Lords Sitting of 10 November 1998

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwell.

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Irvine of Lairg): My Lords, before business begins, I take the opportunity to inform the House that I am to attend the 44th Session of the North Atlantic Assembly in Edinburgh on Friday 13th November when the House will sit. Accordingly, I trust the House will grant me leave of absence.

Historic Vehicles
2.37 p.m.
Lord Montagu of Beaulieu: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so I wish to declare an interest.
The Question was as follows:
To ask Her Majesty's Government what will be the consequences of the proposals contained in the final draft of the European Council directive on End of Life Vehicles (COM (97) 358) for the collection, storage, repair, use and conservation of historic vehicles.
Lord McIntosh of Haringey: My Lords, historic vehicles will only be affected by this directive when they become the "waste" as defined under existing legislation; in other words, when the owners have decided to discard them. In any case, the directive does not affect dismantling by private individuals.
Lord Montagu of Beaulieu: My Lords, I thank the noble Lord for that Answer. Is he aware that it will bring considerable comfort and reassurance to some 300,000 owners of historic vehicles in this country? Will he instruct his officials dealing with the draft directive in Brussels to exercise due diligence to make sure that nothing is subsequently added that will affect the collecting and storing of historic cars? Perhaps, in due course, a leaflet can be issued by the DTI to explain the directive and its implications.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for his first response to my Answer. My answer to his subsequent questions in both cases is, yes, we have no interest in a directive which would damage the historic car business or avocation.
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We are concerned that directives of this kind should be well understood. Of course, it is only a draft directive at present so we are some way from a final version.
Lord Stoddart of Swindon: My Lords, why do we need a directive of this kind? Surely the matter is covered under the subsidiarity clauses of the Maastricht Treaty.
Lord McIntosh of Haringey: My Lords, how such a directive is implemented is a matter for member states. There are, however, substantial environmental issues concerned with the directive. At the moment, 75 per cent. of the content of discarded cars is recovered as metal. But 25 per cent. goes to landfill, including all kinds of hazardous materials—oil and so on—which create environmental damage. That is a proper concern of the European Community. The directive is concerned to reduce the amount of landfill and also of hazardous materials which are not properly treated.

Disability Living Allowance
2.39 p.m.
Lord Morris of Manchester Lord Morris of Manchester asked Her Majesty's Government:
What is their estimate of the number of people entitled to disability living allowance who have yet to apply for the allowance.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, provisional estimates from the first findings of the disability follow up to the 1996–97 family resources survey, published in March 1998, are available in the Library. They suggest that the number of people entitled to disability living allowance who have yet to apply for the allowance is around 1 million for the mobility component and 1.4 million for the care component. There is considerable overlap between the two figures as most recipients receive both. These estimates are necessarily very tentative.
Lord Morris of Manchester: My Lords, I am grateful to my noble friend for that reply and for bringing new help to disabled children and young people.
Is it correct—"whisper who dares!"—that underclaiming will this year exceed £6 billion? Is my noble friend aware that disabled people talk increasingly now of the "stigma" attached to claiming benefits Parliament intended for them, due not least to baseless allegations of widespread fraud when the benefits integrity project started in 1996?
What more can now be done to remove that stigma and increase take-up? For example, are we doing enough to inform carers and to simplify the application process?
Baroness Hollis of Heigham: My Lords, my noble friend is right that the amount potentially or theoretically

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unclaimed could well exceed £6 billion. At the moment, about half those who claim are not entitled to DLA. We estimate that half those who may be entitled to DLA do not claim it. My noble friend is right. The reason is that the DLA is a complex benefit. It is not compensation for disability but, as your Lordships know, it is extra help to meet some of the costs of care needs.
One explanation for the low take-up may be that disabled people find it difficult to gauge whether they qualify for DLA, whether they are entitled to claim it. It is also true that the forms, the system of claiming and self-assessment may be difficult to handle. It may also be that carers are so hard-pressed that they do not always know the full range of benefits available. We are working closely with the Disability Benefits Forum and discussing the issues now.
Lord Higgins: My Lords, is the Minister aware that among those people who are entitled to and are claiming DLA are some who are concerned that it may be taxed? In the light of what she has just said, does she accept that in principle it is designed to meet the extra cost incurred by disabled people and therefore it is quite inappropriate that it should be taxed?
Baroness Hollis of Heigham: My Lords, the noble Lord will be aware that the Prime Minister has repeated that there are no proposals to tax DLA. Equally, the noble Lord will be aware from his previous incarnation that taxation is a matter for the Chancellor.
Lord Addington: My Lords, does the Minister accept that it would help if adjudication officers received greater awareness training as regards disability problems so that more expertise could be brought to bear in the delivery of services? Does the Minister agree that in many cases people cannot find their way through the maze of problems and that even if they are familiar with the paperwork they are unaware of the reality of the situation with which they are dealing?
Baroness Hollis of Heigham: My Lords, the noble Lord, Lord Addington, is correct. Our officials receive disability awareness training. One of the leading organisations in this field, the Disability Income Group, has been helping us with that training over the past couple of years. We also have a benefits inquiry line, a form completion line and so on. But the basic point behind the noble Lord's question is correct. The forms and the benefit are complex and people require further help in both claiming the benefit and filling in forms to get it.
Baroness Gardner of Parkes: My Lords, is the Minister aware that even those people who have gone through this process and have received a notice to say that they have the benefit for life read reports in the press that "life" no longer means "life"? Can the Minister clarify exactly what "granted for life" means?
Baroness Hollis of Heigham: My Lords, when the benefit is given for life it is given for that period while
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a person's medical circumstances remain unchanged. It is for life while one's condition remains unchanged. Clearly, if one gets better or worse one's benefit level may need to be changed.
Baroness Masham of Ilton: My Lords, as disabled people fall into so many different categories, such as physical disability, mental disability, learning disabilities and so on, is it not simpler to have different forms? I am sure the noble Baroness agrees that the forms are extremely complicated.
Baroness Hollis of Heigham: My Lords, I accept that the forms are complicated even though they have been revised and made simpler over the past year or two. They are complicated because to acquire DLA people basically have to keep a diary. They are self-assessment forms. We are trying to have one form that covers all. The noble Baroness may well have a point. This is a matter that we have discussed with the Disability Benefits Forum. That body has helped us to produce the latest set of forms following discussion over the past year. But I shall put this point to the forum.
Lord Ashley of Stoke: My Lords, is this not the other side of the coin of the benefits integrity project which the Government pursued so enthusiastically to check on whether the benefits of severely disabled people were justified? Does my noble friend agree that the Government should pursue this just as enthusiastically and energetically to ensure that the take-up is as comprehensive as possible? Given the power of the Government's publicity machine, does my noble friend also agree that this problem can be solved overnight with the political will?
Baroness Hollis of Heigham: My Lords, I wish that my noble friend were right. If it could be solved overnight we would be doing it now. But if there are problems about people's knowledge of eligibility, assessment, the forms or understanding of what the benefit is about it is not simply an advertising campaign that is required. That was precisely why yesterday, for example, the Disability Benefits Forum met my honourable friend in the other place to discuss how to ensure better take-up of a benefit to which people are entitled and which we all want them to have.
Lord Hylton: My Lords, will the Government consider moving staff from work such as the benefits integrity project to the activities that have been mentioned today: the take-up of benefits and the complexities of the paperwork?
Baroness Hollis of Heigham: My Lords, the noble Lord, Lord Hylton, will be aware that the Government propose to bring to an end the benefits integrity project. We are discussing its replacement with the disability groups. Having said that, with every benefit one must ensure that people get that to which they are entitled. Sometimes they may be overclaiming or underclaiming. One must have those checks particularly with disabled people who get better and worse. The problem with the

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BIP—there have been some huge problems—is that it was imposed without consultation on disabled people, who found it extremely threatening. We have to ensure that we make routine the act of checking to ensure that people get the benefit to which they are entitled—it may be more or less than they receive at the moment—in a way that they believe to be fair, decent and reasonable.
Baroness Macleod of Borve: My Lords, does the Minister agree that when the applicant has correctly filled in the form he or she goes into an office where the money is paid in response? Does she agree that very often the queues are enough to put off the applicant who does not have time to queue in order to receive his or her entitlement?
Baroness Hollis of Heigham: My Lords, as far as I am aware most disabled people fill in the forms at home and post them back. If there is a problem in the delivery of those forms to people in the first place I should be grateful if the noble Baroness would supply me with further details. Normally, the form is requested over the telephone and is sent to the applicant by post. In my experience it is fairly unusual that people are expected to queue in an office.
Lord Phillips of Sudbury: My Lords, does the Minister agree that the chronic problem of under take-up of benefits has bedevilled the welfare system since its inception? Perhaps the Crick proposals for education in schools may engender more confidence in the taking up of benefits.
Baroness Hollis of Heigham: My Lords, that may well be right. My noble friends Lord Morris and Lord Ashley have identified two major problems. The problem is not confined to disability living allowance. We know that there are major problems of take-up on income support for pensioners. The House has been rightly concerned about that. We know that only about 75 per cent. of those entitled to family credit take up the benefit to which they are entitled.
The problems for disability are compounded over and beyond the usual problems either of a means test or complexity because the DLA is not a direct compensation. It is based on fair needs. Two people with the same disability may be able to manage their disability very differently; and as a result they have very different entitlements to benefit. Getting people to appreciate that and to understand the benefits to which they may be entitled is complex. Whether that can be done through citizenship in schools I do not know; but that the Government must take action, I entirely agree.

The Royal Mail: Postcodes
2.50 p.m.
Lord Mottistone Lord Mottistone asked Her Majesty's Government:
Whether they are aware that the Royal Mail, when forwarding letters to country addresses, is omitting the names of the village and county from the address.
Lord McIntosh of Haringey: My Lords, I understand from the Post Office that a postal address,
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designated by Royal Mail, consisting of a post town and a postcode, does not necessarily give a precise geographical or administratively accurate description of where a particular building is located. It is a sorting and routeing instruction to postal staff to enable mail to reach its destination from any part of the country by the quickest and most economical route, with the minimum of address information. Customers who wish to include a village and/or a county name are welcome to do so.
Lord Mottistone: My Lords, if I am asked where I live I say, for example, "I live in the village of Mottistone in the county of the Isle of Wight". We give the basic address to those who write to us. Is it right that we have to put other information on our letters which is sometimes confusing? In the early days delivery was by the Post Office; it is now by Royal Mail. For example, "Newport", which it insists on putting on letters addressed to me, is also a town in South Wales. For 60 years people in sorting offices have been sending letters addressed to my part of the country to South Wales in the first instance. The same may happen as regards other areas.
Would it not be more sensible if the Post Office relied entirely on its excellent postcode? All it needs is the address that we understand as our address plus the postcode. Nothing else is needed.
Lord McIntosh of Haringey: My Lords, I am sure that if anyone writes to the noble Lord as "Lord Mottistone, Isle of Wight" the letter will reach him immediately, whatever else is put on the envelope.
However, the noble Lord asks an interesting question to which I sought the answer because it seemed to me that the postcode should match a post town. In other words, the digits in the first block should be the same as a post town. I am told that although (and perhaps because) 80 per cent. of mail is scanned at some stage during its transmission, it is difficult to read many people's handwriting and there would be many mistakes if a post town were not included as well as a postcode. I am sorry about that as well.
Lord Ewing of Kirkwood: My Lords, as one of only two postmen in your Lordships' House, may I ask my noble friend whether he is aware that the main problem is that the optical reading machine in the mechanised letter sorting offices simply cannot read "Lord Mottistone of Newport in the Isle of Wight"? The machine can read only the postcode. That is all that is needed. The remainder of the address is only for the benefit of those sending or receiving the letter. All that the optical reading machines can read are the postcodes. Whether or not one puts "Lord Mottistone" on the envelope, the optical reading machine will turn a blind eye to it.
Lord McIntosh of Haringey: My Lords, my noble friend Lord Ewing and my noble friend Lord Clarke of Hampstead are not the only two postmen in the House. We heard yesterday from the noble Lord, Lord Dearing, who told us that he has a Post Office pension.

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My noble friend is right in the sense that it is the postcode above all which is optically scanned. He is right to say, as I said in answer to the noble Lord, Lord Mottistone, that it does not always work well. That is why, unfortunately, a post town is also necessary.
Lord McConnell: My Lords, is the Minister aware that although some firms receive a perfectly accurate name and address the postcode indicates the name and address of another person of the same surname in the locality? Are any steps likely to be taken to make the operation more efficient?
Lord McIntosh of Haringey: My Lords, we have some of the most precise postcodes in the world. They go into greater detail and have smaller blocks than almost anywhere else except the United States, which has now added a four digit code to its five digit code. The chance of there being two people with the same surname in the same postcode is relatively low. I doubt whether that causes a great many problems.

EU/WEU Integration: Government Policy
2.55 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
Whether they support a closer relationship between the Western European Union and the European Union, leading in time to the incorporation of the Western European Union into the European Union.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the Government support the objective of the Amsterdam Treaty for closer institutional relations between the EU and the WEU as one way to help develop a more coherent and effective common European foreign and security policy. Amsterdam makes clear that there can be no EU/WEU integration unless and until all member states agree by unanimity in the European Council.
The Prime Minister has made clear that he wants European foreign policy to be more effective and, if necessary, to have the military tools to back that policy. The Government are not focusing on institutional changes though these may come.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that clear statement of a shift in government policy since the Amsterdam Treaty was negotiated. I should love to know, as I am sure would all noble Lords, how much further the initiative is intended to go. Officials have spoken of opening up the debate. Others have talked about the potential fourth pillar of the European Union into which the WEU would be merged. Others have again spoken of dismembering the WEU
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between NATO and the European Union. Do the Government yet have anything more coherent than the idea simply of reopening the debate?
Baroness Symons of Vernham Dean: My Lords, the Prime Minister made it clear that NATO would remain the foundation of collective security in Europe. The Prime Minister launched the debate about the sort of foreign policy that the EU should have at Poertschach. As Kosovo has shown, Europe needs to strengthen its political voice. As part of that Europe requires credible military forces and the political will to use them.
We are prepared to think afresh and we have an open mind. But it is important to remind the noble Lord of the crucial role here of NATO. The Prime Minister has stressed that the control of armed forces remains a matter for national governments and that there is no place for a European standing army. I hope therefore that that has cleared some of the points that the noble Lord raises and cleared his mind a little more on the issues.
Lord Ponsonby of Shulbrede: My Lords, does the Minister agree that it was the OSCE which together with NATO brokered a peace deal with President Milosevic in NATO, and that the WEU was nowhere to be seen while that peace process was under way? That in itself reflects badly on the WEU. Does my noble friend therefore agree that, whatever the future may hold for the WEU, the status quo cannot continue?
Baroness Symons of Vernham Dean: My Lords, that is the purport of what the Prime Minister indicated. I believe that all noble Lords would acknowledge the important role of the OSCE in the deal thus far negotiated with Mr. Milosevic. Kosovo highlighted some of the current strengths in the arrangements that we have because the EU was able to stand united behind the international communities' pressure on Belgrade; and the EU was able to exercise its economic muscle through further sanctions. However, I agree with my noble friend that it also put the spotlight on some of the weaknesses in current arrangements, in particular the problem of acting quickly and decisively enough to address an international crisis.
Lord Campbell of Alloway: My Lords, in the context of Anglo-French relations, can the Minister tell us what is the attitude of France to the WEU?
Baroness Symons of Vernham Dean: My Lords, France is a member of the WEU. I am sure that the French will wish to engage in any discussions that the Prime Minister's initiative will take forward. We are at an early stage in that initiative, so I am not able to give the noble Lord any particular insight. However, if he would like, and if it would be helpful, I can send him a chart showing the current arrangements of the WEU and the various countries which are involved in their different ways.
Lord Avebury: My Lords, as the Minister has twice mentioned Kosovo as an example of the need to

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strengthen Europe's political voice, can she say what action has been taken since President Milosevic refused to allow the prosecutor of the ICTY, Miss Louise Arbour, to visit Kosovo? What action does she believe can be taken to deal with that gross breach of Security Council Resolution 1199?
Baroness Symons of Vernham Dean: My Lords, I had hoped that we were discussing the WEU and EU and I do not have detailed information on the current position in Kosovo in relation to Miss Arbour. The noble Lord asked an important question. I recognise that it is an issue in which he has taken a great deal of interest, as have your Lordships in general. I will write to the noble Lord and place a copy in the Library.
Lord Chalfont: My Lords, in the light of the Minister's reassuring and constructive reply from the Dispatch Box, will she agree with two propositions? The first is that it is important that European countries should have the requisite military power to stand behind whatever political decisions they take. Secondly, in that context is it not true that NATO is the correct vehicle for delivering that power? Would it not be wrong to do anything which either duplicated or usurped the power of the North Atlantic Treaty Organisation?
Baroness Symons of Vernham Dean: My Lords, yes. Not all European countries are members of the WEU and some are neutral. But of course I can agree with the noble Lord that it is enormously important that nothing in the Prime Minister's initiative is read as undermining or duplicating NATO's role, a point which was stated unequivocally by my right honourable friend in his speech at Poertschach.
Baroness Knight of Collingtree: My Lords, speaking as a Member of this House who spent 11 years in the WEU, I ask the Minister: does she believe that it might be well and good if Members understood that the WEU exists solely for European defence?
Baroness Symons of Vernham Dean: My Lords, yes. The role of the WEU is probably not as clearly understood as it might be. Of course, as the Question indicates, that role is now under scrutiny. Indeed, the subject of European defence policies was discussed by your Lordships in great detail when we debated the aspects of CFSP in the Amsterdam Treaty. I believe that the noble Baroness is right and that the relationship between the WEU and Europe on the one hand and the WEU and NATO on the other is one on which a little more clarity from time to time would be helpful.
Lord Bruce of Donington: My Lords, is the Minister aware that the information she volunteered in answer to the question put to her by the noble Lord, Lord Campbell of Alloway, is of great interest? Will she ensure a wide circulation of the document which may help considerably in clarifying the position?
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In the meantime, will the Minister assure the House that any endeavour to convert the unanimity rule applying to such changes will not be side-stepped into moves by the Commission to turn the required vote into one of qualified majority?
Baroness Symons of Vernham Dean: My Lords, as your Lordships were able to see when we discussed the Amsterdam Treaty, the common strategies developed under CFSP are subject to a unanimity vote. However, the common positions which flow from those strategies are subject to qualified majority voting unless they are not covered by a common strategy. I hope that point is clear. Your Lordships—I would not necessarily include my noble friend—were to some extent reassured by the provisions on unanimity and CFSP in the Amsterdam Treaty.
As regards the second point which my noble friend made, it is difficult to describe in words across the Floor of the House the structures of the WEU. A helpful chart which shows the WEU's membership, associate membership, associate partners, observers and so forth should be of some help to your Lordships in coming to grips with these issues.
Baroness Rawlings: My Lords, further to the question asked by the noble Lord, Lord Bruce of Donington, and despite the Amsterdam Treaty, can the Minister confirm whether or not the proposals set out by the Government at Poertschach on the establishment of a closer EU defence formation included the extension of qualified majority voting? If not, can she tell the House whether the Government would support such an extension?
Baroness Symons of Vernham Dean: My Lords, I do not believe that the discussions have been anything like as detailed as the noble Baroness's question implies. My right honourable friend the Prime Minister made clear that we are approaching the debate with a fresh mind. He also made clear that NATO must remain at the foundation of our collective security policy in Europe. The Prime Minister also set out some thoughts on the development of the European security and defence identity, which he said must continue to be fulfilled primarily by NATO. As regards the specific question of the extension of qualified majority voting, I do not believe the Prime Minister's speech covered that in detail. However, if I am wrong in so saying I shall write to the noble Baroness and let her have the full text of what the Prime Minister said.

Northern Ireland Bill
3.8 p.m.
Report received.
Clause 1 [Status of Northern Ireland]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 1:
Page 1, line 11, after ("if") insert (", after the entry into force of the agreement between the Governments of the United Kingdom and the Republic of Ireland in the Annex to the Belfast Agreement,").
The noble Lord said: My Lords, this is one of a minority of amendments being proposed by Members of your Lordships' House other than Government Ministers. The Bill has been subjected to an avalanche of government amendments. During an earlier stage of our deliberations I complimented the Minister on his flexibility in moving so many amendments. However, his flexibility has reached the stage where the Bill is so bent that it can hardly stand up! According to my calculations yesterday, the Government have so far tabled 449 amendments, including 25 new clauses and one new schedule. Two more amendments were added to the Marshalled List overnight, bringing the total to more than 450. It is rather difficult to calculate the number because some of the amendments which were tabled were subsequently withdrawn. The latest example is that on Friday the Government withdrew some of the amendments which they had tabled on Thursday. That process is extremely inconvenient for the House. It may show the virtues of having a second Chamber in which to alter legislation to that extent but it is not a good way to legislate. It makes it exceptionally difficult for Members of your Lordships' House to follow what is being proposed in the Bill, let alone people outside who have an interest in it.
Having registered my protest in that respect, we must start to discuss the 176 or so government amendments which we have before us over the next two days, as well as the modest number of propositions which I hope to put before your Lordships in the course of our debates.
Amendment No. 1 attempts to bring into unison the constitutional changes which are to take place in the Republic of Ireland and in Northern Ireland within the United Kingdom. It is extremely important to this whole process, following from the Belfast agreement, that the two countries and the two governments should proceed hand-in-hand together.
Great symbolism has been attached to that throughout the process and that was particularly so when we returned during the Recess for the emergency Bill, when both governments and both parliaments moved on the same day following the dreadful bombing at Omagh. There is great symbolism throughout many of the clauses and parts of the Belfast agreement but there is no greater symbolism within it than the changes to the two constitutions. I believe that they should move together and that is the intention of this amendment and Amendment No. 3, which is grouped with it.
I have been accused earlier in our debates of being pessimistic about the possibilities of the agreement. I am not. I am optimistic, as I have frequently done my best to emphasise. But that is not a reason for ignoring what may happen if the agreement does not operate as smoothly as we all hope.
If the agreement does operate smoothly, as we all hope, then it will be an historic milestone when the two constitutions are changed simultaneously. Under the validation and implementation provisions of the Belfast agreement, it is important that the two constitutional changes come in together. If by any sad chance the process flounders at some point, clearly we should not
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wish to alter the United Kingdom constitution in the absence of an alteration to the Republic of Ireland constitution. Therefore, it is important also in that respect.
Whatever may be the future of the agreement—and we all hope that it will succeed and the present difficulties will be overcome, as so many difficulties have been overcome in the course of the process—it is important that the two constitutional changes which form the basis of the agreement should proceed together. That is the purpose of the amendment. I beg to move.
3.15 p.m.
Lord Molyneaux of Killead: My Lords, I strongly support this amendment and Amendment No. 3. I respectfully remind your Lordships that the two Governments assented to and signed the Good Friday agreement at the completion of some rather hasty drafting. Moreover, many members of the general public in Northern Ireland who endorsed the agreement in the referendum now regret their hasty action in voting for a referendum booklet which even the draftsmen themselves did not fully understand. By that, I do not mean the Minister and his team but I mean those who participated in the negotiations. Hence, as the noble Lord, Lord Cope of Berkeley, said, we have what one might call the mutilation of the Bill by the Government themselves. Many people received a clear impression that all the various structures and devices embodied in the Good Friday agreement would advance broadly in line and in step.
It is not only the citizens of Northern Ireland who are somewhat baffled and confused. There is now clear evidence that the good citizens of Great Britain are enraged by what they perceive to be an immediate and permanent amnesty. It is no good saying that the prisoners are released on licence. That is not generally understood. In fact, it is a non-event anyway. But the amnesty is perceived to be the case and the most recent example which has caused outrage on this island was the release of the Hyde Park murderers. After seven months, there have been no matching or reciprocal steps on the part of the terrorists, from whichever quarter they come, who planned those murders.
I have read rather amusing accounts of the IRA army council members visiting—that is the term they use—some 66 individual dissident Republicans. Those reports assert that the visitors threatened their hosts with very grave consequences of disobedience. But if the kindly visitors were really serious, why do they not provide the authorities, north and south, with the names and addresses of those to whom they presumably presented their visiting cards? They could disclose also the precise location of the deadly hardware which is in the co-ownership of the terrorists generally.
That may be straying rather wide of the appropriate constitutional point which the noble Lord, Lord Cope, has just made. It would be extremely reassuring if there were to be constitutional reciprocity as suggested in the amendment moved by the noble Lord, Lord Cope.
Lord Dubs: My Lords, in his opening comments, the noble Lord, Lord Cope, said that many amendments had

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been tabled to the Bill. He implied that that was something of which he was critical. I should say to the noble Lord and the House that this legislation has had to be prepared very quickly indeed. In a perfect world we should have had more time to go through the drafting of the legislation and avoid the large number of amendments that had to be brought into your Lordships' House after the debate before the Summer Recess in the other place.
Of course, I regret that so many amendments have been put before your Lordships. I ask your Lordships' understanding of the fact that it has been necessary to have a timetable which meant that we had to do that work very quickly. Many further discussions with the parties in Northern Ireland took place over the summer. That is the reason for many of the amendments. Others are technical or drafting amendments to improve the Bill. I repeat that I hope your Lordships will understand and be sympathetic to the need to get this Bill quickly onto the statute book because the peace process depends to a large extent on making rapid progress with those measures.
I turn now to deal with the introductory comments made by the noble Lord, Lord Molyneaux. I do not agree with him that the parties to the Good Friday agreement did not understand it fully. In some respects, they understood it very well indeed. There may be some points of detail which, in the hurry to get the agreement signed, were not discussed as fully as they might have been. However, my understanding is that the parties are aware of what they agreed to on Good Friday and, by and large, they support it. I do not believe that there has been any movement away on the part of the people who originally supported the agreement, as the noble Lord suggested.
There have been significant achievements. I remind the noble Lord that with the exception of one small grouping all the terrorist groups are on a ceasefire. We have made considerable progress with the referendum, with an Assembly in place, with a First Minister and a Deputy First Minister in place. Intensive discussion is taking place about various of the institutions to be set up under the Good Friday agreement. Therefore, although there are still some difficulties ahead of us, I believe that progress has been most significant—indeed, progress that most people would not have believed could have been attained had we had this conversation perhaps eight or nine months ago.
I turn now to the substance of the amendments. We had some debate on the issues in Committee on amendments with a similar effect to those proposed now by the noble Lord, Lord Cope, seeking to bring Clauses 1 and 2 into force only at the point at which the Irish constitutional amendments became law in that jurisdiction. I reassured the noble Lord that that was precisely the intention and that we should achieve it by the Secretary of State making a commencement order for those provisions to come into force on the same day that the Irish brought into force their constitutional amendments. Indeed, that would be the day on which the main institutions of the agreement would come into full effect. The Irish Government will be under an obligation in international law to bring those provisions into force.
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The two sets of constitutional provisions can clearly only come into force simultaneously: they are complementary and represent the working through of the consent principles to which the agreement binds us. We are firmly committed to making every effort to reach the stage of devolution when these two sets of provisions will become live. But if we were by some mischance not to get there, the Irish constitutional amendments could not come into force. I reassure the House, once again, that we would not bring ours into force either. I have made clear what the position of the Secretary of State would be. The noble Lord, Lord Cope, was good enough to say in Committee that he did not wish to cast doubt on the word of the Secretary of State in this matter.
Therefore, as at Committee stage, I believe that the spirit and indeed the intention of the noble Lord's amendments are met. My objection to them—apart from the fact that they are necessary—is that they seek to make additions to texts which form part of the agreement. I suggest that those who say that they are committed to the agreement simply cannot do so. We do not want anyone else adding glosses to their obligations under the agreement, and we should not do so ourselves. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Cope of Berkeley: My Lords, in response to the Minister's first points, I am certainly sympathetic to the need for this legislation, as I have made clear throughout our proceedings. For the most part, I am not complaining about the government amendments that are being made. However, I am complaining about the great difficulty for your Lordships, and other people outside the Chamber, which arises when such amendments are tabled so very late in the proceedings. It is not as if it is exactly a rare occurrence for this Government. I understand that about 350 government amendments were made to the Scotland Bill during its time in this House.
After all, this Bill left another place at the end of July and here we have amendments being tabled on the very night before our Report stage debates. Indeed, some of them were tabled and then withdrawn during the course of last week, in particular on Thursday and Friday. That is the difficulty. I understand that the practice may have been essential and that the Government may have been driven to it in this particular instance. However, it should not become normal practice. It is only right to draw the attention of the House, and indeed that of the Government, to the fact that that is not an acceptable practice. It makes good legislation very difficult to achieve.
I turn now to the substance of the amendments. I still believe that it would have been better to have put into the legislation the undertaking which the Minister has given on behalf of the Secretary of State. The Irish legislation provides that, the referendum having been successfully conducted in the Republic, their constitution will automatically change when the agreement comes into force. It would be better if our legislation were set up so that the changes in the constitution in the UK also came into force

635
automatically when the agreement came into force. I do not doubt the word of the Secretary of State; nor do I wish to be seen to do so. In view of the Minister's undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Monson Lord Monson: moved Amendment No. 2.
Page 1, line 15, after ("of") insert ("the Republic of").
The noble Lord said: My Lords, this amendment is needed for two reasons. It is needed, first, for consistency with Schedule 2, which was amended in Committee. Secondly, and much more importantly, the amendment is needed from the point of view of perception, which, as most people know, is and always has been all important in Northern Ireland. Knowledgeable and highly experienced noble Lords from every quarter of the House, such as the noble Lord, Lord Fitt, and the noble and learned Lord, Lord Mayhew, stressed the importance of perception in backing the same amendment when I moved it in Committee. Indeed, despite his nationalist background, the noble Lord, Lord Fitt, backed it wholeheartedly.
The suspicion and resentment of the broad mass of the unionist population at the Republic's very long-standing reluctance to renounce its territorial claim on the north runs deep. This suspicion will be revived if it appears that the Republic is finally, and at long last, abandoning the offending phrases of Articles 2 and 3 of its constitution only to replace them with an implied titular claim to the entire island of Ireland.
It is one thing for Her Majesty's Government to accept the deletion of the word "Republic" in the Good Friday agreement as a good-will gesture. Indeed, there can be no objection to that. However, it is very different to accept such wording in an Act of Parliament. By definition, an Act of Parliament is the concern of the people of the United Kingdom and no-one else. When this point was put forward on an earlier occasion the noble Lord, Lord Dubs, seemed to suggest that we were, nevertheless, obliged to use the wording presently to be found in Clause 1 in consequence of a binding commitment made in the Good Friday agreement. However, if one reads the agreement from cover to cover, no such binding commitment can be discerned.
If we want the Good Friday agreement to work, and if we want it to stick, it is vital to reassure the majority in Northern Ireland that there are no more hidden agendas and that there is no covert understanding that the British Government will put up no resistance to any future attempts by the Republic to chip away, little by little, at the foundations of the Union. That is why the amendment is important. I beg to move.
Baroness Park of Monmouth: My Lords, I should like to express my support for the amendment and make two brief comments. I entirely agree with the noble Lord, Lord Monson, and many others that perception is all. In this case, it is absolutely vital that we should be seen to be dealing with the Republic of Ireland, which is its legal title. I suggest that we may in any case have legal problems later if we continue to use the word
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"Ireland" only and we do not use the legally-constituted title of that country; namely, the Republic of Ireland. I can see no difficulty in that respect. They are naturally very proud of being a republic. I cannot see why it is necessary in any way to depart from the facts. That is why I support the amendment.
Lord Glentoran: My Lords, I also support the amendment. It seems to me that the Bill as written is incorrect. The correct nomenclature is as set out in the amendment.
Lord Molyneaux of Killead: My Lords, I, too, support the amendment. We have been told that the phrase "the Government of Ireland" resulted from horse trading during the negotiations on Good Friday, especially the last stages. In those circumstances, I suppose it was inevitable that precision was not really one of the main considerations; indeed, haste was everything. The Irish delegation was probably asked by the American chairman, "What would you like to call yourselves?". In that rather chummy atmosphere, where people had been starved of sleep for quite a long time, it was perhaps quite natural that none of the Governments nor the 14-odd parties—some of them distinctly odd—was greatly bothered by what was going on.
But what happens when it comes to drafting what are strictly speaking legal documents; for example, an extradition application for an alleged drugs baron? Will the self-selected title "Ireland" run the risk of the extradition document being rejected on grounds of its being defective? Some of your Lordships will recall an occasion two or three years ago when a Dublin court rejected a British warrant which had a pinhole in the top left-hand corner and was technically defective. That was a good dodge in that the warrant was never granted. In the light of this lack of clarity and precision I suggest that we should support the amendment.
3.30 p.m.
Lord Skelmersdale: My Lords, I have absolutely no doubt that the Minister's brief is headed "Resist". If I am correct in that assumption, will the noble Lord respond to a point made by the noble Lord, Lord Monson, when he introduced this amendment because that is an important point? If I may say so, the noble Lord, Lord Monson, slightly glossed over the point but it is clear. Paragraph 3(a) of Schedule 2 on page 53 refers specifically to,
"the surrender of fugitive offenders between Northern Ireland and the Republic of Ireland".
If you have one, you must have both. If the noble Lord sticks to his brief and resists the amendment—as I assume he will—he must be prepared on Third Reading to produce an amendment to amend paragraph 3(a) of Schedule 2.
Lord Cooke of Islandreagh: My Lords, I wish to support this amendment for all the reasons that have been stated so clearly. However, there is a further reason. As has already been mentioned, there is no such thing as the government of Ireland. To use an expression

637
which does not exist in a UK Bill which is to become an Act is surely rather foolish. I am surprised that the legal draftsmen have not corrected this themselves in the period between the end of June and now. In the first place they should consider the Acts of the Republic of Ireland. They will find that in 1949 an Act in the parliament of the Republic of Ireland clearly referred to the Republic of Ireland. That is the legal name in the Republic.
Further, the Ireland Act of 1949 dealt with the change from the name Eire to that of the Republic. Section 1(3) states,
"The part of Ireland referred to in subsection (1) of this section is hereafter in this Act referred to, and may in any Act, enactment or instrument passed or made after the passage of this Act be referred to, by the name attributed thereto by the law thereof, that is to say, as the Republic of Ireland".
There is, therefore, no other expression properly to describe that part of Ireland.
Lord Kilbracken: My Lords, I, too, strongly support this amendment. It seems to me to be beyond any doubt that the term "Ireland" embraces all 32 counties of that island. Northern Ireland by its own name suggests that it is a part of Ireland. There is, therefore, no such thing—as the noble Lord said—as the government of Ireland; but one day, if there is a united Ireland, there will be.
Lord Cope of Berkeley: My Lords, it seems to me legally dubious as well as offensive in some respects for the words "the Government of Ireland" to appear in this context in this legislation. I do not wish to add to what has already been said in the debate except to say that as regards page 53 the insertion of the words "the Republic of Ireland" was proposed by the noble Lord, Lord Monson, but was accepted by the Government in the course of the Committee stage. That is why the words "the Republic of Ireland" are used there. As the Government have accepted those words on page 53, there is at least some logic in following the same precedent in the case of the earlier clause.
Lord Dubs: My Lords, Amendment No. 2 is identical to one moved by the noble Lord, Lord Monson, in Committee. I explained on that occasion that the language of Clause 1 formed part of the agreement. On that ground alone I urged that it should be adhered to. I also explained that the use of this term was part of an alignment of practice between ourselves and the Irish Government, the other side of which was a welcome change by them to the use of the term, "Government of the United Kingdom of Great Britain and Northern Ireland".
Other noble Lords drew attention to the fact that in the past international agreements between ourselves and the Irish Government had been prepared in two versions; one of them using the terminology favoured by the Irish, the other reflecting our own preferences. Now that we have agreement on the consent question, the Irish feel
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able to use our preferred terminology for this state. We are using theirs for the Irish state. The international agreement annexed to the Good Friday agreement is the first instance of this. I suggest that that is welcome.
These usages are also reflected in the text of Clause 1, which appears in the Bill precisely as it was set out in the Good Friday agreement. If we depart from it the consequence is stark and simple. The whole agreement structure is blocked. It is a requirement for the entry into force of the international agreement—that is, article 4, paragraph (a)—that British legislation has been enacted to implement these provisions. Unless we wish to see the agreement blocked, that is what we must do. We want the Irish to implement the constitutional changes they have signed up to without any variation, and we should do the same.
The noble Lord, Lord Monson, said in Committee that he did not believe that what was agreed on Good Friday could have any bearing on an Act of Parliament. I fear that is not so. Unless the Bill reflects the agreement, the requirements for the entry into force of the international agreement that underpins the coming into effect of all the arrangements agreed between the parties are not met.
The noble Lord, Lord Skelmersdale, asked me to reply to the point made by the noble Lord, Lord Monson. However, the noble Lord, Lord Cope, has already done that when he referred to the amendment of the noble Lord, Lord Monson, that I accepted, which substituted "Republic of Ireland" for "Ireland" in paragraph 3 of Schedule 2. But that, I suggest, is an entirely different matter. It does not concern the text of the agreement and it does not concern the new understanding on practice in referring to our respective governments that we have reached with the Irish. The text of Clauses 1 and 2 was accepted by the participants in the talks. I do not believe that we should depart from that here. I ask the noble Lord to withdraw his amendment.
Lord Cope of Berkeley: My Lords, before the noble Lord sits down, can he tell us why in the same clause a reference is made to,
"Her Majesty's Government in the United Kingdom",
rather than the more common formulation of,
"The Government of the United Kingdom of Great Britain and Northern Ireland",
which is the expression used in the agreement? The expression,
"Her Majesty's Government in the United Kingdom",
seems to me to be at least a nod in the direction of the sensibilities of the south. That is interesting to say the least. I readily acknowledge that it occurs in the agreement, but it is nevertheless interesting.
Lord Dubs: My Lords, I understand by the Interpretation Act that the "United Kingdom" means the United Kingdom of Great Britain and Northern Ireland. That is the traditional expression that we use.
Lord Cooke of Islandreagh: My Lords, before the Minister sits down, why does he not take account of an

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Act of the United Kingdom which requires that this part of Ireland shall be known as the Republic of Ireland in all future enactments or statutes?
Lord Dubs: My Lords, my understanding is that we have now moved into a new era determined by the Good Friday agreement. As I said earlier, our Government and the Government in Dublin agreed on the terminology along with the other parties to the Good Friday agreement. All I am asking is that we stick by what has been agreed because if we believe in the Good Friday agreement I suggest that we do not have any other choice.
Lord Monson: My Lords, I am most grateful to noble Lords in all quarters of the House for their powerful and convincing support. My noble friend Lord Molyneaux surmised that the Americans may have had something to do with the wording. I suspect he is right. There is nothing the Irish-American lobby are working at harder than brainwashing their fellow Americans into believing that the Republic rightly owns the whole island of Ireland and the British are in illegal occupation of the north.
The noble Lord, Lord Cope, said that the wording as it stands is legally dubious and offensive. He is absolutely right. The Minister said that the wording forms part of the Good Friday agreement. There may have been some verbal understanding, but there is nothing in this document which requires an Act of the United Kingdom Parliament to use the phrase "Ireland" rather than the phrase "Republic of Ireland". I am not convinced by the Minister's reply.
There was considerable unease on the Conservative Benches in another place when the Bill was being considered there. Of course, the House of Commons was given practically no time to discuss it. The other place should be given a chance to look at it at greater leisure and therefore I intend to ask the opinion of the House.
3.41 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 118; Not-Contents, 146.

Division No. 1

CONTENTS

Addison, V.

Brookeborough, V.

Ailesbury, M.

Brougham and Vaux, L.

Ailsa, M.

Bruntisfield, L.

Ampthill, L.

Burnham, L.

Astor of Hever, L.

Butterfield, L.

Balfour, E.

Butterworth, L.

Belhaven and Stenton, L.

Cadman, L.

Berners, B.

Caithness, E.

Biffen, L.

Campbell of Alloway, L.

Blatch, B.

Carnegy of Lour, B.

Borthwick, L.

Carnock, L.

Braine of Wheatley, L.

Chalker of Wallasey, B.

Bridges, L.

Charteris of Amisfield, L.

Broadbridge, L.

Chesham, L.

640

Clark of Kempston, L.

Leigh, L.

Cochrane of Cults, L.

Liverpool, E.

Cockfield, L.

Long, V.

Cooke of Islandreagh, L. [Teller.]

McConnell, L.

Cox, B.

Masham of Ilton, B.

Craig of Radley, L.

Merrivale, L.

Crickhowell, L.

Milverton, L.

Cuckney, L.

Molyneaux of Killead, L.

Cullen of Ashbourne, L.

Monson, L. [Teller.]

Davidson, V.

Monteagle of Brandon, L.

Denham, L.

Moran, L.

Dixon-Smith, L.

Mottistone, L.

Downshire, M.

Munster, E.

Dundee, E.

Nickson, L.

Eames, L.

Norrie, L.

Ellenborough, L.

Oliver of Aylmerton, L.

Elles, B.

Oppenheim-Barnes, B.

Elliott of Morpeth, L.

Palmer, L.

Exmouth, V.

Park of Monmouth, B.

Fookes, B.

Quinton, L.

Gainsborough, E.

Rankeillour, L.

Gisborough, L.

Rathcavan, L.

Glentoran, L.

Rawlinson of Ewell, L.

Gray of Contin, L.

Rees, L.

Haddington, E.

Renton of Mount Harry, L.

Haig, E.

Romney, E.

Halsbury, E.

Rotherwick, L.

Harding of Petherton, L.

Sandford, L.

Harlech, L.

Sandwich, E.

Harmsworth, L.

Skelmersdale, L.

Harrowby, E.

Southwell, Bp.

Holderness, L.

Stockton, E.

HolmPatrick, L.

Stodart of Leaston, L.

Hylton-Foster, B.

Strathcarron, L.

Inglewood, L.

Swinfen, L.

Ironside, L.

Swinton, E.

Jenkin of Roding, L.

Teviot, L.

Jopling, L.

Thomas of Gwydir, L.

Kenyon, L.

Vivian, L.

Kilbracken, L.

Waddington, L.

Knight of Collingtree, B.

Weatherill, L.

Knollys, V.

Westbury, L.

Lang of Monkton, L.

Wilcox, B.

Lauderdale, E.

Wynford, L.

Layton, L.

Young, B.

NOT-CONTENTS

Acton, L.

Clarke of Hampstead, L.

Addington, L.

Cledwyn of Penrhos, L.

Ahmed, L.

Clinton-Davis, L.

Allen of Abbeydale, L.

Crawley, B.

Allenby of Megiddo, V.

David, B.

Alli, L.

Davies of Coity, L.

Amos, B.

Davies of Oldham, L.

Annan, L.

Dean of Beswick, L.

Archer of Sandwell, L.

Dholakia, L.

Ashley of Stoke, L.

Diamond, L.

Avebury, L.

Dixon, L.

Bach, L.

Dormand of Easington, L.

Barnett, L.

Dubs, L.

Beaumont of Whitley, L.

Elis-Thomas, L.

Berkeley, L.

Evans of Parkside, L.

Blackstone, B.

Evans of Watford, L.

Borrie, L.

Ewing of Kirkford, L.

Brightman, L.

Ezra, L.

Brookman, L.

Falconer of Thoroton, L.

Bruce of Donington, L.

Falkland, V.

Burlison, L.

Farrington of Ribbleton, B.

Carlisle, E.

Gallacher, L.

Carmichael of Kelvingrove, L.

Geraint, L.

Carnarvon, E.

Gilbert, L.

Carter, L. [Teller.]

Glenamara, L.

Castle of Blackburn, B.

Gordon of Strathblane, L.

Chorley, L.

Goudie, B.

Christopher, L.

Gould of Potternewton, B.

641

Graham of Edmonton, L.

Morris of Manchester, L.

Grenfell, L.

Nicol, B.

Grey, E.

Northbourne, L.

Hacking, L.

Northfield, L.

Hardie, L.

Ogmore, L.

Hardy of Wath, L.

Paul, L.

Harris of Greenwich, L.

Peston, L.

Harris of Haringey, L.

Phillips of Sudbury, L.

Haskel, L.

Ponsonby of Shulbrede, L.

Hayman, B.

Prys-Davies, L.

Headfort, M.

Ramsay of Cartvale, B.

Hilton of Eggardon, B.

Randall of St- Budeaux, L.

Hogg of Cumbernauld, L.

Rea, L.

Hollis of Heigham, B.

Redesdale, L.

Hoyle, L.

Rendell of Babergh, B.

Hughes of Woodside, L.

Richard, L.

Hunt of Kings Heath, L.

Sainsbury of Turville, L.

Hylton, L.

St. John of Bletso, L.

Irvine of Lairg, L. [Lord Chancellor.]

Sawyer, L.

Scotland of Asthal, B.

Islwyn, L.

Sefton of Garston, L.

Jay of Paddington, B. [Lord Privy Seal.]

Serota, B.

Shepherd, L.

Jenkins of Putney, L.

Shore of Stepney, L.

Kirkhill, L.

Simon, V.

Simon of Highbury, L.

Levy, L.

Smith of Gilmorehill, B.

Linklater of Butterstone, B.

Stallard, L.

Lockwood, B.

Stoddart of Swindon, L.

Lofthouse of Pontefract, L.

Strabolgi, L.

Lovell-Davis, L.

Symons of Vernham Dean, B.

Ludford, B.

Taverne, L.

McCarthy, L.

Thomas of Gresgord, L.

McIntosh of Haringey, L. [Teller.]

Thomas of Macclesfield, L.

Thomas of Walliswood, B.

Mackenzie of Framwellgate, L.

Thomson of Monifieth, L.

Mackie of Benshie, L.

Thornton, B.

McNair, L.

Thurso, V.

Maddock, B.

Tomlinson, L.

Mar and Kellie, E.

Tordoff, L.

Merlyn-Rees, L.

Turner of Camden, B.

Milner of Leeds, L.

Uddin, B.

Mishcon, L.

Wallace of Saltaire, L.

Molloy, L.

Watson of Invergowrie, L.

Monkswell, L.

Williams of Elvel, L.

Montague of Oxford, L.

Williams of Mostyn, L.

Morris of Castle Morris, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
3.49 p.m.
Clause 2 [Previous enactments]:
[Amendment No. 3 not moved.]
Clause 4 [Transferred, excepted and reserved matters]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 4:
Page 2, line 19, leave out ("(2)") and insert ("(2)(a)").
The noble Lord said: My Lords, this appears to be a modest amendment but an important point lies behind it which we discussed briefly during the course of the Committee stage. This part of the Bill provides for the situation where powers, having been in one of the categories of either transferred or reserved, are moved to the other. Westminster and Whitehall then cease to have responsibility for certain matters and the Assembly and the Executive take on that responsibility or, conversely, the powers are returned to Westminster. When that happens an order will be laid which will have
642
to be approved not only by Parliament in Westminster but also by the Assembly with cross-community support in a resolution. That is fair enough and I agree with it in relation to the transfer of powers to Northern Ireland from Westminster. But my amendment seeks to say that a resolution of the Assembly shall not be required when powers are being transferred by the Secretary of State from Northern Ireland back to Westminster.
As I said in Committee, there may be occasions when the Assembly is unable to obtain cross-community support to give up one of its powers even though many in the Assembly and the Executive think it desirable that it should. In Committee we discussed briefly when powers might be taken back. The Minister gave the example of powers being transferred to Northern Ireland but, because of a change in the powers of the European Union in Brussels, the requirement for one negotiating stance by the United Kingdom Government might necessitate the taking back of the powers. I found that a slightly odd example because quite a large number of important powers are being transferred to the Executive in which the European Union plays a large part. Agriculture and fisheries are two obvious examples. I do not suppose for a moment that the Government intend to take back agriculture and fisheries because of Northern Ireland negotiations. However, if they should wish to do so, the chances of the Assembly agreeing with cross-community support to them being taken back seem to be as near nil as makes no difference. One can think of other less prominent examples of that process.
In future, it may be that law and order powers and so on are transferred to the Assembly and the Executive. If all goes smoothly it is desirable that that should in due course happen. I urge caution in doing so but, nevertheless, it should in due course happen. However, it may be that subsequent to that the situation deteriorates once again and the further use of troops is required. In that case it would be extremely difficult to get the Assembly to give up the powers through a cross-community vote. In those circumstances the Secretary of State, with the approval of both Houses of the Westminster Parliament, should be able to take back the powers regardless of the fact that there was not full cross-community support for that proposition within the Assembly itself. That is the purpose of Amendments Nos. 4 and 5. I beg to move.
Lord Molyneaux of Killead: My Lords, I warmly support the amendments. The noble Lord, Lord Cope, said that they are modest amendments. I believe it is important that residual powers should remain at Westminster because we are entering uncharted waters. There is the question of serious division arising within the new structure. No one can foretell exactly what that would mean. It would be a great mistake to equate the structure there with that which is proposed for Scotland. There will be a party or perhaps two parties in power in Scotland. Then, at a general election, the balance of power may change, but there will be a degree of stability which will not be apparent or real in the Northern Ireland Assembly. That is because everyone is in government and a general election for the Assembly will make no difference to the management of the affairs of

643
the Assembly and of Northern Ireland generally. At most it will mean a slight change in the electoral balance. A 0.5 per cent. change under the d'Hondt system might affect the distribution of a junior ministry.
As the noble Lord, Lord Cope, wisely said, the new structure, even with the best will in the world, could be subject to the effects of what Harold Macmillan called, "Events, dear boy, events". Those cannot be foreseen. Through long experience and expertise, the Parliament of the United Kingdom is always able to cope with such unexpected events, but it would be too much to expect a brand new and untried structure to be as efficient as that in its early stages. I think that the Secretary of State for Northern Ireland, with the authority of both Houses of Parliament of the United Kingdom, should have that power.
Lord Dubs: My Lords, Amendments Nos. 4 and 5 would mean that the agreement of the Assembly would not be required under the Bill for transferred matters to become reserved. The noble Lord, Lord Cope, explained in Committee that if the Assembly became deadlocked at some stage in the future, it might be desirable to, as he put it, take powers back, but impossible to achieve agreement on a cross-community basis for so doing. He used that argument again a few minutes ago. He suggested that, in that case, it would be impossible for powers to be exercised by Parliament.
We are not planning for failure in the Bill. We have not included the contingency arrangements that applied in earlier constitutional legislation by which the Secretary of State could step in in various ways. Once the Act comes fully into force, the direct rule powers will be dead. We have deleted provisions that appeared in the Bill as first drafted giving the Secretary of State a role in the decision to call an early election, or to prorogue the Assembly. So I do not think we should plan for failure here either.
If the working of the institutions goes radically wrong, of course, Parliament may have to step in. But it would do so by virtue of its general authority, preserved in the Bill, to legislate for the United Kingdom as a whole. I do not see that the noble Lord's amendment would add anything to its authority; it would simply impose restrictions on the ability of the Assembly to legislate in fields that had ceased to be transferred.
It is true that executive powers could be moved away from the devolved institutions to the UK authorities by a consequential order under Clause 80. But that would be a radical step, with an implication of permanence about it. In those circumstances, Parliament might in any event have to legislate to make other changes, so that the institutions could operate more effectively.
We are conferring a range of powers on the devolved institutions by virtue of the agreement. If we are to alter that feature of the agreement, whether by adding to or taking away from the powers, we should do it only by a similar measure of cross-community consensus as applied in the talks. That is what the Bill achieves, but the noble Lord's amendments would take away the
644
requirement. I do not think we should be acting faithfully to the agreement if we did that. I therefore ask the noble Lord not to press his amendment.
4 p.m.
Lord Cope of Berkeley: My Lords, we are constantly being accused of not acting in accordance with the agreement although we always do our best to do so. Personally, I do not see that the agreement in any way covers this particular point or lays down what should happen if powers are being taken away and brought back to Westminster. However, it is not a matter that I wish to pursue to a Division at this point. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
Clause 5 [Acts of the Northern Ireland Assembly]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 6:
Page 2, line 43, after ("6") insert (", (Entrenched enactments)").
The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendments Nos. 7, 8 and 9, 35 and 168. Amendments Nos. 6 to 9, which, as I have said, fall with Amendments Nos. 35 and 168, are simply drafting matters, moving the existing Schedule 4, which entrenches certain enactments so that they cannot be modified by the assembly, into a new clause after Clause 6. That is because Schedule 4, following earlier amendments, is now very short. It seems to us that the Bill is likely to be more intelligible if the provisions about entrenchment appear in Part II itself. I beg to move.
Lord Cope of Berkeley: My Lords, it seems rather fussy at this stage of the drafting of the Bill to be moving matters from a schedule to a clause and to very little advantage. I appreciate that it is probably a marginal improvement on the drafting, but it is an example of the kind of thing which is being done with this Bill. There are marginal improvements in the drafting being inserted at the last minute to the extent of crossing out a schedule and reinserting the matter in a clause. I do not disapprove of that happening, but it is part of the huge burden that is being put on this House and on other people in trying to follow what is happening in this Bill.
On Question, amendment agreed to.
Clause 6 [Legislative competence]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 7 and 8.
Page 3, leave out line 25.
Page 3, line 29, at end insert—
("( ) it modifies an enactment in breach of section (Entrenched enactments)").
On Question, amendments agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 9:
After Clause 6 insert the following new clause—

ENTRENCHED ENACTMENTS
(".—(1) Subject to subsection (2), the following enactments shall not be modified by an Act of the Assembly or subordinate legislation made, confirmed or approved by a Minister or Northern Ireland department—

(a) the European Communities Act 1972;

(b) the Human Rights Act 1998; and

(c) sections 78 to 80, subsections (3) and (4) of section 89 and section 92.

(2) Subsection (1) does not prevent an Act of the Assembly or subordinate legislation modifying section 3(3) or (4) or 11(1) of the European Communities Act 1972.").
On Question, amendment agreed to.
Clause 8 [Scrutiny by Ministers]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 10:
Page 4, line 8, leave out ("Northern Ireland").
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 11. Amendment No. 10 modifies Clause 8 to take account of the possibility that the First Minister and the Deputy First Minister may introduce Bills as well as departmental Ministers, who are referred to in the Bill as "Northern Ireland Ministers"—the expression that appears at present in Clause 8. The possibility of the First and Deputy First Ministers presenting legislation is all the greater if an "office of the centre" under those two Ministers is established, as later amendments to Clause 19 would now permit.
Because we are now substituting the general term "Minister" in Clause 8, it becomes appropriate to move back to that clause the omnibus definition of Ministers, and this is the effect of Amendment No. 11. Your Lordships will recall that it was indicated in Committee that we need to do some tidying up. Indeed, I believe your Lordships invited us to do so, in the context of Ministers. That is what these amendments are designed to achieve. I beg to move.
Lord Cope of Berkeley: My Lords, I do not entirely approve of transferring the definition of "Minister" to this clause, but we shall discuss that in relation to another amendment when I propose that the definition of "Minister" should be inserted with the main body of definitions in the interpretation clause, Clause 92. With that reservation, I believe that the substance of what is happening as regards the First Minister and the Deputy First Minister is entirely acceptable.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 11:
Page 4, line 12, at end insert—
("(3) In this Act "Minister", unless the context otherwise requires, means the First Minister, the deputy First Minister or a Northern Ireland Minister.").
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 12:
After Clause 10, insert the following new clause—

RECONSIDERATION BY ASSEMBLY
(".—(1) This section applies where—

(a) a reference has been made under section 10 in relation to a provision of a Bill;

(b) a reference for a preliminary ruling has been made by the Judicial Committee in connection with that reference; and

(c) neither of the references has been decided or otherwise disposed of.

(2) If the Assembly resolves that it wishes to reconsider the Bill—

(a) the Presiding Officer shall notify the Attorney General for Northern Ireland and the Attorney General of that fact; and

(b) the Attorney General for Northern Ireland shall request the withdrawal of the reference under section 10.

(3) In this section "reference for a preliminary ruling" means a reference of a question to the European Court of Justice under—

(a) Article 177 of the Treaty establishing the European Community;

(b) Article 41 of the Treaty establishing the European Coal and Steel Community; or

(c) Article 150 of the Treaty establishing the European Atomic Energy Community.").

The noble Lord said: My Lords, this group also includes Amendments Nos. 14 and 15. These amendments relate to the new clause which it is proposed should be inserted after Clause 10. We are building on the Scotland Bill to an extent and, obviously, we have borrowed fairly freely from it. Your Lordships recently approved very similar amendments to these at the Report stage of the Scotland Bill.
Perhaps I may summarise them briefly. The new clause in Amendment No. 12 deals with the possibility that, when a Bill of the Assembly has been referred by the Attorney-General to the Judicial Committee for a decision as to whether it is within the legislative competence of the Assembly, the Judicial Committee may decide that it must refer a matter to the European Court of Justice. Since incompatibility with Community law is a ground on which an Act of the Assembly may be outside legislative competence, this is a live possibility. Such a reference may cause quite considerable delay and in such a case the Assembly may wish to reconsider the Bill, and seek to avoid the difficulty that has brought about the reference by the Judicial Committee to the European Court. I ought to stress that the new clause gives the Assembly the option of flexibility. There is no obligation to reconsider. If the Assembly decides that it wishes to do so, the Attorney-General is obliged to request the withdrawal of the reference to the Judicial Committee.
Amendment No. 14 requires the assembly to make provision in its standing orders for reconsideration of a Bill where a reference has been withdrawn at the Assembly's request under the new clause after Clause 10.
Amendment No. 15 amends Clause 12(3), so that where a reference to the Judicial Committee has been withdrawn at the Assembly's request under the new clause, which I have explained, the Secretary of State is not to submit the Assembly's Bill in its unamended form for Royal Assent. If an amended Bill comes forward, of

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course, the Attorney-General may, if appropriate in his judgment, still refer it again to the Judicial Committee under Clause 10, if he believes questions of legislative competence still arise. I beg to move.
On Question, amendment agreed to.
Clause 11 [Stages of Bills]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 13:
Page 5, line 22, at end insert ("(a) or (b)").
The noble Lord said: My Lords, Amendment No. 13 makes a technical change to Clause 11. Clause 11(1) requires the Assembly to make standing orders for various stages of a Bill, including the final stage of a Bill—Third Reading as we know it in your Lordships' House—at which a Bill can be passed or rejected but not amended. Clause 11(2) permits standing orders, however, to modify provisions under Clause 11(1) in relation to different types of Bills. But under the scheme of Part II, the Secretary of State may, before "Third Reading", have given her consent under Clause 9 to a Bill, or the Attorney-General may have indicated under Clause 10 that he does not intend to make a reference to the Judicial Committee. That scheme would be subverted if modifications to standing orders under Clause 11(2) were able to provide for amendment of Bills at Third Reading, when such consent or notice may already have been given. The amendment is designed to ensure that that cannot occur, and that is its purpose. I beg to move.
Lord Cope of Berkeley: My Lords, I have never been very happy with the idea that a Bill proceeding through the Assembly—that is, a single chamber legislature in Northern Ireland—should merely have what we would call in our jargon a "Second Reading" debate on the principle; a Committee stage on the detail; no Report stage and then a "Third Reading"—I adopt the inverted commas used by the Minister—at which no amendments can be made. It seems to me that the experience of this Bill, with its huge number of amendments, at the second stage in the second House, demonstrates the need sometimes to modify enactments and Bills between First Reading and when they pass into law. Where there is a single chamber, as there will be in Northern Ireland, an awful lot will be expected of the draftsmen if there is no Report stage and there are no amendments at Third Reading.
There will also be the difficulty that the Executive will not be able to reply, as Ministers frequently reply both in your Lordships' House and in another place, that a good point has been made but that the drafting is not as the Government would wish and that they will table an amendment on Report or at Third Reading to take account of the point in a properly drafted way. That is a legitimate tactic—or rather, a legitimate course of action—which Ministers frequently take. It is to the benefit of all that they should do so. The point is taken but the proper legal form is used in the Bill. That would be ruled out if this amendment applied.
Preventing Standing Orders from permitting any form of amendment to an assembly Bill except in the one Committee stage would cause difficulties for the
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Assembly. Ultimately, the Assembly will have to work out its own Standing Orders. But, here, in these clauses, we are preventing it having a second stage at which amendments can be moved. I may have misread the amendment, but that is as I understand it. I think the Minister is about to tell me that I have misread it.
Lord Williams of Mostyn: My Lords, I am simply responding, as helpfully, I hope, as the noble Lord, Lord Cope, has asked his questions.
The real reason for the prohibition is to avoid the subversion of the scheme whereby the Secretary of State before "Third Reading" or the Attorney-General have given their consent or indication of non-reference.
In answer to the noble Lord's question, I am happy to confirm that the three required stages in the Assembly, which are set out in Clause 11, are the minimum. The Assembly can add other procedures, such as a Report stage, if it wants to deal with the problem that the noble Lord, Lord Cope, identified. I would make two points on that problem. First, we tend to have rather more massive and substantial legislation in your Lordships' House and in another place than is likely to be contemplated for the Northern Ireland Assembly. However, I take the noble Lord's point that legislative review and reconsideration may sometimes be necessary. Therefore, I stress that it is entirely open to the Assembly to add, for instance, a Report stage. We are simply disentitling a changed view after the Secretary of State's consent or after the Attorney's indication that he does not intend to refer. I hope that that reply is helpful both to the noble Lord and to your Lordships generally.
Lord Cope of Berkeley: My Lords, as I read it, if amended, subsection (2) will include the presumption that there will be only a limited number of stages. However, I shall not argue with the Minister. If the Assembly has the power to add a Report stage, I think it would be well advised to do so for the reasons I have given.
I certainly do not agree with the Minister when he states that the Northern Ireland Assembly may not face such substantial legislation as we do. Some of the secondary legislation and statutory instruments which come before us from time to time in respect of Northern Ireland—that is exactly the sort of thing the Assembly will have to consider—comprise many pages and complicated clauses. They replicate all sorts of Bills which deal with the domestic life of the Province in the same way as our Bills deal with life this side of the water.
I believe that the Assembly would be wise to have an equivalent of Report stage. If the Minister says that it will be able to do so legally under this Bill and that it will not be restricted from doing so, I am happy to allow the amendment.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 14:
Page 5, line 40, at end insert—
("( ) a reference made in relation to a provision of the Bill under section 10 has been withdrawn following a request for withdrawal under section (Reconsideration by Assembly);").
On Question, amendment agreed to.
Clause 12 [Submission by Secretary of State]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 15:
Page 6, line 14, after ("Assembly,") insert ("or
(b) a reference made in relation to a provision of the Bill under section 10 has been withdrawn following a request for withdrawal under section (Reconsideration by Assembly),").
On Question, amendment agreed to.
4.15 p.m.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 16:
Page 6, line 27, leave out from ("contains") to end of line 28 and insert ("a provision which he considers—

(a) would be incompatible with any international obligations, with the interests of defence or national security or with the protection of public safety or public order; or

(b) would have an adverse effect on the operation of the single market in goods and services within the United Kingdom.").

The noble Lord said: My Lords, this group comprises Amendments Nos. 16, 36, 37 and 38. At an earlier stage of this Bill, we indicated that we would table further amendments to safeguard national security. Amendment No. 16, together with Amendments Nos. 36, 37 and 38, give effect to that commitment.
The purpose of these amendments is twofold. First they would ensure that the interests of defence, national security and public safety are properly safeguarded under the new arrangements. They remain, of course, the responsibility of the Secretary of State. They are vital interests which have to be protected. Secondly, the amendments will protect the operation of the single market in goods and services across the United Kingdom.
Amendment No. 16 provides that the Secretary of State may decline to submit an assembly Bill for Royal Assent if she considers it to be incompatible with any international obligation, the interests of defence or national security, the protection of public safety or public order, or with the operation of the UK single market.
Amendment No. 38 is closely related. It gives the Secretary of State power to revoke subordinate legislation for the same reasons. I remind your Lordships that the Scotland Bill contains similar provisions for ensuring that legislation meets international obligations and safeguards national security, although the provisions are not directly equivalent.
The principle of the single market in goods and services across the United Kingdom is important. Under EC law, the Northern Ireland Assembly and Northern
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Ireland Ministers will be required to meet obligations under EC single market legislation in transferred areas, including not discriminating against goods and services from any other member state of the Union. Community legislation enforces a single market between EU member states, but not necessarily within each member state. These amendments are intended to fill that gap. It is only right that goods and services from England, Wales and Scotland should be treated no less favourably than those from other EU member states.
Amendments Nos. 36 and 37 deal with the Secretary of State's power to direct certain action to be taken by Ministers or departments or to direct that proposed action is not taken. As it stands, Clause 24 entitles the Secretary of State to do so only in order to comply with international obligations. As I have indicated, Amendments Nos. 36 and 37 protect the interests of defence, national security, public order and public safety.
These are important and necessary provisions. One hardly needs to underline that. The responsibility to safeguard defence, national security, public order and public safety extends throughout the United Kingdom. It will continue to do so after devolution. Those matters will remain the responsibility of the Secretary of State. These amendments, if accepted by your Lordships, will ensure that the Secretary of State has a means of continuing to discharge her responsibilities. We hope that no such situation would arise. However, we cannot leave open the possibility; the consequences are potentially too grave. That is the purpose of the amendments.
I stress that these provisions, by their nature, would be used by Her Majesty's Government only as a last resort. If there were questions of concern, every effort would be made to resolve them by consultation with the Northern Ireland Administration. I stress once more that if, and only if, that failed would the Secretary of State use her power of direction. I hope that that explanation satisfies your Lordships. I beg to move.
Lord Cope of Berkeley: My Lords, I welcome the fact that the Secretary of State can, if necessary, strike down a measure in the interests of defence, national security and so on, as suggested in the amendment, both in relation to primary and secondary legislation. I accept that that would happen only rarely. It is not as simple as the Minister suggested. This is actually quite a sweeping power against the rub of devolution. The intention under later parts of the Bill, and particularly under Schedule 3, is to transfer responsibility for public order in due course to the Assembly and the Executive in Northern Ireland. This provision, on the other hand, retains the ultimate power with the Secretary of State. Perhaps that is necessary, but the responsibility for public order is supposed to be transferred at some stage in the future.
The position is even more difficult when it comes to the question of the single market in goods and services within the United Kingdom. Later clauses of the Bill—if they are not amended though amendments are suggested—propose to transfer to Northern Ireland responsibility for the regulation of building societies, banking, intellectual property, patents, copyright and so

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forth. There will not be a single market if there is a different patent law, different banking regulations and regulations of that kind in Northern Ireland. Yet if these powers are used by the Secretary of State to strike it down there is no point in giving the powers to the Northern Ireland Assembly in the first place.
So the single market part of it does not sit at all easily with the proposal to transfer those responsibilities—very considerable responsibilities—in due course to the Northern Ireland Assembly and Executive. Of course, it is not intended that they should be transferred immediately on the passage of the Bill; they are in the reserved category for the time being. But the point of the reserved category is that they should be readily transferred to Northern Ireland when conditions permit. However, they will not be if, on the grounds of it having an adverse effect on the single market, the Secretary of State then overrules them all. I believe that we are getting into a bit of difficulty here.
Lord Williams of Mostyn: My Lords, I think not. The noble Lord is quite right: this is a considerable power but it is intended to be a fail-safe mechanism only. The noble Lord is quite right also in relation to what may be future developments. But it is necessary to put those possible future developments in their legal context. It still remains the fact that, as a matter of European Community law, the Northern Ireland Assembly and authorities in the future will have to meet their obligations under the single market legislation in transferred areas. That means not discriminating against goods and services from any other member state of the Union. It is only if they fail to discharge their legal responsibilities that one would anticipate the Secretary of State having to intervene.
I stress that one would anticipate negotiation and discussions. But if at the end of the day it is necessary, then this reserved power—and the adjective is as important as the noun—is still something that the Secretary of State needs.
On Question, amendment agreed to.
Clause 14 [First Minister and deputy First Minister]:
Lord Dubs Lord Dubs moved Amendment No. 17:
Page 7, line 30, at end insert ("; and
(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and deputy First Minister.").
The noble Lord said: My Lords, in moving Amendment No. 17, with your Lordships' permission it will be convenient to discuss at the same time Amendments Nos. 21 to 25 and 227. I notice that Amendment No. 229 appears both in this group of amendments and in a later group which commences with Amendment No. 30. I am grateful to the noble Lord who drew my attention to this before we began our debate this afternoon; I had not noticed it myself. It may be for the convenience of your Lordships if I confirm that Amendment No. 229 will be taken in the group which we shall consider later this afternoon; that is to say, in the group commencing with Amendment No. 30. I regret the error and hope that it has not caused any confusion.
This series of minor and technical amendments amounts to the last episode in what we might call the saga of d'Hondt. As those of your Lordships who listened to the Committee stage debates during the earlier passage of the Bill will know, the d'Hondt formula is one of great elegance and intricacy and I trust that these amendments will help to ensure that the provisions of this clause work fully in the way the agreement's authors intended.
Amendment No. 17 is a minor point clarifying that the First Minister and Deputy First Minister will hold office until the conclusion of the next election for their posts.
Amendment No. 21 addresses a fairly obscure point—the circumstances in which the d'Hondt formula needs to be rerun. At present, one of those circumstances is when a motion of exclusion against a political party under Clause 28(2) expires, but only if the original motion had led to a vacancy in one or more ministerial offices.
The whole point of the one-year period of exclusion is that political parties should be able to reclaim ministerial posts to which they are entitled when the exclusion is over. But there may be circumstances in which the current wording of the Bill is too narrow. The original motion might not have led to vacancies if the motion had been passed before d'Hondt had been run in the first place, for example. The revised drafting addresses that problem.
Amendment No. 22 is purely a drafting point. Amendments Nos. 24 and 25 make it clear that if a political party's registered nominating officer (or party leader in the case of a non-registered party) wish to delegate their functions under Clause 16, this may only be to a member of the Assembly. This addresses some points made to the Government during the consultation exercise on the Bill.
Amendment No. 227 makes it clear that for a First Minister and a Deputy First Minister determination on the number of ministerial posts to carry forward after devolution, it must both have been made and approved by the Assembly in the shadow phase. This brings the transitional provision more into line with the provision of Clause 15 itself. I commend all these amendments to the House. I beg to move.
Lord Cope of Berkeley: My Lords, Amendment No. 23, which we are discussing with this group, brings into the Bill a reference to the Registration of Political Parties Bill 1998, which is also passing through Parliament at this time. I am afraid that, with this large number of amendments being considered, I have not had time fully to follow the point and it may already have been dealt with elsewhere. However, the intention is apparently that the Northern Ireland parties, like those in the rest of the United Kingdom, should be registered by the Registrar of Companies for England and Wales in Cardiff. That seems to me to be an extremely odd

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thing to have in respect of the Northern Ireland parties. Is that really the intention of the Government or have I misunderstood it?
Lord Dubs: My Lords, the answer is yes, and the same applies in Scotland and indeed in England.
Lord Cope of Berkeley: My Lords, is there any particular reason why the Registrar of Companies, who has very specific responsibilities with respect to limited companies in England and Wales but is not given the duty of making value judgments about names and things of that sort in relation to companies, is nevertheless going to have to decide on whether the name for a political party in Northern Ireland is acceptable?
Lord Dubs: My Lords, I am not sure that there is a problem on that. Companies House was moved to Cardiff. It happens to be the geography of where the move was made, and there is no further significance in that.
Lord Cope of Berkeley: My Lords, I am in no way objecting to Companies House being in Cardiff; I would not dream of doing so with the noble Lord, Lord Williams, being present! But it seems to me that an official in England and Wales charged with the duty of dealing with companies is perhaps going to have to make some difficult decisions about whether or not the choice of a name for a Northern Ireland party is acceptable and can be registered. That is placing a heavy duty on an official, whether he is in Cardiff, in London or anywhere else in England and Wales. I am not sure whether, as in the Companies Act, the Secretary of State should be responsible for making decisions about a name.
Lord Dubs: My Lords, I am not sure whether Report stage is the point at which to hold this discussion. Northern Ireland parties are subject to the same arrangements on legislation as all other United Kingdom parties. Representations are taken and the matter can be discussed with the Speaker's Committee. That is what is happening in relation to all political parties in the legislation referred to—which is, after all, not the legislation under discussion this afternoon.
On Question, amendment agreed to.
Clause 15 [Ministerial offices]:
4.30 p.m.
Lord Redesdale Lord Redesdale moved Amendment No. 18:
Page 8, line 18, after ("Ministers;") insert—
("( ) the number of junior Ministerial offices to be held by junior Northern Ireland Ministers;").
The noble Lord said: My Lords, I rise to speak to the amendment standing in the name of my noble friend Lord McNally. With it, I shall speak also to Amendment No. 29.
These amendments introduce exactly the same provisions for the appointment of junior Ministers as are already in place for Ministers. Our proposal is the same as in Clause 16, except that it refers to junior Ministers
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rather than Ministers; and whereas Ministers are to be allocated the top 10 places, junior Ministers would be allocated the 11th to 20th place.
These issues arose on the first day in Committee (col. 1277 of Hansard) when the Minister made clear that the invention of junior ministries was to be allocated by a determination agreed by the First and Deputy First Minister. We believe that that could fly in the face of the spirit of the Good Friday agreement. The agreement makes no reference to junior Ministries, only to ministries which it explicitly demands are to be allocated in proportion to party strengths, not at the whim or direction of the First and Deputy First Minister. We on these Benches have rigorously defended the agreement and it is regrettable that the Government should seek to diverge from it.
We suggest that the exact method of d'Hondt seems the most appropriate for the allocation of junior ministries. When party strengths are ordered according to the d'Hondt principle, the top 10 places are to be rewarded with ministries; the next 10 (the 11th to 20th) places are to be given to junior ministries. That seems the most obvious interpretation of the Good Friday agreement in this matter. It is of no particular benefit to larger or smaller parties, merely to parties in proportion to their strength, which is what people voted for in the referendum in May. Nevertheless, we should not object if the junior ministries were allocated in exactly the same way as ministries given to the top 10 places, so that each party that won a ministry also won a junior ministry.
The Government's plan for junior ministries to be allocated in accordance with a formula agreed by the First and Deputy First Minister is a recipe for a stitch-up and would undermine the new structures. Any matter put forward by the First and Deputy First Minister that is not proportional to party strengths will either be voted down by the Assembly, undermining the authority of the First and Deputy First Minister, or the Assembly will be voting against the letter and spirit of the agreement. Any party that is disadvantaged by such a deviation from the agreement is sure to highlight that fact.
In considering this amendment, will the Minister state whether be believes that not appointing junior Ministers in this way would fly in the face of this spirit of the agreement? I beg to move.
Lord Dubs: My Lords, I am aware of and grateful for the fact that the Liberal Democrats have consistently supported the agreement. That support is much appreciated and I hasten to acknowledge it. However, in answer to the last question put to me by the noble Lord, I am afraid that there is no reference to junior Ministers in the agreement. His question related to the spirit of the agreement, and the agreement contains no reference to junior Ministers. However, there was a request from the political parties during the discussions that took place with them in the course of the summer that there should be a facility on the face of the Bill to enable junior Ministers to be appointed.
The noble Lord's Amendments Nos. 18 and 19 seek to put junior ministerial posts on a similar footing to Northern Ireland Ministers. Amendment No. 18 would

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require any determination or order under Clause 15 to set out the number of junior Minister posts as well as the number of Northern Ireland Ministers. Amendment No. 29 would then apply an amended version of the d'Hondt formula to the appointment of junior Ministers. The d'Hondt formula, as amended in the noble Lord's amendment, would take into account both the number of ministerial and junior ministerial posts that a party already had in calculating the d'Hondt formula. The effect would be to make it more likely that smaller parties could obtain junior ministerial posts at least, even if they had not been strong enough to obtain posts on the executive committee.
No doubt the noble Lord feels that the Government have not been overly sympathetic to the points that he and his colleagues in another place have made on this subject. We recognise the importance of inclusivity in the new Assembly, as well as the concept of strict proportionality. Perhaps more important than both, however, is the point that I made at the outset; namely, the need to stick to the letter of the agreement as much as possible and, where that is not possible, to be guided by the views expressed to us during the consultation process that has taken place over the past few months.
Noble Lords will know that there is no specific reference to junior Ministers in the Belfast Agreement. There has been general agreement that junior Ministers might have a useful role to play. However, there does not yet seem to be a consensus as to what functions they should exercise or how they should be appointed.
Given the lack of an explicit reference to the agreement and consensus among the parties, the Government thought it right to include Clause 17 in the Bill as an enabling clause. It will then be for the parties to agree among themselves as to what kind of role junior Ministers might play. What is clear, however, is that junior Ministers will not have a major independent role. Indeed, government Amendment No. 31 makes it clear that statutory functions may not be conferred on junior Ministers—statutory functions being matters that should rest simply with the senior Ministers referred to in the agreement.
As for the formula proposed, I wish to emphasise that the Government fully understand the noble Lord's desire for the new structures to be both proportional and inclusive in nature. But nothing in Clause 17 as it stands would prevent that. Indeed, the clause leaves it open for the First Minister and Deputy First Minister in making a determination and the Assembly approving it to decide to use the d'Hondt formula or indeed any other appropriate formula in appointing junior Ministers if it wishes. But it is left to the First and Deputy First Minister to make such a determination and to choose the method by which they would be appointed.
I hope that the noble Lord will accept that the effect of the clause that we have included in the Bill will be to enable the d'Hondt formula to be used if that is the wish in Belfast. In the light of my remarks, I hope the noble Lord will feel able to withdraw his amendment.
Lord Cope of Berkeley: My Lords, it is shocking, is it not, that the Government should depart from the strict
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letter of the agreement when we have been told off for even hinting at doing so on other occasions. The noble Lord is not prepared to go so far away from the letter of the agreement as the noble Lord, Lord Redesdale proposed. Nevertheless, the inclusion of junior Ministers is a departure from the letter of the agreement. I do not disagree with it; however, in view of the strictures that have been pressed upon us at different times for doing so, it is worthy of note. Coming so soon after the noble Lord, Lord Williams, explained that Amendment No. 16 was a failsafe—when I had been told off a few moments earlier for being pessimistic in requiring a different failsafe—perhaps it is only a question of which amendment is accepted and whether it has the approval of the Front Bench opposite.
Lord Molyneaux of Killead: My Lords, I thank the noble Lord for giving way—
Baroness Farrington of Ribbleton: My Lords, perhaps I may advise noble Lords. The Minister has replied. Because the noble Lord, Lord Cope, had not intervened previously I was seeking to be flexible. However, I think that it is not possible to extend flexibility any further. Perhaps the noble Lord, Lord Cope, will complete his contribution quickly and then the noble Lord, Lord Redesdale, ought to speak.
Lord Cope of Berkeley: My Lords, I apologise if I have in any way stepped outside the conventions of the House. I merely wished to draw attention to the nature of the Minister's reply in this case. Not having spoken before, I thought that my intervention was in order. If it was not, I apologise to the House.
Lord Redesdale: My Lords, in answer to the point raised by the noble Lord, Lord Cope, I suggest that the Minister is not departing from the letter of the agreement. I said specifically that there was a "spirit of the agreement" with which I was concerned. I take the points made by the Minister. I hoped that he would be more sympathetic towards the amendment because this could be an extremely divisive subject. I was not trying to give an advantage to smaller parties, although I must declare an interest in that I am a member of the Alliance Party of Northern Ireland. However, I take the points the noble Lord made and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 19:
Page 8, line 24, leave out from second ("the") to end of line 27 and insert ("number of Ministerial offices under subsection (1)(a) is the same as the number of functions under subsection (1)(b).").
The noble Lord said: The amendment is intended to simplify the extremely contorted wording of Clause 15(3). It means exactly the same but to my mind the amendment states it more clearly and is, I hope, as legally fireproof.
Amendment No. 20 is slightly different. I appreciate that to pass both amendments would not be possible, but should Amendment No. 19 not appeal, then Amendment No. 20 might be acceptable. The argument for that

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amendment is different. The subsection states that the First Minister and the Deputy First Minister may make a determination about the number of ministerial offices to be held. It continues:
"at the date a the determination",
there should be the same number of Ministers for the departments existing at the date of the determination. It seems to me that the determination may change the number of departments. They will not necessarily get it right first time and may need to make a change in the number of departments later. It has happened both within the Northern Ireland Office and within the Government of the United Kingdom many times that departments have been amalgamated and split again. No doubt it will happen in the course of time with the Northern Ireland departments.
The way in which I suggest it should be changed will enable a determination to take account of the change that is being made in the number of Northern Ireland departments at the time the determination is made rather than having to keep to the number that there happens to be when the determination comes about. These are small drafting points, but nevertheless I modestly put them forward for the Government's consideration. I beg to move.
Lord Dubs: My Lords, I am most grateful to the noble Lord for the amendments, which I believe are intended to clarify some of the language of the clause. I do not think I am being disloyal to our draftsman if I admit that the language is difficult in places. The noble Lord himself made that point. But the concepts we are dealing with are not easy and I am afraid that I do not believe that the amendments will have the desired effect suggested by the noble Lord.
Amendment No. 19 seeks to make it clearer that the meaning of Clause 15(3) is that each department must be headed by a Minister, and that each Minister gets only one department.
As I said during Committee stage, this is what Clause 15(3) already achieves. Before devolution, there will be an agreed number of departments. Those in charge will exercise particular functions. This subsection provides that each of those departments is headed by a Minister, and each department is headed by the holder of a different ministerial office, that is, no Minister will be in charge of more than one department.
The drafting of the noble Lord's amendment, on the other hand, does not quite work. The noble Lord seeks to link the number of ministerial offices to the number of functions described in Clause 15(1)(b). But any given Minister might need to exercise a number of different functions, even within a single department. The important thing is that Ministers are not in charge of more than one department, not that they should be responsible for only one function.
Amendment No. 20 is presumably also intended to clarify a drafting point. I assume that the noble Lord feels the reference to departments
"existing at the date of the determination"
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is redundant, and that this subsection merely needs to mention the number of departments set out in the determination.
The reference to departments
"existing at the date of the determination"
is there for a reason, however. The reference makes it clear that any legislative changes needed to create or suppress Northern Ireland departments must already be in place before d'Hondt is run. The reason for this is that it would be confusing if a determination under Clause 15 were made mentioning a Northern Ireland department and allocating it under d'Hondt, if the legislation necessary for creating this department was not in place and remained subject to the decision of the Assembly. It is not hard to imagine how a Minister would react if he had been appointed to a ministerial post under d'Hondt while the department he was supposed to head did not yet exist, and the functions he was supposed to exercise were still in the hands of another Minister.
The clause as it stands requires the Assembly first to complete the necessary groundwork, and then to approve the division of responsibilities between Ministers in the form of a determination. I believe that this is a common-sense provision and that it meets the aims the Minister sought to achieve with his amendment. I therefore urge the noble Lord to withdraw the amendment he put forward.
Lord Cope of Berkeley: My Lords, I ask for confirmation that at some stage in the future the number of departments and therefore the allocation of functions to them can be changed, even if only by an elaborate process and the re-running of the d'Hondt formula, should that happen. Can the Minister give me that assurance? He is doing so by nodding, and therefore I beg leave to withdraw Amendment No. 19.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
4.45 p.m.
Clause 16 [Northern Ireland Ministers]:
Lord Dubs Lord Dubs moved Amendments Nos. 21 to 25:
Page 8, line 38, leave out ("such a resolution") and insert ("a resolution under section 28(2)").
Page 9, line 35, leave out ("his") and insert ("that officer's").
Page 10, line 11, leave out ("registered political party") and insert ("party registered under the Registration of Political Parties Act 1998").
Page 10, line 12, leave out ("an officer") and insert ("a member of the Assembly").
Page 10, line 15, leave out ("an officer") and insert ("a member of the Assembly").
On Question, amendments agreed to.
Clause 17 [Junior Ministers]:
Lord Dubs Lord Dubs moved Amendment No. 26:
Page 10, line 17, leave out from beginning to ("determine") in line 18 and insert ("The First Minister and the deputy First Minister acting jointly may at any time").
The noble Lord said: My Lords, in moving Amendment No. 26 I wish also to speak to Amendments Nos. 27, 28 and 228. Amendment No. 26 is a technical and drafting point. It makes it clear that the First Minister and Deputy First Minister can make a determination under this clause at any time, and regardless of whether the First Minister and Deputy First Minister were elected under Clause 14(1), that is, at the start of the Assembly's term or under Clause 14(8), that is, in mid-term.
Amendment No. 27 provides that any junior Minister appointed under this clause should be a member of the Assembly. I am grateful to the noble Lord, Lord Skelmersdale, for raising this point at Committee stage. Amendment No. 28 removes the need for a determination under this clause to attract cross-community support.
There has been some criticism that the Bill's provisions make gridlock too easy to achieve. We do not agree with such criticisms, but we are conscious of the need to ensure Assembly procedures are not made unnecessarily complicated.
Deleting this provision would go some way towards simplifying procedures in this area. We do not believe it would result in any reduction in the level of protection enjoyed by minorities. After all, a determination under this clause needs first to be agreed by the First Minister and Deputy First Minister acting jointly. If members of the Assembly are not content, they will always have the option of triggering a cross-community vote through a petition of concern.
Amendment No. 228 is a transitional provision enabling determinations and appointments of junior Ministers made and approved by the Assembly before the appointed day to carry forward after devolution. I commend these amendments to the House.
Baroness Thomas of Walliswood: My Lords, noble Lords see me in an unexpected position. The lot seems to have fallen to me to continue on behalf of our Benches. I wish to raise a point which refers to what my noble friend said in proposing our amendments. I am concerned that the amendments proposed by the Government seem to enable the two major parties and one other to have a rather unfair distribution of junior ministry positions in the assembly. I wonder whether the noble Lord could respond to that concern.
Baroness Farrington of Ribbleton: My Lords, I am in some difficulty. I believe that the noble Baroness raises an issue that is not linked directly to the amendment now before the House. She is perhaps speaking to a different amendment.
Lord Dubs: My Lords, I desired to reserve my right to speak at the end. Given that these are government amendments I was afraid that if other noble Lords
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wanted to speak I would not be behaving in accordance with the Report stage procedures. That was the reason for my hesitation. The Government intend to leave this matter to the First Minister and Deputy First Minister. They believe that to be fairly straightforward. We want to make the process as smooth as possible and do not believe that we are doing anything that is untoward. The provision for junior Ministers was not in the agreement but came about as a result of discussion with the parties. We are simply enabling the First Minister and Deputy First Minister to make determinations as regards junior Ministers. We leave it to them and to the Assembly to take that matter further. I do not believe that I am able to help the noble Baroness further.
On Question, amendment agreed to.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendments Nos. 27 and 28:
Page 10, line 19, leave out from ("of") to ("in") in line 20 and insert ("members of the Assembly specified in the determination shall be appointed as junior Ministers").
Page 10, line 34, leave out ("passed with cross-community support").
On Question, amendments agreed to.
[Amendment No. 29 not moved.]
Clause 19 [Northern Ireland departments]:
Lord Dubs Lord Dubs moved Amendment No. 30:
Page 11, line 9, at end insert—
("(3) If an Act of the Assembly which establishes a new Northern Ireland department provides for it to be in the charge of the First Minister and the deputy First Minister acting jointly—

(a) the department shall not be regarded as a Northern Ireland department for the purposes of subsection (2) or (3) of section 15; and

(b) the office held by those Ministers as the head of the department shall not be regarded as a Ministerial office for the purposes of subsection (4) of that section or section 16.").

The noble Lord said: My Lords, I beg to move Amendment No. 30 and speak also to Amendments Nos. 31, 33, 34, 229 and 230. This group of amendments deals with the location of prerogative and statutory power after devolution. Amendment No. 30 reflects the interest shown by some of the parties during the consultation process in creating a department of the centre under the joint control of the First Minister and Deputy First Minister. Such a department has obvious parallels in Whitehall. There was also a similar department in existence during previous periods of devolution in Northern Ireland. Its functions would be entirely for the Northern Ireland parties in the Assembly to determine but could include both policy co-ordination and possibly statutory functions as well. There is no explicit provision for such a department in the Belfast agreement. Therefore we have provided for such a department to be created by Act of the Assembly. Equally, however, if the parties agree on its creation during the shadow phase the transitional provision in Amendment No. 229 will enable it to continue in existence after devolution too. Amendment No. 30 also ensures that if such a department is created it will not count towards the Bill's maximum of 10 ministerial offices; nor will it count towards d'Hondt.
Amendment No. 31 deals with Clause 20 which sets out how statutory functions will be dealt with after devolution. These functions form the bulk of the power at any administration's disposal. Clause 17 enables junior Ministers to be appointed in a determination approved by the Assembly. This amendment makes it clear that statutory functions may not be conferred on junior Ministers. The agreement is clear that statutory functions belong as before with the Northern Ireland departments acting under the direction and control of their Ministers. Junior Ministers will be able to assist Northern Ireland Ministers in the exercise of their functions but will not be able to exercise them independently.
Amendment No. 33 is a minor drafting point to reflect the fact that the definition of "Minister" has now been moved by Amendment No. 6 into Clause 8.
Amendment No. 34 recasts Clause 21 which deals with prerogative and other executive powers. Despite the sometimes grand language of this clause it deals with far less significant functions than those covered by its predecessor, Clause 20. The vast majority of functions to be exercised by Northern Ireland Ministers will be those conferred on them or their departments by statute.
Amendment No. 230 ensures that existing prerogative orders remain in force after the appointed day. As this amendment makes clear, the most significant prerogative power exercisable under this clause is the management of the Northern Ireland Civil Service. As for the grandly named "other executive functions", these simply mean the powers which the Government can exercise in the same way as a normal citizen, for example the power to enter into contracts. Other than clarifying the position with respect to the Northern Ireland Civil Service, the main significance of this amendment is the ability of Northern Ireland Ministers to exercise prerogative powers directly without being authorised explicitly by the First Minister and Deputy First Minister. This is important for administrative reasons. Even relatively mundane departmental tasks such as publishing leaflets depends to a degree on using prerogative powers, and clearly it would be absurdly cumbersome to require explicit approval for this.
Lord Cope of Berkeley: My Lords, Amendment No. 30 provides for the establishment of a department under the direct charge of the First Minister and Deputy First Minister. On the basis of the Minister's description it appeared to be the equivalent of a Prime Minister's department for Whitehall which has sometimes been discussed but has never been adopted in that form. But the First Minister and Deputy First Minister might regard it as appropriate, for example, to place themselves in charge of the Department of Finance and Personnel or some other department, particularly if law and order were subsequently transferred to the responsibilities of the Northern Ireland authorities. One wonders whether that would be possible under this amendment should that decision be made. I do not want to push it in that direction but I believe that such flexibility should remain.
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As to Amendment No. 33, I express conditional gratitude to the Minister for adding his name to my Amendment No. 33. It is conditional because it is all about moving the definition of "Minister" out of Clause 20. We both agree that it should be moved out of that clause. However, the Minister wants to insert it earlier in the Bill, whereas I suggest in Amendment No. 125 that it would be better if it appeared in Clause 92 which contains other definitions. I believe that it is for the convenience of those who read Acts of Parliaments that as far as possible definitions should be included in a single interpretation clause so that they can be readily referred to instead of having to refer backwards and forwards in the Bill. Sometimes a definition refers to a single clause, in which case it is appropriate to leave it in that clause. However, the phrase that is here defined is used throughout the Bill on many occasions. I believe that the definition would be better placed in Clause 92. As to Amendment No. 34 dealing with the prerogative, I agree with the arguments that the Minister put forward.
5 p.m.
Baroness Thomas of Walliswood: My Lords, we have some concerns on this matter. Can the Minister reassure us that the effect of the clauses is not to boost the relative importance of the First Minister and Deputy First Minister, and therefore to depart from the principles set out in the agreement that ministries be allocated in proportion to the party's strength?
Lord Dubs: My Lords, on the last point the answer is yes. It is not intended to achieve any such untoward result and to give a party particular advantage.
In answer to the specific question of the noble Lord, Lord Cope, the amendments would not give the power for the First Minister or the Deputy First Minister to take on, for example, the Department of Finance. However, under Clause 15(7) the First Minister and Deputy First Minister may be put in charge of another department such as the Department of Finance and Personnel. The power is in another part of the Bill. The noble Lord shakes his head.
Lord Cope of Berkeley: My Lords, Clause 15 has only five subsections.
Lord Dubs: My Lords, I apologise to the noble Lord. Clause 16(7) gives the power for the First Minister or Deputy First Minister to be put in charge of another department if that were the wish. It does not make it mandatory.
On the point made by the noble Lord regarding where the definition of a Minister should go in the Bill, it would be helpful if I can speak to that on a later amendment rather than at this point.
On Question, amendment agreed to.
Clause 20 [Statutory functions]:
Lord Dubs Lord Dubs moved Amendment No. 31:
Page 11, line 12, leave out ("or Northern Ireland department") and insert ("(but not a junior Minister) or a Northern Ireland department").
On Question, amendment agreed to.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 32:
Page 11, line 12, leave out ("by name").
The noble Lord said: My Lords, Clause 20(1) states that:
"An Act of the Assembly or other enactment may confer functions on a Minister or Northern Ireland department by name".
I wonder why the words "by name" are there. What on earth do they mean?
Lord Monson: My Lords, I confess that I only spotted the amendment 20 minutes ago, but I am sure the noble Lord, Lord Cope, is right to move it. First, as the noble Lord indicated, the wording of Clause 20(1) is ambiguous. It is not immediately clear whether the name refers to the Minister or the function. Assuming it is the latter, would it not be clearer simply to insert the word "specific" before the word "function"?
Secondly, one wonders how necessary subsection (1) is even if the drafting were to be tidied up. Does a similar provision appear in the Scotland Bill; and, if not, why not?
Lord Dubs: My Lords, I am grateful for this amendment, which I believe is also designed to clear up some points about the drafting of this clause. I suspect the noble Lord's concerns centre on the idea of legislation conferring functions on a department or even more oddly a Minister "by name". This is not something which is generally done with UK legislation.
I should make it clear here that when the clause talks about conferring functions on Ministers by name, it does not mean conferring them on Ministers personally. That would clearly be absurd.
The reason Northern Ireland legislation differs from that in the United Kingdom is that Northern Ireland does not have the concept of the Secretary of State at large. Most Westminster legislation confers functions on the Secretary of State. Theoretically, any Secretary of State could exercise the functions of another and ministerial responsibilities are allocated administratively.
In Northern Ireland, however, functions will need to be conferred on specific departments in most cases, and much more rarely on Ministers. While I appreciate the wording might look odd at first sight, I believe that it is appropriate, and I urge the noble Lord to withdraw his amendment.
Lord Cope of Berkeley: My Lords, there is no difference between us in what we seek to achieve. The provision could be more happily worded by stating "on a specific Minister". I had thought of inserting "on a Minister by title", but in your Lordships' House one's title is one's name. Although that might get round the problem in one sense, it might be misunderstood at least within these four walls.
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I leave the Minister to consider the amendment further between now and Third Reading, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 33:
Page 11, line 17, leave out subsection (3).
On Question, amendment agreed to.
Clause 21 [Prerogative and executive functions]:
Lord Dubs Lord Dubs moved Amendment No. 34:
Page 11, line 21, leave out subsections (2) and (3) and insert—
("(2) As respects transferred matters, the prerogative and other executive powers of Her Majesty in relation to Northern Ireland shall, subject to subsection (3), be exercisable on Her Majesty's behalf by any Minister or Northern Ireland department.
(3) As respects the Northern Ireland Civil Service and the Commissioner for Public Appointments for Northern Ireland, the prerogative and other executive powers of Her Majesty in relation to Northern Ireland shall be exercisable on Her Majesty's behalf by the First Minister and the deputy First Minister acting jointly.
(4) The First Minister and deputy First Minister acting jointly may by prerogative order under subsection (3) direct that such of the powers mentioned in that subsection as are specified in the order shall be exercisable on Her Majesty's behalf by a Northern Ireland Minister or Northern Ireland department so specified.").
On Question, amendment agreed to.
Clause 22 [Community law, Convention rights etc.]:
Lord Dubs Lord Dubs moved Amendment No. 35:
Page 11, leave out line 38 and insert ("section (Entrenched enactments).").
On Question, amendment agreed to.
Clause 24 [Internal obligations]:
Lord Dubs Lord Dubs moved Amendment No. 36:
Page 12, line 9, after ("obligations,") insert ("with the interests of defence or national security or with the protection of public safety or public order,").
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 37:
Page 12, line 13, after ("obligations,") insert ("of safeguarding the interests of defence or national security or of protecting public safety or public order,").
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 38:
Page 12, line 20, leave out ("would be incompatible with any international obligations,") and insert—

("(a) would be incompatible with any international obligations, with the interests of defence or national security or with the protection of public safety or public order; or

(b) would have an adverse effect on the operation of the single market in goods and services within the United Kingdom,").

On Question, amendment agreed to.
Clause 26 [Agency arrangements between UK and NI departments]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 39:
Page 13, line 3, leave out ("Arrangements") and insert ("Concordats").
The noble Lord said: My Lords, we have moved briskly to the question of agreements between the Northern Ireland departments and departments of the

665
United Kingdom Government. Clause 26 provides that they shall be called arrangements. In other legislation before us they are called concordats. Indeed, at Committee stage the Minister referred to them as concordats. It seems a better name in that it is a little more specific. It will have an agreed meaning of a specific arrangement of this kind. That is desirable.
It is desirable that these arrangements should be, relatively speaking, formal so that everyone understands where the responsibilities lie when arrangements are made. Those of us who have served in another place, and many noble Lords who have served in local government, for example, know of the confusion that exists in many people's minds about which part of the great machine within central or local government is responsible for specific responsibilities. People are frequently confused as to which it is. The greater the clarity, the better. It is not only a question of where the buck stops but also of people being able to refer their queries to the right place, to take up their grievances in the right place, and so on. The arrangements, as they are described in the Bill, should be on a formal basis when the function of one department is to be carried out by someone else.
For the same reason—it is the point of Amendment No. 40—such agreements, such concordats, should be legally binding. Although the ultimate responsibility will still rest with the higher authority making the concordat, nevertheless the higher authority has a right to expect that if the lower authority (the one receiving the concordat) does not do its job some legal sanction will apply to that lower authority. Otherwise the higher authority will have to breathe down the lower authority's neck all the time to ensure that the right actions are carried out in full.
I therefore believe that it would be desirable that the concordats should be known as such. However, the more important point is that they should be legally binding while still leaving the ultimate responsibility where it is placed by the appropriate statute. I beg to move.
Lord Dubs: My Lords, the amendments relate to Clause 26 which deals with agency arrangements. Those arrangements would allow for Northern Ireland departments to carry out functions on behalf of other United Kingdom departments or public bodies and vice versa. They are concerned purely with operational matters. These are not the same as the concordats which will be drawn up and agreed between the Northern Ireland Executive and United Kingdom government departments. Concordats are not intended to be legally binding contracts or treaties. They will be non-statutory agreements to promote effective communications and joint working between the two Administrations. As your Lordships will appreciate, there is a significant difference between agency arrangements under Clause 26 and the concordats, which will be agreed in due course. I therefore cannot agree to these amendments and would ask the noble Lord not to press them.
Lord Cope of Berkeley: My Lords, the Minister's answer affects my opinion on whether the arrangements
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should be called concordats, but not my opinion as to whether they should be legally binding. I hope that the agency arrangements under Clause 26 will be legally binding on the departments which enter into them, otherwise there will be difficulty about who is responsible when things do not go entirely according to plan. We all know that in government departments things do not always go according to plan and it is sometimes difficult to pin down the blame. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 40 not moved.]
Clause 27 [Statutory committees]:
Lord Dubs Lord Dubs moved Amendment No. 41:
Page 14, line 19, at end insert—
("( ) Standing orders shall provide that a chairman or deputy chairman shall cease to hold office if—

(a) he resigns by notice in writing to the Presiding Officer;

(b) he ceases to be a member of the Assembly; or

(c) he is dismissed by the nominating officer who nominated him (or that officer's successor) and the Presiding Officer is notified of his dismissal.").

The noble Lord said: My Lords, Amendment No. 41 is a technical amendment which brings the treatment of committee chairmen into line with other officeholders in the Bill. The clauses dealing with the appointment of the First Minister and Deputy First Minister, Northern Ireland Ministers and the Presiding Officer set out the circumstances in which they will cease to hold office. This amendment does the same and mirrors the provisions for Northern Ireland Ministers in Clause 16(9).
Amendment No. 231 enables committees of the Assembly established and committee chairs appointed during the shadow phase to carry forward after devolution. I commend the amendments to the House. I beg to move.
On Question, amendment agreed to.
Clause 31 [Constituencies and numbers of members]:
Lord Dubs Lord Dubs moved Amendment No. 42:
Page 16, line 43, after ("29") insert ("or 30").
The noble Lord said: My Lords, this is a technical amendment. Clause 31 provides for any Order in Council changing a parliamentary constituency in Northern Ireland to have effect from the next election of the Assembly. This could be either a normal election under Clause 29 or an extraordinary election under Clause 30, which was inserted as a new clause in Committee. This amendment adds a reference to elections under Clause 30.I beg to move.
On Question, amendment agreed to.
Clause 38 [Commission]:
Lord Dubs Lord Dubs moved Amendment No. 43:
Page 20, line 5, leave out ("statutory functions conferred on the Commission;") and insert ("functions conferred on the Commission by virtue of any enactment;").
The noble Lord said: My Lords, this, too, is a technical amendment. It ensures that the functions of the Assembly Commission includes those conferred on it by the Northern Ireland Act when enacted, as well as any conferred on it by Act or resolution of the Assembly. I beg to move.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 44:
Page 20, line 20, after ("Assembly") insert ("(other than proceedings on the Crown side of the Queen's Bench Division)").
The noble Lord said: My Lords, the principal function of the Assembly commission is to provide or ensure that the Assembly is provided with the property, staff and services required for its purposes. Thus, proceedings by or against the commission would relate to matters such as employment law. The amendments make it clear that they would exclude matters of public law. I beg to move.
On Question, amendment agreed to.
5.15 p.m.
Clause 40 [Petitions of concern]:
Lord Dubs Lord Dubs moved Amendment No. 45:
Page 21, line 3, at end insert—
("( ) Standing orders shall provide that the matter to which a petition under this section relates may be referred, in accordance with paragraphs 11 and 13 of Strand One of the Belfast Agreement, to the committee established under section 11(3)(a).").
The noble Lord said: My Lords this relatively minor change to the Bill's provisions of petitions of concern reflects points made by the parties during the consultation exercise and is designed to bring the clause more clearly into line with the provisions of the agreement.
As the Bill stands, a petition of concern leads automatically to a vote on the issue which then requires cross-community support to succeed. During consultation with the parties, it was made clear to us that the petition ought to be linked to the special committee procedure set out in paragraph 11 of strand 1. Paragraph 13 of strand 1 sets out the procedure linking a petition of concern to the special procedure in paragraph 11. This agreement provides for the special committee to be able to examine and report on whether a measure or proposal for legislation is in conformity with the equality requirements, including the ECHR Bill of Rights. The amendment requires the Assembly, through its standing orders, to set out procedures by which petitions of concern may be referred to such a committee for scrutiny. It therefore brings the Bill more fully into line with the agreement and I commend it to the House. I beg to move.
On Question, amendment agreed to.
Clause 42 [Powers to call for witnesses and documents]:
Lord Dubs Lord Dubs moved Amendment No. 46:
Page 23, line 2, leave out (", including this Act").
The noble Lord said: My Lords, this is a technical amendment. It changes the definition of "statutory functions" to,
"functions conferred by virtue of any enactment",
removing the reference to "this Act".
Removing the reference to "this Act" was felt to be necessary since having references to it in some places and not in others could cast doubt on whether references to enactments elsewhere in the Bill included references to this Act, which they should. I beg to move.
Lord Cope of Berkeley: My Lords, I rise only to draw attention to the fact that this is a wonderful example of the draftsman's second thoughts. The whole Bill gives the impression that it was drafted by a relatively junior draftsman in a hurry. The senior draftsman having looked at it, all these amendments are being included to the great confusion of everyone else.
Lord Dubs: My Lords, it is necessary to comment on that remark. The Government have listened carefully to comments made during the various stages of the Bill. We have sought to improve the drafting of the Bill wherever possible. We had at our disposal the time of several senior draftsmen and it is not right for the noble Lord to cast aspersions on them. The fact is that they were asked to work very quickly. The timetable was difficult; normally, the drafting of such a Bill would have required many more months in order to resolve the details before introducing it into another place. The noble Lord knows exactly why we had to move quickly. I will defend the draftsman against his accusations, which I know were meant in good part.
On Question, amendment agreed to.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 47:
After Clause 4,9 insert the following new clause—

REVIEW OF OPERATION AND EFFECT OF THIS PART
(" . Within two years of the coming into force of this Part, the Secretary of State shall report to each House of Parliament his conclusions following a review of the efficiency and fairness of the following and any related matters—

(a) the arrangements for the election of the Assembly;

(b) the procedures of the Assembly; and

(c) the effects of the existence of the Assembly on the House of Commons.").

The noble Lord said: My Lords, we move to a point of considerable substance. First, perhaps I may say that I did not mean to cast aspersions on the draftsmen employed on the Bill. I recognise, as I did in my remarks, that they were under great time pressure. That has obviously been the case in recent weeks and days.
I rise to move Amendment No. 47, which inserts a new clause. It suggests that the Secretary of State shall report to each House of Parliament his conclusion following the review of the efficiency and fairness of various matters which are set out.
Three matters are set out. The first is the arrangement for the elections to the Assembly. The second is the procedures of the Assembly. The agreement provides for a review of those two matters after what it describes as a specified period, although as far as I can see, the period is never specified. I seek to put into the Bill a provision for such a review as the agreement suggests and I specify a period of two years, which seems to me to be a reasonable period, after which the arrangements for the elections and procedures for the Assembly can be judged, when we see how it is all working. I was discussing earlier the difficulties of not having a Report stage in the Assembly. That is one of the procedures which may be required to be considered at that point.
I have added a third matter which will require review and that is:
"(c) the effects of the existence of the Assembly on the House of Commons".
My opinion, which I gave in Committee at greater length and I do not propose to go over it all again, is that the so-called English dimension—the West Lothian question—will not go away. It was answered before when Stormont existed by a reduction of, roughly speaking, one-third in the Members of the Westminster Parliament from Northern Ireland and by a self-imposed limitation by the Northern Ireland Members of Parliament in relation to those matters on which they spoke and took part in the debates in another place. That is obviously one way of answering the West Lothian question.
But it has become more important now than it was at the time of the existence of Stormont because there are three assemblies now being set up for Scotland, Wales and Northern Ireland. That question will not go away. I speak as an Englishman and I believe that it will become more important as the years go on and as English voters see what is the position and how their Members of Parliament are disadvantaged and in some cases no doubt overruled by the Members of Parliament in other parts of the United Kingdom while their Members have no comparable power over the operations of the other assemblies.
It is important that we should provide for a review of that situation in two years. At this point, nobody has an answer to the West Lothian question but an answer will have to be found and two years seems to me to be a reasonable time within which the matter should be reviewed and considered, along with the other two matters which the agreement proposes should be considered and reviewed. I beg to move.
Lord Dubs: My Lords, I am grateful to the noble Lord for this amendment which deals with the question of reviews of the Bill and the Belfast agreement's operation.
I think no one can be in any doubt that the procedures in this Bill are novel. Reviewing them to see how they work in practice is clearly sensible, and indeed is already provided for in the agreement, but it is for the Assembly to decide when a review is appropriate.
The noble Lord proposes a review within two years carried out by the Secretary of State and reported to the House. According to his amendment, the review is to
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focus on the Assembly's electoral system, the Assembly's procedures and the effects of the existence of the Assembly on the House of Commons.
I am certainly sympathetic to the idea of keeping under review progress being made under the agreement, but I wonder whether the Secretary of State is really the right person to carry out those reviews, particularly in some of the clearly devolved areas the noble Lord identifies.
On the noble Lord's third point, it is surely a matter for the other place to consider the impact of devolution, and indeed I note that a consultation exercise on just this subject is now under way. I shall return to that point in a moment.
As for the other two points in the draft new clause, these seem to be in the first instance matters for the Northern Ireland political parties and the Assembly to decide, not for the Secretary of State. Noble Lords will know that the Belfast agreement already includes provisions for review. Those are not mentioned in the Bill simply because we do not believe that provision is necessary.
The agreement largely calls for the new institutions to review their own progress and address any problems which may have arisen. On the strand 1 issues which the noble Lord identifies, for example paragraph 36 of strand 1 already includes some provisions. The paragraph states:
"After a specified period there will be a review of these arrangements, including the details of electoral arrangements and of the Assembly's procedures, with a view to agreeing any adjustments necessary in the interests of efficiency and fairness".
Similarly, paragraph 8 of the validation, implementation and review section of the agreement also calls for a wide-ranging review, indeed one rather more wide-ranging than proposed in the noble Lord's amendment.
The agreement says that,
"the two Governments and the parties in the Assembly will convene a conference 4 years after the agreement comes into effect, to review and report on its operation".
In this area, as in every other, the Government are committed to the agreement's provisions. We believe this is the most appropriate form of review, and I would accordingly urge the noble Lord to withdraw his amendment.
Perhaps I may refer further to the issue of representation at Westminster by Members of Parliament from the devolved areas. Noble Lords will be aware that the Scotland Bill includes provision for reviewing the number of Scottish MPs in Westminster in the light of devolution. But we are clear that similar provisions are not necessary for Northern Ireland for the very good reason that Northern Ireland is not over-represented in Westminster at present. The average Northern Ireland constituency is about the average size of constituencies in most other parts of the United Kingdom.
Lord Cope of Berkeley: My Lords, the Scottish example is not appropriate to paragraph (c) of Amendment No. 47 because that merely corrects the

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current over-representation of Scotland rather than to allow for consideration of the English dimension of the West Lothian question. Therefore, I do not believe that the Scotland Bill deals with the point at all. It merely corrects the change in the representation which will follow from it. No doubt we shall have to return to that matter many times in the coming years.
In regard to paragraphs (a) and (b), the Minister was correctly advised that paragraph 36 of the agreement was what I had in mind when drafting the amendment and the words follow it as closely as I could manage. I had not thought that that was the same review referred to elsewhere in the agreement.
As to who should carry out the review, the Minister suggested in the earlier part of his remarks that paragraphs (a) and (b) should be reviewed by the Assembly rather than the Secretary of State. But the responsibility for the law on the election of the Assembly and the outline of the procedures are laid down in Westminster legislation and, indeed, the procedures are laid down in this Bill itself. Therefore, even if the Assembly considers those matters, it will have to refer them to the Secretary of State, which is why I suggest that he should review them in the first place.
However, the Minister has made clear that the major four-year review with both Governments and the different parties involved in it will cover those matters at paragraphs (a) and (b) and I shall not seek to press the amendment.
Amendment, by leave, withdrawn.
Clause 50 [North-South Ministerial Council and British-Irish Council]:
Lord Dubs Lord Dubs moved Amendment No. 48:
Page 26, line 12, after ("Ministers") insert ("and junior Ministers (including where appropriate alternative nominations)").
The noble Lord said: My Lords, Amendment No. 48 makes explicit an obligation which was previously implied; namely, the responsibility of the First and Deputy First Minister where appropriate to make alternative nominations of Ministers to attend the North-South Ministerial Council and the British-Irish Council. The circumstances in which such nominations would be appropriate are likely to be when one of the original nominations is, for whatever reason, unable to attend or participate fully in one of the meetings.
Thus, if a Minister is unable to attend, the First Minister and Deputy First Minister may make an alternative nomination from among the other Ministers. To enable the delegation to enter into any agreements or arrangements within the area of responsibility of the absent Minister, subsection (4) of this clause allows a Minister to authorise another Minister to act on his or her behalf.
However, it should be emphasised that the only way in which any Minister can participate in meetings of the North-South Ministerial Council or the British-Irish Council is by means of a nomination from the First Minister and the Deputy First Minister. Amendment No. 48 gives effect to the requirement in paragraph 2 of
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strand 2 that the First Minister and the Deputy First Minister should be able to make alternative arrangements if a Minister is unable to participate normally. I beg to move.
On Question, amendment agreed to.
5.30 p.m.
Lord Dubs Lord Dubs moved Amendment No. 49:
Page 26, line 14, after ("such") insert ("cross-community").
The noble Lord said: My Lords, this amendment, together with Amendments Nos. 51 and 72, ensures that participation by representatives of the Northern Ireland Administration in the various bodies to be set up under strands 2 and 3 of the agreement shall be such as to ensure cross-community involvement.
Noble Lords will have often heard it said that the agreement is a package which must be accepted and implemented as a package. So, when dealing with strands 2 and 3, it remains important to take account of provisions elsewhere in the agreement.
A case in point is paragraph 30 of strand 1 of the agreement which requires that arrangements to represent the Assembly in its dealings with other institutions should be such as to ensure cross-community involvement. These amendments incorporate that requirement in an explicit reference on the face of the Bill. This cross-community involvement will be an important safeguard in ensuring that the interests of all the people of Northern Ireland are taken into account when conducting business in the various institutions.
The noble Lord, Lord Cope, has put down Amendment No. 53 which seeks to incorporate a specific reference to paragraph 30 of strand 1. However, in view of the amendments that I have just outlined, I believe that the objective has been achieved and that his amendment is unnecessary. I beg to move.
Lord Cope of Berkeley: My Lords, I tabled Amendment No. 53 with two purposes in mind. One of them is the purpose which has subsequently been taken up by the Minister's amendments, Amendments Nos. 49 and so on; namely, to ensure that the nominations made of people to represent the Assembly in other bodies, especially at summit level, should be on a cross-community basis. I believe that that part has already been covered by the Minister's amendments which make that clear on the face of the Bill.
However, there is another purpose to Amendment No. 53. It is intended to ensure that the cross-community status of the representation is, so to speak, backed up or—if it is not too strong a word—"guaranteed" by the fact that more than one Minister will actually represent the Assembly when attending these other institutions. That will obviously provide the opportunity for Ministers of different parties, in the cross-community basis that Northern Ireland has and will have, to go together. There are two things to recommend that approach. The first is that the suspicions which sometimes arise in Northern Ireland as to what someone of a different persuasion may have said during the course of a meeting can be dispelled as a result of

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someone in the opposite party being there at the same time. That is one way to help disperse such suspicions which frequently arise in the Northern Ireland context.
Moreover, when the two Ministers of different persuasions go to represent the Assembly and they are both saying the same thing and backing up each other, they will be in an even more powerful position as regards the others with whom they are dealing. Therefore, it would strengthen the Assembly's representation to have two Ministers of opposite parties—or sometimes a Minister and a junior Minister—taking part in negotiations. In the special circumstances which obtain in Northern Ireland, it seems to me that that would be one way to ensure the cross-community representation which both the Minister and I are seeking to nail down in different ways in this block of amendments.
Lord Dubs: My Lords, there is just one point made by the noble Lord to which I feel there is a particular need to reply. By having cross-community representation we will, by definition, have two Ministers attending bodies such as the North-South Ministerial Council or the British-Irish Council. Moreover, because it will be cross-community representation, it means that they will be Ministers of different political persuasions. Therefore, I believe that we are really achieving the precise aims that the noble Lord seeks to achieve with his amendment. There is nothing between us in terms of what we are seeking to do. I believe that the government amendments do precisely what the noble Lord wishes to see done.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 50:
Page 26, line 14, leave out ("appears to them to be") and insert ("is").
The noble Lord said: My Lords, Amendments Nos. 50, 52 and 74 represent an important clarification of the nature of the attendance and participation by Northern Ireland Ministers in the North-South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference. It is already clear that the only way in which Ministers may participate in meetings of the councils is by means of a nomination from the First Minister and the Deputy First Minister. The amendments make it absolutely clear that the resulting ministerial representation at each institution is to be that which is required by the Belfast agreement. For example, strand 2 states that,
"Northern Ireland [is] to be represented by the First Minister, deputy First Minister and any relevant Ministers".
Amendment No. 50 makes clear that the First Minister and Deputy First Minister shall make such nominations as to ensure that this representation is achieved.
Amendments Nos. 52 and 74 ensure a similar outcome in relation to the British-Irish Council and British-Irish Intergovernmental Conference respectively. I have no doubt that noble Lords will appreciate the importance of confidence in the context of the implementation of the Belfast agreement. Confidence is required in respect of these new institutions as much as
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every other aspect of the agreement. It is vital for everyone to have confidence that the operation of the institutions, including the representation of the Northern Ireland Administration at their meetings, is clearly in accordance with the agreement. These amendments will help to underpin such confidence.
Before leaving the amendment, I should like to clarify a further point in relation to the British-Irish Council and the ability of members to participate in it. This Bill relates only to the participation of representatives of the Northern Ireland Administration in the council. We are clear that, under the Government of Wales Act and the Scotland Bill, the Welsh and Scottish administrations will be able to participate fully in the British-Irish Council as set out in paragraphs 5 and 6 of the first part of strand 3 as regards discussion, consultation and co-operation on matters of mutual interest. They will also be able to enter into bilateral or multilateral arrangements, including with the Republic of Ireland, to enable consultation, co-operation and joint decision taking on matters of mutual interest as set out in paragraph 10 of that section. If further provisions are requested, perhaps to facilitate joint implementation mechanisms, the Government will look favourably at any request and ensure that the desired co-operation is achieved. I beg to move.
Lord Cope of Berkeley: My Lords, it seems to me that the wording in the Bill with the First Minister and the Deputy First Minister acting jointly to make nominations to ensure such cross-community participation,
"as appears to them to be required",
leaves the decisions entirely to the First Minister and the Deputy First Minister. If we take out the words,
"as appears to them to be",
and insert "is", it is not just a question of an arrangement appearing to the First Minister and the Deputy First Minister to be a satisfactory cross-community arrangement. It has to be legal; that is to say, decisions made by the First Minister and the Deputy First Minister are open to judicial review or something of that kind. Therefore I prefer the wording,
"as appears to them to be".
I trust the First Minister and Deputy First Minister to make the decisions and I do not want them to get involved in arguments as to whether, legally, they have properly represented the cross-community currents in making those decisions. I am not altogether happy about the wording being tightened up in the way that is suggested.
The Minister also referred to the British-Irish Council and the involvement of Scotland and Wales. He should make clear that, as under the agreement, that includes representatives of the Isle of Man and the Channel Islands, including, as I pointed out at an earlier stage, the hereditary Seigneur of Sark. That is a welcome

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recognition by the Government of the hereditary principle in adding an hereditary representative to the British-Irish Council.
Viscount Brookeborough: My Lords, I support the noble Lord, Lord Cope, in not wishing to delete the words,
"as appears to them".
I agree with the reasons he stated. Further, the First Minister and the Deputy First Minister are cross-community people. Therefore if a matter appears to them to be cross-community, that must surely be the correct interpretation.
Lord Newby: My Lords, we, too, have some sympathy with the arguments expressed by the noble Lord, Lord Cope. The amendments beg the question of where responsibility will lie for ensuring that the agreement is being fairly interpreted. For example, is there any role for the Secretary of State if he or she believes that the agreement has not been correctly interpreted? Is there any role for the Assembly in expressing a view if it also believes that the agreement has not been correctly interpreted? It seems to us that rather than making life easier, this series of amendments could lead to confusion which would have the opposite effect to that which the Government appear to seek.
Lord Dubs: My Lords, I shall discuss the point made by the noble Lord, Lord Cope, about Sark. I understand that Sark would not be represented in its own right at the British-Irish Council but would be represented by the Government of Guernsey. I am afraid that the point that the noble Lord sought to make about the hereditary principle has not succeeded. I wish to clarify that point.
It is important that representation of Northern Ireland Ministers is exactly that specified in the agreement, as the noble Lord has said. That is the purpose of the amendment. It seeks to reflect the agreement as closely as possible. Whereas I appreciate that the noble Lord and other noble Lords who have spoken have some other concerns, the Government's position is clearly that we want to do exactly what is specified in the agreement. I believe that the amendments do just that.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 51:
Page 26, line 16, after ("such") insert ("cross-community").
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 52:
Page 26, line 16, leave out ("appears to them to be") and insert ("is").
On Question, amendment agreed to.
[Amendment No. 53 not moved.]
5.45 p.m.
Lord Dubs Lord Dubs moved Amendment No. 54:
Page 26, line 18, after ("Minister") insert ("or junior Minister").
The noble Lord said: My Lords, these amendments, together with Amendment No. 34 considered earlier, provide that junior Ministers may participate in the North-South Ministerial Council and the British-Irish Council when nominated to do so by the First Minister and Deputy First Minister. This would be an entirely appropriate function for junior Ministers to be able to discharge were they to be appointed under the provisions of this Bill.
Amendment No. 60 makes clear that junior Ministers who have been so nominated may be authorised to enter into agreements or arrangements on behalf of a Minister who is unable to take part. Consequential to this, Amendment No. 65 provides that the Assembly may legislate in respect of agreements or arrangements entered into by junior Ministers who have been so authorised.
Amendment No. 73 provides that junior Ministers are eligible to attend meetings of the British-Irish Intergovernmental Conference, again if required to do so by the First and Deputy First Minister. As a consequence of this amendment, Amendment No. 75 deletes the now redundant definition of "attendance" in subsection (3). This responds to a point made by noble Lords during our previous consideration of the Bill.
Amendment No. 135 takes out a reference to "person" in Schedule 2 and again makes clear that only Ministers and junior Ministers may take part in the North-South Ministerial Council and the British-Irish Council. I beg to move.
Lord Cope of Berkeley: My Lords, I congratulate the Minister on supporting Amendment No. 75 in this group which was tabled by the noble Lord, Lord Molyneaux, and has now been supported by the Minister. To enable the House to understand what is happening, I should explain that it is proposed to delete the wonderful subsection that now states:
"In this section 'attendance' by Ministers and junior Ministers means attendance by one or more Ministers".
That is a good piece of jargon to take out of the Bill.
Lord Molyneaux of Killead: My Lords, in case anyone should imagine that there is some form of collusion between the Minister and myself, I think it is possibly a question of great minds thinking alike. Naturally I must support the amendment.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 55:
Page 26, line 21, at beginning insert ("Without prejudice to the operation of section 22,").
The noble Lord said: My Lords, Amendment No. 55 is a purely drafting amendment which moves existing provision from subsection (8) to subsection (3). I beg to move.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 56:
Page 26, line 21, after ("Minister") insert ("or junior Minister").
On Question, amendment agreed to.
Lord Molyneaux of Killead Lord Molyneaux of Killead moved Amendment No. 57:
Page 26, line 22, leave out ("or the Executive Committee").
The noble Lord said: My Lords, there would appear to be a degree of commonality between Amendments Nos. 57 and 59. I shall say a few words about the former. The amendment proposes the deletion of the words "Executive Committee" from Clause 50(3). That would mean the Minister could act only in the North-South Ministerial Council in accordance with the decisions of the Assembly. That would appear to be in line with British standards of democracy. The measure is also designed to tighten up the lines of accountability and to ensure that the North-South Ministerial Council is under democratic (ministerial) control. I beg to move.
Lord Dubs: My Lords, I am grateful to the noble Lord for explaining the thinking behind Amendment No. 57. However, it would appear to me that the deletion of "Executive Committee" from Clause 50(3) is inconsistent with the agreement. The Ministerial Pledge of Office clearly requires all Ministers to,
"act in accordance with all decisions of the Executive Committee and Assembly".
The first sentence of paragraph 6 of strand 2 requires Ministers to be in a position to take decisions in the North-South Ministerial Council through,
"the arrangements in place for co-ordination of executive functions within each jurisdiction".
That, by definition, includes the Executive Committee.
It must therefore be a requirement of the agreement that Ministers operating in the Council shall act in accordance with decisions of both the Executive Committee and the Assembly and I must resist the amendment.
Lord Molyneaux of Killead: My Lords, I thank the Minister for his explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 58:
Page 26, line 24, leave out ("Northern Ireland").
The noble Lord said: My Lords, during the consideration of Clause 50 in Committee, a number of noble Lords suggested that subsection (4) should be amended to ensure that the First and Deputy First Minister were able to authorise other Ministers to enter into agreements or arrangements on their behalf. At that stage, I agreed to consider the point further.
Noble Lords will therefore be pleased that, after consideration, I am able to respond to their concern. The purpose of subsection (4) is to enable business in the councils to be conducted when a Minister is unable to attend. It is of course possible that, for whatever reason, the First and Deputy First Minister might be unable to attend a particular meeting and it is important that they too should be able to authorise a colleague to conduct business on their behalf. I beg to move.
On Question, amendment agreed to.
[Amendment No. 59 not moved.]
Lord Dubs Lord Dubs moved Amendments Nos. 60 and 61:
Page 26, line 24, leave out ("another Minister") and insert ("a Minister or junior Minister").
Page 26, line 35, after ("Minister") insert (''or junior Minister").
On Question, amendments agreed to.
Lord Molyneaux of Killead Lord Molyneaux of Killead moved Amendment No. 62:
Page 26, line 35, leave out ("by reason of a nomination under this section").
The noble Lord said: My Lords, unfortunately the grouping seems to guarantee that we come back to this topic on at least three occasions. The amendment is designed to authorise the First Minister and the Deputy First Minister to substitute for another Minister who is unable or unwilling to attend a meeting of the North-South Ministerial Council. The clause, if amended as I intend, would result in a situation where a Northern Ireland Minister who has been nominated under subsection (1)(a) or (b) may in writing authorise another Minister, the First Minister or Deputy First Minister, to enter into agreement or arrangements in respect of matters for which he is responsible.
The curious thing is that it would allow another Minister, other than the First Minister or Deputy First Minister to act as a substitute for the Minister of a department who was either unable or unwilling to attend a meeting. Let me give an analogy to the Palace of Westminster. Let us suppose that the Foreign Secretary refuses to attend a European Summit meeting. He reports his refusal to the Prime Minister and the Prime Minister delegates the Minister of Health to go to Brussels to represent Her Majesty's Government. When the Health Minister returns, what does he then do? Does he report to the Prime Minister? He cannot very well report to the Foreign Secretary if he has refused to attend. The alternative would be that the Minister who had been parachuted into Brussels—namely the Health Minister—would go to the Foreign Office, ask to see the Permanent Secretary, lay on his desk a document and say, "These are the matters to which I have agreed on behalf of Her Majesty's Government. I require you to implement them." That may be a facetious argument, but things are inclined to be a little facetious as far as the working of the Northern Ireland Assembly is concerned, at least to my rather jaundiced, long-range eye.
I apologise that the drafting of the amendments has put the Minister into the position of having to deal with roughly the same subject on three occasions. I beg to move.
Lord Dubs: My Lords, I am grateful to the noble Lord for his explanation. However, I believe that this amendment is an unnecessary complication of the procedure by which a Minister may authorise a colleague to enter into agreements on his or her behalf. It would mean that a Minister who, for whatever reason, was unable to attend the council would have to be nominated to attend, and presumably decline to do so, before being able to authorise someone else to conduct business. That is not necessary and I must in those circumstances resist the amendment.

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The process envisaged in the Bill is straightforward. If a Minister is unable to attend, the First and Deputy First Minister may make an alternative nomination from among the other Ministers and junior Ministers. To enable the delegation to enter into any agreements or arrangements within the area of responsibility of the absent Minister, a Minister may authorise another Minister or junior Minister to act on his or her behalf.
Lord Molyneaux of Killead: My Lords, for the third time running I did not expect any concessions from the Minister as he has committed himself on at least two other occasions this afternoon. In the light of that explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 63:
Page 26, line 42, leave out subsection (8) and insert—
("( ) The Northern Ireland contributions towards the expenses of the Councils shall be defrayed as expenses of the Department of Finance and Personnel.").
The noble Lord said: My Lords, the purpose of Amendment No. 63 is to ensure that there is a statutory authority for the Northern Ireland contributions towards the costs of the North-South Ministerial Council and the British-Irish Council to be met. In relation to the North-South Ministerial Council, this gives explicit effect to paragraph 15 of strand 2, which states that funding of the Council is to be provided by the two administrations—that is, Belfast and Dublin—on the basis that it constitutes a necessary public function. Paragraph 8 of strand 3 similarly states that the members of the BIC will provide such financial support as it may require.
What are the expenses referred to in the amendment? In the case of the North-South Ministerial Council, there will be costs associated with the holding of meetings and with the operation of the standing joint secretariat, which is to be staffed by members of the Northern Ireland Civil Service and the Irish Civil Service. In the case of the British-Irish Council, there will also be costs associated with meetings, particularly when they are held in Northern Ireland.
These are important institutions. They will reflect a new set of relationships within the island of Ireland and between these islands. It is important that there is clear authority to provide the necessary funding to support them. I beg to move.
Lord Cope of Berkeley: My Lords, as far as the expenses of the councils are concerned, I obviously entirely agree that we should implement the agreement and that a proportion of the expenses should fall on Northern Ireland. I was interested that it was expressed as the "Department of Finance and Personnel". It seems quite likely that it will become two departments in due course. At the moment relatively few Ministers conduct the affairs of Northern Ireland and the Department of Finance and Personnel has been one department for quite a long time. Personnel is quite a different matter from finance in many respects. As far as the Whitehall
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government are concerned, we have quite frequently had a Minister for the Civil Service separate from the Ministers at the Treasury. Obviously, the Chief Secretary is the rough equivalent of the Minister in charge of the Department of Finance. Presumably, if the Department of Finance and Personnel were to be split into two at some time, this clause would not become invalid but some succession arrangements would be made.
Another quite separate point arises out of this amendment. The amendment not only inserts the words referred to on the Marshalled List about the defraying of expenses but deletes the fact that subsection (3) does not affect the operation of Clause 22 in relation to the powers of Ministers. Clause 22 is all about Community law and convention rights and matters of that kind, which we have discussed and perhaps become embroiled in at different times. But all of a sudden, in the middle of an amendment apparently providing simply for the defraying of expenses, the operation of Clause 22 seems to be affected by the words being deleted. We need to know from the Minister why those words are being deleted as well as why the new words, referring to a quite different subject—finance—are being inserted into the Bill by Amendment No. 63. I should like the Minister, if inspiration has struck him, to help the House in that respect as well.
6 p.m.
Lord Dubs: My Lords, perhaps I may deal with one or two of the specific questions that have been put to me. The effect of subsection (8) was moved to subsection (3) by Amendment No. 55, with which we have already dealt. As regards the reference made by the noble Lord, Lord Cope, to the Department of Finance and Personnel, if, under a rearrangement of departments, the Department of Finance and Personnel is split up or its functions moved elsewhere, this function will move. As the noble Lord anticipated in what he said, consequential changes can be made when functions are moved between departments.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 64:
Page 27, line 3, leave out ("paragraph 5") and insert ("paragraphs 5 and 6").
The noble Lord said: My Lords, noble Lords will be aware that, throughout the consideration of these clauses, one of the most significant areas has been the authority and accountability of Northern Ireland Ministers taking part in the North-South Ministerial Council. As a Minister myself, I understand the importance of being clear about one's authority to take decisions and one's accountability to the legislature.
Amendment No. 64 will put beyond all doubt that Ministers have authority to participate in the North-South Ministerial Council only to the extent that such participation is in accordance with paragraphs 5 and 6 of strand 2 of the agreement. Paragraph 5 sets out the various levels at which Ministers will participate in the council; paragraph 6 outlines the authority for such participation.
I think it would be helpful if I reminded noble Lords of the exact wording of paragraph 6. It states:
"Each side to be in a position to take decisions in the Council within the defined authority of those attending, through the arrangements in place for co-ordination of executive functions within each jurisdiction. Each side to remain accountable to the Assembly and Oireachtas respectively, whose approval, through the arrangements in place on either side, would be required for decisions beyond the defined authority of those attending".
Throughout the Bill we have sought to implement the provisions of the agreement; no more and no less. Noble Lords have heard me say that on countless occasions. That is true in this area as much as any other. Through this amendment, we are making clear that participation in the North-South Ministerial Council is to be exactly that which was agreed by the parties on Good Friday and that Ministers must act in accordance with paragraphs 5 and 6 of strand 2. I beg to move.
On Question, amendment agreed to.
Clause 51 [Agreements etc. by persons participating in Councils]:
Lord Dubs Lord Dubs moved Amendment No. 65:
Page 27, line 7, after ("Minister") insert ("or junior Minister").
On Question, amendment agreed to.
[Amendment No. 66 not moved.]
The Deputy Speaker (Baroness Turner of Camden): My Lords, I call Amendment No. 67 in the name of the noble Lord, Lord Molyneaux.
Lord Molyneaux of Killead: My Lords, my name and that of the noble Lord, Lord Dubs, appear jointly on this amendment. Perhaps the noble Lord will do the honours.
Lord Dubs Lord Dubs moved Amendment No. 67:
Page 27, line 13, leave out ("authority") and insert ("body").
The noble Lord said: My Lords, I am grateful to the noble Lord for allowing me to have the first go at this amendment. Amendment No. 67 changes the reference in Clause 51(2)(a) from "authority" to "body". Although this may seem a minor point, it was one on which a number of noble Lords commented during Committee and to which, on reflection, I am willing to respond. The noble Lord, Lord Molyneaux, tabled an equivalent amendment and will, I trust, be pleased that we have proposed such a change.
The paragraph, as revised, will allow provision to be made to transfer functions from a Minister or Northern Ireland department to any designated "body". This language is, I believe, more in line with the language of the agreement which speaks of implementation bodies operating under the North-South Ministerial Council.
The noble Lord, Lord Molyneaux, tabled a further amendment, Amendment No. 68, proposing an equivalent change to Clause 51(2)(b). I reflected carefully on this point and indeed consulted with parliamentary counsel. I concluded that "authority" is the correct term in this paragraph for persons exercising
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any functions which are to be transferred to a Minister or Northern Ireland department. I must therefore resist that amendment. I beg to move.
Lord Molyneaux of Killead: My Lords, the Minister has put the case for our amendment very well. Therefore, I shall not move the other amendment.
On Question, amendment agreed to.
[Amendment No. 68 not moved.]
Lord Molyneaux of Killead Lord Molyneaux of Killead moved Amendment No. 69:
Page 27, line 24, leave out subsection (4).
The noble Lord said: My Lords, in moving this amendment, perhaps I may speak also to Amendments Nos. 69 and 70. Amendment No. 68 raises a well worn subject but I think there is probably no harm in our addressing our minds to it. It aims to achieve greater accountability not just in financial terms but, far more importantly, in constitutional terms. In the area covered by the amendment there appears to be a rather boxed-in atmosphere. If trust and confidence are to be established and generated in the Assembly, openness accounts for a great deal. Bearing in mind the degree of co-operation that has been established thus far today, I hope that the Minister will be able to give a favourable reply. I beg to move.
Lord Dubs: My Lords, Amendments Nos. 69 to 71 address an issue which goes to the heart of these clauses. In fact, it is an issue which was at the heart of the negotiations on strand 2—the authority and accountability of Ministers participating in the North-South Ministerial Council.
I have already moved an amendment to Clause 50 which puts beyond any doubt that participation in the council shall be construed in accordance with paragraphs 5 and 6 of strand 2. The effect of this amendment is that Ministers have authority to participate in the North-South Ministerial Council only to the extent that such participation is in accordance with these paragraphs.
Paragraph 6 in particular makes clear, first, that Ministers must be able to operate within their defined authority and, secondly, that Assembly approval must be given for any decisions which go beyond that authority. This amendment seeks to go further still by requiring Assembly approval for all agreements or arrangements. This clearly goes beyond the terms set out in paragraph 6.
I believe that these clauses, as amended, implement the agreement accurately. I believe also that they set out a number of safeguards which help to meet noble Lords' concerns. Perhaps I may quickly outline those safeguards. As a result of amendments already discussed, Northern Ireland participation in the North-South Ministerial Council must be on a cross-community basis; all decisions of the council must, by virtue of paragraph 2 of strand 2, be taken by agreement between the two sides; any agreement or arrangement which requires additional finance or fresh legislative provision must subsequently secure the

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support of the Assembly if it is to be given effect; any new implementation body must be approved by the Assembly; and, finally, Ministers must act in accordance with all decisions of the Executive Committee and Assembly.
Taken together, these provisions ensure that no decision in the council can be taken without cross-community involvement and that any significant, substantive decision will require Assembly approval.
As I have said, this is a very important issue. But I firmly believe that the Bill fully reflects the agreement and will ensure that the North-South Ministerial Council is properly accountable to the Assembly.
Lord Molyneaux of Killead: My Lords, the explanation has been helpful. It goes as far as one can expect the Minister to go. As the noble Lord knows, the amendment is designed to ensure that all agreements and arrangements entered into will be approved ultimately by the Assembly because without that provision the Assembly members could become very disillusioned. But in the light of the Minister's reasonably sympathetic approach, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 70 and 71 not moved.]
Clause 52 [British-Irish Intergovernmental Conference]:
Lord Dubs Lord Dubs moved Amendment No. 72:
Page 27, line 34, after ("such") insert ("cross-community").
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 73:
Page 27, line 34, after ("attendance") insert ("by Ministers and junior Ministers").
The noble Lord said: My Lords, I beg to move.
Lord Cope of Berkeley: My Lords, perhaps I may intervene. There is not much point in moving this amendment if the Minister is going to agree to Amendment No. 75: the former will be immediately knocked out.
Lord Dubs: My Lords, I believe that the amendment is appropriate because we cannot act on the assumption that the House will necessarily agree to a subsequent amendment.
On Question, amendment agreed to.
[Amendment No. 74 not moved.]
Lord Molyneaux of Killead Lord Molyneaux of Killead moved Amendment No. 75:
Page 27, line 36, leave out subsection (3).
The noble Lord said: My Lords, I have much pleasure in moving this amendment. It provides another demonstration of our co-operation in that when the Assembly is in operation, if there is need for an experienced tea-boy, I hope that the noble Lord will not overlook my claims. I do not believe that it is necessary to say much more about this amendment and the
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proposal to delete this particular subsection. In one way or another we have already covered all the ground. I beg to move.
On Question, amendment agreed to.
Clause 53 [Implementation bodies]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 76:
Page 27, line 38, leave out ("body") and insert ("international organisation created by treaty").
The noble Lord said: My Lords, we now move on to Clause 53, which deals with implementation bodies. These are the joint bodies to be created north and south of the Border to carry out various executive responsibilities. In Committee we had a discussion as to what was to be the legal nature of those bodies. There is a difficulty about it. If they were to have a legal persona in either the north or south under the Companies Act, for example, or some such provision, that would be unsatisfactory. They would not be truly joint bodies.
As I understood the Minister's reply at that time, the intention is that the implementation bodies shall be international organisations created by treaty, which will give them the necessary international legal persona carrying across the whole of Ireland. It will enable them to make contracts which any legally constituted body can do. They will then be able to carry out their business of implementing the responsibilities laid on them by the two jurisdictions, north and south.
The question of such bodies being international organisations had not been made clear before, and was creating some difficulty. It seemed to me, therefore, that it would be better to state on the face of the Bill that these are not just any old bodies, which is what the Bill says at the moment. The Secretary of State may make an order about an international organisation created by treaty. In that way we make it clear to people exactly what the status of the implementation bodies is going to be legally and, for that matter, internationally. They are a very significant part of the agreement. They will be difficult to set up and operate in the first instance. We all wish them well and I hope that they will be effective in operating across the whole of Ireland. They will have difficulties. It is necessary to be very clear that they have a strong legal basis from which to operate as well as the political support which they will obviously need from both parts of Ireland. I beg to move.
6.15 p.m.
Lord Dubs: My Lords, the legal framework of north-south implementation bodies was the subject of considerable discussion during our earlier consideration of these clauses. I think it would be helpful if I again set out the sequence of events by which these implementation bodies will come into being.
Under the terms of the agreement, representatives of the Northern Ireland transitional Administration and the Irish Government are to identify and agree at least six areas where co-operation will take place through agreed implementation bodies on a cross-border or all-island level. These initial implementation bodies will then be established by international treaties concluded between the British and Irish Governments.

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In order to operate effectively, each implementation body will then need to be given any requisite capacities and functions in domestic legislation in Northern Ireland and the Republic of Ireland. That is the purpose of the Secretary of State's power to make orders under Clause 53. This clause deals only with the initial group of implementation bodies. As I have said, these bodies are to be established by treaties between Her Majesty's Government and the Irish Government. I hope that this has provided the noble Lord with the reassurance he seeks about the legal status of the initial implementation bodies.
Before leaving this amendment, I should like to take the opportunity to clarify the definition of an "implementation body", on which noble Lords had some earlier discussion. It is the Government's clear view that implementation bodies will operate on a cross-border or all-island level. It is also our understanding that paragraph 11 of strand 2, which is used to define the bodies, applies to all implementation bodies, both initial and further. I trust that that clarifies the understanding of noble Lords. Therefore, I am unable to accept the noble Lord's amendment.
Lord Cope of Berkeley: My Lords, in a moment we shall come to some of the additional points which the Minister has just raised, including those in Amendment No. 80 as regards what happens to subsequent implementation bodies and the legal status that they will have. This clause is intended to refer solely to the initial implementation bodies. They are the first tranche of what will become a much greater number in due course. As far as they are concerned, it is clear that they will be international organisations created by treaty. They are not just implementation bodies but bodies of rather special character.
I am sorry that the Minister does not think it wise to insert the words of the amendment into the Bill. I believe that they would make the situation much clearer to everyone concerned and would strengthen the Bill rather than weaken it or make it vague. However, the Minister is not yet convinced so I shall not press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Molyneaux of Killead Lord Molyneaux of Killead moved Amendment No. 77:
Page 27, line 39, leave out from beginning to ("and") and insert ("agreed under paragraph 9(ii) of Strand Two of the Belfast Agreement;").
The noble Lord said: My Lords, two matters occur to me as regards this amendment. The curious phrase,
"The Secretary of State … considers",
appears in the Bill. Does that imply that the Secretary of State alone will consider or will he seek the views of the members of the Assembly and, if possible and time permits, the Parliament of the United Kingdom as well, given that the other half of the agreement—the Irish Government or whatever name it wishes to call itself by when we have finished with this Bill—will take it for granted that consultation at all levels will take place?
My point concerns the words that my amendment proposes to insert into the clause, which are,
"agreed under paragraph 9(ii) of Strand Two of the Belfast Agreement".
I am not complaining that the Minister, right from day one, has insisted that we must not "do violence" to the text of the Belfast agreement. As paragraph 9 is set out clearly in the agreement, I believe that that form of words would vastly improve the clause; as I think do my colleagues who are serving in the Assembly, but not yet in the Executive. I beg to move.
Lord Dubs: My Lords, as I stated when dealing with the previous amendment, the first stage in the establishment of the North-South implementation bodies is for the areas for co-operation to be identified and agreed by representatives of the Northern Ireland transitional Administration and the Irish Government. Once that has happened, the bodies will be established by international agreements between the British and Irish Governments.
Only then will domestic legislation be made to give any requisite capacities and powers to these bodies. I can give a categorical assurance to the House that the Secretary of State's power to make orders under Clause 53 will be exercised only in respect of the agreed implementation bodies. The implementation bodies will be those clearly identified and agreed by representatives of the Northern Ireland Administration and the Irish Government. It stands to reason that the Secretary of State will have those views before her when considering whether to make an order about a body.
Lord Molyneaux of Killead: My Lords, that appears to be a reasonably satisfactory reply. The noble Lord has made it clear that views, other than those of a small circle, will be taken into account. Although there may be occasions when there will be wider consultations—certainly with Members of the Executive, if not the Assembly—perhaps we can return to that in the future. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 78:
Page 27, line 39, after ("body;") insert—
("( ) which has equivalent powers and duties throughout both the Republic of Ireland and Northern Ireland;").
The noble Lord said: My Lords, it seems to me that it is important to reassure people in both jurisdictions that the implementation bodies are genuine cross-Border bodies. They are seen by some in Northern Ireland as ways in which the south, the Republic, can interfere in matters in Northern Ireland. We know of the tremendous suspicion that there has been over a long period about the operation of the Maryfield secretariat. That demonstrates the way in which such fears can grow and be extremely important in the context of Northern Ireland. Therefore, to the extent that we can, it seems right to ensure on the face of the Bill that the bodies have exactly the same powers in both jurisdictions.
I moved a similar amendment in Committee, which I explained at greater length and in more detail. I was criticised then for the precision of that amendment because in the two jurisdictions the powers may be expressed differently due to the different legislative backgrounds. I have, therefore, modified the wording in the hope of making it more acceptable to your Lordships, and particularly to the Minister, to read "equivalent powers and duties" both sides of the Border rather than "identical" or "the same". It is an important point of principle that they should have the same powers. That would be entirely in accordance with the agreement. That is what is intended, so I do not think that any damage would be caused to the agreement by the amendment. On the contrary, I believe that it would strengthen the Bill and reinforce the potential bodies.
Amendment No. 79, which is grouped with Amendment No. 78, seeks to delete Clause 53(1)(b), which states that the orders that the Secretary of State may make in this context shall be limited to the initial implementation bodies. A very large point underlies this apparently small amendment. The amendment is similar to Amendment No. 80 in which the noble Lord, Lord Molyneaux of Killead, achieves a similar effect with neater wording. However, his amendment does not have quite the same meaning.
It is intended that under the agreement six implementation bodies will be set up initially. Work is proceeding on agreeing the areas and on what will happen in the Assembly and with the authorities in the south. Under Clause 53 as it stands, the Secretary of State can make an order about such a body only if it is one of the initial bodies. I look forward to the day when there may be more implementation bodies—seven, eight or even more. It may be thought right to establish such bodies to carry out different functions on both sides of the Border. It seems to me that they, too, should be on the same all-island basis. Therefore, they will need to be international organisations, created by treaty.
I take it that the Assembly and the Executive will not have treaty-making powers, so the Secretary of State or the Government of the United Kingdom will have to make the treaty to set up subsequent implementation bodies. They will need to make the necessary provisions to give them the powers under the equivalent of Clause 53. Why not do that by means of Amendment No. 79? That removes the time limit which would otherwise mean that the Secretary of State can make an order only if the implementation body is one of the initial six and cannot do so in relation to a subsequent body. I beg to move.
Lord Cooke of Islandreagh: My Lords, the amendment is particularly relevant and important. I understand that yesterday the Assembly started to discuss the cross-Border bodies. After only a few hours of discussion, it realised the difficulties involved because the organisations that it was considering are different on either side of the Border. It is important that they are brought together. I think that "equivalent" is exactly the appropriate word. It is important that the implementation powers on both sides of the Border are
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similar and equivalent to deal with the undoubtedly difficult question of how different organisations can be brought together to co-operate.
I now ask the Minister about the nature of the powers. Will the implementation bodies be empowered to instruct the various ministries and departments on each side of the Border, or will they have powers to give orders directly? If there is to be cross-Border training of nurses, for example, will such a body give orders directly to the nurses' organisation or through, say, the Department of Health? This is a question which is in some doubt at the moment and it would be very helpful if the Minister could provide an answer.
6.30 p.m.
Lord Hylton: My Lords, I should just like to express the view that it is absolutely essential that Northern Ireland and the Republic co-operate very intensively on such matters as tourism, transport, education and training, which has just been mentioned, and attracting inward investment. These matters have long been important, but they are even more important today with the European single market and the globalisation of trade. I am well aware that the planning and the start-up of these implementation bodies have given rise to apprehension in Northern Ireland. That is natural, but the sooner the bodies can start work and produce results, particularly economic results which will be to the benefit of all, the better it will be.
Lord Monson: My Lords, this is surely one of the most important amendments that we shall be discussing this afternoon. If I may say so, I think that the noble Lord, Lord Cope, made out the case for it extremely well. It is vital that there be reciprocity and that the people of Northern Ireland will see that there is going to be reciprocity. We talked about the importance of perceptions earlier this afternoon when we were discussing Amendment No. 2. This is yet another sphere in which perceptions are all-important.
Lord Dubs: My Lords, Amendment No. 78 returns to an issue which was discussed during our earlier consideration of these clauses, namely, whether implementation bodies should have equivalent powers on both sides of the border. The Government's clear understanding is that the implementation bodies will be mutual and reciprocal and will have equivalent powers to implement policies agreed in the North-South Ministerial Council in both Northern Ireland and in the Republic of Ireland.
However, the key point about the powers of the implementation bodies is that they will be agreed by representatives from Northern Ireland and the Irish Government. Legislation from each jurisdiction will be used to confer on the bodies those powers which have been agreed: nothing more and nothing less. Therefore, provided that the Northern Ireland Administration and the Irish Government agree to confer equivalent powers on the body both in Northern Ireland and in the Republic, that is what will happen.

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The noble Lord, Lord Cope, asked a number of questions. I would say this to him. Implementation bodies are not about one government interfering with another country. They are about co-operation to mutual benefit in both jurisdictions. The noble Lord also asked what would happen about further implementation bodies, given that the particular point at issue is what is going to happen immediately. If further implementation bodies are agreed by the Northern Ireland Administration and the Irish Government, it will be for the Assembly to give them the necessary powers in legislation. Under the Bill, the Assembly has the competence to make the necessary orders.
The noble Lord, Lord Cooke, asked how these matters would be dealt with in practice. The position is clear. Policy will lie with Ministers, but implementing decisions will be for the implementation bodies themselves. They will act within policies which have been defined politically by the Northern Ireland Minister and by the Minister from Dublin.
As regards the point made by the noble Lord, Lord Monson, I would say that yes, reciprocity, to which I have already referred, is the key. Indeed, it is quite likely that some of the initiative for the work done by the implementation bodies will come from Belfast. Indeed it is right and proper that that should sometimes be the case. In other cases the initiative may come from Dublin.
Lord Cooke of Islandreagh: My Lords, before the Minister sits down perhaps I may enquire how the implementation bodies are going to work. Are they going to work directly with the organisations on the ground or through the departments concerned with these bodies? This is an important matter which I know has begun to concern members of the Assembly.
Lord Dubs: My Lords, I think it depends very much on the detail of the issue that the implementation body will be dealing with. Let me take an example which has been much quoted and which is in the annexe to the Good Friday areement. One of the possibilities for implementation was tourism: that is, promotion, market research and product development. It seems to me that that tourism body would be responsible for implementing the promotion of tourism to all parts of Ireland. It would have been given that authority and that power by the Minister in Belfast as well as by his or her opposite number in Dublin. Implementation bodies will work directly on the ground. They will be responsible for the work involved in carrying out the implementation. That is what they are there for: they are there to do the work, the policies having been decided by the Ministers and by the Assembly.
Lord Cope of Berkeley: My Lords, so far as concerns Amendment No. 79, I understand that the Assembly can give any future bodies that may be set up after the initial six bodies powers to carry out whatever responsibilities are allocated to them as far as Northern Ireland is concerned. The point I was making was that, as I understand it, the Assembly will not be in a position to participate in the creation of any further bodies,
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because in order to create a legal persona capable of making contracts and capable of carrying out its instructions as a tourist body or whatever it may be, they need a legal framework. The Assembly cannot confer a legal framework on an international body because it will not have treaty making powers. Therefore only the United Kingdom Government will be able to enter into the necessary treaty to set up a future implementation body, even though, after it has been created, the Assembly may be able, under a different clause, to transfer to that body the necessary powers and so on from the central Northern Ireland Government.
So far as Amendment No. 78 is concerned, I am encouraged by the support I have received from the Cross-Benches and from the Unionist Benches over the question of equivalent powers and duties. This is an extremely important point and one on which the Minister gave assurances. The only question is whether we should write it into the Bill or whether the assurances are sufficient. It is in the nature of the trust which we are trying to engender in this process that we should accept the assurances of the Secretary of State rather than writing this into the Bill, though personally I would have much preferred it to appear on the face of the Bill. In that event I do not think it would have done any damage to the agreement itself. However, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 79 not moved.]
Lord Molyneaux of Killead Lord Molyneaux of Killead moved Amendment No. 80:
Page 27, line 40, leave out ("before") and insert ("after").
The noble Lord said: My Lords, as the noble Lord, Lord Cope, has said, this is rather a crisp little amendment, but it is difficult to understand why there should be such a rush to establish these bodies before the appointed day. It is true that the following subsection provides some very curious terminology. The Bill says:
"An order under this section may make any such provision… (after the appointed day)…".
"May" does not seem to fit with the rather precise wording, "after the appointed day".
I return to the question: why is it necessary to rush the proceedings? My noble friend Lord Cooke illustrated the difficulties that are already being encountered by the reconnaissance operation by various elements in the Assembly. I understand that the going has been extremely heavy. Surely it would make sense to go easy on this matter. I do not suggest that we delay the Bill's passage, but surely it would be preferable to have a clear idea as to what exactly is wanted and, more importantly, what the legal base would be. Perhaps the Minister could write to us outlining his thoughts on the matter. I think that he, too, probably feels that some further study needs to be carried out before we know exactly where we are.
The noble Lord, Lord Cope, made the point that the Assembly will not have treaty-making powers; that must be done at Westminster. Will it be a difficult operation—Her Majesty's Government requesting that both Houses of Parliament, acting under treaty-making

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powers, form, for example, a Franco-British fisheries board; and how popular would that body be? That may be a rather outlandish suggestion, but there are issues in regard to co-operation in Northern Ireland that will be equally difficult and sensitive. I suggest that we need to take our time. We should not rush in before the appointed day and go down the road too far immediately after the appointed day without having a clear idea as to how matters will work out.
Lord Dubs: My Lords, Amendment No. 80 would enable the Secretary of State to make orders about any implementation body established on the appointed day or afterwards.
Clause 53(1)(b) has been included specifically to restrict the Secretary of State's power to make orders to the initial batch of agreed implementation bodies; that is, those bodies established on or before the appointed day. If and when further implementation bodies are agreed, they will be given the necessary capacities and functions by means of Assembly legislation, which is the appropriate vehicle for doing so.
Under strand 2 of the agreement, the two governments are committed to ensuring that the initial implementation bodies are ready to function at the same time as powers are devolved to the Assembly. It is our intention that these bodies will also be formally established on the appointed day. However, we have left open the possibility of establishing them a short time in advance of the appointed day in order that they will be ready to function from day one.
Lord Molyneaux of Killead: My Lords, I hope that we, and particularly those with a special interest in Northern Ireland, can give further thought to this matter. In the light of our experience of international affairs, perhaps we can give thought and guidance to those who will be saddled with the responsibility of bringing these bodies into being. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 [Civic Forum]:
Lord Dubs Lord Dubs moved Amendment No. 81:
Page 28, line 18, at end insert—
("( ) The expenses of the Forum shall be defrayed as expenses of the Department of Finance and Personnel.").
The noble Lord said: My Lords, Amendments Nos. 81 and 82 relate to Clause 54, which is about the civic forum.
Amendment No. 81 is a technical provision to ensure that the forum's expenses can be funded, in the first instance by the Department of Finance and Personnel, though this is a responsibility that might well be suitable for transfer to a department of the centre, which we have considered earlier.
Amendment No. 82 makes clear that it is the responsibility of the First Minister and Deputy First Minister to establish the forum. This clarifies a point that many people, including some noble Lords, found obscure in the original drafting. I beg to move.
Lord Cope of Berkeley: My Lords, we received a little more information in Committee regarding the civic forum. But in this amendment the Minister is providing for the cost of the forum to be met by the Department of Finance and Personnel. That is entirely appropriate. However, will the Minister tell the House how much he thinks the cost will be?
Lord Dubs: My Lords, I am not in a position to do so at this stage. The structure of the forum and the way in which it will operate are responsibilities that the First Minister and Deputy First Minister are considering. Until they have reached their conclusions, it is impossible for me even to guess how much it might cost.
On Question, amendment agreed to.
6.45 p.m.
Lord Dubs Lord Dubs moved Amendment No. 82:
Page 28, line 21, at end insert ("by the First Minister and the deputy First Minister acting jointly").
On Question, amendment agreed to.
Clause 55 [Consolidated Fund of Northern Ireland]:
Lord Dubs Lord Dubs moved Amendments Nos. 83 and 84:
Page 28, line 32, after ("to") insert ("section 57 and to").
Page 28, line 35, after ("by") insert ("an Act of the Assembly or other").
The noble Lord said: My Lords, these are technical and drafting amendments. They are needed to ensure the continued financing of public services if the Assembly cannot agree funding. They are straightforward and do not present any difficulty. It is very important that we get the provisions relating to the Consolidated Fund absolutely right and that we deal with them comprehensively.
Because there is a great deal of Northern Ireland legislation relating to finance, and because it goes back a long way, we have had some difficulty identifying all the relevant strands. It may be that we shall need to bring forward further amendments at Third Reading. The same applies to audit provisions, about which I shall speak further. I hope that noble Lords will understand the difficulties and be sympathetic to the amendments. I should not normally have wished to introduce new amendments at Third Reading. However, I hope that noble Lords will understand that this is an exceptional matter. I beg to move.
Lord Cope of Berkeley: My Lords, we are given yet more amendments to deal with. We have already left the Scotland Bill behind, with only 300 or so amendments. On this Bill we have arrived at over 450, and there are more to come. I wonder whether the figure will reach 500. We shall have to wait and see.

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These amendments are required to deal with the position should the Assembly not agree to any financial plans. We had some discussion on the matter in Committee. As I recall, I was rather told off for what was described as my pessimism. I was told that it was not a good idea to think that the Assembly might not agree about everything all the time. However, I am glad that we now have another fail-safe mechanism, to use an earlier expression of the noble Lord, Lord Williams. I do not believe that it does imply pessimism. We are properly providing for what should happen in that event.
It is sometimes extremely difficult for bodies to agree on financial provisions. Finance, as we know, is at the heart of politics. This may be one of the most difficult matters that a body such as the Assembly, with much cross-community involvement, has to try to settle. Northern Ireland politicians have not had responsibility for money for quite a long time. They have been let off that particular hook by the fact that other people have conducted the government of Northern Ireland through direct rule. It is one of the shocks to the Northern Ireland system that are to come when Northern Ireland politicians take up financial responsibility once again. It is therefore wise, not pessimistic, to include these provisions in the Bill. I support the amendments.
On Question, amendments agreed to.
Lord Dubs Lord Dubs moved Amendment No. 85
After Clause 57, insert the following new clause—

FINANCIAL CONTROL, ACCOUNTS AND AUDIT
(".—(1) In so far as such provision has not been made, Northern Ireland legislation shall make provision—

(a) for proper accounts to be prepared by the Northern Ireland departments, and by other persons to whom sums are paid directly out of the Consolidated Fund of Northern Ireland, of their expenditure and receipts;

(b) for the Department of Finance and Personnel to prepare an account of payments into and out of the Fund;

(c) for the Comptroller and Auditor General for Northern Ireland to exercise, or ensure the exercise by other persons of, the functions mentioned in subsection (2);

(d) for access by persons exercising those functions to such documents as they may reasonably require;

(e) for members of the Northern Ireland Civil Service designated for the purpose to be answerable to the Assembly in respect of the expenditure and receipts of each of the Northern Ireland departments; and

(f) for the publication of accounts prepared in pursuance of paragraphs (a) and (b), and of reports on such accounts, and for the laying of such accounts and reports before the Assembly.

(2) The functions referred to in subsection (1)(c) are—

(a) issuing credits for the payment of sums out of the Fund;

(b) examining accounts prepared in pursuance of subsection (1)(a) and (b) (which includes determining whether sums paid out of the Fund have been paid out and applied in accordance with section 55), and certifying and reporting on them;

(c) carrying out examinations into the economy, efficiency and effectiveness with which the Northern Ireland departments have used their resources in discharging their functions; and

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(d) carrying out examinations into the economy, efficiency and effectiveness with which other persons determined under Northern Ireland legislation to whom sums are paid directly out of the Fund have used those sums in discharging their functions.

(3) Standing orders shall make provision for establishing a committee of members of the Assembly to consider accounts, and reports on accounts, laid before the Assembly in pursuance of this section or any other enactment.
(4) Subsection (2)(b) does not apply to accounts prepared by the Comptroller and Auditor General for Northern Ireland.").
The noble Lord said: My Lords, this amendment reproduces, with modifications, the provisions contained in Clause 66 of the Scotland Bill which lay down the essentials of audit control. It is the core provision of the amendments which we are making to the existing audit controls.
We are not following the Scotland Bill in every respect. The Scots are starting with a blank sheet of paper. Northern Ireland, in contrast, has audit legislation going back as far as 1921. It has a Comptroller and Auditor General and its own Northern Ireland Audit Office. The system has worked very successfully.
When the Bill was being discussed in another place, however, the chairman of the Public Accounts Committee raised a number of concerns about the controls. He pointed to the size of the subvention to the Northern Ireland Consolidated Fund (it is around 34 per cent.) and the possibility of paramilitary fraud. He argued that the UK taxpayer deserved stronger oversight of Assembly spending through parliamentary scrutiny.
We reject the notion of parliamentary scrutiny of Assembly spending because it runs counter to the principle of devolution. Parliament will vote money to the Assembly, after debate, and it will then be for the Assembly, answerable to the Northern Ireland electorate—a very important point—to decide how to spend that money. There should be no further control from Westminster.
But we do echo some of the PAC chairman's concerns. Chief among them is the possibility that the Assembly might at some future date dispense with some or all of its audit controls. Audit legislation is transferred and we cannot simply change its status. The Assembly must be free to modify it.
The solution we have adopted is to leave the Assembly free to change its audit controls provided that it keeps the basic standards which are set out in this clause and which, as I have said, closely follow the model adopted for Scotland. We do not seek to lay down the way it does so and we are not requiring it to change any of its existing legislation immediately. But it will not be able to legislate to reduce or undermine the existing controls and at some point it will have to introduce some additional features which are set out in this clause.
The basic standards of control will consist of: the independent Comptroller and Auditor General for Northern Ireland, who already exists and whose independence will be enhanced by other provisions in this Bill, notably Clause 62(2); the requirement for the preparation of proper accounts of expenditure and

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receipts by direct recipients of money from the Northern Ireland Consolidated Fund, chiefly the Northern Ireland departments; the requirement for the Department of Finance and Personnel to prepare an account of payments into and out of the fund; the requirement for Northern Ireland departments to have accounting officers; the requirement for the accounts of recipients of direct funding from the Consolidated Fund to be audited with full access to necessary documents; and, finally, the requirements for accounts and auditor's reports to be published and laid before the Assembly.
Those controls—which I will again stress have existed in Northern Ireland for many years and have operated effectively; there has been remarkably little proven fraud—should provide this House and, I hope, Members in another place, with the reassurance that the money given to the Assembly will be properly spent and properly accounted for.
In addition to those controls, the Assembly will be required to set up the equivalent of a public accounts committee under standing orders. It will be the duty of this committee to consider accounts and reports of accounts laid before it by the Comptroller and Auditor General. The existence of the committee will enhance the accountability of the Comptroller and Auditor General and I hope that the new committee will follow the Westminster model in a rigorous scrutiny of public expenditure. I beg to move.
Lord Cope of Berkeley: My Lords, I was put into an accounting and audit office at an early age. Although I got out of it after a few years and am now an extremely rusty accountant and auditor, that was my original training. I therefore have the greatest sympathy for the efforts of the Government to insert proper control and audit procedures into the Bill.
It is important that the Northern Ireland Comptroller and Auditor General should continue to function on the basis on which he has functioned over the past few years. Given the differences with the new Assembly and the new set up. I hope he will function to the high standards to which he has functioned over the past few years and in an equivalent manner to the way in which the Comptroller and Auditor General functions in the United Kingdom and, as it will be, in England and Wales for most matters.
It is, of course, a big constitutional change for this Parliament and particularly another place to give up responsibility for an enormous block of expenditure and hand it over to a different assembly. In doing so I think another place, which has played a historical role in it, needs the reassurance of a proper audit arrangement and a proper set up within which the Comptroller and Auditor General can function.
I am slightly nervous about leaving the Assembly free to alter the audit controls, although I realise that the provisions are limited, as the Minister stated. But this is a most important part of the Bill. Given the difficulties which may arise and to which I referred earlier in organising finance in Northern Ireland, compounded by the problems there have been in the Province as a result
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of rackets and so on, it is important that the audit function is carried out rigorously and the proper arrangements set up for it to report to the Assembly in the manner which the new clause suggests. I therefore support the amendment.
On Question, amendment agreed to.
Clause 62 [Audit]:
Lord Dubs Lord Dubs moved Amendment No. 86:
Page 31, line 3, after ("Minister") insert ("or Northern Ireland department").
The noble Lord said: This amendment frees the Comptroller and Auditor General from the direction and control of the Northern Ireland departments as well as those of the Assembly and Ministers. This is a necessary part of his independence. I beg to move.
Lord Cope of Berkeley: My Lords, quite right too.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 87:
Page 31, line 8, after ("of") insert ("an Act of the Assembly or other").
The noble Lord said: My Lords, this is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 88:
Page 31, line 9, at end insert—
("( ) The Assembly shall not have power under Article 4(1) of the Audit (Northern Ireland) Order 1987 to pass at any time a resolution which reduces the salary payable to a person holding the office of Comptroller and Auditor General for Northern Ireland at that time.").
The noble Lord said: My Lords, this amendment represents an additional means of safeguarding the independence of the Comptroller and Auditor General for Northern Ireland from unwarranted interference by the Assembly.
Clause 62(2) was amended in Committee to provide explicitly that the Comptroller and Auditor General for Northern Ireland should not be subject to the direction or control of the Assembly except as regards the preparation of accounts. That establishes the principle. All this amendment does is to buttress it. The Assembly pays the Comptroller and Auditor General directly and sets the level of his salary annually. We tried to move away from the annual salary setting but for technical reasons were unable to do so. But the Comptroller and Auditor General's salary is subject to a statutory upper limit, which provides a degree of protection from the Assembly's using it to manipulate him. The amendment acts on the opposite end of the spectrum, to prevent the Assembly from undermining the Comptroller and Auditor General's independence by threatening a reduction in salary.
It is not a major provision, but I hope it will be a successful one. I beg to move.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 89:
After Clause 62, insert the following new clause—

EXPENSES OF NORTHERN IRELAND AUDIT OFFICE
(" .—(1) Standing orders shall make provision for establishing a committee of members of the Assembly to exercise, in place of the Department of Finance and Personnel, the functions conferred on that Department by Article 6(2) of the Audit (Northern Ireland) Order 1987 (expenses of Northern Ireland Audit Office).
(2) No more than one member of the committee established under subsection (3) of section (Financial control, accounts and audit) may be a member of the committee established under this section.
(3) The committee established under this section shall, in discharging its functions, have regard to the advice of the committee established under that subsection and of the Department of Finance and Personnel.").
The noble Lord said: My Lords, with this amendment I wish also to speak to Amendment No. 221. Amendment No. 89 provides for the establishment under standing orders of a new Assembly committee which will have the duty of examining the estimate of expenses which is prepared by the Comptroller and Auditor General for Northern Ireland each year, agreeing any necessary modifications with him and laying the estimate before the Assembly.
This is a function currently exercised by the Department of Finance and Personnel. It would not be appropriate for it to continue doing so once the Assembly has been established. In Westminster the Public Accounts Commission examines the estimates of the National Audit Office under Section 4 of the National Audit Act 1983 and this amendment creates a parallel committee to the commission. Our new committee will be quite separate from the PAC equivalent committee and will be allowed to have only one member drawn from the PAC. This is to ensure that while the new PAC equivalent committee can bring its expertise to assist the new committee it cannot dominate it or replace it. The PAC equivalent committee will have some influence over the Northern Ireland Audit Office, and it is not appropriate for it to have any involvement in the consideration of its expenses if the NIAO is to maintain its independence.
Subsection (1) of the new clause will give the new committee exactly the same duties as the Department of Finance and Personnel exercises at present. Subsection (2) stipulates that not more than one member of the PAC equivalent committee will be able to serve on this new committee for the reasons I have already given. Subsection (3) will require the new committee to take advice for the PAC equivalent committee and the DFP. This is modelled upon the 1983 Act.
This is a small piece of the audit jigsaw and our aim in introducing it is to ensure the absolute integrity and independence of the audit process. Amendment No. 221 is a consequential amendment. I beg to move.
Lord Molyneaux of Killead: My Lords, in rising to my feet I may appear to contradict myself in regard to haste. But it may be worth thinking about the voluntary establishment of this committee in shadow form with a slightly wider remit to educate the members of the Assembly on the realities of financial life. Listening to
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the exhortations from all manner of do-gooder bodies throughout Northern Ireland and some of the promises made by members of the Assembly—looking at it from afar, the same appears to be happening in Scotland—they will be inclined to commit themselves in advance to expenditure that they cannot possibly hope to meet. Therefore, I believe that a word of caution would be profitable for all concerned at this early stage. If it could be established in shadow form and go outside the strict remit contained in this clause, and it felt so inclined to give advice, it would be helpful to those of their colleagues who appear to be more enthusiastic about splashing around public money.
Lord Dubs: My Lords, I understand what the noble Lord, Lord Molyneaux, seeks to achieve, but we have probably already achieved it as regards new Assembly members. A transition programme has been established for some time. That ensures that Assembly members have a chance to learn about the functions of all the Northern Ireland departments so that they get a feel for the work in which they will be engaged when they cease to be in shadow form. I am not sure how far we have got with that transition programme, but I am confident that the need for Assembly members fully to understand the financial basis of the work of the Northern Ireland departments and their responsibilities in relation to that is part of the programme and that the noble Lord's amendment is already being achieved without the need for statutory support.
On Question, Amendment agreed to.
7 p.m.
Clause 65 [The Commission's functions]:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 90:
Page 31, line 39, at end insert—
("( ) The Executive Committee shall refer in draft to the Commission all Bills which it intends to introduce in the Assembly.
( ) The Commission may advise the Executive Committee whether a proposed Bill is compatible with human rights.
( ) The Executive Committee shall take any such advice into account when considering the proposed Bill.
( ) The Commission may make public its advice.").
The noble and learned Lord said: My Lords, in moving Amendment No. 90 it may be to your Lordships' convenience to debate also Amendment No. 91 in the name of the noble Lord, Lord Hylton. I suspect that he and I tabled our respective amendments more or less contemporaneously. Clearly, they are alternatives. I am grateful to the noble Lord for his support in relation to my amendment.
Clause 11 requires that a Bill shall be referred to the commission as soon as practicable after it has been introduced into the Assembly. In Clause 65 it is provided that the commission may advise the Assembly whether a Bill is compatible with human rights, either when that Bill is referred to it by the Assembly or when it thinks right to tender unsolicited advice. But there is no obligation on anyone to tell the commission about a draft Bill before it has been introduced into the Assembly.
The difference is of vital importance as anyone who has been a member of an advisory body will recognise. After a Bill has been introduced it is known publicly what it contains. The Executive will be largely committed—as we all are—to what has been put down on paper. The commission will be involved in a public dialogue. While the Bill is in draft the dialogue can be confidential. There will be no need to strike attitudes. No damage has been done to anyone's image or reputation. Therefore, there is an important difference between the two stages.
In Committee noble Lords debated a proposal that all draft Bills should be referred to the commission and that the Assembly should take into account its advice. In replying my noble friend Lord Williams of Mostyn said that it would be wrong to impose on the Assembly a requirement to take the advice into account, particularly since that was not in the agreement. I suspect that we are shadow boxing as to that. It is highly improbable that the Assembly should not even take into account any advice from the commission. But I have taken to heart the words of my noble friend, as I always do. This amendment simply requires that the executive committee shall submit draft Bills to the commission before presenting them to the Assembly. It would not impose a requirement on the Assembly to take account of the advice or any action on the Assembly at all. It therefore does not seek to include something that is not in the agreement. I ask rhetorically: is that not a handsome compromise and also commonsense? I beg to move.
Lord Hylton: My Lords, I believe that the Government should take pride in the fact that by this Bill they are establishing a human rights commission in Northern Ireland. It will be the first such body in the United Kingdom. I very much hope that, albeit in difficult circumstances, it will provide a test bed for the concept. I trust that the Government have already decided to create an effective body that is respected by all concerned; otherwise they will be seen to be setting up a weak body that lacks the necessary tools, to be followed after two years with a review. By then the concept of a human rights commission may be so discredited that the second stage with enlarged powers and better tools will be difficult to establish. I should like the people of Northern Ireland to have the kind of commission that they want and deserve. After all, they have waited 30 or more years for it.
I turn to the wording of Amendments Nos. 90 and 91. As the noble and learned Lord said, they are alternatives. The reference to "Bills in draft" appeared in the Belfast agreement. There is slight doubt as to the precise meaning of "in draft". My Amendment No. 91 seeks to overcome that by spelling out that it refers to Bills,
"before they are introduced in the Assembly".
That takes into account the point that has already been made by the noble and learned Lord, Lord Archer.
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I ask the Government whether Clause 65(4)(b) allows the commission to make its first comment before a Bill is introduced, as I would like it to be able to do.
Lord Goodhart: My Lords, there has been a prolonged and, perhaps to some, welcome period of silence from these Benches. However, I rise to support the two amendments. We should be happy with either amendment.
As the noble and learned Lord, Lord Archer of Sandwell, said, there is a risk that if scrutiny is not carried out by the Human Rights Commission until the Bill is published, the political positions of the parties will have been frozen and it will be more difficult to achieve the necessary amendments. I add to that the fact that the Northern Ireland Assembly, unlike the Parliament of the United Kingdom, will be a single chamber institution. No revising chamber will have the opportunity to put right human rights problems which may arise during debate in the lower House. It is doubtful whether the commission could easily intervene at short notice if a problem arose during the passage of a Bill through the Assembly. It is therefore particularly important to get the matter right first time.
It is also true that human rights defects in a Bill are not always clear at first sight. The matter is one for study by specialists. I suspect that the Assembly will not have access among its staff to the same quality of specialist legal advice as the Government of the United Kingdom. It is extremely important that all Bills, whether or not it is apparent on the face of the Bill that human rights issues may be involved, should be submitted to the Human Rights Commission; and the Assembly should not be left to decide in due course whether a Bill should or should not be submitted to that commission.
It is an important amendment. I am happy to support both noble Lords who moved Amendments Nos. 90 and 91.
Viscount Brookeborough: My Lords, I support both amendments but prefer Amendment No. 91. It is important that the human rights issue is discussed during drafting and is not left until the measure is on the Floor of the Assembly, when many other arguments may come to the fore and human rights may yet again take second place.
By discussing the matter beforehand, the correct human rights provisions may be fed into the measure at that stage. It should not be left until later.
Lord Morris of Manchester: My Lords, the House will recall that in Committee I moved a series of amendments to reflect the concerns of Disability Action in Northern Ireland. Its views were put to me by Monica Wilson, the chief executive, and I intervene briefly now to give your Lordships her reaction to the Government's response to my amendments. Her letter states:
"I write to reiterate my continuing concerns regarding the equality provisions of the Northern Ireland Bill and in particular the limitations of the human rights section".

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She goes on to say that the Bill currently makes no provision for the Human Rights Commission to initiate investigations without a named victim. This is especially serious for disabled people, many of whom are particularly vulnerable and who are more susceptible to abuse than most other people in society. For example, the Human Rights Commission as currently proposed could not institute a general investigation into day care or residential care, a point which is of major concern to disabled people for whom Disability Action speaks, as many would not be in a position to indicate that they are subject to abusive behaviour.
I hope the Minister will be able to respond positively to the renewed concern expressed to me by a widely and deservedly respected organisation in Northern Ireland.
Lord Renton: My Lords, there is a great deal to be said for Bills being scrutinised thoroughly and carefully, and by qualified people, before they are presented to a parliament. Quite frankly, if this Bill had been subject to scrutiny before it was presented in another place, we might have spent much less time on it. However, we do not know from Clause 38, which sets up the commission, whether the commission will involve people who will have the expertise to scrutinise legislation. There would have to be some lawyers. There would have to be several experienced parliamentarians. My support for the amendment would depend upon the extent to which we could be assured that members of the commission would be so qualified.
Lord Molyneaux of Killead: My Lords, I am happy to support the amendment. I consulted my noble friend Lord McConnell—he has a legal background, as noble Lords know, and has held responsible positions in the Stormont Government in various legal departments—on whether there was any procedure in the Parliament of the United Kingdom. We stand to be corrected, but we came to the conclusion that there probably is not as yet. The noble Lord, Lord Williams of Mostyn, will remember that in my early days in this House he and I crossed swords in a chivalrous way on the issue of whether we should have a United Kingdom commission. That was supported by our friends on the Liberal Benches. Admittedly, they wanted to think about it. However, in the light of what has been said by various noble Lords today, I hope that we are moving in that direction. It would be of great benefit to many organisations. It would raise the prestige of the Parliament of the United Kingdom if there were in effect a sieve. Bills in draft could be submitted to a human rights commission covering the whole of the United Kingdom.
Lord Renton: My Lords, before the noble Lord sits down, he may wish to bear in mind that the only scheme whereby the United Kingdom Parliament may have a Bill scrutinised in advance is by referring the matter to one of the Law Commissions. They then often draft a Bill which is in its terms pretty good.
Lord Molyneaux of Killead: My Lords, I thank the noble Lord for that contribution. I am sure he will bear
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in mind that we are in the age of Cool Britannia. Therefore we have to move into the next millennium, equipped, I hope, with the Human Rights Commission covering the entire United Kingdom.
7.15 p.m.
Lord Cope of Berkeley: My Lords, it has been an interesting short debate on a subject that we discussed earlier in Committee. I address two points. First, what does "in draft" mean? Clearly in the rights, safeguards and equality of opportunity part of the agreement, draft legislation referred to the human rights commission by the new Assembly is referred to. Those words refer to Bills rather than Bills in the course of preparation within a government department or, in this case, the Northern Ireland Executive.
Noble Lords may well think that if a Bill requires 450 amendments, as has the Northern Ireland Bill, it has been presented in draft in the first instance. However, it is necessary to be clear what we are talking about. Clearly, both the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Hylton, are thinking about Bills in the course of preparation within the department. As both noble Lords said, it is clear that consideration of a draft is easier at that stage. The idea that, given that it is a cross-community Executive and that it is Northern Ireland, there will be no striking of attitudes is going a little far. Nevertheless, it is more likely that a change can be achieved quietly before the Bill is presented to the Assembly for consideration.
The question which remains is whether the legislation should compel the Northern Ireland Executive to refer all Bills at the draft stage. Where Bills are being prepared slowly over a period of time and there is time to undertake all the necessary consultation, that is highly desirable. The agreement does not mention that as such and the Bill provides that the Executive can look to the commission for advice presumably on a draft Bill at any stage of its preparation—or for that matter in respect of a White Paper or whatever. The question is whether to compel it to do so in the case of every single Bill. I am more hesitant about that because, as we know from our parliamentary experience, some Bills will need to be brought forward urgently and it will be difficult to carry out such procedures properly.
That may even place the Human Rights Commission in a false position. A draft Bill may be thrown at it in the late stage of preparation allowing only a day or two for examination. The need for the Bill may be pressing; we have heard that often enough in this House and elsewhere. If the Human Rights Commission is obliged to consider a Bill in a couple of days and then appears to have given its imprimatur, the commission may be placed in a false position. Therefore, with regard to an absolute duty laid down in statute I am more cautious than the proponents of the amendments about writing the provision into the Bill in this form.
Lord Williams of Mostyn: My Lords, Clause 11(4) already requires the Assembly to send a copy of each Bill as soon as reasonably practicable after introduction to the Human Rights Commission. We certainly intend that the Assembly should refer Bills to the commission

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at an earlier stage. Should the sponsors of legislation desire it, there is no reason why they should not involve the commission at an earlier stage.
The noble Lord, Lord Cope, is right in saying that the reference at paragraph 5 on page 17 of the agreement refers to considering draft legislation referred to by the new Assembly. The noble Lord, Lord Hylton, raised a similar question about the meaning of draft legislation. I believe that the noble Lord, Lord Cope, and I agree that draft legislation refers to Bills.
According to the agreement, the Assembly must refer the draft legislation. Until the legislation has been introduced, the Assembly does not have any knowledge of Bills. We believe that the existing provision fairly and accurately reflects the agreement.
There is no reason why at an earlier stage the views of the commission should not be taken. I can give an example of our intention, which has already been announced, about the freedom of information Bill. We have already undertaken in the early part of next year to send the proposals to the relevant committee in another place. If on occasions that is thought appropriate, it is a matter of good working practice, and I do not believe that we ought to prescribe it in statute. I repeat that the agreement is talking about the Assembly being the referring body, not the executive committee.
Clause 65(4) already provides that:
"The Commission shall advise the Assembly whether a Bill is compatible with human rights".
That is already an obligation. In response to the specific question from the noble Lord, Lord Hylton, it seems to me that under Clause 65(4)(b) the commission has a very wide discretion indeed. It provides that:
"The Commission shall advise the Assembly whether a Bill is compatible with human rights … on such other occasions as the Commission thinks appropriate".
It seems to me that it would be an organic growth depending on how matters develop within the commission.
The noble Lord, Lord Renton, asked whether there are likely to be lawyers on the commission. To the gratification of all lawyers present and to the deep gloom of those who are not lawyers, the answer is probably yes. Obviously, the Secretary of State will be looking for people with relevant expertise.
If the executive committee on every occasion had to take the advice of the commission, that could lead to delays, particularly if the commission were rather slow in coming up with its advice. We would of course expect the Assembly to take into account the commission's advice. I believe that it is counter-productive to have an over-strict requirement in statute.
Amendment No. 90 also allows the commission to make public its advice. We believe that is already covered in Clause 65(9), which makes it quite plain that the commission may decide to publish its advice.
The noble Lord, Lord Morris of Manchester, if he would not mind my observing it, has gone a good deal further than the ambit of this amendment. I understand
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him to require the rights of those who are disabled to be taken into account. The amendments are not to deal with that matter; they deal with the stage at which the commission's view should be taken.
We believe that we have got the balance about right. There is an obligation on the Assembly, which reflects the agreement, that it does not stop any earlier advice being taken in the kind of way that advice is sometimes taken from the Law Commission in this country, but we do not believe that it ought to be prescriptive.
Lord Renton: My Lords, before the noble Lord sits down, surely he must bear in mind that Clause 11(4) and Clause 65 refer to human rights only. However, as I understand the intention of the noble and learned Lord, Lord Archer, and the noble Lord, Lord Hylton, they wish to ensure that the commission scrutinises legislation in the broad not only from the human rights point of view but from the point of view of whether it is well drafted and whether a great deal of time would be taken up in proving the drafting if it went to the Assembly. Surely, the issue is broader than the human rights one, is it not?
Lord Williams of Mostyn: My Lords, that is how I had understood the matter. Clause 11(4) requires standing orders to be made requiring the Presiding Officer to send a copy of each Bill to the Human Rights Commission. However, Clause 65 refers only to the adequacy and effectiveness in Northern Ireland of practice relating to the protection of human rights.
Lord Archer of Sandwell: My Lords, perhaps I may assist my noble friend. It grieves me to reject so generous an offer from the noble Lord, Lord Renton, but we are talking about a human rights commission. As was said by the noble Lord, Lord Goodhart, we are drawing on its expertise. I would not have it in mind that it should advise on matters such as draftmanship and the time taken by the process; only on matters of human rights.
Lord Williams of Mostyn: My Lords, as always, I am grateful to my noble and learned friend Lord Archer of Sandwell. That is what I had understood and that is the way I made my response.
Lord Archer of Sandwell: My Lords, I am grateful to all noble Lords who have taken part in the debate. As so frequently happens when one initiates a debate, it takes on a life of its own. One is given all kinds of ideas which were not in one's head at the outset.
I agree with the noble Lord, Lord Goodhart, that on these matters it is good to have expert advice which may not otherwise be available either to the Executive or to the Assembly, and that it is better to have it as early as possible in the process.
My noble friend Lord Williams, in what was something of a disappointing reply, said that one should not impose an obligation on the Executive to take this advice in relation to every Bill. My experience is that one thinks that one does not require advice in precisely

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those instances where one most requires it. I should have thought it would be much better to say that every Bill should be submitted to the commission.
I take the two points made by the noble Lord, Lord Cope; first, that there is a difficulty about the words "in draft". I should not go to the stake for the words "in draft". It is important that the advice should be taken at an early stage in the process and before people have gone public.
The other point which the noble Lord made is as regards the volume of work which may be generated for the commission. I was one of those in Committee who said that we must not impose too heavy a volume of work on the commission. I certainly believe that it should be in control of its own timetable. For that reason, I should not impose any obligation on the commission to respond in the case of every Bill. It is a matter for the commission to decide what are its priorities. But I see no difficultly in the commission making public the fact that in a particular case it had not had an opportunity to consider the matter. Otherwise, I see that there may be a danger that people would say that the commission had considered the Bill so it must be all right. It should be able to make that public.
That leaves the question of what we do next. I shall leave the decision to the noble Lord, Lord Hylton. In a moment, I propose to ask your Lordships' leave to withdraw my amendment, leaving the matter in the hands of the noble Lord, Lord Hylton. I leave this debate with a feeling that a great opportunity is being missed. I wholly agree with the noble Lord, Lord Molyneaux, that this Parliament might benefit just as much from a service of this kind. It seems to me that it is a great pity that the Assembly in Northern Ireland does not have that service. For the moment, I shall not beg leave to withdraw my amendment but wait to hear what the noble Lord, Lord Hylton, says.
7.30 p.m.
Baroness Farrington of Ribbleton: My Lords, I am sorry, I believe that the correct procedure is for my noble and learned friend Lord Archer to seek leave to withdraw his amendment at this stage.
Lord Archer of Sandwell: My Lords, the noble Lord, Lord Hylton, can then deal with his amendment. As usual, I defer to the logic of my noble friend and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hylton Lord Hylton moved Amendment No. 91:
Page 32, line 2, leave out subsection (4) and insert—
("(4) The Executive Committee shall refer all proposed Bills to the Commission in draft before they are introduced in the Assembly.").
The noble Lord said: My Lords, I shall move the amendment formally in the hope of tempting the noble Lord, Lord Williams of Mostyn, to say something more encouraging than he has been able to do so far. Secondly, I ask him to take on board the very great strength of opinion which was expressed on all sides of
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the House in favour of the two amendments. Perhaps other noble Lords may wish to take this opportunity to intervene in the debate. I beg to move.
Lord Williams of Mostyn: My Lords, I have already taken on board the sense of what the noble Lord said because I indicated that where we think it appropriate, as with the Freedom of Information Bill, we propose to send a pre-draft Bill to the appropriate committee in another place. It seems to me that if one selects appropriate Bills, one is taking on board the spirit of what the noble Lord said. I believe that I have dealt with the other matters when I responded earlier.
Lord Hylton: My Lords, I wish to consider further what the Minister said. I reserve my right possibly to return to this issue on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 92:
Page 32, line 8, at end insert (",and
(b) bring proceedings involving law or practice relating to the protection of human rights.").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 93, 94 and 96. Amendment No. 94 is in the name of my noble and learned friend Lord Archer of Sandwell and Amendment No. 93 is in the name of the noble Lord, Lord Hylton.
Amendment No. 92 makes clear on the face of the Bill the ability of the Human Rights Commission to bring proceedings involving law or practice relating to the protection of human rights. Amendment No. 96 is intended to make it clear that that does not override the need for a victim under the Human Rights Act.
The usual way we see the commission being involved is by offering assistance to individuals under Clause 66. The agreement envisages the commission, in appropriate cases, bringing court proceedings. They might include judicial review on the ground that a particular policy or practice was in breach of human rights other than ECHR rights or that legislation was unlawful because it was discriminatory. There will be nothing to stop it initiating proceedings under Clause 72. Those are examples.
Clause 65(11)(b) defines human rights in a very wide fashion. I should expect most proceedings to be brought in support of specific individuals but the commission will be able to bring its own legal proceedings in appropriate cases. We believe that that fairly and fully reflects the agreement.
The only restriction on the ability to initiate proceedings in its own name is in Clause 67. That is in common with the policy adopted in the Human Rights Act 1997. Clause 67 restricts the bringing of proceedings in respect of convention rights to a victim, as defined in the convention itself.
The proposed amendment in the name of my noble and learned friend Lord Archer of Sandwell is similar to government Amendment No. 92. It, too, would make clear on the face of the Bill the existing ability of the

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Human Rights Commission to bring proceedings for judicial review, but because there is no equivalent of the corresponding government Amendment No. 96, to which I spoke a moment ago, it would allow victimless cases to be brought by the commission. That is not our intention, bearing in mind that having a victim, including an actual or potential victim, is the policy that has been adopted and enshrined in the Human Rights Act.
Amendment No. 93 in the name of the noble Lord, Lord Hylton, is similar to government Amendment No. 92 and Amendment No. 94. There is no equivalent in Amendment No. 93 to corresponding government Amendment No. 96. I hope that I have explained the Government's position clearly.
Lord Archer of Sandwell: My Lords, before my noble friend sits down, he may be able to assist some of us. What is the extent of the restriction in Clause 67? Does it apply to claims which are brought simply under the convention so that other claims dealing with other aspects of human rights may be brought by the commission?
Lord Williams of Mostyn: My Lords, yes, it is exactly the same as the structure in the Human Rights Act. I beg to move.
Lord Goodhart: My Lords, Amendment No. 92 is an amendment which I warmly welcome subject only to the comment that it is rather surprising that it contains a reference to paragraph (b) when the Bill will not, on the face of it, contain a paragraph (a). That may be a drafting amendment which will have to be introduced on Third Reading.
Subject to that highly technical point, I welcome the extent to which the Government have moved on this issue. From these Benches, I continue to regret that the Government have continued in this case, as in the Human Rights Act, to impose the victim requirement but that is a long argument which has been raised rather exhaustively in previous debates on other Bills and I shall not seek at this stage of this Bill to raise it again.
Lord Hylton: My Lords, I very much hope that the pair of government amendments are more comprehensive than my Amendment No. 93. If I can have reassurance on that point, I shall be very happy not to move Amendment No. 93.
Lord Archer of Sandwell: My Lords, once again, I am sure that we all welcome my noble friend's response to some of the anxieties which we expressed in Committee. What troubled some of us was the extent of the restriction in Clause 67 which restricts to the victim the right to bring proceedings for breaches of the convention. If that were held to apply too widely, it might frustrate the judicial protection of human rights in Northern Ireland for two reasons. First, a victim may be reluctant to bring proceedings because he may be under peer-group pressure or be subject to intimidation. Secondly, it might do so for the reason indicated in the
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earlier debate by my noble friend Lord Morris. Unfortunately, he has had to leave us early and wishes me to express his apologies to the House. My noble friend's point was that the infringement might be directed not at an individual but at a whole group of people; for example, the disabled.
Amendment No. 92 relieves many of our anxieties because it makes it clear that the restriction in Clause 67 is not as wide as some of us feared. In those circumstances, I do not propose to move Amendment No. 94.
Lord Williams of Mostyn: My Lords, my noble friend Lord Morris indicated to me earlier the reason why he mentioned that specific point. He has domestic difficulties, which we all regret, and he obviously intended no discourtesy.
The only point to which I believe I ought to respond is the one made by the noble Lord, Lord Hylton. Amendment No. 92 is a shade wider than Amendment No. 93, although, as I indicated, our corresponding restriction is in line with the policy that your Lordships adopted under the Human Rights Act.
On Question, amendment agreed to.
[Amendments Nos. 93 and 94 not moved.]
Lord Hylton Lord Hylton moved Amendment No. 95:
After Clause 65, insert the following new clause—

INVESTIGATIONS, ETC
(".—(1) The Commission may conduct such investigations as it considers appropriate to determine whether a breach of—

(a) the Human Rights Act 1998, or

(b) section 72 or 73 of this Act,

has occurred or may occur.
(2) Where the Commission proposes to conduct an investigation under this section, it shall publicise the fact and shall afford an opportunity to those with sufficient interest to comment on the desirability of conducting such an investigation.
(3) The Commission may require any person who in its opinion is able to furnish information or produce documents necessary to the investigation to furnish any such information or produce any such documents.
(4) For the purposes of an investigation the Commission shall have the same powers as the Court in respect of—

(a) the attendance and examination of witnesses, and

(b) the production of documents.

(5) If any person without lawful excuse obstructs the Commission or any officer of the Commission in the performance of its or his functions under this section, or is guilty of any act or omission in relation to any investigation under this section which, if that investigation were a proceeding in the Court, would constitute contempt of court, the Commission may certify the offence to the Court.
(6) Where an offence is certified under subsection (5), the Court may inquire into the matter and deal with the person referred to in that subsection in any manner in which the Court could deal with him if he had committed the like offence in relation to the Court.
(7) If, after conducting an investigation under this section, it appears to the Commission appropriate, it may lay a special report before each House of Parliament and the Assembly.
(8) In this section "Court" means the High Court in Northern Ireland.").
The noble Lord said: My Lords, Amendment No. 133 has also been grouped with this amendment. I referred earlier to the human rights commission not having sufficient tools to do its job, especially during the first two years. That is why I have tabled Amendment No. 95. However, there is a change in the text in subsection (3) where the word "necessary" is substituted for "relevant", which was used in the Committee stage amendment. I am advised that that narrows a little the scope of the new amendment.
I should also like to point out to the House that the investigations which my amendment would allow are strictly limited to breaches under the Human Rights Act and under Clauses 72 and 73, which deal with discrimination and illegal oaths. My feeling is that Clause 65(8) is fine as far as it goes, but its weakness lies in its not having the machinery for enforcement to deal with people who may be totally unco-operative when it comes to an investigation of their behaviour. That is why I have provided for the furnishing of information, the production of documents and indeed for the compelling of the attendance of witnesses.
I turn now to Amendment No. 133. I tabled that amendment because it was pointed out to me during the last stage of the Bill that there was no cross-party or cross-community agreement as to the making of investigations with compulsory powers. That is why I have provided that the Assembly must agree, with cross-community support, a resolution praying for the commencement of the clause introduced by Amendment No. 95.
The Government may say that human rights is a reserved matter and, therefore, it would be out of order for the Assembly even to consider it and investigations relating to it. My reply is that it would be right to give the Assembly a means of enlarging the present scope of human rights legislation and human rights investigations. I beg to move.
7.45 p.m.
Lord Cope of Berkeley: My Lords, it seems to me that the human rights commission will not be able to do its job without carrying out investigations. However, that is not to say that it necessarily needs all the powers suggested by Amendment No. 95. The attendance and examination of witnesses, the production of documents and so forth, lead to the commission behaving almost like a court. Obviously, if it subsequently finds that there has been some breach of human rights legislation or, for that matter, of some other provision, it will then go to court with the result of its investigations and try to prove it. It is almost a form of double jeopardy in the sense that the commission sits like a court with compulsory powers for documents to be presented to it and for witnesses to appear before it. That is the reason behind my hesitation on the matter. As I said, the commission will need to investigate matters; otherwise, it will never get anywhere. Of course, that is largely what it is for; namely, to investigate complaints.
It is a matter of interest that, as far as I can see, the agreement provides that the new unified equality commission which will be set up under the Bill will
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specifically investigate complaints of default, but there is no such provision as regards human rights. If we were to write in an investigatory clause as suggested by the amendment, we would perhaps be stepping outside the wording of the agreement, although not outside the spirit of it because it is absolutely no use such a commission existing if it cannot look into certain matters. As I say, I am cautious at the rather judicial process set out in the amendment.
Lord Goodhart: My Lords, I rise to express my support for the amendment and, indeed, for the noble Lord, Lord Hylton. In Committee we welcomed the introduction of what is now subsection (8) of Clause 65. That was an important addition given the fact that investigations can usefully and effectively complement court adjudications. However, additional powers will be necessary to enable the commission to investigate effectively any alleged human rights abuses. I believe that those powers certainly include the power to obtain documents and hear witnesses. Indeed, in that respect I disagree with what the noble Lord, Lord Cope, said.
I believe that such powers are necessary. Indeed, according to the current Standing Advisory Commission on Human Rights (which is really the precursor body to the proposed human rights commission) the human rights commission will be deficient if it does not possess those powers. The existing equality commissions have those powers and they are indeed part of the minimum standards for national human rights institutions laid down by the United Nations in the Paris principles of 1993. Therefore, I believe that the amendment introduced by the Government in Committee did not go far enough. Although I do not necessarily agree with the whole of the amendment moved by the noble Lord, Lord Hylton, I strongly support it in spirit. I hope that the Government will be able to take some degree of action upon it.
Lord Archer of Sandwell: My Lords, I rise to support Amendment No. 95. The case for it has been fully deployed by noble Lords who have already spoken, and indeed was deployed at the Committee stage. It will not be of benefit if I repeat it now. I add only that as between the noble Lords, Lord Cope and Lord Goodhart, in relation to the extent of the powers, I find myself more persuaded by the noble Lord, Lord Goodhart.
Lord Williams of Mostyn: My Lords, as the noble Lord, Lord Cope, rightly observed, Amendment No. 95 is designed to give coercive powers to the Human Rights Commission. I do not think that we are entirely in disagreement on the approach, although our solutions differ. I take the point of the noble Lord, Lord Hylton, that his Amendment No. 133 would trigger the power only after cross-community approval.
I shall not repeat all the arguments that we addressed in Committee, but I explained—I think accurately—that we could not reach sufficient consensus among the parties to give the commission this power, which was not mentioned in the agreement. I said that we had not closed our minds on this issue. That is why we

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introduced amendments which are now on the face of the Bill which I believe are extremely important and ought to go a good deal of the way to satisfy the noble Lords, Lord Hylton and Lord Goodhart, and my noble and learned friend Lord Archer of Sandwell. I refer in particular to Clause 65(1) and (2). We have introduced amendments which will require the commission to review its powers and functions within two years.
In the delicate situation which faces us I think it is a prudent approach to let the commission develop its work, carry out its inquiries and investigations, and if it comes to the conclusion that its powers and functions are not up to the work it is required to do, it would be able—a certain amount of experience having been acquired and a certain amount of time having passed—to make a full report on what it needed to carry out its functions. I believe that the best way forward is to see how well the commission operates under the powers that the Bill will give it and then reconsider the questions which are raised by these amendments when the powers are reviewed within two years—that is not a long period of time—when the commission will form a view on its powers and functions.
Lord Hylton: My Lords, I am grateful for the strong support that I have received on Amendment No. 95. Between now and Third Reading will the Minister consider whether he could introduce a government amendment that would go a little way, or some way, to strengthening Clause 65(8) on the powers of investigation? I hope that he can say something helpful on that. However, given the time of day I have no wish to divide the House. Unless the noble Lord wishes to speak again, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 67 [Restrictions on application of rights]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 96:
Page 33, line 9, leave out ("or 22(1)(a)") and insert (", 22(1)(a) or 65(5)(b)").
On Question, amendment agreed to.
Clause 71 [Statutory duty on public authorities]:
Lord Dubs Lord Dubs moved Amendment No. 97:
Page 34, line 38, leave out from ("authority") to ("have") in line 39 and insert ("shall in carrying out its functions relating to Northern Ireland").
The noble Lord said: My Lords, Amendment No. 97 makes clear that the statutory obligation is not confined to Northern Ireland public authorities, but can also include UK departments, such as the Northern Ireland Office and UK-wide public authorities which carry out functions relating to Northern Ireland. The terminology in the amendment is also closer to that in Clause 72.
Amendment No. 99 defines "public authority" for the purposes of this clause. In response to comments received in the other place, an attempt has been made to align this definition more closely with that in Clause 72. However, complete harmonisation has been impossible. Essentially, there are four groups of public authorities to which this clause will apply. The first is UK departments and UK-wide public bodies, which are covered by the
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reference to Schedule 2 to the Parliamentary Commissioner Act 1967. These also have to be designated for purposes of this clause by order of the Secretary of State. There will be many UK-wide public authorities which will have no particular relationship with Northern Ireland, or will carry out only limited functions there. Due consideration will need to be given to which other United Kingdom departments should be designated.
The second group of public authorities are those listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996. These are Northern Ireland public bodies, including district councils.
The third group are those bodies listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 and these are essentially the Northern Ireland government departments. Finally, the Secretary of State may designate other public authorities for purposes of this clause.
The references to the First Minister, the Deputy First Minister and Northern Ireland Ministers would be removed by this amendment. The implementation of the statutory obligation is through equality schemes and these clearly need to be prepared by institutions, rather than by individuals. Northern Ireland Ministers will, of course, be politically responsible for their departments which will all prepare equality schemes. I beg to move.
On Question, amendment agreed to.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 98:
Page 35, line 7, at end insert—
("( ) Nothing in this section shall preclude a public authority from taking any measure designed and reasonably necessary to protect or advance individuals or groups disadvantaged by reason of sex, disability, age, marital status, colour or ethnic origin, sexual orientation, religious beliefs or political opinion.").
The noble and learned Lord said: My Lords, I sense that a long exposition of this amendment will not be welcome to your Lordships at this stage in our proceedings. In Committee we debated an amendment which I ventured to move to ensure that the Bill should not prove to be self-defeating. It would be self-defeating if it had the effect of prohibiting affirmative action to bring about the very equality which it is designed to protect. Sometimes it is necessary to treat some people differently from others in order to redress a balance. It would be proper to provide seats for disabled people even if they are not provided for other people.
My noble friend Lord Dubs replied that the amendment was not necessary. He said that the public authority is required only to have due regard to the need to promote equality of opportunity, and provided it did have due regard to that need it could embark on affirmative action. History does not encourage me to rest content with my noble friend's argument. Those who drafted the Canadian charter of rights and freedoms did not feel content to leave a vacuum on that point. Some of us remember the battles of the 1980s when there were those who argued to the contrary of what my noble friend now seeks to assure us. It is not clear why the matter should not be placed beyond doubt by express words in the Bill. That is the purpose of this amendment.
However, the noble Lord, Lord Lester, who is unavoidably absent, pointed out a defect in the amendment which I previously sought to move. He pointed out that there must be some limit on affirmative action, otherwise it will swallow the requirement of promoting equal treatment. He pointed out that the Canadian charter adopted the criterion of proportionality. I have included that limitation in this amendment. I hope now that my noble friend will feel able to think again. I beg to move.
Lord Goodhart: My Lords, I shall speak briefly. The noble and learned Lord, Lord Archer of Sandwell, has already mentioned the fact that at the Committee stage of this Bill my noble friend Lord Lester of Herne Hill strongly supported an amendment to permit affirmative action where reasonably necessary. I simply add that we on these Benches are firmly in favour of the amendment which has just been moved.
Lord Dubs: My Lords, this amendment is similar to one tabled at Committee stage by my noble and learned friend Lord Archer of Sandwell and my noble friend Lord Morris of Manchester. I appreciate that my noble and learned friend Lord Archer said it was similar but not identical.
The amendment has become known as the "affirmative action exemption". It is based on the concern that Clause 71 might call into question the ability of public bodies to take affirmative action to correct disadvantage in appropriate cases. We would be concerned if there was such an incompatibility between affirmative action and the new statutory obligation on public authorities. Affirmative action, in appropriate circumstances, is an important method of combating inequalities. It is our firm intention that it should remain available and, after careful consideration, we do not believe that Clause 71 calls this into question.
Nothing in Clause 71 renders unlawful what would be lawful affirmative action under the existing fair employment, equal opportunities and race relations law. Moreover, the fundamental duty imposed by Clause 71 is for public authorities to,
"have due regard to the need to promote equality of opportunity".
The justification for affirmative actions is that they are necessary to correct existing disadvantage or imbalance in equality of opportunity. They must therefore be directed at promoting equality of opportunity. Clause 71 as it stands is not only consistent with affirmative action but means that public authorities are bound to have regard to the need for affirmative action when considering their duty under the clause.
The Government are confident that Clause 71 in no way hinders affirmative actions when properly directed at promoting equality of opportunity. In some cases it will have the effect of requiring public authorities to have due regard to the possibility of undertaking affirmative actions, where they are not already doing so, if these would enable them to fulfil their duty.
An exemption for affirmative actions is therefore unnecessary and runs the risk of calling into question the broad nature of the equality of opportunity
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obligation which the Government intend to enact. I hope that my noble and learned friend will feel somewhat persuaded by what I have said.
8 p.m.
Lord Archer of Sandwell: My Lords, I am grateful to my noble friend. If I sought to divide the House now I would be a candidate for the most unpopular character in history. My noble friend and I have both made a prediction. Time will tell whether my anxieties are justified. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 99:
Page 35, leave out lines 9 to 13 and insert—

("(a) any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation) and designated for the purposes of this section by order made by the Secretary of State;

(b) any body (other than the Equality Commission) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);

(c) any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation;").

On Question, amendment agreed to.
Clause 72 [Discrimination by public authorities]:
Lord Goodhart Lord Goodhart had given notice of his intention to move Amendment No. 100:
Page 35, line 24, after ("Ireland") insert (", including functions relating to the provision of goods, facilities or services to the public or a section of the public,").
The noble Lord said: My Lords, I do not intend to move Amendment No. 100, but I intend to move Amendment No. 102, with which it is grouped. I am not sure whether it would be procedurally correct to talk to that amendment now or after Amendment No. 101.
[Amendment No. 100 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 101:
Page 35, line 26, after ("belief") insert (", sex, race, disability, age, marital status, dependants, sexual orientation").
The noble and learned Lord said: My Lords, it is rare indeed that one listens to my noble friend Lord Williams of Mostyn without acquiring a clear grasp of his argument and the reasons for his conclusion. At Committee stage I underwent that unique experience. We all agreed that in Clause 71, which deals with the duties of public authorities in promoting equality of opportunity, there is a requirement to promote equality of opportunity in respect of all the potential bases of discrimination, which are set out in Clause 71(1)(a). Yet when we come to Clause 72, which deals with discrimination by public authorities and incitement to discrimination, the protection is confined to religious belief and political opinion.
I listened to my noble friend in Committee—and carefully read and re-read what he said—but I still have not grasped the reasons for the difference. I cannot believe that it is something to do with what is not explicitly spelled out in the agreement. Surely it was clear among all parties to the agreement that all these bases of distinction were intended to be discouraged. I promise my noble friend that if he seeks again to explain the reasons for the distinction I will try very hard to follow him. I would much prefer that he accepts the amendment. I beg to move.
Lord Dubs: My Lords, Clause 72 is designed broadly to re-enact Section 19 of the Northern Ireland Constitution Act 1973, which creates a ban on discrimination by public authorities on the grounds of religious belief or political opinion. Amendment No. 101 would widen the scope of the clause so that it made unlawful discrimination by public authorities on the grounds of gender, race, disability, age, marital status, dependants and sexual orientation.
My noble and learned friend Lord Archer of Sandwell referred to my noble friend Lord Williams of Mostyn, assuming that he would be dealing with this amendment. I hope I can be nearly as persuasive as my noble friend, who is on the Front Bench with me.
My noble and learned friend Lord Archer makes a strong case for extending the ban on discrimination to cover these additional grounds. There is, however, one "but". Such a far-reaching proposal is not envisaged in the Belfast agreement and so this is not the proper place to consider it. This legislation is intended to give effect to the Belfast agreement, not to enable a comprehensive review of discrimination and equality provisions. It is not intended to do that. That is the only argument that I shall use tonight against my noble and learned friend's amendment. If we were embarking upon a wide-ranging review of discrimination measures, I would listen very sympathetically to what my noble and learned friend has said. But that is not the case. It is not appropriate to do that on the back of a Bill dealing with the Belfast agreement. I hope that my noble and learned friend will feel able to withdraw his amendment.
Lord Archer of Sandwell: My Lords, my noble friend is very patient with me. It was in the 1973 Act—I follow that—but human rights is not a static subject. We have moved a long way since 1973. If that were the only basis of my noble friend's reasoning I would not be impressed.
He tells me that it is not in the agreement. It is certainly not spelt out specifically in the agreement, but I thought that was because everyone thought that that went without saying. I am not sure that I can carry the debate much further this evening. The Government's reasoning is clear to me now—it is the agreement, the whole agreement and nothing but the agreement. If something escaped inclusion in the agreement perhaps we should not be dealing with it at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart moved Amendment No. 102:
Page 35, line 26, at end insert—
("( ) For the purposes of subsection (1), a person discriminates against another person on the grounds of religious belief or political opinion if—

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but—

(i) which is such that the proportion of persons of the same religious belief or of the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied, and

(iii) which is to the detriment of the other because he cannot comply with it.").

The noble Lord said: My Lords, Clause 72(1) of this Bill makes it unlawful for a public authority carrying out functions in Northern Ireland to discriminate against a person or class of person on the grounds of religious belief or political opinion. It does not, however, define discrimination so that it clearly involves indirect discrimination. It is well known that all anti-discrimination legislation, in order to be fully effective, needs to prohibit both direct and indirect discrimination. The purpose of this amendment is to write into Clause 72 a definition of discrimination which includes indirect discrimination.
Indirect discrimination can, in many cases, be at least as effective a method of discriminating as direct discrimination. The definition used here is not novel in any way. It is a definition of indirect discrimination which is used in the Fair Employment Act. As this definition is already included elsewhere in legislation for Northern Ireland, I ask the Minister why it is that indirect discrimination cannot be expressly incorporated into Clause 72 as it has been in other legislation. I beg to move.
Lord Archer of Sandwell: My Lords, I rise simply to say that I wholly support what the noble Lord, Lord Goodhart, has just said, as I did at Committee stage. Nothing would be gained if I were to repeat his arguments.
Lord Dubs: My Lords, Amendment No. 102 would increase the scope of Clause 72 so that it covered indirect as well as direct discrimination. In the Bill we are seeking to implement the Belfast agreement as closely as possible, as well as re-enacting those parts of the Northern Ireland Constitution Act 1973 which are not covered by the agreement. Clause 72 largely re-enacts the provisions of Section 19 of the 1973 Act.
I recognise and understand the strong arguments for an extension of the ban on discrimination on the grounds of religious belief or political opinion so that it also covers indirect discrimination. But, as I explained when we considered this point in Committee and, indeed, on

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the previous amendment a moment or two ago, the Government argue that this Bill is not the place for such a far-reaching change in the law which is not envisaged in the agreement. I do not want to take up the time of the House by repeating the arguments of a moment ago. I would therefore invite the noble Lord to withdraw the proposed amendment.
Lord Goodhart: My Lords, I very much regret what the Minister has just said. I think this is an unsatisfactory situation. Obviously this is not an occasion on which it would be appropriate to ask for the opinion of the House, as the noble and learned Lord, Lord Archer, said in respect of the previous amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 103:
Page 36, line 16, leave out ("(other than a Northern Ireland department)").
The noble Lord said: My Lords, Amendments Nos. 103 and 104 go together. They are technical amendments which improve the definition of "public authority" in the clause because Northern Ireland departments fall within the second order listed but the intention of the provision remains the same. I beg to move.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 104:
Page 36, line 19, leave out ("department or other authority") and insert ("authority (other than a Northern Ireland department)").
On Question, amendment agreed to.
Clause 73 [Unlawful oaths etc.]:
Lord Dubs Lord Dubs moved Amendment No. 105:
Page 36, line 31, leave out ("that") and insert ("the").
The noble Lord said: My Lords. Amendment No. 105 is purely a matter of drafting to ensure consistency within Clause 73(1). It is a very small matter to trouble your Lordships with but any inconsistency in drafting in referring to similar things could lead to an assumption in the future that a different meaning was intended by it. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 106:
After Clause 75, insert the following new clause—

LEGISLATIVE POWER TO REMEDY ULTRA VIRES ACTS
(".—(1) The Secretary of State may by order make such provision as he considers necessary or expedient in consequence of—

(a) any provision of an Act of the Assembly which is not, or may not be, within the legislative competence of the Assembly; or

(b) any purported exercise by a Minister or Northern Ireland department of his or its functions which is not, or may not be, a valid exercise of those functions.

(2) An order under this section may—

(a) make provision having retrospective effect;

(b) make consequential or supplementary provision, including provision amending or repealing any Northern Ireland legislation, or any instrument made under such legislation;

(c) make transitional or saving provision.").

The noble Lord said: My Lords, Amendment No. 106 caused a good deal of discussion in Committee. I withdrew the amendment at that time but promised to reflect on and consider what had been said and whether a fuller explanation might not be justified. I know that the noble Lord, Lord Renton, is not in his place. I pay tribute to his keen interest in this matter. I have had extensive discussions with him which I believe gave him the reassurance that he sought. I hope that I can convince your Lordships similarly.
The first matter I ought to make plain is that this new clause is exactly analogous to Clause 107—formerly Clause 94—of the Scotland Bill, which has now been approved in Committee, on Report and at Third Reading. It is true—this was part of the misunderstanding on the earlier occasion—that the Scottish clause has no equivalent of our subsection (2) but the effects are all achieved in relation to Clause 107 of the Scotland Bill by provisions elsewhere in that Bill—Clauses 113 and 114.
I acknowledged that this is a substantial power. It might be that there would be a judicial finding, some years after the legislation had been passed by the Assembly, that the legislation was ultra vires. In those circumstances, legislation might be the only appropriate way—indeed, the only way—to sort out the consequences following a decision of the judicial committee under the devolution issues mechanisms.
The powers in the clause arise, of course, not simply where an Act is outside legislative competence but where it may be so. One might have a decision of a court in another case unrelated to the particular legislation in point which raised a serious question as to whether the legislation was valid. One has to acknowledge that the power is broadly cast and I need to give some assurances as to how one deals with that.
The first proposition is that the exercise of the power is subject to oversight by the courts. The Secretary of State would be open to judicial review proceedings. No special provision for that is required in the Bill. The normal judicial review principles would apply. If, therefore, the Secretary of State sought to exercise her powers in any improper way, she would be subject to judicial review.
I have been asked whether under this clause the Secretary of State could in theory substitute her view for that of the courts relating to the validity of an Assembly Act or the exercise of devolved functions. If she did, she would be subject to the most serious scrutiny in the courts. She would also face similar questions in your Lordships' House. It is critically important to bear in mind that the exercise of this power—I refer to Clause 90(2)—requires prior affirmative resolution in this House and in another place. Therefore, that is a further safeguard commensurate with the significance of the power.
It is quite possible that a judicial decision might be arrived at some years after the event impugning and therefore effectively impeaching the validity of an Assembly Act on the basis that it was ultra vires. Many people would have acted perfectly legitimately and innocently on a mistaken view of the law. Speedy legislation is often required to remedy those consequences. I stress that it can be done only by prior affirmative resolution in your Lordships' House.
Apart from that, it is right that I refer to what was said in the debate on the Scotland Bill. First, I repeat again the opportunity for judicial review proceedings. But, secondly, it is important that I should point out what my noble friend Lord Sewel said in the context of Scotland. He said—and I repeat it in the context of Northern Ireland:
"Where there has been no court decision, it would be the Government's intention to use these powers only with the consent of the devolved Ministers".
I willingly repeat that assurance in the Northern Ireland context.
When we discussed this matter in Committee I was not in a position to give those reassurances or those undertakings. I think it was right that I undertook to your Lordships to go away and think about this matter. Indeed, it did trouble me. However, although the provision is in the same form, I hope that I have been able to give a much fuller and more satisfactory answer than I gave on a previous occasion. Certainly, the answer I gave on a previous occasion failed to satisfy me; and that is a reasonable test for going away and thinking about something. But now I am abundantly satisfied with the explanation I have offered. I pay tribute to the keen beavers among your Lordships who, even though it was late at night, pursued this point. It was right for it to be pursued; and it was right for us to go away and think about it and come back with a proper explanation.
8.15 p.m.
Lord Cope of Berkeley: My Lords, I accept the implied compliment from the Minister. I was one of those who raised the point and therefore, I suppose, I count as a keen beaver. However, I think the noble Lord's compliment was mainly intended for my noble friend Lord Renton, who spotted the point in the first place and drew our attention to it. As the Minister said, he has discussed the new clause with my noble friend and I since then. I understand that my noble friend is satisfied that there are reasons for introducing the clause and that the previous reservations about it which he raised in Committee have to a great degree been satisfied and answered.
I was not entirely convinced by the noble Lord's point about judicial review. The new clause states:
"The Secretary of State may by order make such provision as he considers necessary or expedient in consequence or.
"Necessary or expedient" are matters to be judged by the Secretary of State. He or she would have to be extremely unreasonable in exercising his or her judgment as to whether it was "necessary or expedient".
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It would be quite difficult to get the courts to say that he or she was not reasonable in those circumstances, unless of course the Secretary of State had been completely unreasonable, which is unlikely.
I have looked at some of the debates on the Scotland Bill on this point. The question was raised of what the definition of ultra vires is in this respect—whether it should be read in the more general sense of ultra vires in administrative law, which apparently is very wide, or whether it is much narrower than that. It would be helpful to have advice on that point. We should also make it clear that this point is not only concerned with legislation passed by the Assembly but also with acts of a Minister, the Executive in Northern Ireland or one of the departments there which may be thought to be ultra vires as well. It catches administrative actions as well as laws which subsequently are thought to be ultra vires.
On Question, amendment agreed to.
Clause 76 [Powers of courts or tribunals to vary retrospective decisions]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 107:
Page 38, line 10, leave out from second ("to") to end of line 14 and insert—

(a) the Attorney General for Northern Ireland; and

(b) where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 11), the appropriate authority,

unless the person to whom the notice would be given is a party to the proceedings.
(5) A person to whom notice is given under subsection (4)").
The noble Lord said: My Lords, within this group are Amendments Nos. 107 and 108. They modify Clause 76 in the context of a court or tribunal having concluded that a provision of an Act of the Assembly is not within the legislative competence or that subordinate legislation is ultra vires. The court has certain powers which your Lordships know well.
A decision under this section will clearly involve the wider public interest and the Attorney-General for Northern Ireland who is, and who will remain, the same individual as the Attorney General for England and Wales, is entitled to be present and make representations.
Having thought about this, we came to the conclusion that the devolved authorities might also have a legitimate point of view on these questions. Where such a situation arises and the devolved authorities are not already represented, we simply give the First and Deputy First Ministers a right to be notified of the proceedings and to take part in them. That seems to us to be an amendment of practical utility and improvement. Rights of audience are also given to the relevant law officers if the proceedings should arise in England, Wales or Scotland, but we envisage that that will be a rarity. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 108:
Page 38, line 19, at end insert—
("(7) In this section "the appropriate authority" means—

(a) in relation to proceedings in Northern Ireland, the First Minister and the deputy First Minister acting jointly;

(b) in relation to proceedings in England and Wales, the Attorney General;

(c) in relation to proceedings in Scotland, the Lord Advocate and the Advocate General for Scotland.").

On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 109:
After Clause 77, insert the following new clause—

INTERPRETATION OF ACTS OF THE ASSEMBLY ETC
(".—(1) This section applies where—

(a) any provision of an Act of the Assembly, or of a Bill for such an Act, could be read either—

(i) in such a way as to be within the legislative competence of the Assembly; or

(ii) in such a way as to be outside that competence; or

(b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a Northern Ireland authority could be read either—

(i) in such a way as not to be invalid by reason of section 22 or, as the case may be, section 72; or

(ii) in such a way as to be invalid by reason of that section.

(2) The provision shall be read in the way which makes it within that competence or, as the case may be, does not make it invalid by reason of that section, and shall have effect accordingly.
(3) In this section "Northern Ireland authority" means a Minister, a Northern Ireland department or a public authority (within the meaning of section 72) carrying out functions in relation to Northern Ireland.").
The noble Lord said: My Lords, this is a technical clause about the way in which the court should interpret Acts of the Assembly, subordinate legislation and indeed measures of a wide range of public authorities, including Ministers of the Crown. The point of the amendment is quite simple. If there are alternative readings of the provisions of the legislation concerned, the reading which would lead to a conclusion of validity is to be preferred. It is as simple as that. I beg to move.
Lord Cope of Berkeley: My Lords, I accept the reasons for this amendment. It seems to correspond broadly with Clause 101 of the Scotland Bill. But there is quite a difference in subsection (2). The clause before us proposed for the Northern Ireland Bill says,
"The provision shall be read in the way which makes it within that competence or, as the case may be, does not make it invalid by reason of that section, and shall have effect accordingly".
But the Scottish provision states that,
"Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly".
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I find it difficult to be sure what the legal effects of those different wordings are. It does not seem to me to be wise. A little explanation is required as to why a different formulation has been proposed in the two Bills on an otherwise identical point.
Lord Williams of Mostyn: My Lords, I am not sure why the Scottish version was rather less elegant that the one that my noble friend Lord Dubs and I propose here. For the purposes of Northern Ireland it seems that this is the right way to put it. I shall reflect about the arcane nature of the Scotland Bill. Perhaps it was exhaustion that led people not to notice the attractive alternative drafting. I shall write to the noble Lord and put a copy of my reply in the Library.
On Question, amendment agreed to.
Clause 78 [Provision with respect to certain matters relating to Northern Ireland]:
Lord Dubs Lord Dubs moved Amendment No. 110:
Page 39, line 9, leave out ("the Parliament of the United Kingdom") and insert ("Parliament").
The noble Lord said: My Lords, this is a pure drafting amendment to omit redundant words so that the clause simply refers to an Act of Parliament. That expression is unambiguous in the context. I beg to move.
On Question, amendment agreed to.
Clause 80 [Provision for purposes consequential on Act etc.]:
Lord Dubs Lord Dubs moved Amendment No. 111:
Page 40, line 38, at end insert ("or 6").
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 112 to 116. They expand and clarify Clause 80. The purpose of this clause is to enable the law to be amended in order to give effect to the Bill and orders made under Clauses 4 and 6. The chief end to which this power will be put is the transfer of functions between the United Kingdom and Northern Ireland public bodies.
Amendment No. 112 revises subsections (2) and (3) so that functions can be transferred from United Kingdom authorities to Northern Ireland authorities and vice versa. Functions may need to be transferred in this way for three main reasons. The first is to ensure that functions falling within the excepted or reserved field under the terms of Schedules 2 and 3 to this Bill can be dealt with by United Kingdom and not Northern Ireland authorities. Secondly, it is to ensure that functions can be transferred between United Kingdom and Northern Ireland authorities following the reservation or transfer of a matter under a Clause 4 order. The third reason is to ensure that functions can be transferred between the United Kingdom and Northern Ireland authorities following the making of an order under Clause 6 specifying certain functions as being exercisable in or as regards Northern Ireland. Your Lordships may recall that that has a particular application to fisheries.
Amendment No. 114 provides for a particular contingency. It enables further Orders in Council to be made to make functions which have been transferred to Northern Ireland authorities exercisable again by UK authorities alone or concurrently with the Northern

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Ireland authorities. We have in mind again the special case of the fishing industry where licences are issued in respect of boats which are of course mobile and which have, until now, been licensed to fish in UK waters. In future, there will be Northern Ireland waters and Scottish waters and licences will be issued by devolved authorities with more limited remits. For practical reasons it will be necessary to retain the possibility of a concurrent UK authority and this amendment will allow that.
Amendments Nos. 111, 113 and 114 are minor amendments. Amendment No. 115 redefines the meaning of a Northern Ireland authority and a United Kingdom authority in line with the wording in Clause 26. I beg to move.
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendments Nos. 112 to 116:
Page 40, line 39, leave out subsections (2) and (3) and insert—
("(2) Orders under subsection (1) may make provision for transferring to a United Kingdom authority, with effect from any date specified in the Order—

(a) any functions which immediately before that date are exercisable by a Northern Ireland authority and appear to Her Majesty to be concerned with a matter which is an excepted or reserved matter (whether by virtue of an Order under section 4 or otherwise);

(b) any functions which immediately before that date are exercisable by a Northern Ireland authority and appear to her Majesty not to be exercisable in or as regards Northern Ireland by virtue of an Order under section 6.

(3) Orders under subsection (1) may make provision for transferring to a Northern Ireland authority, with effect from any date specified in the Order—

(a) any functions which immediately before that date are exercisable by a United Kingdom authority and appear to her Majesty to be concerned with a matter which is a transferred matter (whether by virtue of an Order under section 4 or otherwise);

(b) any functions which immediately before that date are exercisable by a United Kingdom authority and appear to her Majesty to be exercisable in or as regards Northern Ireland by virtue of an Order under section 6.").

Page 41, line 9, leave out ("Provision may be made,") and insert ("An Order under subsection (1) may make provision,").
Page 41, line 11, at end insert ("or 6").
Page 41, line 15, at end insert—
("( ) Where such provision as is mentioned in subsection (3)(b) has been made by Order in Council under subsection (1), Her Majesty may, if it appears to Her necessary or expedient to do so, by Order in Council—

(a) provide that the functions transferred to the Northern Ireland authority shall be exercisable by a United Kingdom authority, either alone or concurrently with the Northern Ireland authority; and

(b) make such provision as is mentioned in subsection (4)(a) to (c).").

Page 41, leave out lines 20 to 30 and insert (""Northern Ireland authority" means—

(a) a Minister or a Northern Ireland department;

(b) the Comptroller and Auditor General for Northern Ireland; or

(c) any other public body or holder of public office in Northern Ireland.

(7) In this section "United Kingdom authority" means—

(a) the Privy Council;

(b) any Minister of the Crown;

(c) the Defence Council;

(d) the Commissioners of Inland Revenue;

(e) the Commissioners of Customs and Excise;

(f) the Comptroller and Auditor General; or

(g) any other public body or holder of public office in the United Kingdom.").

On Question, amendments agreed to.
Clause 83 [Industrial Injuries Advisory Council]:
Lord Dubs Lord Dubs moved Amendment No. 117:
Page 45, line 26, leave out ("date") and insert ("passing").
The noble Lord said: My Lords, this is purely a drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 85 [The Tribunal]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 118:
Page 47, line 2, after ("appeal") insert ("; and
(b) where the Secretary of State is not party to any such proceedings, the Secretary of State,").
The noble Lord said: My Lords, in this group we find Amendments Nos. 118, 120, 234 and 236. Amendment No. 118 is to ensure that the Secretary of State's interests in the tribunal's proceedings are fully represented. The Secretary of State will be a party to the proceedings where the original act complained of was undertaken by her. There may be occasions when the Secretary of State is not the respondent and therefore this amendment ensures that the Secretary of State can be legally represented where she is not a party. Amendment No. 120 also ensures that where she is not a party, the Secretary of State will have a right of appeal to the Court of Appeal on a point of law arising from the tribunal's determination. She has a legitimate interest as a certifier of the original act and also her responsibility and accountability for national security. I believe that these matters were the subject of general approval in principle when we discussed them more generally at Committee stage.
Amendments Nos. 234 and 236 are simply technical amendments relating to the transitional provisions. I beg to move.
On Question, amendment agreed to.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 119:
Page 47, leave out line 33.
The noble and learned Lord said: My Lords, the tribunal, about which my noble friend Lord Williams has just been speaking, appeared at a late stage in our Committee proceedings. I am sure that my noble friend will agree that, welcome as his proposal was, it would not have been practicable for us to submit it to scrutiny at that point. Accordingly, I scrutinised it after the Committee stage. I am grateful for the advice of Professor Christopher McCrudden.
The tribunal is to deal with a situation where someone complains of discrimination under Clause 22 or Clause 72 and the Secretary of State certifies that it was justified by the requirements of national security or the need to protect public safety or public order.
Clearly, there may be good reasons why the justification cannot be examined publicly. The special procedures of the tribunal are intended to address that problem. That may well mean the absence of some of the rules which protect the citizen in normal proceedings. The Lord Chancellor is empowered to make rules provided, for example, that the matter should proceed in the absence of the complainant and that he shall not know the particulars of the case against him. I accept all that, Heaven forgive me. I even understand that the legal representative whom the complainant has chosen may have to be excluded if he does not have the necessary security clearance.
The second-best provision appears to lie in the power of the Attorney-General to appoint someone from the Northern Ireland Bar to act as his representative. What puzzles me is the provision that that representative "shall not be responsible" to the party whose interest he represents. I should be grateful if my noble friend could explain what is entailed by that. Does that mean that he is not to be bound by the instructions of the complainant? I understand that if his instructions were, for example, to demand that classified information be made public, he would not be bound by that. But may he decline to discuss the case with the complainant? May he make a concession of fact contrary to the instructions of the complainant? What is to be the relationship between the lawyer and the client? I hope that my noble friend will satisfy me, but, if not, I hope that at least he will enlighten me. I beg to move.
8.30 p.m.
Lord Cope of Berkeley: My Lords, when I first read the amendment I, too, was concerned about its meaning. I think that a person who is trying to represent the interests of a party, which he is required to do under subsection (7), is in a difficult position if he is not responsible to the party concerned even though he is representing his interests. However, at the same time I believe it is necessary to make careful arrangements in Northern Ireland for the protection of security and information.
We all know of the terrible things that have happened to individuals in Northern Ireland as a result of the situation and the terrorist organisations which operate there. Protection such as is provided by this clause is essential including, I believe, the provision for the Attorney-General to appoint a different person. The noble and learned Lord asked some interesting questions about the precise meaning of the clause.
Lord Williams of Mostyn: My Lords, those are perfectly legitimate and essential questions. Perhaps I may step back one pace. As some of your Lordships know, the background to this arises from the case of Chahal in the European Court of Human Rights. Chahal was excluded from this country on the ground of national security. At that stage he had no opportunity of
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being represented in an independent tribunal. I hope I paraphrase the case fairly. Chahal found us to be derelict in that respect.
The first Bill I introduced in your Lordships' House was to set up a special immigration appeal tribunal. At that time we had a good deal of careful discussion about how properly to represent two interests which may conflict. The first was the interest of the appellant in having his case put as effectively as possible by professional representation. The second issue identified—here I absolutely agree with the noble Lord, Lord Cope of Berkeley—was the legitimate public state interest in protecting confidential information which may be restricted; alluding also to some aspects of restricted material—it is a notorious commonplace—which may put people in serious danger, even in danger of death. Therefore, we wanted to strike a balance. We would have been unhappy for someone who was an appellant not to be represented. Equally, we could not contemplate the normal relationship of lawyer-client because that would be impossible. I think that we have gone as far as we possibly can to meet legitimate complaints.
The scheme in Clause 85(8) is that,
"A person appointed under subsection (7)—

(a) shall be a member of the Bar of Northern Ireland;

(b) shall not be responsible to the party whose interests he represents".

That follows the theme of subsection (7), which states:
"The Attorney General for Northern Ireland may appoint a person to represent the interests of a party to proceedings before the Tribunal in any proceedings from which he and any legal representative of his are excluded".
One starts off with a situation which is quite unusual. Apart from persons under a disability, the normal human right is, of course, to a legal representative of one's reasonable choice. That cannot obtain here. What one has here is not a legal representative of reasonable choice but someone appointed by the Attorney General to protect the interests of a particular appellant in the context of restricted material. Therefore, the relationship starts completely differently from the relationship with which my noble and learned friend Lord Archer and I were familiar when we were both practising members of the Bar.
If restricted material is discussed, the designated legal representative will be in receipt of it. He will not be able to take instructions from his client about it. He will not be able to inform the appellant of the content of that material. He will not be able to take instructions about what to dispute. I accept that those are significant restrictions on the relationship which one normally has between client and lawyer. The alternative was to have no representation at all. We did not want to go down that route and we set our face against it. Therefore, in the nature of things, we had to look for a compromise. I think that this is a legitimate and fair compromise.
I take the point of the former Solicitor-General. Perhaps I may refer to him in that way because I know of his keen interest in Bar ethics when he was a leading member of the Bar. However, he does not become not responsible. The underlying theme is that the advocate

727
still remains responsible to his profession and code of professional ethics. He has to be a member of the Bar of Northern Ireland. If counsel came to the conclusion that he could not properly discharge his functions within the parameters set, he would have the opportunity of ceasing to act.
I have spent a little time on this matter, despite the fact that it is late, because we regard it as of fundamental importance. We were deeply unhappy with the prospect that someone should not have competent legal representation. We had to bear in mind the issue concerning restricted material, truly a matter which might compromise national security. I think that we have achieved a commendable compromise.
Lord Archer of Sandwell: My Lords, I am most grateful to my noble friend Lord Williams for the care with which he replied to my questions. I have never disputed the assertion of the noble Lord, Lord Cope, or of my noble friend that in this situation one must have regard to the needs of national security. I hope that I made that clear when I introduced the subject.
What puzzles me is the meaning of the words "not responsible to the complainant". Does that mean, for example, that the complainant cannot complain about anything which his representative does? If that is so, I wonder how far we comply with the ruling in Chahal? Is the complainant really represented at all or is the word "represented" used only in its Pickwickian sense?
One could pursue this matter at some length. Your Lordships will be relieved to hear that I have no intention of doing so tonight. However, I am not sure that the last word has been said on the subject. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 86 [Appeals from the Tribunal]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 120:
Page 47, line 38, after first ("appeal") insert ("; or
(b) where the Secretary of State was not a party to the appeal, the Secretary of State,").
On Question, amendment agreed to.
Clause 87 [Assembly property]:
Lord Dubs Lord Dubs moved Amendment No. 121:
Page 48, line 4, leave out from ("(2),") to ("(property") in line 5 and insert ("property in relation to which section 31(4) of the Northern Ireland Constitution Act 1973 had effect").
The noble Lord said: My Lords, this is a technical amendment. Clause 75 of the Bill, as approved in Committee, defines the Stormont estate and related property by reference to Section 31(4) of the Northern Ireland Constitution Act 1973.
That section is to be repealed, with other provisions of the 1973 Act, by this Bill in Clause 94(2) and Schedule 16. This amendment, with its reference in the past tense to the property to which Section 31(4) of the Act had effect, is a drafting amendment to acknowledge the fact that that section will be repealed when Clause 87 comes into force. I beg to move.
On Question, amendment agreed to
Clause 89 [Savings for existing laws]:
Lord Dubs Lord Dubs moved Amendment No. 122:
Page 49, line 12, leave out ("the Parliament of the United Kingdom,") and insert ("Parliament,").
The noble Lord said: My Lords, in moving Amendment No. 122 I propose to speak to Amendments Nos. 123 to 132 inclusive, including Amendment No. 125 in the name of the noble Lord, Lord Cope, and I should also like to speak to Amendment No. 157.
The government amendments to these clauses concern technical and drafting points. Amendment No. 122 in Clause 89 is purely a matter of drafting: the deleted words are unnecessary. Amendment No. 123 in Clause 90 is consequential on amendments to Clause 71 (which concerns the statutory equality duty) and subjects to the affirmative resolution procedure orders under the new power of designation inserted there. Amendments Nos. 124, 126 and 127 insert several new entries in the interpretation clause of the Bill, Clause 92.
I think we are at one on the substance with the noble Lord, Lord Cope, who seeks in Amendment No. 125 to set out the definition of "Minister" in Clause 80. Our Amendment No. 126 achieves the same effect by reference back to Clause 8. In doing so it follows the drafting style of the rest of the Bill, as the noble Lord's amendment does not, so I hope he will be ready to withdraw his amendment.
Amendment No. 128, which also relates to Clause 92, provides a definition of the expression "deals with", which comes up at a number of points in the Bill, especially in connection with legislation. The new provision is intended to assist those who have to make decisions about whether a provision is within legislative competence.
It, first of all, recognises that a provision may deal with a number of matters: it is not a question under this Bill, as it is in some constitutional systems, of isolating a single predominant concern of a provision—what is sometimes called its "pith and substance".
Secondly, the amendment makes clear that a provision deals with each of the matters that it affects, so long as it affects them more than incidentally. That means that provisions may frequently, in the terms of the Bill, deal with a number of matters.
The amendment marks no change in policy: it reflects what we have always intended the Bill to achieve, and is indeed implicit in its drafting. But different constitutional systems assess these questions in different ways, and in particular the Scotland Bill takes a different approach from the one we intend, so it seems to us important to make more explicit what we mean here.
I move on to Amendment No. 129, also in Clause 92, which needs to be considered with Amendment No. 157 in Schedule 3, by which the subject matter of the National Minimum Wage Act would be made a reserved matter. The Clause 92 amendment is necessary to ensure that the Northern Ireland Assembly may, notwithstanding the reservation, still legislate freely on employment matters as a whole in Northern Ireland.
The underlying principle of the national minimum wage is that the same rate will apply throughout the United Kingdom. The National Minimum Wage Act reflected a UK-wide policy from the start. It ensures the workers across the UK qualify for the same rates and have the same degree of protection and that employers are subject to the same obligations and penalties in every part of the United Kingdom.
In framing the reservation in this Bill of the National Minimum Wage Act, we have been mindful that employment law is a transferred matter in Northern Ireland. We have sought to ensure that the Assembly would be able to make changes to those enforcement provisions which lock into existing Northern Ireland legislation without undermining the integrity of the National Minimum Wage Act's universal approach.
The way in which we have done this is to propose in these amendments provisions which would allow the Assembly to legislate in those related areas of employment law provided that any such legislation applies consistently to the national minimum wage and all other employment law.
I turn to Amendments Nos. 130 to 132 in Clauses 93 and 94. These are purely a matter of drafting for consistency with other parts of the Bill. I beg to move.
Lord Cope of Berkeley: My Lords, among this group of amendments, as the Minister said, is Amendment No. 125 which I put down on the Marshalled List in an attempt to move the definition of "Minister" into Clause 92, where all the other definitions are. The Minister claimed that his proposition was in keeping with the drafting style of the Bill, but I am not sure that I entirely accept that, because there are a whole lot of definitions in this clause, and this is another one which applies to large parts of the Bill. However, I shall not press it at this stage of the game.
Amendments Nos. 129 and 157 both refer to the national minimum wage. If I may, I shall reserve my remarks on Amendment No. 157 because that is the amendment which lays down that the national minimum wage legislation is to be treated as a reserved matter. I am content with Amendment No. 129. Both amendments were put down overnight and we have not yet had time to consider Amendment No. 157 properly; so if I may, I shall reserve my position on that.
On Question, amendment agreed to.
Clause 90 [Orders and regulations]:
Lord Dubs Lord Dubs moved Amendment No. 123:
Page 49, line 19, leave out ("71(3)(e)") and insert ("71(3)(a) or (e)").
The noble Lord said: My Lords, I beg to move this amendment formally.
On Question, amendment agreed to.
Clause 92 [Interpretation]:
Lord Dubs Lord Dubs moved Amendment No. 124:
Page 50, line 18, at end insert—
(""financial year", unless the context otherwise requires, means a year ending with 31st March;").
The noble Lord said: My Lords, I beg to move Amendment No. 124 formally.
On Question, amendment agreed to.
[Amendment No. 125 not moved.]
Lord Dubs Lord Dubs moved Amendments Nos. 126 to 129:
Page 50, line 27, leave out ("20(3)") and insert (" 8(3)").
Page 50, line 27, at end insert—
(""Minister of the Crown" includes the Treasury;").
Page 51, line 8, at end insert—
("( ) For the purposes of this Act, a provision of any enactment or Bill deals with the matter, or each of the matters, which it affects otherwise than incidentally.").
Page 51, line 8, at end insert—
("( ) For the purposes of this Act, a provision of any Act or Bill which modifies a provision of—

(a) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977;

(b) the Employment Rights (Northern Ireland) Order 1996; or

(c) the Industrial Tribunals (Northern Ireland) Order 1996,

which is amended or applied by or under the National Minimum Wage Act 1998 shall not be treated as dealing with a matter falling within the subject-matter of that Act if the modification affects the national minimum wage and other employment matters in the same way.").
On Question, amendments agreed to.
Clause 93 [Minor and consequential amendments]:
Lord Dubs Lord Dubs moved Amendments Nos. 130 to 132:
Page 51, line 38, leave out ("to this Act").
Page 51, line 42, leave out ("to this Act").
Page 52, line 1, leave out ("to this Act").
The noble Lord said: My Lords, I beg to move these amendments en bloc.
On Question, amendments agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Female Circumcision
8.47 p.m.
Baroness Amos: My Lords, the Unstarred Question will now be subject to a one-and-a-half hour time limit. This change does not affect the maximum time available to the noble Baroness, Lady Gould of Potternewton, or to my noble friend Lord Hunt of Kings Heath, but it increases the maximum time available for other speakers from three minutes to six minutes. However, noble Lords who have prepared shorter speeches will earn undying gratitude if they resist any temptation to lengthen their speeches.
Baroness Gould of Potternewton Baroness Gould of Potternewton rose to ask Her Majesty's Government what action they have taken, following the Prohibition of Female Circumcision Act 1985, in relation to education, prevention and prosecution under the Act.
The noble Baroness said: My Lords, I was prompted to revisit the issue of female genital mutilation after listening to Waris Dirie, a United Nations special ambassador on the subject, at a meeting of the All Party Group for Population, Development and Reproductive Health that was held earlier this year.
A model born in Somalia, Waris described how she was circumcised at the age of five and promised in marriage to a man aged 60; how she fled her village at the age of 14 to avoid the wedding and sought refuge with relatives in Britain. She said of her campaign to outlaw all female genital mutilation, and I quote:
"I have seen them suffer and die from FGM. I was strong enough to survive and I want to make a difference. I can talk because I have experienced the pain".
The realities of FGM are grim. Reading about it makes you shudder; watching videos of the practice makes you sense the horror; but we have to try to think of the horror for the poor girl, not only at the time of her mutilation but for the rest of her life. Sex will bring only pain, and childbirth will be unbelievingly agonising and dangerous.
In 1985 the Prohibition of Female Circumcision Act was passed, due to the persistence of those noble Lords who continued to raise the issue, and I am pleased that many of them are actually entering the debate tonight. It is now time to examine the progress of that legislation to determine what measures have been taken in education and guidance to eliminate female circumcision, whether reported cases have been followed up and whether prosecutions have taken place. In fact, has the 1985 Act had any effect at all?
It would appear that in spite of the possible five-year prison sentence, the practice continues, being performed illegally in Britain on babies and young girls, being performed not necessarily by medically qualified practitioners, and often without an anaesthetic and using unsterile instruments.
The BMA estimates that over 3,000 young girls are circumcised in Britain each year. FORWARD, the leading campaign organisation in this field, estimates that up to 15,000 girls are at risk. But because of the great secrecy and wall of silence surrounding the practice, it is difficult for cases to be brought to court.
In 1993, a Harley Street medical practitioner was brought before the General Medical Council, which correctly took the view that, if practised for social, religious or other ritual reasons, FGM was an unethical practice. The doctor was struck off, but no prosecution followed. Just a year ago, two cases were reported in the media of a doctor in Manchester who for £50 would agree to perform this mutilation of young girls and of a steel worker in Sheffield with no medical training whose charges ranged from £40 per child in Sheffield, £45 in Liverpool and £70 in London. Perhaps my noble friend the Minister will indicate whether any action is likely to follow.
FGM is defined as,
"a traditional procedure which entails partial or total removal of the external female genitalia and/or injury to the female genital organs for non-therapeutic reasons".
732
That definition covers three types of operation which vary in the degree of mutilation. However, the health consequences of the practice, while varying according to the procedure used, can be, and usually are, serious. They range from damage to the external reproductive system; uterus, vaginal and pelvic infections; cysts; infertility; and complications in pregnancy and childbirth.
Of equal consequence are the psychological scars. The practice can leave a lasting mark on the life and mind of the girl who has undergone such a trauma. Such psychological complications may be submerged deep in the child's subconscious and can become the cause of behavioural disturbances. Psychological support is essential for those girls living in this country who realise how much damage FGM has done to them—girls who are holding onto their secret, feeling guilty and isolated, and who in the longer term may grow up suffering feelings of incompleteness, anxiety, depression, chronic irritability and frigidity.
So what are identified as the justifications for carrying on this barbaric practice, euphemistically known as "Cutting the Rose"? It is believed to ensure virginity until marriage, to maintain family honour and to ensure a sense of belonging to the group, and to be a way of controlling women's sexuality and keeping them subordinate to men. Women are made to believe that it will increase their husband's enjoyment of the sexual act, although it might cause the woman great pain.
But why? It is uncertain when FGM was first practised. However, there is no doubt that its roots are complex and numerous. It certainly preceded the founding of both Christianity and Islam. The Koran and the Bible do not require it. It crosses religious, ethnic and cultural lines. But customs, rituals, myths and taboos have perpetuated the practice, even though it has maimed and killed untold numbers of women and girls.
It was only in the late 1970s that the silence was broken.
International organisations and conferences have repeatedly made statements on the dangers of FGM and their support to eradicate the practice. A number of human rights treaties have condemned it, as did the decisions of the Cairo and Beijing UN conferences.
All societies and cultures have norms of behaviour and traditional practices which it is difficult to break. But culture is not static, it can be adapted and reformed. It is possible to give up harmful practices without giving up meaningful aspects of one's culture.
I give two examples. Last December, Egypt's highest court, the Council of State, ended a controversy that started in 1959, when it ruled that the ritual of FGM was not an Islamic religious practice authorised by the Koran and banned its use. This ruling has given great encouragement to anti-mutilation campaigners throughout Africa.
Creating a cultural alternative to female circumcision is the aim behind my second example—an example that could so easily be followed in this country. A recent project in Kenya has succeeded in doing away with the harmful elements while maintaining its cultural origins. The first "alternative graduation" ceremony was held in

733
August last year. Thirty girls and their mothers danced and sang songs, songs with a "circumcision through education" theme. Holding this non-physical ceremony was possible only because of a changed attitude among men, for in Kenya, it is the fathers who make the decision on whether or not their daughters should be circumcised, and this work among men is continuing.
But meanwhile, refugees to this country continue the practice. Many of the women involved suffer acute isolation from mainstream societies and services caused by gender, language and cultural barriers. Any intervention must therefore be culturally appropriate, tactful and sensitive and in no way make the women feel ashamed or guilty of their culture.
There is a need to provide advocacy materials: where to go for support in the community, how to access those services available through the NHS, social services and education authorities—information which should be available through both men's and women's community groups. Equally, there must be greater awareness by health professionals, social workers, community workers and teachers. There needs to be multi-agency working, with an extension of training for professionals on FGM prevention and rehabilitation.
Supported by the Department of Health, FORWARD and many other community and health groups have over the past decade raised awareness and helped to place the elimination of FGM on the agendas of government, local authorities and community agencies. As a result of this work, we in the UK now have one of the best models for building the elimination of FGM into the mainstream activities of women's health and child protection. But much more needs to be done. With discretion and sensitivity, families have to be influenced, for FGM will be eradicated only when parents wish to provide their daughters with the freedom, status and physical safety they deserve.
FGM is universally unacceptable because it is an infringement of the physical and psycho-sexual integrity of women and girls and is a form of violence against them. It is a human rights abuse, and those found guilty of it must be condemned.
Baroness Nicholson of Winterbourne: My Lords, before the noble Baroness sits down, perhaps I may ask whether she is aware of an initiative by the Commonwealth Secretary-General, Chief Anyaoku, who is to place this matter before a meeting of Commonwealth Health Ministers next February, as he indicated at a meeting last week. Will she encourage the Government to support that move?
Baroness Gould of Potternewton: My Lords, I shall certainly do so. I did not know about that initiative and I am delighted to hear about it. Any move and any measure that we can take in order to eliminate this practice is absolutely essential.
8.57 p.m.
Baroness Rendell of Babergh: My Lords, as the House has heard from my noble friend Lady Gould, female circumcision should probably be called female
734
genital mutilation. It may be helpful for me to describe these dreadful procedures. They consist of three related but distinct practices: clitoridectomy or clitoral excision: female circumcision; and infibulation or Pharaonic circumcision. The first, as the term suggests, is the removal of the clitoris; the second usually involves clitoridectomy and excision of the labia minora; whereas the third involves removal of the labia majora and the mons veneris and often the clitoris as well, and subsequent suturing of the remnants of the labia majora. In other words, as far as Pharaonic circumcision goes, it means the entire removal of all a woman's external genitalia, followed by stitching up the tissues over the wound. These operations are currently carried out in many African countries—the rate in Somalia is 98 per cent. of the female population—and are to a great extent irreversible, with effects that last a lifetime.
As noble Lords have heard, FGM is not confined to Moslems, but is also practised by Catholics, Protestants, Copts, animists and non-believers. The belief that it was demanded by Islam has no foundation in fact. Justifications include the preservation of virginity; chastity; hygiene and cleanliness; honour; and custom and tradition. Men in Somalia and other parts of Africa will not marry women who have not undergone female genital mutilation. However, among immigrants more and more men are becoming opposed to the practice, though they still consider that this is women's business and not for them to interfere with.
The World Health Organisation has consistently advised that FGM should not be practised by any health professional in any setting. Its position rests on basic ethics of healthcare where unnecessary body mutilation cannot be condoned by health providers.
The Act of 1985 does not make provisions to prohibit children being taken out of the country, but under Section 47(1) of the Children Act 1989, local authorities have a duty to investigate and protect children who are at risk of FGM and, if need be, apply to the court to take prohibitive steps in order to prevent parents removing a child from the UK so that mutilation can be carried out abroad. Parents' desire for mutilation to be practised on their daughters is so great that if they cannot have the operation performed by doctors in the healthcare system, families have been known to pool resources in order to bring traditional "circumcisers" from home countries to perform such procedures clandestinely.
A friend of mine who is a GP told me yesterday that he often sees examples of FGM in his north London surgery among immigrants from Somalia and the Sudan. Recently he saw a young woman who was pregnant and so grossly mutilated and scarred that it was impossible for her to give birth normally and a Caesarean was inevitable in her case. In the United Kingdom it is important for GPs to be aware of the problem and know which ethnic groups are at risk. Women, quite naturally, do not care to talk freely about it. "Are you closed?" is a turn of phrase well understood by the Somali community. Doctors should be alert when told of menstruation and urination problems in girl children. It would be a good idea, for example, if an understanding of FGM were to be incorporated in basic nursing training. Teachers may be told by a child in their classes

735
that she is going on a "special holiday" to the home country, or even on a holiday she admits she is not looking forward to because she knows the reason why she is being taken. This may mean that she is going back to her parents' original community where FGM will be carried out on her.
All newly arrived communities who practise FGM should be informed of child protection mechanisms and legislation against the practice, given education on the rights of children and how risks and abuses can be reported to responsible authorities. The Government's Women's Unit aims at refocusing energies to make a difference in the lives of ordinary women rather than high achievers. This is an area which should particularly come under that unit's scrutiny. The defence that the practice of FGM is cultural and traditional cannot be used in the face of such a huge spread of human suffering.
9.2 p.m.
Baroness Thomas of Walliswood: My Lords, this is such a shattering subject that it is very hard to speak of it at all. But I think we should all be grateful to the noble Baroness, Lady Gould of Potternewton, for raising it in the House tonight. It is something with which we should concern ourselves.
I wish to reinforce the point she made that female genital mutilation is an offence against human rights, and particularly against the rights of women. It is totally unacceptable, as well as illegal, that in this country 3,000 girls should be brutally assaulted in such a way as to ensure that their experience of sexual activity and childbirth is adversely affected for the whole of their lives. After all, paedophilia—another kind of assault—rightly arouses enormous concern. How much more concern should we feel on the subject of female genital mutilation, the pain of which never leaves the adult who is subjected to it as a child.
It is the press which has brought home the dangers of paedophilia to the general population by lifting the taboo which used to exist on public discussion of such subjects. It is the secrecy which surrounds female genital mutilation which is the chief protection of those who continue to practise it. So I hope that a way can be found to involve the press in publicising the matter, but without causing an unsuitable arousal of racial passion.
The continued practice of this offence against human rights in our country is in vivid contrast to the concerns recently expressed by British doctors that children, even young children, should be fully informed of and, if possible, should consent to those necessary therapies which cure but which have dangerous or disagreeable side effects.
It could be argued that we should avoid criticism of female genital mutilation which occurs outside our country. But I cannot accept that attitude, even at the risk of sounding like a so-called cultural imperialist. The annual toll of 2 million cases worldwide simply must not be tolerated. This dreadful practice is indeed a sophisticated form of torture, practised against girls so as to subjugate them as women. Torture is a crime recognised and proscribed at international level.
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Indeed, colleagues in the International Network of Liberal Women want to see FGM or the fear of it recognised as a reason for granting asylum. This is not an entirely new approach, but it would reinforce the efforts of those who campaign to eradicate this practice from within those communities which promote or tolerate it. I hope that the Government will give it a sympathetic hearing. However, I recognise that today's debate is about our responsibilities within our own country.
I thoroughly support the motives of the noble Baroness, Lady Gould, in raising the matter and I look forward to a reply which takes us forward towards eradicating this terrible practice.
9.5 p.m.
Lord Ahmed: My Lords, I begin by thanking the noble Baroness, Lady Gould of Potternewton, for raising this very important question of education, prevention and prosecution under the Prohibition of Female Circumcision Act 1985.
I agree wholeheartedly with the noble and distinguished Baronesses who have spoken before me. Noble Lords have already been told that, according to a report in the Observer last year, the British Medical Association estimated that 3,000 to 4,000 young girls are circumcised in Britain every year.
FORWARD, the Foundation for Women's Health Research and Development, estimates that up to 15,000 girls are at risk of mutilation in Britain. The World Health Organisation and UNICEF have reported that today the number of girls and women who have been subjected to female genital mutilation is estimated at over 130 million worldwide and a further 2 million girls who are annually at risk of this practice.
Egypt, Ethiopia, Kenya, Nigeria, Somalia and the Sudan account for 75 per cent. of all cases. In Djibouti and Somalia 98 per cent. of girls are mutilated.
FGM (female genital mutilation) was introduced to these parts of Africa from ancient Egypt. Circumcision was practised during the reign of Amen-en-heb in the 15th century BC. The ancient Egyptians attached religious significance to circumcision since it was considered a hygienic necessity. The Pharaonic circumcisions are practised by all religions in these countries. However, it is sometimes wrongly associated with Islam. It has already been said that Moslem scholars have made it very clear that the practice of mutilation is strictly forbidden in Islam. I quote from the Koran. Allah the Almighty,
"commands them what is just and forbids them what is evil, and allows them as lawful what is good (and pure) and forbids them from what is bad".
This practice is demanded in male-dominated cultures to preserve female chastity and marriageability and supposedly to heighten male pleasure. This is also un-Islamic because it deprives the female of the same pleasures. More importantly, female circumcision has harmful physical and psychological effects. It causes prolonged bleeding, infections, painful sexual relations throughout life, infertility and death, and yet there is not a single benefit that results from this odious crime.

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Since female circumcision is neither a requirement nor obligatory it is dangerous and criminal and must stop. Women and community groups need to be made aware of and educated about the facts of this dreadful crime and practice. Rogue nurses or GPs who charge £50 a time to carry out this backstreet practice must face prosecution under the Prohibition of Female Circumcision Act 1985.
9.10 p.m.
Baroness Masham of Ilton: My Lords, I am very pleased to follow the noble Lord who has just spoken. In 1985 I was pleased to take the Prohibition of Female Circumcision Bill through your Lordships' House which had been introduced in another place by the honourable Member for Broxbourne, Mrs. Marion Roe. Everyone interested in the matter worked very hard in 1985 to obtain a satisfactory Act of Parliament to ban and make illegal female genital mutilation in Britain. It constitutes all procedures that involve partial or total removal of the external female genitalia or injury to the female genital organs, whether for cultural or any other non-therapeutic reasons.
I have often wondered what progress has been made since 1985 to eradicate this vile practice. I am most grateful to the noble Baroness, Lady Gould of Potternewton, for giving noble Lords the opportunity to debate this matter tonight. The noble Baroness champions women's rights. I am horrified to think that our work on legislation to ban this degrading and dangerous practice has been flouted. The practice goes on in Britain and no one appears to have been punished. Why not? Very often it is the press that opens people's eyes and hearts.
Many of us like old traditions, such as the Lord Chancellor wearing breeches. It does not hurt anyone if he wears breeches or trousers. But for young girls and women in the short term female genital mutilation causes severe pain and shock, infections, urine retention and injury to adjacent tissues; and, in the long term it causes extensive damage to the external reproductive system, uterine, vaginal and pelvic infections, cysts and neuromas, increased risk of vesicovaginal fistulas, complications in pregnancy and childbirth, psychological damage, sexual dysfunction and difficulties in menstruation. Many young girls and babies die as a result of haemorrhaging. Sometimes the most barbaric instruments are used such as razor blades or broken glass.
I hope that the Government will be generous in supporting FORWARD (the Foundation for Women's Health, Research and Development) which helps to educate and make people aware of this practice. It is important to spread the word among many groups. I am pleased that clinics at the Central Middlesex and Northwick Park Hospitals, which have translation services in Somali and Arabic, help these people. Much more needs to be done and I hope that this debate will help in some way.
People use ignorance as an excuse to evade the law. The wicked grannies must be sorted out and confronted and the demand eliminated. Surely, the right of the child to a healthy and happy life is paramount.
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France seems to have been more successful than Britain in penalising the guilty. Should we not have better links internationally and extend the legislation to make it illegal to take British born children out of the country for mutilating procedures? The World Health Organisation should make this a priority, as should all governments.
9.14 p.m.
Lord Rea: My Lords, 13 years ago I spoke on several occasions in support of the noble Baroness's Bill. At that stage, my role, as a doctor, was to describe in stark detail the process and effects of the practice. However, tonight the situation has been described so well by my noble friend Lady Gould and other noble Baronesses that I need not repeat it. My noble friend Lady Gould expressed the case so well that I shall compare her to the soprano in this rather macabre opera. She has performed the aria; we are merely the chorus, and perhaps not nearly as good singers.
Few of us who were involved in the passage of the Act in 1985 would have predicted that this harmful and cruel practice would greatly escalate in the United Kingdom rather than diminishing or being abolished, as we hoped would be the result of the law. The main reason for that escalation, as others have said, is the great increase in immigrants from countries where the custom is still deeply ingrained. Those from the Horn of Africa, especially Somalia, make up the majority.
This apparent failure of legislation to have much effect should not surprise anyone who has looked at past efforts to ban a widely prevalent practice which is thought to be socially undesirable. The so-called war against drugs is a prime example of where legislation has not worked, as was the disastrous attempt to prohibit the consumption of alcohol in the United States in the 1920s. In both cases the result was to increase the activity that was prohibited. The law on its own has proved to be a blunt and ineffective instrument. So although I support the periodic use of the Act to prosecute persons carrying out FGM—it is about time the measure was used—real progress will come only through education, and through that a change in the knowledge and attitudes of the communities where it is a problem. And that applies in Britain as well as those countries where the custom is prevalent.
To start the process of re-education we must assist and encourage those members of the ethnic group concerned who are fully aware of the problem and wish to become involved in the campaign to end it. The organisation FORWARD has been pioneering such schemes using trained members of the communities concerned. In that work I am aware that some support is received from the Department of Health. It would be helpful if the Minister could give details of the programmes supported by the Department of Health. How much is spent on them? Is it planned to expand those programmes? From the figures of FORWARD I suggest that that is very necessary judging from the escalation of the number of cases about which we hear.
We have already heard about one unwelcome practice which may to some extent be an inadvertent effect of the Act: that families take their children out of the country,

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ostensibly on holiday, and while in those other countries subject them to genital mutilation. I ask, as have other noble Baronesses, whether my noble friend thinks that the practice could be discouraged—for example, by suggesting to parents who are taking children to certain countries that they might be liable to prosecution if it is subsequently demonstrated that genital mutilation has taken place. It is problematic and difficult because that may prevent families from taking their children to hospital or to doctors for necessary treatment. It is a delicate subject, but I should be interested to hear the Minister's comments.
One of the difficulties which is hindering work to end the practice is the deep lack of awareness in the population of this country that it occurs. That is even the case among health workers, including doctors and nurses. There is a great need, in particular in areas with significant immigrant communities, to spread greater knowledge of the extent and harmful effects of FGM. FORWARD suggests in particular that not only health workers but also social workers, teachers and even school children should be made fully aware of the problem.
Although to a large extent FGM is practised by women on women, it is a feature of male dominated patriarchal societies where women are regarded as possessions. It is more common in societies where most women are illiterate. The surest way to bring the barbaric practice to an end is, first, to press for universal education and the end of female illiteracy; and, secondly, to press for the spread of information to both men and women—the men who have powerful positions in such societies—to end the disgraceful practice which still persists at the end of the 20th century.
9.21 p.m.
Lady Kinloss: My Lords, I am grateful to the noble Baroness, Lady Gould of Potternewton, for asking this Unstarred Question tonight. It is an important but very sad occurrence in the lives of many females, usually young children. The noble Baroness named three ways in which guidance can be given to help those who are likely to suffer female circumcision. She mentioned education and prevention, which I shall mention again later, and prosecution under the Act for those who perform the operation.
When my husband and I were living in Tanzania, an African nurse talked to me about the subject. Not only was she the mother of two small daughters, but as a nurse she was educated to a high standard. She was terrified that while she was working one day her mother, who looked after the children for her, would take them to be circumcised against her wishes. Having suffered badly herself in giving birth, she had no wish to put her children not only through the pain of childbirth but the trauma and pain of circumcision. She was not the only female person to talk to me on this subject. They and their female children who are the next generation growing up do not want this practice to continue.
Before taking part in previous debates in your Lordships' House, I spoke with African women who were living in this country. They did not want the
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practice to continue either. As regards prevention, it is very difficult for the younger people to protest. The grandmothers are usually the people who organise the ceremonies and selective people carry out the operations. The important aspect of prevention could be educating mothers and children in special classes to tell them the medical consequences during childbirth and the dangers from the operation itself. Perhaps the medical staff and others working with them could be female. I suggest that because most of them would not wish to talk to men on the subject. Of course, if essential, they would speak to their male doctor who, if they were living in a rural area, would probably be the only available person if they were in urgent need of help. All the same, their custom is to speak only with one of their own sex, so they will probably respond better to a woman. However, I am pleased to hear from the noble Baroness, Lady Gould, that men's attitudes are changing. That was also confirmed by the noble Lord, Lord Ahmed.
I ask the Minister whether the European Union is taking any action on the subject. If not, could it not be asked to examine the situation? It is a problem in Europe as well as in this country. Of course, it is a problem also in other parts of the world. Is the Minister aware that in France, for example, cases have been brought before the courts and sentences passed? Also in France, it sadly took the death of two little girls in 1982 to bring the issue before the public and so oblige the authorities to take a stand against that practice.
I have spoken on all the debates on this subject in your Lordships' House and feel sad that nothing has really happened to try to stop it. I understand that there have been no prosecutions so far. Will the Minister say what has taken place in the World Health Organisation on this subject? I understand that it has condemned the practice, but is that as far as it goes? Could it not take some sort of initiative in sponsoring help groups in different countries? I look forward to hearing the Minister's response.
9.26 p.m.
Baroness Uddin: My Lords, I too thank my noble friend Lady Gould for introducing this debate. I feel humbled by it and I can add nothing to the contributions made by your Lordships. I shall restrict my contribution to the role of the voluntary organisations.
I speak with no personal experience except the knowledge of the time in 1981–82 when Britain's first voluntary organisation was set up to help women who were coming to the attention of the health services at the time of childbirth. I take this opportunity to pay my personal tribute to the pioneering work of the London Black Women's Health Action Project whose dedication began the process in earnest which led to the legislation coming into effect.
It did a great deal of work in the area of advocacy, empowerment and education, which are some of the organisation's key objectives. The organisation was the very first hope of a helping hand for women involved in that extremely traumatic process.

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The empowering and enabling role of voluntary organisations is acknowledged in the arena of women, disability and race. It will come as no surprise that the huge burden of educating and empowering women to say "no" remains largely in the hands of voluntary organisations such as the London Black Women's Health Action Project and others. I salute the excellent work of those grass-roots organisations without which many more women would be added to the statistics which we have heard.
It is inexcusable that the legislation was enacted without the provision of adequate financial resourcing of the voluntary organisations, and others, to undertake the most important task of education. However, I hope that today we shall hear from the Minister how we propose to rectify some of the past mistakes, especially in relation to voluntary organisations and funding. Perhaps he will tell the House how many projects have been funded; what is proposed in terms of taking on board the 3,000 or so young women with whom we need to work; and how we are working with the child protection legislation to protect children.
There is an enormous amount of work to do in the area of gathering statistics to inform us about how many children we have managed to protect. In the true spirit of joined-up action, I urge the Government, to ensure it enables the voluntary organisations to take the lead role in education and empowerment of women from within. For this is the only way that change in attitudes and practices will prevail. Only then will women feel able to decide to say "no" to that violation of their human rights and bodies.
9.28 p.m.
Baroness Jeger: My Lords, I begin with an apology from the noble Baroness, Lady Cox. The noble Baroness and I both supported the original Act in 1985 and she has asked me to apologise for the fact that she cannot be here this evening because she is still working on the implementation of that legislation. We were most enthusiastic; indeed, we both worked at the United Nations to ensure that this was not a party problem. Because there is so little time tonight, I shall ask noble Lords to concentrate not on all that we are thinking about and upon which we all agree but on how we are going to do something about it.
I have with me an advertisement for a clinic entitled, "Medical Treatments Without the Worries", which appeared in the Evening Standard after we had passed the legislation. It advertises surgery for women and men, and states that it is "registered with the local health authority". I wrote to the newspaper expressing the view that this was not how we ought to advertise such services. I received a very nice reply from a man at the Evening Standard who said that he did not know about the legislation and that he would try to ensure that such an advertisement was not put in the newspaper again.
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I then wrote to the director of the Department of Environmental Services for the City of Westminster. He, too, said that he did not know about it. He wrote that,
"the premises are not licensed under the London Local Authorities Act 1991".
He then went on:
"The premises do, however, appear to be carrying out 'special treatments'",
and perhaps they should not have been.
I want to be practical tonight. We have all the theory and all the understanding necessary. We must try to establish among the press an understanding of the legislation. We must also impress upon local authorities that they are not carrying out the provisions of the legislation. I should like to ask my noble friend the Minister on the Front Bench how many such accusations have been made since we introduced the legislation. I believe that he will be surprised to find that he can tell us nothing in that respect.
We have an increasing number—and so we should have—of young girls in this country. We send out messages to teachers and to schools. Indeed, this week we set up a campaign to encourage young girls to have higher aspirations, and so on, but there is not a word in that about this subject. Indeed, many girls might be suffering from what we are discussing tonight. I must say that neither party has done anything realistic to bring into the publications of statistics the maternal deaths as a result of what is happening to smaller children. We have not done enough. We have not implemented the legislation that the noble Baroness, Lady Cox, and I brought through your Lordships' House a few years ago.
9.33 p.m.
Lord Dholakia: My Lords, I am grateful to the noble Baroness, Lady Gould, for initiating tonight's debate. If I do not thank each speaker for his or her excellent contributions tonight, that is simply because I am biding by the edict issued by the noble Baroness, Lady Amos. This is a subject which rightly causes revulsion in your Lordships' House because, as everyone has pointed out, it concerns the mutilation of a woman's body. It goes against the instinct of almost all men and women who subscribe to civilised values. It is right that we have the Prohibition of Female Circumcision Act 1985. Let us remind ourselves what it is all about. The Act makes it an offence to carry out this practice. It also makes it an offence for anyone to aid, abet, counsel or procure the carrying out of these procedures by any other person on her own body.
The question now is how effective this legislation has been. It is right that we should demand an answer. My noble friend Lady Thomas of Walliswood rightly spoke in the context of human rights. I wish to expand on that and talk about the rights of the child. When it comes to human rights there can be no compromise on practices that are harmful. I do not know of any religion which prescribes mutilation. That has been confirmed today. The practice which is prevalent in some countries inflicts mutilation on girls as young as four years old. UNICEF describes it as one of the worst violations of

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the Convention on the Rights of the Child. We rightly condemn such practices because they are unacceptable on scientific, moral or religious grounds.
We must always be vigilant to ensure that those who have chosen to be part of our multi-cultural, multi-ethnic and multi-religious society are aware of the law that is designed to protect victims. We should ensure that we use the full force of the law against perpetrators who perform such deeds in a misguided belief that they protect virginity, ensure marriageability and contain sexuality. The noble Lord, Lord Ahmed, referred to that matter.
All those who work with children, either in a voluntary or statutory capacity, are interested in achieving lasting benefits for children within the communities in which they live. We all want to make a reality of children's rights. It cannot be disputed that female genital mutilation causes unnecessary suffering to girls. It is a harmful practice and we are right to condemn it.
I said that I would speak in the context of the rights of the child. Every child has a right to a childhood. I refer to Article 2 of the convention, the right to equality irrespective of sex. Article 19.1 concerns freedom from all forms of mental and physical violence or maltreatment. Article 24.1 refers to the highest standards of health. Article 24.3 refers to taking effective and appropriate measures to abolish traditional practices prejudicial to the health of children. Article 37(a) refers to freedom from torture, cruel or inhuman or degrading treatment.
A number of questions need to be asked as to what progress has been made to eradicate this practice in the UK. Obviously I do not expect all the questions to be answered today. I hope that the noble Lord will study Hansard tomorrow and will reply in writing to some of the questions that cannot be answered today because of time constraints. However, I shall put the questions to him. How many criminal prosecutions have been carried out against the perpetrators of such practices? What guidelines have been issued to their members by health professional bodies on this subject? What programme of public education is undertaken for refugees who arrive here from certain countries where such practices are prevalent? Do we publish information in other languages so that refugees and others are aware of the law in the United Kingdom? Do we make use of consistent messages and all available channels to communicate information to the public?
What training and guidance are available to health professionals on the elimination of this practice? Is appropriate counselling provided for the rehabilitation and treatment of women and girls who suffer problems related to their mutilation? We must never forget the isolation suffered by some of these people within their own communities. What financial and other support is available for women's groups and advocacy groups? That matter was referred to by the noble Baroness, Lady Uddin. Such groups are important as they act as catalysts in starting open discussion where it is taboo to
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discuss such matters. Finally, do we target information at traditional healers and birth attendants who practise mutilations in the name of certain cultures?
Legislation alone is not enough. It can be effective when a system of child monitoring and protection is in operation, when there is widespread education of communities and motivation of public opinion against the practice; and when women and communities are involved in efforts to abolish this practice. We should not compromise for anything less.
9.40 p.m.
Lord McColl of Dulwich: My Lords, I too would like to thank the noble Baroness, Lady Gould of Potternewton, for bringing this subject to our attention this evening. As the noble Lord, Lord Rea, has said, the problem is that you can outlaw the practice but that may not work. For instance, in the Sudan it was banned in 1946 but it is still very widely practised. To be precise, 89 per cent. of women and girls in North Sudan have undergone this procedure. It is carried out by women for deeply felt beliefs which we need to understand.
As the noble Baroness, Lady Uddin, has mentioned, great credit goes to the London Black Women's Health Group for helping to eradicate this practice. But we need to remember that that group lobbied against the 1985 Act on the basis that they preferred to use education and support as tools to eliminate the practice. They feared that the Act would push FGM underground and would discourage victims from seeking medical advice.
As the noble Lord, Lord Ahmed, has pointed out, the history of FGM goes back to ancient Egypt. It may sound very curious, but it was thought that the external genitalia possessed a bi-sexual quality. Therefore both sexes had to be circumcised in order that their individual sexuality could develop. As has already been mentioned, some regarded it as essential for personal hygiene—which is rather strange because it frequently leads to all kinds of infections.
The basis for this practice is very much more complicated. In countries where FGM is prevalent, the great objective is for a girl to marry to maintain her class or status in life, and preferably to improve her status. She can only achieve this if she is a virgin. Her status, of course, involves the whole of the family. If she fails in this regard then she drags the whole family down, socially and financially.
Quite apart from the question of virginity, there are very serious consequences for girls who do not have FGM. It is the value of the bride price paid to the woman's family that dictates the need for FGM. I quote J. Smith from an international survey published in Amsterdam in 1995. He said:
"The more major the operation on the girl, the greater the dowry that is paid for her, in other words, her market value rises".
A daughter without this procedure denies her family this precious resource. It means that she will be shunned from normal community life. I quote from Eliah in an article published in Populi in March 1996. She will be
"not allowed to enter the granary, milk the cows or even collect cow dung; at the well they must wait until all the other women have drawn water".

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Without FGM, the possibility of marriage and a dowry are grossly diminished, putting a great financial strain on her family.
To illustrate how entrenched this custom is, I should like to tell the House of a British doctor who was totally opposed to FGM who used to live in the Sudan with his Sudanese wife and two daughters. When he was abroad at a medical conference his two daughters were subjected to this procedure because of enormous female peer pressure. Understandably, he was devastated when he found out what had happened.
Opposed as we are to this practice, the vehemence of its denunciation has been resented by many women who have had FGM. We could not blame them for drawing our attention to the fact that the incidence of sexual abuse of children in this country is very much greater than the incidence of FGM. Western countries describing FGM as barbaric, uncivilised and painful is not helpful. That kind of soundbite creates hostility to those who are trying to eliminate it. We need more subtle and sympathetic techniques which emphasise the very serious health risks.
For instance, in those countries where FGM is widespread, local people put on short plays in villages illustrating the health dangers of FGM, how completely unnecessary it is and how children have a right to say no. I have seen some of these plays performed by the inmates of prisons in Uganda in an attempt to warn people of the dangers of HIV infection. The plays were professional, moving and, I believe, effective. In villages in Senegal the United Nations Children's Fund is financing this kind of activity. As a result, in Senegal 29 communities have declared an end to FGM. In the city of Bamako in West Africa a major success has been achieved in persuading 25 circumcisers to stop their work. In a public ceremony, the leader of the group put her stubby, blackened knife into a basket held by the wife of the country's leader. Perhaps their success was in part due to the fact that the local organisations found the circumcisers alternative work in small businesses and encouraged them to join local groups in spreading the message.
I shall be very interested to hear from Her Majesty's Government what they are doing to encourage the elimination of this practice throughout the European Union and, in particular, whether they are thinking of trying to prevent children being taken abroad for this procedure.
9.47 p.m.
Lord Hunt of Kings Heath: My Lords, I thank my noble friend Lady Gould for initiating the debate on female genital mutilation. I know that there are sensitivities in using that term rather than female circumcision. But in preferring FGM, I am taking my cue from the World Health Organisation in sending out a clear message that the practice is a violation of human rights. I should also like to acknowledge the contribution of the noble Baroness, Lady Masham, in taking the Female Circumcision Bill through the House in 1985 and also the contribution of my noble friend Lady Jeger.
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As the noble Baroness, Lady Thomas, said, FGM is not an issue that is often or easily discussed, and yet if we are to make a real impact to eradicate this brutal practice—I do not shy from that description despite the words of the noble Lord, Lord McColl—it is something that more and more people should be aware of. My noble friends Lady Gould and Lady Rendell clearly and graphically underlined the horrors of the practice and the pain felt by so many girls and women.
FGM affects a significant proportion of the world's population and is practised by many different religions, including Christians, Moslems, Jews and non-believers. It is by no means a single religious issue and should not be portrayed as such. I found the remarks of my noble friend Lord Ahmed particularly valuable here. As the noble Lord, Lord Dholakia, said, the Prohibition of Female Circumcision Act makes it an offence to carry out female genital mutilation in any of its various forms. It also makes it an offence for anyone to aid, abet, counsel or procure the carrying out of these procedures by any other person.
Further legal protection is provided by the Children Act 1989. Under the Act a prohibited steps order can be made by a local authority to prevent parents carrying out an act without the consent of the court. This covers taking a child out of the country for mutilation to be carried out abroad. That was an issue, particularly highlighted by my noble friend Lady Rendell and my noble friend Lord Rea. The Government recently took the opportunity to change the law on conspiracy in the Criminal Justice (Terrorism and Conspiracy) Act 1998. It is now an offence for a person to conspire to commit an offence outside the UK provided the act constitutes an offence both under the law in the UK and under the law in the country in which the act is to be committed. Where the Attorney-General consents to the institution of proceedings, that enables courts in the UK to deal with conspiracies in this country to commit offences against children abroad, including conspiracies to take children abroad to carry out FGM on them.
In 1991 the Department of Health issued further guidance entitled Working Together Under the Children Act 1989. This set out information on the Children Act relevant to FGM and was issued to local authorities, health authorities, the police, the probation service, educational establishments, doctors and a range of voluntary organisations. This document is currently being updated and will be re-issued in the spring.
The noble Baroness, Lady Thomas, asked about international action as did the noble Lady, Lady Kinloss. The UK has further committed itself to the eventual eradication of this practice through ratifying the objectives laid down in a number of UN resolutions, including the UN Global Plan for Action and Beijing Declaration, 1995, as well as the United Nations Convention on the Elimination of All Forms of Discrimination Against Women. Indeed, the UK has recently co-sponsored a resolution on traditional or customary practices affecting the health of women and girls which reaffirms our commitment to this issue.

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In having legislation in place which makes FGM illegal, the UK is ahead of many other countries. However, despite these measures it is known that FGM is still being carried out in various communities in this country.
Criticism was made by the noble Baroness, Lady Masham, my noble friend Lord Rea and my noble friend Lady Jeger in that to date there have been no prosecutions under the Act. There are a number of complex reasons for that. Not least is the fact that female genital mutilation is deeply steeped in the culture and tradition of those communities which perform it, as a number of noble Lords have said. That makes it immensely difficult to obtain sufficient evidence to enforce a conviction. Complaints of that nature are very rarely made to the police. Even where a complaint is made the same factors can make the investigation, and attempts to gather evidence, enormously difficult. The investigation of complaints should of course be undertaken in a way that is sensitive to the culture and traditions of those communities which practise FGM. I believe that my noble friend Lady Gould had much of importance to say about that.
That is not to say that the Act is unenforceable, neither is there any evidence to suggest that the police or prosecutors do not take this offence seriously or are reluctant to prosecute. However, it is for the police to decide whether there are sufficient grounds for criminal charges to be brought against the individual and to warrant a referral to the Crown Prosecution Service. That service is alive, as we all are, to the sensitive issues inherent in this category of case, not least because children may be involved. The fact that there have been no prosecutions is not because the CPS or the police are not enforcing it; nor is it because of a lack of clarity in the existing law. It is because of the difficulties in obtaining evidence to support prosecutions.
Baroness Jeger: My Lords, before the Minister sits down, can he explain what steps we are taking to implement the Act about which we are talking?
Lord Hunt of Kings Heath: My Lords, as I have explained, there is no lack of determination that the law, as it applies to this country, should be enacted. I am trying to describe the practical difficulties which the police face in enforcing this Act.
Baroness Nicholson of Winterbourne: My Lords, I am grateful to the Minister for giving way. I accept the practical difficulties in bringing criminal prosecutions in this sort of case. Nevertheless, all of us are aware that children are taken away from their parents on grave suspicion of reduction of their human rights on far less evidence and for far less dreadful activities than this. Can the Minister tell us why children are not removed from their families and put in care when there is a suspicion that these activities have been undertaken?
Lord Hunt of Kings Heath: My Lords, as I said earlier, this issue also falls under the provisions of the Children Act 1989. I have already said that under that
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Act a prohibited steps order can be made by a local authority to prevent parents carrying out an act without the consent of the court. However, just as in the case of action taken by the police, I believe that there are real difficulties in obtaining evidence to warrant that action.
I refer to two cases raised by my noble friend Lady Gould. In 1993 a GP was struck off the medical register for gross misconduct relating to FGM. The doctor was not prosecuted in that case because he did not perform an operation. He was contacted by an undercover journalist and agreed to perform an illegal operation. His agreement to perform the operation was regarded by the GMC as gross misconduct. However, as he did not perform it, his actions were not considered to be illegal.
I am also aware of the programme broadcast by Channel 4 last year on this subject. I understand that the South Yorkshire Police received a complaint against a man implicated in carrying out mutilations in that area. However, he had left the area before the police could interview him and he has not been traced since.
In terms of the support given by the Government to organisations engaged in important work in this area—a point about which my noble friend Lord Rea asked—I want to make it clear that the Department of Health is committed to continuing with and supporting these important groups. The department has developed close links with the Foundation for Women's Health Research and Development (FORWARD) which is the leading voluntary organisation in the UK that deals with FGM. I should like to pay tribute to the excellent work undertaken by that organisation.
Under section 64 of the general scheme of grants, FORWARD is currently receiving a core grant of £30,000 over three years to help to meet general running costs. In addition, it is receiving a project grant worth £22,500 for a three-year period to fund the production of a health education pack. This funding overall is secure until the year 2000. Further bids are now being considered.
In addition, a Department of Health official is currently on secondment to FORWARD for a minimum of two years to work as a national liaison officer. This will include local authority liaison with the objective of identifying the key elements of a "best practice" model to co-ordinate local authority health, education, social services and child protection activities.
Further funding has also been secured through the department for a health promotion officer, who will take up post shortly. This person's role will be to liaise with ethnic communities to produce health and education literature in a range of relevant languages; and to produce a training pack for health and education professionals.
Over the past few years, the Department of Health has provided funds totalling nearly £280,000 for projects developed by FORWARD in this country. Similarly, the Department for International Development has committed over £250,000 for two projects with which FORWARD is involved in Nigeria and The Gambia.

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The issue of guidance by professional bodies was raised by a number of noble Lords. The Government welcome the production of guidance for practitioners by their professional bodies to help them to deal sensitively and effectively with FGM. I am pleased to say that my honourable friend Tessa Jowell will be launching the Royal College of Midwives' position paper on FGM on 18th November and I hope that all midwives will take the opportunity to increase their knowledge and understanding of this important issue, and use it to inform their practice.
I might also add that the department has also released funds to help to establish the north-west London African-Somalian Well Women Project being run at the Central Middlesex Hospital NHS Trust. The clinic aims to meet the particular cultural and medical needs of the local community in a humane and sensitive way. Raising understanding and awareness of the physical and psychological impact of FGM is considered to be vitally important. It is very much hoped that the unit will become a centre of excellence from which other practitioners and service providers can learn.
I have not been able to answer all the points that have been raised, but in conclusion may I say that this has been a very valuable debate which has brought to public attention the distressing effects of the brutal practice of
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FGM. My noble friend Lady Jeger asked: what is to be done? I do want to assure your Lordships that despite the lack of prosecutions under the Act the commitment of the Government to eradicating FGM should not be in doubt. As my noble friend Lord Rea and the noble Lord, Lord McColl of Dulwich, said, legislation by itself is not the answer. We therefore need to look to other means of influencing behaviour in our efforts to stamp out FGM in this country.
We are quite clear that relevant agencies need to remain alert to the communities in their population that might be carrying out such procedures and to protect those children they deem to be at risk. Support should be available to those who need it and the process of educating those communities which continue to practise FGM must and will continue. I very much hope that this debate will help to open the eyes of many people to these appalling practices and that by opening up the issues we shall have a much greater opportunity of combating this barbaric practice.

Statute Law (Repeals) Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at two minutes past ten o'clock.