My Lords, I had intended to speak in support of the noble Baroness, Lady Morgan of Ely, on her Amendment 2, but I am not sure whether she will now pursue Amendment 2 or seek to find a common way forward with the Minister. I will therefore truncate some of my comments on Amendment 2, but I also have Amendment 3 standing in my name in this group.
None the less, will the Minister confirm the permanent nature of the committee he has in mind? The noble Baroness raised that point herself. The difference between a statutory provision and an ad hoc provision is that the latter can easily run like water into the sand and disappear over time. A statutory commission not only would have the permanence that statute gives it but is also likely to have its terms of reference fairly clearly defined in an open way that people can respond to. A far greater degree of attention would also be given to drawing up the body’s terms of reference when it is set up. There is therefore a strong case for it to be a statutory body. But if it is not to be, I would certainly be interested in knowing what safeguards the Minister proposes to ensure that this is not something that is granted now but then disappears. As we know, and as I think the Minister accepts, there will be an evolving context for Welsh law and there will occasionally need to be adjustments to respond to it.
The Minister referred to Amendment 3—which, incongruously, has also been linked to this group of amendments. The noble and learned Lord, Lord Judge, the former Lord Chief Justice of England and Wales, made an eloquent and expert case, as did others, in favour of a similar amendment in Committee. Although the Government chose to ignore such expert opinions at that stage, I once again make the case that, if we are going to have a fair, equitable and lasting devolution settlement for Wales, these amendments should be supported to introduce a new reference that supports our case.
Effectively, this amendment seeks to ensure that the democratically accountable National Assembly for Wales has unquestionable authority in the areas in which it has legislative competence, whether it is primary or secondary legislation. Under the Bill, we are faced with the dangerously vague and unquestionably weak commitment that the UK Government,
“will not normally legislate with regard to devolved matters”.
As the noble and learned Lord, Lord Judge, graphically put it,
“The word ‘normally’ … is a weasel word. It does not mean anything very much in legislative terms”.—[Official Report, 31/10/16; col. 465.]
I certainly accept his guidance on such matters. Who decides what is normal? In reality, this is nothing less than ensuring that Westminster can still keep a political grip on the National Assembly and thereby on Wales. Scotland may also be afflicted with the same burden. But the Minister now has a chance to be bold—to stand up for Wales and, once and for all, to put into statute that the National Assembly for Wales has the unquestionable authority, matching its democratic mandate, to legislate on matters that are its responsibility. It has been revealed by the recent Supreme Court case regarding Brexit—the so-called acknowledgement of the Sewel convention—that the word “normally” in the Scotland Act is not worth the paper, or the vellum for that matter, on which it is written.
The Government’s Advocate-General, the noble and learned Lord, Lord Keen, only last week explained to the court that the reference to the Sewel convention in the Scotland Act was simply a political accord and should not be considered a legal obstacle to Westminster riding roughshod over Holyrood. Unfortunately, under the current circumstances, Wales will yet again be patronised by such a political accord. This is hardly a big ask. Despite the complexities of our haphazard, patchwork quilt of a constitution, this issue is quite simple: making the Assembly the authority that it should be when it comes to devolved matters.