HL Deb 10 November 1998 vol 594 cc630-45

3.8 p.m.

Report received.

Clause 1 [Status of Northern Ireland]:

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 It is rather difficult to calculate the number because some of the amendments which were tabled were subsequently withdrawn.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 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 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.

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 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: 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 "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 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 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 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.
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.
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 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 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 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 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 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 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 moved Amendment No. 9:

After Clause 6 insert the following new clause—