The proceedings are
reported in the language in which they were spoken in the
committee. In addition, a transcription of the simultaneous
interpretation is included. Where contributors have supplied
corrections to their evidence, these are noted in the
transcript.
[7]
David Melding: Thank you for that. I do remember the force
with which you made that argument in evidence to the previous
committee, and perhaps I could just take you on there. I infer from
what you’ve said that you’re not convinced that the
Bill provides very much more clarity than the draft Bill. However,
in terms of space and what it allows the Assembly to do and the
lack of advance there, have we gone backwards at all in terms of
the Bill that’s being presented? Is there anything that is
actually going to end up making our legislative competence more
restrictive within the Bill as introduced compared to the draft
Bill? I realise that you want much more, but let’s just deal
with that first.
|
[8]
Professor Watkin: What I’d like to see more of is
improvement on the current settlement. I think that there are
clearly still some issues where there is roll-back on powers that
the Assembly currently has. The one that really strikes me most in
that regard on the face of this Bill, as on the draft Bill, is the
lack of provision to allow the Assembly to make incidental and
consequential changes to Minister of the Crown functions. That was,
of course, the basis of the challenge to the Local Government
Byelaws (Wales) Bill. If one looks at the provisions of the current
Bill as presented, it is quite clear that that would not have gone
to the Supreme Court because there would not have been an issue to
discuss.
|
[9]
David Melding: In fact, the First Minister’s said
that.
|
[10]
Professor Watkin: Yes. The Secretary of State’s
refusal would have been a refusal and that would have been that.
So, that is certainly a loss of competence—one that had been
gained, or at least confirmed, at considerable expense and effort.
And yet that has gone. Much the same can be said, but it’s
not quite so clear, with regard to the second of those references,
the Agricultural Sector (Wales) Bill. The substance of that Act is
now an exception to a reserved matter in the draft Bill. But, of
course, the substance of that Act was one of many things of that
nature that the Assembly could have done in other areas of
conferred competence. But the only one that is now being put in as
an exception, as far as I can see, is the one that has been gained,
again, at considerable expense and effort. So, one must assume that
there are many other things of that ilk that could have been the
subject of Assembly legislation—can be the subject of
Assembly legislation under the current settlement—which will
disappear if we go down the route of the draft Bill and the Bill
that is now presented.
|
[11]
David Melding: Okay. Those are fairly general points to
start with. Do you want to follow up any specifics in your
questions, Huw? Do you want to do it immediately? It’s fine
if you do, but can we—?
|
[12]
Huw Irranca-Davies: It’s only a brief supplementary.
From what you’re saying, if my understanding is correct, we
could be back in the same situation once again of challenging, like
we did with the agricultural wages Act, specifics and looking for
exceptions even within the Bill that’s in front of us.
|
[13]
Professor Watkin: I think the danger is that the Bill that
is in front of us would not allow you to proceed in the same way in
relation to other headings of competence as you were able to do, or
as the Assembly was able to do, in the case of the Agricultural
Sector (Wales) Bill. There will have been, in point of fact, a
loss; the ground is lost before you get to that point.
|
[14]
David Melding: Presumably, the draftspeople in Whitehall
would be quite pleased if they’ve produced that sort of
clarity that you wouldn’t need to go to the Supreme Court.
But of course the issue was, when most people talk about a
reserved-powers model, they assume that what you were reserving
were those matters essential to the UK Government’s functions
and not, you know—. I think that was picked up as a general
issue in the draft Bill and it’s something no doubt we would
want to reflect on. Let’s move to some specifics. The first
one I think we want to look at is the permanence of the Assembly
and then the issue of the body of Welsh law and distinct
jurisdiction and such matters and I’m going to ask Gareth to
ask these questions.
|
[15]
Gareth Bennett: Yes. Thanks, chairman. Thanks for your
contribution, Professor. My colleague, actually, wanted to ask for
your comments on any changes to clause 1 from the draft Bill
pertaining to the permanence of the Assembly.
|
[16]
Professor Watkin: Well, the clause has clearly been extended
in terms of its content. I think the intention is the same,
clearly: it’s to recognise the political reality, as it was
put, I think, by Professor Adam Tomkins when he was giving evidence
to this committee looking at the draft Bill, that the Assembly and
the Welsh Government are to be regarded as being permanent within
the arrangements of the United Kingdom. There is, however, of
course, this subsection, which follows, saying what the purpose of
the section is, and it says that it’s,
|
[17]
‘with due regard to the other provisions of this Act, to
signify the commitment of the Parliament and Government of the
United Kingdom to the Assembly and the Welsh Government.’
|
[18]
I rather dislike that subsection, I must say. The reason I dislike
it is that it seems to give a commitment to institutions, and the
reason I dislike the commitment to institutions is this: I feel
that the commitment needs to be to the existence of the Assembly,
and the existence of the Assembly is the vehicle by which the
people of Wales can legislate for themselves, and the Welsh
Government, by which they can govern themselves. As I said, I
think, in a previous evidence session here, I think what is really
needed is a recognition of the right of the Welsh people to have a
legislature and a government of their own within the context of the
devolution settlement. I therefore dislike the way that there seems
to be an inter-institutional commitment rather than the commitment
of the United Kingdom and the people of the United Kingdom to the
people of Wales. I think it’s that sort of constitutional
statement that I would prefer to see rather than the recognition of
institutional permanence.
|
[19]
David Melding: And that could have expression in
statute.
|
[20]
Professor Watkin: Well, it’s customary to have that
sort of expression in written constitutions, isn’t it?
I’m sure you don’t want to go there, but that’s
the sort of thing one is moving towards with this sort of
statement, without actually reaching the point, which is also
almost inevitably where you must arrive, that is, recognising the
rights of the people of Wales as a community to their own
legislative and governmental institutions, not just to the
existence of the institutions.
|
[21]
The third clause is, I think, welcome, again, as an expression of
political reality. It gives rise, of course, to the question of in
what circumstances would such a referendum be held, and, at this
particular moment in the development of the United Kingdom, with
the referendum tomorrow on our continued membership of the European
Union, whereas looking at this now one would think it would never
occur, one can never be certain of that, and one needs to know
exactly in what sort of circumstances it might occur. I say that
partly as a result of the shock of seeing over 40,000 people in
Wales, at the last Assembly elections, voting for the Abolish the
Welsh Assembly Party. So, there is clearly feeling there that could
be harnessed. I think it’s a good thing that it’s
recognised that the change would not take place without a
referendum, but I don’t think that that in itself is a cause
for complacency, and how far the number of people who are
dissatisfied would increase if the devolution settlement does not
become more user-friendly is a serious question for all those
involved in fashioning it.
|
[22]
David Melding: Thank you. Do you want to move to the second
question?
|
[23]
Gareth Bennett: Yes. My colleague, who unfortunately
isn’t here, was also interested about the practical effect of
the Bill containing a recognition of ‘a distinct body of
Welsh law’ and what you thought about that.
|
[24]
Professor Watkin: I think there is a distinct body of Welsh
law, and indeed I’ve been saying this, I think, again to this
committee, on numerous occasions in the last few years, beginning,
I think, with when the committee held its inquiry on a Welsh
jurisdiction, if my memory serves me right, about four years ago.
My own view is that there is now within the legal system of England
and Wales three bodies of law that can be recognised: a body of law
that applies only in Wales, a body of law that applies only in
England and a body of law that applies in both countries. I think
that the legal system needs to adapt itself to that new reality, a
reality that is growing as the body of law that applies only in
Wales and the body of law that applies only in England increase in
size.
|
15:45
|
[25]
Having said that, I’m not entirely happy with the clause in
the draft Bill. The reason for that is that it states that there is
a body of Welsh law made by the Assembly and the Welsh Ministers.
That’s true, but it’s not the same as the body of law
that applies only in Wales, because the body of law that applies
only in Wales also consists of those Acts of Parliament that have
been made specifically for Wales over the years but have no
application in England, but, perhaps more importantly, parts of the
law of England and Wales that become Wales-only laws when the UK
Parliament legislates for England only. All of those form part of
the body of Welsh law, but they’re not all made by the
Assembly and the Welsh Ministers. I think it’s that wider
meaning of the body of Welsh law that needs to be considered when
one is recognising the new legal reality that generates the need
for jurisdictional development.
|
[26]
Looking at the second subsection in that insertion, again
we’re told what the purpose of the section is and we’re
told that it’s to recognise the ability of the Assembly and
the Welsh Ministers to make law forming part of the law of England
and Wales. When I put the two together, all I can really make of it
is to say that what the new 92B does is recognise that some of the
law of England and Wales is made by the Assembly and the Welsh
Ministers, and regards that as being a body of Welsh law. I
don’t really think that that is what is needed. What is
needed is recognition of a body of law that applies only in Wales
regardless of where it’s made and who makes it; it’s
where it applies that’s important. And, indeed, the way it
reads here, you could just as easily take it to mean that
there’s a body of Welsh language law that is made by the
Assembly and the Welsh Ministers and that, of course, is true, but
it’s not, I think, what is needed in order to move the
settlement onwards.
|
[27]
David Melding: It’s very nuanced and interesting and I
think we will reflect very much on that. I suppose it’s also
meant to take us somewhere beyond the debate about a Welsh
jurisdiction, but a Welsh jurisdiction would run into similar
problems, wouldn’t it, in terms of its simplicity of
expression, because you’d have more than one legislature
still in that jurisdiction if you include Parliament’s
ability to pass certain laws for Wales only.
|
[28]
Professor Watkin: Indeed. My own feeling about the Welsh
jurisdiction—again, it goes back to what I said to the
committee four years ago and my views really haven’t changed
much, if at all, during that period—is that what is needed is
an arrangement that recognises the fact that you do have these
three bodies of law and that therefore, the jurisdictional
arrangements need to reflect that to make sure that, where
you’re dealing with the body of law, not in the sense that it
is in 92B, but in the sense that I’ve just described it, it
is courts in Wales that administer it. And, likewise, where
you’re dealing with England-only law that it’s courts
in England that deal with it. But, where you’re dealing with
a law that applies in both countries, both sets of courts also have
complete jurisdiction in that regard, so you’re not
unnecessarily untying the jurisdictional knots. That basically is
the adaptation that I would favour seeing in that regard—that
is, a change to the jurisdiction arrangements that reflects and
keeps pace with the changes in devolution.
|
[29]
David Melding: Thank you for that. I think we’d like
to move on now and look at reservations and Dafydd will lead us
there.
|
[30]
Yr Arglwydd
Elis-Thomas: Diolch yn
fawr, Gadeirydd. Gan fy mod i wedi arfer ymddiddan gyda’r
Athro Thomas Watkin yn Gymraeg, well i mi wneud hynny heddiw hefyd.
Roeddwn i’n gwrando gyda diddordeb mawr ar yr hyn yr oedd
gyda chi i ddweud ynglŷn â’r syniad o ofod i ddeddfu yn rhydd. Roeddwn
i’n meddwl fod hynny yn gosod anghenion cyfansoddiadol mewn
ffordd eithaf gwahanol i beth sydd yn y Deddfau rydym wedi bod yn
delio efo nhw. Fe gawsom ni, yn Neddf Llywodraeth Cymru 2006,
Atodlen 7, a rŵan mae gennym ni Atodlen 7A a 7B. A garech chi,
yn gyntaf, gymharu'r modd y mae’r cyfyngiadau wedi cael eu
gosod yn nhermau cymalau cadw ac yn nhermau cymalau a oedd yn gosod
grymoedd o’r blaen, a hefyd, efallai, y gwahaniaeth rhwng
hyn—mewn ffordd o osod setliad a diffinio cymhwysedd
Cynulliad Cenedlaethol Cymru—y gwahaniaeth rhyngddo fo a
Chynulliad Gogledd Iwerddon a Senedd yr Alban, yn yr
effeithiau?
|
Lord
Elis-Thomas: Thank you very much, Chair. As I am used to
conversing with Professor Thomas Watkin in Welsh, I shall do so
again today. I was listening with very great interest to what you
had to say about this concept of space to legislate freely. I
thought that that placed the constitutional needs in quite a
different perspective to what has been included in the legislation
that we have dealt with. We had, in the Government of Wales Act
2006, Schedule 7, and now we have a Schedule 7A and 7B. First of
all, would you wish to compare the way in which these reservations
have been set out in terms of the reservations as they are now and
the conferral that existed in the past, and, perhaps, the
difference between this—as a way of putting in place a
settlement and defining the competence of the National Assembly for
Wales—the difference between this and the approach in the
Northern Ireland Assembly and the Scottish Parliament, in terms of
its impact?
|
[31]
Yr Athro Watkin:
Nid wyf yn siŵr a allaf wneud yr
ail beth, oherwydd nid wyf yn arbenigwr ar gyfraith yr Alban a
Gogledd Iwerddon. Ond yr hyn rwy’n ofni, wrth inni symud
o’r setliad o dan Ddeddf 2006—o’r pwerau sydd
wedi cael eu gosod at setliad o bwerau sydd wedi cael eu cadw yn
ôl—yw’r ffaith nad yw’r prawf wedi
newid.
|
Professor Watkin: I'm not sure if I
could actually answer your second question, because I’m no
expert in Northern Irish or Scottish law. But what I fear, as we
move from the settlement under the Government of Wales Act
2006—from conferred powers towards a reserved-powers model as
is set out here—is the fact that the test hasn’t
changed.
|
[32]
Felly, o’r blaen, roeddech yn
gofyn y cwestiwn, ‘Does this relate to—?’,
beth bynnag oedd y pwnc. Os oedd y ddarpariaeth yn cysylltu
â’r mater, roeddech y tu fewn i gymhwysedd. Yn y Bil
drafft a’r Bil newydd, y cwestiwn yw: a yw’r
ddarpariaeth yn y Bil yn y Cynulliad, yn defnyddio’r un
prawf, ‘Does it relate to—?’, yn awr yn
rhywbeth sydd wedi cael ei gadw’n ôl? Mae nifer
o’r pethau sydd wedi cael eu cadw’n
ôl—roedden nhw’n eithriadau o dan yr hen
setliad—wel, y setliad presennol.
|
Therefore, in the past, you would ask the
question, ‘Does this relate to—?', whatever the subject
was. If the provision did relate to that particular subject, then
you were within competence. In the draft Bill and the new Bill, the
question is: whether the provision of an Assembly Bill, using the
same test, ‘Does it relate to—?', is now in relation to
something that is reserved. A number of the things that are
reserved were exceptions under the old settlement—or rather,
under the current settlement.
|
[33]
Ond, ynglŷn â’r
eithriadau, nid y prawf ‘relates to’ a oedd yn
gweithio, ond y prawf ‘falls within’, nad oedd
cweit mor gyfyng â’r cwestiwn sy’n codi nawr.
Felly, wrth newid yr eithriadau i faterion sy’n cael eu
cadw’n ôl, rydych yn ehangu'r materion yna. Ac, wrth
gwrs, felly, yn colli cymhwysedd.
|
But, in terms of those exceptions, it’s
not the test of ‘relates to’ that was relevant, but the
test of ‘falls within’, which was not quite as
restrictive as the question that’s currently posed. So, in
changing the exceptions to reservations, you are broadening the
range of those matters. And, therefore, losing competence.
|
[34]
Gan gymryd yr enghraifft o
amaethyddiaeth, os ydych yn gofyn y cwestiwn am y Bil, sef yr
Agricultural Sector (Wales) Bill a’i
ddarpariaeth—‘Did they relate to
agriculture?’—yr ateb i’r cwestiwn oedd:
roedden nhw. Roedd y Twrnai Cyffredinol yn dadlau, ‘they
relate to employment’.
|
To take the example of agriculture, if you
were to ask the question about the Agricultural Sector (Wales) Bill
and its provisions—‘Did they relate to
agriculture?’—well, yes, they did. The Attorney-General
argued, ‘they relate to employment’.
|
[35]
Nawr, o dan y Bil newydd, fe fydd y
gyfraith ynglŷn â employment yn cael ei chadw yn
ôl, ond ni fydd amaethyddiaeth yn dangos ar wyneb y Ddeddf.
Fel canlyniad, byddwch yn gofyn y cwestiwn: ‘Does this
relate to employment?’ Yr ateb yw ‘ydy’.
Felly, rydych wedi colli cymhwysedd. Rydych y tu fas i’r
cymhwysedd ar unwaith.
|
Well, under the new Bill, the law on
employment will be reserved, but agriculture won’t appear on
the face of the legislation. As a result of that, you will ask the
question: ‘Does this relate to employment?’ The
conclusion will be ‘yes’. Therefore, you have lost
competence. You are outside competence immediately.
|
[36]
Dyna’r fath o broblem
sy’n codi, rwy’n credu, wrth newid o’r setliad o
bwerau sydd wedi cael eu gosod i bwerau sydd wedi cael eu cadw yn
ôl, os ydych yn cadw’r un prawf. Y broblem yw, wrth
gwrs, dyna’r prawf sydd yn bodoli yn yr Alban ac yng Ngogledd
Iwerddon. Felly, os ydych yn defnyddio prawf ar wahân i
Gymru, efallai y byddwch yn rhoi mwy o bwerau deddfu i Gymru na
sydd gan yr Alban a Gogledd Iwerddon.
|
That’s the kind of problem that emerges,
I think, in moving from the conferred-powers settlement to a
reserved-powers model, if you stick to that same test. The problem
is, of course, that that is the test that exists in Scotland and
Northern Ireland. Therefore, if you use a separate test for Wales,
perhaps you will be giving more powers to Wales than either
Scotland or Northern Ireland currently has.
|
[37]
Felly, yn wleidyddol, mae’r
peth yn anodd iawn. Ond, i fi, heb os nac oni bai, wrth newid
o’r un math o setliad i’r llall—a dim ond newid
yr eithriadau i mewn i faterion sydd yn cael eu cadw yn
ôl—mae’n anochel eich bod yn colli
cymhwysedd.
|
So, politically, it’s extremely
difficult. But, for me, there is no doubt about the fact that the
change from one settlement to another—and only changing the
exceptions into reservations—is inevitably going to mean that
you are going to lose competence
|
[38]
Yr Arglwydd
Elis-Thomas: Nid wyf
eisiau gofyn ichi ddweud unrhyw beth—ac ni fyddech yn dweud,
wrth gwrs—unrhyw beth na fyddech am ei ddweud, ond mae wedi
fy nharo i, ers imi astudio’r Bil newydd yma, bod hwn
wedi’i ysgrifennu yn bennaf er mwyn goresgyn y sefyllfa a
ddigwyddodd yn y Goruchaf Lys gyda’r holl gwestiwn yma o
gymhwysedd y Bil taliadau amaethyddol. Oherwydd drwy y math o ddehongliad barnwrol a gawsom
ni gan y Goruchaf Lys, fe ddiffiniwyd cymhwysedd datganoledig y lle
hwn a grymoedd Gweinidogion Cymru mewn modd ehangach, efallai, nag
oedd rhai pobl—ac, yn amlwg, Llywodraeth y Deyrnas Unedig, o
ystyried y safbwynt a gymerwyd ganddyn nhw yn y Goruchaf
Lys—yn ei ddymuno. Ac felly, drwy ba resymeg cyfansoddiadol y
mae rhywun yn disgwyl gweld Senedd y Deyrnas Unedig yn ceisio cau
bylchau—neu Llywodraeth y Deyrnas Unedig yn gofyn i Senedd y
Deyrnas Unedig—gau bylchau mewn ffordd nad oes a wnelo fo
ddim ag eglurder cyfansoddiadol, ond mae a wnelo fo â
chyfyngiad ar ddatblygiad datganoli? Ydy hynny yn rhy
gignoeth?
|
Lord Elis-Thomas: I don’t want to
ask you to say anything—and you wouldn’t, of
course—that you wouldn’t wish to say publicly—but
it has struck me, since I started studying this new Bill, that this
has been drafted mainly in order to overcome the situation that
occurred in the Supreme Court in terms of this whole question of
the competence of the agricultural sector Bill. Because through the
kind of judicial decision that we received from the Supreme Court,
the devolved competence of this place and the powers of Welsh
Ministers was defined in a broader way than some people—and,
clearly, the UK Government, given the stance that they took in the
Supreme Court—wished to see. And therefore, what
constitutional rationale can one use in expecting to see the UK
Parliament trying to actually close gaps—or the UK Government
asking the UK Parliament—to actually close those gaps in a
way that has nothing to do with constitutional clarity, but does
relate to a restriction on the development of devolution? Is that
too close to the bone?
|
[39]
Yr Athro Watkin:
Rwy’n credu fod y sefyllfa yn
agored i’r dehongliad yna. Wrth edrych nôl, rwy’n
credu, ar y tro diwethaf roeddwn yma yn rhoi tystiolaeth i’r
pwyllgor yma ar y cyd gyda Phwyllgor Materion Cymreig San Steffan,
roedd yn amlwg bod rhai Aelodau San Steffan yn credu mewn rhyw
ffordd neu’i gilydd bod y Goruchaf Lys wedi camddeall yr hyn
roedd Senedd San Steffan ei eisiau yn Neddf 2006. Mae hynny i mi yn
ffordd anghywir o edrych ar y sefyllfa, oherwydd mae’r
Goruchaf Lys yn dehongli’r Ddeddf fel y mae. Ac, wrth gwrs,
nid yw barn Aelodau Seneddol heddiw yn berthnasol o gwbl i’r
hyn yr oedd y Senedd yn ei fwriadu yn 2006. Mae’r Ddeddf yn
dechrau gyda'r geiriau:
|
Professor Watkin: I think the situation
is open to that interpretation. In looking back at my last visit,
when I gave evidence to this committee jointly, when you met with
the Welsh Affairs Committee in Westminster, it was clear that some
Members from Westminster believed that, in one way or another, the
Supreme Court had misinterpreted what the Westminster Parliament
had anticipated in the 2006 Act. For me, that’s the wrong way
of looking at the situation, because the Supreme Court actually
interprets the Act as it is. And, of course, the views of Members
of Parliament today aren’t in any way relevant to what
parliament had intended in 2006. The Act starts with the words:
|
[40]
‘Be it enacted...in this present Parliament
assembled...’
|
[41]
Nid yw barn Senedd mwy diweddar o
unrhyw werth, mewn ffordd, oherwydd mae’r Aelodau wedi newid
ac mae’r Llywodraeth wedi newid. Ond beth mae’r
Goruchaf Lys a llysoedd eraill yn chwilio amdano yw bwriad y Senedd
ar y pryd. Ond, wrth gwrs, mae’n agored i’r Senedd i
ailddeddfu os nad ydynt yn dymuno’r hyn sydd wedi digwydd,
ond os ydych chi’n gwneud hynny, mae’n rhaid bod yn
onest a dweud eich bod chi yn cymryd nôl bethau a oedd wedi
cael eu rhoi.
|
Therefore, the views of a later Parliament are
of no value, in a way, because the membership has changed and the
Government has changed. But what the Supreme Court and other courts
are seeking is the intention of Parliament at the point that it
legislated. But, of course, it is open for Parliament to
re-legislate if they are not content with past legislation, but if
you do that, you have to be honest and say that you are taking back
powers that had been conferred.
|
[42]
Yr Arglwydd
Elis-Thomas: Ond yr hyn
sy’n anodd yw pan fo Senedd sydd gyda’r grym i wneud
hynny yn defnyddio hynny i gyfyngu ar ddatblygiad cyfansoddiadol
Senedd arall. Mae hynny, yn fy marn i, yn mynd i dir cyfansoddiadol
dyrys iawn, oherwydd mae o yn creu sefyllfa—a dyma’r
ail gwestiwn—lle gellid dadlau, ar ôl i etholwyr Cymru
yn y refferendwm diweddaraf bleidleisio ar yr egwyddor o ddatganoli
deddfwriaethol, a hynny gyda mwyafrif sylweddol, bod Senedd
bresennol y Deyrnas Unedig—ac felly’r Llywodraeth
bresennol drwy’r Senedd bresennol—yn cymryd
arni’i hun i weithredu mewn ffordd sydd yn groes i ddymuniad
pobl Cymru mewn refferendwm.
|
Lord Elis-Thomas: But what is difficult
is when a Parliament that has the power to do that uses that to
restrict the constitutional development of another Parliament or
Assembly. That, in my view, goes into very complex constitutional
areas, because it does create a situation—and this is the
second question—where one could argue that, after the Welsh
electorate in the latest referendum voted on the principle of
legislative devolution, and did so with a significant majority,
that the current UK Parliament—and the current Government
through the Parliament—is taking it upon itself to act in a
way that is contrary to the wishes of the people of Wales as
expressed in a referendum.
|
[43]
Yr Athro Watkin:
Mae’n agored i’r
dehongliad hwnnw.
|
Professor Watkin: It’s open to
that interpretation.
|
[44]
Yr Arglwydd
Elis-Thomas: Diolch. Ac a
gaf i ofyn un cwestiwn arall? A oes yna ryw feysydd eraill yn
arbennig yn y cymalau cadw yr ydych chi yn eu hystyried yn gam yn
ôl annisgwyl o ran cymhwysedd? Rwy’n meddwl am gyfraith
gymdeithasol, er enghraifft, ynglŷn â
mabwysiadu.
|
Lord Elis-Thomas: Thank you. And may I
ask one further question? Are there any other areas particularly in
the reservations that you believe to be an unexpected rollback of
competence? I am thinking, for example, of social policy in terms
of adoption.
|
[45]
Yr Athro Watkin:
Ie, mae rhywbeth rhyfeddol wedi
digwydd yna yn fy marn i.
|
Professor Watkin: Yes, something quite
surprising has happened there in my view.
|
[46]
Yr Arglwydd
Elis-Thomas: Dyna rydym ni
yn ei feddwl, rwy’n credu.
|
Lord Elis-Thomas: That is what we
think, I believe.
|
[47]
Yr Athro Watkin:
Os ydych chi’n edrych ar y Bil
drafft, rydych chi’n gweld bod yna—os gallaf ei
ffeindio yma—section N8, ‘Intercountry
adoption’. Mae’r materion yna—214 a
215—‘Intercountry adoption’, ac
wedyn
|
Professor Watkin: If you look at the
draft Bill, then you will see—I wonder if I can find it
here—that there is a section N8, ‘Intercountry
adoption’. There are those matters—214 and
215—‘Intercountry adoption’, and then
|
[48]
‘Functions of the Central Authority under the Hague
Convention on Protection of Children and Co-operation in respect of
Intercountry Adoption.’
|
16:00
|
[49]
Fel materion sydd wedi cael eu cadw
yn ôl, mae’r rheini yn diflannu o’r Bil newydd. Felly, nid ydyn nhw yna. Ond
pan ydych chi’n edrych ar—os gallaf ei ffeindio
fe’n glou—section L12 nawr, yn y Bil newydd, mae
hynny wedi cael ei ehangu, ond mae yna eithriad, a’r eithriad
yw: ‘Adoption agencies and their functions’. Mae
hynny ar dudalen 70 o’r Bil newydd. Ond, er bod
‘Adoption agencies and their functions’ yn
eithriad yn y Bil drafft hefyd, mae’r Bil newydd wedi
ychwanegu
|
As reservations, these will disappear from the
new Bill. So, they’re not included as reservations. But when
you look at—let me just try and find this again—section
L12 of the new Bill, then that has been expanded, but there is an
exception, and the exception is ‘Adoption agencies and their
functions’. That is on page 70 of the new Bill. But, although
‘Adoption agencies and their functions’ is an exception
in the draft Bill too, the new Bill has added
|
[50]
‘other than functions of the
Central Authority under the Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry
Adoption.’
|
[51]
Mae’r materion a oedd wedi cael
eu cadw yn ôl wedi diflannu, ond maen nhw wedi dod i mewn
yma, fel rhywbeth y mae’r papur o Dŷ’r Cyffredin
yn ei alw’n ‘carve out’ o’r eithriad
sydd yna. Felly, nid yw’r gofod yn fwy, er bod y nifer o
faterion sydd wedi cael eu rhestru yn llai. Mae hynny’n
digwydd mwy nag unwaith yn y Bil newydd. Os ewch chi trwy’r
Bil, rydych yn gweld, mwy nag unwaith, mai beth sydd wedi digwydd
yw’r ffaith bod y rhestr o faterion wedi cael ei lleihau, ond
mewn modd sy’n sicrhau nad oes yna ddim mwy o le i
ddeddfu.
|
Therefore, the issues that were reserved have
disappeared, but they have been included here as what the House of
Commons paper would describe as a ‘carve out’ of the
exception. Therefore, the space is no greater, although the number
of reservations listed is reduced. That happens more than once in
the new Bill. If you actually go through the Bill, you will see
that, more than once, what has happened is that the list of
reservations has been reduced or curtailed, but in a way that
ensures that there is no greater space to legislate.
|
[52]
Yr enghraifft orau, efallai, yw adran
G, lle yr oedd yna bum adran, a bellach dim ond un sydd, ond yr
adrannau oedd: ‘G1 Architects’, ‘G2
Health Professions’, ‘G3 Auditors’;
pan edrychwch nawr, dim ond G1 sydd yna, ac G1 yw:
‘Architects, auditors, health professionals’.
Maen nhw i gyd o dan yr un pennawd. Felly, nid ydych wedi cael mwy
o bwerau o gwbl; yr unig beth maen nhw wedi ei wneud yw
lleihau’r rhestr—ac mae hynny’n digwydd nifer o
weithiau.
|
I think the best example of this, perhaps, is
section G, where there were five sections, but now there is just
one, but those sections were, ‘G1 Architects’,
‘G2 Health Professions’, ‘G3 Auditors’; you
now only have G1, and G1 is ‘Architects, auditors, health
professionals’. They’re all included under the same
heading. So, you haven’t enhanced your powers at all, all
they’ve done is to reduce the number of reservations on the
list—and that happens on a number of occasions.
|
[53]
Yr Arglwydd
Elis-Thomas: Ond onid ydy
hyn efallai’n cadarnhau beth yr oeddem ni’n ei drafod
ychydig funudau yn ôl, sef bod yr holl ymarfer wedi bod yn
gosod cymhwysedd o dan fwy o bwysau—gwell imi beidio â
dweud ‘gosod’ achos ei fod yn cymhlethu pethau, ond yn
cyfyngu cymhwysedd dan gochl y syniad bod mynd i faterion sydd wedi
eu cadw yn ôl yn rhoi mwy o rym na materion wedi eu
gosod?
|
Lord Elis-Thomas: But doesn’t
this therefore confirm what we were discussing just a few moments
ago, namely that the whole exercise has been placing competence
under greater pressure, or has restricted competence under the
cloak of this concept that moving towards a reserved-powers model
does provide greater power than a conferred-powers model?
|
[54]
Yr Athro Watkin:
Yn ei hun, byddwn; dyna’r
cwestiwn. Y cynnwys sydd yn bwysig. I fi, mae hwn yn-. Rwy’n
ofni gweld rhestr o’r fath yma wrth i bobl gredu y buasai
symud ymlaen yn ei hun yn gwneud pethau llawer yn well. Rwy’n
ofni mai hwn fyddai’r canlyniad. Rwy’n ofni wedyn bod y
ffaith bod y materion eraill am gael caniatâd Gweinidogion y
Goron ac am y profion angenrheidrwydd wedi tynnu sylw o’r
ffaith mai’r peth mwyaf pwysig oedd sicrhau y gofod oedd gan
y Cynulliad i ddeddfu. A dyma le rwy’n siomedig ynglŷn
â’r Bil newydd: nid wyf yn credu bod y broblem yna eto
wedi cael ei datrys.
|
Professor Watkin: Well, yes;
that’s the question. It’s the content that’s
important. To me, this is—. I do fear seeing a list such as
this as people believe, as we move forward, that this of itself is
going to improve the situation greatly. I fear that this would be
the outcome. I then fear that the other issues where ministerial
consents are required and where the necessity test was required has
actually detracted attention from the fact that the most important
thing was to secure that space for the Assembly to legislate. This
is where I’m disappointed about the new Bill: I don’t
think that that problem has yet been resolved.
|
[55]
David Melding: Thank you. I’ll ask Huw Irranca-Davies
to move us on to the next range of questions we want to put to
you.
|
[56]
Huw Irranca-Davies: Thank you, Chair. I just wonder, Chair,
if I could just dwell on that for a moment. That was extremely
helpful, that exchange there with my esteemed colleague beside me.
It seems to me that it’s not so much that there is a
difficulty then with the principle of a reserved-powers model, but
the content and the exceptions and the detail is paramount. Let me
just put it to you: it seems that one of the useful things that our
engagement in this as a committee, but also the engagement between
the Secretary of State for Wales’s office and the First
Minister’s office from here, over the summer until it gets
back up to the other place at the other end of the M4, should be on
engaging on this area and making sure that there is no roll-back,
from our perspective, this side of the M4, but also from, I
suspect, that of the people of Wales—that they should be
proofed, in some way, against roll-back. Because I noticed you said
in those remarks that, in moving to a reserved model, you lose
competence. Well, only if the content and the detail are wrong.
|
[57]
Professor Watkin: Yes.
|
[58]
Huw Irranca-Davies: Okay, thank you for that. I just wanted
to ask you one other very quick one before I move on with my
questions, and it comes from the earlier exchanges, which is this
question you raised about the—I think your words were the new
legal reality that recognises the need for jurisdictional
development, and you talked about where law for Wales is made: it
could be at the other end of the M4, or it could be down here. Do
you think it’s immensely difficult to craft a clause that
could express the collection of all the Welsh law in terms of that
distinct—? Is it particularly difficult to express in
statute, that no matter where that legislation is made, it falls
into a distinct jurisdiction in Wales?
|
[59]
Professor Watkin: It’s a question of perspective and
focus. The current suggested 92B focuses on where the law is made.
The focus that’s needed is focusing where it applies.
|
[60]
Huw Irranca-Davies: Right. As simple as that.
|
[61]
Professor Watkin: I think, basically, that’s what it
comes down to.
|
[62]
Huw Irranca-Davies: Thank you. To move on to the issues I
wanted to raise with you, when you’ve appeared previously
during the scrutiny on the draft Wales Bill, you did express strong
concerns about the so-called ‘necessity tests’, and you
touched on these in your opening remarks. You mentioned that, in
terms of private and criminal law, it seemed that you have now some
comfort. Are you totally comfortable now that this has addressed
your concerns about the Bill acting as a constraint on the Assembly
as a legislature?
|
[63]
Professor Watkin: Not totally comfortable, no. I think the
changes that have been made with regard to criminal law have
clearly identified what are to be the reserved offences, if I can
put it that way, and made it clear where the Assembly then is free
to legislate. I think that’s a massive improvement upon what
was suggested with regard to criminal law in the earlier draft.
I’m less comfortable with regard to private law because it
lacks that specificity. It still uses terms that are widely
understood but are not terms of art, such as ‘the law of
contract’ and ‘the law of property’. Now, if one
asks, ‘What is the law of property?’, is one talking
about the law of landlord and tenant, which is something upon which
the Assembly clearly has legislated? There are areas in which
it’s very difficult to say how you would categorise on some
of these boundaries. That lack of specificity will leave a lot to
the judgment and judgment calls of individuals in the future with
regard to whether or not the boundary has been passed. And
it’s that lack of certainty, I think, that is the enemy of
the legislative freedom that a legislative body needs to have.
|
[64]
But I think you could resolve that quite easily, to a certain
extent, by making a jurisdiction arrangement that would allow for
some degree of variation, because the reality is that, across the
common law world, where there has been independence given to
countries, you haven’t had the sort of divergence with regard
to these areas of the law that has made it impossible for there to
be interchange of judges, for appeals to come to this country from
other parts of the Commonwealth to be taken by judges from England
and Wales. It’s not made it impossible for students from
across the Commonwealth to come to study law here and go back and
take their qualifications with them. Why it should be thought that
Wales will act in a way that is entirely different and create a
division that will make it impossible for there to be interchange
of that nature, I don’t know. But it strikes me as flying in
the face of the historical reality here, rather than the legal
reality.
|
[65]
Huw Irranca-Davies: Okay, thank you for that. I’m
going to ask you a question but I think your comments already have
indicated what the answer might be, but it’s in relation to
the Secretary of State. At Second Reading, his comments in respect
of a separate legal jurisdiction—let me just read you what he
said. He looked at the changes that have been made in terms
of—he said he’d listened to the concerns about a
separate legal jurisdiction in pre-legislative scrutiny. He
said:
|
[66]
‘The necessity test was believed to set too high a bar, and
calls were made for a lower threshold. I have gone further,
however, and removed the test entirely when the Assembly modifies
the civil and criminal law for devolved purposes.’
|
[67]
And he says:
|
[68]
‘As a consequence, many of the arguments for a separate legal
jurisdiction for Wales should have fallen away.’
|
[69]
Do you agree?
|
[70]
Professor Watkin: No, I don’t agree, and going back
to, again, evidence I gave to the jurisdiction inquiry in this
committee a few years ago; that is, I think the case for distinct
jurisdictional arrangements to be made does not rest solely on the
law making of the National Assembly and the Welsh Ministers. I
think there are three bases, three things, that not just justify
but necessitate some moving forward with regard to the development
of the legal system as we know it. The first of those things is
that, regardless of whether the law applies in Wales only or is
common to England and Wales, it is only in Wales that parties
before the courts have the right to use the Welsh language. That
has already created a difference between the administration of
justice in Wales and the administration of justice in England
because there is no such right in England. That isn’t to do
with devolution and devolved law. That’s just to do with the
general law of England and Wales.
|
[71]
You’ve now got to add to that the fact that there is a
distinct body of law that applies only in Wales and a distinct body
of law that applies only in England. So, the notion that it’s
all one law is a fiction. It’s basically one of the last long
line of legal fictions. I said ‘last’—it probably
isn’t the last. It’s the most recent of a long line of
legal fictions that are meant to support various claims about
jurisdiction. Bridging those two is the fact that the law that is
made for Wales only by the Welsh Ministers and the Assembly is made
bilingually, and it’s meant to be, when made bilingually, of
equal standing. Both versions of equal standing for all purposes.
All purposes include the application of those laws by the courts
and their interpretation by the courts. That also calls for some
distinct arrangement. So, the fact that you may have solved the
question of the necessity tests with regard to Assembly legislation
does not touch on what I regard as the other two areas, which are
germane to the call for distinct jurisdictional arrangements. So,
therefore, I wouldn’t, for a moment, accept that it had
fallen away. It may have solved one aspect of it to a certain
extent, but that is really only resisting a direction in which, for
other reasons, there is full justification to move.
|
[72]
Huw Irranca-Davies: Thank you. That’s very helpful and
very clear as well. Could I turn to a separate issue, which is
clause 10 and the justice impact assessments? As you know,
there’s been a lot of concern that these justice impact
assessments would actually place restrictions—in effect, a
veto—they would provide a veto for the UK Government on
matters that are rightly devolved to the Assembly. But the
Secretary of State was at great pains in the Second Reading to give
assurance when this was pushed in that this wasn’t a valid
concern. He said:
|
[73]
‘It is a matter for Assembly Members, and the requirement is
that the Standing Orders include a request for a justice impact
assessment. No, there will be no veto arising out of the justice
impact assessment.’
|
[74]
Are you completely reassured?
|
[75]
Professor Watkin: Yes.
|
[76]
Huw Irranca-Davies: You are. Okay.
|
[77]
Professor Watkin: I think so. I was worried that the justice
impact assessments would be used as a vehicle for Secretary of
State intervention if they had not been properly conducted.
|
[78]
Huw Irranca-Davies: Right.
|
[79]
Professor Watkin: I was therefore very heartened to hear the
Secretary of State make that statement at the despatch box in the
debate. I’m left at a slight loss as to what the importance
of the justice impact assessments therefore will be, but I
don’t see that it is now open for a veto power to be used,
given what the Secretary of State has said on the back of the
justice impact assessments.
|
[80]
Huw Irranca-Davies: Okay. My final question, Chair, would be
in relation to the Wales public authority concept within the Bill,
and, again, in your opening remarks you seem to be more comforted
in respect of the clarification that is there now. Could you just
expand on that a little bit?
|
16:15
|
[81]
Professor Watkin: Yes. The draft Bill referred to public
authorities and there was considerable concern that it was very
difficult to define and recognise what these public authorities
would be. What we now have in the Bill is a concept of a Welsh
public authority that is accompanied by both a definition and a
list of bodies on the basis that the bodies that are listed are
covered even if they don’t quite fit into the definition. I
think, at the previous meeting here, I thought you needed, as I
said, a test—that is, a definition that would give you
complete conceptual certainty with regard to what were the bodies
concerned, and either they were in or out. Now you have got this
sort of long stop, which is that, ‘Well, if the definition
isn’t quite working for all cases, you’ve got the
list.’ And the list is not one that is closed; it’s a
list that can be added to. It’s added to by Order in Council,
which would be through the Assembly and Parliament. That’s
where I begin to get a little bit worried, because of course it
looks very much like the old LCO procedure. It’s something
that is made by Order in Council, having been approved by both the
Assembly and by both Houses of Parliament, and the question arises:
if the Assembly wants something added to the list, who have they
got to persuade to lay the statutory instrument at the other end?
What changes would be asked, perhaps? Although clearly here, with
bodies, it’s whether they accept them or not, isn’t it?
So, it leaves a lot to depend on the attitude of the parties who
will have to work the system, and that’s where my worry would
come in here, I think. To put it most kindly, one would not say,
regardless of which political party was in power, that relations
had been smooth between Cardiff and Westminster over the last 10
years, and I worry a little about what that procedure might
involve. But I think it is definitely a step forward. It is a
significant step forward in my view.
|
[82]
Huw Irranca-Davies: Thank you.
|
[83]
David Melding: And Dafydd, will you take us through the next
bit on ministerial consent?
|
[84]
Yr Arglwydd
Elis-Thomas: Ie. A gaf i
ofyn beth yw’ch ymateb chi i’r ffaith bod y cyfyngiad
cyffredinol ar geisio cydsyniadau gweinidogol wedi’i ddileu
yn y Bil presennol, gyda golwg hefyd ar yr hyn a ddywedodd Prif
Weinidog Cymru, sef er ei fod yn croesawu’r newid yma, y bydd
hyn hefyd yn creu cymhlethdod, ac nad ydy eto’n glir, yn ei
olwg o, a fydd y canlyniadau i hyn yn dderbyniol ac yn
ymarferol?
|
Lord Elis-Thomas: Yes. May I ask what
your response is to the fact that the general restriction on
seeking ministerial consents has been removed from the current
Bill, with a view also on the comments made by the First Minister,
that although he welcomes this change, this too will create some
confusion, and that it is not yet clear in his mind as to whether
the outcomes of this will be either acceptable or practical?
|
[85]
Yr Athro Watkin:
Mae’n anodd iawn i ddweud.
Rwy’n credu bod pethau wedi symud ymlaen. Mae pethau yn well.
Mae’r ffaith nad oes eisiau cael caniatâd i ddeddfu
ynglŷn â phwerau Gweinidogion y Goron, a dim ond
ymgynghori â nhw, yn llawer yn well, wrth gwrs. Mae yna angen
caniatâd o hyd, os ydy’r pŵer yn un sydd
yn—rwy’n credu mai’r geiriau yw
‘qualified devolution function’. Felly, mae
llawer yn dibynnu ar beth fydd y pwerau a fydd wedi cael eu cadw
gan Weinidogion y Goron.
|
Professor Watkin: It’s very
difficult to say. I think things have moved on and things are
improved. The fact that there is no need to have consent to
legislate on the powers of Ministers of the Crown, but just to
consult with them, is much improved, of course. You would still
need consent if that power is a qualified devolution
function—I think that’s the wording. So, much depends
upon the powers reserved to Ministers of the Crown.
|
[86]
Rwy’n deall y bydd yna Orchymyn
yn trosglwyddo mwy o bwerau o San Steffan, o Weinidogion y Goron, i
Weinidogion Cymru, a chyn i ni wybod maint y trosglwyddiad yna,
mae’n anodd iawn i fod yn sicr pa mor bell rydym wedi symud
ymlaen. Ar ôl dweud hynny, rwyf yn credu bod hwn yn gam
pwysig ymlaen oherwydd dim ond ynglŷn â’r
swyddogaethau sydd yn cael eu disgrifio fel
‘concurrent’ neu ‘joint’ y
mae angen cael caniatâd. Yn fy marn i, pan fydd swyddogaeth
wedi cael ei rhestru yn y modd yna, fel un sydd yn cael ei rhannu
rhwng Cymru a Lloegr, mae yna fwy neu lai egwyddor dan y
penderfyniad yna, ac felly nid hap yw e. Yn sefyllfa nifer fawr,
rwy’n credu, o’r swyddogaethau sydd wedi bod hyd yn
hyn, mwy neu lai hap yw’r ffaith eu bod nhw wedi cael eu cadw
yn San Steffan ac nid wedi cael eu trosglwyddo i Gymru. Ond mae
popeth nawr, rwy’n credu, yn dibynnu ar y nifer o bwerau
sy’n mynd i gael eu trosglwyddo. Os rwy’n deall yn
iawn, mae Ysgrifennydd Gwladol Cymru wedi dweud eu bod nhw’n
paratoi Gorchymyn i drosglwyddo nifer o swyddogaethau. Ac os yw
hynny’n wir, rwy’n credu bydd y cam ymlaen yn un eithaf
sylweddol.
|
As I understand it, there will be an Order
transferring more powers from Westminster, from Ministers of the
Crown, to Welsh Ministers, and until we know the scale of that
transfer, it’s very difficult to know how far we’ve
moved forward in this area. But having said that, I do think that
this is an important step forward because it’s only in
relation to functions that are described as
‘concurrent’ or ‘joint’ that one needs
consent. In my view, when a function is listed in that way, as one
that is shared between England and Wales, then there is more or
less a principle underpinning that decision, so it doesn’t
happen by accident. In the situation, I think, of many of the
functions that have existed up until now, it is more or less by
accident that they’ve been retained in Westminster and not
transferred to Wales. But everything now, I think, depends on the
number of powers that are to be transferred. If I understand
correctly, then the Secretary of State has said that they are
preparing an Order to transfer a number of functions. And if that
is the case, then I do think the step forward taken will be quite
significant.
|
[87]
Yr Arglwydd
Elis-Thomas: Mae yna un
agwedd arall ar Ran 4 o’r Bil. Rwy’n edrych ar
dudalennau 38 a 39 a’r pwerau yng nghymal 51, lle mae yna
bŵer i’r Ysgrifennydd Gwladol i ddiwygio, diddymu,
dirymu neu addasu deddfiadau mewn deddfwriaeth sylfaenol, yn
ymestyn i Ddeddfau a Mesurau Cynulliad. Mewn amgylchiadau felly, mi
fydd yna angen i ddau dŷ Senedd y Deyrnas Unedig i
gymeradwyo’r newidiadau yma drwy offeryn statudol, ond nid y
Cynulliad. Onid yw hynny’n ymddangos yn beth rhyfeddol; bod
gan yr Ysgrifennydd Gwladol unwaith eto yr hawl i ymyrryd yn ein
cyfansoddiad ni heb ein caniatâd ni?
|
Lord Elis-Thomas: There is one other
aspect of Part 4 of the Bill. I’m looking at pages 38 and 39,
and the powers in clause 51, where there is a power for the
Secretary of State to amend, repeal, revoke or otherwise modify
enactments contained in primary legislation, extending to Assembly
Acts and Measures. In such circumstances, there would be a need for
both houses of the Parliament of the United Kingdom to approve
these changes by statutory instrument, but not the National
Assembly. Doesn’t that appear to be astonishing; that the
Secretary of State once again has the right to intervene in our
constitution without our consent?
|
[88]
Yr Athro Watkin:
Rwy’n credu, yn y dystiolaeth
ysgrifenedig a anfonais i at y pwyllgor yma y tro diwethaf, wrth i
chi graffu ar y Bil drafft, y dywedais i, yn fy marn i, nad oedd
hwn yn dderbyniol, os oes Ysgrifennydd Gwladol y Deyrnas Unedig yn
newid Deddfau a oedd wedi cael eu gwneud gan y Cynulliad. Yma
ddylai fod y pŵer i ddweud bod hwn yn dderbyniol, nid yn San
Steffan, oherwydd mae hwn, i ryw raddau, yn tanlinellu’r
ffaith mai pwerau San Steffan o hyd—hyd yn oed mewn meysydd
sydd wedi cael eu datganoli—yw’r llais
mwyaf.
|
Professor Watkin: I think, in the
written evidence that I submitted to this committee last time, when
you were scrutinising the draft Bill, I did say that, in my view,
this was not acceptable, if a UK Secretary of State were to change
legislation made by the Assembly. The power should actually sit
here, not in Westminster, to say whether that is acceptable or not,
because, to some extent, this highlights the fact that the powers
of Westminster—even in devolved areas—are still
superior in terms of their voice.
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[89]
Yr Arglwydd
Elis-Thomas: Wel, fel un a
aeth unwaith i ryfel drwy gyfrwng— wel, ddim yn union i
ryfel, ond un a wrthwynebodd i Fesur gael ei gymeradwyo, neu
i’r Gorchymyn gael ei gymeradwyo yn yr ail
dŷ, oherwydd bod cychwyniad y Gorchymyn hwnnw i gael ei
amseru gan yr Ysgrifennydd Gwladol, ac oherwydd bod yr egwyddor yn
bwysig i mi nad oedd yr Ysgrifennydd Gwladol yn ymyrryd o gwbl mewn
Mesurau, fel yr oeddent bryd hynny, neu mewn unrhyw fath o
ddeddfwriaeth a oedd wedi cael ei gwneud yn y Cynulliad, gan fod
hwnna yn wrth-ddatganoli mewn gwirionedd. Ond dyna fo.
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Lord Elis-Thomas: Well, as one who once
went to war; well, not exactly to war, but who did certainly oppose
a Bill being approved, or an Order being approved in the second
chamber, because the commencement of that Order was to be decided
by the Secretary of State, and because the principle was important
to me that the Secretary of State shouldn’t intervene at all
in Measures as they were at that time, or in any sort of
legislation made by the Assembly, because that was
anti-devolutionary in its essence. But there we are.
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[90]
Ac, wedyn, un cwestiwn olaf gen i.
Rydym ni wedi clywed Ysgrifenyddion Gwladol, a gwleidyddion eraill
hyd yn oed, yn sôn am ryw awydd bod pob Bil Cymru maen nhw yn
ei gyflwyno yn cyfrannu tuag at, neu yn darparu setliad parhaol.
Fel un sy’n credu nad oes setliad parhaol o unrhyw beth i
gael yn y byd hwn, a yw’r athro yn meddwl bod y Bil yma mewn
unrhyw ffordd yn werth ei ddisgrifio fel ymgais i ddarparu setliad
mwy parhaol?
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And, then, one final question from me.
We’ve heard Secretaries of State, and other politicians,
mentioning some desire to ensure that every Wales Bill that they
bring forward does contribute towards or provides a stable and
permanent settlement. As one who believes that there is no such
thing as a permanent settlement to be had in this realm, does the
professor believe that this Bill in any way can be described as an
attempt to provide a more durable settlement?
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[91]
Yr Athro Watkin:
Nid wyf yn gweld y setliad yma mewn
unrhyw ffordd yn fwy parhaol na’r lleill. I ddechrau, nid
yw’n delio â’r cwestiwn o awdurdodaeth, a tan i
ni gyrraedd y pwynt o gael ryw fath o awdurdodaeth arbennig ar
gyfer Cymru, nid wyf yn credu bydd y broses o ddatganoli wedi dod i
ben. Ond, eto, rwy’n teimlo bod y modd y mae’r materion
sy’n cael eu cadw’n ôl yn cael eu delio â
nhw yn y Bil yma eto yn rhywbeth sydd yn sefyllfa dros dro, nid yn
sefyllfa parhaol mewn unrhyw ffordd. Efallai bydd e’n tawelu
pethau am gyfnod, ond nid wyf yn ei weld e’n parhau am fwy na
pedair, pum mlynedd.
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Professor Watkin: I don’t see
this settlement as being any more permanent than any of the others.
First of all, it doesn’t deal with the issue of jurisdiction,
and until we reach the point of having some sort of jurisdiction
for Wales, then I don’t think that the process of devolution
will have been concluded. But, again, I do feel that the way in
which the matters that are to be reserved are dealt with in this
particular Bill is again something that can only be a temporary
solution rather than a permanent one. It may quieten things down
for a time, but I can’t see it remaining in place for more
than four or five years.
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[92]
David Melding: Thank you. I wonder if I could—.
It’s probably for my own benefit rather than the
committee’s, but on the difficult issue of a necessity test,
which, of course, dominated a lot of the discussion on the draft
Bill, we seem to have made some advance, but we still have this
issue of reserved matters, and matters that relate specifically to
English law, but we need to modify in certain ways to make our
powers effective, limited probably, the number of instances, but
still could be significant. Now, the necessity test, though, for
those two areas, applies in Scotland. Why is it more restrictive to
us to have this Scottish test in our case? Is it—? Well, I
don’t want to lead you. Why is it more troublesome,
potentially?
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