Government of Wales Bill

My Lords, I beg to move that the House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A. I appreciate very much the acuity with which the noble Lord, Lord Kingsland, has scrutinised these and other provisions of the Bill. Our debates in this House and in another place have quite properly required the Government to explain and justify their proposals in detail. I note that Lords amendments recognise the principle that retrospective provision may be necessary in certain circumstances. I note also that the Shadow Attorney-General in another place said on 20 July at col. 220 that he fully accepted that this provision was intended to rectify technical omissions. We are talking about provisions that would be used only on rare occasions. Concerns were expressed in another place that if any individual’s rights should be affected, they should be guaranteed redress. These concerns are important and I recognise that noble Lords opposite have quite properly pressed further and further on a point on which they wanted reassurance; I hope that I can give that reassurance. These constrained powers to make retrospective provision will enable technical points to be dealt with which protect the position of a person who acted in good faith on Assembly legislation only to find that there was some doubt over whether that legislation was within the Assembly’s legislative competence. The power in Clause 94 would allow the Assembly’s legislative competence to be corrected retrospectively should that prove necessary to give proper effect to the intention of Parliament in granting that competence in the first place, and when not to do so would leave the law unclear or could be detrimental to third parties. Noble Lords rightly asked about cases where it might be to the detriment rather than the benefit of third parties to correct the law retrospectively. What if a court had already decided in their favour? I have confirmed in a letter now available in the Library, in response to points raised on Report by the noble Lord, Lord Kingsland, that the Government would not seek to use these powers to undermine court proceedings where the vires of an Assembly measure was at issue. I am happy to add that the Government would not make an order that retrospectively altered a court’s decision and that if any future Government should seek to do so, clearly Parliament could be expected to block it. The Government could not alter the fact that the court had taken a particular view on the vires of an Assembly measure but they might need to take action in consequence of a court’s decision. It is not possible to predict what that action would be, but one cannot rule out the need to include retrospective provision. In another place, the shadow Attorney-General asked for, "““a clarifying statement to make it absolutely clear that if it is established that private legal rights are effective retrospectively in any way, the person affected will be entitled to redress””.—[Official Report, Commons, 18/7/06; col. 221.]" That has to be right in principle. I find it hard, though, to imagine circumstances where that might become an issue given that the purpose of these provisions is, as I have said, to deal with technical points and to ensure that persons who acted in good faith on the basis of Assembly legislation are not disadvantaged if it is subsequently found to be ultra vires. However, I can offer reassurance in this sense: any Assembly measure would have to treat private legal rights fairly in the first place. If it did not, and therefore was not compatible with the European Convention on Human Rights, it would not be law and no amount of retrospective provision under the Bill could make it law. If, however, the measure treated those rights fairly and it was only a technicality which meant that some provision in it was ultra vires, then to remedy the technicality would simply restore what was intended to be the status quo. Any persons affected by provisions in the measure would continue, therefore, to be entitled to the compensation or other redress provided for in the measure itself. I would expect any Government to weigh these issues very carefully and to satisfy themselves that no person’s rights would be affected without proper redress if retrospective provision was made. If they did not, of course, Parliament could block the proposal, as I have said before. Ultimately it would be for the courts to establish whether an individual was legally entitled to redress or greater redress than already offered, and it is proper that the court should be the ultimate arbiter in those circumstances. In the light of the reasons I have given, I hope noble Lords opposite will accept the Government’s view that these amendments should not stand. I beg to move. Moved, That this House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A.—(Lord Evans of Temple Guiting.)