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The noble Lord said: My Lords, the charm and diplomacy of the Minister is greatly appreciated; but, I fear, as far as I am concerned, to no avail. I do not find his reassurances sufficiently reassuring. It may be intended that the clause should deal with technical points; but the consequence for the private individual of dealing with those technical points continues to worry the Opposition.
Our constitution abhors retrospection. When a citizen’s private rights are breached and he is damaged as a result, he is invariably entitled to redress. Retrospective powers enable the Government to abandon that principle. That is why we challenged Clause 94(4) on Committee and Report.
At Third Reading we offered the Government an olive branch. We suggested that retrospective powers would be acceptable as long as such powers were not exercised,
- “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”.—[Official Report, 13/7/06; col. 840.]
To this proposal we have received an ominously evasive response—first from Ministers in this House and then from the honourable Member Mr Ainger in another place, who said:
“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”.—[Official Report, Commons, 18/7/07; cols. 218-19.]
I cannot decide whether that is a profoundly ingenuous or profoundly disingenuous remark. In either case, such a proposition should never be allowed to justify retrospection. Of course the public interest should play a part in deciding what the law should be in the future; but it has no part to play in determining the application of existing private rights. That kind of thinking engendered the Acts of indemnity so beloved of Tudor and Stuart monarchs.
Mr Ainger claimed that there remained the protections of the Human Rights Act and of our own parliamentary procedures. However, in continental jurisprudence, the rule against retrospection is much less well entrenched than in our own common law. Despite the Human Rights Act, for example, the Government were perfectly happy to claim the other day that the Compensation Bill conformed with the convention even though it contained a clause that is plainly retrospective. That is an example of the Human Rights Act undermining the traditional protections of common law.
As to the protection of Parliament, at least the Burma Oil legislation in 1965 had to go through the full legislative procedures of both Houses. In this case, there would be a single vote on an unamendable draft order after derisory debate.
From the evasiveness of the Government responses, I can only conclude that they do indeed intend on occasions to alter existing private rights retrospectively
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Moved, as an amendment to the Motion, leave out from “House” to end and insert “do insist on its Amendments 17, 21 and 22”.—(Lord Kingsland.)
Lord Thomas of Gresford: My Lords, at Third Reading, I expressed the concern felt on these Benches about the introduction of retrospective legislation in any form. I received assurances from the Minister at that time and those assurances were expanded on by Mr Ainger in another place, when he made the Government’s policy abundantly clear. Although our reservations remain, we are of the view that it would be extraordinarily difficult for this Government, or indeed any Government, to attempt to introduce legislation that altered the rights of individuals in the way that we discussed at Third Reading. Therefore, we are content for the Government to have their way without giving them any support if there is a vote.
Lord Evans of Temple Guiting: My Lords, I am afraid that the noble Lord, Lord Kingsland, and I are not going to agree on this. We have been over this ground a number of times, but I have a few things to say for the record.
The concerns expressed about retrospective provision affecting the rights of individuals, and the Government’s assurances on that point, are now very clearly on the record in both Houses. The Government would not seek to make retrospective provision while a court case was proceeding, without the knowledge and leave of the court. They would not seek to change a court’s order retrospectively although they might need to take action subsequently in the light of that decision.
The noble Lord, Lord Kingsland, asked what redress an individual had in relation to retrospective provision made in such subordinate legislation. The individual could take a claim to the courts. An Order in Council under Clause 94 that breached human rights would be struck down by the courts or declared incompatible with those human rights depending on the circumstances.
In considering whether to make retrospective provision, the Government would take into account how private interests might be affected. If they foresaw that there might be some unjustifiable detriment to individuals for which the Assembly legislation did not already provide redress it is inconceivable that they would seek to make retrospective provision.
Finally, Parliament would be able to reject any proposal which it felt was an inappropriate use of the power to make retrospective provision. For those reasons I invite the House to reject the amendments.
5 pm
Lord Kingsland: My Lords, I am most grateful to the Minister for responding in his characteristically generous way. He demonstrated the difference between us in a very short phrase, when he referred to “unjustifiable detriment”.
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We believe that the key to making retrospectivity acceptable in this case is that there should be no detriment. Yet the Government, themselves, in forming the order, would take a view about whether the detriment would be justifiable and whether, therefore, an existing private right could justifiably stand. In my submission, that is totally against the rule of law and therefore to us wholly unacceptable.
I listened with care to what the noble Lord, Lord Thomas of Gresford, said. He and I have worked together on many occasions and, although we represent different political parties, I think that we can say that we are good colleagues. When the noble Lord stood up at Third Reading, he said in the first sentence of his observations, “We support this amendment”. Indeed, it is fair to say that we discussed its terms before I finally decided on the text. He has now indicated that he will not support it in the Lobby, although he also said that he would not vote against it.
When he was in full flight at Third Reading, he checked and swerved. He was perfectly entitled to do that; but, in doing so, again he undermines any chance that we have of winning a vote on the amendment now. So, despite the fact that we believe very strongly in the principles that the Government are now undermining, we shall not press the amendment to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.
18A: Because it is important that the Secretary of State should have discretion to refuse to lay before Parliament an Order in Council for a referendum about the commencement of the Assembly Act provisions which has been requested by the National Assembly for Wales
Lord Davies of Oldham: My Lords, I beg to move Motion F standing in the name of my noble friend Lord Evans of Temple Guiting, that the House do not insist on its Amendment No. 18, to which the Commons have disagreed for their reason numbered 18A.
The House will appreciate that the amendment seeks to remove the Secretary of State’s discretion over whether 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 timescale. It is right that such a request cannot simply be sat upon, but the amendment would compel the Secretary of State to lay a draft order before Parliament within 120 days.
We had intensive debate on this matter at Third Reading, and I recognise the concerns that have been expressed by noble Lords—principally that a hostile Secretary of State should not be able to frustrate or obstruct the will of the democratically elected Assembly, particularly when it had passed the measure on a two-thirds majority. This concern was expressed by the noble Lords, Lord Livsey and Lord
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I repeat what I said at Third Reading. Any governing party in London that sought to block a decision by two-thirds of Assembly Members in Cardiff would pay a heavy political penalty. 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 two-thirds or more of Assembly Members, the consequences would be grave, both politically and constitutionally.
In the event of a hostile Secretary of State being foolish enough to block a referendum—that was the concept envisaged by noble Lords when expressing anxiety about this—the amendment, as I said, would do nothing to restrain him. In such circumstances, he would simply have the referendum order thrown out in a whipped vote in the House of Commons. The referendum could not be a defence against a Secretary of State determined to pursue such a wilful cause.
The most effective check on such recklessness is not constitutional but political. A referendum request approved by two-thirds of Assembly Members would have the momentum to carry it forward. It cannot be conceived that a Secretary of State would risk political annihilation in Wales in the face of such a broad consensus. I know noble Lords on the Liberal Democrat Benches said that it might not always be a Secretary of State from my party, with its broad sympathy for the ambitions of the people of Wales, and that a Conservative Secretary of State might think differently, but I do not think political reality could envisage such a cause.
I shall respond to the points raised in the debate we had at Third Reading, and in the other place, when we considered this issue. The Order in Council process is a mechanism to bring about the referendum. If an order is to be laid before Parliament, that is properly for a Minister of the Crown. The Assembly cannot lay the order; neither would it be constitutionally appropriate for the Assembly to be able to force the Secretary of State to lay the order before Parliament. The clear line of constitutional accountability that we are seeking to preserve in this Bill is that the Secretary of State, as a member of Her Majesty’s Government, is accountable to Parliament, not to the Assembly. It is just not appropriate, as I think is being sought on the Opposition Benches, for a Minister who is accountable to one legislature to be instructed to do something by another.
I repeat what I said for the Government at Third Reading: our objection to this amendment is not that we wish to aggrandise the role of the Secretary of State. Indeed, I do not see a real difference of principle between the concerns expressed by the Liberal Democrats and our position. The Government’s objection to the
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There are also, at a much lower order of consideration, practical reasons why the Secretary of State should not be constrained to lay a draft order within 120 days. In the event of there being an unsympathetic UK Government, the order would certainly not at that stage have been agreed. What if the Assembly were not happy with the content of the draft order that was produced? The clock would start ticking, and there would be no way of stopping it to allow further time for negotiations before the draft itself had been laid.
In summary, the Government reject the amendment because we have a clear constitutional process to follow, which the amendment would distort. There are, in addition, practical considerations to take account of, and, fundamentally, if the collision were such that the Government in the United Kingdom objected to the referendum of the people of Wales passed by two-thirds of the Assembly, there would be high politics at play, with serious consequences for a Government that pursued such a course. Any attempt to obstruct the process, after a referendum request had been approved by the Assembly, would provoke a constitutional storm. It is not possible to envisage a Secretary of State opting to act in such circumstances. If he were bent upon such a course, he could take other action to frustrate the will of the National Assembly. This amendment would not be beneficial, which is why I hope that the House will support the Government’s position. I beg to move.
Moved, That the House do not insist on its Amendment No. 18, to which the Commons have disagreed for their reason numbered 18A.—(Lord Davies of Oldham.)
Lord Roberts of Conwy: My Lords, given all the circumstances that the Minister has outlined, one is tempted simply to ask him why on earth the Secretary of State hangs on to this power. I listened very carefully to the Secretary of State’s rejection of the amendment in the other place last week, and I have listened to the noble Lord’s remarks today. Frankly, I am not convinced that the Secretary of State’s alternative role of blocking an Assembly resolution asking for a referendum, backed by a two-thirds majority of the seats, instead of laying an order before Parliament to authorise the holding of a referendum is remotely justifiable.
The Government’s view is that the Secretary of State cannot be compelled in this regard. The Secretary of State has said that and we have heard it again today. The relevant remarks of the Secretary of State are recorded at col. 232 of Commons Hansard of 18 July. He argued that he could not be compelled to act by the Assembly. However, he is not being compelled to act by the Assembly but by this legislation, passed by this Parliament. Clause 103(3) states that the “Secretary of State must”—I emphasise the word “must”— “within ... 120 days” of being told of the resolution by the First Minister,
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We have heard Ministers argue that the Secretary of State must have time to prepare the statutory instrument and to consult, but time is provided by the clause, which was drawn up by Ministers. They specified 120 days.
As I made clear at Third Reading, the purpose of our amendment was to eliminate the Secretary of State’s right of refusal to lay an order—a refusal that would also deprive Parliament of the opportunity to express its wishes in response to the Assembly’s call for a referendum. Again, I ask why on earth he needs this power. I am still convinced that it is wholly wrong to allow the Secretary of State to thwart the Assembly’s will and as a result to deprive Parliament of its rightful opportunity to express its wishes regarding a referendum. The Government have failed to justify this power, but we have to view it in context, and that context is probably one in which a referendum is a very remote possibility indeed.
The fact that the referendum to bring in Part 4 is currently out of political range means that the Bill is heavily dependent on the complex, gradualist mechanism of Part 3, which even the noble Lord, Lord Richard, finds complex. We have made clear that we believe that Part 3 is seriously flawed. It is one of the reasons why I believe that the Bill will not provide a lasting settlement.
I hope that those who attend the Secretary of State’s reception in Cardiff tomorrow to celebrate a “new dawn of devolution”, as he describes the Bill, are not befogged by the hype and remember the Explanatory Notes’ modest description at paragraph 309 on page 62 that,
- “with minor exceptions ... the Bill does not itself confer additional legislative powers on the Assembly; rather, it provides a mechanism whereby such powers can be conferred on a case by case basis as appropriate, with Parliamentary consent”.
That is what the Government’s own Explanatory Notes say. That is the true extent of the enhanced powers granted to the Assembly. The real enhancement is in the power of Ministers, including the Secretary of State.
I thank the Ministers who have dealt with our debates, over seven days in all on the Floor of the House. I also thank the Bill team who have supported them, and all who have participated in shaping this legislation. I shall not be pressing my colleagues to vote against the Government on the Motion.
5.15 pm
Lord Livsey of Talgarth: My Lords, I believe that contained in Motion F is the recipe for some conflict in the future. Those of us who soldiered on, for example in the 1979 referendum on whether there should be a Welsh Assembly, can conceive of any kind of outcome that could occur. Although the Minister pleads sweet reason to us—and I accept what he said, because he said it in good faith—there is no doubt that a whole series of circumstances could come along to dog Wales yet again on getting the kind of powers
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Even though the Assembly has voted by two-thirds in favour of an Order in Council to hold a referendum, the Secretary of State can intervene. As the Minister said, there may be a hostile Secretary of State who might be inclined to deny the opportunity in spite of a two-thirds vote. We must ask, certainly in constitutional affairs and constitutional reform: which Secretary of State? Who is to say that the shelf life of a Secretary of State for Wales will be very long? Given that more powers are being transferred to Wales—I hope not until there are full primary legislative powers for Wales—there could be a situation where “the Secretary of State” would not be the Secretary of State for Wales but would be the Secretary of State for Constitutional Affairs. The Bill is so phrased that a Secretary of State for Constitutional Affairs might have a radically different view of whether the referendum should go through an Order in Council and be accepted. The Bill says that he or she has the right to refuse it; you only have to look at Clause 104(3)(b) to see that staring you in the face.
We have made quite a lot of progress with the Bill in the way that Wales is eventually creeping to democracy. We have a long way to go, but this is undoubtedly some progress. There are a lot of convoluted problems with the Bill, which is why, as the noble Lord, Lord Richard, said, it is only worthy of a B-plus. I sincerely hope that we will end up with a proper constitutional settlement for the whole of the United Kingdom; a federal constitution where the powers lie where they should do. The Richard commission report had a good go at that by saying where the powers should lie in what would be a Welsh Parliament or Welsh Assembly with primary legislative powers. The issue about where the appropriate powers should lie has to be sorted out one day. We should not really have this long march around all these bends, corners and obstacles to get there.
There is no doubt that there has been good will on all sides. I thank the Conservative Front Bench, whom we worked with closely on many of the amendments. Some of the things that we wanted have been achieved. I thank the Minister for that, and the Bill team who have worked extremely hard. I also thank the Presiding Officer of the National Assembly—the noble Lord, Lord Elis-Thomas—who put his case today far more eloquently than I did, although I attempted to do it despite what the noble Lord, Lord Anderson, said earlier. There has been lot of co-operation.
The Bill will do as a constructive stop-gap to give more power to Wales. Let us hope that Wales will get the proper legislation that it deserves not too long in the future.
Lord Elis-Thomas: My Lords, I hate to disagree with my spokesperson in this House over the past few months, but this is much more than a legislative stop-gap. I do not want to excite the noble Lord, Lord Roberts of Conwy, but the Bill lays on the statute
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