1. What recent discussions has the Counsel General had regarding the Wales Bill? OAQ(5)0005(CG)[W]

Thank you for the question. The Member will know that this answer is subject to the established law officers’ convention, but the Welsh Government remains committed to securing the best possible settlement for Wales. To that purpose, our officials are continuing to engage with UK Government officials as the Bill progresses in the House of Lords. I can say also that I have recently delivered lectures on the Wales Bill and broader issues of access to justice to Cardiff University, University of South Wales and the recent Legal Wales conference in Bangor, and copies of these speeches, with all the details of the content, are available upon request.

I thank the Counsel General for his kind invitation to read his speeches, which I’m sure will be taken up by many Members, as many Members as those asking the questions, I’m sure. [Laughter.] When we look at the Wales Bill and recent developments, we see with the concession on the devolution of teachers’ pay and conditions that at least the door has been opened a little to improvements in the House of Lords from the original Bill, and I’m sure the Government will welcome that as much as I do. But there’s still one outstanding issue that, in my mind, doesn’t make this Bill sustainable or fit for the future, and that is the question of legal jurisdiction. The First Minister has said very clearly that he believes we can establish a separate or distinct legal jurisdiction, and that would be the best way forward. He said that on Monday night on ‘Sharp End’, which is why I was disappointed that on Monday in the House of Lords the Labour spokeswoman for Wales, who unfortunately isn’t here, though I was going to mention her under her other hat of Baroness Morgan of Ely, said that it was premature to establish a separate legal jurisdiction. Can I put it to the Counsel General, not that he will reply to this kind of political report, but could I put it to him that it’s this sort of confusion from the Government and the governing party that means that the Conservatives over there are running rings around you on the future of the constitution of the United Kingdom? But, on a legal question, does he agree with me that the legal profession at least, have come to a considered view on this by now, and they believe that it’s inevitable that we shall have two legal jurisdictions, one for England and one for Wales?

I thank the Member for the supplementary question, and when he reads my speech he will see rather detailed views of my own thinking on the issue of legal jurisdiction and, of course, the transitional compromise that I think was put forward, which was, at this time, a distinct jurisdiction would make very much sense and do a lot to resolve the contradictions that exist. I think the Member will have heard me say previously my concerns about this sort of mythology that’s developed around the concept of jurisdiction, as though it’s anything other than an administration. In the past, when there was only one legislature within England and Wales, it made sense to have a single jurisdiction. We now have two legislatures. I think I will give you advance notice of my speech, for when you take the opportunity to read it—I think it is an inevitability that we will move towards a distinct jurisdiction and, eventually, a separate jurisdiction.

The Member will also, I’m sure, have read with interest the comments that have been made in the House of Lords’s recent report on the Wales Bill and the comments that are made there, which I think are very important, because not only do they make a number of comments about the list of reservations being so extensive and the legal test that governs the Assembly’s powers being so complex and vague that they’d be a recipe for confusion and legal uncertainty, but the key point they really make, and that jumped out at me, was when they say that the committee notes there is

‘no evidence of a clear rationale’.

I think that is the fundamental problem. That permeates through the Wales Bill, not only in terms of the list of reservations, which is 35 pages, 195 items, but also in the thinking around the concept of how you administer an area where you have two legislatures and how you ensure that that is efficient and complementary to not only the Welsh legislature, but also the English legislature.

I can see that my good friend’s speeches are going to be very popular stocking fillers this Christmas, undoubtedly. [Laughter.] But he’s mentioned that he’s had time already to do some other reading—of the House of Lords report. I should make clear that there is still the opportunity to improve this Bill if there is a will to do it in the remaining stages in the House of Lords and in the Commons as well—to make it something that is useful to the Senedd, to the Assembly and to the Government as well. But there is work to be done. Did he note, as I did, that in that House of Lords report from the Constitutional Committee there, they said that the lack of clarity over the demarcation of powers between the UK Parliament and the Welsh Assembly not only risks future litigation, but the need for further legislation to clarify the settlement? Now, that’s the scale of the work that needs to be done. So, does he agree with their assessment that, actually, this—unless the improvements are made—could mean more litigation and less clarity?

I certainly do agree. The problems associated with the conferred-powers model—and I think there was agreement on the need to move to a reserved-powers model—are accepted almost universally. The only problem is that a reserved-powers model becomes self-defeating if you attempt to reserve just about anything and everything and the kitchen sink as a reservation. In those circumstances, it becomes self-defeating, and the only consequence of that is that you end up with more and more matters having to be determined in the Supreme Court at considerable length and considerable difficulty, and it does not give what we all want from a legislative system, and that is clarity and stability.

I apologise, I haven’t read all the Counsel General’s speeches, but I am delighted to ask him a question. He anticipates this upsurge in litigation to the Supreme Court with disagreement and uncertainty on the basis of the Wales Bill, at least in its current form. I wonder what consideration he’d given to the resource implications for his office of such an upsurge in litigation.

Well, the more cases that are, the more costs there are that are borne by the public purse, and that is absolutely another reason why we want clarity and stability, so that matters don’t have to go to the Supreme Court and that they don’t have to involve rather complex legal arguments and teams of lawyers to resolve. That is one of the key things that the whole purpose to having a clearer constitutional settlement was sought to avoid.