liz Saville Roberts
I’ll try to do it in English. To be honest, it was quite an intellectual challenge to be doing that in Welsh. The necessity tests in the draft Wales Bill refer to three areas: the reserve powers, criminal law and private law. The Scotland Act 1998, if I understand correctly, refers only to reserved powers. Would we arrive at a more workable solution in Wales if we were to remove necessity tests from private law and criminal law, or should we be looking at some definition of a separate legal jurisdiction or an alternative?
Sir Paul Silk
I think that question is beyond my legal pay grade. It is exactly that sort of question that the group I mentioned previously will put its mind to, with some very distinguished constitutional lawyers. The idea that the necessity test should work in such a way that would prevent the Assembly from making legislation in areas where it has in the past—the example I have been told about is the renting homes Bill, where the law of contract is changed—is clearly objectionable to people in Cardiff, and may well be objectionable. The Lord Chief Justice clearly said in his speech at the Legal Wales conference that any legislature needs to have the power to legislate in a way that affects private law and criminal law. Unless it can impose sanctions or change private law, it is not much of a legislature. I don’t think the UK Government aims to prevent the Assembly from legislating in areas that are devolved to it. At least, that is certainly not what the Secretary of State has said.
Liz Saville Roberts
It seems to be quite a staggering difference, compared with the Scotland Act.
Sir Paul Silk
Let’s hope that this process—the scrutiny of the draft Bill—will end up in a happy place, as far as that is concerned.
Antoinette Sandbach
You spoke of the Supreme Court. I think one of your recommendations was that an intergovernmental panel or process should be set up to deal with issues between the two Governments. I understand that there is progress on that matter, which is carrying on outside this Bill. Are you involved in that? Certainly there was concern—or views were expressed—in academia here, for example, that the Supreme Court judgment and the Agricultural Sector (Wales) Act 2014 effectively moved the Government of Wales Act 2006 from a conferred powers model to a form of reserved powers model, and that the Bill is in effect, in part, a response to that.
Sir Paul Silk
One of our recommendations, and one which we set considerable store by, but one which did not get an awful lot of publicity, was the establishment of better ways of co-operating between the Governments in London and Cardiff, because one of the things, certainly, that was pretty universal from our meetings with stakeholders up and down Wales was that they did not enjoy seeing Cardiff and London arguing. They did not see that as doing anything productive for them. So we came up with the idea of a Welsh intergovernmental committee. I think that idea is still being worked through. In a way, I rather regret that it has not been worked through yet, because one of the things we saw that that committee should do at the beginning was look at the reserve boundary, if you like, and come up with a rational, not a jagged, line between what is reserved and what is not. I am not privy to the way in which the negotiations have gone between London and Cardiff, but I do not think they have been—or they were not at the beginning—as co-operative as, perhaps naively, we hoped they might be. One of the things we would have liked the Welsh intergovernmental committee to do was, as I said before, look at a coherent, rational boundary between what is reserved and what is not reserved. On the Supreme Court, the slightly different recommendation we made was that there should be a way for the two Governments to have an arbitrator, if you like. We suggested it might be a former member of the Court of Appeal, who would arbitrate between the two Governments on matters of law before they went to the Supreme Court, because, again, we wanted more co-operation and less litigation.
Antoinette Sandbach
Do you think, therefore, the discussions in relation to the Bill are being ramped up, as it were, because of the Assembly elections that are happening in May, and that you are getting, perhaps, more entrenched positions from various parties around that because of the context in which this—I see you are nodding.
Sir Paul Silk
I am nodding; you are all politicians and I am not, but as the election approaches, people become more political, so I think that is understandable.
Mr Mark Williams
Just quickly on that, there has been some discussion about why these governmental discussions have not fed their way through into the draft Bill before us. Notwithstanding the possible success of those negotiations between both Governments, is that something you would look to see written on the face of the Bill, whichever route we take—formalising, if you like, that conflict resolution, should it arise, and avoiding the need to present it at the Supreme Court?
Sir Paul Silk
Well, one of the recommendations we made was that there should be a statutory code of practice on relations between the Welsh Government and the UK Government. If that had been accepted, it would have been legislated for in this Bill. A lot of the relations between London and Cardiff—not least Barnett—are characterised by informal decisions, and those are not justiciable. Whether they should be—I was saying that we want to avoid litigation, but perhaps there is some room for justiciable relations, not just in the case of Wales but between the Scottish Government and the UK Government, the Welsh Government and the UK Government, and the Northern Ireland Government and the UK Government, as is the norm in any federal state.
Chris Davies
Before I ask my final question, can I just ask whether the Secretary of State for Wales or his team consulted you during the drafting of the draft Bill?
Sir Paul Silk
Not during the drafting of the Bill—and nor would I have expected them to. The Secretary of State, very courteously, telephoned me before the St David’s Day agreement, and also before the draft Bill was published to tell me what was in it. But I would not have expected to be consulted—I’d done my bit when we produced our report.
Chris Davies
Okay. Thank you. The Secretary of State has said that the previous legislation has not been found fit for purpose. What is your view on whether it provides a firm foundation for the Bill?
Sir Paul Silk
Well, I think that, as I was saying before, we have had several goes at devolution in Wales. The original model was not satisfactory and fell apart very soon. The measures and LCOs procedure feel apart very soon. What I think we all want in this Bill is something that is not going to fall apart very soon, so that we don’t come back to another devolution debate in the future. That is why I think the pre-legislative scrutiny of the Bill is very important. The point of pre-legislative scrutiny is that this is a draft; this is not the final Bill. There will be another Bill later on, after your Committee has reported, and after others have inputted into the process. I very much welcome that. I can’t remember exactly, but I don’t think the other Bills were subject to pre-legislative scrutiny in the same way.
Chris Davies
Sir Paul, if you were consulted, what changes would you recommend to the Bill that might make it acceptable to all sides?
Sir Paul Silk
If I can leave aside issues like devolution in policing and justice—that is something which I suspect is not going to happen in any Bill that is introduced by the present Government—I think it would be establishing clarity about the necessity tests and the ministerial consents, and making sure the law is clear, so that these arguments do not become issues which can arise in court in the future. That is what I would like to see. That is essentially technical, rather than political. There is a political element to it, but there is a technical element to it as well. I think that those technical issues need to be sorted.
Chair
Okay. Well, Sir Paul, that’s a good note to end on. Thank you very much indeed for coming before us again. I will now draw this session to a close. I remind everyone that we are back here at 1.30 pm, when we will hear from academic and legal experts. Subsequently, we will have evidence from the First Minister. Oral evidence: Pre-legislative scrutiny of the draft Wales Bill, HC 449 28