HL Deb 10 November 1998 vol 594 cc721-30

(".—(1) This section applies where—

  1. (a) any provision of an Act of the Assembly, or of a Bill for such an Act, could be read either—
    1. (i) in such a way as to be within the legislative competence of the Assembly; or
    2. (ii) in such a way as to be outside that competence; or
  2. (b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a Northern Ireland authority could be read either—
    1. (i) in such a way as not to be invalid by reason of section 22 or, as the case may be, section 72; or
    2. (ii) in such a way as to be invalid by reason of that section.

(2) The provision shall be read in the way which makes it within that competence or, as the case may be, does not make it invalid by reason of that section, and shall have effect accordingly.

(3) In this section "Northern Ireland authority" means a Minister, a Northern Ireland department or a public authority (within the meaning of section 72) carrying out functions in relation to Northern Ireland.").

The noble Lord said: My Lords, this is a technical clause about the way in which the court should interpret Acts of the Assembly, subordinate legislation and indeed measures of a wide range of public authorities, including Ministers of the Crown. The point of the amendment is quite simple. If there are alternative readings of the provisions of the legislation concerned, the reading which would lead to a conclusion of validity is to be preferred. It is as simple as that. I beg to move.

Lord Cope of Berkeley

My Lords, I accept the reasons for this amendment. It seems to correspond broadly with Clause 101 of the Scotland Bill. But there is quite a difference in subsection (2). The clause before us proposed for the Northern Ireland Bill says, The provision shall be read in the way which makes it within that competence or, as the case may be, does not make it invalid by reason of that section, and shall have effect accordingly". But the Scottish provision states that, Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly". I find it difficult to be sure what the legal effects of those different wordings are. It does not seem to me to be wise. A little explanation is required as to why a different formulation has been proposed in the two Bills on an otherwise identical point.

Lord Williams of Mostyn

My Lords, I am not sure why the Scottish version was rather less elegant that the one that my noble friend Lord Dubs and I propose here. For the purposes of Northern Ireland it seems that this is the right way to put it. I shall reflect about the arcane nature of the Scotland Bill. Perhaps it was exhaustion that led people not to notice the attractive alternative drafting. I shall write to the noble Lord and put a copy of my reply in the Library.

On Question, amendment agreed to.

Clause 78 [Provision with respect to certain matters relating to Northern Ireland]:

Lord Dubs moved Amendment No. 110:

Page 39, line 9, leave out ("the Parliament of the United Kingdom") and insert ("Parliament").

The noble Lord said: My Lords, this is a pure drafting amendment to omit redundant words so that the clause simply refers to an Act of Parliament. That expression is unambiguous in the context. I beg to move.

On Question, amendment agreed to.

Clause 80 [Provision for purposes consequential on Act etc.]:

Lord Dubs moved Amendment No. 111:

Page 40, line 38, at end insert ("or 6").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 112 to 116. They expand and clarify Clause 80. The purpose of this clause is to enable the law to be amended in order to give effect to the Bill and orders made under Clauses 4 and 6. The chief end to which this power will be put is the transfer of functions between the United Kingdom and Northern Ireland public bodies.

Amendment No. 112 revises subsections (2) and (3) so that functions can be transferred from United Kingdom authorities to Northern Ireland authorities and vice versa. Functions may need to be transferred in this way for three main reasons. The first is to ensure that functions falling within the excepted or reserved field under the terms of Schedules 2 and 3 to this Bill can be dealt with by United Kingdom and not Northern Ireland authorities. Secondly, it is to ensure that functions can be transferred between United Kingdom and Northern Ireland authorities following the reservation or transfer of a matter under a Clause 4 order. The third reason is to ensure that functions can be transferred between the United Kingdom and Northern Ireland authorities following the making of an order under Clause 6 specifying certain functions as being exercisable in or as regards Northern Ireland. Your Lordships may recall that that has a particular application to fisheries.

Amendment No. 114 provides for a particular contingency. It enables further Orders in Council to be made to make functions which have been transferred to Northern Ireland authorities exercisable again by UK authorities alone or concurrently with the Northern Ireland authorities. We have in mind again the special case of the fishing industry where licences are issued in respect of boats which are of course mobile and which have, until now, been licensed to fish in UK waters. In future, there will be Northern Ireland waters and Scottish waters and licences will be issued by devolved authorities with more limited remits. For practical reasons it will be necessary to retain the possibility of a concurrent UK authority and this amendment will allow that.

Amendments Nos. 111, 113 and 114 are minor amendments. Amendment No. 115 redefines the meaning of a Northern Ireland authority and a United Kingdom authority in line with the wording in Clause 26. I beg to move.

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 112 to 116:

Page 40, line 39, leave out subsections (2) and (3) and insert—

("(2) Orders under subsection (1) may make provision for transferring to a United Kingdom authority, with effect from any date specified in the Order—

  1. (a) any functions which immediately before that date are exercisable by a Northern Ireland authority and appear to Her Majesty to be concerned with a matter which is an excepted or reserved matter (whether by virtue of an Order under section 4 or otherwise);
  2. (b) any functions which immediately before that date are exercisable by a Northern Ireland authority and appear to her Majesty not to be exercisable in or as regards Northern Ireland by virtue of an Order under section 6.

(3) Orders under subsection (1) may make provision for transferring to a Northern Ireland authority, with effect from any date specified in the Order—

  1. (a) any functions which immediately before that date are exercisable by a United Kingdom authority and appear to her Majesty to be concerned with a matter which is a transferred matter (whether by virtue of an Order under section 4 or otherwise);
  2. (b) any functions which immediately before that date are exercisable by a United Kingdom authority and appear to her Majesty to be exercisable in or as regards Northern Ireland by virtue of an Order under section 6.").

Page 41, line 9, leave out ("Provision may be made,") and insert ("An Order under subsection (1) may make provision,").

Page 41, line 11, at end insert ("or 6").

Page 41, line 15, at end insert—

("( ) Where such provision as is mentioned in subsection (3)(b) has been made by Order in Council under subsection (1), Her Majesty may, if it appears to Her necessary or expedient to do so, by Order in Council—

  1. (a) provide that the functions transferred to the Northern Ireland authority shall be exercisable by a United Kingdom authority, either alone or concurrently with the Northern Ireland authority; and
  2. (b) make such provision as is mentioned in subsection (4)(a) to (c).").

Page 41, leave out lines 20 to 30 and insert (""Northern Ireland authority" means—

  1. (a) a Minister or a Northern Ireland department;
  2. (b) the Comptroller and Auditor General for Northern Ireland; or
  3. (c) any other public body or holder of public office in Northern Ireland.

(7) In this section "United Kingdom authority" means—

  1. (a) the Privy Council;
  2. (b) any Minister of the Crown;
  3. (c) the Defence Council;
  4. (d) the Commissioners of Inland Revenue;
  5. (e) the Commissioners of Customs and Excise;
  6. (f) the Comptroller and Auditor General; or
  7. (g) any other public body or holder of public office in the United Kingdom.").

On Question, amendments agreed to.

Clause 83 [Industrial Injuries Advisory Council]:

Lord Dubs moved Amendment No. 117:

Page 45, line 26, leave out ("date") and insert ("passing").

The noble Lord said: My Lords, this is purely a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 85 [The Tribunal]:

Lord Williams of Mostyn moved Amendment No. 118:

Page 47, line 2, after ("appeal") insert ("; and (b) where the Secretary of State is not party to any such proceedings, the Secretary of State,").

The noble Lord said: My Lords, in this group we find Amendments Nos. 118, 120, 234 and 236. Amendment No. 118 is to ensure that the Secretary of State's interests in the tribunal's proceedings are fully represented. The Secretary of State will be a party to the proceedings where the original act complained of was undertaken by her. There may be occasions when the Secretary of State is not the respondent and therefore this amendment ensures that the Secretary of State can be legally represented where she is not a party. Amendment No. 120 also ensures that where she is not a party, the Secretary of State will have a right of appeal to the Court of Appeal on a point of law arising from the tribunal's determination. She has a legitimate interest as a certifier of the original act and also her responsibility and accountability for national security. I believe that these matters were the subject of general approval in principle when we discussed them more generally at Committee stage.

Amendments Nos. 234 and 236 are simply technical amendments relating to the transitional provisions. I beg to move.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 119:

Page 47, leave out line 33.

The noble and learned Lord said: My Lords, the tribunal, about which my noble friend Lord Williams has just been speaking, appeared at a late stage in our Committee proceedings. I am sure that my noble friend will agree that, welcome as his proposal was, it would not have been practicable for us to submit it to scrutiny at that point. Accordingly, I scrutinised it after the Committee stage. I am grateful for the advice of Professor Christopher McCrudden.

The tribunal is to deal with a situation where someone complains of discrimination under Clause 22 or Clause 72 and the Secretary of State certifies that it was justified by the requirements of national security or the need to protect public safety or public order.

Clearly, there may be good reasons why the justification cannot be examined publicly. The special procedures of the tribunal are intended to address that problem. That may well mean the absence of some of the rules which protect the citizen in normal proceedings. The Lord Chancellor is empowered to make rules provided, for example, that the matter should proceed in the absence of the complainant and that he shall not know the particulars of the case against him. I accept all that, Heaven forgive me. I even understand that the legal representative whom the complainant has chosen may have to be excluded if he does not have the necessary security clearance.

The second-best provision appears to lie in the power of the Attorney-General to appoint someone from the Northern Ireland Bar to act as his representative. What puzzles me is the provision that that representative "shall not be responsible" to the party whose interest he represents. I should be grateful if my noble friend could explain what is entailed by that. Does that mean that he is not to be bound by the instructions of the complainant? I understand that if his instructions were, for example, to demand that classified information be made public, he would not be bound by that. But may he decline to discuss the case with the complainant? May he make a concession of fact contrary to the instructions of the complainant? What is to be the relationship between the lawyer and the client? I hope that my noble friend will satisfy me, but, if not, I hope that at least he will enlighten me. I beg to move.

8.30 p.m.

Lord Cope of Berkeley

My Lords, when I first read the amendment I, too, was concerned about its meaning. I think that a person who is trying to represent the interests of a party, which he is required to do under subsection (7), is in a difficult position if he is not responsible to the party concerned even though he is representing his interests. However, at the same time I believe it is necessary to make careful arrangements in Northern Ireland for the protection of security and information.

We all know of the terrible things that have happened to individuals in Northern Ireland as a result of the situation and the terrorist organisations which operate there. Protection such as is provided by this clause is essential including, I believe, the provision for the Attorney-General to appoint a different person. The noble and learned Lord asked some interesting questions about the precise meaning of the clause.

Lord Williams of Mostyn

My Lords, those are perfectly legitimate and essential questions. Perhaps I may step back one pace. As some of your Lordships know, the background to this arises from the case of Chahal in the European Court of Human Rights. Chahal was excluded from this country on the ground of national security. At that stage he had no opportunity of being represented in an independent tribunal. I hope I paraphrase the case fairly. Chahal found us to be derelict in that respect.

The first Bill I introduced in your Lordships' House was to set up a special immigration appeal tribunal. At that time we had a good deal of careful discussion about how properly to represent two interests which may conflict. The first was the interest of the appellant in having his case put as effectively as possible by professional representation. The second issue identified—here I absolutely agree with the noble Lord, Lord Cope of Berkeley—was the legitimate public state interest in protecting confidential information which may be restricted; alluding also to some aspects of restricted material—it is a notorious commonplace—which may put people in serious danger, even in danger of death. Therefore, we wanted to strike a balance. We would have been unhappy for someone who was an appellant not to be represented. Equally, we could not contemplate the normal relationship of lawyer-client because that would be impossible. I think that we have gone as far as we possibly can to meet legitimate complaints.

The scheme in Clause 85(8) is that,

"A person appointed under subsection (7)—

  1. (a) shall be a member of the Bar of Northern Ireland;
  2. (b) shall not be responsible to the party whose interests he represents".
That follows the theme of subsection (7), which states: The Attorney General for Northern Ireland may appoint a person to represent the interests of a party to proceedings before the Tribunal in any proceedings from which he and any legal representative of his are excluded". One starts off with a situation which is quite unusual. Apart from persons under a disability, the normal human right is, of course, to a legal representative of one's reasonable choice. That cannot obtain here. What one has here is not a legal representative of reasonable choice but someone appointed by the Attorney General to protect the interests of a particular appellant in the context of restricted material. Therefore, the relationship starts completely differently from the relationship with which my noble and learned friend Lord Archer and I were familiar when we were both practising members of the Bar.

If restricted material is discussed, the designated legal representative will be in receipt of it. He will not be able to take instructions from his client about it. He will not be able to inform the appellant of the content of that material. He will not be able to take instructions about what to dispute. I accept that those are significant restrictions on the relationship which one normally has between client and lawyer. The alternative was to have no representation at all. We did not want to go down that route and we set our face against it. Therefore, in the nature of things, we had to look for a compromise. I think that this is a legitimate and fair compromise.

I take the point of the former Solicitor-General. Perhaps I may refer to him in that way because I know of his keen interest in Bar ethics when he was a leading member of the Bar. However, he does not become not responsible. The underlying theme is that the advocate still remains responsible to his profession and code of professional ethics. He has to be a member of the Bar of Northern Ireland. If counsel came to the conclusion that he could not properly discharge his functions within the parameters set, he would have the opportunity of ceasing to act.

I have spent a little time on this matter, despite the fact that it is late, because we regard it as of fundamental importance. We were deeply unhappy with the prospect that someone should not have competent legal representation. We had to bear in mind the issue concerning restricted material, truly a matter which might compromise national security. I think that we have achieved a commendable compromise.

Lord Archer of Sandwell

My Lords, I am most grateful to my noble friend Lord Williams for the care with which he replied to my questions. I have never disputed the assertion of the noble Lord, Lord Cope, or of my noble friend that in this situation one must have regard to the needs of national security. I hope that I made that clear when I introduced the subject.

What puzzles me is the meaning of the words "not responsible to the complainant". Does that mean, for example, that the complainant cannot complain about anything which his representative does? If that is so, I wonder how far we comply with the ruling in Chahal? Is the complainant really represented at all or is the word "represented" used only in its Pickwickian sense?

One could pursue this matter at some length. Your Lordships will be relieved to hear that I have no intention of doing so tonight. However, I am not sure that the last word has been said on the subject. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 [Appeals from the Tribunal]:

Lord Williams of Mostyn moved Amendment No. 120:

Page 47, line 38, after first ("appeal") insert ("; or (b) where the Secretary of State was not a party to the appeal, the Secretary of State,").

On Question, amendment agreed to.

Clause 87 [Assembly property]:

Lord Dubs moved Amendment No. 121:

Page 48, line 4, leave out from ("(2),") to ("(property") in line 5 and insert ("property in relation to which section 31(4) of the Northern Ireland Constitution Act 1973 had effect").

The noble Lord said: My Lords, this is a technical amendment. Clause 75 of the Bill, as approved in Committee, defines the Stormont estate and related property by reference to Section 31(4) of the Northern Ireland Constitution Act 1973.

That section is to be repealed, with other provisions of the 1973 Act, by this Bill in Clause 94(2) and Schedule 16. This amendment, with its reference in the past tense to the property to which Section 31(4) of the Act had effect, is a drafting amendment to acknowledge the fact that that section will be repealed when Clause 87 comes into force. I beg to move.

On Question, amendment agreed to

Clause 89 [Savings for existing laws]:

Lord Dubs moved Amendment No. 122:

Page 49, line 12, leave out ("the Parliament of the United Kingdom,") and insert ("Parliament,").

The noble Lord said: My Lords, in moving Amendment No. 122 I propose to speak to Amendments Nos. 123 to 132 inclusive, including Amendment No. 125 in the name of the noble Lord, Lord Cope, and I should also like to speak to Amendment No. 157.

The government amendments to these clauses concern technical and drafting points. Amendment No. 122 in Clause 89 is purely a matter of drafting: the deleted words are unnecessary. Amendment No. 123 in Clause 90 is consequential on amendments to Clause 71 (which concerns the statutory equality duty) and subjects to the affirmative resolution procedure orders under the new power of designation inserted there. Amendments Nos. 124, 126 and 127 insert several new entries in the interpretation clause of the Bill, Clause 92.

I think we are at one on the substance with the noble Lord, Lord Cope, who seeks in Amendment No. 125 to set out the definition of "Minister" in Clause 80. Our Amendment No. 126 achieves the same effect by reference back to Clause 8. In doing so it follows the drafting style of the rest of the Bill, as the noble Lord's amendment does not, so I hope he will be ready to withdraw his amendment.

Amendment No. 128, which also relates to Clause 92, provides a definition of the expression "deals with", which comes up at a number of points in the Bill, especially in connection with legislation. The new provision is intended to assist those who have to make decisions about whether a provision is within legislative competence.

It, first of all, recognises that a provision may deal with a number of matters: it is not a question under this Bill, as it is in some constitutional systems, of isolating a single predominant concern of a provision—what is sometimes called its "pith and substance".

Secondly, the amendment makes clear that a provision deals with each of the matters that it affects, so long as it affects them more than incidentally. That means that provisions may frequently, in the terms of the Bill, deal with a number of matters.

The amendment marks no change in policy: it reflects what we have always intended the Bill to achieve, and is indeed implicit in its drafting. But different constitutional systems assess these questions in different ways, and in particular the Scotland Bill takes a different approach from the one we intend, so it seems to us important to make more explicit what we mean here.

I move on to Amendment No. 129, also in Clause 92, which needs to be considered with Amendment No. 157 in Schedule 3, by which the subject matter of the National Minimum Wage Act would be made a reserved matter. The Clause 92 amendment is necessary to ensure that the Northern Ireland Assembly may, notwithstanding the reservation, still legislate freely on employment matters as a whole in Northern Ireland.

The underlying principle of the national minimum wage is that the same rate will apply throughout the United Kingdom. The National Minimum Wage Act reflected a UK-wide policy from the start. It ensures the workers across the UK qualify for the same rates and have the same degree of protection and that employers are subject to the same obligations and penalties in every part of the United Kingdom.

In framing the reservation in this Bill of the National Minimum Wage Act, we have been mindful that employment law is a transferred matter in Northern Ireland. We have sought to ensure that the Assembly would be able to make changes to those enforcement provisions which lock into existing Northern Ireland legislation without undermining the integrity of the National Minimum Wage Act's universal approach.

The way in which we have done this is to propose in these amendments provisions which would allow the Assembly to legislate in those related areas of employment law provided that any such legislation applies consistently to the national minimum wage and all other employment law.

I turn to Amendments Nos. 130 to 132 in Clauses 93 and 94. These are purely a matter of drafting for consistency with other parts of the Bill. I beg to move.

Lord Cope of Berkeley

My Lords, among this group of amendments, as the Minister said, is Amendment No. 125 which I put down on the Marshalled List in an attempt to move the definition of "Minister" into Clause 92, where all the other definitions are. The Minister claimed that his proposition was in keeping with the drafting style of the Bill, but I am not sure that I entirely accept that, because there are a whole lot of definitions in this clause, and this is another one which applies to large parts of the Bill. However, I shall not press it at this stage of the game.

Amendments Nos. 129 and 157 both refer to the national minimum wage. If I may, I shall reserve my remarks on Amendment No. 157 because that is the amendment which lays down that the national minimum wage legislation is to be treated as a reserved matter. I am content with Amendment No. 129. Both amendments were put down overnight and we have not yet had time to consider Amendment No. 157 properly; so if I may, I shall reserve my position on that.

On Question, amendment agreed to.

Clause 90 [Orders and regulations]:

Lord Dubs moved Amendment No. 123:

Page 49, line 19, leave out ("71(3)(e)") and insert ("71(3)(a) or (e)").

The noble Lord said: My Lords, I beg to move this amendment formally.

On Question, amendment agreed to.

Clause 92 [Interpretation]:

Lord Dubs moved Amendment No. 124:

Page 50, line 18, at end insert— (""financial year", unless the context otherwise requires, means a year ending with 31st March;").

The noble Lord said: My Lords, I beg to move Amendment No. 124 formally.

On Question, amendment agreed to.

[Amendment No. 125 not moved.]

Lord Dubs moved Amendments Nos. 126 to 129:

Page 50, line 27, leave out ("20(3)") and insert (" 8(3)").

Page 50, line 27, at end insert— (""Minister of the Crown" includes the Treasury;").

Page 51, line 8, at end insert— ("( ) For the purposes of this Act, a provision of any enactment or Bill deals with the matter, or each of the matters, which it affects otherwise than incidentally.").

Page 51, line 8, at end insert— ("( ) For the purposes of this Act, a provision of any Act or Bill which modifies a provision of—

  1. (a) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977;
  2. (b) the Employment Rights (Northern Ireland) Order 1996; or
  3. (c) the Industrial Tribunals (Northern Ireland) Order 1996,
which is amended or applied by or under the National Minimum Wage Act 1998 shall not be treated as dealing with a matter falling within the subject-matter of that Act if the modification affects the national minimum wage and other employment matters in the same way.").

On Question, amendments agreed to.

Clause 93 [Minor and consequential amendments]:

Lord Dubs moved Amendments Nos. 130 to 132:

Page 51, line 38, leave out ("to this Act").

Page 51, line 42, leave out ("to this Act").

Page 52, line 1, leave out ("to this Act").

The noble Lord said: My Lords, I beg to move these amendments en bloc.

On Question, amendments agreed to.

Baroness Farrington of Ribbleton

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.