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I understand what the Minister is saying about the process. That is one way of doing it. I can imagine the tabloid headlines saying “Crisis” for a few weeks, and
13 July 2006 : Column 840
Amendment, by leave, withdrawn.
Clause 78 [Sustainable development]:
Clause 95 [Scrutiny of proposed Orders in Council]:
Lord Kingsland moved Amendment No. 4:
Page 52, line 22, at end insert “, provided that such an Order is not 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”
The noble Lord said: My Lords, the amendment refers to the issue raised in Part 3 about retrospectivity. As your Lordships will recall, both in Committee and at Report, we tabled an amendment seeking to remove from the Act the principle of retrospectivity. This arises because of Clause 95(4) which states:
—that is to say, an Order in Council made as a consequence of the Parliament in Westminster deciding to expand a field, as defined in Schedule 5 to the Bill, or a matter under that field.
At Committee and Report, we sought to have that provision removed altogether. Now that we are at Third Reading, we are in characteristically conciliatory mood and propose a less dramatic solution to the problem—to leave the existing text in, but add the expression,
- “provided that such an Order is not 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”.
As a consequence of our debate at Report, the Minister kindly sent me a letter on the topic. I have read it a number of times. On each occasion, I reached a different conclusion about what it meant. I hasten to add that that is an observation on my powers of concentration rather than on the intellectual coherence of the Minister who drafted it. However, I am certain about one thing: the letter does not answer the question that I posed at both Committee and Report. The Minister will recall that that was, quite simply: can an order change, retrospectively, the decision of a court and the consequences that flow from that decision?
The letter only goes as far as to say that a retrospective order, directed at a matter of interpretation raised during a trial, cannot be made while the trial is in progress. Plainly, that does not go far enough. In those circumstances, I intend to press my amendment. In doing so, I invite the Minister to agree that the matters and concerns that he raised at Committee and Report will not in any way be adversely affected by our particular choice of words. I beg to move.
Lord Crickhowell: My Lords, I rise, first, to support my noble friend’s amendment and, secondly, to say that the noble Baroness, Lady Finlay of Llandaff, spoke to me last night expressing her regret that she was not able to be with us today having put her name to the amendment and that she is still in entire agreement with its object.
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Lord Thomas of Gresford: My Lords, we support the amendment. A simple point has been made by the noble Lord, Lord Kingsland. A person may engage in litigation and say, “I’ve won”. Then the Assembly may pass a measure that says, “No you haven’t, you’ve lost”, because they have retrospectively changed the provision on which his claim rested.
I have read the last paragraph of the noble Lord’s letter, which says:
“In summary these provisions exist to enable the law to be clarified and to enable those who have acted in good faith not to be disadvantaged if legislation made by the Assembly or the Welsh Ministers is found subsequently to be ultra vires”.
That answers one problem, but it certainly does not answer the problem raised by the noble Lord, Lord Kingsland. People may act in good faith on a measure that has been passed and then find that the Welsh Government take a contrary view and annul its effect. It has nothing to do with it being found ultra vires. So far as the noble Lord’s amendment protects a person in those circumstances, we support it.
12.30 pm
Lord Evans of Temple Guiting: My Lords, on Report the noble Lord, Lord Kingsland, said:
“I am partially satisfied by what the Minister said, but only partially”.—[Official Report, 28/6/06; col. 1276.]
We wrote a long letter, which I am afraid has still not satisfied the noble Lord, so I hope that in the next few minutes I shall be able to convince him that nothing is happening with this clause that should be of concern.
Amendments Nos. 4, 12 and 13 would all limit the retrospective effect of the respective orders under Clauses 95, 150 and 151 so that the order applies only if it is,
- “not to the detriment of those who have either benefited from or acted in reliance upon ... the law”,
before the order was made. We discussed the issue of retrospective effect at length in Committee and on Report. It is an important issue, and many noble Lords have expressed measured and cogent concerns about these provisions. To offer further reassurance, I wrote the letter that has been mentioned, and I am glad that we have an opportunity to return to the matter at Third Reading.
As I stated previously, the retrospective power exists primarily to allow technical defects to be corrected. The merits of using it would need to be decided on a case-by-case basis by weighing up the rights of individuals, the public interest and the scale of the change involved. Of course, the Welsh Ministers and the Secretary of State would have to take into account whether making retrospective provision would be to the detriment of any person. However, we cannot accept the amendments, as that is not the only consideration that they would have to take into account. There may be considerations in the public interest that greatly outweighed an arguable detriment to an individual. That is why the existing human rights legislation, which requires Ministers to consider these issues in the round, remains the best constraint on ministerial discretion. I also stress once again that these powers are primarily intended to enable technical defects to be remedied and minor and consequential amendments to be made.
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As I stated on Report, the Government do not envisage the power to make retrospective provision being exercised except in very rare cases. The purpose of the provision is to protect those who have acted in good faith as a result of provisions in an Assembly measure that have subsequently been ruled to be ultra vires. It is not intended arbitrarily to abridge the rights of individuals, and there are safeguards in place to ensure that the power could not be used in such a way.
I emphasise strongly to the noble Lord that, if there were ever any attempt to abuse this provision and to use it in a way that was detrimental to the rights of individuals, Parliament would block it. All orders under Clauses 95, 150 and 151 will be subject to full parliamentary oversight. Parliament will therefore act as a constant check on the use of these powers, and will be able to ensure that any retrospective provision made under those clauses is proportionate and appropriate.
I understand and have considerable sympathy with the intention behind the amendments. However, I point out to noble Lords that the amendments are technically defective and would render the provisions related to retrospective effect inoperable. It is impossible with any certainty to identify all persons who could be detrimentally affected as a consequence of the order in advance of the order being made. It would never be clear, therefore, whether any order could lawfully be made, even if there was an overwhelming public interest in making it. For that reason, the Government believe that the safeguards that I have outlined, of human rights legislation and parliamentary oversight, are the appropriate way of dealing with this issue, rather than the approach adopted by the amendments.
It is also worth reiterating that this provision follows the model of the provisions in Sections 107 and 114 of the Scotland Act 1998. Your Lordships may also be aware that it was necessary for provision to be made under Sections 107 and 114 of the Scotland Act 1998 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.
This power is needed because, if it were considered that an Assembly measure was outside its legislative competence, another provision of another enactment might also need to be amended to reflect that. The Bill provides that any provision of a measure that is outside the legislative competence of the Assembly is not law. If it were to arise that another enactment had made provision referring to that measure, then it may be necessary to amend that other enactment as if it had never referred to the ultra vires provision of the Assembly measure. As the Scottish example shows, this will certainly be a very rare event, but the provision may well be needed.
In all cases, the Welsh Ministers and the Secretary of State, who would be engaged in considering whether to propose a draft Order in Council with retrospective effect, would have to consider the circumstances of the particular proposal. The Assembly and both Houses of Parliament would judge whether the draft Order in
13 July 2006 : Column 843
I hope that finally I have convinced the noble Lord, and with this assurance I hope that he will feel able to withdraw the amendment.
Lord Thomas of Gresford: My Lords, I have two questions for the Minister. First, is he saying that this provision is to deal with a situation that might arise because a measure had been made that was ultra vires, and the provision is being used to put that right?
Lord Evans of Temple Guiting: My Lords, that is correct.
Lord Thomas of Gresford: My Lords, is it limited to that?
Lord Evans of Temple Guiting: Yes, my Lords.
Lord Thomas of Gresford: My Lords, do I also understand the Minister to say that there would be no question of the Welsh Assembly Government seeking to take away the fruits of victory in litigation from the litigant and, if they attempted to do so, this Government would block them by using the blocking mechanism of a measure that is set out in the legislation? Is that right?
Lord Evans of Temple Guiting: Yes, my Lords, I can confirm that that is the case.
Lord Kingsland: My Lords, first I must say how much I have enjoyed working with the Minister throughout this Bill. He has always set out, in the speeches that he has made, a spirited defence of the Government’s position. However, in this case, far from reassuring me, he has confirmed my worst suspicions. He has done so by explaining the process that would lead to an order.
Perhaps I should say at this point that the order is not one made by the Welsh Assembly but one made by the Westminster Parliament. I am talking not about the second range of orders but about the first range.
The Minister described the process of determining whether your Lordships' House and another place should make an order as one of balancing the public interest against the rights of the individual. From that, I conclude that, even after a court has decided that a certain individual has certain rights in law as a consequence of the trial process, those rights may be retrospectively taken away from that individual if Westminster considers it in the public interest to do so. That is my understanding of what the noble Lord said. I derive no reassurance whatever from the fact that there may be similar provisions in the Scottish legislation. Those provisions may well turn out to have the same defects as, I believe, I have identified in the definitions in this Bill.
13 July 2006 : Column 844
Indeed, the situation arises all the time in our own law. Where you have a piece of delegated legislation that is passed by your Lordships’ House and another place and on which people rely, and then subsequent litigation establishes that that legislation is ultra vires the primary legislation, there is no power in our constitution to retrospectively change the rights that flow from that court decision. Of course, Parliament can then change the law for the future, but not for the past.
I believe that our case here is unassailable and I should like to test the opinion of the House.
12.40 pm
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 110; Not-Contents, 106.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Biffen, L.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Chadlington, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dean of Harptree, L.
Dixon-Smith, L.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Ferrers, E.
Flather, B.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Glenarthur, L.
Hamilton of Epsom, L.
Hayhoe, L.
Henley, L.
Higgins, L.
Hooper, B.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Inglewood, L.
James of Holland Park, B.
Jenkin of Roding, L.
Kalms, L.
Kilclooney, L.
Kimball, L.
Kingsland, L.
Kirkham, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Lawson of Blaby, L.
Lucas, L.
Luke, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mar, C.
Marlesford, L.
Marsh, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Hendon, B.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Newton of Braintree, L.
Noakes, B.
Northesk, E.
O'Cathain, B.
Oppenheim-Barnes, B.
Patten, L.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plummer of St. Marylebone, L.
Rawlings, B.
Reay, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
13 July 2006 : Column 845
Soulsby of Swaffham Prior, L.
Swinfen, L.
Tenby, V.
Trefgarne, L.
Trumpington, B.
Ullswater, V.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Waldegrave of North Hill, L.
Walpole, L.
Weatherill, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.
Acton, L.
Adonis, L.
Ahmed, L.
Amos, B. [Lord President.]
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Crawley, B.
David, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
D'Souza, B.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Ford, B.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Jones of Cheltenham, L.
King of West Bromwich, L.
Kinnock, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Patel of Blackburn, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Steel of Aikwood, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Hornsey, B.
Resolved in the affirmative, and amendment agreed to accordingly.
12.50 pm
Lord Livsey of Talgarth moved Amendment No. 5:
13 July 2006 : Column 846
The noble Lord said: My Lords, I shall speak to Amendments Nos. 6 and 7. The noble Baroness,Lady Finlay of Llandaff, is unable to be here; she is on Assembly business. She wishes to support the amendment and, like the noble Lord, Lord Crickhowell, sends her apologies for not being here.
The amendment would delete paragraph (b) of subsection (7), which refers to giving,
- “notice in writing to the First Minister of the Secretary of State’s refusal to do so and reasons for that refusal”.
In Clause 95, entitled “Legislative competence: supplementary”, subsection (7) states:
“The Secretary of State must, before the end of the period of 60 days beginning immediately after the day on which notice of the Assembly’s resolution is received”.
Amendment No. 6 takes out another part of the clause, and reduces the length of time to,
- “30 days beginning immediately after the day on which notice of the Assembly’s resolution is received, submit the draft to the Clerk”.
It would add a new subsection to provide:
Amendment No. 7 reduces the period of 60 days to 30 days.
The amendments relate to the process for Orders in Council and were tabled in Committee and on Report. They provide that a draft Order in Council cannot be either submitted to Parliament or rejected by the Secretary of State. They can be sent only to the Queen for approval. They were designed to liberate the Assembly from the grip of Westminster by making the process automatic, whereby the Assembly’s will can prevail.
I acknowledge that this is a radical amendment to devolve more power to the Assembly, which is, after all, a democratic body, and to take that power from the Secretary of State. Everyone committed to true democracy should support the amendment, because the Assembly has been elected by the people of Wales and it is its will to put forward draft Orders in Council. There should be confidence in that elected body’s ability to do that and to be responsible. Therefore I have much pleasure in moving the amendment. I beg to move.
Lord Roberts of Conwy: My Lords, the main feature of these amendments is that they exclude both Houses of this Parliament from the procedure for securing approval for an Order in Council amending the important Schedule 5, which lists the fields where the Assembly has legislative competence. In other words, the amendment would ensure that approval by only the Assembly was required for the statutory instrument containing the order before it was approved by Her Majesty in Council.
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