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.
What the Under-Secretary said is not the same as the comments of Lord Evans of Temple Guiting in his letter to Lord Kingsland. The letter stated that he would not move goalposts by seeking to change retrospectively the law on which a case was based while it was before the court and without the leave of the court. That is not what the Under-Secretary said. He went much further a moment ago. He said that if a court decision were to go against the Assembly or the Government, there would be no question of changing it retrospectively. Those are two different things. It is important for hon. Members to understand which we mean.
Let me continue with my argument. Such a provision would never be used retrospectively to amend a court order, although it could be used, depending on the circumstances, to deal with the results flowing from a court's decision. I hope that that deals with the hon. Gentleman's point.
The Government do not envisage the power to make retrospective provision being exercised except in very rare cases. While I understand the thrust of the amendments, there are sound reasons why the Government cannot accept them. There could be public interest considerations in favour of making retrospective provision. It is not right that the Government should be prevented from taking the public interest into account in making legislation. Furthermore, the amendments are technically defective and would render the provisions that relate to retrospective provisions inoperable.
As a Minister, I always found that when civil servants said, "Minister, you have to do this because there is a public interest requirement," it was usually because they could not think of anything else. Will the Under-Secretary give us a practical example of when the public interest was so important that it necessitated what appears to many of us to be an unacceptable change?
Yes, I can give an example. Let us imagine that both Houses of Parliament agreed a measure that related to a position following a public inquiry into the construction of a bypass. If, after compulsory purchase orders and payments had been made, a defect was found in the legislative competence, it would be in the public interest retrospectively to set the record straight in legal terms to allow the payments that had already been made to be retained, and no claims to be made against the individuals who had received the money from the compulsory purchase. That would enable the bypass to go ahead in the public interest, and not to the detriment of the individual who had received funds from the Government in exchange for the land. That is an example of the public good benefiting from retrospective legislation such as that for which clauses 94 and 150 provide.
It is impossible to identify with certainty all persons who could be in any way detrimentally affected as a consequence of such an order before it was made. It would therefore never be clear whether an order could lawfully be made, even if there were an overwhelming public interest in making it. I therefore invite hon. Members to reject the amendments.
I am grateful that the Under-Secretary acknowledged that the clause, which was amended in the other place, raises serious problems. It is not common practice for the House to pass measures that can apply retrospectively. Retrospective powers enable the Government to interfere with private rights in a way that is contrary to the principles of the rule of law in this country. For the Under-Secretary to claim that the provision is simply a balancing exercise under the Human Rights Act 1998 is an inadequate response.
The Human Rights Act might be a basic safety net to deal with certain Governments who do not have democratic practices or who have had them only for a short period and do not enjoy the principles of the rule of law, but it does not replace the rule of law. Private legal rights operate because the rule of law says that they do, and because the judges say that they do. Sometimes, we have had to face the fact that the people who benefit from those rights appear to be remarkably undeserving of them. We have, for example, had debates about lords of the manor who have enforced a form of blackmail in respect of rights of way over common land until a court judgment removed them. However, no one in their right mind ever suggested that that entitled Members of Parliament to remove those people's rights retrospectively, thereby depriving them of a financial advantage.
The Government are contemplating a measure that is being introduced with a desire to rectify technical omissions—I fully accept that that is their intention—but that could have the unintended consequence of depriving someone of a private legal advantage, because it will be applied retrospectively. There is no suggestion in the proposals that any compensation would be made to a person who was thus adversely affected.
This matter was raised in the other place, and Lord Kingsland, who was speaking for the official Opposition, suggested that these clauses should be removed altogether. However, he was mindful of what the Government were trying to achieve. The amendments that were eventually passed therefore sought not to remove the retrospective power but to limit it by saying that such an order could be made, provided that it was
"not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made".
As an issue of principle, the Minister cannot possibly contend that that is an unfair provision. He might, however, say that the proposal would have the consequence of making it impossible to pass such a retrospective order. I can see his point. If that is his problem, however, he is going to have to find a way of solving it, either by specifying that anyone adversely affected would be entitled to full compensation or by some other method. It is not good enough simply to say that there will be a balancing exercise and that the measure would be used only in cases where the public benefit appeared overwhelmingly to outweigh the private advantage.
Private law and people's rights under the law are not about the balancing of public rights with private advantage. Private advantage has complete supremacy. The principle under which we operate in this country in maintaining the rule of law is that if we interfere with someone's private rights, as specified in the Human Rights Act and the European convention on human rights, we must pay them compensation for doing so.
I am really troubled to read the Government's approach to this matter. In the letter that Lord Evans of Temple Guiting wrote to my noble Friend Lord Kingsland, he said, with reference to the point at which the provision would kick in:
"The Secretary of State would have to consider any action carefully for its compatibility with human rights. He would not move the goalposts by seeking to change retrospectively the law on which a case was based while that case was before the court and without the leave of the court."
That is why I picked up the Minister's comment that the Government would not seek retrospectively to alter a court judgment. When I challenged the Minister on that, he started to back off a little. He left me with the distinct impression that the Government might choose to act retrospectively, before a case came to court, to prevent a person from exercising his legal rights and to challenge an order that had been made. He also left me with the distinct impression that there might be circumstances in which, notwithstanding a court judgment, the Government would still seek to apply the provision retrospectively.
Did not my hon. Friend hear the explanation that the Minister gave as an example of when it would be suitable to use this power? When he gave that example, he showed that the Government would be judge and jury in their own case. It would be for the Government to decide whether the use of the power would interfere with a person's private rights, and they would make that decision on the basis of their own convenience. The Minister tried to dignify the measure by talking about public value, but what he meant was the convenience of the Executive.
My right hon. Friend is exactly right. This is what troubles me so much about the measure. Lord Evans of Temple Guiting's officials had clearly advised him very carefully when he wrote that letter. He expressed himself in terms so precise that, when Lord Kingsland looked at it, he said that he was wholly dissatisfied with the answer. The Minister has gone slightly further, but my right hon. Friend is correct. What the Minister is actually saying is that the Government will decide, when balancing the considerations involved, whether a private right would be interfered with. That must raise the possibility that, as long as the Government did not think that the private right interfered with was too serious a matter—so it might slip outside the ambit of the European convention on human rights—they would still feel justified in going ahead and applying the provision retrospectively. I am very happy with the ECHR, but it is simply a safety net in this context. Our practice in this country is not to allow such things to happen. Indeed, it would be quite contrary to every legal principle to let this occur.
I am fairly unsympathetic to the principle behind all this. I have to be honest about that. I believe that government by statutory instrument is riddled with problems such as these, and an Order in Council is no different from a statutory instrument; it just involves different wording. The reality is that Wales is going to be governed by Order in Council—a practice that I regard as absolutely abominable and an offence to every principle that we have in the House.
If the Government go ahead with this measure, I foresee that they might need to address certain problems. May I suggest to the Secretary of State and the Minister, both of whom are in the Chamber, that if they want to get this provision on the statute book but do not like the form of words that the Lords have come up with, they should make a clarifying statement to make it absolutely clear that if it is established that private legal rights are affected retrospectively in any way, the person affected will be entitled to redress. Without that assurance, I will remain profoundly unhappy about this proposal.
This is a classic example of administrative convenience triumphing over private rights, all dressed up, in good new Labour style, in the assertion that it is for the public benefit. I do not accept that. What is more, the Government know that they are on pretty shaky ground here. I urge the Minister to go away and think again.
In the other place, the Liberal Democrats appeared to support us on this issue, and I hope that that will remain the case. It was unclear, however, when the vote was called, whether they were really going to provide proper support in that important Division. Some of them said they would support us but did not. I have no idea why that happened. I hope that it is not part of the Lib-Lab pact on this issue, by which the Liberal Democrats have demeaned themselves in the course of the discussions on this important constitutional measure.
We will certainly resist the motion to disagree with the Lords amendment, although I have no doubt that the Government will carry the day. If the Secretary of State and the Minister do not like the form of words that the Lords have used, they should go back and provide proper reassurance when the Bill returns to the other place that the provision will not be left in the form to which they now wish to return it.
I am interested to hear talk of a Lib-Lab pact. I presume that Mr. Grieve is referring to two parties working together in the common interest, just as the Conservatives and the Labour party did when they voted together to take us to war in Iraq. What is going on here, however, is a genuine commitment to furthering democracy and devolution in Wales. I almost said Northern Ireland then, because I saw the Secretary of State leaving the Chamber, no doubt to deal with other important matters.
Our concern is, to an extent, the same as that described by the hon. Member for Beaconsfield, namely, that retrospective legislation is open to attack on the basis that it can be abused. Something achieved by an individual or an organisation acting in good faith, on the assumption that the law is there to protect them, can be modified by the institutions of Government to favour themselves. That point was made by Lord Thomas of Gresford in the upper House. He said:
"A person may engage in litigation and say, 'I've won.' Then the Assembly may pass a measure that says, 'No, you haven't, you've lost", because they have retrospectively changed the provision on which his claim rested."
That has been my concern, too, and it may be why the hon. Member for Beaconsfield could see an uneasiness among Liberal Democrat peers during that debate.
No doubt the hon. Gentleman will also have read the further debate in the upper House on this matter and the dialogue between Lord Thomas of Gresford and Lord Evans of Temple Guiting, in which Lord Thomas challenged the Government to clarify two things. I hope that the Minister, by way of intervention or in his concluding comments, will respond explicitly to these points. Lord Thomas's concern was that it had to be underlined that the power would be used only to correct situations in which a measure had been made that was ultra vires through no fault of people acting in good faith and, presumably, within the law. I note that Lord Evans responded that that was correct.
I would like the Minister explicitly and for the record—we know that the record can be used in a court of law—to underline that that is his understanding of the Government's intention, and that it would be utterly unacceptable for the legislation to be used for any self-seeking purposes by an Administration—not Labour, Conservative or Liberal Democrat, but any Administration in the Welsh Assembly.
The second specific concern expressed by Lord Thomas of Gresford related to the question whether the Assembly could use the legislation to remove from a litigant a victory achieved in litigation. Once again, Lord Evans of Temple Guiting underlined the point that it would not be acceptable under any circumstances for the Welsh Assembly Government to reverse successful actions by litigants by using the Bill as a blocking mechanism to change legislation retrospectively. I seek the Minister's assurance—once again, for the sake of the record—that that is explicitly the Bill's intention.
I recognise that however hard we try to close these loopholes, there is a danger of abuse of any legislation. Despite the assurances given to Lord Thomas of Gresford on those two points in the upper House, and in anticipation of the Minister underlining them today, I acknowledge that we are still vulnerable to the abuse of power by individuals in government or whole Governments, should they be so minded. We are talking about a limited insurance policy here, but it is probably the most that we can ever expect when we are discussing legislation.
The hon. Member for Beaconsfield usefully requested that the Minister put on the record some form of words to encapsulate the assurances that we seek. I suggest that one of the best forms of words is offered by Lord Kingsland, who tabled an amendment debated in great detail in another place. It would have inserted the words:
"provided that such an Order is not to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made".—[ Hansard, House of Lords, 13 July 2006; Vol. 684, c. 840.]
It strikes me that a small modification to that amendment, expressed by the Minister, could be helpful without in any way being detrimental to what the Government are seeking to do.
It would be helpful if the Minister confirmed that the Government want to modify the legislation as they have set out, but also explicitly to require such an order not to be to the detriment of those who have benefited from, or acted in reliance upon, the state of the law before the retrospective order was made. That would be a very helpful clarification. I can see no contradiction between the Bill as it has been put forward by the Government and the intentions as they have been reasonably expressed by the hon. Member for Beaconsfield.
May I point out—the hon. Gentleman may already be aware of this—that that is exactly what the amendments passed in the House of Lords say? They do not seek to knock out the power to make the retrospective legislation; they seek to insert that very form of words. The Minister says that that presents difficulties. Lembit Öpik may agree with me that in those circumstances the solution is for the Minister to find a form of words that meets the spirit of what has been said, but does not have those difficulties attached to it.
Although I see the force of the hon. Gentleman's argument about the amendment, I have, on reflection, accepted the Government's point that this retrospective latitude is probably, in limited circumstances, desirable and that it could be compromised were the Lord Kingsland amendment included in the Bill. However, I believe that its wording, as a statement of clarification, would be both helpful and consistent with the intent of the amendment. It would not in any way detract from the applicability of the retrospective facility in those areas where it could legitimately be used.
I ask the Minister those three questions—including the two from Lord Thomas's inquiry in another place, which I have recited—and ask whether he is willing to reiterate the words in Lord Kingsland's amendment by way of clarification and reassurance on this reasonable and very specific point, to protect the interests of those who might otherwise be concerned that they would be harmed unfairly by the application of this retrospective facility.
The whole House should be grateful to Lembit Öpik for explaining to the world the Liberal Democrat approach to a complicated matter. It is to discuss it in as many ways as possible and to give no hint whatsoever as to how one should proceed thereafter.
There is a real problem in debating whether to disagree with the Lords amendment in that we are debating a virtual Bill. Many of us, although perhaps not all Members on the opposition side of the House, believe that an extension of the powers of the Welsh Assembly is a good thing, but we would wish it to be presented to the people of Wales so that they could make up their minds. All this is a mechanism for trying to avoid asking the people of Wales whether they want what is in the Bill, in case they say that they do not want it. We get to this point and that becomes even clearer, because the Government have now discovered that directing the affairs of a nation by Orders in Council has a number of disadvantages, and there may be occasions when overlapping jurisdictions and particular facts mean that a bit of tidying up is necessary.
I am always worried when Governments present their proposals as modest. I am always worried when they seek to suggest that there really is not very much in the measure—it is a matter of convenience that may be for the national good and those of us who are concerned about the principle of retrospection really should not worry about it.
There seem to me to be three reasons why we should worry very much. First, there is the Government's historic attitude towards retrospection. In two successive Finance Bills, they have introduced retrospection while pretending that it was not retrospection. That leads me to be suspicious when the word "retrospection" comes from this Government's mouth. Secondly, when the Government explained what they meant by the occasions on which they might use the provision, they produced an argument that seemed to nullify their own case. Let me turn to what the Minister said about the road that might have been built and the compensation that might have been paid. It seems to me that the Minister would decide not according to what was in the public interest, but according to what was convenient for the Government. It would be very inconvenient for the Government to have to go through the whole process again, but it might be very good for them because it might stop them getting into that kind of mess again. That is what legislation is about—setting the rules. If one breaks the rules, one should not have a nice little back-door mechanism of letting off the Government. The Government should have to fight their end, like anyone else, and in the course of doing so find that there were matters that were detrimental to private interest, and issues that ought to be taken up. All that would be hidden by this nice little trick, which is used by Government to make their life easier.
Thirdly, if the words of my noble Friend Lord Kingsland are not accepted, that means that the Government will not stand by the content of that amendment. The Government are therefore saying that they might use retrospection when it overpassed the private rights of an individual, as defined in the Kingsland amendment. The Government must deal with that problem. On the one hand, the Government say that they would use such powers only on occasions when that would not affect individuals who would otherwise have been in a different position had the law as they thought it was continued. On the other, they are not prepared to include that provision in the Bill, as that is what refusing to accept the amendment means.
With cunning ingenuity, the Liberal Democrat spokesman has discovered a way through. If the Government say that they believe that the amendment is right, he says that he will be happy. Well, if the Government can say that the amendment is right while at the same time advising the House to vote against it, that seems a peculiar position. I would not advise the Minister to take that line. Only a Liberal Democrat could get himself into that position. Only the party that on one doorstep tells people that it believes in one thing, and on the next doorstep that—
I stand corrected.
I return to the nature of the amendment and repeat that on this occasion the Liberal Democrat advice is that the Government should ask the House to vote against something that the Government say they believe in. That is a remarkable achievement and ought to be emphasised.
I recognise the intellectual genius of the right hon. Gentleman. He and I usually agree in the Chamber. Did he not hear my point about the difference of opinion between us? I suggested that I was persuaded that the amendment, were it adopted, would make the legislation difficult to apply. Therefore, while I am enjoying his contribution—and were we on "Just a Minute" I would give him a point—does he accept that it is a judgment about what works as legislation that causes me to make this suggestion to the Minister? I have no difference of view with the right hon. Gentleman in the intent of his speech and the concerns of the hon. Member for Beaconsfield.
I am still bemused because the hon. Gentleman is now saying that were the amendment carried, the clause would be difficult to use. He therefore wants the Minister to say on the record that he accepts the amendment, so that, in his language, it could be used in court, but he does not want the Minister to include it in the Bill. If including it in the Bill would make the legislation difficult to use, how would such a statement by the Minister make it any easier to use—or have I missed his point?
I would therefore advise the hon. Gentleman to suggest something different. I suggest that he says to the Minister that he will vote against the Government upholding the amendment unless the Minister comes forward with a promise that he will find another form of words that enables the sense of my noble Friend Lord Kingsland's proposition to be maintained, but without the disadvantages that he asserts are there, about which the hon. Gentleman happens to agree. That would be a convenient way forward.
I have one further comment to make. I do not believe that we should have any possibility of retrospective legislation. Certainly, retrospective legislation by Order in Council and Government fiat is never acceptable, even if it might be convenient. I wish the Government to consider the history of this House and our constitutional arrangements, and I point out that the strength of our defence against retrospective legislation distinguishes us from other countries. For that precise reason, we can say that the rule of law is more firmly rooted here than anywhere else.
The Minister may think that this is a small matter, but it is in fact a most important principle. It would help him and us if he were to promise to produce a better form of Lord Kingsland's proposal so that this issue does not hold up the Bill. I am sorry that the Government produced the Bill and that they did not offer the choices publicly to the people of Wales. Instead, he and others have had furtive back-of-the-room discussions. He promised to do it in that way, however, and I would prefer to have the Bill in those circumstances than not to have it at all. In my view, however, he cannot have the Bill if he wants retrospectivity without protections, as he does at this moment.
I note that Mr. Gummer is fundamentally opposed to any retrospection in legislation. He also said, however, that the use of Orders in Council was a back-door method, a trick and so on. Let us consider how the process would work in principle.
Were a measure identified as defective, or being used in a way that was ultra vires, the Assembly would have to propose an order that would come to this place for pre-legislative scrutiny. Once the measure had been scrutinised—I am sure that at that stage any individuals who might be affected by it would make their views known—it would have to return to the Assembly with any suggested amendments. The Assembly would have to abide by the European convention on human rights; it could then send the House of Commons a draft measure which would be debated in both Houses.
Given all those checks and balances, I can assure the right hon. Gentleman that the proposal is intended only to correct any technical defects and deal with any issues that are ultra vires. I can also assure him, as did my noble Friend Lord Evans, that the Orders in Council and the ultimate Assembly measure could not overturn a court decision. I hope he appreciates that.
What concerns everyone—I understand the concern—is the possibility that, in principle, an individual's rights could be affected. Let us consider what has happened in Scotland. Since 1998 this provision has been used once to deal with an ultra vires issue, a technical defect in legislation passed in the Scottish Parliament. That is why we want the clauses to remain as they are.
I hope I have been able to reassure Lembit Öpik that the proposal is intended to deal with technical defects and issues that may turn out to be ultra vires, that there is no intention of using the procedure to overturn any court decision, and that the rights of the individual will be protected.
I am grateful for the Minister's reassurance. To save a bit of time, I ask him to confirm that as far as the Government are concerned, the measure must never be used
"to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made".
I cannot use those terms, because it is not possible to use them. I can only tell the hon. Gentleman that the rights of the individual, about which everyone is concerned, will be protected by the very process of the Orders in Council. People are rightly concerned, but as I have said, the provision has been used only once in Scotland since 1998, and it is intended to deal with technical defects.
I think that we have got hung up on the example given by Lord Kingsland. I do not know whether it is such a good example. I have responded to what he said about a bypass and compulsory purchase. There is no way in which an individual's rights would be overturned, and a demand be made that he pay back the money. The Government and the Assembly will certainly take the individual's rights into account, although there may well be rare occasions on which action must be taken for the sake of the wider public good.
Let us talk about the reality. The provision will be used extremely rarely, and as I have said, individuals who may be affected will be able to make representations.
I suffered the most appalling attack from Mr. Gummer, an accidental defence of the Government. I sought no greater reward than a simple clarification using the words of Lord Kingsland. I hope that the Minister will not make me regret my experience of the slings and arrows from the Conservative Benches. I ask him what is so difficult about agreeing to what appears to be a common-sense form of words—the amendment proposed by Lord Kingsland—to reassure us all that the legislation will never be used
"to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made".
That is not a difficult question.
I think I have given the hon. Gentleman the answer: it will not be used in those circumstances. That is not its purpose. The hon. Gentleman is well aware of the extensive process of consultation with the Assembly.