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Government of Wales Bill

moved Amendment No. 60:"Page 51, line 2, leave out from ““competence”” to end of line 24 and insert ““unless it relates to one or more of the reserved matters specified in Schedule (Reserved matters)””" The noble Lord said: The founding fathers of the United States, when they put together the American federal constitution in the latter part of the 18th century, had it right: they preserved the legislative competence of the state assemblies which were part of the federal United States. Since that time, this country, in granting independence to our dominions, to Australia and to Canada, has followed that pattern: the legislative competence remains with the state assemblies but powers are reserved to the central or federal parliament. Indeed, as recently as post war, a similar type of constitution was introduced in federal Germany so that the Lander Parliament has legislative competence and certain reserved matters, such as defence, foreign affairs and macroeconomic management, are dealt with centrally by the federal government. In 1978, when the Labour government under Prime Minister Callaghan introduced the Scotland Act, they reversed the situation and, in granting in that Act primary powers to a Scottish Parliament which the Act was to create, they gave defined fields to the Scottish Parliament and left the overall legislative competence with the Westminster Parliament. That, of course, was changed in the Scotland Act 1998 and, for the first time within the United Kingdom, the Scottish Parliament was granted full primary powers and matters were reserved to the Westminster Parliament in the areas that I have mentioned—defence, foreign affairs, macroeconomic management and so on. The same happened with Northern Ireland. Under the Northern Ireland constitution, even though we have been faced with a non-functioning parliament or Assembly, full legislative competence was granted to Northern Ireland subject only to reserve powers being retained in Westminster. My amendment poses the question: why is Wales different? Why should Wales be treated in the way it is? The usual argument put forward by those who believe that the Welsh Assembly should be strictly confined to defined fields is that there is no separate body of law or separate courts in Wales. Whereas Scotland has a separate judicial system which survived the Act of Union in 1705 and a separate body of law based very largely upon the common law as it developed in Scotland, that is not the position in Wales. But that argument did not seem to strike any chord with the Labour government in 1978. Northern Ireland, on the other hand, a creature of the Government of Ireland Act 1920, when partition was introduced, at that time had no distinctive, separate courts or separate legislation. Two separate systems of law have developed on the island of Ireland, with the northern part of it, Northern Ireland, serving a population of only 1.5 million as opposed to the nearly 3 million in Wales. So it is perhaps not a very strong argument that Wales does not have a separately organised legal system. It is inevitable that Wales is already developing a separate system of laws as it stands. For example, secondary legislation passed by the Welsh Assembly has to be separately interpreted. Clause 79 shows that the secondary legislation passed by the Welsh Assembly has to comply with Community law and with, via Clause 80, human rights law. If a dispute arises, it is for the courts to interpret whether such legislation is compatible with Community law or human rights law. It so happens in Wales that counsel has been appointed by the Welsh Assembly to appear in judicial review so that, when a problem arises, it is not necessary for counsel to go back to the very beginning of the Welsh separate legislation as it is developing, and matters can be taken forward in court, preferably before judges who know what they are talking about and who are familiar with Welsh devolution, by counsel which is also familiar with, and experienced in that field. That is the position with secondary legislation. The Bill grants powers to the Assembly to pass primary legislation, which by its very nature will differ from the primary legislation passed at Westminster. That, too, will require separate interpretation. For example, Part 2 of Schedule 5 reveals that new criminal offences will exist in Wales, provided that the sentence in a magistrates’ court does not exceed 51 weeks or that, in a trial on indictment, it does not exceed 12 months. My point is that a separate system of law is emerging in Wales with barristers, solicitors and judges who are familiar with it. Ironically, moves are in hand to try to curtail the Wales and Chester circuit, which has existed since medieval times and the reign of Henry VIII, when the assizes first circulated in Wales. The plan is to remove Chester from the circuit so that we will have a Welsh body of barristers. Therefore, there is no feasible argument to defeat my proposition in this amendment that full legislative competence should be given to the Welsh Assembly, but that there should be reserve powers, just as in Scotland. What I am seeking for Wales is that which this Parliament has already granted both to Scotland and to Northern Ireland. An obvious area in which there should be legislative competence for a future Welsh Assembly is home affairs. If the Home Office is not fit for purpose, as a Cabinet member of this Government seems to think, it seems extraordinary that it continues to try to centralise. Nowhere in the whole body of government has there been greater opposition to devolution than in the Home Office. Whereas it would be sensible for a Welsh elected Assembly or parliament to take decisions about how Wales is to be policed, about how many police forces there should be, about how Wales is to be served by the prison department and about how probation is to work in Wales, the Home Office has always resisted that sort of thing. For example, recent consultation with the Assembly over the amalgamation of police forces led to a simple pronouncement from the Home Secretary, who said that the four police forces would be amalgamated regardless of what the Assembly and the people of Wales thought: it was to be imposed. That is the sort of thing that we seek to put in the Bill—legislative competence on a wider scale. The Government may say, ““You cannot have legislative competence that goes beyond executive competence. In other words, you cannot expect Ministers to legislate in areas for which they have no executive responsibility””. It is a good argument. However, the Bill gives us an opportunity to make a start, to put us on a parity with the other parts of the United Kingdom, to introduce a constitution that is the same in the United Kingdom as in the United States and in our former dominions where federal constitutions have been introduced. I do not imagine that I will persuade your Lordships that such a radical change to the Bill should be made now. However, I beg to move the amendment on the basis that this is a fight that continues.