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Government of Wales Bill

As we have heard, the amendments in this group would change how the Bill defines the matters on which the Assembly could legislate, at first by Assembly measure and then, after a referendum, by Assembly Act. One effect of Amendments Nos. 60 and 61, applying as they do to Part 3, would be to confer all legislative competence on the Assembly immediately. That would be entirely inconsistent with the incremental approach that the Government propose in Part 3. Indeed, it would be tantamount to giving the Assembly primary legislative powers, something which the Government believe would require a referendum, a view shared by the noble Lord, Lord Kingsland. I hope that noble Lords opposite will understand that as a matter of principle I am unable to accept the amendment. However, I take the noble Lord’s point that the battle must continue. He and I have had this discussion in a number of Welsh Bills and I admire the way in which he continues to push forward the notion of further and more rapid devolution of powers to Wales. As I said, however, the Government have a view on this, which I have stated a number of times. The course we have set is the one we wish to follow. All four amendments raise the issue of how to define the Assembly’s legislative competence. There are two ways in which this can be done. Either the matters on which the Assembly can make legislation are specified in the Bill, or the matters on which it cannot make legislation are specified. The former is the approach that we have taken. This was broadly the approach followed in the Scotland Act 1998, although the Bill before us today is more intelligible in that it uses plain language and avoids references to specific enactments whenever possible. The latter approach, of specifying matters outside legislative competence, was adopted in the Scotland Act 1998, and is the approach proposed in this amendment. This approach was also adopted in the Northern Ireland Act 1998, with some refinements. The Government had an open mind on which approach to take, and chose the approach taken in the Bill for technical legal reasons which were set out in the evidence given to the House of Commons Welsh Affairs Committee and the Constitution Committee of this House. As the noble Lord, Lord Thomas, pointed out, England and Wales is a single legal jurisdiction, and if the Assembly were able to make general legislation on any matter except those which are expressly reserved—like the Scottish Parliament or Northern Ireland Assembly—it would lead to the gradual emergence of a different and separate Welsh jurisdiction unless further, and potentially very complex, reservations were included in relation to matters such as the principles of civil and criminal law. The same complexities did not occur in relation to the Scotland Act, as Scotland already had a separate system of law in 1998. I do not expect the noble Lord, Lord Thomas of Gresford, to agree with me but the Government’s view is that the practical consequence of these amendments would be the need for different systems of legal education, different sets of judges and lawyers, and different courts. In order to avoid this, the better solution legally is to follow the approach of the Bill and limit the legislative competence of the Assembly to specified matters. In addition, this has the benefit of being clearer for everyone. If any Bill were to list all the matters which were to be outside the Assembly’s legislative competence, it would be a much more complex list than was required for the Scottish Parliament, simply because it would require complex exceptions on non-devolved matters such as criminal and civil law. Liberal Democrat spokesmen in another place explained that one of the motives for their similar amendment was their wish to leave the Bill open to the possibility of devolving further fields of competence to the Assembly. If any similar motive should lie behind this new schedule, I would like to reiterate the Government’s clear intention that this Bill is about deepening devolution, and not broadening it. We are giving the Assembly more legislative power, but within the boundaries of the current devolution settlement. Clause 94, in addition to providing for matters relating to one or more of the fields in Schedule 5 to be added, also allows new fields to be added, so the Bill is already sufficiently flexible to accommodate the possibility of devolving further fields of competence to the Assembly. The Bill makes provision for the addition of new fields of competence to Schedule 5 via the Order in Council procedure specified in Clause 94. I do not expect the noble Lord, Lord Thomas of Gresford, to agree with what I have said, but I hope that, in the light of the explanation I have given, he will feel able to withdraw the amendment.