My Lords, many amendments have been put together in this group, but I will focus in the first place on the so-called purpose test. Here we come to the crux of the constitutional issues with the Bill, and an area which has been criticised by some of the top constitutional experts of this country. I will raise some general questions about how the so-called purpose test works, in order to determine the scope of the Assembly’s legislative competence, because if we do not get clarity on this, the chances of ending up in the Supreme Court are extremely high.
The Bill appears to operate in a binary way. If a provision in an Assembly Bill is exclusively concerned with non-reserved matters, such as agriculture or health, it is of course within the Assembly’s legislative competence. If, conversely, a provision in an Assembly Bill “relates to” a reserved matter, the Bill is outside the Assembly’s legislative competence. Whether a provision relates to a reserved matter is, as the Bill has it, to be,
“determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances”.
This is the purpose test that I would like to explore.
Of course, in the real world, matters can never be so black and white. Any Assembly Bill seeking to address the complications of modern life is unlikely to be able to do so by making provisions exclusively about non-reserved matters. It may be necessary, for entirely sensible reasons, to touch on reserved matters as well as non-reserved matters.
The question that I am exploring is how far the Assembly can do that before stepping outside the scope of its competence. Does the fact that a specific provision in an Assembly Bill deals in some way with a reserved matter automatically take the Bill outside the Assembly’s legislative competence? If so, that could present some major practical problems for the Assembly. The Minister will know that in the agricultural case, under the current devolution settlement the essence of the matter was that what the Assembly had done could be characterised either as relating to the conferred matter of agriculture or, as the Government contended, to some other matters entirely that were effectively reserved. The Supreme Court held that under the present settlement, provided that the provision fairly and realistically relates to a conferred matter, it makes no difference that it could also be described as relating to a matter on which the 2006 Act is silent—it would still be within competence. On that basis, a certain degree of flexibility is inherent in the current settlement.
Additional flexibility is also available under the present settlement as, where a provision falls within one of the exceptions to the Assembly’s competence, it can still be included in an Assembly Bill where it is incidental to or consequential on another provision within the Assembly's competence. What flexibility is implicit in the settlement envisaged by the Bill before the House? I invite the Minister to address that question. In so doing, I simply make the point that, given the inordinate length of the list of reserved matters that the Assembly will face, this is far from being a theoretical matter. The Constitution Committee’s valuable report on the Bill points out that,
“this test may have the effect of reducing the scope of the Welsh Assembly’s legislative competence, and perhaps lead to further referrals to the Supreme Court. We would welcome”— again, this is what the Constitution Committee of this House said—
“an explanation from the Government as to whether this was the intent of the legislation and, if not, what steps they intend to take to ensure that the competence of the Welsh Assembly is not inadvertently reduced”.
I ask the Minister to address that issue. We need to know whether the Assembly could be hopelessly constrained from taking action on important social concerns by being unable in its legislation to touch on reserved matters in the course of addressing issues that otherwise would clearly be within devolved competence.
There are a whole load of other amendments in this group, and I would like to deal also with the issue of “ancillary”. Section 108 of the current Government of Wales Act enables the National Assembly for Wales to pass legislative provisions that are ancillary to devolved matters—or, to use the exact terminology, provisions that are,
“incidental to, or consequential on”,
devolved matters, or which,
“provides for the enforcement”,
of such matters to make them effective. But no such express provision is made in the equivalent clause of the Bill, which, coupled with the overlapping issue of the necessity test imposed on modifying the law on reserved matters, is a cause of deep concern. The issue of enforcement is more allowable in the current system than in the one that the Minister envisages with the Bill.
When this issue was raised in the other place, a somewhat confusing response was given. On the one hand, it was said that making such a provision would,
“drive a coach and horses through the key principle underpinning the new model, which is a clear boundary between what is devolved and what is reserved”.—[
On the other hand, it was claimed that the ability to make ancillary provision is “simply not needed” as it was already provided for. I find that response as confusing as the Bill itself.
Those promoting the Bill could also have said that it is in this respect merely following the precedent of the Scotland Act 1998, which has a similar provision. But blindly following those provisions in these very different circumstances is unwise. The approach taken in the Bill is uncertain and obscure. It is by no means clear that the National Assembly can make ancillary provision, as no express provision is made in the Bill; it is merely implied.
Why can the Minister not deal with this clearly by making express provision, as is done in the Northern Ireland Act 1998? If, as the Government claim, it is clear that the manner in which the purpose test operates means that ancillary provision is not reserved, why is there a need to state in Schedule 7A that it is not reserved where it,
Such a provision should be unnecessary if ancillary provisions are not reserved.
The ability to make ancillary provision is vital for Welsh law because of the narrowness of the devolution settlement. The mechanisms necessary to enforce the law, such as police and the courts, are all devolved in Scotland, which they are not in Wales. Put simply, the obscure way in which this is dealt with in the Scotland Act and the attached necessity test is of little practical importance, while in the Government of Wales Act it is crucial to enable the National Assembly to legislate freely. Again, lessons can be learned here from Northern Ireland, where such matters as policing were not initially devolved. It is no doubt for this reason that clear provision is made to ensure that ancillary provision is within competence.
This is not a minor, technical matter worthy of debate only by lawyers and academics. This goes to the heart of whether the Welsh devolution settlement is workable. As has been alluded to by the Delegated Powers Committee and the Constitution Committee in their excellent reports, the particular reserved powers model adopted by the Government risks further reducing the legislative competence of the Assembly, and the failure to make express provision for ancillary matters and the constraint of the necessity test is in the same vein.
Amendment 75 provides for an exception for ancillary provision on certain justice matters for the purpose of enforcing legislation on a subject matter that is not reserved, so that the Welsh Government can give effect to such legislation. Unless this is allowed, it may be difficult for the Assembly to enforce provisions in Assembly Acts.
Finally, I touch on Amendment 81, which restates the existing powers of the National Assembly to modify Minister of the Crown functions within devolved areas where doing so,
“is incidental to, or consequential on”— another provision in an Assembly Act. I will give one example of how absurd the law could become if something is not done.
Wales was one of the first places to ban smoking in public places. Last year, the Welsh Government hoped to introduce a law under the Public Health (Wales) Bill to ban the use of e-cigarettes in the workplace in Wales. They planned to impose duties on workplace managers in Wales to police the new ruling. The problem is that the UK Government in London would be required to give their consent in workplaces under their authority, such as the DVLA and the Crown Prosecution Service. If the Government refused to grant consent, we could have legions of Welsh people traipsing over to the DVLA to smoke their e-cigarettes.
Can the Minister give us clarity on the situation and how we can resolve what I believe is a serious matter?