Government of Wales Bill

The amendments would limit the effect of the powers to make retrospective provision in Orders in Council under clauses 94 and 150, or in an order under clause 149. The power in clause 94 is necessary to correct legislative competence retrospectively when that would give proper effect to the intention of Parliament and the Assembly, when not to do so could leave the law in an unclear state, or when it could be detrimental to third parties if that was not done. If the provision is used, it is likely to be to correct a technical defect. Clause 150(4) follows the model of sections 107 and 114 of the Scotland Act 1998. As Lord Evans of Temple Guiting pointed out on Third Reading in another place, it was necessary to make provision under those sections of the Scotland Act 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. The Bill provides that any provision of a measure that is outside the legislative competence of the Assembly is not law. If another Act made provision referring to that measure, it might be necessary to amend that other Act as if it had never referred to the ultra vires provision of the Assembly measure. As the Scottish example shows, that will happen rarely, but the provision may well be needed. The relevant provision in clause 149 relates purely to consequential amendments. For example, the Secretary of State might need to amend a corresponding reference in Northern Ireland legislation, which the Assembly could not do. The Lords amendments intend to ensure that such provision can be made only if it is not to the detriment of those who have either benefited from or acted in reliance on the law before such an order was made. The Opposition case for that is based on an argument that the power could be used to reverse the effect of court decisions and infringe individuals’ rights. That concern is clearly important—no one in the House wants the rights of individuals to be arbitrarily abridged. However, I cannot envisage circumstances in which that would be allowed to happen. The safeguards that the Bill already includes would prevent it. First, the Secretary of State would have to act consistently with the Human Rights Act 1998. Secondly, such provision cannot be made at the whim of the Executive. If any attempt were ever made to abuse such a provision and use it in a way that was detrimental to the rights of individuals, Parliament could block it. All Orders in Council under clauses 94 and 150 and orders under clause 149 that amend primary legislation will be subject to full parliamentary oversight. The power to make retrospective provision exists primarily to allow technical points to be tackled. Let me make it clear that the Government would not make an order that retrospectively altered a court’s decision. If a future Government were to try to do that, Parliament would block it.