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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 useor 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 Kingslands 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 Kingslands 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 Kingslands 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 scrutinisedI am sure that at that stage any individuals who might be affected by it would make their views knownit 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 everyoneI understand the concernis the possibility that, in principle, an individuals 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 Ministers 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 individuals rights would be overturned, and a demand be made that he pay back the money. The Government and the Assembly will certainly take the individuals 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 wordsthe amendment proposed by Lord Kingslandto 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.
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 States 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 Stateperhaps one less charitable towards devolution than Ishould 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 safeguardI know that the hon. Member for Montgomeryshire (Lembit Öpik) has real concerns about this pointis 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 Governments 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 Governments 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.
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