Wales Bill - Report (1st Day)

Part of the debate – in the House of Lords at 5:15 pm on 14th December 2016.

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Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers 5:15 pm, 14th December 2016

My Lords, I shall raise two short points. One is to commend the Government’s Amendment 1 and the skilled drafting that is revealed by it. However, there is no doubt that the wording that it seeks to replace was too tightly drawn. It looked only at the legislative part of the body of law that makes up, if one likes to put it this way, the body of England and Wales and, looking into the future, following the point by the noble Lord, Lord Morgan, it was designed to follow the law of Wales itself as it built up its own common law. What was missing was an acknowledgement that there is a body of law outside legislation that applies in both jurisdictions as part of the great heritage of the common law that England and Wales has exported around the world. It would be very sad if the common-law element was not accepted. So the word “include”, as the noble Lord, Lord Elis-Thomas, pointed out, carries with it a great deal. That is not expressed at length, thank goodness, because, as he put it, the simplicity and exclusivity of the language chosen does it all for us. It is very nice to see simple language being used so effectively in legislation, so this is an excellent amendment and I warmly support it.

As for Amendment 3, I recall long arguments during discussion on the Scotland Bill—which the noble Lord, Lord Wigley, may have listened to but I am not sure took part in—when we tried to persuade the Minister, the noble and learned Lord, Lord Keen, to drop the word “normally”, but he refused. The passage that the noble Lord, Lord Wigley, quoted from what was said in the Supreme Court last week was just a repetition of the points the noble and learned Lord made in response to those who were seeking to effect that change in the wording.

I add a note of caution. Some of the justices last week picked up the point that once you put a convention into legislative form—which I think the Minister was saying was the purpose behind Clause 2—it is difficult to escape from the fact that judges will construe the wording of the legislation, because as soon as someone challenges a word in the legislative formula, someone has to work out what it means. We may find ourselves driven to the position where the judges will have to construe the word “normally”, however slippery it is.

We will know more about this when the Supreme Court delivers its judgment, because I suspect something will be said about it. I respectfully warn the Minister that if he adheres to the wording as it is, he will take with it the judgment of the Supreme Court, yet to be known, which will tell us what it really means. It may be a little more open to judicial interpretation than he suggested.