Government of Wales Bill

My Lords, I hope that I will be able to reassure the noble Lord, Lord Kingsland. First, the Government do not envisage the power to make retrospective provision to be exercised except in very rare cases. Such an Order in Council will require the approval of the Assembly and both Houses of Parliament. Such a provision cannot therefore be made at the whim of the Executive. Let me give a hypothetical example of when this provision might be needed. Suppose the Assembly enacts a measure that introduced an incentive scheme for those helping 14 to 19 year-olds to gain qualifications, and the Welsh Ministers go ahead and implement the measure. After a year someone questions whether voluntary organisations are entitled to benefit from the scheme, because the matter under which the measure was made does not specifically refer to voluntary organisations but does refer to educational establishments. This is despite the fact that when the matter was added, it was made clear in the Assembly and in Parliament that what the Welsh Ministers had in mind was a scheme of the sort they have now implemented. In those circumstances it would be clear that everyone intended people in voluntary organisations to be able to receive the incentives, and, what is more, they would already have received some. There is already provision in Clauses 150 and 152 of the Bill to enable the effects of any ultra vires legislation to be remedied so that third parties who have acted in good faith, believing the legislation to be valid, are not disadvantaged. In a case like that, where there is doubt about whether the measure should have been able to extend to voluntary organisations, the simplest course will be to correct the wording of the matter to remove the doubt. All Clause 94(4) does is make it clear that this can be done. In those circumstances it is inconceivable that an Order in Council would be brought forward that sought to undermine the court’s proceedings. The Secretary of State would have to consider any action carefully for its compatibility with the convention rights. As I indicated in Committee, one would hardly ever expect this provision to be needed because no one would expect any shortcomings in the drafting of proposed Orders in Council to be ironed out during pre-legislative scrutiny. However, it is still necessary to have provision so that if any deficiency comes to light subsequently, it is absolutely clear what can be done to put it right. I hope that, with this explanation, the noble Lord will feel able to withdraw the amendment.