HL Deb 30 March 1972 vol 329 cc1167-89

11.16 a.m.

THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill. Perhaps it would be convenient for the House if, in moving this Motion, I were just to mention again the procedural arrangements that were made, after consultation through the usual channels, for the handling of this Bill and the No. 1 Bill. We agreed to proceed with our own No. 2 Bill until such time as the No. 1 Bill was received from another place. That other place is still considering the No. 1 Bill, so your Lordships will have before you copies of the Marshalled List of Amendments to the No. 2 Bill containing Amendments Nos. 1 to 6, and a Supplementary List consisting of three additional Amendments to the Schedule, those Amendments standing in my name. Therefore the two documents, one containing six Amendments and the other containing three Amendments, give us a total of nine Amendments. I am informed that it is likely that these Amendments will be all those which have been made in another place to the No. 1 Bill. Therefore, when that Bill reaches this House the changes will all have been discussed, we hope, in Committee in this House on the No. 2 Bill; so if your Lordships decide to accept this series of nine Amendments the two Bills will then be identical. I hope that these proposals will commend themselves to your Lordships. I beg to move.

Moved, That the House do now resolve itself into Committee.—(Lord Windlesham.)

LORD SHACKLETON

My Lords, I think this is the only way in which we can proceed. I take it that when we do receive the Bill from another place it will be apparent to us that the Amendments that we may agree to are incorporated in that Bill, and that the noble Lord will either spell them out or otherwise satisfy us that what this House has decided is in fact effectively performed. I have no doubt that this will be done. We are in grave difficulties, because although I personally was in the other place in the small hours, trying to find out what was going on there, I am bound to say—and I must not be defamatory—that so many points of Order were being put forward that it merely commended to me the preferable system that we have in this House of having nobody to rule us. I suppose the noble Lord cannot give us any indication whether we shall get away before Friday or Saturday.

LORD WINDLESHAM

My Lords, if I may have the leave of the House to speak again, may I say that I am glad that the noble Lord the Leader of the Opposition is in general agreement with what has been proposed. It is not possible for me to make any forecast as to when the Bill will be received from another place, but I understand that the other place is now on the Third Reading of the Bill and drawing hopefully towards the conclusion of a thorough discussion of this matter.

On Question, Motion agreed to.

House in Committee accordingly.

[THE EARL OF LISTOWEL in the Chair.]

Clause 1 [Exercise of executive and legislative powers in N.I.]:

On Question, Whether Clause 1 shall stand part of the Bill?

LORD SHACKLETON

I understand they are dividing in another place at this moment, but it will still take some while for the Bill to come here. I hope the Government Chief Whip has arranged that it will come to us speedily. Noble Lords will recall other occasions when a Bill took a long while to get here. It was no fault of our Clerks. None the less, it is probably necessary to go on with these Amendments. Clause 1 is virtually the Bill. We had an opportunity for full discussion on it yesterday. In the circumstances there are no further points I want to raise.

Clause 1 agreed to.

11.21 a.m.

LORD SHACKLETON moved Amendment No. 1:

After Clause 1 insert the following new clause— (". Nothing in this Act shall derogate or authorise anything to be done in derogation from the status of Northern Ireland as part of the United Kingdom.")

The noble Lord said: I rise to move Amendment No. 1 standing in my name and the names of my noble friends Lord Beswick and Lady Bacon. I understand that this is one of the Amendments which was in fact moved by my right honourable friends in another place and which the Government are accepting, have accepted or will accept. I take it, at any rate, that it is likely to be in the Bill that reaches us. I do not want to speak very long on this subject because I do not wish to raise again the whole question of the future status of Northern Ireland. Most of us have made our position very clear on this matter, but I was a little put out, I repeat again, by the noble Lord, Lord Barnby, in his speech implying that a Labour Government would not honour undertakings that they had given. I thought it was an unnecessary introduction of Party feeling into the debate.

LORD BARNBY

Will the noble Lord, the Leader of the Opposition, permit me? I have not in mind the exact words I used, but I thought I had quoted the remarks of the Leader of the Opposition, who clearly indicated his leaning towards integration—unification, at least, was the word he used.

LORD SHACKLETON

The noble Lord, I think, was being mischievous, because he clearly did not read the words of my right honourable friend. The declaration in 1969 made the position perfectly clear. My right honourable friend Mr. Callaghan has put the position clearly. We are all, I think, united, or nearly all of us are united, that there can be no question of change of status of Northern Ireland in the sense of trying to achieve a united Ireland—which I personally would prefer—without the consent of the people; it is not possible to bomb or bully them into it. Irish leaders have said this in the Republic, as well as some of the religious leaders. Unless they freely wish to do so it cannot be done. I really must rebut what the noble Lord, Lord Barnby, said; I read his words carefully.

We want to make this matter clear. There are clearly misunderstandings and anxieties. If the noble Lord, Lord Barnby, whose energy I respect, but sometimes I think his judgment goes a little astray, can get this wrong, other people will also get it wrong. I fully accept that the Government have no intention of seeking to make changes, but so that there should be no doubt, this Bill makes no change in regard to the previous declaration. Therefore we thought it wise and we thought it desirable, even coming from the Opposition, that we should move an Amendment into the Bill which makes it clear. It is essentially a declaratory Amendment. It obviously does not affect the working of the Bill, to insert: Nothing in this Act shall derogate or authorise anything to be done in derogation from the status of Northern Ireland as part of the United Kingdom. The position of those noble Lords who may wish to see a union between the North and the Republic is clearly in no way affected by this Amendment, which merely restates quite clearly what the position is and what it has been since the Attlee Declaration and further Declarations that were made by the previous Government. Except in dealing with the noble Lord, Lord Barnby—and he knows that except at rare moments I have a great affection for him when he is not being really rather naughty—I have no wish to start a debate going on this Amendment. But I think this Amendment is desirable, and in any case it will be in the Bill that is coming to us. Of course, this House can take a different view, but I hope that, since the Government were inclined to accept it, they will in fact indicate so now. I beg to move.

LORD WINDLESHAM

I am grateful for the way in which the noble Lord the Leader of the Opposition has moved this new clause. I can tell your Lordships that the Lord President of the Council has already accepted a similar Amendment in another place. As the noble Lord has indicated, the new clause is not, strictly speaking, necessary, because of course the existing statutory guarantee contained in Section 1(2) of the Ireland Act 1949 remains on the Statute Book; it is not affected in any way at all by the Bill before your Lordships at the moment. But if there is any doubt on this matter, and if it seems useful to those who have any fears on this matter that the guarantee should be repeated, that an assurance of this sort should appear in the Bill which your Lordships are considering now, the Government are quite ready to accept it, and it is in that spirit that I advise your Lordships to accept the Amendment proposed.

On Question, Amendment agreed to.

Clause 2 agreed to.

The Schedule [Consequential, Supplementary, and Transitional Provisions]:

11.29 a.m.

LORD WINDLESHAM moved Amendment No. 1A: Page 3, line 7 leave out ("and assistance").

The noble Lord said: I beg to move the first of the Manuscript Amendments standing in my name on the supplementary Marshalled List of Amendments. This part of the Schedule refers to the proposed Northern Ireland Commission. The functions of this Commission, as my noble and learned friend on the Woolsack made clear when he wound up the Second Reading debate last night, are entirely advisory. The Commission has no executive power, but it will be seen in the wording of paragraph 1 of the Schedule, at page 3, that the Commission shall "give advice and assistance to the Secretary of State". It is important to appreciate that the Commission has no executive responsibilities, nor has it any legislative powers. The object of the Secretary of State will be to bring in representatives of a wide range of opinion in Northern Ireland so that he can take their advice on matters referred to it, which will include Orders in Council made under Clause 1 of this Bill and any proposal to make regulations under the Special Powers legislation. If it is thought that these words "and assistance" go further than the advisory nature of what is proposed for the Commission, the Government would wish to remove this doubt. Again I can tell your Lordships that the Lord President of the Council has accepted an Amendment on these lines. He accepted it in principle. It was accepted by the draftsman, and an Amendment on these lines has been made in the No. 1 Bill in another place. I beg to move.

LORD LEATHERLAND

If we are endeavouring to add some precision to this Bill I am rather disturbed about the words that the noble Lord has just used. He said that the other place had accepted an Amendment "on these lines". That does not necessarily mean that it is precisely the same as the Amendment which he has now moved. Have they accepted an Amendment in precisely the same words as he now proposes to us?

LORD WINDLESHAM

They have indeed. I apologise for using loose language, and I shall try to be more accurate during the remainder of the Committee stage.

LORD HYLTON

I have been in touch this morning with Ulstermen working in this country, and I am assured that in Ulster very great importance will be attached to the composition of the Commission. It is felt that it will be very helpful if grass roots members of both communities can be members of the Commission, and if the Commission can include persons who have not yet made themselves prominent as politicians. I hope that my noble friends will bear this in mind.

LORD WINDLESHAM

We shall certainly bear in mind what the noble Lord has said. The purpose of the Commission is to give the Secretary of State an opportunity to consult those who have a stake in the life and future prosperity and stability of Northern Ireland. Since the legislative processes at Stormont are prorogued for the period of 12 months it seems reasonable that there should be some way of sounding out local opinion, and that is the purpose of the Commission. We shall certainly be bearing in mind considerations of the type that the noble Lord, Lord Hylton, whose interest in this matter I acknowledge, has put before the Committee.

THE EARL OF LONGFORD

May I put to the noble Lord a question to which perhaps the answer should be known to me and is known by everybody else? Supposing for various reasons it is so difficult to form this Commission that the Secretary of State concludes that it is pointless to go on with it. Would that invalidate the rest of the Bill, or would the rest of the Bill go forward without the Commission?

LORD WINDLESHAM

I hope that the noble Earl will appreciate it if I say that I think it will be better not to look forward to those circumstances at this stage. There has been a great deal of discussion about the proposed Northern Ireland Commission. Some people have their doubts about it, but it seems desirable to try to make some machinery of this sort work. If the Secretary of State finds that it is not possible, he will then have to consider what alternative arrangements should be made.

On Question, Amendment agreed to.

11.34 a.m.

LORD WINDLESHAM moved Amendment No. 2:

Page 4, line 26, at beginning insert— ("4.—(1) Her Majesty shall not be recommended to make an Order in Council under section 1(3) of this Act unless either a draft of the Order has been approved by resolution of each House of Parliament or the Order declares that it has been made to appear to Her Majesty that by reason of urgency the Order requires to be made without a draft having been so approved.")

The noble Lord said: I beg to move Amendment No. 2 standing in my name on the Marshalled List. This is the first of a series of Amendments which affect the control by Parliament of the Orders in Council laid under the procedure outlined in Clause 1 of the Bill. It might be to the convenience of your Lordships if we considered Amendments Nos. 2, 3, 4, 5 and 6 together. All of these relate to the proposed changes in the way in which Parliament will control the Orders in Council.

LORD SHACKLETON

I think what the noble Lord is proposing is right, but it is conceivable that we may, after his explanation, none the less wish to focus on one or two of the later Amendments.

LORD WINDLESHAM

Yes, I accept that. If noble Lords would like to take up points in sequence after I have introduced the Amendments, of course I can deal with those points one by one. Since they are linked, it might be helpful to see the general shape of the changes which the Government propose in this very important matter concerning Parliamentary control. These Amendments would make considerable changes in the procedure as compared with that set out in the Bill originally presented to both Houses of Parliament. In the No. 2 Bill before your Lordships sub-paragraph (1) of paragraph 4 of the Schedule provided that any Order in Council may be laid in draft before Parliament for approval by Affirmative Resolution before it is submitted to Her Majesty in Council. It was envisaged that this procedure might be used for such matters as Orders in Council making a provision for which prior Parliamentary approval was thought essential. In addition, Orders in Council dealing with taxation matters were to come into force immediately, subject to subsequent approval by both Houses within 40 days. But—and this is the crux of the matters—sub-paragraph (1)(b) in its original form provided that all other Orders in Council should be subject to the Negative Resolution procedure. Therefore, under the proposals as placed initially by the Government before Parliament, there would have been a considerable number of Orders in Council which would not have been subject to approval by both Houses. This necessarily placed a constraint on the powers of both Houses to examine such Orders in Council, and the Government have decided to recommend to the House that a group of Amendments should be approved which would have the effect of subjecting all Orders in Council made under this Bill to Affirmative Resolution procedures.

In the normal way Orders in Council will not come into force until they are approved by both Houses of Parliament, but when they deal with matters of urgency they would, under the Amendments on the Marshalled List, come into force immediately, but would lapse if they were not subsequently approved by both Houses within a period of 40 days. Therefore, the effect of this series of Amendments is that none of the Orders in Council will be subject to the Negative Resolution procedure which was originally proposed for most of the Orders other than certain special categories.

Amendment No. 2, to which Amendments Nos. 3 and 4 are consequential, relates to paragraph 4(1) of the Schedule. The Amendments have the effect of introducing the revised Parliamentary procedure which I have just described to your Lordships. It might perhaps be helpful to say at this stage what 40 days means, because from time to time there has been uncertainty on that matter. I am advised that the period of 40 days to which I have referred means a period of 40 days in accordance with the calendar. The 40 days period runs continuously from the date on which the Order is made, except that no account is taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days. Section 7(1) of the Statutory Instruments Act 1946 refers.

Moving now to Amendment No. 5, this relates to paragraph 4(2) of the Schedule which it replaces, together with paragraph 4(4) of the Schedule. This applies similar provisions about Parliamentary procedure in respect of regulations made by the Secretary of State in regard to Section 1(3) of the Special Powers Act. The Government felt it right to propose this exceptional provision in view of the importance of these regulations and their political significance. The House will wish to have an opportunity, I believe, to consider such regulations with great care. Amendment No. 5 also substitutes a new sub-paragraph (3) which replaces the original 4(4). This provides that an Order in Council under subsection (3) of Clause 1 of the Bill may in relation to any statutory rules provide that they shall be subject to the Affirmative Resolution procedures which I have already mentioned, or they may make provision for the rules to be subject to the Negative Resolution procedure. Amendment No. 6, the final one of the series, relates to paragraph 4(3) of the Schedule. This provides that statutory rules, or statutory instruments, made under a Stormont Statute that would require to be affirmatively approved in draft at Stormont shall be liable to Negative Resolution procedure at Westminster unless, under the new paragraph 4(3), they are made subject to Affirmative Resolution procedure.

I am afraid that that is a somewhat complex explanation of these changes, but this is a matter of great significance to this House and it would be right to have a fairly full explanation on the record so that it could be studied at leisure by your Lordships. I hope the Committee will feel that it is right to approve this group of Amendments which is designed to protect Parliament's functions of examining with care all Northern Ireland legislation and Orders in Council and to provide additional means by which this can be done. I beg to move.

LORD SHACKLETON

Normally one would say, "I should like to study what the noble Lord has said and possibly return to it at a later stage of the Bill", but this course is not open to us. None the less, we are grateful to the noble Lord for the careful explanation he has given. I am a little worried about one point, but this is not the time to pursue it. Parliament might be sitting, but it might be that the other place was sitting when we were not. It might not be for a long period. However, we may have to think further about that. Generally we are grateful to the Government for their very willing acceptance of the purpose of the Amendments which were moved by my right honourable friends in another place. Indeed, I had thought of putting them down myself were it not that the Government had more comprehensive and better drafted Amendments and I thought they were demonstrably more competent to deal with the matter, as they had in fact accepted that the Negative Prayer procedure, with the grave constraints—I think that was the word the noble Lord used—on initiating debates, was unsatisfactory. Again, it points once more to the need for the Committee which is examining subordinate legislation to sort this matter out further.

I do not know whether the noble Lord is able to say anything more about the pretty lengthy Orders that will be likely to come. I again repeat concern at a piece of major legislation like local government reform arriving as an Order and having to be approved there and then. I understand, and I think the noble and learned Lord speaking from the Woolsack last night offered, that in another place there would be consultations with the Opposition on how those matters were to be done. But in such consultation with the Opposition one has to bear in mind that these are fundamental points which are the concern of the whole House, and I can see more work for the Procedure Committee in trying to devise satisfactory control. It is a serious burden, and it is worth reiterating that Parliament is taking on responsibility for legislation which would normally have passed through Stormont. On the more controversial aspects, a great deal of work was done in Stormont which will now have to fall on a Parliament which is already pretty overburdened.

Having said that, I think it is right that we should now adopt the Affirmative Resolution procedure and it is particularly desirable that a stronger control is established with regard to special powers. I am bound to say, as my noble friends made clear last night, that these special powers cause deep anxiety because of their basically illiberal nature, and there is no doubt that Parliament will examine this sort of thing with very close scrutiny indeed. However, I would certainly recommend my noble friends and indeed the whole House to accept these Amendments, bearing in mind again that it will be possible for noble Lords also to speak on them one by one. I am content myself.

LORD POPPLEWELL

I wonder whether the noble Lord would be a little more explicit on Amendment No. 5, line 5— the regulations declare that it appears to the Secretary of State that by reason of urgency … This could mean that it is at the discretion of the Secretary of State to nullify the provisions that we are now accepting—the Affirmative Resolution procedure. Is that the intention of those particular words— it appears to the Secretary of State that by reason of urgency the regulations require to be made without a draft having been so approved; I realise that it is extremely difficult to write this into the provisions that we are now discussing. Is it the intention of the Government that where the Secretary of State imposes such regulations he will give an explanation to Parliament why he is deviating from the Affirmative Resolution procedure? If the Secretary of State made such regulations under this provision, would it be subject to the Negative Resolution procedure; in other words, would Parliament have the right to pray against them? It is a question of safeguarding the interests of Parliament. Naturally we have the utmost confidence in what may happen under the Secretary of State, Mr. Whitelaw, and the noble Lord, Lord Windlesham; but here the Bill is involved, and it appears rather contradictory. I should be grateful if the noble Lord would give a little further explanation how these particular words would operate.

LORD SHINWELL

I am not sure whether the point I wish to raise is related to the point raised by my noble friend. It seems to me that there is one matter affecting Parliamentary procedure that requires further clarification. The noble Lord, Lord Windlesham, in the course of his remarks on these Amendments, stated that if a law or regulation is decided upon by the Secretary of state in his discretion when both Houses are adjourned for some reason or other, either for a short or a long term, the Order would come into effect immediately and would be on the table for 40 days, and then it is a matter for Parliament to decide either to approve or disapprove. But if a regulation or Order is concerned with the Special Powers Act and is one of extreme importance, and has to be put into operation immediately, and then, 40 days afterwards, or at some subsequent period when both Houses resume after a Recess, the House deals with the matter, the damage may have been done, and Parliament would find itself helpless in the matter. I think this is a point which requires clarification. It seems to me that if a matter of extreme importance is concerned, say, with the Special Powers Act or some similar Act, to put it into operation immediately without the consent of both Houses of Parliament, and to leave it in operation over a period of time until both Houses meet again might be a disadvantage.

11.51 a.m.

LORD WINDLESHAM

I think I can most easily meet the points made by the noble Lords, Lord Popplewell and Lord Shinwell, by giving a brief explanation of how the procedure will work. I gave the fuller and more technical explanation first because I thought that it ought to be on the Record; but, if I may, I will now summarise it in this way. The Bill, as amended, will mean that there will be a whole series of Orders in Council which take the place of the Stormont legislation. Some of the Orders will be full and complicated, and what the noble Lord, Lord Shackleton, had to say about how they are considered is a matter which will need thought; and certainly we will consult the usual channels. But those Orders will be made in draft. They will be draft Orders, and they will not take effect until each House of Parliament has agreed them. That will be the generality.

As the noble Lord, Lord Shinwell, has remarked, there will of course be cases where circumstances are so urgent, either as regards Regulations under the Special Powers Act or certain Orders in Council, that this particular procedure will not be practicable. What will happen then is that if, in the judgment of the Secretary of State, there is urgent need to ask Parliament for approval more quickly, the alternative procedure will apply. I can meet the point of the noble Lord, Lord Popplewell, by saying this. It will still be an Affirmative Resolution procedure. There are two forms of Affirmative Resolution procedure; indeed, it may be that there are others: I have been learning about this recently and quickly in order to explain it to your Lordships. But, at any rate, there are at least two forms of Affirmative Resolution procedure and the second form is that the Order, or the Regulation under the Special Powers Act, takes effect immediately. Then Parliament has a period of 40 days in which both Houses are asked to approve it. If Parliament is not in Session, that period of 40 days runs from the day when Parliament returns but in the meantime the Order has taken effect. If Parliament decides not to approve it, the Order lapses and the situation returns to what it was before. I hope that this explanation of how the procedure envisaged in the Bill as amended, if your Lordships accept the Amendment, is satisfactory to noble Lords opposite.

LORD BESWICK

It may be a further assurance to my noble friends, whose anxieties I understand, if I say that the Bill to which they agreed to give a Second Reading in fact provided that only those Orders relating to taxation should be subject to Affirmative Resolution; all the rest were subject to the Negative Resolution procedure. And it was as a result of recommendations made by the Opposition that these Amendments have now been drafted. I agree with the noble Lord, Lord Windlesham, and with my noble friend, that they are a great improvement.

LORD POPPLEWELL

I thank the noble Lord for his explanation, which puts the matter perfectly clearly and removes the doubt that must have been in the minds of some noble Lords as a result of the actual wording of the Bill. These Orders can be operative immediately, but ultimately they must be subjected to the Affirmative Resolution.

LORD SHINWELL

I am sorry, but I remain dissatisfied. Although the Order remains subject to the Affirmative Resolution of both Houses of Parliament, the damage may have been done. What is the answer to that?

LORD WINDLESHAM

What does the noble Lord have in mind? Can he explain the point a little more fully?

LORD SHINWELL

Under the special powers all kinds of damage may be done—it depends on the discretion of the Secretary of State. I have the utmost good will towards the Secretary of State, but in the circumstances operating in Northern Ireland there might be an urgent reason why something should be done which was of an extreme character and which might be offensive to a large number of people in Northern Ireland. Who can say? People do become offensive in Northern Ireland on either side of the political fence, if it is a political fence: I am not sure that it is, solely, but I will leave it at that. I understand about the Affirmative Resolution procedure and the explanation is quite clear. But it seems to me that something could be done which was far from innocuous; and once it had been done, the mere fact that after 40 days, following debates in both Houses of Parliament, the Order could lapse would be of no advantage at all if the mischief had already been done. I am not saying that there will be mischief, but it seems to me that there is a loophole which it would appear difficult to stop up.

LORD WINDLESHAM

Parliament is being asked to give very great powers to the Secretary of State, and Members in another place, and your Lordships, speaking yesterday, have given their support to, and expressed their confidence in, my right honourable friend Mr. Whitelaw. It is true that in some circumstances one can envisage that he would need to act very quickly and to bring in immediately an Order in Council or a Regulation under the Special Powers Act, and then ask Parliament afterwards to approve his action. But I think that most of your Lordships will agree that to deprive the Secretary of State of that power, and to say that there must be a period of time in which he should come back to Parliament at Westminster, would not be realistic.

On Question, Amendment agreed to.

LORD WINDLESHAM

I beg to move Amendment No. 3. This is one of the series of Amendments that we have been discussing together.

Amendment moved— Page 4, line 29, leave out ("in the case of an Order relating to taxation").—[Lord Windlesham]

On Question, Amendment agreed to.

LORD WINDLESHAM

I beg to move Amendment No. 4.

Amendment moved— Page 4, line 36, leave out from ("Order)") to end of line 38.—[Lord Windlesham.]

On Question, Amendment agreed to.

LORD WINDLESHAM

I beg to move Amendment No. 5.

Amendment moved—

Page 4, leave out lines 39 to 44 and insert— ("(2) The Secretary of State shall not make any regulations under section 1(3) of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 unless either a draft of the regulations has been approved by a resolution of each House of Parliament or the regulations declare that it appears to the Secretary of State that by reason of urgency the regulations require to be made without a draft having been so approved; and where any regulations are so made by the Secretary of State without a draft having been so approved, the last foregoing sub-paragraph shall apply to them as it applies to an Order in Council under section 1(3) of this Act. (3) An Order in Council under section 1(3) of this Act may, in relation to any statutory rules (including any such rules made by virtue of such an Order in Council), make provision corresponding to the last foregoing subparagraph or provision for the rules to be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and for section 5 of the Statutory Instruments Act 1946 to apply accordingly.".)—[Lord Windlesham.]

LORD HYLTON

May I ask my noble friend whether he thinks that it will be necessary to make regulations under the Special Powers Act; secondly, whether those things that could be done by regulation could in fact be done by Order in Council; and finally, whether he agrees that if they can be done by Order in Council this would be a very substantial psychological bonus, bearing in mind the history of the Special Powers Act?

LORD WINDLESHAM

It is difficult to foresee the circumstances in which the Secretary of State might need to make regulations under the Special Powers Act, but it should not be assumed that he would be asking for additional powers. My right honourable friend indicated last night that he intends to review the Special Powers legislation and the existing regulations. It may be that he may feel these could be improved in some way; that perhaps there were certain powers he might feel he did not require or that they could be expressed in some other way. That is a general answer, but I think it is difficult to be more specific. I think that this power must be left with the Secretary of State. He will think carefully before deciding whether to make regulations under the Special Powers Act legislation or whether to use the Order in Council procedure.

LORD KILBRACKEN

Can the noble Lord tell me under what clause of the Bill the Secretary of State is enabled to make regulations, since subsection (3) appears to be confined only to Orders in Council?

LORD WINDLESHAM

In the Bill before your Lordships, this provision is on page 4, line 39; that is, in paragraph 4(2). It reads: Any regulations made by the Secretary of State under … the Civil Authorities (Special Powers) Act … It is that sub-paragraph which is being deleted by the Amendments and which is being replaced by Amendment No. 5. That is the one which will affect regulations.

LORD KILBRACKEN

Surely, that is in the Schedule to the Bill? Therefore, it is a power that is not given by the Bill itself. The Bill itself, in Clause 1(3), simply states that Orders in Council may be made. The Bill itself does not enable the Secretary of State to make regulations.

LORD WINDLESHAM

We now enter into the more complicated area. The Bill itself, as the noble Lord rightly says, is concerned with Orders in Council. The reason for this, if we go back to the beginning, is that the Secretary of State for a period of one year will take over the functions and responsibilities of the Governor, the Governor in Council, the Ministers, the Heads of Department and the Stormont Government as a whole. Therefore, there will be no way for the Northern Ireland Parliament to legislate. The Secretary of State is therefore given powers to bring before the Parliament of Westminster Orders in Council which will take the place of legislation. The subordinate Stormont legislation (regulations made under the Stormont Acts of Parliament) do not, in general, need to come to the Westminster Parliament; but the Special Powers legislation is obviously so important and is a matter of such great and proper interest to Members of Parliament at Westminster that what the Schedule says is that in this special instance not only is the Northern Ireland legislation to come before the Westminster Parliament but also the subordinate regulations made under that legislation. So, when we speak of regulations in this particular context, we are speaking only of regulations made under the Special Powers Act.

On Question, Amendment agreed to.

12.5 p.m.

LORD WINDLESHAM moved Amendment No. 5A: Page 5, line 2, at end insert ("this subparagraph shall have no application to the consent required under subsection (2) of section 1 together with the Ireland Act 1949 (which provides that in no event will Northern Ireland nor any part thereof cease to be part of His Majesty's dominions and of the United Kingdom without the consent of the Parliament of Northern Ireland); and—").

The noble Lord said: My Lords, I beg to move Manuscript Amendment 5A. Your Lordships will recall that in the debate on the first Amendment in the names of the noble Lords, Lord Shackleton and Lord Beswick, the mover of the Amendment explained that he and his friends in another place felt that there should be a reaffirmation of the guarantees on the Border. The Committee has accepted that Amendment. This additional Amendment deals with the same point but in more specific terms. In fact, it reproduces the undertaking in Section 1(2) of the Ireland Act 1949 and it appears on the Marshalled List because my right honourable friend the Lord President of the Council last night felt that it is right for the Government to accept an Amendment on these lines in addition to the Amendment which had been proposed by the Opposition and which your Lordships accepted in Amendment No. 1 earlier today. He accepted the Amendment because he had been assured that there were genuine fears in Northern Ireland that as a result of the Bill doubts might be cast on the validity of the 1949 pledge. As I said in my speech on Amendment No. 1, the 1949 pledge remains on the Statute Book. There is nothing in this Bill which alters the 1949 Act. But if it is felt that this reassurance is helpful to certain people in Northern Ireland and to Members of Parliament in another place, then it seemed right to my right honourable friend to accept it. For that reason, I am proposing a similar Amendment to your Lordships to-day.

LORD BESWICK

I put my name to the Amendment moved by my noble friend the Leader of the Opposition at the outset because I thought that conciliation and concession should be the order of the day. I accept responsibility for that Amendment although I am bound to say that I have my reservations about it. I would say to the noble Lord, Lord Windlesham, that although his additional Amendment reaffirms something which was agreed in the 1949 Act, that Act itself was agreed only after a good deal of anxiety, and indeed opposition, from the Members of the then governing Party, as I have good reason to remember.

It is my view that we made a mistake in 1949. The 1921 Act, as I understand it, was suggesting that the situation then being established in Northern Ireland was to be a temporary situation until such time as we could achieve the unification of Ireland; and although protection was given to those living within the confines of the new Province, nevertheless always we hoped that there would be a moving together. It seems to me that the wording of the 1949 Act made too rigid this division as between one part of Ireland and another.

I understand perfectly that assurances have to be given, but I sometimes think that assurances that are stated, re-stated and stated yet again have a counterproductive effect. Moreover, I also think that it can be shown from history that there are many who have created trouble because they believed that the consequences of that trouble would never be visited upon them. They felt that they were safe behind the assurances that were given by Her Majesty's Government here at Westminster to make trouble and create difficulties. They felt that in no circumstances would they have to face responsibility, because Her Majesty's Government here, under the terms of the 1949 Act and again under this Bill, would not derogate from the status of Northern Ireland. Nevertheless, I accepted that new clause.

But we now come to the additional affirmation, and there is this reference to the consent of the Parliament of Northern Ireland which could, as I see it, be different from the consent of the people in Northern Ireland. We are talking about having plebiscites. Let us suppose that we had a plebiscite and that it went rather strangely in the sense that people wanted to move nearer to or into the Republic. What then is the position if the Parliament of Northern Ireland, now prorogued, for various reasons, including the non-co-operation of Mr. Craig and his friends, is never reassembled, if the prorogation continues or if it is impossible to get that Parliament working again? In that case are we still bound by this assurance, even though there is no effective Parliament in Northern Ireland? Can the noble Lord tell us what would be the position in that case?

THE EARL OF LONGFORD

I should like to say a word in support of the noble Lord, Lord Beswick, but would the noble Lord, Lord Windlesham, care to answer that question before I speak?

LORD WINDLESHAM

I should be very grateful if the noble Lord could repeat it. I was studying another part of the Bill at the time. I am quite ready to comment on his general observations, but I think in the last sentence he ended with a specific question and I should be grateful if he could repeat it.

LORD BESWICK

I remember Mr. Macmillan once saying that he was not a twice-nightly turn and I am certainly not going through all that again. I was asking, and I am sorry that the noble Lord was not listening to me, what is the position if for some reason—for example, the non-co-operation of Mr. Craig and his friends—the Northern Ireland Parliament does not sit again but remains prorogued and it is not possible to re-establish it. What then is the effect of these words?

LORD WINDLESHAM

The position would not be altered by these words, because the Ireland Act 1949 is on the Statute Book. All that this is doing is to reproduce the language in another Act of Parliament, so that instead of one statutory provision which would then have to be taken into account there would be two.

THE EARL OF LONGFORD

I should like to support very briefly the words which have fallen from the noble Lord, Lord Beswick. I value the reputation for moderation which I am acquiring in my last years in Irish matters, no doubt due to declining virility, and I do not want to lose that reputation. But I must say a word in support of the noble Lord, Lord Beswick. I, like him, thought that the Act of 1949 was not a good Act, but we need not go into that now. However, I gather from the noble Lord that this makes no difference. This is just a piece of ceremonial language, so it has no point other than, it is thought, a psychological one. I agree with the noble Lord, Lord Beswick. I think that, in the end, these purely psychological affirmations which have no legal force defeat their objects, and for that reason and for other reasons I am sorry that this provision should be included.

LORD SHINWELL

May I ask the noble Lord a question? Yesterday, in the course of a very interesting debate, the noble Lord, Lord O'Neill of the Maine, made the suggestion, which has been made by others in the course of the debates on the subject of Northern Ireland, that Northern Ireland should be integrated with the United Kingdom. Let us assume—it may not be an ill-founded assumption; it could happen—that in course of time, for one reason or another, Northern Ireland is integrated with the United Kingdom. That might mean the abandonment of the Stormont Parliament. Let us assume that the Stormont Parliament no longer existed; that Northern Ireland was integrated with the United Kingdom. How would the terms of the 1949 Act, as stated by the noble Lord, Lord Windlesham, apply? Because that Act refers to the Stormont Parliament. I think that question might be answered.

LORD WINDLESHAM

My noble and learned friend the Lord Chancellor dealt very fully in his winding-up speech last night with the speech of the noble Lord, Lord O'Neill of the Maine, and he stressed the temporary nature of the Bill which is before your Lordships at the moment. This is a Bill which lasts for twelve months. It has been introduced at short notice and Parliament is being asked to approve it in a short period of time. It thus has to work and build on the existing structure. My right honourable friend the Secretary of State will of course be occupied in giving all his time, effort and energy to thinking what improved constitutional arrangements can be made, if such are needed, in Northern Ireland in the next twelve months. If he concludes that further legislation is needed, he will come back to Parliament at that time.

LORD SHACKLETON

This is an important dilemma which has confronted quite a number of us. I happened last night to express the view that I was not in favour of suggesting anything in regard to further integration at this moment, but clearly—and this is very hypothetical—if such a thing happened the Government, if that were their decision, would have to come to Parliament with legislation. That legislation would presumably have to attract to it the powers of the Northern Ireland Government and Parliament, which would then be wholly transferred to this Parliament. It would of course have the effect of rendering null and void that particular undertaking. But that is so far away at the moment, when we do not have that further legislation. I fully appreciate that there are a number of noble Lords, and my noble friends, who are not entirely happy about a situation in which, theoretical though it might be, the people of Northern Ireland might vote one way and old Stormont another way, but it seems to me that the resources of the Constitution would not be wholly exhausted in meeting that situation.

On Question, Amendment agreed to.

LORD WINDLESHAM

I beg to move Amendment No. 6. This is the final Amendment in the series which I introduced when I spoke on Amendment No. 2.

Amendment moved—

Page 5, leave out lines 6 to 11 and insert— ("(b) subject to any provision made by virtue of the last foregoing sub-paragraph, any statutory rules so made or coming into operation shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.")—(Lord Windlesham.)

On Question, Amendment agreed to.

LORD WINDLESHAM moved Amendment No. 7:

Page 5, line 17, at end insert— ("5. So long as section 1 of this Act has effect section 10(3), (4) and 5(a) of the Parliamentary Commissioner Act (Northern Ireland) 1969 and section 11(3) of the Commissioner for Complaints Act (Northern Ireland) 1969 shall have effect as if any reference therein to the Parliament of Northern Ireland were a reference to the Parliament of the United Kingdom.")

The noble Lord said: I beg to move Manuscript Amendment No. 7. The effect of this Amendment is to provide that the Reports of both the Parliamentary Commissioner for Northern Ireland and the Commissioner for Complaints should be made to the Parliament at Westminster rather than to the Parliament of Northern Ireland. It seems to us clearly right that these officials should continue to prepare their annual reports and to submit them. The only change so far as they are concerned is that such reports will henceforward be submitted, in accordance with the principles behind this Bill, to the United Kingdom Parliament. I beg to move.

LORD SHACKLETON

I rise only to say this to the noble Lord. Of course, the Commissioner will have greater powers to investigate complaints in Northern Ireland than the British Parliamentary Commissioner. This will be an unfamiliar situation for the Commons Committees or others who have to deal with the reports. I think I am right in saying that.

LORD WINDLESHAM

I could just add, perhaps, that in addition to the annual reports to which I referred—and this is all we are talking about; we are not talking about the powers of the Commissioner at all—there may be special reports on individual cases where injustice has been found which has not been remedied. As the noble Lord, Lord Shackleton, has indicated, the Commissioner for Complaints has an obligation in those circumstances, to make a special report. That report, too, would now come to the Westminster Parliament.

On Question, Amendment agreed to.

Schedule, as amended, agreed to.

House resumed: Bill reported with the Amendments.