Government of Wales Bill

moved Amendment No. 44:"Page 52, line 4, leave out subsection (4)." The noble Lord said: My Lords, Amendment No. 44 deals with Clause 94(4), which states:"““An Order in Council under this section may make provision having retrospective effect””." Orders in Council under Clause 94 are what I have called, in the course of our debates, stage 1 orders. They delegate legislative authority to the Welsh Assembly by enhancing its fields of legislative power under Part 1 of Schedule 5. This matter was debated at some length on 6 June at columns 1169 to 1172; I do not wish to repeat all the arguments that were deployed at the time, either on our side or the Government’s side. The worry that we have is clear. We are concerned that the retrospective power will be used to change decisions in litigation. If, for example, an Assembly measure is in issue in a trial, which has been authorised under one field or another of Part 1 of Schedule 5, and the judge concludes that the Assembly measure is ultra vires that field, we do not want an Order in Council made under Clause 94(4) to widen the scope, retrospectively, of the field in Part 1 of Schedule 5 so as to make what was decided by the judge as ultra vires, intra vires, thereby changing the decision of the court. We quite accept that if, as a result of litigation, an Assembly measure is decided to be ultra vires, an order might then be made changing the law for the future. That would be entirely understood and completely acceptable; but we would find it wholly unacceptable if the results of litigation could be changed by this subsection. I think that that summarises three columns of exchanges in Committee. I beg to move.