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2. Questions to the Counsel General

October 11, 2017

32 speeches by…

  • Elin Jones
  • Simon Thomas
  • Mick Antoniw
  • Eluned Morgan
  • Mark Reckless
  • Jayne Bryant
  • Hefin David
  • Michelle Brown
  • Neil Hamilton
  • Jeremy Miles

Elin Jones

The next item is questions to the Counsel General. The first question—Simon Thomas.

Simon Thomas

1. What discussions has the Counsel General held with law officers regarding appointments to the Supreme Court? (OAQ51164)[W]

Mick Antoniw

It is not my intention to make statements about discussions I have had with law officers or to disclose the content of any such discussions. This is an established convention designed to preserve the confidentiality of those discussions and the relationship between law officers.

Simon Thomas

Thank you for that usual response. I hope, as the Member for Pontypridd, you could join with me in welcoming and congratulating a Pontypridd boy, David Lloyd Jones, on his appointment to the Supreme Court. He took his oath in Welsh in the Supreme Court, which was also to be welcomed, and I think you were there to witness that. There are two things emerging from the fact that David Lloyd Jones is now a member of the Supreme Court. First of all, is this a solution to the question as to whether there should be a permanent Welsh representative at the Supreme Court? At the moment that isn’t assured to us in legislation nor in convention, but, of course, a person is in place now. So, what are you doing, as Counsel General, to move forward to ensure that this is a right? Because I believe that Wales should have the right to have a member of the Supreme Court. Secondly, I noted that David Lloyd Jones, as part of the process of appointment, had called recently in Swansea for a Welsh institute of law, which would promote awareness of the law. Have you had any discussions—perhaps this is something that you could reveal to the Assembly—with David Lloyd Jones and others on this concept?

Mick Antoniw

Firstly, I thank you very much for the question, and yes, I very much do welcome the appointment of David Lloyd Jones as the first Welsh judge of the Supreme Court, and the first Supreme Court judge to take his oath in Welsh and in English. I’m particular pleased about the fact that he is a citizen originally from Pontypridd, and so the development is extremely welcome. He is certainly a judge who has a considerable reputation, a considerable knowledge of Welsh law and matters relating to the Welsh language, and fulfils that function, I think, very, very satisfactorily. Of course, you’ll be aware that we have made representations over the years in respect of the need for a permanent Welsh judge on the Supreme Court. By ‘Welsh judge’, I suppose you have to mean a judge who has a commitment to and an understanding of, and a knowledge of, the interests of Wales and the judicial process and the laws of Wales. I see this as a first step. My view is that I think we are on the way to the whole issue of legislative change, eventually, which will require a permanent position. At the moment, of course, it is complicated, as you know, because of the way the law exists in terms of representation of all parts of the UK—by reference to jurisdictions—and we are still part of the England and Wales jurisdiction. But as we’ve discussed on many occasions, there is considerable movement as a result of the devolution process. Our representations still stand in respect of the need for a permanent judge and for legislative change to achieve that. But I believe very much that we are halfway there. And, yes, it was a great pleasure for me to be there at the swearing in, because this was a symbolic occasion, but it was also an extremely important Welsh symbolic occasion and marks an important milestone in the development of the Welsh jurisdiction and Welsh law.

Eluned Morgan

2. What is the Counsel General's assessment of the constitutional implications of the Sewel Convention on the European Union (Withdrawal) Bill? (OAQ51159)

Mick Antoniw

The Sewel convention plays a fundamental role in the operation of the UK’s devolved constitution. The UK Government has recognised that the European Union (Withdrawal) Bill will require the consent of the National Assembly in accordance with the convention.

Eluned Morgan

So, would the Counsel General agree with me that, if they were to try and undermine that need to consult with us and to indeed get our consent to this Bill on parts that were relevant to the devolution settlement, this could indeed provoke some kind of constitutional crisis for the Welsh Assembly?

Mick Antoniw

You make a very valid point. Of course, the issue of the Sewel convention was something that was considered during the article 50 case by the Supreme Court. Of course, much of the UK constitution is, in fact, based upon convention and is very much based upon agreement. So, the first point to make, I suppose, is that it was very sad and disappointing that the Bill was introduced without any proper engagement or consultation with the Welsh Government. Certainly, if the intention is to achieve legislation that has the consent of the devolved Governments to be part of that legislative process, then advanced consultation and engagement might have avoided some of the serious constitutional issues that I think now arise. What the Supreme Court said was that they do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. So, the Sewel Convention is extremely important and there are very serious constitutional consequences were the UK Government to seek to override that. The anticipation and hope is, though, that there will be agreement. We support many aspects of the Bill. We support the idea of the Bill to provide clarity and certainty. We certainly disagree, though, with the approaches whereby powers that are devolved matters are to be assumed by the UK Government and then, at some stage in the future, are possibly handed back—and in what form that actually takes. For me, that is almost like a form of constitutional mugging: someone who mugs you on the street, steals your wallet, but says, ‘Don’t worry, I’ll give it back to you afterwards’. That is not the way to proceed, which is why we have actually laid down in conjunction with Scotland a series of amendments that seek to rectify that, and we hope that those amendments will be supported and will achieve the objective, because it is a way in which agreement can be reached and through which consent can then be given to the legislation from the devolved Governments.

Mark Reckless

Does the Counsel General recognise that that Supreme Court judgment cut across the previous position, as put forward by the Welsh Government and, indeed, the First Minister? I recall him in this Chamber telling us of the importance to vote for the LCM on the Wales Bill, because it would put Sewel into statute and, as in Scotland, we would benefit from having that statutory underpinning of the Sewel convention. Isn’t the reality that the Supreme Court showed that legal position to be entirely misconceived and that the convention has no more weight now that it’s in statue than it did before?

Mick Antoniw

The first point is that you are totally wrong in terms of the position that the Supreme Court adopted. That was a position that we put forward and that was actually accepted by the Supreme Court, so there was no change there. It has never been our case or our argument that the Sewel convention is justiciable. The fact is that, under the Wales Act 2017, the Sewel Convention is put into statute—that is, it’s on the face of the Bill—but that does not per se make it justiciable. It is certainly the case that the issue of the Sewel convention, certainly post Brexit and post further constitutional reform, actually needs to be reviewed, because there is a very strong argument that it should be a justiciable convention. But in terms of what we argued, and in terms of what the Supreme Court held, there has been total consistency there and there is total agreement between the current constitutional analyses.

Jayne Bryant

3. What discussions has the Counsel General held regarding the implementation timetable for the Wales Act 2017? (OAQ51144)

Mick Antoniw

The main provisions of the Wales Act 2017, including those introducing the reserved-powers model, are expected to come into force on 1 April 2018.

Jayne Bryant

Thank you, Counsel General. On 1 April, powers in respect of fixed-odds betting terminals will be devolved to the Assembly. Members here will be aware of the growing concerns over problem gambling. Can the Counsel General comment on how these powers might help tackle this growing social issue?

Mick Antoniw

Well, what I can do is certainly do an analysis of what the legislation actually says, because the Wales Act provides Welsh Ministers and the Assembly with limited new powers in relation to the licensing of fixed-odds betting terminals. But, of course, those powers only relate to gaming machines, which will allow stakes of £10 or more. There are a few more things perhaps it’s worth saying specifically on that, and it’s also worth commenting that some powers have already been transferred to the Assembly generally under the Wales Act, and, of course, there are many more that will now be transferred, as of 1 April. But specifically with regard to the fixed-odds betting terminals, the Wales Act—what it does is provide Welsh Ministers and the Assembly with limited new powers in relation to fixed-odds gaming machines, equivalent, though, to the powers provided to Scotland via the Scotland Act 2016. Fixed-odds betting machines are a category B2 of gaming machines. They’re largely located in bookmakers, but they do allow customers to stake up to £100 every 20 seconds on electronic versions of the machines. The new powers relate to premises that hold a betting premises licence, under the Gambling Act 2005. They will enable the Welsh Ministers, via regulations, and the Assembly, via an Assembly Act, to vary the number of gaming machines of a certain type, authorised under such a licence. This would include reducing the number of authorised machines to zero.

Hefin David

4. What discussions has the Counsel General held regarding increasing diversity in representations to the Supreme Court? (OAQ51152)

Mick Antoniw

I have made representations to the Supreme Court about improving the diversity of the judiciary. I welcome very much the recent appointments of Lady Hale as president of the Supreme Court, the first ever female Supreme Court president, and Lady Black to the Supreme Court, and, as I’ve previously indicated, I also welcome the appointment of Lord Lloyd-Jones as the first Welsh Supreme Court judge.

Hefin David

Llywydd, the Counsel General has anticipated my question—absolutely fantastic. What steps, though, can the Welsh Government take to further enhance gender and ethnic diversity, both in the Supreme Court and in the in the sphere of legal jurisdiction as a whole?

Mick Antoniw

Well, the first thing is the Supreme Court itself has, since 2015, recognised very much the issue of diversity. And the current President of the Supreme Court, Lady Hale, has also said on a number of occasions that the courts have to be representative of society in general, and that they were not, and that it was important that that increasing diversity took place, in terms of gender, and in terms of race, and in terms of the background of those in the judiciary, and, really, from the lower levels of the judiciary to the most senior levels at the Supreme Court itself. These are representations that Welsh Government itself has made, in terms of any consultations and meetings with the Judicial Appointments Commission. There are a further three appointments to the Supreme Court to take place next year, as a number of lord justices retire, and we would hope that there will be further increase in diversity in all those areas to the Supreme Court. But let us not also forget that that’s a diversity that has to occur at the lower echelons of the judiciary, at all levels. So, that is something on which we’ve made those representations. It’s something that we very much support, and I’m pleased to say that it is something that is happening. It is beginning to happen. I think a decade ago we might have thought some of these measures and steps would have been inconceivable. So, there is a significant change under way at this moment in time and we are supporting that.

Simon Thomas

5. What discussions has the Counsel General held regarding the European Union (Withdrawal) Bill? (OAQ51163)[W]

Mick Antoniw

Well, this question engages the law officers’ convention, as the Member will know. Nevertheless, I can say that the Welsh Government has considerable concerns with the Bill, particularly in terms of the approach it takes towards devolution. I can assure Members that the Welsh Government is working tirelessly to ensure that Wales’s position is protected.

Simon Thomas

I thank the Counsel General for his reply. Can I ask him whether he’s seen the paper published by Plaid Cymru this week on the EU withdrawal Bill, ‘The EU Withdrawal Bill—A Legal Perspective: the constitutional implications for Wales’, authored by Fflur Jones? I’d be very happy to e-mail him a copy. There are several arguments set out by Fflur Jones in this paper, two of them I’d just like to mention here. One states that ‘The Bill as drafted adopts a binary approach to the devolution settlement, which does not reflect the “glue” that has been EU law on that settlement, nor the shared competences that exist between the UK Government and the National Assembly for Wales’. And she goes on also to argue that ‘The Bill requires significant amendment to ensure it does not erode the current devolution settlement in Wales, which is reflective of the wishes of the people of Wales as expressed in two referendums’— sic— ‘on devolution.’ I think you’d have sympathy with those arguments, Counsel General, as would the Welsh Government. So, can you say a little more than your original reply on how the Welsh Government can advance these strong legal and constitutional arguments, and seek the amendments now that the Bill goes through a committee of the whole House next week, I understand?

Mick Antoniw

The first thing is to thank the Member for his offer of the paper. I have looked at the paper, and I agree very much with its content and its analysis, which very much reflects, I think, also the analysis that’s been included in the statement of the First Minister to this Chamber. And I think it’s an analysis that has considerable common ground across all those within the legal profession, and the legal academics, but I think all those who are looking at the constitutional relationship and the issues around this particular Bill. It also reflects very much the considerable and detailed analysis that’s taken place in the House of Lords Constitution Committee, and, in particular, a paper that I think came out two weeks ago, which was from the House of Lords Brexit EU committee, which has made a number of similar points, and also made a number of concerns about the way in which Henry VIII powers might be used. One of the issues, of course, that arises from there, during any transition period, is the issue of the European Court of Justice. I’ve set out my views in the past on this—that I think this is an argument that the UK Government has got totally wrong. Any international agreement, any international convention, any international arrangement, will have a disputes forum, which is effectively a judicial process. And it is disappointing to see the misrepresentations, I think, that have been made of the impact and the role of the European Court of Justice. I note also that one of the points that Baroness Hale herself has made—her first speech, in fact, as president—was the need for clarity about what exactly the UK Government is saying about the judicial process and the disputes process. Because, if the Supreme Court is confused, and believes there was a complete lack of clarity, then heaven help the rest of society in understanding exactly what is being proposed. The amendments are the ones that are aimed, actually, to deal with the power grab, and, of course, the power grab goes at the core of the paper you referred to, and many other papers. It is a power grab that could have been avoided, I believe, by proper engagement and consultation. The positions that the Welsh Government has and the Scottish Government has are very similar. And what had been put forward are a number of what I think are very reasonable and very sensible amendments, which basically just require the consent of Welsh and Scottish Government in respect of those powers that are devolved areas of responsibility. Now, it seems to me there is difficulty to see why that should be objectionable, but, unless those matters are addressed, it is really inconceivable that Welsh Government, that this Assembly, would pass a legislative consent motion to the repeal Bill. Obviously, the amendment process is under way, and there will no doubt be further discussions. The First Minister met with the First Secretary of State, Damian Green, last month, to discuss the Welsh Government’s concerns, and to offer suggestions to resolve the current impasse, and the Welsh Government remains willing to continue to work towards this. The First Minister is meeting again with Damian Green, I believe today, and the JMC(EN) meeting that’s planned for later this month will also provide a further opportunity for that engagement. And I hope the willingness of the Welsh Government to work responsibly with the UK Government to resolve this is something that is taken up.

Michelle Brown

Counsel General, which specific demands are you making of UK Government, and how much success have you had so far?

Mick Antoniw

The demands of the Welsh Government are those that are set out in the amendments, which would actually resolve the flaws in the legislation itself. The First Minister made a very clear statement about them, and those amendments are available to be seen. They are essentially demands that just require the consent of the Welsh and Scottish Governments in those areas where there is a taking over of powers that are devolved responsibilities.

Neil Hamilton

6. What are the implications for Wales of adopting a distinctive justice system which is truly representative of Welsh needs? (OAQ51154)

Mick Antoniw

The First Minister announced on 18 September that he was setting up a commission on justice in Wales to review the justice system and policing and to consider how the system can achieve better outcomes for Wales.

Neil Hamilton

I thank the Counsel General for that answer. I know it’s the ambition of the Welsh Government to have a separate justice system in Wales. Wales has been incorporated into a fused jurisdiction for 600 years, and its history is very different, therefore, from Scotland and Ireland, including Northern Ireland. And, whilst there may come a time when there are significant divergences between the law as it applies in Wales and in England, we’re a very long way from that as yet, and therefore it would be important, if we’re going to keep the costs of the law in proportion, to proceed slowly in this respect. And in particular insofar as the regulation of the legal profession is concerned, does the Counsel General agree with me that it is certainly premature to think of splitting off the regulation of solicitors or members of the Bar—and I declare an interest as a member of the Bar myself, in this respect—from the one that currently exists in the jurisdiction of England and Wales?

Mick Antoniw

The first thing is, in terms of the ambition for a separate justice system, which you referred to, the ambition actually is related to the proper and most effective administration of justice. One of the complications, as I’ve said before, over the arguments over a separate jurisdiction are that it has almost achieved some sort of philosophical and catechismal status. A jurisdiction is really just an area where you have laws being made, and having one jurisdiction when there was just one parliament making law made sense; where you have another parliament making laws, it’s important that the system for the administration of justice actually reflects that. You make a valid point in respect of the scale of that, the extent, but of course the extent of divergence is not just in terms of the legislation we pass, but also the legislation that is passed in England as well that doesn’t apply to Wales. One of the ways of looking at this, which was, in fact, referred to some while back was a distinct jurisdiction. That is, not about taking over the judiciary, taking over the courts, the buildings, the personnel, but purely a system whereby you ensure that, if a case involves Welsh law, it is heard in Wales by judges and with lawyers and advocates who actually understand Welsh law. So that, I think, is the correct framework within which to look at that. In terms of regulation per se and the regulatory bodies for lawyers and, of course, the many non-lawyers who now work within legal services and the broader legal profession, I don’t think there’s ever been any case of putting up barriers. I think it is one of the perceptions I think it’s very important we avoid allowing to be created. We do not want to have barriers, we do not want to see barriers to Welsh lawyers being able to practise in England or English lawyers being able to practise within Wales, but it is solely about how you actually ensure that, firstly, lawyers practising in Wales do have the proper qualifications and knowledge of Welsh laws. I think the same actually will apply in respect of practising within England, and understanding what those differences are. There was an article—I don’t know if it’s the one the Member is referring to—that appeared, I think, in ‘The Law Society Gazette’ that said, ‘Now is not the time to split off’. It has never been a question of splitting off; that I think is a complete misunderstanding of what the development of a jurisdiction actually is. It is about the administration of law but not one where we want to have any perceptions of division, just ensuring that, where Welsh laws are involved, that the lawyers involved and the judiciary involved have been properly trained, and understanding what those laws actually are.

Jeremy Miles

I wonder whether the Counsel General would accept this contention that regarding the devolution of justice and distinct legal jurisdiction as an entirely discrete competence is actually a false distinction, and that it is better seen as part of a continuum where this place makes laws, and, in order for them to be properly implemented and enforced, it’s a question of a continuum between the passing of the law and the enforcement of the law. So, the absence of devolution of justice and a distinct legal jurisdiction in fact operates as a constraint on the devolution of other powers. Would he accept that contention?

Mick Antoniw

I do, and I think the point you make is an extremely important one because it goes to the root of the misunderstanding of the issues of jurisdiction and the divergence between Welsh law and English law. It is not a question of saying who should have the jurisdiction—should it be the UK Parliament, should it be the Welsh Assembly, or whatever; it’s a recognition of what the law actually is and how it interlinks with policy. So, the issues to do with policing, to do with youth justice, to do with prison and probation are not because they are a matter of saying, ‘Wouldn’t it nice to actually have these?’, but because the Assembly has responsibility for that policy, you cannot avoid the consequence of how that interreacts with the justice system itself. It is to actually have an integral relationship between them so that justice policy is then reflected in the justice system itself. I think that is an argument that needs to be explored, and that is why I’m extremely pleased that the former Lord Chief Justice, Lord Thomas of Cwmgiedd, has accepted the chairmanship of the justice commission that the First Minister is setting up, which I hope will have a broad remit to examine all those areas, not just in terms of jurisdiction but the interrelationship between policy and the law, the interrelationship between what we do and how that impacts on the justice system itself.