NORTHERN IRELAND

HC Deb 23 May 1978 vol 950 cc1419-31

Mr. Powell

I beg to move Amendment No. 18, in page 4, line 37, leave out subsection (1).

Mr. Deputy Speaker

With this we may take the following amendments: No. 22, in Clause 6, page 5, line 28, leave out from second 'Act' to 'but' in line 29, and No. 23, in page 5, line 29, leave out 'subject to' and insert 'except for'.

Mr. Powell

The two amendments which you, Mr. Deputy Speaker, mentioned are as consequential as the assistance of the Public Bill Office can make them. It would be an understatement to describe these amendments, in the time-honoured phrase, as probing amendments.

This clause applies, or extends, the Bill to Northern Ireland. My hon. Friends and I desire to see the provisions of the Bill extended to Northern Ireland, as, indeed, we desire to see United Kingdom legislation generally embrace Northern Ireland within its scope. But the form of Clause 4 is, I believe, novel and raises questions of constitutional importance. This Report stage is perhaps the appropriate time to record matters which are of interest not only to Northern Ireland, although they especially affect Northern Ireland, but also to the House as a whole, concerned, as it is, with the quality and propriety of the legislation which we pass.

There has been correspondence, extending over the last month, between the Under-Secretary of State—whom I am grateful to see in his place to deal with this amendment—and myself. I acknowledge the great care and detail of that correspondence. Not all the correspondence which emanates from Government offices is of the highest quality; but certainly that which comes from the Northern Ireland Office dealing with legislative and constitutional matters of this kind is of high competence. In fact, our exchange of letters on the subject during the last month might, if published, form a nice little State paper.

7.30 p.m.

I hasten to put you, Mr. Deputy Speaker, out of any anxiety that I might be about to attempt to read that correspondence into the record, though I shall quote one or two sentences from it.

Mr. Deputy Speaker

Order. I always enjoy the elecution of the right hon. Member for Down, South (Mr. Powell).

Mr. Powell

I am grateful to you, Mr. Deputy Speaker. Unworthy as I am of that compliment, I appreciate that enjoyment is tempered by quantity and proportion and that if my remarks are in moderation the enjoyment which you derive from them may be all the greater for that. I shall endeavour to make the difficult constitutional points which I have to make as briefly as possible.

The House will be aware that in effect since 1972, with a brief interlude, there has been power on the part of the Secretary of State for Northern Ireland to legislate in Northern Ireland—albeit a part of the United Kingdom—by Order in Council. This is naturally a feature which has been unpopular in Northern Ireland, and has attracted such descriptions as "colonial rule". Experience of it has not led those of us who represent Northern Ireland constituencies to conclude that there can be any proper substitute for legislation by Bill. If legislation could have been adequately and properly enacted by Order in Council, the House of Commons and successive Governments would have discovered it long ago. However, we acknowledge that this is a transitional—though it may be a long transitional—phase and that much of the legislation for Northern Ireland for some time to come may need to be by Order in Council under the Northern Ireland Act 1974, which will fall to be renewed in a few weeks.

There are severe deficiencies in such a procedure. It means that hon. Members, not only those representing Northern Ireland, cannot bring their influence to bear at successive stages of the formulation of legislation as they can do in the course of procedure by Bill. We acknowledge that the Government, in a series of new procedures, have modified as far as may be humanly possible the stringency of legislation by Order in Council, and we make use of those procedures to the full. But there remain grave deficiencies which are inherent in legislation by Order in Council.

There are three classes of case in which that form of legislation may be used for Northern Ireland—though it does not have to be used. One is the application to Northern Ireland of law which already exists in Great Britain. A good many of the Orders in Council which will be appearing before the House in the next few weeks—perhaps at a later hour than this—are doing exactly that. They are extending—many of us would say belatedly—to Northern Ireland measures which the House has passed applying to Great Britain. That is perhaps the most natural sphere in which in present circumstances it is legitimate and unavoidable to use the procedure by Order in Council.

The second sphere is where new legislation is made which applies only to Northern Ireland. In that sphere there are cases—I refer, for example, to the Fair Employment (Northern Ireland) Act 1976—in which procedure by Bill has been found to be appropriate; and my hon. Friends and I would say that whenever possible, where new legislation is being made, even though applying only to Northern Ireland, it would be most proper and effective to carry it through Parliament by Bill. We have more than once indicated that in sum the time that would be required by the House and by hon. Members might well be not longer by that method than by Order in Council.

The third sphere is that with which we are concerned in this application clause. It is where new Great Britain law is to be applied, virtually as it will stand, to Northern Ireland. Here I come to the substance of the matter—the question by what method legislation which in the view of the Government and the House is to apply virtually without differentiation to the United Kingdom as a whole ought to be extended to Northern Ireland. One method—the obvious one—is that there should be a United Kingdom Bill which applies to the whole of the United Kingdom. There are many examples of that, from the Fishery Limits Act 1976 to the annual Finance Bills, which of course apply to Northern Ireland with little or no specific application to that Province.

Sometimes, however, United Kingdom Bills need to be extended, as to Scotland so to Northern Ireland, by application clauses. There is an example of this at the moment going through its stages in the House, namely, the Deer Bill, promoted by the hon. Member for Harborough (Mr. Farr), which contains a Northern Ireland application clause.

It is true that that Northern Ireland application clause, which was drafted by skilful and, I would suspect, Ulster draftsmen, occupies a page and a half of a Bill of 14 pages. But, then, we cannot judge the time of the House by the quantity of lines or pages of a Bill. I think it would be generally admitted that application clauses of this kind in United Kingdom Bills, though they receive the scrutiny of Members coming from the particular part of the kingdom, go through with very little difficulty and add very little to the legislative burden of the House. The strong preference of my hon. Friends and myself, wherever possible, is for United Kingdom Bills with an application clause of that kind extending them to Northern Ireland as they stand.

I acknowledge and put on record with gratitude the explicit assertion of the Under-Secretary of State on behalf of the Government in the letter which he wrote to me dated only today. He is referring to the Deer Bill, which I have quoted, and he says: In this Bill and in a number of Acts primary legislation is extended to Northern Ireland without the use of Orders in Council. We shall continue to use this method whenever it appears to be practicable and desirable. That is a gratifying statement of policy for hon. Members on this Bench, and we do not doubt but that it will be applied in the spirit as well as in the letter by the Government as new United Kingdom legislation comes forward. In other words, wherever there is to be new United Kingdom legislation, the question will be asked whether it can be extended to Northern Ireland by an application clause appearing upon the face of it; and the onus of proof will be on those who would argue that it cannot be so extended.

However, the Government maintain—this brings me to the clause to which the amendments relate—that in some cases the application of United Kingdom legislation to Northern Ireland would be so cumbrous or complicated that it could not be brought conveniently within the scope of one or more application clauses. While one would take that assertion on trust, I must say that it has not been easy for my right hon. and hon. Friends and myself to see quite what these immense complications can be which would defeat the attempts of the draftsman to draw up two, or three if need be, application clauses for insertion in a United Kingdom Bill.

Nevertheless, I am prepared to accept the statement of the Minister that there are cases where application clauses in a United Kingdom Bill itself would be intolerably and unacceptably clumsy. That being so, the question arises how those Bills should be applied.

One method would be to pass the Bills as Great Britain Bills and then bring in an Order in Council under the 1974 Act re-enacting them, as it were, for Northern Ireland. There have been many examples of that. My right hon. and hon. Friends and I do not regard it as the method of choice and we are grateful to the Government for having attempted to find some means of avoiding that procedure, of which the vice is that hon. Members representing Northern Ireland constituencies are, as it were, strangers in this Chamber while the Great Britain Bill is going forward—it is not natural for us to take part in the Second Reading debate, and we would not normally be put on to the Committee—yet when that Bill is put on the statute book it becomes a virtually unchangeable model for the application to Northern Ireland of new legislation which we have not had the opportunity to debate either in principle or in detail.

Therefore, the Government have sought to insert into a United Kingdom Bill a clause—that is, Clause 4, which by virtue of these amendments we are able to discuss—which shows upon the face of the Bill that it will be applied to Northern Ireland virtually without change but enables that application to be made by Order in Council.

So far, so good. We acknowledge that that is a great improvement upon separate re-enactment for Northern Ireland by separate Order in Council. We accept that this method gives us the advantage that we are, so to speak, enfranchised from the First Reading of the Bill. The Bill is to be just as much Northern Ireland legislation as Great Britain legislation and it will be our own fault if we do not choose to attend to it at all its stages from Second Reading onwards. That is the good side of the clause before the House; but there is attached to it a difficulty which is both technical and constitutional.

You will see, Mr. Deputy Speaker, as you study the clause, that its effect is to amend, ad hoc, the Northern Ireland Act 1974 so as to provide that Orders in Council made under this enabling clause shall be subject not to the affirmative procedure but only to the negative procedure. I would agree, and so would my right hon. and hon. Friends, if there is an order which is simply implementing for Northern Ireland, without effective change, legislation which this House has passed in the knowledge that it was to apply to Northern Ireland and with full opportunity for Northern Ireland Members to take part in the proceedings, that in most cases the negative procedure would be appropriate for that subordinate legislation. We would concede that. We do not quarrel with the proposition of the Government that, if we are making a carbon copy for Northern Ireland, there is no need for the carbon copy to go through the affirmative procedure.

7.45 p.m.

Our difficulty is that the Order in Council procedure, the emergency procedure whereby law can be made by a Secretary of State for a part of the United Kingdom, does at any rate carry the safeguard, never hitherto breached, that everything done under that power must come to this House, because an affirmative procedure is required. So at least we have the safeguard under those temporary provisions that we are legislated for, however cursorily, by both Houses of Parliament. Hence our dilemma: while we concede that, in the circumstances of making a carbon copy, the negative procedure would be fully appropriate, we are extremely reluctant to concede that the safeguards of the 1974 Act should be eroded. One case may follow another; and there are no fewer than three Bills at various stages at the moment which contain this clause eroding that safeguard in the 1974 Act.

The Government have not so far been able to find a solution to this dilemma. We have put forward to them the suggestion that, if they think the application so complicated that it cannot be done in a Bill, they should do it by Statutory Instrument—not by Statutory Instrument under the 1974 Act, thus involving the erosion of the protection, but by Statutory Instrument under the Bill itself. That is the proposition which we have urged upon the Government. They have found so far that there are two difficulties.

I will read the relevant sentences from the letters written by the Under-Secretary. He first says that such subordinate legislation could not without appropriate provision being made … amend existing Northern Ireland legislation, nor could it authorise the making of subordinate legislation. Again, in his letter of today's date the Under-Secretary said that Orders in Council provided a method of legislation which "had the attributes of primary legislation".

This is a matter which I believe needs to be carried forward, and I am sure that with the good will of the Northern Ireland Office it can be carried forward, in further study; for it is a paradoxical statement to say that this House cannot enact a Bill under which Statutory Instruments can be made which make provision for subordinate legislation—there are plenty of those—or which make provision for legislation which is of primary character. There does not seem to us to be anything peculiar to the situation of Northern Ireland which renders it impossible for a Statutory Instrument made under a United Kingdom Bill to be the vehicle for carbon-copying the Bill in terms applicable to Northern Ireland.

That is the crux which, for us, lies at the heart of this new device in its present form. We are reassured by the undertaking which the Government have given in these terms from the Under-Secretary. He writes: if you think that it would help for Northern Ireland Members of Parliament to be consulted before a Bill using this procedure"— that is, the procedure of Clause 4— is introduced, we will do our best to arrange this. We are most grateful for that offer and would be glad to be taken into consultation at whatever stage is convenient to the Government where it is felt that a clause of this nature is the most appropriate method of application; but we would like to continue the search for a more convenient method of application to Northern Ireland and one which does not involve the very real constitutional problem of whittling away ad hoc, Bill by Bill, the fundamental safeguard which was provided in 1974 by the Northern Ireland Act.

Undoubtedly, this clause marks a progress for Northern Ireland. It marks progress away from the rigid position first introduced in 1972 towards the position to which we aspire, when legislation for that part of the kingdom will be like legislation for any other part of the kingdom, taking account of its circustances and the differences of its earlier law but nevertheless going through the House and being made by Parliament in the normal way. We recognise that the havoc which was done in 1972—I am glad to think that I was in my place to vote against it—will not be easily undone. The difficulties that we are facing this afternoon arise from the fact that what was done in 1972 was done without thought and without regard to the consequences. As often happens, those consequences, easily incurred, have to be put right painfully and over a long period of time.

However, we are making progress in this Bill and in other Bills which contain this clause, and we believe that we have to go further in the same direction, and that in doing so we have the good will of the Government, as well as the collaboration of the Under-Secretary and his colleagues. That is why we thought that it would be wrong for a matter of such substantial constitutional importance to pass without being noted on the Floor of the House, or without the implications of it being placed briefly upon the record.

The Under-Secretary of State for Northern Ireland (Mr. Ray Carter)

In moving the amendment the right hon. Member for Down, South (Mr. Powell) raises a question of the means of legislating for Northern Ireland during direct rule. It is therefore appropriate for me to reply.

I shall explain first why the Government have chosen to apply the provisions of this Bill to Northern Ireland by the procedure set out in Clause 4. Northern Ireland legislation is normally made by an Order in Council under the Northern Ireland Act 1974, subject to affirmative resolution in this House. This method is not ideal. But until Northern Ireland again has a devolved Assembly it will normally be the only practicable method of enacting primary legislation for Northern Ireland, and this was recognised by Parliament when the Northern Ireland Act was approved in 1974.

At times these Orders in Council have reproduced provisions already in force in Great Britain, the only difference being technical amendments to take account of differences between existing Northern Ireland and Great Britain legislation and of different legislative conventions. In circumstances such as these in future, we hope to use a different procedure. When we can foresee that the provisions to be applied to Northern Ireland will strictly correspond to those being applied by Bill to Great Britain, with the need only for technical adaptation, we will do what we are doing in Clause 4.

We will show on the face of the Bill that the provisions will apply to Northern Ireland, thus facilitating the participation of Northern Ireland Members in the debate on the provisions at the same time and in the same way as those representing Great Britain constituencies, and we shall enable those provisions to be applied to Northern Ireland in the normal way that primary legislation is enacted for Northern Ireland by way of Order in Council under the Northern Ireland Act 1974. However since the provisions will have been fully approved during the Bill's passage, only negative procedure will be required for the Order in Council rather than the usual affirmative procedure.

I understand that the right hon. Member for Down, South and his colleagues do not object to the provisions of this Bill being applied to Northern Ireland by Order in Council. Nor do they object to these Orders in Council being subject to negative procedure as such when, as in this case, they can contain only those provisions which correspond to those in a Bill which has declared that its provisions will be applied to Northern Ireland. There is therefore a good deal of common ground between us.

What the right hon. Member objects to is the fact that this result is achieved by reference to the provisions of the Northern Ireland Act 1974. He argues that the constitutional safeguards contained in that Act are weakened by allowing an Order in Council in this one case to be made subject to negative procedure, when the Act normally demands affimative procedure. He believes that it would be preferable for the Order in Council to be made under the authority of this home purchase Bill. He sees this issue as one of constitutional significance.

There is good reason why the Government chose to draft the clause in the way they did. The Order in Council, applying the provisions of the home purchase Bill to Northern Ireland, must have some of the attributes normally reserved for primary legislation. It must authorise the making of subordinate legislation and must amend existing legislation. It is true that the home purchase Bill could be drafted in such a way as to give an Order in Council made under it all the necessary attributes. But the resulting clauses would greatly lengthen and complicate the Bill. It is far simpler for the Order in Council to be made under the Northern Ireland Act 1974, which is the normal way of enacting primary legislation for Northern Ireland. All Orders in Council under this Act have the force and effect of primary legislation. Our method is a far more economical way of achieving the desired result than that proposed by the right hon. Member.

Nor do I accept that constitutional safeguards are weakened. Only one Order in Council under the Northern Ireland Act, subject to negative procedure, can be made as a result of this home purchase Bill, and that must correspond strictly to the Bill. By approving Clause 4 unamended, this House will not be reducing any constitutional safeguards. It will simply be saying, in effect, that it has approved the provisions of this Bill for Great Britain, and there is no reason for a further debate before corresponding provisions are applied to Northern Ireland.

Mr. Powell

I make no complaint that the Under-Secretary has restated briefly and clearly the Government's position. I would only say that since our objectives considerably overlap there is every reason why our search for even more convincing methods should continue. Since the purpose of this amendment was to record the point that has been reached, I would say, in the famous words of the BBC, "The debate continues." I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, That the Bill be now read the Third time.

7.58 p.m.

Mr. Douglas-Mann

As I gave a qualified welcome to the Bill on Second Reading, and as I have come to the conclusion, during the course of the Committee stage, that it is a Bill that we shall regret, it is right for me to make a brief statement indicating my reasons for reaching that conclusion.

The measures provides for the expenditure of £100 million of public money each year—certainly for the first five years of its operation. That £100 million will come from other housing expenditure—from money which could be applied more directly to relieve housing need. It could be used for improvement, for municipalisation, for new housing construction, or for local authority lending. It means that there will be £100 million less for other sections of the housing programme. We must ask ourselves whether it is £100 million that will be spent effectively and desirably.

I accept that there will be some benefits from the Bill, but I fear that the damage that it will do will outweigh the benefits. It must be borne in mind that only one of every five first-time purchasers is buying a new house. That means that four-fifths of the money must necessarily go to increase the capacity of those who are buying existing houses to pay more for them. That is an inevitable and inexorable consequence of the additional demand that the Bill must generate.

As the Minister acknowledged, only about 40 per cent. of the beneficiaries under the Bill would not have been able to buy anyway. Consequently, 60 per cent. of the beneficiaries will be those who would have purchased anyway. Inevitably, a substantially greater part of the money that is to be spent will go towards the inflation of house prices.

I accept that there will be some benefit. There will be some who would not have been able to buy who will be helped into house purchase as a consequence of the Bill. There will be some stimulus of demand for new houses. However, the principal cause of an increase in the price of property must be the generation of additional demand, and additional demand must come primarily from new house purchasers coming into the market.

I fear that the benefits that are likely to arise from the Bill will be much less than the disadvantages. I should welcome the Bill if we had been able to amend it to ensure that it would operate in a more discriminatory fashion at the bottom end of the market. I appreciate that there were administrative difficulties in our so amending it. However, I do not believe that they would have been in any way insuperable. As a consequence of the Bill's being unamended, we have a measure that is bound to result in some stimulus and an addition of about £60 million a year to the price of houses. For that reason I feel that the Bill is one that we shall view with regret.

I would take that view to an even greater extent should it come about that the Conservative Party was ever in a position to exercise the powers within the Bill. The hon. Member for Hornsey (Mr. Rossi) indicated in Committee that he relishes the powers that would be given to a Conservative housing Minister. If we are to have one, I would rather it was the hon. Gentleman, but I fear that even he would prove incapable of withstanding the pressures that would be exerted upon him by his leader to abuse the powers that exist under Clause 1(6). By means of that subsection he could alter any of the sums specified. He could substitute longer or shorter periods and generally relax the conditions.

I fear that it would be the intention of a Conservative housing Minister to turn the Bill, which, as we have said, is a small Bill, into a major measure merely by order, without Parliament having the opportunity of debating the desirability of generating even further demand, which it would be his intention of doing. For reasons that the hon. Member for Hornsey knows and understands very well, that would almost certainly prove even more disastrous.

We have seen the Conservative Party making irresponsible promises and suggestions on housing issues before, and we are aware of the harm that would be caused if Conservatives were in a position to exercise the powers that the Bill would give them. We shall be giving them additional powers if we enact the Bill and they come to office. At the same time, we shall be reducing the power of Parliament to prevent that harm. For all those reasons I think that the Bill, although conceived with the best of intentions, will do a small amount of good but is likely to do a greater amount of harm. I regret that we are now passing it into law.

Question put and agreed to.

Bill accordingly read the Third time and passed.