HC Deb 21 June 1973 vol 858 cc943-62
Mr. McMaster

I beg to move Amendment No.66, in page 32, line 22,

invite the Committee to divide in support of the new clause?

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 8, Noes 141.

Division No. 170.] AYES [7.14 p.m.
Biggs-Davison, John Orr, Capt. L. P. S. TELLERS FOR THE AYES:
Mawby, Ray Powell, Rt. Hn. J. Enoch Mr. Stanley McMaster and Mr. John Maginnis.
Mills, Stratton (Belfast, N.) Soref, Harold
Molyneaux, James Winterton, Nicholas
Alison, Michael (Barkston Ash) Hall, Miss Joan (Keighley) Morrison, Charles
Archer, Peter (Rowley Regis) Hamilton, William (Fife, W.) Moyle, Roland
Atkinson, Norman Hamling, William Murton, Oscar
Balniel, Rt. Hn. Lord Harper, Joseph Nott, John
Benn, Rt. Hn. Anthony Wedgwood Hayhoe, Barney O'Malley, Brian
Benyon, W. Higgins, Terence L. Oppenheim, Mrs. Sally
Biffen, John Hill, James (Southampton, Test) Orme, Stanley
Blaker, Peter Hornby, Richard Oswald, Thomas
Blenkinsop, Arthur Hornsby-Smith, Rt. Hn. Dame Patricia Palmer, Arthur
Boothroyd, Miss B. (West Brom.) Houghton, Rt. Hn. Douglas Percival, Ian
Boscawen, Hn. Robert Howell, David (Guildford) Perry, Ernest G.
Bowden, Andrew Howell, Ralph (Norfolk, N.) Pym, Rt. Hn. Francis
Brinton, Sir Tatton Hunter, Adam Raison, Timothy
Brocklebank-Fowler, Christopher Hutchison, Michael Clark Redmond, Robert
Bryan, Sir Paul Irvine, Rt. Hn. Sir Arthur (Edge Hill) Reed, Laurance (Bolton, E.)
Buchan, Norman James, David Rees, Merlyn (Leeds, S.)
Channon, Paul Janner, Greville Ross, Rt. Hn. William (Kilmarnock)
Clark, William (Surrey, E.) Jay, Rt. Hn. Douglas Scott-Hopkins, James
Clarke, Kenneth (Rushcliffe) Jones, Arthur (Northants, S.) Shaw, Michael (Sc'b'gh & Whitby)
Concannon, J. D. Judd, Frank Sheldon, Robert (Ashton-under-Lyne)
Cooper, A. E. Kaufman, Gerald Shersby, Michael
Cordle, John Kellett-Bowman, Mrs. Elaine Silverman, Julius
Cormack, Patrick Kerr, Russell Simeons, Charles
Costain, A. P. Kershaw, Anthony Skinner, Dennis
Cox, Thomas (Wandsworth, C.) King, Evelyn (Dorset, S.) Stallard, A. W.
Davis, Terry (Bromsgrove) Knox, David Stanbrook, Ivor
Dean, Paul
Douglas-Mann, Bruce Lawson, George Stewart-Smith, Geoffrey (Belper)
du Cann, Rt. Hn. Edward Le Marchant, Spencer Stodart, Anthony (Edinburgh, W.)
Duffy, A. E. P. Lewis, Kenneth (Rutland) Stoddart, David (Swindon)
Edwards, Nicholas (Pembroke) Lipton, Marcus Tebbit, Norman
Elliot, Capt. Walter (Carshalton) Lloyd, Ian (P'tsm'th, Langstone) Thomas, John Stradling (Monmouth)
Ellis, Tom Longden, Sir Gilbert Tinn, James
Eyre, Reginald Luce, R. N. Tope, Graham
Faulds, Andrew McAliskey, Mrs. Bernadette Torney, Tom
Fidler, Michael Mackie, John Turton, Rt. Hon. Sir Robin
Fisher, Mrs. Doris (B'ham, Ladywood) McNair-Wilson, Michael Walder, David (Clitheroe)
Fookes, Miss Janet McNair-Wilson, Patrick (New Forest) Ward, Dame Irene
Foot, Michael Madel, David White, Roger (Gravesend)
Fortescue, Tim Mather, Carol Whitehead, Philip
Fowler, Norman Maudling, Rt. Hn. Reginald Whitelaw, Rt. Hn. William
Fox, Marcus Meacher, Michael Williams, Alan (Swansea, W.)
Freeson, Reginald Mellish, Rt. Hn. Robert Wilson, Alexander (Hamilton)
Garrett, W. E. Millan, Bruce Wilson, Rt. Hn. Harold (Huyton)
Goodhart, Philip Mills, Peter (Torrington) Younger, Hn. George
Green, Alan Mitchell, R. C. (S'hampton, Itchen)
Grimond, Rt. Hn. J. Money, Ernie TELLERS FOR THE NOES:
Grylls, Michael Monro, Hector Mr. Paul Hawkins and Mr. Michael Jopling.
Gurden, Harold Morgan, Geraint (Denbigh)

leave out from 'Ireland' to end of line 26.

Following the last vote and the decision of the House not to increase the number of Northern Ireland Members, this amendment should be received by my right hon. Friend with great sym- pathy. The schedule states that among the excepted matters—that is, the matters that will be transferred to this House—the appointment of judges of the Supreme Court, county court judges, recorders, resident magistrates, justices of the peace and other judicial appointments shall be made only by this House. The effect of placing this list of appointments within Schedule 2 is that these matters will never be transferred to the new Executive in Northern Ireland.

At one time it was the convention in Northern Ireland that though judges of the Supreme Court were appointed by Westminister, it was customarily on the recommendation of the appropriate Minister in the Northern Ireland Parliament. I believe that this convention was abandoned about 15 or 20 years ago. But the appointment of other judges below the Supreme Court—county court judges, and so on—was always undertaken by the Northern Ireland Government.

If the Northern Ireland Executive is to have any real powers and is to enjoy the confidence of Parliament at Westminster, surely the appointment of county court judges, recorders, resident magistrates, and so on, may well be entrusted to the new Executive. If this is not to be the case I cannot see how my right hon. Friend can take the hard line that he has taken about increasing the representation at Westminister. He cannot have it both ways. Either he is setting up an effective Government in Northern Ireland, with a sufficient degree of devolution to warrant a limitation of representation at Westminster, or he is setting up something which has very much less power than that of the former Northern Ireland Government, and something that cannot even be trusted to appoint its own county court and minor judges.

My right hon. Friend should show that he has confidence in the new Executive. If he is not prepared to transfer now the power to appoint county court judges, recorders, resident magistrates, justice of the peace and so on to that Executive, at least that list should be included in the minimum reserved matters set out in Schedule 3, the matters which may in future be transferred, rather than in Schedule 2.

I share with many of my hon. Friends the hope that the Assembly will succeed, but if that hope is to materialise my right hon. Friend must show his confidence in that Assembly. If he does not, it will be nothing more than a glorified county council. The whole set-up will be clearly more of a sham, a political expedient, than a proper and effective body.

It is because of that that my right hon. Friend should make a concession on this vital point. If the new Executive is to have proper parliamentary authority and power, it must have control over law and order. The appointment of these judges is a very important facet of law and order. Law and order are vital to the functions of Government. It is in the power to appoint judges and to suspend them that one shows one's confidence in an Executive.

I ask my right hon. Friend to consider this matter very seriously. In the appointment of judges, surely a local Executive is much better qualified to act as the appointing authority than some remote authority in London. I cannot see why one should argue that the appointment of county court judges and recorders, and even resident magistrates and justices of the peace, can be done only by the Secretary of State acting from Westminster.

7.30 p.m.

Surely, if one wants to compile a full list of persons prepared to act as justices of the peace—members of juvenile court panels, coroners, chief and other National Insurance commissioners, or the president and other members of the Land Tribunal—one requires to be resident in the area concerned. Only those who live there know the various members of the legal profession and others who are qualified to act. Only they can judge their merits properly.

Mr. Russell Kerr (Feltham)

Perhaps they know too much.

Mr. McMaster

Why are these powers taken away and left for ever in the hands of the Secretary of State and the Government at Westminster? What could be a more blatant token of lack of confidence in the integrity of the Executive or lack of sincerity by my right hon. Friend in setting up an effective Executive with true devolution of powers?

I press this amendment as strongly as I can upon my right hon. Friend, particularly in view of the decision that the Committee has just taken on the previous matter of representation of Northern Ireland Members.

Mr. Stratton Mills (Belfast, North)

I am not sure that I agree with all that was said by my hon. Friend the Member for Belfast, East (Mr. McMaster). I shall not follow his argument, because I wish to deal with another matter that is allied to this subject and arises under paragraph 9 of the schedule.

Paragraph 67(a) of the White Paper states that It is the view of the Government that all judicial appointments should be made by or on the recommendation of the Lord Chancellor, and that there should be a unified administration of the courts for which the Secretary of State should be answerable to Parliament. Looking at paragraph 9 of the schedule, I am puzzled as to how this is brought about. Perhaps it is brought about by some other part of the Bill. But what is to be the position of the officers of the Supreme Court, exercising their judicial functions, the vice-president of the Value Added Tax Tribunal for Northern Ireland, Masters of the Enforcement of Judgments Office and Clerks of the Crown and Peace for Northern Ireland? What is to be the position about their appointments, and who is to be answerable for them?

Having regard to the terms of the White Paper, I assume that it is intended that they should be covered by the schedule. Perhaps my right hon. Friend will clarify this matter.

Captain Orr

I reinforce what was said by my hon. Friend the Member for Belfast, East (Mr. McMaster) about these provisions. The 1920 Act made a distinction between the Supreme Court and other courts. That Act permanently reserved the appointment of members of the Supreme Court of Judicature to the Lord Chancellor. I presume that in the light of conditions that prevailed in those days it was a perfectly reasonable thing to do.

What appears to be happening now is that the appointments for all the lower courts and the various judicial and quasi-judicial appointments included in para- graph 9, other than those for the Supreme Court in Northern Ireland, are by implication being reserved. That would be a most serious allegation if it were made. There may have been very wild elements in Northern Ireland in recent times but the fact that this matter is now permanently reserved in the excepted schedule rather than in Schedule 3 seems to indicate that Her Majesty's Government are giving credibility to the allegastions that have been made, and are saysing "We would not trust any Northern Ireland Executive with authority in these matters and, therefore, we would not trust in the future the persons in judicial or semi-judicial appointments."

There is no great point of principle involved in this; it is simply a matter of confidence. I should like to hear what my right hon. Friend has to say about the justification for the absolute, permanent exclusion of these matters from those which can be transferred before we decide what we should do about the amendment.

Mr. Biggs-Davison

I shall be extremely brief. I am confident that my right hon. Friend will appreciate the force of the argument from our side. Of course, we cannot consider matters like this in abstraction. We have to have regard to the political realities in Northern Ireland. These appointments and removals are, of course, sensitive matters. I can understand why my right hon. Friend does not want to be committed to the delegation of these appointments and removals. But I cannot understand why, in that event, they were not placed in the category of minimum reserved instead of in the excepted schedule, which means, presumably, that unless there is amending legislation they will always remain outside the influence of those in Northern Ireland.

I think that my right hon. Friend knows the extent of humiliation, distress and outrage which has been occasioned among many people in Northern Ireland by the abolition of the governorship—which seems to be coming about—the Senate and the House of Commons in Northern Ireland, and now by the decision of the House after the last Division. It might go some way to assuage some of those feelings if my right hon. Friend were to be accommodating on this amendment.

Mr. Whitelaw

I appreciate what my hon. Friend the Member for Belfast, East (Mr. McMaster) said in moving the amendment. On reflection, he would probably not feel that a decision on this particular matter was at the basis of whether the Assembly was to be a worthwhile body or, as he put it, a mere county council.

Perhaps I should reply at once to the point raised by my hon. and gallant Friend the Member for Down, South (Captain Orr). There is no suggestion in our proposals that the judicature in Northern Ireland is not to be trusted. That would be an unfair and unjustified accusation. In view of what has been happening in this sphere at a difficult time with the many pressures that have been applied, it is necessary to make that perfectly clear.

As my hon. and gallant Friend said, most important appointments in the past have been those of judges to the Supreme Court, and these appointments were reserved for the Lord Chancellor. The White Paper and the schedule provide that the Lord Chancellor should also be responsible for the appointment of county court judges, magistrates, coroners, and limited other appointments of a quasi-judicial nature. The question is why it is necessary to add these to the judges of the Supreme Court who were his responsibility before.

This is not a matter of principles; it is a matter of convenience. The Lord Chancellor has the opportunity of discussing these matters with the Lord Chief Justice in Northern Ireland and is in the special position of making judicial appointments because of the nature of his office. Therefore, to put all the judicial appointments together under his responsibility is a logical and reasonable way to proceed. I do not see it in any way as a matter of principle.

In dealing with the next point I hope I shall be able to go some way to satisfying my hon. Friends. The Bill draws a careful distinction between the appointment of these various office holders, which are excepted matters, and the functions and rôles which they are to discharge. These are reserved matters, and were specifically made so. That shows something of the trust that exists here. They were made reserved matters because it would be possible, and might be necessary, to make changes when this House could not find the time to deal with them. Because they are reserved matters the Assembly could, with the consent of the Secretary of State, legislate about the courts. The Assembly in this respect would in some ways have a freedom to legislate wider than that given to the Parliament of Northern Ireland under the 1920 Act. That Parliament had no authority to legislate on matters relating to the Supreme Court. If an appropriate case should arise the Northern Ireland Assembly would be able to legislate.

This shows the basis of the trust that is placed by the Government. We felt that the appointments were one thing and that the actual functions and rôles of the courts were something else. That we have put them in the reserved matters shows that the Assembly has a considerable part to play. Perhaps in order to save time I could answer my hon. Friend the Member for Belfast, North (Mr. Stratton Mills) on his point, which I think should arise more on the "stand part" debate on the schedule.

Mr. McMaster

Will my right hon. Friend be prepared to meet me half way? He has pointed out that certain of the matters related to this subject have been placed in the reserved list in Schedule 3. He will know that the justices of the peace who are included in this, and certain of the other so-called quasi-judicial appointments, are not judicial appointments in Northern Ireland because they have no judicial function there. Will my right hon. Friend consider on Report introducing an amendment transferring them to the reserved list, thereby supplementing the matters that he has already said are in the reserved list, matters which may subsequently be transferred to the Northern Ireland Executive?

Mr. Whitelaw

I think the Bill as it stands is probably the best way to proceed, but I am certainly prepared to look at what my hon. Friend has said. I still believe that there is an advantage in the Lord Chancellor's being responsible for all the appointments.

7.45 p.m.

I return to the point made by my hon. Friend the Member for Belfast, North. Paragraph 9 covers only the appointment and removal of judges and holders of quasi-judicial office. It does not cover any other matters dealing with the courts—the clerk of the court, the clerk of the Crown and other officials. They are covered by paragraph 2 of Schedule 3. Those are reserved matters, while the appointment by the Lord Chancellor of the judges is an excepted matter. The people to whom my hon. Friend referred are covered by paragraph 2 of Schedule 3.

Mr. Stratton Mills

The point which I was making was that officers of the Supreme Court exercise certain judicial functions in relation to registrars. Similarly the Vice-President of the Value Added Tax Tribunal and the Master of the Enforcement of Judgment Office exercise a form of judicial function, as do the Clerks of the Crown and Peace. All these individuals exercise a form of judicial function. I will not press for an answer now, but I hope that the Secretary of State will look into the matter and write to me about it.

Mr. Whitelaw

I must confess that if my hon. Friend had pressed the matter I would not have been able to give the answer at present. I shall seek to answer him in writing.

Captain Orr

Once again my right hon. Friend has been helpful. I think he would agree that the amendment gave him an opportunity of expressing confidence in the judiciary at all levels in Northern Ireland, and for this purpose it has been valuable. In the light of the other Bills which we shall be discussing on Monday and Tuesday it is important to have on the record that this House has confidence in the judiciary in Northern Ireland.

My right hon. Friend has been kind enough to make clear the difference, on which I was slightly confused, between paragraph 2 of Schedule 3 and the paragraph with which we are now dealing. He has made it clear that he is concerned solely with reserving the question of appointment. I agree with him that there is no great point of principle, provided that we understand the reason behind this. Accordingly, I ask my hon. Friend the Member for Belfast, East (Mr. McMaster) if he will be good enough to withdraw the amendment.

Mr. McMaster

I am grateful to my hon. and gallant Friend for his helpful advice. The Secretary of State has given an undertaking that he will consider the amendment which we suggest, particularly regarding Justices of the Peace and quasi-judicial appointments. I accept what he says about county court judges being appointed by the Lord Chancellor and see force in that argument. Therefore, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Captain Orr

I beg to move Amendment No. 67, in page 32, line 26, leave out paragraph 10.

The subject is close to the point of the amendment we have just discussed, but it differs slightly in that it is in a separate paragraph of the schedule, and, therefore, must be different in its nature.

We are dealing with two new offices, the Director and the deputy Director of Public Prosecutions. It was right to remove the power relating to public prosecutions from the hands of a political officer, the Northern Ireland Attorney-General.

I never saw any objection to the setting up of the post of Director of Public Prosecutions in Ulster. No one would wish to return to the old system. But why is it considered necessary, again permanently, to reserve the appointment to the office? Is it because the office of Attorney-General of Northern Ireland is not to be devolved in any circumstances, or is it for some other reason? It would he useful to have an explanation from my right hon. Friend before we decide whether it should remain in the schedule.

Mr. Whitelaw

I have discussed the rather broader issues in my answer to the previous amendment. Under Clause 34 the appointment of the Director of Public Prosecutions and the deputy Director is placed in the hands of the Attorney-General. That is how it comes to be an excepted matter.

Captain Orr

I am very much obliged to my right hon. Friend for that explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Captain Orr

I beg to move Amendment No. 68, in page 32, line 29, leave out paragraph 11.

The amendment raises a point of more substance than the previous amendment, and to some extent a point of principle. It is not invariable, when one sets up a subordinate legislature of some kind, to leave to it the question of its franchise, the running of its elections and its control over those authorities that are subordinate to it. But if, as the Government seek to argue, we are setting up an Assembly with considerable powers, with a degree of independence, which was the argument used against us when we were considering the question of representation in this House, it seems very strange to deny to that subordinate Assembly authority over those assemblies that are subordinate to it.

Under the Act of 1920 the Parliament of Northern Ireland had control over its own franchise, over the arrangement and size of its constituencies, over all the rules governing its own local authorities. The fact that that power is in the schedule means that never, so long as the measure lasts as an Act, will the new Assembly have any say in these matters.

I do not understand why these substantial powers should be permanently reserved. I could understand it if the Secretary of State were saying that they should be reserved for the interim period, while the Assembly is being set up, because the local authorities have been set up before the Assembly and the relationship between the Assembly and the local authorities has not yet been fully worked out and matured. There would then be a good case for reserving these matters, perhaps for some time.

But let us take one particular matter of substance. The local authorities—the district councils—have just been elected. They were elected on the single transferable vote system. No authority of any kind, no representative body in Northern Ireland, had any say, except through the representatives in this House, diminished in size as we are, in the setting up of that local government franchise. The people of Northern Ireland feel that, whatever be the merits of the single transferable vote system, it has been imposed upon them without their having the right to consider it and without their consent.

This is a matter over which, ultimately, the Assembly should have some control. It should have control over the system under which elections will take place. It might very well be that the people of Northern Ireland felt that they wanted to do away with the system. At some time in the future they might prefer a different type of proportional representation. Some hon. Members would not concede that the single transferable vote system is proportional representation at all. Their argument might prevail in Ulster at some time.

But at present, even if all the elected representatives in the Assembly were agreed on the system they would have no authority to alter it, and never will. It seems to me very strange that it is not a power which could eventually be devolved on the Assembly. I see no great point of principle to prevent its being devolved on the Assembly, unless the Government are saying "We shall never trust the elected representatives of the people of Northern Ireland in the Assembly with these powers". Unless the Government are saying that they never could be trusted to look after their own franchise, to look after their own local government boundaries, there is no other good argument for not removing these powers from the schedule and putting them in Schedule 3.

Mr. Molyneaux

We start in the rather curious position of being at this moment in control of elections in Northern Ireland both for the Assembly and for the local government bodies. But, as we saw earlier today, we are not discharging that function through an Act of this Parliament or any instrument designed here. We are operating by a form of remote control, an Act passed by the Parliament of Northern Ireland—the Electoral Law (Northern Ireland) Act 1962—which differs in many significant ways from the Representation of the People Act.

Is it proposed that in future the machinery of the Stormont Act should be continued to be used for elections to the Assembly and to local councils? Although paragraph 11 would obviously prevent the Assembly from modifying the Bill to take account of changing circumstances, is it also proposed that modifications to the Stormont Act should be made in this Parliament of the United Kingdom, whose thinking is geared to a very different Act, the Representation of the People Act? Would it have the expert knowledge to tackle in detail the changes and the ramifications of the Stormont Act?

It seems that the removal from the Assembly of powers over elections to the local councils is in many ways undesirable. The success or failure of the scheme of reorganisation of local government, which has nothing to do with any of the present controversy and nothing to do with the so-called reform programme which was set in train as far back as 1967, depends on the close working and interlocking of representation at various levels.

It will be difficult to give a convincing impression or demonstration of a unified structure if the machinery of elections is to be controlled from Westminster, from far off, with patchy results.


8.0 p.m.

The Minister of State for Northern Ireland (Mr. David Howell)

The amendment, as my hon. and gallant Friend the Member for Down, South (Captain Orr) has said, would have the effect—as would the other amendments that we have discussed relating to the schedule—of removing the matters to which reference was made—that is, in this case, matters governing elections and the franchise—from the excepted category and putting them into the reserved category. The proposals in the Bill are governed by the clear statement in paragraph 67(c) of the White Paper that ministerial responsibility for all matters consnected with elections or the franchise should be reserved to the Secretary of State. That is the quarrel that my hon. and gallant Friend is raising. He said that it was a matter of principle. It can he disputed, but that paragaph is the starting point of the Government's thinking. Our words in the White Paper were that The Government believes that as a matter of principle, Ministers should be answerable to Parliament for arrangements for central and local government elections in Northern Ireland as in other parts of the United Kingdom. The placing of elections and the franchise in the excepted category achieves precisely that result. Responsibility will rest inalienably with United Kingdom Ministers.

It could be argued that the placing of electoral matters in the excepted category goes against the principle of flexibility to which my right hon. Friend has referred throughout our deliberations and will invite inflexibility. It is true that if the Bill is passed only the United Kingdom Parliament can legislate and change the law on elections in Northern Ireland. Mitigation of the proposition is that under Clause 29 my right hon. Friend is empowered to make orders or provision is made for orders in council by Her Majesty to amend the law in relation to the Assembly. Clause 38 relates to local government elections.

It will not be necessary to ask this Parliament to pass a completely fresh Act each time an amendment is required to Northern Ireland electoral law. It is important to make the point that previous legislation governing the franchise in Northern Ireland——

Captain Orr

My hon. Friend is making an important point. He is saying, in effect, that Northern Ireland electoral law, as regards both the Assembly and local government, could be dealt with by order in council in the House, even if it were substantial. Is that right?

Mr. Howell

I appreciate the importance of this matter. We are on ground similar to that which we have already covered. If it were a minor matter of adjustment required for the good working of electoral operations in Northern Ireland it could be dealt with by Order in Council. If it were a major matter there would be unavoidable pressure on my right hon. Friend to deal with it in the proper way by a full Bill before the House. The system that I am describing would avoid the situation in which a minor matter would never be attended to because of the proposition that it would be too complicated to bring a Bill before the House.

Before my hon. and gallant Friend intervened I had mentioned former legislation governing elections in Northern Ireland. The Bill proposes no change in the substance of that legislation. Obviously, there will be changes in some of the details of that legislation. It is being taken out of the hands of the Assembly. My hon. and gallant Friend said that no one in Northern Ireland had had a say about the recent local government elections. If he meant that nobody in Northern Ireland had the power to make changes this way or that he would be right. That was implicit in the situation created by the Northern Ireland (Temporary Provisions) Act.

It would be wrong to say that no one had a say. I assure my hon. and gallant Friend that a wide range of people had a strong advisory say of a substantial kind in the making of the provisions and in the arrangements for the local government elections. The Advisory Commission was able to advise my right hon. Friend on this and other subjects. A glimpse of my right hon. Friend's almost daily schedule of taking advice and soundings on this and many other matters would make it impossible to say that no one in Northern Ireland had a say. On the contrary, it might be thought that practically everyone in Northern Ireland had had a say on how the arrangements should be worked out.

Less for those reasons than for the reasons set out in the White Paper, from which I quoted, I fear that I cannot meet my hon. and gallant Friend in his proposition. I understand the point that he advances on principle, but it conflicts with the principle laid down in the White Paper that Ministers should be answerable to this Parliament for central and local government elections. I must ask my hon. and gallant Friend to consider withdrawing the amendment.

Captain Orr

I am obliged to my hon. Friend for his careful reply. As he said, there is a point of principle between us, and I do not think that further debate will result in either of us being able to convince the other. When I said that the people of Northern Ireland had not had a say in the question whether they should have proportional representation I was using the phrase in the parliamentary and representative sense. They did not have a say except through their representatives in this House. They were not invited to have a say in their Parliament, because it was prorogued.

My hon. Friend mentioned the Advisory Commission, but that was a body nominated by the Secretary of State. It was not a body which had the confidence of the people of Northern Ireland, because they had not elected it to represent them. That is the sense in which I used the phrase that the people of Northern Ireland had not had a say. I am grateful to my lion. Friend for his careful reply, but the point of principle remains between us. Although I shall not withdraw my amendment it is possible that my hon. Friends may not feel it necessary to go into the Lobby on the question.

Amendment negatived.

Question proposed, That this schedule be the Second Schedule to the Bill.

Mr. McMaster

The items that have been included in the schedule leave me with the gravest anxiety about the effectiveness of the Executive that is to be set up in Northern Ireland. The matters included in the list to be dealt with by Westminster are so detailed and varied that they lead one to wonder whether it is intended to have proper devolution of power to Northern Ireland.

What is the intention of the Government in relation to the schedule? Where the matters contained in it require legislation, will it be done by order, as Northern Ireland matters have been dealt with in the past 16 months, or will there be Bills, which may be amended? If they are to be dealt with simply by orders that cannot be amended, the effect of the schedule will be to produce an unsatisfactory situation for the future Government of Northern Ireland.

Matters such as coinage, legal tender and bank notes, National Savings, nationality, immigration and aliens are all to be dealt with in the House of Commons. But nationality, immigration and aliens are of particular concern to Northern Ireland.

The border between Northern Ireland and the Republic of Ireland is the only land border between the United Kingdom and a foreign country. Persons from that country may seek to move into Northern Ireland in order to benefit from the better social security provisions, job opportunities and better wages. Such persons represent a threat to the North of Ireland in the situation that we all know to exist there. If these matters cannot be covered and dealt with by the Government of Northern Ireland, can they be properly dalt with here, at Westminster?

Another matter that causes me concern is paragraph 14 of Schedule 2. It sets out as being excepted, Special powers and other provisions for dealing with terrorism or subversion. But Schedule 3(21) states as being among the reserved matters—matters that may sometimes be transferred to the Executive— The Emergency Powers Act (Northern Ireland) 1926 or any enactment for similar purposes. Thus, paragraph 14 of this Schedule and paragraph 21 of Schedule 3 conflict. How would it be possible, in the future, to transfer the matters covered by paragraph 21 of Schedule 3 to the Executive in Northern Ireland while, under paragraph 14 of Schedule 2, special powers and other provisions for dealing with terrorism and subversion are reserved ad infinitum to Westminster? It is because of this and other matters to which I referred earlier that I have strong reservations about accepting the items listed in Schedule 2.

8.15 p.m.

Captain Orr

Before we part with the Schedule I want to underline what my hon. Friend the Member for Belfast, East (Mr. McMaster) has said about the nature and extent of these permanent reservations. I had intended to deal with the point about paragraph 14 that he raised. At first sight, I took the same view as he does—that there was a conflict between paragraph 14 of this Schedule and paragraph 21 of Schedule 3. It is a curious situation.

Paragraph 21 of Schedule 3 refers to: The Emergency Powers Act (Northern Ireland) 1926 or any enactment for similar purposes. There would have been a conflict here had it not been for the fact that the Northern Ireland (Emergency Provisions) Bill, with which we are dealing upstairs in Committee ad infinitum, repeals that section of the Emergency Powers Act (Northern Ireland) 1926 which deals with special powers. We are thus left without the conflict and with the position that special powers are permanently reserved. There is no conflict now between paragraph 14 of this Schedule and paragraph 21 of Schedule 3.

Mr. McMaster

I am obliged to my hon. and gallant Friend. I was unaware of that development. It has come as a surprise. One cannot see, therefore, the reason for paragraph 21 of Schedule 3.

Captain Orr

I imagine that the reason is that the Emergency Powers Act 1926, except for the section being repealed—if the Bill in Committee upstairs ever sees the statute book—deals not with special powers in the sense of the Special Powers Act but with the ability that formerly rested upon the Government of Northern Ireland to deal with an emergency in the sense of, for example, an electricity strike or a declaration of emergency, as we understand it in the House of Commons. It is a slightly different power. However, the Act did have a section dealing with special powers and if the Bill upstairs succeeds that section will disappear.

I do not know that I have anything particular to add or to ask, except, of course, that once again we say that, in a sense, this Schedule is a considerable derogation from the extent of the devolution that the old Stormont Parliament had. The only exception is paragraph 3. The 1920 Act fully reserved all matters dealing with international relations. We made our view plain when dealing with Clause 12 in relation to the EEC and the Republic of Ireland, and I do not think it necessary to express that view in the Division Lobby again, now.

The Under-Secretary of State for Northern Ireland (Mr. Peter Mills)

In considering Schedule 2, one has to look at the Bill as a whole, because its framework is based on a definition of those matters which are excepted and which will always be for this Parliament. In addition, we have reserved matters and transferred matters. Schedule 2 lists the excepted matters, the responsibility for which can never be devolved upon the Northern Ireland institutions, and on which, by virtue of Clause 5, the Assembly may never pass legislation. The matters listed in Schedule 2 are all of national importance which can only he dealt with on the basis of the United Kingdom as a whole.

If one looks back to the Northern Ireland institutions under the Government of Ireland Act 1920, Section 4 of that Act, as the House well knows, contains a lengthy list of matters on which the Parliament of Northern Ireland has no authority to legislate. There are other provisions in that Act which take certain matters outside the competence of the Northern Ireland institutions. We have preserved this framework in the Bill now before the House, and the list in Schedule 2 sets out the matters within the excepted category.

My hon. Friends have raised one or two important points. I was very sorry that my hon. Friend the Member for Belfast, East (Mr. McMaster) talked about having the gravest anxieties. I hope he was exaggerating a little. I do not think he need have that anxiety, and I am sorry he had to say that, for eventually the Assembly will have great power. What is in this schedule has not altered that very much.

My hon. Friend raised a point about matters to be dealt with in the schedule when they come to this House. Westminster will legislate in the normal way by introducing a Bill if it is to deal with excepted matters, so obviously there will be the proper amount of time to deal with those matters in the normal way.

Then my hon. Friend raised the question—my hon. and gallant Friend the Member for Down, South (Captain Orr) did so as well—of the seeming clash between Schedule 2(14) and Schedule 3(21). I do not think they clash at all. Schedule 2 deals with the Special Powers Act.

Captain Orr

I said they did not.

Mr. Mills

I apologise to my hon. and gallant Friend. As I say, there is no clash really because Schedule 2 deals with the Special Powers Act and paragraph 21 in Schedule 3 deals with civil emergencies, such as floods and strikes. I think that clears up two or three of the points that were made.

With any list one can argue whether certain matters should be in or out. It is a question of judgment, and the Government have judged it in this way. I believe we have struck the right balance between Schedule 2 and Schedule 3, and, therefore, I commend the schedule to the House.

Mr. Biggs-Davison

My hon. Friend spoke of excepted matters as matters which would never be the subject of delegation to Northern Ireland institutions. A great statesman once said that "never" is a word that should never be used in politics. I presume my hon. Friend meant that they would never be transferred without further legislation.

Question put and agreed to.

Schedule 2 agreed to.

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