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Government of Wales Bill

The Committee will not be surprised that the noble Lord, Lord Kingsland, alighted on this issue and identified it in his Amendment No. 62. I want to respond in a considered way to his arguments and anxieties, because if one concept sets alarm bells ringing among all those who hold democracy dear, it is that of retrospective legislation jeopardising our citizens after they have acted but before they knew that they were acting against the law. I will reassure the noble Lord on that score as best I can. His amendment would remove the power for an Order in Council amending Schedule 5 to have retrospective effect. This was substantially discussed in the other place. The Government have already explained the circumstances in which they envisage the power being used, both in the Explanatory Notes, to which the noble Lord, Lord Kingsland, referred, and in the debate of this important issue in the other place. I emphasise the fact that we are not talking about a measure having retrospective effect and that might have an impact on the citizen, but about an Order in Council amending Schedule 5 having retrospective effect. It is an absolutely crucial distinction. Such an Order in Council does not confer any rights or impose any obligations on any person. Rather, it amends the parameters of the Assembly’s legislative competence to enact measures. The starting point is an Assembly measure that has been enacted and that relates to a matter in Part 1 of Schedule 5. Let us assume that there is some ambiguity in the wording of the matter, which is later picked up, and that, as a result, it is not clear that it was within the Assembly’s competence to pass the measure. By the time the issue has been picked up, the provisions of the measure may well have come into force. I am sure the Committee will recognise that it would be inequitable for persons who have carried out actions in good faith as a result of obligations placed on them by the measure to be in a position where the measure itself calls the legal basis for those actions into doubt. This could be put right in order to give proper and full effect to the Assembly’s and Parliament’s intention by an Order in Council that could retrospectively amend the description of the matter to which the measure relates and remove any doubt about the validity of the measure. There are safeguards that will prevent the misuse of this power, because noble Lords will have recognised the significance of it. Before laying the Order in Council before the House, the Secretary of State would first want to ensure that it was compatible with the convention rights in the Human Rights Act 1998. Furthermore, Parliament would have to approve the Order in Council. Of course, Parliament would not do so if the order produced inequitable effects. I reassure the Committee that the power will be used very rarely and not without careful consideration of the grounds for doing so. In most cases, I expect the pre-legislative scrutiny of proposed Orders in Council to draw out any deficiencies in the drafting of matters to be added to Schedule 5, so that there will rarely be any need to rely on this provision in Clause 94(4) to make retrospective provision. But it is necessary to have that power to be used against a background of careful parliamentary scrutiny necessarily compatible with human rights. Nevertheless it could be that in very rare circumstances such an order would be necessary. That is why we have made provision for it in the Bill. I hope that the noble Lord accepts the Government’s arguments.