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Government of Wales Bill

As we have heard, Amendment No. 60A would remove Clause 93(7), which is included to help interpret whether a particular provision in an Assembly measure is within the Assembly’s legislative competence. There is nothing unusual about it, either; it is modelled on a similar provision in the Scotland Act 1998. If a question arises as to whether a provision in a measure relates to a matter in Schedule 5, it is to be decided by considering the purpose—““the pith and substance”” or ““the true nature and character””—of the provision. The effect of the provision must be considered in the light of all circumstances. To illustrate the idea of ““pith and substance””, we could take the example of restricting smoking in enclosed public spaces. The substance of the matter would be about public health, because the purpose was to improve public health and cut deaths from lung cancer, heart disease and so on, caused by passive smoking. This would be a defence against any challenge that it was really about licensing because it applied to licensed premises and imposed conditions on publicans, or that it was about employment law. I use this example because, when it was given in the Commons, the response from the shadow Attorney-General was:"““The Minister’s example was a very good one, absolutely on point and has clarified the matter completely””.—[Official Report, Commons, 23/1/06; col. 1250.]" The provision also cuts both ways: it could help in deciding whether something was outside the Assembly’s legislative competence, as well as within it. If this provision did not exist, the Assembly could be severely hampered in its ability to enact legislation. While it is possible that the courts would develop a similar interpretative tool themselves, the absence of this provision would leave unwelcome room for doubt as to how to interpret provisions of Assembly measures. Legal challenges could be brought to Assembly measures which affected, even incidentally, non-devolved matters. Good and innovative legislation could well involve provisions which cut across different subject matters or tackle problems in new ways. This is what the proposed amendment, in our view, would surely hinder. The amendment would greatly increase the scope for legal argument about whether something was or was not within the Assembly’s powers. Given this explanation, I hope that the noble Lord, Lord Kingsland, will withdraw his amendment.