Government of Wales Bill

moved Amendment No. 39A:"Page 51, line 28, leave out subsection (7)." The noble Lord said: My Lords, this amendment seeks to remove from the Bill Clause 93(7), which reads:"““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 . . . to its effect in all the circumstances””." In Committee, I asked the Minister what the subsection adds to the existing rules on interpretation practised by the High Court. I went on to suggest that the appropriate rule was to look at the meaning of the text. If that was clear, that was that. If the text was ambiguous, the court should go on to make a purposive interpretation. That approach was shared by the noble Lord, Lord Elystan-Morgan, at col. 1150 of Hansard of 6 June 2006. I had not intended to return to this matter until I received a letter from the noble Lord, Lord Evans of Temple Guiting, seeking to set out what he regarded as the Government’s interpretation of this provision. I would like, if I may, to read out an excerpt. On page two, he states:"““The Government’s view, therefore, is that the safest way of achieving that aim is to include in the Bill a statutory interpretation provision leaving no room for doubt as to how the matter is to be dealt with””." Your Lordships will recall here that we are talking about the relationship between an Assembly Measure and the field or matter under Schedule 5 which authorises it. The letter continues:"““To determine whether a provision of an Assembly Measure relates to a matter that is specified in Part 1 of Schedule 5 to the Bill in respect of which the Assembly has legislative competence the courts will be required to consider the purpose of the provision, what it is about, its true nature, its pith and substance””." I ought to interject to say that I particularly liked that expression. I shall continue to quote:"““In doing so the courts will have the greatest flexibility to look outside the enacted words . . . because the court will be required to have regard to ‘amongst other things’ the effect of the provision in ‘all the circumstances’””." I just want to be clear about this. I do not understand how the court could, as it were, cut itself loose from the enacted words to examine,"““the effect of the provision in ‘all the circumstances’””." Surely all the circumstances that will have to be examined will be suggested by the text of the Bill; and any purposive interpretation must be anchored initially in the words of the Bill. The words outline the scope of the purposive analyses. If the Minister is content to say that that is what the noble Lord, Lord Evans of Temple Guiting, meant, I can happily withdraw my amendment. But if the Minister has some additional thoughts which would take us away from the view that the noble Lord, Lord Elystan-Morgan, and I take, I would like to pursue the matter further. I beg to move.