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7.45 pm
Mr. Gummer: I am still bemused because the hon. Gentleman is now saying that were the amendment carried, the clause would be difficult to use. He therefore wants the Minister to say on the record that he accepts the amendment, so that, in his language, it could be used in court, but he does not want the Minister to include it in the Bill. If including it in the Bill would make the legislation difficult to use, how would such a statement by the Minister make it any easier to use—or have I missed his point?
Lembit Öpik: Yes, the right hon. Gentleman has missed it. There is no point in pursuing a dialogue with him any further, as it is for the Minister to explain. In my judgment, however, while Kingsland’s amendment was a good descriptor of the intent of the legislation, it was not a well-phrased amendment.
Mr. Gummer: I would therefore advise the hon. Gentleman to suggest something different. I suggest that he says to the Minister that he will vote against the Government upholding the amendment unless the Minister comes forward with a promise that he will find another form of words that enables the sense of my noble Friend Lord Kingsland’s proposition to be maintained, but without the disadvantages that he asserts are there, about which the hon. Gentleman happens to agree. That would be a convenient way forward.
I have one further comment to make. I do not believe that we should have any possibility of retrospective legislation. Certainly, retrospective legislation by Order in Council and Government fiat is never acceptable, even if it might be convenient. I wish the Government to consider the history of this House and our constitutional arrangements, and I point out that the strength of our defence against retrospective legislation distinguishes us from other countries. For that precise reason, we can say that the rule of law is more firmly rooted here than anywhere else.
The Minister may think that this is a small matter, but it is in fact a most important principle. It would help him and us if he were to promise to produce a better form of Lord Kingsland’s proposal so that this issue does not hold up the Bill. I am sorry that the Government produced the Bill and that they did not offer the choices publicly to the people of Wales. Instead, he and others have had furtive back-of-the-room discussions. He promised to do it in that way, however, and I would prefer to have the Bill in those circumstances than not to have it at all. In my view, however, he cannot have the Bill if he wants retrospectivity without protections, as he does at this moment.
Nick Ainger: I note that the right hon. Member for Suffolk, Coastal (Mr. Gummer) is fundamentally opposed to any retrospection in legislation. He also said, however, that the use of Orders in Council was a back-door method, a trick and so on. Let us consider how the process would work in principle.
Were a measure identified as defective, or being used in a way that was ultra vires, the Assembly would have to propose an order that would come to this place for pre-legislative scrutiny. Once the measure had been scrutinised—I am sure that at that stage any individuals who might be affected by it would make their views known—it would have to return to the Assembly with any suggested amendments. The Assembly would have to abide by the European convention on human rights; it could then send the House of Commons a draft measure which would be debated in both Houses.
Given all those checks and balances, I can assure the right hon. Gentleman that the proposal is intended only to correct any technical defects and deal with any issues that are ultra vires. I can also assure him, as did my noble Friend Lord Evans, that the Orders in Council and the ultimate Assembly measure could not overturn a court decision. I hope he appreciates that.
What concerns everyone—I understand the concern—is the possibility that, in principle, an individual’s rights could be affected. Let us consider what has happened in Scotland. Since 1998 this provision has been used once to deal with an ultra vires issue, a technical defect in legislation passed in the Scottish Parliament. That is why we want the clauses to remain as they are.
I hope I have been able to reassure the hon. Member for Montgomeryshire (Lembit Öpik) that the proposal is intended to deal with technical defects and issues that may turn out to be ultra vires, that there is no intention of using the procedure to overturn any court decision, and that the rights of the individual will be protected.
Lembit Öpik: I am grateful for the Minister’s reassurance. To save a bit of time, I ask him to confirm that as far as the Government are concerned, the measure must never be used
“to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”.
Nick Ainger: I cannot use those terms, because it is not possible to use them. I can only tell the hon. Gentleman that the rights of the individual, about which everyone is concerned, will be protected by the very process of the Orders in Council. People are rightly concerned, but as I have said, the provision has been used only once in Scotland since 1998, and it is intended to deal with technical defects.
I think that we have got hung up on the example given by Lord Kingsland. I do not know whether it is such a good example. I have responded to what he said about a bypass and compulsory purchase. There is no way in which an individual’s rights would be overturned, and a demand be made that he pay back the money. The Government and the Assembly will certainly take the individual’s rights into account, although there may well be rare occasions on which action must be taken for the sake of the wider public good.
Nick Ainger: Let us talk about the reality. The provision will be used extremely rarely, and as I have said, individuals who may be affected will be able to make representations.
Lembit Öpik: I suffered the most appalling attack from the right hon. Member for Suffolk, Coastal (Mr. Gummer), an accidental defence of the Government. I sought no greater reward than a simple clarification using the words of Lord Kingsland. I hope that the Minister will not make me regret my experience of the slings and arrows from the Conservative Benches. I ask him what is so difficult about agreeing to what appears to be a common-sense form of words—the amendment proposed by Lord Kingsland—to reassure us all that the legislation will never be used
“to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made”.
That is not a difficult question.
Nick Ainger: I think I have given the hon. Gentleman the answer: it will not be used in those circumstances. That is not its purpose. The hon. Gentleman is well aware of the extensive process of consultation with the Assembly.
Nick Ainger: I think I have responded to all the points that have been made, and I am conscious of the time.
Question put, That this House disagrees with the Lords in the said amendment:—
The House divided: Ayes 287, Noes 153.
AYES
Abbott, Ms Diane
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
Balls, Ed
Banks, Gordon
Barlow, Ms Celia
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Begg, Miss Anne
Bell, Sir Stuart
Berry, Roger
Blackman, Liz
Blackman-Woods, Dr. Roberta
Blears, rh Hazel
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
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
Cryer, Mrs. Ann
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
Curtis-Thomas, Mrs. Claire
Darling, rh Mr. Alistair
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
Eagle, Angela
Ellman, Mrs. Louise
Engel, Natascha
Ennis, Jeff
Etherington, Bill
Farrelly, Paul
Field, rh Mr. Frank
Fisher, Mark
Flello, Mr. Robert
Flint, Caroline
Flynn, Paul
Follett, Barbara
Foster, Mr. Michael (Worcester)
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
Howells, Dr. Kim
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Humble, Mrs. Joan
Hutton, rh Mr. John
Iddon, Dr. Brian
Illsley, Mr. Eric
James, Mrs. Siân C.
Jenkins, Mr. Brian
Johnson, Ms Diana R.
Jones, Mr. Kevan
Jones, Lynne
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
MacDougall, Mr. John
Mackinlay, Andrew
MacShane, rh Mr. Denis
Mactaggart, Fiona
Mahmood, Mr. Khalid
Mallaber, Judy
Mann, John
Marris, Rob
Marsden, Mr. Gordon
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
Munn, Meg
Murphy, Mr. Denis
Murphy, Mr. Jim
Murphy, rh Mr. Paul
Norris, Dan
O'Brien, Mr. Mike
O'Hara, Mr. Edward
Osborne, Sandra
Owen, Albert
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Pound, Stephen
Prentice, Bridget
Prentice, Mr. Gordon
Prescott, rh Mr. John
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, Bob
Russell, Christine
Salter, Martin
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
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
Vis, Dr. Rudi
Walley, Joan
Waltho, Lynda
Wareing, Mr. Robert N.
Watts, Mr. Dave
Whitehead, Dr. Alan
Wicks, Malcolm
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. Ian Cawsey and
Huw Irranca-Davies
NOES
Afriyie, Adam
Amess, Mr. David
Bacon, Mr. Richard
Baldry, Tony
Barker, Gregory
Baron, Mr. John
Benyon, Mr. Richard
Bercow, John
Beresford, Sir Paul
Binley, Mr. Brian
Blunt, Mr. Crispin
Bone, Mr. Peter
Boswell, Mr. Tim
Brazier, Mr. Julian
Brokenshire, James
Browning, Angela
Burns, Mr. Simon
Burrowes, Mr. David
Burt, Alistair
Chope, Mr. Christopher
Clark, Greg
Clarke, rh Mr. Kenneth
Clifton-Brown, Mr. Geoffrey
Cox, Mr. Geoffrey
Crabb, Mr. Stephen
Curry, rh Mr. David
Davies, David T.C. (Monmouth)
Davies, Mr. Quentin
Djanogly, Mr. Jonathan
Dodds, Mr. Nigel
Donaldson, Mr. Jeffrey M.
Dorrell, rh Mr. Stephen
Dorries, Mrs. Nadine
Dunne, Mr. Philip
Evans, Mr. Nigel
Fabricant, Michael
Fallon, Mr. Michael
Gale, Mr. Roger
Garnier, Mr. Edward
Gauke, Mr. David
Gibb, Mr. Nick
Gillan, Mrs. Cheryl
Goodman, Mr. Paul
Goodwill, Mr. Robert
Gove, Michael
Gray, Mr. James
Green, Damian
Greening, Justine
Greenway, Mr. John
Grieve, Mr. Dominic
Gummer, rh Mr. John
Hammond, Mr. Philip
Hammond, Stephen
Hayes, Mr. John
Heald, Mr. Oliver
Heathcoat-Amory, rh Mr. David
Hendry, Charles
Herbert, Nick
Hoban, Mr. Mark
Hogg, rh Mr. Douglas
Hollobone, Mr. Philip
Horam, Mr. John
Hosie, Stewart
Howarth, Mr. Gerald
Hunt, Mr. Jeremy
Jack, rh Mr. Michael
Jenkin, Mr. Bernard
Jones, Mr. David
Kawczynski, Daniel
Key, Robert
Kirkbride, Miss Julie
Knight, rh Mr. Greg
Lait, Mrs. Jacqui
Lancaster, Mr. Mark
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
May, rh Mrs. Theresa
McCrea, Dr. William
McLoughlin, rh Mr. Patrick
Mercer, Patrick
Miller, Mrs. Maria
Milton, Anne
Moss, Mr. Malcolm
Mundell, David
Murrison, Dr. Andrew
O'Brien, Mr. Stephen
Osborne, Mr. George
Ottaway, Richard
Paice, Mr. James
Paisley, rh Rev. Ian
Paterson, Mr. Owen
Pelling, Mr. Andrew
Penning, Mike
Penrose, John
Price, Adam
Prisk, Mr. Mark
Pritchard, Mark
Randall, Mr. John
Redwood, rh Mr. John
Rifkind, rh Sir Malcolm
Robertson, Angus
Robertson, Hugh
Robertson, Mr. Laurence
Robinson, Mr. Peter
Rosindell, Andrew
Rowen, Paul
Ruffley, Mr. David
Russell, Bob
Scott, Mr. Lee
Selous, Andrew
Shapps, Grant
Simmonds, Mark
Simpson, David
Soames, Mr. Nicholas
Spelman, Mrs. Caroline
Spring, Mr. Richard
Stanley, rh Sir John
Steen, Mr. Anthony
Streeter, Mr. Gary
Stuart, Mr. Graham
Swayne, Mr. Desmond
Swire, Mr. Hugo
Syms, Mr. Robert
Taylor, Mr. Ian
Taylor, Dr. Richard
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
Whittingdale, Mr. John
Wiggin, Bill
Willetts, Mr. David
Williams, Hywel
Wilson, Mr. Rob
Winterton, Ann
Winterton, Sir Nicholas
Wishart, Pete
Wright, Jeremy
Yeo, Mr. Tim
Tellers for the Noes:
Mr. Henry Bellingham and
Mr. David Evennett
Question accordingly agreed to.
Lords amendments Nos. 21 and 22 disagreed to.
Mr. Hain: I beg to move, That this House disagrees with the Lords in the said amendment.
This amendment removes the Secretary of State’s discretion over how and when to lay a draft referendum Order in Council before Parliament if the Assembly passed such a request on a two-thirds vote. The purpose of clause 103 is to ensure that the Secretary of State responds to a request from the Assembly within a proper time scale. It is right that such a request cannot simply be sat upon.
The effect of this amendment, however, would be to compel the Secretary of State to lay a draft order before Parliament within 120 days. I recognise the concern that the Secretary of State—perhaps one less charitable towards devolution than I—should not be able to obstruct the will of the democratically elected Assembly and that for the Liberal Democrats, that is a particular point of principle. I understand that fully. The commitment of the Liberal Democrats to devolution and to primary powers for Wales is long established, and I fully understand the concern that a move to primary powers should not be frustrated by a hostile Secretary of State. I would not support that myself, but of course I am sympathetic to primary powers and always have been. However, if any Government were bent on frustrating the will of the Assembly, this amendment would not be enough to stop them.
A hostile UK Government could always resort to primary legislation. After all, Parliament is sovereign. The real safeguard—I know that the hon. Member for Montgomeryshire (Lembit Öpik) has real concerns about this point—is political. Any governing party in London that sought, arbitrarily or on some point of dogma, to block a decision by two thirds of Assembly Members in Cardiff would pay a heavy political penalty. They would be run out of town, just as the Conservatives were in 1997 for similar behaviour.
I respect the intentions of the Liberal Democrats and others who proposed the change, but I do not believe that this amendment will achieve the desired outcome as effectively as the Bill as it currently stands does. If a Secretary of State were wilfully to attempt to thwart the clear will of the elected representatives of the people of Wales, after a referendum request had been given full and detailed consideration by the Assembly, and approved by at least two thirds of Assembly Members, the consequences would be grave, both politically and constitutionally. There would be a real crisis and the Secretary of State would clearly be in the wrong.
The Government’s objection to this amendment is not because we wish to aggrandise the role of the Secretary of State. Nor do we wish to put in place some kind of mechanism for thwarting a two-thirds majority of the National Assembly. Indeed, I do not see a real difference of principle between the concerns expressed in the House of Lords and by the hon. Gentleman and other Liberal Democrats, and the Government’s position. It is a question of how to achieve the same end, and we do not think that the amendment is constitutionally appropriate. I shall explain why.
8.15 pm
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