HC Deb 06 March 1978 vol 945 cc1150-60

12.16 a.m.

The Minister of State, Northern Ireland Office (Mr. J. D. Concannon)

I beg to move, That the draft Rehabilitation of Offenders (Northern Ireland) Order 1978, which was laid before this House on 7th February, be approved. This order will extend to Northern Ireland provisions similar to those of the Rehabilitation of Offenders Act 1974 which have applied in Great Britain since 1st July 1975. The main purpose of the order is to enable people who have been convicted of relatively minor offences, and who have not been reconvicted for a specified period of time, to overcome the damaging effects of their criminal records and have their slates cleared.

The order will not provide for rehabilitation from serious offences of the kind committed by terrorists, and I have no doubt that the length of time which must elapse for a conviction to become "spent", together with the exceptions provided to ensure that the full record can be made available in cases of special risk or where the needs of justice require it, will ensure adequate safeguards.

As I have said, the order does no more than extend to Northern Ireland the provisions of similar legislation which is already in the rest of the United Kingdom. I have no doubt that this significant measure of law reform will be welcomed in Northern Ireland also.

12.17 a.m.

Mr. John Biggs-Davison (Epping Forest)

The Minister of State explained that the order was designed to bring the legislation of Northern Ireland into line with that now prevailing on this side of the water and that he expected it to be welcomed in the Province.

The right hon. Gentleman will recall that in 1974 the Conservative Party was not wildly enthusiastic about, although it did not endeavour to resist, the legislation. In particular, doubts were raised about the exceptions—that is, the categories of person who would have to declare past convictions when applying for employment. Some of my right hon. and hon. Friends did not feel that there was a clear logical principle. For example, I understand that doctors and midwives have to declare past convictions, but architects do not. I can see that in this example there are differences. There may be more compelling reasons for disclosure in the first category than in the second. Will the Minister tell us something about the criteria for the categorisation?

12.19 a.m.

Mr. J. Enoch Powell (Down, South)

The Minister of State said that the order purports to reproduce in Northern Ireland the effect of the Rehabilitation of Offenders Act 1974 in Great Britain. It was therefore incumbent upon us to compare the order and the Act with some jealousy. I shall not absolutely guarantee that I have detected every difference between the two, but I have detected, if I might allow myself to say it, one dirty trick which has been, perpetrated in the course of the transmutation of the 1974 Act into Northern Ireland terms.

I invite the Minister to look at the last article, article 11. This provides for the negative procedure to apply to orders made under this order by the Secretary of State. Such orders would, for example, be those referred to in article 6, paragraph (13). If one looks at article 6, paragraph (13), one finds that it is a quite formidable power which the Secretary of State is exercising—to substitute different periods or terms for any of the effective periods or terms or different ages for the effective age.

This order, which really rewrites the law, is a major piece of subordinate legislation. Would you believe it, Mr. Deputy Speaker, that in the Great Britain Act these orders are subject to the affirmative procedure? I think that that is something worthy of being described as a dirty trick.

We are all familiar with the fact that when we read statutory rules and orders—that is to say, instruments which would have been Statutory Instruments if they had been made by a non-existent legislature in Northern Ireland—the affirmative procedure means negative procedure and the negative procedure means no procedure at all. We are hardened to this. The mere repetition and iteration of it has rendered us more or less insensitive to the outrageous form of legislation by order under the 1974 Act.

But this is not a Northern Ireland order in that sense. It is a United Kingdom Statutory Instrument and it will have a United Kingdom serial number with "NI" and the Northern Ireland serial number in brackets after it. This is a United Kingdom order on all fours with the United Kingdom Act of 1974 applying to Great Britain.

It is monstrous that, under the cover of providing the same rehabilitation in Great Britain and in Northern Ireland, we give the Secretary of State in Great Britain the power subject to affirmative resolution and that we give the Secretary of State that same power in Northern Ireland subject only to negative resolution. I cannot think that there can possibly be any grounds of convenience or administration that could justify that distinction.

I know perfectly well what happened. When they came, in drafting the order, to the section of the 1974 Act which made the orders—very important orders—subject to affirmative procedure, they said to themselves "Let us knock it out. We are only dealing with Northern Ireland. They are lucky even to get a negative procedure, so we shall take the opportunity of shifting the affirmative procedure out, at any rate for the rehabilitation procedure". For the third time, I say that that is a dirty trick. The mere fact that we have a draft order in front of us really does not justify the Government in getting away with it.

I am prepared to exonerate the Minister of State. I am absolutely certain that in the brief with which his advisers supplied him they did not inform him that the opportunity had been taken for this prestidigitation and substituting of a negative for an affirmative procedure. They allowed him to go to the Box in all innocence and inform the House what he no doubt believed to be true: that the order reproduced the provisions of the 1974 Act in Great Britain. No doubt he now regards the truth as being as outrageous as it appears to me.

We are in a well-known difficulty in dealing with draft orders. If we were in Committee, I am certain that there would be an undertaking to put the matter right on Report. I have no doubt about that, because this is indefensible. Now we want to alter this provision, but we are faced with an order which cannot be amended. Moral one—a retrospective one in this case but a general moral—is that in future where new concepts are to be introduced into the law, such as the rehabilitation of offenders, which was introduced in Great Britain in the 1974 Act, those concepts should be introduced to Northern Ireland by the main legislation at the same time as they are introduced to the rest of the United Kingdom.

If the 1974 Rehabilitation of Offenders Bill, as it then was, had contained a clause saying that orders applying to Great Britain would be subject to affirmative procedure but orders applying to Northern Ireland would be subject to the negative procedure, it would not have got through. Even if the draftsman, greatly daring, had attempted to introduce it, we may be sure that it would have been dealt with in Committee.

The basic lesson of this outrage—and it is an outrage—is that wherever possible we should legislate by United Kingdom Bill for Northern Ireland and do it in the proper way. The Government should know by now, by experience, that there is no disposition on the part of my hon. Friends and myself, to use legislative procedures for any purpose other than improving the law. That is an exercise in retrospection, of fond regret.

In the case of this order, we do not have the resource that was available to the Minister in dealing with the last order. I congratulate him on his deftness in devising this escape for us. He said that there would be more legislation on the subject coming along; if there was any thing wrong with the order, he would study it and such matters could be taken into account when the next bite was taken at modernising property law in Northern Ireland. We cannot do that here—

Mr. James Molyneaux (Antrim, South)

Can we not provide the right hon. Gentleman with a similar escape hatch? As I understand it, the Children and Young Persons Act is in need of some reform. Perhaps the right hon. Gentleman could undertake to carry out a similar operation with respect to that legislation.

Mr. Powell

Governments and Parliaments can do almost anything they want. No doubt the right hon. Gentleman is as shocked by this discovery as we are. He never authorised this departure from the principle of the 1974 Act. There should be no need to go through the whole business of making new proposals. But he could perfectly well re-present this draft with the dirty trick taken out of the tail of it in article 11.

I am asking a great deal of the right hon. Gentleman. I am asking him to take his whole political career in his hands. Before now there have been cases where a junior Minister, if he will forgive me for putting him in that category, has earned a peerage by accepting an amendment or agreeing to a suggestion from the Opposition without authorisation from higher authority. There was the remarkable example of the Financial Secretary to the Treasury who made a concession on the petrol duty on cigarette lighters in the Finance Act 1929 without permission from the then Chancellor of the Exchequer. Many hon. Members, like myself, are friends and admirers of the second baron—that is to say, the heir to the barony which was created as a result of that decision.

I do not want the right hon. Gentleman, who is so much esteemed in Northern Ireland, to worry. If there were any threat of reprisals being taken against him, Trelawney's men would be as nothing compared with the Ulstermen who would form up in serried ranks around him to protect him against any action which might be taken. My appeal to him, with all that encouragement—I shall give him a little time to think about it by drawing attention to one or two other parts of the order—is to do the straightforward, honest thing. A mistake has been made. Something has been slipped in under his nose without his knowing it. Let him withdraw the order and bring it back in an honest way.

There are two other points. The first relates to the application of rehabilitation to members of the Services. This occurs in article 4, and I refer particularly to article 4(5). Article 4(5) is a very choice example of how we are legislated for in Northern Ireland. The 1974 Act included two provisions—the provisions which are there quoted—with reference to Northern Ireland. Indeed, those two references were the only parts of the 1974 Act which extended to Northern Ireland, but those two provisions of the 1974 Act have not yet been brought into force by the Home Secretary. The Home Secretary has sat back patienitly year after year from 1974 onwards, his pen poised over the order bringing those provisions set out in article 4(5) into effect, until we could pass this order which would add the words or of the Rehabilitation of Offenders (Northern Ireland) Order 1978 ". When this order—I trust, amended with a new article 11—receives the Royal approval, then and only then will the two provisions of the 1974 Act which extended to Northern Ireland be brought into effect by order of the English Home Secretary.

It really is rather fun the way in which we manage to legislate for Northern Ireland by first pretending that Northern Ireland is something quite separate to be dealt with differently, then by deciding that the law shall be the same in Great Britain and Northern Ireland, and then by bringing in this sort of contorted legislation to produce that result in the most unsatisfactory manner possible.

I come now to my last point, which is in the nature of a conundrum. The conundrum is to be found in article 7, paragraph (6). This deals with what I may for short describe as subsequent convictions and the effect which subsequent convictions are to have upon the rehabilitation process. They tend, on the whole, to delay the rehabilitation process.

Those convictions are in the Great Britain Act limited in the same way as is specified here in respect of Northern Ireland in article 7(6). I draw attention to sub-paragraph (b): there shall be disregarded… (b) any conviction by or before a court outside Northern Ireland of an offence"— and then follow these words— in respect of conduct which, if it had taken place in Northern Ireland, would not have constituted an offence under the law in force in Northern Ireland. There is a corresponding provision in the Great Britain Act, but that says would not have constituted an offence under the law in force in Great Britain. Let us draw back from this picture for a moment and contemplate the broad position. The broad position applies rehabilitation to convictions by or before a court, including a court outside Great Britain or outside Northern Ireland, as the case may be. I am looking at article 2(3). But in the case of second convictions—posthumous convictions, as it were—an exception is made of convictions in respect of conduct which is not an offence under the law of Great Britain or Northern Ireland, as the case may be.

I want to know about the cases where the law in Northern Ireland and the law in Great Britain do not move pari passu.Are we not to have the extraordinary position under the Great Britain Act that a conviction for an offence in Great Britain, a secondary conviction, would not be taken into account whereas a secondary conviction in Northern Ireland for that offence would be taken into account? That is the more anomalous since the procedure itself takes no account of whether the conviction is secured in the country concerned or somewhere else.

I could have understood if the basis of rehabilitation were conviction in that part of the kingdom to which the legislation applied. I could understand then that one said that one would ignore convictions for offences which were not offences under the law of that part of the United Kingdom. But that is not what we are doing. We say that the original offences for the original rehabilitation procedure can be offences of which a person is convicted in a court anywhere, but then we say in the secondary procedure that they must be offences which are not offences under the law of the particular part of the United Kingdom.

In short, I think that we have got ourselves tripped up with the attempt to legislate for the United Kingdom in two parts by a sort of penny-farthing method, the big wheel being the Act of Parliament and the little wheel being the Northern Ireland order. This crossing over, this chiasmus, of the provisions for the subsequent convictions is an illustration yet again of the difficulties into which we have got ourselves.

Again, the moral is, wherever possible in the future, please let us legislate by the proper legislative process. Let us legislate for the whole of the United Kingdom, if that is our intention, since the whole of the United Kingdom is represented in the House, and, if the underlying law of different parts of the United Kingdom is different, as it sometimes is in Wales or Scotland, let us have application clauses or definition clauses which would do the job without difficulty.

12.41 a.m.

Rev. Ian Paisley (Antrim, North)

The people of Northern Ireland will be greatly indebted to the right hon. Member for Down, South (Mr. Powell) for pointing out this dirty trick—one of many dirty tricks which have been played on the people of Northern Ireland. Subordinate legislation is important, because more and more the lives of the people of Northern Ireland are ruled by such legislation, coming from a civil servant drawing up an order with clauses giving a Minister total power.

If a subordinate order gives the right to substitute different periods or terms for those mentioned in the order, if by subordinate order, not subject to affirmative resolution, a different age is to be substituted, the order will be made into something quite different from what anyone would have thought from a first reading.

The Minister should take the order back and at least give us the same treatment. We are always told that we are under benevolent direct rule, with all the privileges of the United Kingdom. So let us have this privilege. Ministers should remember the words of the right hon. Member for Down, South, which have been spoken many times from this Bench: legislation should be for the whole United Kingdom, brought in by means of a Bill in the normal legislative process.

If the law is different in various parts of the United Kingdom, surely Northern Ireland can be treated like any other part. Whether or not the Minister is afraid of being buried in another place, he should be prepared, like the good Socialist he professes to be, to forget about it and say that the people of Northern Ireland should have the same rights as those in every other part of the United Kingdom.

12.44 a.m.

Mr. Concannon

I have never minded being twitted, but the right hon. Member for Down, South (Mr. Powell) knows that the order is a standard order under the 1974 Act. The exemptions order, like all other Northern Ireland subordinate legislation, will be negative resolution. I hate to disappoint him, but there is no dirty trick or sleight of hand.

This is not the time to review the constitutional arrangements for Northern Ireland legislation. The right hon. Gentleman has certainly made his point, however, and I should like to see the day when legislation is made for the United Kingdom as a whole. But while we have the 1974 Act this is the only way in which we can pursue the orders.

Mr. Powell

I am being entirely serious. Is the Minister really saying that it would not have been possible in the terms of the order for article 11 to import an affirmative order? That surely is an impossible statement. The 1974 Act cannot oblige these Statutory Instruments to contain only the negative procedure. Otherwise, we would not need to have article 11 in the order at all. With great respect, I cannot believe that article 11 could not, if it had been so desired, have provided an affirmative procedure.

Mr. Concannon

This is one of the standard ways in which we have been proceeding. If that is not so, I shall have to take responsibility. I would not pass the responsibility to anyone else in my Department, but I am led to believe that that is the procedure. This is the standard order made under the Act. There is no sleight of hand. There is no dirty tricks brigade. Nothing is further from my mind.

Mr. Biggs-Davison

Is the Minister saying that in all the other parity legislation where the Great Britain legislation has provided for the affirmative procedure the negative procedure has been inserted in the case of Northern Ireland? If so, we are trebly indebted to the right hon. Member for Down, South (Mr. Powell) for his vigilance on this occasion, because it seems that Parliament has been led up a very dark avenue.

Mr. Powell

It surely cannot be intended by the House that in the same legislation, which will hereafter be the same in all parts of the United Kingdom, the application in Great Britain should be by affirmative procedure and in Northern Ireland by negative procedure.

Rev. Ian Paisley

Article 11 says: Orders made under this Order by the Secretary of State except an order made under Article 1. Is the Minister saying that an order made under article I must have an affirmative resolution, or is it coming in without any resolution, whereas a negative resolution must be made on any order made under this order? Surely the Minister knows that this order can be made subject to affirmative resolution.

Mr. Concannon

We are applying to this order the normal practice that we have applied under the 1974 Act. So far as I am aware, there is no compulsion so to legislate, but I cannot speak of every order.

If the House wants to make heavy weather of this matter, it can. I certainly shall not argue about it at 10 minutes to one o'clock in the morning. I shall seek to withdraw the order and let it come before the House again when we have sorted the matter out.

I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.