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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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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”.
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 a very long time? 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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There has been a lot of imaginative constitutional talk in this debate. Could we ever conceive of a situation in which a Secretary of State of the United Kingdom Government would take a certain view about a potential referendum in Wales without there having been full consultation, even before the Assembly adopted a resolution requesting a debate? Surely we will not have a political party in power in the United Kingdom Government that is not represented in the National Assembly. Unless some English nationalist party appears, I cannot imagine such a thing; some would argue that we have one already on the Benches opposite, but I shall not go into that contentious area.
This is a constitutional convention. Any resistance by a Secretary of State would be more likely to bring about the demise of the great historic office held with such distinction by the noble Lord, Lord Crickhowell, and others in this House. The Secretary of State is a constitutional invention in terms of the Bill. We are in the conventions of the quasi-federalism that we are struggling towards within the United Kingdom, on which I agree with my noble friend Lord Livsey. Therefore, I welcome the Bill and the Motion.
I join in the congratulations to officials, who are mainly officials of the National Assembly—or the Welsh Assembly Government, as we will have to learn to say—as well as of the Wales Office. They have served us well in drafting the legislation. I am especially grateful to the noble Lord, Lord Crickhowell, for his kind expression of good wishes for the future of the Assembly and for what it may or may not do. In fairness, I am sure that his party has played a great role in the development of the Assembly. We have had consensus about important areas, especially the separation of powers which are not covered by the amendments, so I shall not go into them. To me as Presiding Officer through a difficult period in the first two Assemblies, the separation between the Executive and legislature is the clearest signal that what we have here is proper parliamentary democracy.
Lord Davies of Oldham: My Lords, I am grateful to the three noble Lords who have spoken. Once again I marvel at the ability of all Members of the House to be able to translate relatively minor amendments into significant constitutional principles. As the noble Lord indicated, that has kept us on our feet for seven days during the passage of the Bill. I had hoped for a little rest on the seventh day, but we do not seem to be getting any due to the scrutiny of Members on the other side of the House.
This is a fairly minor
amendment. It is about laying the order within 120 days. I emphasise
that it does not make any material difference. If the United Kingdom
Government of the day did not support the order passed by the Assembly
with a two-thirds majority, they would be into high politics. If we
passed this amendment, a Government would find other
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The Bill as drafted tries to take the point into account by quite properly forcing the Secretary of State, who is answerable to the United Kingdom Parliament, to face up to the demand for a referendum. In the unlikely event of a Secretary of State refusing to lay the referendum order, he would have to explain his reasons for doing so and would be publicly accountable for those reasons. That would be the basis of the political decision-taking that would result from such a crisis—because it would be a crisis. In such circumstances, this amendment would be immaterial to the decisions of government.
I am grateful for noble Lords’ constructive work on the Bill. We have laboured long and hard in the vineyard and it is good to see the results. I am grateful to the noble Lord, Lord Roberts, who said that the Bill had its merits—although in a rather minor key. He did, however, express a broad commitment to the development of devolution, which we welcome in the main opposition party. He has had rather more enthusiastic support from some of his Back Benches, and we have noted that, too. That augurs well for further progress.
I also recognise that the Liberal Democrat Party is committed to devolution and regrets that the Bill does not go far enough. However, the noble Lord, Lord Elis-Thomas, with his responsible role as Presiding Officer of the Assembly, accurately expressed the position—namely, that the Bill opens up the process of enhanced powers for the National Assembly, of which it can avail itself through judicious consideration of Orders in Council.
The Bill marks a significant step in the eventual transition of the National Assembly from its present role to that of a much more enhanced Assembly with fuller devolution powers. The Bill deserves support in those terms. It certainly does not deserve to be frustrated by this rather minor amendment at this stage. I therefore hope that the House will support the government Motion.
On Question, Motion agreed to.
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