Part of the debate – in the Senedd at 5:55 pm on 19 October 2016.
Diolch, Lywydd. Can I thank Members for their contributions to this debate and also acknowledge the ground that UKIP has shifted? I put that in terms that are entirely neutral for a party that, at one time, was not in favour of devolution. Today, we heard UKIP saying that the Bill was not sufficient and truly saying that this institution needs to have more clarity and more powers. And that I acknowledge.
We have to remember, of course, that this Bill must be compared with the original Bill. The original Bill drove a coach and horses through the 2011 referendum result. It is said that referendums should be respected, and I agree with that, but apparently for some in Whitehall, they are respected when it suits them.
That Bill originally would have meant that we would’ve lost the power to legislate according to the very strongly expressed will of the people of Wales in 2011. This Bill is better; it would be difficult for it to be worse, but it is, nevertheless, better. There are some parts of the Bill that Members, I’m sure, would agree with. We get substantial control of our constitution as far as the Assembly is concerned, in terms of the numbers, in terms of the method of election and, of course, in terms of us being able to govern ourselves as an institution, rather than be told how we should govern ourselves by others. It contains a substantial amount of devolution of the criminal law; it makes progress in terms of water—some progress—energy and other areas that Members will be very familiar with. But, of course, there are other areas that are not properly dealt with, which means that it is absolutely inevitable that there will be another Bill that will have to be dealt with in the future. And it’s a shame, because instead of acting like an over-fussy mother hen, the UK Government could actually show the vision of bringing forward a settlement that would be more lasting and more durable. That is not the way they operate in Westminster, sadly.
Two of the issues in particular that have caused Members concern are the issue of jurisdiction and the issue of policing. It is not coherent to have a single jurisdiction with two legislatures in it. This is the only place in the world that has a system like this and it is not one that is durable. Why do I say that? Because with the devolution of the substantive criminal law, it will mean that it will be perfectly possible for somebody in the future to be arrested in Cardiff for an offence that is not an offence in Wales. It will be perfectly possible for somebody to spend time in prison in England for an offence that is not an offence in England. Already, I’ve been told—the Lord Chief Justice has said this to me—that lawyers have come into courts in Wales and argued the wrong law, because they believe single jurisdiction means a single set of laws. This confusion can only continue in the future. We also find ourselves in the situation, because of the failure to devolve the police, where most of the law governing public order will be devolved—indeed, most of criminal law will be devolved—but the agencies responsible for enforcing and prosecuting that law will not be devolved. Now, that makes no sense at all, as Members will see in the future.
On the issue of licensing, the opinion of the Welsh Government has always been that licensing is a health issue. That wasn’t accepted by the UK Government; they said it was a public order issue. Yet, now, most public order legislation is going to be devolved, but licensing isn’t. So, the reasoning behind the failure to devolve licensing disappears. That’s the problem: there is not logic in this Bill at all. Why should Scotland get control of air passenger duty but Wales not? I know the answer to that question: they regret the fact that they gave Scotland air passenger duty in the first place. They are damned if they’re going to make sure that we have the same rights. Why is it that the ports are devolved, except the treaty port of Milford Haven? The reason, actually, is because of the flow of liquefied natural gas to the port. I’ve been told that by the UK Government: ‘Well, it controls 25 per cent of the LNG’. As if we would cut that off. Why is there an intervention power in water, which negates anything the Assembly might want to do in the future? That intervention power would mean we could not have control over our water resources; it would mean that another Tryweryn could be imposed on us. That is not right in terms of the need to have a mature relationship between Governments. Again, it comes back to the fact that they are obsessed with the fact that we will, in some way, turn the taps off if we have control over water. I’ve had experience of this. When I was environment Minister, we wanted to put the political border in place when it came to flood defences. The argument that was thrown back at us was, ‘Yes, but you might do something to the Severn in Newtown that causes Gloucester to flood.’ Now, why we are seen as some kind of hostile power, I don’t know, but that is the way, sometimes, the UK Government sees it. It’s a shame, because, as I say, there is an opportunity here to get things right.
It is inevitable, I think, that we will end up back in the Supreme Court, and that, again, undermines the argument that this is a durable settlement based on the St David’s Day agreement, which isn’t an agreement and never was. Again, we are in a position where there is no logic behind why some areas are reserved and others are devolved.
On the issue of reasonable chastisement, I don’t believe it’ll interfere with our ability to deal with that, because it’s quite clear to me that the offence of common assault will be entirely devolved and so the defences follow that. We will be able to chart our own course when it comes to that offence.
It is right to say that there are some areas where devolution goes backwards—areas such as employment, for example, and areas where Minister of the Crown consents are still needed in areas that are not really that important, and why they seem important to Whitehall is difficult to fathom.
On some of the other issues that Members raised, the issues that Nathan Gill raised are important ones. The issue of sea fisheries—again, because of Brexit, a number of issues now have to be addressed. First of all, with sea fisheries, we have control over the 12-mile limit, but not beyond. Everyone else does: Scotland does, Northern Ireland does, England does, but Wales doesn’t. Now, in the days of the common fisheries policy, it didn’t really matter. It does now, because it interferes with our ability to have a proper fisheries policy that enables the Welsh fishing fleet to have access sustainably to Welsh waters. That will not be possible as things stand as they are. The UK Government will take the view that where powers come back from Brussels, they will end up in Westminster. That is not the case. If they’re devolved, they’ll bypass Westminster and come straight here, and the concern that some of us have is that, somehow, an attempt will be made to stop that from happening with farming and fisheries. Otherwise, of course, they would be automatically devolved.
On the issue of the referendum, my argument has always been this: that, in some ways, the argument has moved on. Scotland has far, far stronger fiscal powers than we have, and that’s happened without a referendum. As a result of that, I don’t see the need for a referendum now in Wales, given what’s happened in Scotland and the powers that have been devolved there.
We have to understand that we are not yet in a situation in the UK where, bluntly, the UK Government is mature enough to treat the other Governments in the UK with respect. In this Bill, there are many things that can be supported; there are others that will cause Members great concern. We will be putting down amendments as a Government to reflect the concern of Members in a genuine attempt to improve the Bill, to make it clearer for us to understand properly what the boundaries are between what is devolved and what is not, whilst respecting the result of the 2011 referendum. We wait to see what view the UK Government will take on that. Our support of the Bill is still conditional on what we will see coming through the various stages in the House of Lords. I hope the UK Government take on board the views not just of the Welsh Government, but of others, in other parties around this Chamber, and work genuinely to ensure that this is a Bill that meets Wales’s constitutional needs, that recognises the view expressed by the people of Wales in 2011 and, more than anything else, means we don’t have to come back again in a few years’ time and argue the same points over and over again. That’s been missed so far and I hope it’s not missed in the future. The message has gone from this Assembly today, from all sides of this Assembly: there is still work to do in order to produce a Bill that is acceptable.