My Lords, the history of Welsh devolution has been a very tortuous one. Since 1999, it has not been a straight run down the piste but a series of slaloms—but we are making progress erratically, and this Bill takes us further. It has a good deal of cross-party support, although that might not have been apparent from what we have heard in the past few hours. As other noble Lords have said, progress owes a great deal to the Minister, a man I have always regarded as a,
“good deed in a naughty world”,
to quote the Bard, perhaps because he was trained in Aberystwyth, although it was slightly before my time there.
Most of the discussion has been around the two main features of the Bill—the reserved powers aspect and the provisions over income tax. I shall deal with those fairly briskly, as so many of the points have already been made. It is profoundly right and long overdue that the Parliament—or, to quote my noble friend, the Senedd—should have reserved powers and not conferred powers. A very strong case for that was made by the Silk report, on the grounds of clarity. It is also important to give greater authority to the Welsh Assembly comparable to Scotland and Northern Ireland. I have never understood why the Welsh Assembly and Government did not have reserved powers from the beginning. We have now got them, although, as noble Lords have said, with a number of limitations.
The Bill has been criticised for its complexity and contradictions. As other noble Lords have done, I welcome many of its features. It is very good to remove the notorious necessity test, which caused a great deal of lack of clarity. I welcome the greater powers and welcome very much the extension of devolution to energy and transport and the running of elections. On the other hand, as noble Lords have said, there are all these many restrictions. As a historian I find it slightly ironic that a measure designed to extend devolution in so many ways goes back on our history. I see that one of the reserved powers is the supply, distribution and sale of liquor. As I tried to explain in a book of mine that appeared—oh dear—52 years ago, and which is still on sale in Aberystwyth in all good bookshops, the principle was admitted in
1880 of the Welsh Sunday closing Act. That is to say, there was a legislative principle accepted for Wales and, accorded through that, the pubs could or should close on Sunday. All these many years later, that is reversed, which is very ironic.
As many noble Lords have said, a lot of progress needs to be made in Committee in that regard. It just shows that over the decades the constitutional and political status of Wales has been unequal. That is what an asymmetrical devolution means—it means that Wales is unequal, and does not have the status in its Assembly or its political authority that the other Celtic nations have.
There has been a lot of discussion about levying income tax. I am all in favour of Wales having the power to levy its own income tax, as Silk recommended. It seems to me, to reverse the famous phrase, you cannot have representation without taxation.
It is unsatisfactory to have your funding based on money that comes from somewhere else that you grumble about, in this case Whitehall and the Treasury. The Labour Party and the Government in Cardiff—and I entirely understand this—have been very critical of many features of this, particularly the fact that it will be yoked to the Barnett formula. They would like to see that removed before Wales has its own income tax: they will have to wait a very long time. The formula was a temporary stop-gap by our dear friend the late Lord Barnett in 1978. There is nothing more permanent than a temporary stop-gap and so it has been with the Barnett formula. I do not particularly like the idea of another referendum. As we have seen with Brexit, the last thing you have with a debate of that kind is a sensible discussion of constitutional and financial principles. There would be lots of wrangling in the press about whether income tax would go up or down and that is all you would have: it would be intellectually worthless. However, the Welsh Government and the Constitution Committee have expressed concerns, so I hope the Minister can give assurances that the overall funding will not suffer and that, in particular, the Welsh Government will have the power to extend their borrowing powers in due course.
I want to talk mainly about three other things. First, it is very important that Wales should have its own legal judicature. It has legislative powers but not a legislative system. We have a growing corpus of Welsh powers coming into being, but we have no structure. There should be a distinct Welsh legal jurisdiction to, among other things, avoid institutional conflict. Again, it is ironic how we have gone back on history. We did rather better under Henry VIII, God rest his soul, than we do now. His Act of Union, as the noble Lord, Lord Elystan-Morgan, will know, created Welsh courts—the Courts of Great Session, which disappeared in 1830. Otherwise, Wales suffers badly in this. We have no designated Supreme Court judge to pay attention to Welsh matters as there is for Scotland. There is an administrative court in Wales, but that is all. Otherwise, the Welsh legal system is administered through London. Therefore we find that Welsh law made in Wales and the wider English and Welsh law administered through the judicial system in London are applied to precisely the same areas of policy. At some stage this is bound to reach
confusion and conflict. If you do not take my word for it, there is rather more powerful evidence from, for example, the late Lord Bingham, who spoke very positively in favour of this principle. We have also had very supportive remarks from the Lord Chief Justice. Since his name is Lord Thomas of Cwmgiedd, that may explain his particular way of looking at things.
We do not want a separate Welsh legal system. We are not talking about independence for Wales but devolution: a different political complexion. A separate system would be anomalous and very expensive, but we should and could have a distinct jurisdiction as they do in Scotland, Northern Ireland, the Isle of Man, Jersey and Guernsey. Why not Wales? Why should Wales not have a system which would enable Welsh citizens to feel close to their law and which reflected their deeply felt identity as a nation?
I have two final points. I agreed very much with the peroration of the speech by the noble Lord, Lord Crickhowell: the union. I declare an interest as a member—like the noble Lord, Lord Hunt—of the Constitution Committee. Our report, which the noble Lord, Lord Crickhowell, kindly quoted, was about the union and devolution. This is again an example of piecemeal devolution. I am not criticising the Government particularly on this. It has been happening repeatedly since 1999. Where is the overarching statement of principle about the result of a change of this kind in relation to the union? We reported on this and, as I said previously, a virtue has been made of asymmetry. I do not think it has virtue: it is a way of demeaning Wales. I hope that the Minister, in his response, or the Government, when we look at the Bill at a later stage, can explain the organic relationship of this measure within the overarching union which we wish all these devolution measures to reinforce, not undermine.
My very short final point is that it would be very important to clear up all these issues before we have Brexit. Brexit will have a major impact on Wales in almost every aspect: in agriculture, education, industry, and almost every feature you can think of. It is crucial to have constitutional clarity within the United Kingdom and between all its governmental institutions before the iron curtain comes down.
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