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Lord Goodhart: My Lords, since there seem to be no further Back-Bench questions, I want to raise one point on procedure. It seems to me that cumulatively the secondary legislation that will implement the

13 July 2006 : Column 837

report will be enormously important, and it should be taken together. It is highly desirable that at some point when the secondary legislation is in draft we should have the opportunity to see and debate it, if possible in this Chamber, and certainly in the Moses Room. The body of new secondary legislation that will be brought forward will have a more serious impact than many proposals in primary legislation.

Lord Falconer of Thoroton: My Lords, it obviously will not all come at once. It will come gradually over a period of time; for example, a new graduated fee scheme for Crown Court advocacy, or a new graduated fee scheme for solicitors in the Crown Court. I will take away the point made by the noble Lord, because underlying his point he is asking me to think of a way whereby there could be a proper debate about the arrangements. That seems to be sensible; although I say that with some degree of trepidation because of the usual channels, but in principle what he is saying sounds sensible.

Government of Wales Bill

12.12 pm

Read a third time.

Clause 37 [Power to call]:

Lord Kingsland moved Amendment No. 1:

The noble Lord said: My Lords, I would like, in the context of the amendment, to thank the noble Lord, Lord Davies of Oldham, very much indeed for writing to me about what he considers to be the true interpretation of Clauses 37 and 84. The noble Lord will be relieved to know that I do not intend to take this matter any further. The noble Lord, Lord Davies of Oldham, is now on record. as a result of writing that letter, as stating, unequivocally, that the joint effect of Clauses 37 and 84 is that there will be no circumstances in which any Welsh Minister can assert that he is not bound to appear before a committee of the Assembly, or the Assembly itself when asked. That seems to me to be a satisfactory conclusion to the matter and I am sure that his letter will be reposing in the Library. I beg to move.

Lord Livsey of Talgarth: My Lords, I, too, thank the Minister for the letter that he wrote to the noble Lord about matters that were raised on Report. In particular, he will remember that I raised the points about Ministers of the Crown who had subsequently become First Ministers or Deputy Ministers of the National Assembly. It is quite clear from what he has written in his letter—and I thank him for its clarity—that this is not a complication, and I accept that assurance.

Lord Crickhowell: My Lords, I have not seen the letter. Could a copy be put in the Library?



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Lord Davies of Oldham: My Lords, I can confirm that the letter is already in the Library. Perhaps I would have been wiser to have copied it to all Members who participated in the debate in Committee but I addressed it to the noble Lord, Lord Kingsland. I am grateful for the noble Lord’s response. It justifies the wet towel technique after midnight after all, and I am very pleased by his response.

Lord Kingsland: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 [The First Minister]:

Lord Livsey of Talgarth moved Amendment No. 2:

The noble Lord said: My Lords, we return to the amendment that we tabled on Report. The Minister will remember that this matter has been drawn to our attention by the organisation Tomorrow’s Wales, which is chaired by the Archbishop of Wales.

It is a serious amendment because there appears to be no real ability within the Bill for the First Minister to be dismissed in circumstances where there might be a vote of no confidence in him or her in the Assembly. The amendment states:

This would ensure that the First Minister can be removed from office by a vote of no confidence. However, at present—and in contrast to the position under the Scotland Act 1998—the First Minister is not obliged to stand down immediately if he loses a vote of confidence but only when a new First Minister is appointed. A First Minister can therefore only be removed by also electing his successor at the same time. It is a rather strange situation which corresponds with the practice in Germany, where it is known as the “constructive vote of no confidence”. Consequently, it has the effect of significantly weakening the control of the Executive by the Assembly.

I know that in Committee the Minister said, in particular, that the First Minister will remain in office, as it states in the Bill, until a successor is elected. We do not think that that is a desirable state of affairs if there is a loss of confidence in the First Minister.

As to the appointment of a new First Minister, the argument is that there surely must be someone in government in between times from whom the civil servants who are the staff of the Welsh Assembly Government can derive their authority to act. It should not be too difficult to find a person within a ministerial competence of the Assembly Government to take over the role of First Minister temporarily in the interim period. We do not see why it should be that, in spite of there being a vote of no confidence, the First Minister should continue. Clearly a vote of no confidence means that the First Minister has lost

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the confidence of the Assembly and someone else, who might be equally able, should take the First Minister’s place in the interim to ensure that the Assembly is run properly, which should sustain the confidence of the Members of the Assembly. I beg to move.

Lord Davies of Oldham: My Lords, I do not think there is a great deal of difference between us, nor is there a major issue at stake. I recognise that the noble Lord, Lord Livsey, pressed this issue at Report stage and he has brought it back at Third Reading. At Report stage I had hoped to indicate—I obviously did not succeed—that the provisions of the Bill are absolutely clear:

When a First Minister loses a vote of confidence, that immediately triggers the process for his replacement. The question is, what happens in the interim? The noble Lord and I are in agreement that a vacancy could not just be declared. Like nature, government abhor a vacuum, and if there is no elected Member in charge, one has to have confidence that a civil servant should occupy that role but that runs counter to every constitutional principle that we follow as a nation in any of our elected bodies.

The noble Lord says that another Minister could take that position. But another Minister might be a competitor for the role. How on earth could we guarantee that there would be an easy judgment about who should fulfil this role and how would that be arrived at?

We are saying that the First Minister, having lost a vote of confidence, is a standby Minister until his or her successor is elected. The moment that election has taken place, he or she goes. It is similar to the removal van being at No. 10, when things move with considerable dispatch. Things might take slightly longer in this respect, but the principle is clear. The Prime Minister is in office until his successor takes up the new position and has kissed hands. For the Assembly, it is clear that the outgoing First Minister carries on for a very short time until the election of his successor. I hope that the noble Lord recognises that that is a reasonable provision. The Bill makes it quite clear that that is exactly what happens.

Lord Livsey of Talgarth: My Lords, I hope the Minister will not mind my saying this, but his comments brought to mind something that happened during the 1970s. I went to Downing Street; the crowd were shouting “Out” to the Prime Minister, while his successor was already in No. 10. I remember thinking that that was rather amusing. Of course, one cannot just wander up to the door of No. 10 these days.

I gleaned from what the Minister said that this was not a problem. Some people might not want to be First Minister—in fact, I suspect that there could be quite a number. I am sure it is not beyond the wit of the Presiding Officer to establish who is in that position and perhaps a successor could be found.

I understand what the Minister is saying about the process. That is one way of doing it. I can imagine the tabloid headlines saying “Crisis” for a few weeks, and

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there might be a crisis of confidence in the Assembly. However, without more ado, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 78 [Sustainable development]:

[Amendment No. 3 not moved.]

Clause 95 [Scrutiny of proposed Orders in Council]:

Lord Kingsland moved Amendment No. 4:

The noble Lord said: My Lords, the amendment refers to the issue raised in Part 3 about retrospectivity. As your Lordships will recall, both in Committee and at Report, we tabled an amendment seeking to remove from the Act the principle of retrospectivity. This arises because of Clause 95(4) which states:

—that is to say, an Order in Council made as a consequence of the Parliament in Westminster deciding to expand a field, as defined in Schedule 5 to the Bill, or a matter under that field.

At Committee and Report, we sought to have that provision removed altogether. Now that we are at Third Reading, we are in characteristically conciliatory mood and propose a less dramatic solution to the problem—to leave the existing text in, but add the expression,

As a consequence of our debate at Report, the Minister kindly sent me a letter on the topic. I have read it a number of times. On each occasion, I reached a different conclusion about what it meant. I hasten to add that that is an observation on my powers of concentration rather than on the intellectual coherence of the Minister who drafted it. However, I am certain about one thing: the letter does not answer the question that I posed at both Committee and Report. The Minister will recall that that was, quite simply: can an order change, retrospectively, the decision of a court and the consequences that flow from that decision?

The letter only goes as far as to say that a retrospective order, directed at a matter of interpretation raised during a trial, cannot be made while the trial is in progress. Plainly, that does not go far enough. In those circumstances, I intend to press my amendment. In doing so, I invite the Minister to agree that the matters and concerns that he raised at Committee and Report will not in any way be adversely affected by our particular choice of words. I beg to move.

Lord Crickhowell: My Lords, I rise, first, to support my noble friend’s amendment and, secondly, to say that the noble Baroness, Lady Finlay of Llandaff, spoke to me last night expressing her regret that she was not able to be with us today having put her name to the amendment and that she is still in entire agreement with its object.



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Lord Thomas of Gresford: My Lords, we support the amendment. A simple point has been made by the noble Lord, Lord Kingsland. 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.

I have read the last paragraph of the noble Lord’s letter, which says:

That answers one problem, but it certainly does not answer the problem raised by the noble Lord, Lord Kingsland. People may act in good faith on a measure that has been passed and then find that the Welsh Government take a contrary view and annul its effect. It has nothing to do with it being found ultra vires. So far as the noble Lord’s amendment protects a person in those circumstances, we support it.
12.30 pm

Lord Evans of Temple Guiting: My Lords, on Report the noble Lord, Lord Kingsland, said:

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,

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.



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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

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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.

Lord Thomas of Gresford: My Lords, I have two questions for the Minister. First, is he saying that this provision is to deal with a situation that might arise because a measure had been made that was ultra vires, and the provision is being used to put that right?

Lord Evans of Temple Guiting: My Lords, that is correct.

Lord Thomas of Gresford: My Lords, is it limited to that?

Lord Evans of Temple Guiting: Yes, my Lords.

Lord Thomas of Gresford: My Lords, do I also understand the Minister to say that there would be no question of the Welsh Assembly Government seeking to take away the fruits of victory in litigation from the litigant and, if they attempted to do so, this Government would block them by using the blocking mechanism of a measure that is set out in the legislation? Is that right?

Lord Evans of Temple Guiting: Yes, my Lords, I can confirm that that is the case.

Lord Kingsland: My Lords, first I must say how much I have enjoyed working with the Minister throughout this Bill. He has always set out, in the speeches that he has made, a spirited defence of the Government’s position. However, in this case, far from reassuring me, he has confirmed my worst suspicions. He has done so by explaining the process that would lead to an order.

Perhaps I should say at this point that the order is not one made by the Welsh Assembly but one made by the Westminster Parliament. I am talking not about the second range of orders but about the first range.

The Minister described the process of determining whether your Lordships' House and another place should make an order as one of balancing the public interest against the rights of the individual. From that, I conclude that, even after a court has decided that a certain individual has certain rights in law as a consequence of the trial process, those rights may be retrospectively taken away from that individual if Westminster considers it in the public interest to do so. That is my understanding of what the noble Lord said. I derive no reassurance whatever from the fact that there may be similar provisions in the Scottish legislation. Those provisions may well turn out to have the same defects as, I believe, I have identified in the definitions in this Bill.



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Indeed, the situation arises all the time in our own law. Where you have a piece of delegated legislation that is passed by your Lordships’ House and another place and on which people rely, and then subsequent litigation establishes that that legislation is ultra vires the primary legislation, there is no power in our constitution to retrospectively change the rights that flow from that court decision. Of course, Parliament can then change the law for the future, but not for the past.

I believe that our case here is unassailable and I should like to test the opinion of the House.

12.40 pm

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 110; Not-Contents, 106.


Division No. 1


CONTENTS

Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Biffen, L.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Chadlington, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dean of Harptree, L.
Dixon-Smith, L.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Ferrers, E.
Flather, B.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Glenarthur, L.
Hamilton of Epsom, L.
Hayhoe, L.
Henley, L.
Higgins, L.
Hooper, B.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Inglewood, L.
James of Holland Park, B.
Jenkin of Roding, L.
Kalms, L.
Kilclooney, L.
Kimball, L.
Kingsland, L.
Kirkham, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Lawson of Blaby, L.
Lucas, L.
Luke, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mar, C.
Marlesford, L.
Marsh, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Hendon, B.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Newton of Braintree, L.
Noakes, B.
Northesk, E.
O'Cathain, B.
Oppenheim-Barnes, B.
Patten, L.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plummer of St. Marylebone, L.
Rawlings, B.
Reay, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.


13 July 2006 : Column 845

Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Swinfen, L.
Tenby, V.
Trefgarne, L.
Trumpington, B.
Ullswater, V.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Waldegrave of North Hill, L.
Walpole, L.
Weatherill, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.

NOT CONTENTS

Acton, L.
Adonis, L.
Ahmed, L.
Amos, B. [Lord President.]
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Crawley, B.
David, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
D'Souza, B.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Ford, B.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Jones of Cheltenham, L.
King of West Bromwich, L.
Kinnock, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Patel of Blackburn, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Steel of Aikwood, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Hornsey, B.

Resolved in the affirmative, and amendment agreed to accordingly.

12.50 pm

Lord Livsey of Talgarth moved Amendment No. 5:



13 July 2006 : Column 846

The noble Lord said: My Lords, I shall speak to Amendments Nos. 6 and 7. The noble Baroness,Lady Finlay of Llandaff, is unable to be here; she is on Assembly business. She wishes to support the amendment and, like the noble Lord, Lord Crickhowell, sends her apologies for not being here.

The amendment would delete paragraph (b) of subsection (7), which refers to giving,

In Clause 95, entitled “Legislative competence: supplementary”, subsection (7) states:

Amendment No. 6 takes out another part of the clause, and reduces the length of time to,

It would add a new subsection to provide:

Amendment No. 7 reduces the period of 60 days to 30 days.

The amendments relate to the process for Orders in Council and were tabled in Committee and on Report. They provide that a draft Order in Council cannot be either submitted to Parliament or rejected by the Secretary of State. They can be sent only to the Queen for approval. They were designed to liberate the Assembly from the grip of Westminster by making the process automatic, whereby the Assembly’s will can prevail.

I acknowledge that this is a radical amendment to devolve more power to the Assembly, which is, after all, a democratic body, and to take that power from the Secretary of State. Everyone committed to true democracy should support the amendment, because the Assembly has been elected by the people of Wales and it is their will to put forward draft Orders in Council. There should be confidence in that elected body’s ability to do that and to be responsible. Therefore I have much pleasure in moving the amendment. I beg to move.

Lord Roberts of Conwy: My Lords, the main feature of these amendments is that they exclude both Houses of this Parliament from the procedure for securing approval for an Order in Council amending the important Schedule 5, which lists the fields where the Assembly has legislative competence. In other words, the amendment would ensure that approval by only the Assembly was required for the statutory instrument containing the order before it was approved by Her Majesty in Council.

Orders under Clause 95 may, as subsection (1) makes clear, add, vary or remove any matter relating to one or more of the fields listed in Part 1 of Schedule 5. Orders may also add, vary or remove any field from Part 1 or make changes in Parts 2 and 3, which cover restrictions on Ministers and exceptions to those restrictions. The scope for order-making is, therefore, very extensive and fundamental in the area of legislative competence.



13 July 2006 : Column 847

It cannot be right that the Assembly and its Government alone decide the extent of their legislative competence without the approval of this Parliament, which is the ultimate source of their power. The absence of parliamentary consent to the Assembly’s exercise of legislative power in an area that properly belongs to this Parliament would be totally unconstitutional. I am not a constitutional lawyer, but I am sure that I am right on this point. The practical consequences do not bear thinking about.

Lord Davies of Oldham: My Lords, I am grateful to the noble Lord, Lord Roberts, because he has largely made my case for me. The noble Lord, Lord Livsey, said that this amendment was radical. I know that “radical” is generally used in a positive way in politics in the 21st century, but the original meaning of the word is “tearing up by the root”, which is what this amendment does. It tears up the concept of devolution by the root, because it conveys to the Assembly something very close to sovereign power. The amendment allows the Assembly to accrue to itself, of its own decision, any additional powers that it wants.

When the noble Lord, Lord Livsey, sums up, can he provide an illustration of any sub-national assembly in the world, which is not sovereign, that has the right to increase its powers unilaterally, without any reference to the sovereign parliament from which it derives its original powers? If he could, I would be more than a little surprised. The amendment does not propose a concept of devolution, but an accession towards sovereignty. It would lead to a system of government entirely unrelated to the settlement that the Welsh people voted for in 1997; in fact, it would be outright independence rather than devolution.

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