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Nick Ainger: Referring to paragraph 336 of the explanatory notes, the hon. Gentleman seeks further information and clarification of how the provision would work and why it is necessary. May I give him an example? If an Assembly Measure relating to a matter in part 1 of schedule 5 were enacted, and it later transpired that the matter was not clear and needed amendment, although everybody agreed that the Measure was rightly within the Assembly's legal competence, an Order in Council could amend the wording concerning the matter in part 1 of the schedule to give that clarification. It could also, as far as was necessary, amend the citations in the Assembly Measure to put the whole thing on a clearer basis.

Parliament would have to approve the Order in Council and the Secretary of State must act compatibly with section 6 of the Human Rights Act. I reassure the House that the power would be used very rarely, and not without careful consideration of the grounds for using it. In the example that I cited, its use is limited to cases in which it had always been intended that the Assembly would be able to legislate by Assembly Measure on the matter concerned, and Parliament would be able to ensure that that was the case through its approval of the Order in Council.

Lembit Öpik: I share the concern of the hon. Member for Dumfriesshire, Clydesdale and Tweeddale (David Mundell) on the specific principled point that, in
 
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introducing retrospective legislation, there is a possibility that we will create an environment where individuals fall foul of a law that did not exist in the past. I accept that the Minister is seeking to assure us that the legislation will always be compatible with the Human Rights Act, but how can he reassure us that the spirit of justice will be ensured if we are introducing legislation which goes back to a time when it did not exist?

Nick Ainger: I understand the hon. Gentleman's point. We should all have that concern about retrospective legislation, and that is why in the main we do not go down that road. I referred to the Human Rights Act to cover the issue of justice that he raised. We are talking about very minor detail that perhaps arises some time after the Assembly Measure has been enacted and clarification is needed. That is all that this provision will allow the Assembly to do through the Order in Council process.

Lembit Öpik: I appreciate that the Minister is seeking to reassure the Committee, but the difficulty is that we are hearing the reassurance that the provision will be applied only to minor detail from a Minister who is here now, in January 2006. That does not provide any insurance policy whatever against the suggestion of the hon. Member for Dumfriesshire, Clydesdale and Tweeddale that a future politician or group of politicians will use it to effect major upheaval and retrospective revision of legislation. Without labouring the debate, is there any reassurance whatever in the phrasing of the legislation that will prevent the wholesale use of the provision by a less sensitive or less scrupulous Administration?

Nick Ainger: The hon. Gentleman must accept from what I have said that this is basically a tidying-up exercise where there is a slight problem with an Assembly Measure. The provision will certainly not be used to change policy or the thrust of an Assembly Measure. It will be used for a minor detail that needs clarification.

Mr. Llwyd: In which case, if there were a full-blown Human Rights Act challenge and if part of the Measure were struck down, this process would not come into play, would it? That would not be minor in any way.

Nick Ainger: Perhaps I can reassure hon. Members in this way. If in the fullness of time clarification were required, the Order in Council would come back here. There is a protection. The Assembly would not legislate for itself retrospectively; Parliament, through the Order-in-Council process, would give permission for a new Order in Council to rectify the particular problem. That should reassure the hon. Member for Montgomeryshire. There would have to be a new Order in Council to bring forward the clarification.

Mr. Llwyd: That is quite different from retrospection. That is a matter of varying law by bringing it back. Retrospection would go back in time; it does what it says it does. With respect to the Minister, he is not addressing the point of retrospection.

Nick Ainger: I am trying to set out the practical process that would be gone through to ensure, as the
 
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hon. Gentleman says, that retrospective changes to the original Assembly Measure are made. For that to happen, there has to be another Order in Council. The issues will be debated here, just as we would discuss an ordinary Order in Council.

I hope that the hon. Member for Dumfriesshire, Clydesdale and Tweeddale accepts my reassurance that these provisions are likely to be very rarely used. They are for clarification and certainly not because it is envisaged that any new powers would be given to the original Assembly Measure. I hope that he will therefore withdraw his amendment.

David Mundell: I do not doubt the Minister's sincerity, but his responses to the queries raised by other hon. Members have made it clear that he cannot give us the assurances that he has been asked for. As the explanatory notes make clear, the nature of the clause is such that it offers the opportunity simply to reaffirm things that have already been done. That is unsatisfactory. I therefore ask the Minister to reflect on the clause and the genuine concerns that have been expressed by hon. Members from a number of parties. I shall not press the amendment to a Division, but I ask him to understand the seriousness with which we regard the clause and its potential, particularly in changed political circumstances, to cause severe difficulty and to undermine the devolution settlement in Wales. On the understanding that the Minister regards that as a serious and sincerely made point, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Grieve: I beg to move amendment No. 180, in page 51, line 26, after 'Assembly', insert

'in which the number of Assembly members voting in favour of it is not less than two thirds of the total number of Assembly seats'.

The Second Deputy Chairman of Ways and Means (Sir   Michael Lord): With this it will be convenient to discuss the following: Amendment No. 154, in page 51, line 28, after 'approved', insert '(i)'.

Amendment No. 155, in page 51, line 29, at end insert

'or

(ii)   has been laid before each House of Parliament and has been approved by a resolution of the House of Commons, but has been rejected by the House of Lords.

(5A)   If subsection (5)(b)(ii) applies, the Order in Council shall not take affect until one year has elapsed since the date on which the House of Commons came to the resolution.'.

Amendment No. 27, in page 51, line 29, at end insert—

'(5A)   In the event of approval of a draft statutory instrument by the Assembly, as specified in subsection (5)(a), but there not being within 60 days of that approval, an approval by a resolution of each House of Parliament as specified in subsection (5)(b), subsection (5) shall cease to have effect in the case of that draft statutory instrument, and the procedure specified in subsection (5B) will then apply to that draft statutory instrument.

(5B)   The procedure which will apply in cases specified in subsection (5A) will be that no recommendation is to be made to Her Majesty in Council to make an Order in Council under this section unless a draft of the statutory instrument containing the Order in Council—

(a)   has been laid before, and approved by a resolution of, the Assembly, and

 
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(b)   the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats.'.

Amendment No. 187, in page 51, line 29, at end insert—

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