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I am grateful for the support of my hon. Friend the Member for Islwyn (Mr. Touhig), despite the fact that he has never pretended to be an enthusiast for more and more powers for the Assembly. He has worked with
me honourably and with great influence in framing the Bill, for which I am grateful. I secretly sympathise with his advocacy of a first-past-the-post system, but if we were to introduce one in this Bill, we would hear even louder complaints of abuse.
Lembit Öpik: If the Secretary of State and the Government are so concerned about giving voters a choice, will they consider creating open lists? That would allow the electorate to vote for an individual rather than a party that then appoints an individual. Without being party political, that would be a rational and reasonable step forward, although I accept that it is not included in the legislation that we are discussing today.
Mr. Hain: No; I do not agree with the hon. Gentleman and do not propose to introduce such a provision at this late stage, especially given the consultation across Wales.
In conclusion, the basic point of the Government’s position is that the voters should be in charge, not the parties, and that losers should not become winners. Why are the Opposition parties so scared of having to make a choice between standing in a constituency or standing on a regional list? The voters expect candidates to make that choice, and the integrity of the system will be increased by it, especially because at least six sitting Labour Members will be “penalised”—if that is the word—along with other party members. In my view, however, no one will be penalised; indeed, I think that the voters will win.
I welcome the point made by Lord Elis-Thomas, the Presiding Officer of the Assembly, who has said that the argument has been won—he has recognised the reality—and both former leaders of Plaid Cymru have made the same point. We need Royal Assent for the Bill before the end of the Session, and I hope that nobody will seek to frustrate that ambition and that the Government’s position will be carried tonight.
Question put, That this House disagrees with the Lords in the said amendment:—
The House divided: Ayes 294, Noes 213.
AYES
Ainger, Nick
Ainsworth, rh Mr. Bob
Allen, Mr. Graham
Anderson, Mr. David
Anderson, Janet
Armstrong, rh Hilary
Atkins, Charlotte
Austin, Mr. Ian
Austin, John
Bailey, Mr. Adrian
Baird, Vera
Balls, Ed
Banks, Gordon
Barlow, Ms Celia
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Begg, Miss Anne
Bell, Sir Stuart
Berry, Roger
Betts, Mr. Clive
Blackman, Liz
Blackman-Woods, Dr. Roberta
Blizzard, Mr. Bob
Borrow, Mr. David S.
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, Lyn
Brown, rh Mr. Nicholas
Brown, Mr. Russell
Browne, rh Des
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Burnham, Andy
Butler, Ms Dawn
Byers, rh Mr. Stephen
Byrne, Mr. Liam
Cairns, David
Campbell, Mr. Alan
Campbell, Mr. Ronnie
Caton, Mr. Martin
Cawsey, Mr. Ian
Challen, Colin
Chapman, Ben
Chaytor, Mr. David
Clapham, Mr. Michael
Clark, Ms Katy
Clark, Paul
Clarke, rh Mr. Charles
Clarke, rh Mr. Tom
Clwyd, rh Ann
Coaker, Mr. Vernon
Coffey, Ann
Cohen, Harry
Cook, Frank
Cooper, Rosie
Cooper, Yvette
Corbyn, Jeremy
Cousins, Jim
Crausby, Mr. David
Creagh, Mary
Cruddas, Jon
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
Curtis-Thomas, Mrs. Claire
David, Mr. Wayne
Davidson, Mr. Ian
Dean, Mrs. Janet
Denham, rh Mr. John
Devine, Mr. Jim
Dhanda, Mr. Parmjit
Dismore, Mr. Andrew
Dobbin, Jim
Dobson, rh Frank
Donohoe, Mr. Brian H.
Doran, Mr. Frank
Dowd, Jim
Drew, Mr. David
Dunwoody, Mrs. Gwyneth
Eagle, Angela
Ellman, Mrs. Louise
Engel, Natascha
Ennis, Jeff
Etherington, Bill
Farrelly, Paul
Fisher, Mark
Fitzpatrick, Jim
Flello, Mr. Robert
Flint, Caroline
Flynn, Paul
Follett, Barbara
Foster, Michael Jabez (Hastings and Rye)
Gapes, Mike
George, rh Mr. Bruce
Gerrard, Mr. Neil
Godsiff, Mr. Roger
Goggins, Paul
Goodman, Helen
Griffith, Nia
Griffiths, Nigel
Grogan, Mr. John
Gwynne, Andrew
Hain, rh Mr. Peter
Hall, Mr. Mike
Hall, Patrick
Hamilton, Mr. David
Hamilton, Mr. Fabian
Harman, rh Ms Harriet
Harris, Mr. Tom
Havard, Mr. Dai
Healey, John
Henderson, Mr. Doug
Hendrick, Mr. Mark
Hepburn, Mr. Stephen
Heppell, Mr. John
Hesford, Stephen
Heyes, David
Hill, rh Keith
Hillier, Meg
Hodge, rh Margaret
Hodgson, Mrs. Sharon
Hoon, rh Mr. Geoffrey
Hope, Phil
Hopkins, Kelvin
Howarth, rh Mr. George
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Humble, Mrs. Joan
Hutton, rh Mr. John
Iddon, Dr. Brian
Illsley, Mr. Eric
Irranca-Davies, Huw
James, Mrs. Siân C.
Jenkins, Mr. Brian
Johnson, Ms Diana R.
Jones, Mr. Kevan
Jones, Lynne
Jones, Mr. Martyn
Jowell, rh Tessa
Joyce, Mr. Eric
Kaufman, rh Sir Gerald
Keeble, Ms Sally
Keeley, Barbara
Keen, Alan
Keen, Ann
Kemp, Mr. Fraser
Khabra, Mr. Piara S.
Khan, Mr. Sadiq
Kidney, Mr. David
Knight, Jim
Kumar, Dr. Ashok
Laxton, Mr. Bob
Lazarowicz, Mark
Lepper, David
Levitt, Tom
Lewis, Mr. Ivan
Linton, Martin
Lloyd, Tony
Love, Mr. Andrew
Lucas, Ian
MacDougall, Mr. John
Mackinlay, Andrew
MacShane, rh Mr. Denis
Mactaggart, Fiona
Mahmood, Mr. Khalid
Mallaber, Judy
Mann, John
Marris, Rob
Marsden, Mr. Gordon
Marshall, Mr. David
Marshall-Andrews, Mr. Robert
Martlew, Mr. Eric
McAvoy, rh Mr. Thomas
McCabe, Steve
McCafferty, Chris
McCarthy, Kerry
McCarthy-Fry, Sarah
McDonagh, Siobhain
McDonnell, John
McFadden, Mr. Pat
McGovern, Mr. Jim
McGuire, Mrs. Anne
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
McNulty, Mr. Tony
Meacher, rh Mr. Michael
Meale, Mr. Alan
Merron, Gillian
Michael, rh Alun
Milburn, rh Mr. Alan
Miliband, Edward
Miller, Andrew
Moffat, Anne
Moffatt, Laura
Mole, Chris
Moran, Margaret
Morden, Jessica
Morgan, Julie
Morley, Mr. Elliot
Mudie, Mr. George
Mullin, Mr. Chris
Murphy, Mr. Denis
Murphy, Mr. Jim
Murphy, rh Mr. Paul
Norris, Dan
O'Brien, Mr. Mike
O'Hara, Mr. Edward
Olner, Mr. Bill
Osborne, Sandra
Owen, Albert
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Pound, Stephen
Prentice, Bridget
Prentice, Mr. Gordon
Prescott, rh Mr. John
Purchase, Mr. Ken
Purnell, James
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reed, Mr. Jamie
Riordan, Mrs. Linda
Robertson, John
Robinson, Mr. Geoffrey
Rooney, Mr. Terry
Roy, Mr. Frank
Ruane, Chris
Ruddock, Joan
Russell, Christine
Salter, Martin
Sarwar, Mr. Mohammad
Seabeck, Alison
Shaw, Jonathan
Sheerman, Mr. Barry
Sheridan, Jim
Short, rh Clare
Simon, Mr. Siôn
Simpson, Alan
Singh, Mr. Marsha
Skinner, Mr. Dennis
Slaughter, Mr. Andrew
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, Geraldine
Smith, rh Jacqui
Snelgrove, Anne
Soulsby, Sir Peter
Southworth, Helen
Spellar, rh Mr. John
Starkey, Dr. Phyllis
Stewart, Ian
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Stringer, Graham
Stuart, Ms Gisela
Sutcliffe, Mr. Gerry
Tami, Mark
Taylor, Ms Dari
Taylor, David
Thornberry, Emily
Timms, Mr. Stephen
Tipping, Paddy
Todd, Mr. Mark
Touhig, Mr. Don
Truswell, Mr. Paul
Turner, Dr. Desmond
Turner, Mr. Neil
Twigg, Derek
Ussher, Kitty
Vaz, Keith
Vis, Dr. Rudi
Walley, Joan
Waltho, Lynda
Wareing, Mr. Robert N.
Watson, Mr. Tom
Whitehead, Dr. Alan
Wicks, Malcolm
Williams, rh Mr. Alan
Wills, Mr. Michael
Winnick, Mr. David
Winterton, Ms Rosie
Wood, Mike
Woodward, Mr. Shaun
Woolas, Mr. Phil
Wright, Mr. Anthony
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Tellers for the Ayes:
Mr. Dave Watts and
Mr. Michael Foster
NOES
Afriyie, Adam
Ainsworth, Mr. Peter
Alexander, Danny
Amess, Mr. David
Ancram, rh Mr. Michael
Atkinson, Mr. Peter
Bacon, Mr. Richard
Baker, Norman
Baldry, Tony
Baron, Mr. John
Barrett, John
Beith, rh Mr. Alan
Bellingham, Mr. Henry
Benyon, Mr. Richard
Bercow, John
Beresford, Sir Paul
Binley, Mr. Brian
Blunt, Mr. Crispin
Bone, Mr. Peter
Boswell, Mr. Tim
Brake, Tom
Brazier, Mr. Julian
Breed, Mr. Colin
Brokenshire, James
Brooke, Annette
Browne, Mr. Jeremy
Browning, Angela
Bruce, Malcolm
Burrowes, Mr. David
Burstow, Mr. Paul
Burt, Alistair
Burt, Lorely
Cameron, rh Mr. David
Campbell, rh Sir Menzies
Carmichael, Mr. Alistair
Chope, Mr. Christopher
Clark, Greg
Clarke, rh Mr. Kenneth
Clegg, Mr. Nick
Clifton-Brown, Mr. Geoffrey
Cox, Mr. Geoffrey
Crabb, Mr. Stephen
Davies, David T.C. (Monmouth)
Davies, Philip
Davies, Mr. Quentin
Davis, rh David (Haltemprice and Howden)
Djanogly, Mr. Jonathan
Dodds, Mr. Nigel
Donaldson, Mr. Jeffrey M.
Dorrell, rh Mr. Stephen
Dorries, Mrs. Nadine
Duddridge, James
Duncan, Mr. Alan
Dunne, Mr. Philip
Evans, Mr. Nigel
Fabricant, Michael
Fallon, Mr. Michael
Featherstone, Lynne
Field, Mr. Mark
Francois, Mr. Mark
Gale, Mr. Roger
Garnier, Mr. Edward
Gauke, Mr. David
George, Andrew
Gibb, Mr. Nick
Gillan, Mrs. Cheryl
Goodman, Mr. Paul
Goodwill, Mr. Robert
Gray, Mr. James
Green, Damian
Greening, Justine
Greenway, Mr. John
Grieve, Mr. Dominic
Gummer, rh Mr. John
Hammond, Mr. Philip
Hammond, Stephen
Hands, Mr. Greg
Harper, Mr. Mark
Harris, Dr. Evan
Harvey, Nick
Hayes, Mr. John
Heald, Mr. Oliver
Heath, Mr. David
Heathcoat-Amory, rh Mr. David
Hemming, John
Hendry, Charles
Herbert, Nick
Hoban, Mr. Mark
Hogg, rh Mr. Douglas
Hollobone, Mr. Philip
Holmes, Paul
Horam, Mr. John
Horwood, Martin
Hosie, Stewart
Howard, rh Mr. Michael
Howarth, David
Howarth, Mr. Gerald
Hughes, Simon
Hunt, Mr. Jeremy
Jack, rh Mr. Michael
Jenkin, Mr. Bernard
Jones, Mr. David
Kawczynski, Daniel
Kennedy, rh Mr. Charles
Key, Robert
Kirkbride, Miss Julie
Knight, rh Mr. Greg
Lait, Mrs. Jacqui
Lamb, Norman
Lancaster, Mr. Mark
Lansley, Mr. Andrew
Laws, Mr. David
Leech, Mr. John
Leigh, Mr. Edward
Letwin, rh Mr. Oliver
Lewis, Dr. Julian
Liddell-Grainger, Mr. Ian
Lidington, Mr. David
Llwyd, Mr. Elfyn
Loughton, Tim
Luff, Peter
Mackay, rh Mr. Andrew
Main, Anne
Malins, Mr. Humfrey
Maples, Mr. John
Maude, rh Mr. Francis
May, rh Mrs. Theresa
McCrea, Dr. William
McIntosh, Miss Anne
McLoughlin, rh Mr. Patrick
Mercer, Patrick
Miller, Mrs. Maria
Milton, Anne
Moss, Mr. Malcolm
Mulholland, Greg
Mundell, David
Murrison, Dr. Andrew
O'Brien, Mr. Stephen
Öpik, Lembit
Osborne, Mr. George
Ottaway, Richard
Paice, Mr. James
Paisley, rh Rev. Ian
Paterson, Mr. Owen
Pelling, Mr. Andrew
Penning, Mike
Penrose, John
Pickles, Mr. Eric
Price, Adam
Prisk, Mr. Mark
Pritchard, Mark
Pugh, Dr. John
Randall, Mr. John
Redwood, rh Mr. John
Reid, Mr. Alan
Rennie, Willie
Rifkind, rh Sir Malcolm
Robertson, Angus
Robertson, Hugh
Robertson, Mr. Laurence
Robinson, Mr. Peter
Rogerson, Mr. Dan
Rosindell, Andrew
Ruffley, Mr. David
Russell, Bob
Sanders, Mr. Adrian
Scott, Mr. Lee
Selous, Andrew
Shapps, Grant
Shepherd, Mr. Richard
Simmonds, Mark
Simpson, David
Smith, Sir Robert
Soames, Mr. Nicholas
Spelman, Mrs. Caroline
Spring, Mr. Richard
Stanley, rh Sir John
Steen, Mr. Anthony
Streeter, Mr. Gary
Stunell, Andrew
Swayne, Mr. Desmond
Swinson, Jo
Swire, Mr. Hugo
Syms, Mr. Robert
Tapsell, Sir Peter
Taylor, Mr. Ian
Teather, Sarah
Thurso, John
Tredinnick, David
Turner, Mr. Andrew
Tyrie, Mr. Andrew
Vaizey, Mr. Edward
Vara, Mr. Shailesh
Villiers, Mrs. Theresa
Walker, Mr. Charles
Wallace, Mr. Ben
Walter, Mr. Robert
Waterson, Mr. Nigel
Webb, Steve
Whittingdale, Mr. John
Wiggin, Bill
Williams, Hywel
Williams, Mark
Williams, Mr. Roger
Williams, Stephen
Willott, Jenny
Wilshire, Mr. David
Wilson, Mr. Rob
Winterton, Sir Nicholas
Wishart, Pete
Wright, Jeremy
Yeo, Mr. Tim
Younger-Ross, Richard
Tellers for the Noes:
Mr. David Evennett and
Mr. Simon Burns
Question accordingly agreed to.
The Parliamentary Under-Secretary of State for Wales (Nick Ainger): I beg to move, That this House disagrees with the Lords in the said amendment.
Madam Deputy Speaker: With this it will be convenient to take Lords amendments Nos. 21 and 22 and the Government motions to disagree thereto.
Nick Ainger: The amendments would limit the effect of the powers to make retrospective provision in Orders in Council under clauses 94 and 150, or in an order under clause 149.
The power in clause 94 is necessary to correct legislative competence retrospectively when that would give proper effect to the intention of Parliament and the Assembly, when not to do so could leave the law in an unclear state, or when it could be detrimental to third parties if that was not done. If the provision is used, it is likely to be to correct a technical defect.
Clause 150(4) follows the model of sections 107 and 114 of the Scotland Act 1998. As Lord Evans of Temple Guiting pointed out on Third Reading in another place, it was necessary to make provision under those sections of the Scotland Act when it transpired that a provision of the Regulation of Care (Scotland) Act 2001 was considered to be beyond the legislative competence of the Scottish Parliament.
The Bill provides that any provision of a measure that is outside the legislative competence of the Assembly is not law. If another Act made provision referring to that measure, it might be necessary to
amend that other Act as if it had never referred to the ultra vires provision of the Assembly measure. As the Scottish example shows, that will happen rarely, but the provision may well be needed.
The relevant provision in clause 149 relates purely to consequential amendments. For example, the Secretary of State might need to amend a corresponding reference in Northern Ireland legislation, which the Assembly could not do.
The Lords amendments intend to ensure that such provision can be made only if it is not to the detriment of those who have either benefited from or acted in reliance on the law before such an order was made. The Opposition case for that is based on an argument that the power could be used to reverse the effect of court decisions and infringe individuals’ rights. That concern is clearly important—no one in the House wants the rights of individuals to be arbitrarily abridged. However, I cannot envisage circumstances in which that would be allowed to happen. The safeguards that the Bill already includes would prevent it.
First, the Secretary of State would have to act consistently with the Human Rights Act 1998. Secondly, such provision cannot be made at the whim of the Executive. If any attempt were ever made to abuse such a provision and use it in a way that was detrimental to the rights of individuals, Parliament could block it. All Orders in Council under clauses 94 and 150 and orders under clause 149 that amend primary legislation will be subject to full parliamentary oversight.
The power to make retrospective provision exists primarily to allow technical points to be tackled. Let me make it clear that the Government would not make an order that retrospectively altered a court’s decision. If a future Government were to try to do that, Parliament would block it.
Mr. Dominic Grieve (Beaconsfield) (Con): What the Under-Secretary said is not the same as the comments of Lord Evans of Temple Guiting in his letter to Lord Kingsland. The letter stated that he would not move goalposts by seeking to change retrospectively the law on which a case was based while it was before the court and without the leave of the court. That is not what the Under-Secretary said. He went much further a moment ago. He said that if a court decision were to go against the Assembly or the Government, there would be no question of changing it retrospectively. Those are two different things. It is important for hon. Members to understand which we mean.
7.15 pm
Nick Ainger: Let me continue with my argument. Such a provision would never be used retrospectively to amend a court order, although it could be used, depending on the circumstances, to deal with the results flowing from a court’s decision. I hope that that deals with the hon. Gentleman’s point.
The Government do not envisage the power to make retrospective provision being exercised except in very rare cases. While I understand the thrust of the amendments, there are sound reasons why the Government cannot accept them. There could be public interest considerations in favour of making
retrospective provision. It is not right that the Government should be prevented from taking the public interest into account in making legislation. Furthermore, the amendments are technically defective and would render the provisions that relate to retrospective provisions inoperable.
Mr. John Gummer (Suffolk, Coastal) (Con): As a Minister, I always found that when civil servants said, “Minister, you have to do this because there is a public interest requirement,” it was usually because they could not think of anything else. Will the Under-Secretary give us a practical example of when the public interest was so important that it necessitated what appears to many of us to be an unacceptable change?
Nick Ainger: Yes, I can give an example. Let us imagine that both Houses of Parliament agreed a measure that related to a position following a public inquiry into the construction of a bypass. If, after compulsory purchase orders and payments had been made, a defect was found in the legislative competence, it would be in the public interest retrospectively to set the record straight in legal terms to allow the payments that had already been made to be retained, and no claims to be made against the individuals who had received the money from the compulsory purchase. That would enable the bypass to go ahead in the public interest, and not to the detriment of the individual who had received funds from the Government in exchange for the land. That is an example of the public good benefiting from retrospective legislation such as that for which clauses 94 and 150 provide.
It is impossible to identify with certainty all persons who could be in any way detrimentally affected as a consequence of such an order before it was made. It would therefore never be clear whether an order could lawfully be made, even if there were an overwhelming public interest in making it. I therefore invite hon. Members to reject the amendments.
Mr. Grieve: I am grateful that the Under-Secretary acknowledged that the clause, which was amended in the other place, raises serious problems. It is not common practice for the House to pass measures that can apply retrospectively. Retrospective powers enable the Government to interfere with private rights in a way that is contrary to the principles of the rule of law in this country. For the Under-Secretary to claim that the provision is simply a balancing exercise under the Human Rights Act 1998 is an inadequate response.
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