My Lords, I was in this Chamber when this issue first arose in 1998 in the then Scotland Bill. I heard Lord Sewel produce his sentence, which was hastily cobbled together. There was no thought behind it. It was not part of the government programme at that time, but he was under great pressure from Scottish Peers to define when the Westminster Parliament would act where Scotland had competence. He came out with his phrase, using the word “normally”, in that context. It has found itself into the Scottish legislation and has been adopted for the purposes of this legislation.
It is an unsatisfactory solution. There are no doubt exceptional circumstances, such as a declaration of war or something of a really serious consequence, when the Westminster Parliament may wish to overrule the Welsh Assembly or act in its place, but the word “normally” does not cover that. It is open to huge misinterpretation and the sort of litigation to which the noble and learned Lord, Lord Judge, referred in his contribution before the adjournment. The Government ought to excise the word altogether. I seem to recall it was still in contention as to whether it was a satisfactory phrase in consideration on the recent Scotland Bill.
I also support Amendment 8 in the name of the noble Baroness, Lady Morgan of Ely. I prefer it to the amendment tabled by the noble Lord, Lord Elis-Thomas, because it is disjunctive whereas his is not. An “or” at the end of his proposed new paragraph (c) might have made it a bit clearer.