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Lord Crickhowell: After hearing that speech and the remarks of my noble friend, I hope that when we come to Part 4 the noble Lord will enthusiastically support this party, which basically says, "Let's get on with it and have a referendum. Let's make it easier to have a referendum". Then we entirely agree with the proposition advanced from the Liberal Democrat Benches. I was glad to hear what he said.
The noble Lord, Lord Thomas of Gresford, loves to take us back in history. On this occasion, he took us back to the 18th century. The last time we were here, he took us back to some remarks of the great Lord Salisbury with which he disagreed. It is always rather dangerous to go such a step. It tempted me to make a few inquiries and I discovered that, in the first Home Rule debate, immediately after Lord Rosebery had succeeded as Prime Minister and leader of his party, he said that,
It was not a remark that went down very well with the Celtic fringe of the Liberal Party at the time. Indeed, it led to the almost immediate and crushing defeat on the subject, because the Prime Minister had given an English veto. Listening to the noble Lord, Lord Thomas of Gresford, I wondered what his position was going to be as we move down this route. No doubt I was also prompted by the arrival of my noble friend Lord Baker of Dorking in his place, as he has recently raised the whole issue with his Bill, which is now in another place.
I look forward to Part 4 and make it clear that, when we get there, the Conservative Party will give a great deal of support to the Liberal proposition. However, we cannot do so on this messy and confused part of the Bill. I hope that, when the time comes, I will have the noble Lord's support on the amendments that I will move later this afternoon.
The Earl of Mar and Kellie: If the people of Wales wish to proceed at a different speed towards greater devolution than the Government of the day wish, how would they be able to acquire a referendum? Would the Government be happy to receive a petition from the people of Wales, presented to the House of Commons asking for a referendum?
Lord Fraser of Carmyllie: I have considerable sympathy with the proposal of the noble Lord, Lord Thomas, because I thought that the original Scotland Act contained some serious errors. Trying to list what were going to be the powers of the Scottish assembly was so confusing that those of us who are lawyers thoroughly enjoyed ourselves working out which bits were still within the remit of Westminster and which were to be within the power of the Scottish assembly. The solution that the Government arrived at in the Scotland Act 1998 was an elegant one. It was a much better idea to say, "These powers will be reserved to Westminster and everything else will rest within the competence of the Scottish Parliament".
I was never very much in favour of devolution to Scotland, and I cannot say that anything done subsequently has either restored my faith or encouraged the Scottish people to believe that a good job is being done. Nevertheless, if we are to alter the constitution, it would be appropriate to provide symmetry between the constituent parts of the United Kingdom. If the Scottish Parliament has powers to legislate on anything except a reserved matter, it would be appropriate for a Welsh assembly or parliament to have a similar range of powers. There would be no confusion. We would all know, when we are dealing here with matters that are reserved for the whole of the United Kingdom, that we are not dealing with matters that may relate to a bit of Wales or a bit of Scotland, and we would know precisely what was going on. For that reason, it would be appropriate to achieve that symmetry.
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I have much sympathy with the idea that if we are going to introduce a powerful assembly or parliament in Wales in such circumstances, a referendum should be held to determine the views of the people of Wales. That seems a sensible idea and I do not really understand why there should be any opposition to that.
The noble Lord, Lord Thomas, concentrated on the fact that there is a single legal system in England and Wales. That is, of course, correct. However, if he considers, say, the National Health Service, he will know that there are very different arrangements in Wales. As I understand it, the Welsh Assembly last year voted to abolish prescription charges. That is not the case in England. The Scottish Parliament is also considering such a proposal. Given that that issue affects a large number of people, we must consider that we no longer have a single national health service, but a number of national health services. If that is to be the way that such matters are organised, there should be symmetry between the constitutional arrangements in different parts of the United Kingdom.
Lord Thomas of Gresford: I thank the Minister for the measured and courteous way in which he responded to my amendment. I also thank all noble Lords who have spoken for their support. I refer in particular to the noble and learned Lord, Lord Fraser of Carmyllie, whose experience in Parliament, in the courts and as Lord Advocate is very helpful to your Lordships when considering matters of this sort.
I am pleased that we agree that the idea of bolting on bits and pieces to the legal competence of the Welsh Assembly is highly unsatisfactorythat is, that we should from time to time in incremental stages take this bit and that bit and simply say through an Order in Council, "Well, you can now legislate on this or on that". It is a very unsatisfactory solution. I agree with the noble and learned Lord that the solution proposed for Scotland in 1998 was much better.
I do not accept the argument about there being a single legal system for England and Wales. I tried to address that when I moved the amendment and to point out that a corpus of Welsh law is developing which does not apply in England. In the early days of our devolution discussionsperhaps as long ago as 1997I suggested that the Court of Appeal should sit in Wales and also that divisions of the Divisional Court should sit there to deal with administrative law. I do not suppose that this has anything to do with what I said but subsequently the Court of Appeal sat in Wales and so did the Administrative Court. It is highly appropriate that that should happen because we do not want a system whereby judges with absolutely no experience of devolution or Welsh legislation come to Wales and are presented with a completely new problem and new legislation. It is inevitable that a separate system will grow up, as the noble and learned Lord, Lord Fraser, pointed out, just as has been the case within the National Health Service. We regard this as such a strong matter of principle that I intend to test the opinion of the Committee.
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"For the purposes of this section the question whether a provision of an Assembly Measure relates to one or more of the matters specified in Part 1 of Schedule 5 is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances".
What does that subsection add to the existing rules on interpretation, practised by the High Court? In other words, in what way will the courts have to change their approach to statutory interpretation to conform to Clause 93(7)? I beg to move.
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