ALTERATIONS IN DEVOLVED RESPONSIBILITIES (Hansard, 20 June 1973)

§ Captain Orr
I beg to move Amendment No. 18, in page 2, line 39, leave out 'not specified in Schedule 3 to this Act'.
If I read the clause aright, after the appointed day if it appears to the Secretary of State—
"(a) that any matter (not being an accepted matter) which is not a transferred matter by virtue of an Order under section 2 above or a previous order under this section should become a transferred matter; or

(b) that any matter which by virtue of any such Order is a transferred matter should cease to be such a matter"—
he may devolve powers. He may transfer matters from Schedule 3 to the new Assembly. We can discuss timing and the ways in which that may be done when we come to the debate on the Question, That the Clause stand part of the Bill.
Having transferred a certain power at some time the clause, as drafted, gives the Secretary of State the power to remove the power again from the Assembly and to make it once again a reserved matter.
The purpose of the amendment—I am not a lawyer and I accept that the amendment may be defective for its purpose—is to prevent the Secretary of State from reassuming a power or reserving a power that has been transferred. That seems to be an obvious defect in the clause. Let us suppose that it is possible to form some kind of Executive and that the Secretary of State decides to lay before the House an order giving certain powers to the new Assembly. How long will the Assembly be permitted to retain those powers? I can see an extraordinary degree of uncertainty if, at the whim of the Secretary of State—and subject only 744 to an order of this House—the Secretary of State can take away a power.
Let us imagine the kind of confusion to which that could lead. Almost any of the powers in Schedule 3 could be removed. Presumably, at some time it is proposed to hand over to the Government or to the Executive, and thus to the Assembly, all the various matters in Schedule 3. Let us suppose that any one of those powers were handed over. By that time the Assembly might begin to pass measures on the advice of the Executive. It is possible that the measures concerned would deal with plans over a considerable period. It seems extraordinary to leave with the Secretary of State the power to resume powers. I do not want to make heavy weather of this matter, but I should like to know why that power is in the clause.
I understand why the powers are reserved to begin with. I understand the philosophy behind the Bill, namely, that the powers can be devolved when the Secretary of State thinks that the Assembly is mature and responsible enough to have the powers. However, I cannot envisage circumstances in which the Secretary of State should arbitrarily resume them. Presumably, if, in the Secretary of State's view, the Assembly began to be irresponsible and to do things of which he disapproved, he could get rid of it altogether by dissolving it.
I do not see any justification for the power of piecemeal resumption of powers. Far too much uncertainty would be created. I may be wrong. Perhaps there is a good reason for it. I wait to hear what my hon. Friend has to say.

§ The Minister of State for Northern Ireland (Mr. David Howell)
I am grateful to my hon. and gallant Friend the Member for Down, South (Captain Orr) for the way in which he moved the amendment. As he made clear, he is seeking information on the nature of the powers in this part of Clause 3. The clause provides that under the initial devolution order powers are transferred, and that the powers may not be clawed back. There is no power in the Bill for matters transferred under the initial devolution order—that is, matters not mentioned in Schedule 2 and Schedule 3—to 745 be brought back and turned again into reserve matters.
I understand that the amendment goes further, and that if accepted it would ensure that when the situation arose in which it became possible to transfer further powers—that is, powers, responsibilities and functions specified under the reserved minimum list in Schedule 3—it would apply to the second set of devolved powers the same block on a return of those powers. The clause provides no such block. On the contrary, it gives my right hon. Friend, in certain circumstances, power to take back matters that have been devolved following the initial devolution order. It does so for a number of reasons.
It is the Government's view that these are contentious matters—obviously they are, because there has been so much dispute about them in Northern Ireland. We therefore believe that the United Kingdom Parliament must retain ultimate control and that it should not be a question of this depending upon the initiative of the Assembly. One hopes that if it should ever come to the withdrawal of the second tranche of powers it will be with the consent of the Assembly, but our view is that the United Kingdom Parliament must retain ultimate control.
We are trying to strike a balance. Some people say that there should be power to claw back all transferred powers; others say that there should be no opportunity, once powers have been transferred, for them to be taken back. Clause 3 provides a balance between the view that any matter should be capable of being withdrawn and the view, indicated in the amendment, that there should be no power of withdrawal at all.
I hope I have made clear what the powers are, and what functions they cover, which are not those transferred under the initial devolution order. I hope, therefore, that my hon. and gallant Friend will ask leave to withdraw the amendment.

§ Captain Orr
I am grateful for that explanation. I did not think that the power to take back applied to those matters that would be in the initial devolution order. I was dealing with the matters specified in Schedule 3, which, as my hon. Friend rightly says, are, contentious. Many of them we can discuss 746 when we reach the amendments that are proposed to the schedule. I consider that many matters in Schedule 3 ought to be devolved if we are to create a worth-while devolution—in other words, if we are to create anything approaching a devolution that would justify the diminution of representation of Northern Ireland in the House of Commons.
This will be the more difficult to justify so long as the power remains in Schedule 3 to remove a matter as soon as it becomes contentious. For example, paragraph 5 of Schedule 3 refers to The establishment, organisation and control of the Royal Ulster Constabulary and of any other police force Supposing that at some stage the Secretary of State thinks it right to devolve that power upon the Northern Ireland Assembly and the Assembly proceeds to exercise its authority in the matter and makes plans. There is every incitement for anyone who wishes to be disruptive and to attack the State immediately to make the matter so contentious that the demand will be upon the Secretary of State to re-reserve the power. This is a weakness, because it means that as soon as he devolves any of the powers in Schedule 3 the Secretary of State will constantly be subjected to demands outside and inside the House of Commons to take back this or that power. Anyone who wishes to attack the Northern Ireland Executive or the State itself will have that option open to him.
7.0 p.m.
It would be wise of my right hon. Friend to think again about the piecemeal resumption of these powers if they are ever devolved. I believe that sufficient safeguard lies in the overall power of the House of Commons to deal with a Northern Ireland situation that got out of hand. It is always possible to dissolve the Assembly and resume direct rule. All kinds of remedies are available. But my right hon. Friend will get the worst of all worlds if he decides to retain this piecemeal method. I see difficulties in it.
However, I do not want to make heavy weather of the matter now. We want to get on, and in the light of what my hon. Friend has said, and on the understanding that my right hon. Friend will look at what I have said, I am prepared to 747 return to the subject on Report. I beg to ask leave to withdraw the amendment.