POWER TO LEGISLATE BY ORDER IN COUNCIL FOR CERTAIN MATTERS RELATING TO NORTHERN IRELAND (Hansard, 20 June 1973)

§ Captain Orr
I beg to move, Amendment No. 41, in page 26, line 9, leave out subsection (1).

§ The Chairman
With this we can debate the following amendments:
No. 42, in page 26, line 11, leave out paragraph (a);
No. 43, in page 26, line 13, leave out paragraph (b);
No. 44, in page 26, line 14, leave out paragraph (c);
No. 45, in page 26, line 16, leave out subsection (2).

§ Captain Orr
Here we are dealing with powers to legislate by Order in Council. The clause provides that Her Majesty may by Order in Council make provision for certain matters. They are:
"(a) elections, including the franchise, in respect of local authorities in Northern Ireland:

(b) local government boundaries in Northern Ireland;

(c) the constitution of the Police Authority"
Are they by virtue of their inclusion in the clause, included in Schedule 2, among the excepted matters? Does it make them permanently excepted matters? If it does not have that effect, we can leave to a later discussion the whole question of the powers to be devolved. But the advice I have had, which could very well be incorrect, is that the clause would prevent any of these three matters ever being devolved.
I understand that my right hon. Friend is getting some advice on the question. I can produce the argument if it is necessary to produce it now. In the meantime, I should like to know whether my judgment of the matter is right.

§ Mr. Powell
I rise on a rather different point, namely, the relationship not so much with the powers of the new Assembly as with the rights of this House. I do so particularly in regard to the content of subsection (1)(a).
This House has recently legislated for the franchise to be exercised in local government elections in Northern Ireland. 823 Indeed, it has been a subject of considerable and detailed debate in the House. It appears that the proposals before us would enable the Executive simply by Order in Council to make further changes in the law governing the franchise for local government in Northern Ireland. If that is so, it is a matter objectionable in principle, unless there are very special grounds to the contrary, that what has been the subject of legislation here should subsequently be alterable by Order in Council. For this is not then subordinate legislation in the ordinary sense of the term, which dots the i's and crosses the t's of general principles laid down by the House; it is a power, in effect, to legislate over ground which previously the House of Commons has exercised the right to mark out for itself.
It may be that there is a misunderstanding, but I hope that my right hon. Friend will take this point into account as well as the point made by my hon. and gallant Friend.

§ Mr. Orme
I want to underline the point made by the right hon. Member for Wolverhampton, South-West (Mr. Powell). The three matters dealt with in the subsection—elections, including the franchise, local government boundaries, and the constitution of the police authority—are highly sensitive in Northern Ireland, as well as being important constitutional matters. In that regard, I accept fully that in the present circumstances any changes must be in the control of the Westminster Parliament. But it seems a little perfunctory to deal with this matter through an Order in Council, because it could be extremely controversial. I hope that the Secretary of State will explain more fully whether that is the intention or whether it is just to cover a small alteration. That is not specified in the Bill.
We are concerned about this matter and, had not the right hon. Member for Wolverhampton, South-West referred to it, it was our intention to do so. We should like to hear the views of the Secretary of State.

§ Mr. R. J. Maxwell-Hyslop (Tiverton)
We are in a slight limbo. In some measure we are discussing delegated legislation, but we eagerly await the report of the Joint Committee on Delegated Legis 824 lation, which will have a considerable bearing on the matter.
When the first Northern Ireland Bill had its Second Reading, certain undertakings were given by the Government which were cancelled subsequently. One, given by the Attorney-General, was that there would be 40 full parliamentary days—not 40 days including Fridays, Saturdays and Sundays—to debate any delegated legislation. Subsequently, in a mysterious way, that undertaking was withdrawn.
I am not clear whether Orders in Council under this clause will be subject to the negative resolution procedure, the affirmative resolution procedure, or no procedure at all on the Floor of the House. For that reason, I ask the Minister to say specifically what are to be the procedures in this House which will be followed before any Orders in Council of this kind become law.
We cannot ask what view the Government will take of recommendations which have not yet been made by the Joint Committee on Delegated Legislation, although they are likely to be helpful to the House. But, assuming the continuance of the present utterly chaotic regulation of delegated legislation, I should like to know the present state of the parliamentary art on it.

§ Mr. Stratton Mills
With this amendment, we are discussing Amendments Nos. 42, 43, 44 and 45. Amendment No. 42 seeks to delete paragraph (a). My right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) has deployed the argument, and I shall not repeat it. His point is a valid one.
Amendment No. 44 seeks to delete paragraph (c), which provides for delegated legislation on the constitution of the police authority. We should like to know the thinking behind the paragraph.
Amendment No. 45 proposes the deletion of subsection (2), and again it provides an opportunity for some explanation of the purpose of the subsection. Its terms are very wide.

§ Mr. Whitelaw
At the outset, I must tell my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) that in the context of this Bill it would not be right for me to be drawn into matters that are properly the concern of my right 825 hon. Friend the Leader of the House. I must confine myself to the specific matters covered by the clause.
I can give my hon. and gallant Friend the Member for Down, South (Captain Orr) the assurance that he seeks, that this provision does not do what he fears it might. Specific provision is necessary to allow some of these changes to be made by Order in Council. While they are part of the general scheme of the White Paper, they do not technically fall within the scope of Clause 39, which contains general powers to legislate by Order in Council for matters which are consequential on the Bill.
My right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) made an important and major point, as did the hon. Member for Salford, West (Mr. Orme). The purpose of the clause as it stands is to deal with purely minor and not major matters. It is difficult, in a Bill, to state that it will be used for only minor matters. I am prepared to give the assurance that the clause will be used only for the purposes of minor matters. My words will make it difficult in future for the clause to be used for major changes either in the franchise or in major matters concerned with the police. I readily give that assurance.
We had in mind, for example, some changes in local government boundaries. It would seem reasonable that that should be done by order in council. Paragraph (c) permits an Order in Council to amend the constitution of the police authority for Northern Ireland.
Paragraph 70 of the White Paper stated that the police authority would be reconstituted following consultations with the Assembly so as to introduce into it an element drawn from elected representatives. That should be a great help. It is much desired in Northern Ireland that the members of the Assembly should be associated with the police authority. That is one of the matters of significance that could be done under the Act, and something that was promised. That is a change which might properly be made by Order in Council and not by substantive legislation.

§ Mr. Orme
A rather disturbing matter arises. The right hon. Gentleman gives an assurance to the Committee. No 826 one doubts his word for one moment, but Secretaries of State come and go, and the Bill as it stands would give a Secretary of State power to redraw all the boundaries, re-organise the police and alter the franchise. On that basis, allowing for what the right hon. Gentleman has said, could not some form of words be found in time for the Report stage whereby the minor points that he has emphasised could be written into the Bill as a safeguard? I foresee that the provision might be misinterpreted by some people in Northern Ireland, perhaps for mischievous reasons and not to the advantage of the policy that the right hon. Gentleman is pursuing.

§ Mr. Whitelaw
It may be difficult to do that. Nevertheless, we must seek to meet the Committee if it is possible to do so. I believe that the sanction lies with the House. I do not believe that the House would in any circumstances be prepared to allow a Government to legislate by Order in Council on a major matter concerning elections, the franchise or a major reconstitution of the police.
I accept the difficulty that is inherent in the clause. The clause was inserted particularly to cover the minor matters that I have described. If it has a wider interpretation I am prepared to consider it. That interpretation must be considered in the context of the rights that the House undoubtedly has in such matters and the way an opposition or a government would regard major changes. It is always agreed in the end that these should be taken as major pieces of legislation. I see no reason to suppose that will be different in future.

§ Mr. Molyneaux
I support my right hon. Friend's suggestion that some degree of flexibility should be preserved, particularly with regard to elections. I do not know whether that would be regarded as a major or minor matter. We must act in accordance with the experience that we gain from the proportional representation system in the Assembly elections. In my constituency we shall have eight members, few of them on speaking terms with each other. It may be necessary to make changes in the system. The Secretary of State ought to have the power of discretion so that he can return to what we regard as the more enlightened system operating on the other side of the water.

§ Mr. Powell
What my hon. Friend the Member for Antrim, North (Mr. Molyneaux) has said has reinforced the anxiety of the hon. Member for Salford, West (Mr. Orme) and myself. My hon. Friend clearly not merely reads but desires subsection (1)(a) to be understood in a wider sense than was conveyed by the assurance—which I entirely accept—of my right hon. Friend. I do not think that my right hon. Friend would disagree that it is unsatisfactory that this House, in legislation, should rest upon the verbal assurance of a Minister as to how powers will be interpreted, of that we should renounce the attempt to put into statutory form what we actually mean.
If the object is to use the Order in Council procedure for minor or consequential adjustments I cannot believe that there is no form of words that the parliamentary draftsmen are capable of devising which would have that result. It is unsatisfactory, in the context of elections and franchise, that an expression as wide as this should remain unaltered. I hope that my right hon. Friend will look again at the wording with the express object of including in the Bill the limitation we seek.

§ Mr. Whitelaw
It might be helpful if I intervened here to answer that point. Both my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) and the hon. Member for Salford, West (Mr. Orme) apreciate the problem. On the one hand there are certain matters that it would be desirable to carry out by Order in Council, while, on the other, there are matters that would require major legislation. It is important to be able to use the Order in Council procedure for the minor items.
On the other hand, the clause goes a good deal further and would permit major matters to be dealt with in that way, although I do not think that that would ever happen, under any circumstances. We must try to meet this point. The question of the future of proportional representation as a result of the experience of this forthcoming election and the question whether the Westminster Parliament constituencies are the right ones on which to base PR are bound to be considered in future. These 828 matters are referred to in the Bill because it was the only way we could achieve the speed that was needed. I know that some hon. Members do not agree with PR but this was the only way we could act speedily, on the basis of the Westminster constituencies.
It would be a major matter if we were to change any of this, and any such change would require major legislation. I accept that as it stands the clause make it possible to do what lion. Members have said, and clearly that is not the wish of the Committee.
Turning to the Amendment No. 45, it is important to realise that in the case of some trivial but consequential changes in the title of a Northern Ireland authority it would be absurd to proceed by way of a special Bill. It would be better to proceed by Order in Council. That is the purpose of the clause. I hope we can keen it that way. Having made clear what the clause is intended to do, I confirm that I shall consider the views that have been expressed.

§ Mr. Biggs-Davison
The Committee is grateful to my right hon. Friend. When he considers this matter again will he bend his mind to producing an entirely different wording of the clause to cover the points that have been raised?

§ Mr. Whitelaw
I cannot commit myself. I might have to return to the House and say that I could not find different wording. If I were to commit myself on the way in which any Bill might be drafted I should not carry very much conviction.

§ Captain Orr
In the light of what my right hon. Friend has said, I beg to ask leave to withdraw the amendment.

§ Captain Orr
Regarding the question of legislation by Order in Council, I wonder whether my right hon. Friend can say what will happen to the matters which are at present reserved so long as they remain reserved and not transferred. How will we legislate about them? Shall we still use the Order in Council procedure under the temporary provisions legislation, or shall we try to find some system of legislating in a better way?

§ Mr. Whitelaw
Under the procedure set out in earlier clauses it will be possible for the Assembly, with the consent of the Secretary of State, answerable to the House of Commons, to legislate on some reserved matters. However, if it were the view that the House of Commons should legislate on them it might produce a complete piece of legislation, which I would envisage in the more important cases. If it were done by Order in Council, I had better run for cover on the exact procedure, under the guise of my previous appointment, and say that a system would have to be devised for that, but clearly it is a matter for my right hon. Friend the Leader of the House.