HC Deb 29 April 1993 vol 223 cc1249-56

Motion made, and Question proposed, That this Flouse do now adjourn.—[Mr. Robert G. Hughes.]

10 pm

Mr. David Trimble (Upper Bann)

I am particularly glad to have this opportunity to return to the question of the Order in Council method of legislating for Northern Ireland. I suppose that I should describe that procedure briefly, but time is short. I refer those who may read the report of this debate—if anyone does—to the description of that procedure in the report of the Hansard Society commission on the legislative process.

Normally when we criticise the Order in Council procedure, we do so on the grounds that it is undemocratic and that it deprives this House generally, and Members who represent Northern Ireland in particular, of the opportunity of debating and proposing amendments to Northern ireland legislation. We have pressed that argument several times in the House over the years.

I want to open a different argument tonight. I want to argue that the Order in Council procedure, as well as being objectionable in democratic terms, is also inefficient. I should be able to produce evidence to show that it is inefficient and produces delay and confusion in the legislative process with regard to Northern Ireland.

When we consider legislation generally in Great Britain, we find that there is a procedure: at the beginning of the Session there is the Queen's Speech in which an announcement is made about the legislation to be introduced during that Session so that people know in advance what is going to happen. Generally, the Session sees that legislation through. Occasionally new things come forward and sometimes things are not passed in a Session. Nevertheless, there is a pattern.

There is no equivalent with regard to Northern Ireland. It is true—I acknowledge this and it has been very useful to me on this occasion—that the Secretary of State for Northern Ireland sends letters twice a year to the political parties of the Members for Northern Ireland in which he outlines the Orders in Council which may come forward in the forthcoming weeks and months. That is very useful to us, but the information does not go beyond us.

The "Weekly Information Bulletin" of the House of Commons provides a schedule of Northern Ireland legislation. That is very useful, but I am afraid that the schedule is sometimes misleading because it does not indicate the disposal of the legislation at the end of the day. It does not say whether something has been withdrawn or is continuing. When the Minister replies, will he undertake to inform the editor of the "Weekly Information Bulletin" whenever a completed order is about to issue? That would make the list much more useful to hon. Members and to other people in Northern Ireland.

I shall concentrate on the problem of delay, and deal first with negative resolution orders. There should not be problems with such orders because, as hon. Members know, they are not debated in the House. An Act for Great Britain authorises the making of an order by resolution and it should he a simple matter for the draftsman in Northern Ireland to modify the Great Britain Bill, if necessary, for any differences in the legislative history of Northern Ireland and to introduce it as the Bill goes for Royal Assent. The greatest difficulty about a negative resolution order ought to be catching an appropriate Privy Council meeting to make it.

Of the 20 Orders in Council in 1992, eight were made by negative resolution. It should have been possible to bring those eight orders into operation at the same time as the Acts that they followed, but it seems that three of those orders are not yet in operation. They are the orders dealing with competition and services, offshore safety and the prescription of medical products, and they all relate to Acts made in the same year which are themselves not yet in force.

The Northern Ireland Office managed to get it right with one of the other five orders—the Still Birth (Definition) (Northern Ireland) Order 1992 which came into operation on 1 October, the same day as the Still Birth (Definition) Act 1992. Of the other four orders, the Radioactive Material (Road Transport) Order 1992 came into operation on 12 April 1992 while the relevant Act, the Radioactive Material (Road Transport) Act 1991, came into force on 28 August 1991. The Home Loss Payments (Northern Ireland) Order 1992 came into operation on 5 August 1992 and the corresponding sections of the Planning and Compensation Act 1991—that is, sections 68 and 69—came into force on 25 September 1991. The Social Security (Mortgage Interest Payments) (Northern Ireland) Order came into operation on 11 June 1992 while the corresponding Act came into force on 16 March 1992. The Firearms (Amendment) (Northern Ireland) Order came into operation on 16 September and the corresponding Act on 16 March.

Respectively, those four orders had delays of nine, 11, three and six months, but it should have been simple to get them spot on. It may be said that it does not make much difference. Is it important that an order to vary the duration of a firearms certificate is available in Northern Ireland six months after the legislation applies in England? In some cases it does make a difference. If enabling mortgage interest to be paid directly to lenders was good, why should it be avaialble in Northern Ireland three months after it was available everywhere else? For 11 months people in Northern Ireland whose homes may have been compulsorily acquired could have received lower compensation by not benefiting during that period from the tenfold increase in the maximum home loss payments. Is that right? That deals with negative resolution orders.

Affirmative orders are subject to substantial delays, the worst of which occurred with the Children (Northern Ireland) Order. In the list that we received from the Secretary of State it was said that the purpose of that order was, to revise, harmonise and bring together the private and public law affecting children in a civil code along the lines of the Children Act 1989. That order has been on the Secretary of State's list since April 1991. At that time, it was described under the heading of proposals intended to be published before the end of the 1990–91 Session. In the letter of November 1991 it was under the heading of proposals intended to be published before the Easter recess and it was under the same heading in January 1992 and January 1993, although they were three different Easter recesses.

It is now four years since the passing of the equivalent English Act and 12 years since the Black report which reviewed the whole area. My hon. Friend the Member for Belfast, South (Rev. Martin Smyth) told me that when he first came to the House he pressed for a children Bill to be introduced. We have constantly pressed the matter but there has been a great delay. We are four years behind the Great Britain legislation. The Minister may say in defence that the Government have had difficulties fine-tuning the legislation for Northern Ireland and that they are still consulting various people. If they are, they are consulting secretly, because there has been no consultation with political parties and no local political input or discussion. Against that background, one must ask whether there is any effective ministerial push.

Another bad case relates to environmental protection. There was legislation for Great Britain in 1990 and a useful Select Committee report pressed for something to be done. There was reference in November 1991 to an integrated pollution control and control of air pollution measure, but that disappeared from the lists. In recent lists there has been reference to litter, with an instrument to replicate for Northern Ireland the provisions of the Environmental Protection Act 1990 which relate to litter. It has been cut down from the full scope of the 1990 Act to that small bit, but three years later we still do not have it.

Another example with an environmental element concerns agriculture. In the April 1991 list there was reference to the Agriculture (Miscellaneous Provisions) Order and we were told that that was to extend and rationalise existing legislation, for example, to ensure a reasonable balance of interests between the agriculture industry and the maintenance of rural areas in general. There was a sort of conservation element there. It was listed for publication before the end of the 1990–91 session, but it disappeared from view. In 1993, the lists again refer to that order, but it is now described as being to replicate for Northern Ireland the provisions of section 17 of the Agriculture Act 1986 by requiring the Minister to take into account certain matters such as conservation; to allow grants for the purpose of encouraging rural development". The purpose seems to have changed by going back to an Act of 1986, for which we do not have an equivalent in Northern Ireland. Again, there was a delay of seven years.

In some cases there is confusion as well as delay, certainly in regard to road traffic. The Road Traffic (Amendment) Order was mentioned in lists published between November 1990 and January 1991. That was replaced by the Road Traffic (Offenders) Order in the 1991 list, and that stayed until January 1992. Then we had what was described as a "Roads Proposal" published in October 1992 in relation to a roads measure, apparently for a different purpose from the other two provisions. That introduced into Northern Ireland provisions enacted for Great Britain relating to roads and street works. In other words, as I say, there is confusion as well as delay.

It is even worse when we consider criminal justice. There was reference to a Criminal Justice (Fines and Penalties) Order in the lists from November 1991 right through to January 1992. That referred to replicating some of the provisions in the English Criminal Justice Act 1988. But that has not come forward. In the January 1993 list we had another instrument, the Criminal Justice (Children's Evidence, etc.) Order which was, to replicate for Northern Ireland the provisions of the Criminal Justice Act 1991. On the April 1993 list those two disappeared and we had instead a single Criminal Justice Order which seemed to include the purposes of the other two. But that has not yet been published. Instead, we have had a big consultation paper published entitled "Crime in the Community", covering the purpose of one of those measures, and we are left to wonder what will happen, for it will be months before the consultation is completed.

I am glad that the Minister of State is to reply to the debate because when I think of criminal justice provisions I am reminded of the old Army adage about order, counter-order and disorder. It seems that in the criminal justice sphere we are now in the disorder situation. There is delay because we are referring to Great Britain Acts of 1991 not being introduced in Northern Ireland, and there is confusion throughout the system. Clearly, the system is not operating efficiently.

I could give other examples, but I shall not go on because I am anxious to give the Minister ample time in which to respond. The few examples that I have given show that there are delays and that in some important areas there are serious delays. There is also confusion and failure to give the public adequate information about the operation of the legislative process as it affects Northern Ireland.

I appreciate that the Minister may not be able to respond to all the detailed examples that I have given, but I particularly ask him to explain the cause of the present state of affairs. The Order in Council procedure is truncated. In relation to negative resolution orders, it should be easy to produce them on time. The procedure with affirmative resolution orders may take somewhat longer. But why does it take so long?

It seems to take longer to produce legislation for Northern Ireland by the truncated Order in Council procedure than it takes to produce legislation for England by proper Bills. Why that delay? Does it arise in the Northern Ireland Departments from which instructions are issued to the legislative draftsman's office? Does the delay occur in the draftsman's office, in the drafting and sorting out procedure? Does it arise in the Minister's office because policy decisions are involved from time to time?

Some of my hon. Friends suggest that the recent inter-party talks absorb so much interest and time of Northern Ireland Office Ministers that that might be the cause of the delay. I doubt whether that is the cause, because although I have given examples from 1992 I could give many others relating to other periods.

I asked a former colleague the other day whether he knew the cause. Without revealing the office in which the conversation took place, he told me that he was in a Government office not so long ago and mentioned the matter and asked whether there was a problem. The people to whom he addressed the question laughed but would not reveal anything further. I am glad to know that some civil servants observe the Official Secrets Act in that respect, if no other.

Whatever the cause might be, responsibility must lie with the Ministers in the Northern Ireland Office, because they have presided over that inefficient system. I shall not repeat to the Minister the comments that I made the other Monday night, which seemed to have some effect. There is a case to answer and a need for solutions, not just in terms of sorting out the Order in Council procedure, but in terms of the legislative process generally.

I referred earlier to the report of the Hansard Society commission on the legislative process. Paragraph 363 refers briefly to the evidence that it received from Members of Parliament from Northern Ireland and other regions of the United Kingdom. It said: We hope that their special problems will be considered sympathetically—especially the case for returning to legislating for Northern Ireland by Acts rather than by Orders". The case for so doing is irrefutable.

To show how easily it can be done, let us examine the home loss payments order made in 1992, which followed two sections of the Planning and Compensation Act 1991. The Minister will see that the Act covers two different jurisdictions—England and Wales, and Scotland. For Scotland, it has to deal with a different legislative history and a different legislative background and to introduce different sections. Parts of the Act deal with England and parts deal with Scotland. It would have been easy to include within the Act further sections dealing with Northern Ireland; there would then not have been a nine-month delay in introducing the increase in home loss payments for people in Northern Ireland. That is an obvious course to follow.

It would also help to solve the problem if there were proper scrutiny of the Northern Ireland Office. The fact that it is the only Department of State not subject to scrutiny must inevitably encourage people, or make it easier for them, to take it easy. I suspect that that is what happens with the Northern Ireland legislative process.

10.12 pm
The Minister of State, Northern Ireland Office (Mr. Michael Mates)

The hon. Member for Upper Bann (Mr. Trimble) has long made clear his own dissatisfaction, and that of his party, with the present arrangements for legislating for Northern Ireland. His choice of subject for this debate therefore comes as no surprise, but I welcome the opportunity to explain how we see the situation and why, contrary to some of his assertions, it is wrong to blame the present method of legislating for Northern Ireland for any lengthy delays in introducing, where appropriate, legislation for Northern Ireland on similar lines to that already enacted for the rest of the United Kingdom.

My right hon. and learned Friend the Secretary of State has said before now that the present system for legislation is not entirely satisfactory. To that extent, we would not quarrel with the hon. Gentleman. That system arises from the present constitutional arrangements for dealing with Northern Ireland's affairs. Those arrangements will continue unless and until it proves possible to reach agreement on new political institutions for Northern Ireland.

However, if and when new institutions can be agreed upon—it is to that end that my right hon. and learned Friend is seeking to promote a new round of political talks —then those institutions will doubtless assume responsibility for many issues involving the need for legislation. They, rather than Westminster Ministers, will undoubtedly take control of a range of matters and be able to set their own legislative programme in those areas. That should lessen the need for so much of Northern Ireland's legislation to be dealt with in this Parliament, and remove the grounds for many or most of the complaints that he has voiced.

However, in the absence of new political institutions, we will need to continue with present legislative arrangements. These take account of, indeed arise from, the fact that, until the introduction of direct rule, Northern Ireland had a Legislature and Executive of its own and therefore had its own body of legislation. It has been the policy of successive Governments to seek to return legislative and executive powers to locally elected representatives as part of an overall political settlement if a suitable basis for this can be found.

To that end, we have been anxious to preserve a separate body of powers for ready transfer to any new political institutions. The present arrangements, whereby legislation for Northern Ireland, other than in the so-called excepted field, is generally made by Order in Council under the Northern Ireland Act 1974, has seemed the best way of preserving such a body of powers.

The use of the Order in Council procedure has, of course, its limitations. As hon. Members of the hon. Gentleman's party do not hesitate, rightly, to point out at frequent intervals, such orders are unamendable once laid in draft before Parliament. It is for this reason that the practice of publishing proposals for draft orders in Council has been adopted. Such proposals are circulated to Northern Ireland Members and to the Northern Ireland spokesmen of the major political parties in Great Britain and to other interested bodies in Northern Ireland.

The hon. Gentleman's point about the information on Northern Ireland legislation provided in the House of Commons weekly bulletin is a matter for the House. If it is felt that the extra information that the hon. Gentleman has mentioned should be included, the Northern Ireland Office would be happy to provide any assistance that it can. However, it is not a matter for us.

The process of consultation and the frequent need to adapt to local circumstances provisions originally prepared for Great Britain inevitably mean that Northern Ireland legislation is made some time after that in Great Britain. But I am sure that it is necessary in the interests both of getting legislation technically right and of giving Northern Ireland Members and other representatives of opinion in Northern Ireland the opportunity to coment on legislative proposals before they are set in the concrete of a draft Order in Council.

Of course some legislation for Northern Ireland intended to follow Great Britain policy closely has been introduced up to several years after the Great Britain legislation, and the hon. Member for Upper Bann has given us some examples. The reasons are various and include the need to give priority to some legislation over other and the inevitable limitations caused by finite resources among others.

I should, however, remind the House that social security and financial provisions, for example, and other legislation which could have a direct financial effect on citizens in Northern Ireland is virtually always implemented at the same time as the relevant Great Britain legislation. Indeed, the negative resolution procedure for making Northern Ireland Orders in Council provides a ready means for achieving speedy implementation of such so-called parity legislation or when it is otherwise appropriate.

On the other hand, delays may occur because some powers may simply not be required in Northern Ireland as early as equivalent powers are needed in Great Britain. The recent financial provisions order to which the hon. Gentleman alluded is a case in point.

On occasion, too, there may also be advantage to be gained by having the opportunity to see how Great Britain legislation works out in practice before proceeding to introduce equivalent law for Northern Ireland. Furthermore, the different social mores of people in Northern Ireland from those in Great Britain have in the past been grounds for either delaying or indeed not implementing Northern Ireland legislation equivalent to Great Britain legislation.

So when talking about the timing of Northern Ireland legislation and delays in producing it, the House will recognise that there are normally perfectly good reasons for such so-called delays, including the need to take proper account of the different legislative and administrative history of Northern Ireland. It is therefore not unreasonable for the preparation even of legislation which does follow Great Britain legislation in its broad principles to take a little time.

That is not to say that there have not been and, in the nature of things, will not be occasions when it takes longer than is strictly necessary for legislation to be made. We are continually looking at ways of minimising the time it takes to produce necessary legislation without of course resorting to cutting corners when it comes to appropriate consultation.

Despite the complaint of delays which we have heard from the hon. Member for Upper Bann, my right hon. and learned Friend the Secretary of State and his predecessor have managed to maintain a steady programme of legislation for Northern Ireland, running at an average of about 20 Orders in Council a year. As those orders are the equivalent of Parliamentary Bills, that is a pretty good record.

We are not complacent about legislation for Northern Ireland. We recognise that the present legislative system is not perfect. To make the point again for the best emphasis that I can manage, we want that unsatisfactory situation to end as soon as possible. But it is up to the hon. Gentleman's colleagues and friends and members of the political institutions of Northern Ireland to get together and agree upon a different and better way forward.

When they can so agree collectively upon a way forward for the better government of Northern Ireland, but at any rate governed by people with a direct representational interest there and much more local knowledge than we can ever have however hard we might work at it, the convenient way to return that power to whatever assembly, body—call it what one will—that is set up for Northern Ireland would be with a body of coherent and non-contradictory legislation. That is why we use the process whereby we build upon the corpus of legislation that existed before we had, perforce, to take it away through direct rule.

That is our wish and that is why, while acknowledging that the local elections have yet to be concluded, my right hon. and learned Friend the Secretary of State for Northern Ireland will be working as hard as he can in the coming months to get people of good will together to decide how we can put an end to the anomaly. We are not satisfied with the system, but, for the reasons I have given, it is desirable and necessary to continue in this less than perfect way. If one were to follow the hon. Gentleman's suggestion and try to legislate here under the British system, we would be creating anomalies, differences and variations which would then have to be put right.

Northern Ireland must have a coherent and consecutive corpus of law so that, if and when the day comes, which the hon. Gentleman says that he wishes for, when he will take some part in his own assembly in his own part of the United Kingdom—[Interruption.] He would, hopefully, want an assembly in his part of the United Kingdom with directly elected representatives, and he will want that to work. One reason why we keep this less than perfect system with the affirmative and negative resolutions is that no Government of any party have acknowledged or want to acknowledge that that day cannot come. Until it comes, we are compelled to retain the present system.

Mr. Trimble

The argument that the Minister has elaborated during the past few minutes is a bad one., There is no separate Northern Ireland statute book. Over the years, Northern Ireland has been legislated for by five different Parliaments. Before the Northern Ireland Parliament was created in 1920, this House enacted a separate corpus of legislation for Northern Ireland. There is no need to keep the Order in Council procedure to achieve that. Enacting legislation in the proper way will not change the corpus of Northern Ireland legislation in the way that the Minister says.

Mr. Mates

The hon. Gentleman is right in saying that there is no separate statute book, but, since the days of the Act that he mentioned, there is a consecutive logical body of law which is not contradictory and which does not have the thousands of anomalies that would arise if we transferred the British legislation straight across. The same applies to Scotland. There is a different body of law there. It is maintained sometimes by Bill and sometimes by order, and sometimes, for perfectly good reasons, Scotland does not follow England and Wales. Those are decisions that we have to take.

As I have explained, it is desirable and necessary to legislate separately for Northern Ireland on those matters which it is hoped to return to the control of new political institutions in due course, not least because this facilitates the preservation of a separate body of powers for any such new institutions.

Question put and agreed to.

Adjourned accordingly at twenty-eight minutes past Ten o'clock.