Part of the debate – in the Senedd at 3:14 pm on 8 June 2016.
Can I welcome the tone of the First Minister, and also his ambition to work with the UK Government to actually now achieve a very comprehensive piece of constitutional law? Should this Bill proceed to the statute book, it will be the fourth Wales Act in 20 years, and I think I’ve said before that most people don’t change their cars as quickly as that, so to have such frequent changes in fundamental constitutional law is obviously not particularly to be recommended.
Can I warmly welcome the end of the necessity test? I did, in the speech on the Constitutional and Legislative Affairs report in this Chamber in March—sorry, in January—point out that the Americans dealt with this sort of concept in 1819 and moved on and achieved great stability in their constitution by not acknowledging such tests. I also welcome the fact that the Secretary of State has reduced the number of reservations. This is welcome. We did have over 250—it was very difficult, actually, to count them—but we now are, I think, just about below 200. But, I would recommend that we go back to the fundamental concept of a reserved-powers model, and that’s to reserve to the central Government the powers it needs to function—and I use ‘central Government’ in this context to mean the UK Government. As you hinted, I think the approach has been the other way around in Whitehall, and it needs to change, so that they really acknowledge the durability, the permanence of the devolved settlement. There are still too many reservations and the principle we need to apply has not been yet fully applied. Your illustration was most apposite in relation to licensing. Frankly, if you cannot allow a national legislature to deal with licensing, and you think that’s a fundamental problem, then I think you’ve got great difficulty with the way you approach the whole constitutional question at hand.
Can I finally say that I do think that part of being a grown-up is to live with paradox? It’s a constant challenge. But, it is difficult to understand that the output of this legislature is the law of England and Wales, when it is obviously the law of Wales only. Now, that is the position, and trying to explain the legal technicalities of how we make law, I think, is highly convoluted, and it cannot lead to clear thinking. But I just want to make a practical point here, because I think the First Minister’s words are to be warmly welcomed, indicating he’s going to work with the UK Government to clarify this attempt to make Welsh law more distinct and manage the administrative, the practical, consequences of a growing body of distinct Welsh law. And it does come down to having judges who are competently trained to take cases now in Wales, and the lawyers who argue those cases as well. This is not a trivial matter, because our law is going to get more and more divergent, and over very, very important issues—someone referred earlier in questioning to our new planning law—so this has to be done. And I should say that, as we go down that road, and in fairness to the legal profession they’ve already acknowledged this, the reality of the separation that is now occurring will become more and more difficult to ignore. I suppose at that point we will all acknowledge that we have arrived at a separate jurisdiction.