Government of Wales Bill

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. 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 Council properly balanced those considerations. Such provision cannot, therefore, be made at the whim of the Executive. 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.