Northern Ireland Bill

HL Deb 11 November 1998 vol 594 cc774-824

3.55 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Dubs.)

On Question, Motion agreed to.

Clause 95 [Short title and commencement]:

[Amendment No. 133 not moved.]

Schedule 2 [Excepted matters]:

Lord Molyneaux of Killead moved Amendment No. 134:

Page 53, line 40, after ("legislative") insert ("and other").

The noble Lord said: My Lords, the amendment is designed to widen the scope of paragraph 3(b) of the schedule to include the exercise of powers other than and in addition to legislative powers. In the course of our debates on Report yesterday, there was a recurrent desire to ensure that rigidity does not occur at any stage subsequent to the passage of the Bill. The very fact that thus far the Government have found it necessary to introduce more than 450 of their own amendments to the Bill—I have heard that we can expect more amendments at Third Reading—points to the necessity for providing the Government with sufficient flexibility to cope with the emergence of unexpected flaws, as emerge they will, without recourse to further legislation. As this paragraph deals with a wide range of international relations, I trust that the Government will eagerly accept the degree of flexibility which my amendment offers. I beg to move.

Lord Dubs

My Lords, before I respond to the noble Lord's specific amendment, it may be helpful if I say a few words, as I did in Committee, about our general approach to Schedules 2 and 3 as they are fundamental to what we are seeking to achieve in the Bill. We have been concerned in these schedules, as elsewhere in the Bill, to give effect to the Belfast agreement. Paragraph 27 of the agreement provides that the Assembly will have authority to legislate in reserved areas with the approval of the Secretary of State and subject to parliamentary control. We did not therefore have the option of removing the reserved category or fundamentally changing its nature.

We have accordingly taken as our starting point the divisions between excepted and reserved matters set out in the Northern Ireland Constitution Act 1973.

As your Lordships will recall, we have had to bring some of the descriptions in the schedules up to date for one reason or another. Putting matters in Schedule 2—the excepted field—is a big step, a once and for all move. Clause 4 of the Bill allows for movement between the reserved and the transferred fields by Order in Council. On the other hand, excepted matters cannot be moved out of that category other than by way of a Westminster Bill. The Assembly will not be able to legislate on any excepted matter except where it is ancillary to other provisions. This differs from the Scotland Bill where there is no such inflexibility. It therefore follows that we should only put matters in the excepted category where, in all the circumstances, it would be wrong for the Assembly to have any power at all to legislate on any aspect of them, even a peripheral one, and where we see no likelihood of the situation ever changing. We have therefore sought to retain flexibility by preferring the reserved category. The result is the list of matters in Schedule 3. That list includes a number of matters which the agreement envisages as being suitable for transfer such as criminal justice and policing. Some of these matters may be transferred sooner rather than later, but only when the time is right and there is a general agreement required by the Bill.

There are other matters in Schedule 3 which we do not envisage transferring. However, it may at times be useful for the Assembly to be able to legislate on some of these matters; in some cases on the core of the subject matter and in others only at the margins. Such legislation would only be possible with the consent of the Secretary of State and will be subject to parliamentary control under Clause 13.

Before moving on, I should also like to underline a point that I have made to your Lordships before about the differences between our approach and that of the Scotland Bill. The key to this lies in the fact that the Scots have started with a clean sheet whereas we are building on a legal foundation of arrangements for devolution in Northern Ireland going back many years which were affected in some degree by the agreement. There are some areas where our approaches converge and others where comparison may be deceptive. I hope that your Lordships find that introduction helpful because it underlies a great deal of the Government's approach to the amendments we shall be discussing.

I now turn to the specific details of the amendment moved by the noble Lord, Lord Molyneaux. I am grateful to him for his explanation. The purpose of Schedule 2 paragraph 3(b) is to ensure that the Northern Ireland Assembly has the necessary legislative competence it needs in order to give effect to agreements or arrangements made in the North-South Ministerial Council or the British-Irish Council under Clause 51 or in relation to the activities of North-South implementation bodies. Without such provision the Assembly will be unable to pass the necessary legislation as it would fall into the category of international relations and be an excepted matter.

However, the Assembly does not require any other powers in order to give effect to these arrangements. The Bill, as drafted, ensures that the Assembly has all the powers it needs. Any other powers in respect of international relations remain excepted. Therefore, I hope that the noble Lord will not feel it necessary to pursue his amendment.

Lord Molyneaux of Killead

My Lords, I would have felt happier had the noble Lord emphasised rather more the two words in the amendment "and other". I believe it was Anthony Eden who once said that the important thing is to remember that foreign affairs are foreign. We do not make the decisions; namely, those of us at Westminster who have the good fortune, if that is the correct term, to serve in the Assembly. The fact is that decisions are made elsewhere and, with our ever-increasing involvement in the European Union, we shall find many decisions are taken over the head of Her Majesty's Government and even more in the form of the three devolved structures now in the making. I shall not predict what is going to happen to London itself beyond saying that it would be rather sad if it was to leave the United Kngdom!

By rejecting this amendment the Government may have cause to regret the lost opportunity to widen their ability to deal with situations arising from decisions taken, for example, by various strands of the European Union. The rejection of the amendment creates a certain danger in relying on the text of the present Bill. It will not be a perfect instrument even when it receives Royal Assent. I believe that it is a fear shared by many noble Lords. But considering that we shall continue to amend the Bill right up to the end of Third Reading on the Government's initiative, we have been wondering for some time whether there is ever going to be a finish to the Bill, which was the hope of us all when we started out. However, as the Minister has again sought refuge behind his self-made immunity certificate, I have no choice but to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 135:

Page 53, line 42, leave out ("person") and insert ("Minister or junior Minister").

On Question, amendment agreed to.

[Amendment No. 136 not moved.]

Lord Molyneaux moved Amendment No. 137:

Page 54, line 2, leave out ("paragraph 11 of").

The noble Lord said: My Lords, Schedule 2 paragraph 3(b) (ii) appears unduly restrictive, particularly when one considers that Strand Two is very wide-ranging, which has always been the intention. The noble Lord, Lord Alderdice, accompanied me to Dublin when we each led our respective teams. We were criticised for so doing. Neither of us regrets our action. When we faced the Irish Government across the table we were disappointed that we did not have more reciprocity, if I may use that word. If that had been the case, the path that we now tread might have been much easier. We did not make much progress. Other road blocks were set down in the way, as I suppose was inevitable. Can the Minister explain why it is felt necessary to curtail the activities of those who will be participating in the Strand Two discussions, particularly given the possibility of what I might call "bolt on" additions to Strand Two? They may become inevitable and desirable simply because of very valuable developments. As goodwill and co-operation become more acceptable and desirable as a result of the Strand Two discussions at various levels, I sincerely believe that there is need for real flexibility. I beg to move.

Lord Dubs

My Lords, when dealing with Amendment No. 76 earlier, I mentioned the definition of the North-South implementation bodies. That is relevant to our consideration of this amendment. We have consulted counsel and we are clear that for the purpose of clarity we need to use as specific a reference to the agreement as possible. For that reason implementation bodies are defined not only in Schedule 2, but in Clauses 51 and 53, as bodies for, implementing on the basis of that mentioned in paragraph 11 of Strand Two … policies agreed in the North South Ministerial Council". The Government's clear view is that implementation bodies will operate on a cross-border or all-Ireland level. It is also our understanding that paragraph 11 applies to all implementation bodies, both the initial group and any bodies subsequently agreed. I hope that that helps to meet the noble Lord's concern.

Lord Molyneaux of Killead

My Lords, I believe that the discussions will expand way beyond the North-South discussions and the implementation bodies into discussions with very real contact with our friends in the other devolved regions of the British Isles, including some of the smaller units yet to be included. It is a great mistake that we do not provide a flexible device of some kind to allow for these boundaries, as they might appear to be at the moment, to be crossed and fruitful discussion encouraged and developed between the various regions in addition to the North-South operations.

The Deputy Speaker (Lord Elliott of Morpeth)

My Lords, before calling the next amendment, I must point out to the House that if Amendment No. 138 is agreed to, I cannot call Amendment No. 139.

Lord Cope of Berkeley moved Amendment No. 138:

Page 54, line 15, leave out from ("Crown") to ("; war").

The noble Lord said: My Lords, in moving Amendment No. 138, I should like to speak also to Amendments Nos. 154 and 155. The question here is who should control the powers of the Armed Forces of the Crown when they are acting in support of the civil power. We all know that the Armed Forces have been called upon to support the civil power in Northern Ireland for 30 years or so and that they have done an absolutely magnificent job. However, when they were first used in that role it was felt necessary to institute direct rule. That was the immediate cause of the introduction of direct rule.

Since then the Armed Forces, along with the rest of the security forces, have been under the control of Whitehall and Westminster. That continues to be the case and, I understand from the Government, it is intended to continue to be the case, at least for a little while. We all hope that it will not continue for very long and that the support of the civil power by the Armed Forces will shortly be able to be discontinued. When that happens, no doubt all powers relating to public order—obviously, that means primarily those relating to the police—will be transferred to the Assembly and the Executive.

If at some stage following that it is necessary for the Armed Forces once again to be employed there, it seems to me that in that role, as well as in their main roles, they should continue to be under the control and direction of, and to have their powers decided by, Whitehall and Westminster and not by the authorities in Northern Ireland. I do not say that because of any lack of trust in the authorities in Northern Ireland. However, as the noble Lord, Lord Williams of Mostyn, said yesterday, we must think of such "fail-safe" devices in case the situation should deteriorate at some stage. That is because there will be considerable difficulties in getting cross-community agreement within the Assembly and the Executive, as set up, to take resolute action in the face of threats to public order.

However, the underlying principle I want to emphasise to the House is that it seems right that the powers of the Armed Forces in support of the civil power should be the same wherever in the United Kingdom they operate and that they should remain under the control of Whitehall and Westminster in that role as well as in their wider roles. That is the purpose of this group of three amendments. I beg to move.

Lord Glentoran

My Lords, I am afraid that I am not totally in agreement with the noble Lord, Lord Cope, on this occasion. In my service career, it was always the rule that in any internal security situation when the Armed Forces were in support of the civil power—in other words, in almost any internal security situation—they were managed by those in the civilian administration. That does not mean that the civilian administration tells the Armed Forces how to do their job, but it does mean that the specific tasks that the Armed Forces are being asked to carry out are decided by the civil power and not by the military powers concerned.

Baroness Park of Monmouth

My Lords, I strongly support the amendment. The precise reason why we need it is because we do not know the future of the RUC. It is especially important, it seems to me, to make it clear that the maintenance of public order, which presumably covers all the activities of the armed services acting in support of the civil power and their immunities, should remain an excepted matter. It is an issue of perception. It relates necessarily to the future of the RUC.

According to the press, the nationalists are telling the Patten commission on policing that the RUC must be abolished, not reformed, and that not one single RUC officer should be accepted into the "people's police" which they want to set up instead. They would presumably scarcely consider accepting military support in support of that civil power. So this is not the moment, I suggest, to abandon the UK's control of these matters or even to appear to consider devolving them from excepted to reserved matters as, by implication, we are doing. The nationalists are behaving as if they were the only community in Northern Ireland.

If the amendment is not accepted, we shall be sending a signal to the majority community that we have abandoned our responsibility to protect the rights and needs of the vast majority of people who are law abiding and do not expect the police to have a political agenda. We should surely, in any case, await the recommendations of the commission. That is the only way at this stage to ensure, as the Government's own principles of policing and, indeed, the Belfast agreement state, that the police remain free from partisan political control. It may not be easy politically once we classify something as "reserved", not "excepted", to take it back into the "excepted" group. That would be regarded as a major political decision. While it will always be possible, if the situation becomes more settled and more favourable, and depending on the recommendations of the commission, to relax control through devolution, meanwhile I strongly urge that we should retain those powers as a prime responsibility of the British Government.

4.15 p.m.

Lord Molyneaux of Killead

My Lords, I would have been inclined to agree with the noble Lord, Lord Glentoran, had we been in a situation similar to that in which his late father or my noble friend Lord McConnell served. People can say that the administration in those days may have had its faults, but then all administrations have their faults, some more than others. The problem as I see it is that in the present circumstances, under the auspices of this Bill, we shall not have an "administration" as we understand it here in Westminster. It is not just a temporary coalition; it is a permanent structure depending entirely on a kind of points system which will be only marginally affected by a general election. I shall not go into the problems of how certain parties fight elections or of how they would ever draft a manifesto to appeal to the public to get themselves elected. That is a matter for another day.

However, I imagine—my noble friend Lord McConnell will correct me if I am wrong—that in the days before the abolition of Stormont, the general officer commanding could act in support of the civil power, being the Stormont government and its various echelons and layers of administration, secure in the knowledge that that was a stable administration co-operating and consulting continuously with the sovereign government—that is, the Parliament at Westminster. There will not be such a guarantee now. I am not certain how many parties will end up in the new Executive when it is formed. The number will probably run into double figures. There will be no unity of purpose and no stability in the sense of decision-making on matters such as supporting the civil power.

If we do anything other than what has been suggested by the noble Lord, Lord Cope, I should not like to be in the shoes of any GOC (Northern Ireland) or even in those of the Chief Constable of Northern Ireland.

Lord Elton

My Lords, I wonder whether the Minister will lay to rest a shadow of a doubt raised by the intervention of my noble friend Lord Glentoran. As I understand it, the effect of the amendment would not be to transfer the authority in the Bill over the forces out of civilian hands, but merely to change them from civilian hands in Belfast to hands at Westminster. If that is the case, it seems to me that everything that has been said about stability and clarity of vision in support of the amendment must stand. The only question that remains is whether, at some future longed-for date when the political situation in Belfast returns to being stable, it will be possible also to return that authority there. Until then, I agree with my noble friend Lord Cope that it is not timely to do so.

Lord Dubs

My Lords, I am grateful for the support that I received from the noble Lord, Lord Glentoran. I hope that I shall be able to persuade the rest of your Lordships who feel inclined to support the amendment not to do so.

Over the years the security situation in Northern Ireland has required membership of the Armed Forces of the Crown to work alongside and in support of the Royal Ulster Constabulary to maintain public order. Public order legislation for Northern Ireland confers powers, authorities, privileges and immunities on those persons charged with carrying out functions under that legislation. That means both members of the Armed Fores of the Crown and members of the RUC. I wish to make it clear that public order legislation is a reserved matter under the Bill. So is the Royal Ulster Constabulary. The Bill provides for the Armed Forces of the Crown to be a reserved matter only in respect of their public order role. It ensures that for all other purposes the Armed Forces are an excepted matter.

Therefore, in reply to the question posed by the noble Lord, Lord Cope, and others, this is not about who controls the Armed Forces. They remain under the control of the United Kingdom Government. It is about whether the Assembly, in legislating on public order matters generally, can grant similar powers to the police and the Army. That would seem sensible in a situation where the Army may yet be called upon to support the RUC. However, any such legislation will be subject to the consent of the Secretary of State and of Parliament. So we are not changing the civilian control of the Armed Forces. Nor does the Bill change who controls the Armed Forces. Whether reserved or excepted, they remain under the control of this Government. I hope that I have made it clear that this is an important and necessary distinction. We believe it is right to ensure that public order issues are dealt with consistently. We believe that this matter should be in the reserved field. I therefore ask the noble Lord not to proceed with his amendment.

Lord Cope of Berkeley

My Lords, this short debate has helped to clarify matters somewhat. As the Minister said, this is not about who controls the Armed Forces. He is right; I accept that. That includes the allocation of tasks, etcetera, that the Armed Forces may take on in future. That ultimately remains under the civilian control of Whitehall and Westminster, although obviously on the ground the Armed Forces will be in support of the civil power. That is to say, the Chief Constable is responsible for the maintenance of public order and uses the Armed Forces as he believes they are required, subject to the Armed Forces agreeing to the tasks allocated to them.

The amendment merely relates to who legislates for the powers of the Armed Forces when they are so occupied. It is still my belief that the Armed Forces should have the same powers wherever they are in the United Kingdom in respect of public order duties. But at least, as the Minister said, the Secretary of State and Parliament will continue to control the situation for the time being and possibly for longer than we think. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 139:

Page 54, line 15, leave out ("to this Act").

The noble Lord said: My Lords, this amendment and Amendment No. 156, which is grouped with it, are purely drafting points. They remove the words, "to this Act", from two references to other provisions of the Bill. I beg to move.

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 140:

Page 55, line 14, at end insert—

(" . Fiscal, economic and monetary policy.").

The noble Lord said: My Lords, I am in no doubt that the Government intend that fiscal, economic and monetary policy should remain solely in the hands of the Westminster Parliament and the Whitehall administration rather than passing into the hands of the Northern Ireland administration and legislative authorities. However, I am not entirely clear that the Bill succeeds in that.

My amendment is picked up entirely from the Scotland Bill. I accept, as the Minister said earlier in more general remarks about Schedules 2 and 3, that there are differences in the construction of the two Bills which lead to differences in the wording between them. I accept also that there are other provisions in the Bill that deal specifically with the matter of taxes; that is to say, fiscal affairs in practice. However, there are also provisions in the Bill dealing, for example, with banking supervision which is part of the practical application of monetary policy. There are also provisions relating to public expenditure, which is a large component of economic policy. It may therefore be desirable to insert these words into the Bill to ensure that the primacy of Whitehall and Westminster is made absolutely clear on the face of the Bill in these very important central matters. I do not need to emphasise their importance. It is obvious to all. I beg to move.

Lord Dubs

My Lords, the noble Lord's amendment would add to the list of excepted matters in Schedule 2 "fiscal, economic and monetary policy". The amendment is partially based on the reservation in the Scotland Bill. In the Scotland Bill, there is an exception from the reservation in respect of local taxes to fund local authority expenditure, which would of course also be a transferred matter for Northern Ireland. In the Northern Ireland context, however, we do not believe the amendment to be appropriate. However, although we take a different approach, I can assure the noble Lord that the outcome is broadly the same.

As I have said previously, the starting points for the Northern Ireland Bill and the Scotland Bill are quite different. The Scotland Bill starts with a clean sheet whereas in the case of Northern Ireland we are building on a legal foundation going back to 1921. In respect of the matters in Schedules 2 and 3, we take the 1973 Act as our starting-point. The 1973 Act does not make specific reference to "fiscal, economic and monetary policy". A change in this approach would run the risk of throwing up a number of uncertainties.

The Bill does, however, like the 1973 Act, make it clear that the instruments of fiscal and monetary policy are specifically excepted. In Schedule 2 taxes and duties are excepted matters. Coinage, legal tender and banknotes are also excepted matters. This makes it clear that the Assembly will not have control of these matters.

Economic policy, however, is very wide and while some aspects are excepted, others are reserved or transferred. For example, international relations and relations with the European Union are excepted, and the Assembly will not therefore have control over exchange rates or the single currency. Financial services and markets are broadly reserved, reflecting historical factors and the relationship between these matters and commercial interests. And some other issues which fall under the heading of economic policy are clearly transferred—such as the promotion of Northern Ireland's trade and the IDB, and the setting of regional rates.

As this explanation demonstrates, the amendment is not necessary as the effect is achieved but in a different way. I therefore invite the noble Lord to withdraw his amendment.

Lord Cope of Berkeley

My Lords, as I slightly expected and to a degree hinted at in what I said in moving the amendment, the practical application of the matters is covered in other places, as the Minister said. His reply demonstrates the wider fact that the three devolutions being carried out at the moment for Northern Ireland, Scotland and Wales are being conducted in a totally different manner in each case. That leads to an extremely muddled constitutional situation. The variations in the wording of the three Bills demonstrates the difference and the confusion as much as the policy which lies behind the way in which the different responsibilities are being devolved.

However, in the light of the Minister's reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Lord Cope of Berkeley moved Amendment No. 141:

Page 55, line 15, at end insert—

(" . Postage stamps.").

The noble Lord said: My Lords, this amendment relates to a specific small matter. At Committee stage we had a debate as to whether the management of the Post Office should be an excepted matter, for all time the responsibility of Whitehall and Westminster, or whether it should be a matter which was in the reserved category.

The debate is concerned with whether the design and arrangements for postage stamps should be a matter in which the Northern Ireland Assembly could become involved or whether it should be totally the responsibility of Westminster. I believe—hence the amendment—that postage stamps are a central matter which should be controlled centrally. The provision before the one relating to the amendment is provided by the Government to control bank notes centrally. There are Northern Ireland bank notes with different designs which are issued by the banks in Northern Ireland, as in Scotland, but under the control of the Bank of England's own arrangements as to design. The Government are wisely continuing to control the design of bank notes as well as their issue, as I understand it, by the provision in Schedule 2 immediately before this one. They should do the same with postage stamps.

Another point relates to the future of the Post Office more widely. At Question Time on Monday we heard that consultations on that are eventually reaching a conclusion so that in future the control of postage stamps may change within the United Kingdom. I expressed the view in Committee, and adhere to it, that the idea of the Northern Ireland Assembly discussing what devices Northern Ireland postage stamps should have—whether they should continue to have the Queen's head, for example—would be an extremely difficult matter for the Assembly to handle in its present form.

All in all, it seems to me best, both for the control of the postal service and the universality which the Government claim to want for the postal service, that postage stamps should at the least remain an excepted matter. I beg to move.

Lord Molyneaux of Killead

My Lords, the noble Lord, Lord Cope, will remember that five years ago we came within an ace of having post offices privatised. That was resisted by those of us who represent Northern Ireland because we felt that inevitably the post offices would be sold off, particularly in the rural areas. They might even be reduced to a delivery twice a week. There were real fears over that. As the noble Lord said, it is a different matter with postage stamps. I agree with him that we ought to have a common postage stamp throughout the United Kingdom.

I am less confident about bank notes, although they are not the subject of the debate. Noble Lords will know that, if they visit Northern Ireland and return with some of the rather exotic designs of bank notes we have over there, although the bank notes are claimed to be legal tender here in England the average tradesman will regard them as funny money and invite people to get them changed into sterling. We do not want to fall into that trap with a variation in designs and colours.

Lord McConnell

My Lords, I support the idea that postage stamps are a matter which should be decided at Westminster and not by the Assembly. I can imagine no more fruitful source of disagreement than for the Assembly to start arguing as to what should be on postage stamps. There are enough matters for them to argue about; there is enough potential for dispute without adding this. Postage stamps should remain a subject for Westminster.

Lord Elton

My Lords, I am drawn to my feet because it is such an obvious and powerful point that I hope the Minister will take it on board.

Lord Dubs

My Lords, your Lordships will recall the debate in Committee to which the noble Lord, Lord Cope, referred about the Government's general approach to Schedules 2 and 3. As I said at the time, our starting point in relation to the divisions between the excepted and the reserved fields has been the divisions in the 1973 Act. A number of factors have led us to prefer the reserved field, where a decision has been required, given the flexibility which the reserved field provides, as well as the important control of it depending on the Secretary of State's consent. The noble Lord's amendment would single out "postage stamps" from the reservation in Schedule 3 of the Post Office, posts and postal services and make them an excepted matter.

Against the background of the broad interpretation on which Schedules 2 and 3 rely, I would resist any attempts to split up matters which are clearly interrelated, such as postal services and postage stamps. We consider it appropriate that these matters should be listed together.

In Committee, I said that it was not the Government's intention that the Assembly should legislate about postage stamps. This is presumably one of the factors behind the noble Lord's amendment. As I recall, the noble Lord was particularly concerned about the Assembly's power to change the design of postage stamps. He referred to that point a few moments ago. While we have not had any indications of the Assembly wanting to give any attention to this matter, I think it would be wrong for me to rule out the possibility of its taking an interest at some stage in the future. There are of course already different designs for postage stamps from Northern Ireland, Scotland and Wales, and the Assembly might want to make suggestions as to what the Northern Ireland element of the stamp should be. It would not however be free to legislate about the designs unless the Secretary of State's consent was obtained. I hope that with that assurance the noble Lord will feel able to withdraw his amendment.

Lord Cope of Berkeley

My Lords, the Assembly will therefore be able to discuss the matter—which is what some of us worry about—but it will not be able to legislate about it without the Secretary of State's consent. I took that as at least a broad hint that this is one of the reserved matters which is never likely to be transferred in the future. It could perhaps be inferred from the remark of one of the Minister's colleagues on Monday that the Government wanted and intended to continue a universal postal service throughout the United Kingdom, as indeed they should.

It has become obvious in the course of our debates that some of the reserved matters will never be transferred, so it should not come as a surprise to us that this may be one of them. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 142:

Page 55, line 15, at end insert—

(" . Regulation of the following—

1. (a) building societies;
2. (b) banking;
3. (c) friendly societies and other societies to which the Friendly Societies Act 1974 applies.

. Regulation of the following—

1. (a) investment business, the official listing of securities and offers of unlisted securities;
2. (b) the transfer of securities;
3. (c) insider dealing.").

The noble Lord said: My Lords, I beg to move Amendment No. 142. This amendment deals with the regulation of building societies, banking, friendly societies, investment business, the transfer of securities and insider dealing. This may be another example of subjects that remain on the reserved list and will never be transferred to the Northern Ireland Assembly, at least as far as concerns present intentions. They are very important matters. If a single market is to be maintained, as the Minister told the House yesterday, it is important that regulation throughout all parts of the UK should be the same. If banks, friendly societies, building societies and so on are to operate all over the United Kingdom it would be much easier for them to do so on the same basis.

As to investment business, in seeking to generate inward investment it is important that regulation is based on Westminster and Whitehall and not transferred to Northern Ireland, and that there are not different arrangements for the listing and offering of securities in Northern Ireland from the rest of the United Kingdom.

Insider dealing speaks for itself. Given the rackets that have taken place in Northern Ireland and some of the difficulties that have arisen in the financial field because of the existence of strong paramilitary forces, insider dealing should also be controlled on a uniform basis throughout the United Kingdom for the foreseeable future. That is the argument for transferring it to the excepted list instead of leaving it among the reserved categories, as the Bill does at present.

Lord Dubs

My Lords, the noble Lord's amendment would move a number of matters concerned with the regulation of financial markets and consumer services from the reserved to the excepted field. The noble Lord will not be surprised to know that I cannot accept the amendment. As I have said before both in Committee and this afternoon, there are a number of reasons why, where a decision is required, we have preferred to keep matters in the reserved field rather than except them. I do not take issue with the noble Lord that the regulation of banking, building societies and the like should be on a UK-wide basis but to reserve these matters does not preclude or restrict that in any way as he conceded.

On the other hand it permits flexibility. There may be times, in circumstances that we may not at this moment be able to foresee, when it may be useful for the Assembly to be able to legislate on some of these matters, or at least on the margins of these matters. By keeping matters in the reserved field we keep open the possibility of the Assembly being able to legislate but at the same time we retain control by way of the need for the Secretary of State's consent.

Lord Cope of Berkeley

My Lords, the Minister appeared to say that he sought a uniform system throughout the United Kingdom but wanted to make provision for it to be different. I am not sure that the two halves of his speech entirely joined up. However, I shall not press the amendment at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Lord Cope of Berkeley moved Amendment No. 143:

Page 55, line 17, at end insert—

(" . Intellectual property.").

The noble Lord said: My Lords, I beg to move Amendment No. 143. This amendment is related to patents, copyrights and such matters that are covered by the general term "intellectual property". It is extremely important for the functioning of markets that patents and copyrights should be as universal as possible. The whole history of legislation and international treaties on these matters over many years has proceeded in that direction. But here one is providing the opportunity in the future, if the Bill is not modified, for patent, copyright and other similar law in Northern Ireland to be different from the rest of the United Kingdom. I do not believe that to be desirable in the interests of the United Kingdom as a whole; nor is it in the interests of Northern Ireland. The encouragement of investment and such activities requires the application of a consistent law throughout the United Kingdom so that a patent once granted in one part of the United Kingdom is immediately recognised and enforceable in another. What is true of patents is true also of other intellectual property.

I do not believe it is desirable that the Assembly and the Executive should potentially have this power. The noble Lord may say that this is another of those matters in the list which will never be given to it. If a lot of these matters are to be in the reserved list but will never go to the Assembly, potential problems may arise. The Assembly may say that it would like a matter to be transferred to it but it had been refused. If matters that are never intended to be transferred are put into the excepted category everyone will know where they stand and there will be less chance of mounting an argument of that kind. However, the specific argument here involves intellectual property.

Lord Dubs

My Lords, I am well aware that the noble Lord has moved a number of amendments to which I have given the same answers. However, I shall try to vary my response. His amendment would move intellectual property from the reserved to the excepted field. This includes matters such as trade mark, copyright and patent laws. All of those matters were reserved in the 1973 Act. In the main they have been taken forward on a UK-wide basis. Keeping these matters in the reserved category does not mean that the UK-wide approach could or would not be maintained. There are many matters in the transferred field which have been dealt with on a UK-wide basis over the years and there is no reason why such arrangements cannot continue.

However, as I have already mentioned today, where matters were reserved in 1973 we have a preference for keeping them in that category in this Bill. This gives us added flexibility, which I would not want to rule out. For example, there might be occasions where the subject matter of proposed legislation would be partly in the transferred field and partly in the reserved field. In such cases the Assembly would, with the Secretary of State's consent, be able to deal with the matter. I see this as having a bearing on the matter of intellectual property and therefore I resist moving it to the excepted field.

Lord Cope of Berkeley

My Lords, as the Minister has said he has given much the same answer on a number of occasions. However, the answer that he has just given was slightly different. He said that there might be matters that fell partly in the transferred field and partly in the reserved field and it might therefore be necessary for Northern Ireland legislation to deal with such matters. I understood that if a matter was ancillary to an excepted matter—I do not quote the exact words used in the Bill—it could nevertheless be dealt with in Northern Ireland legislation with the permission of the Secretary of State. I believe that that would cover a case where a matter might be excepted legislation which could nevertheless be dealt with, but clearly the Minister is not of that view. In the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 144:

Page 55, line 32, at end insert—

(" . The provision of programme services within the meaning of the Broadcasting Act 1990.").

The noble Lord said: My Lords, I beg to move Amendment No. 144 which seeks to insert the following: The provision of programme services within the meaning of the Broadcasting Act 1990". Undoubtedly noble Lords will agree that this is a most important matter. The amendment proposes that this should be an excepted matter and that the control of programme services of one kind or another should remain with Westminster and Whitehall for as long as the Bill lasts rather than that they should be in the transferred category. The category has become a little more confused since we started our discussions. We now have sub-categories of matters which are in the reserved list but will never be transferred and those in the reserved list which it is expected will be transferred at some time.

I am not sure whether it is intended to keep the provision of programme services in the reserved category for a long time in the future, or whether it is one of the matters that the Government have in mind should be transferred to the Northern Ireland jurisdiction in the foreseeable future if all goes smoothly. Perhaps we may receive some enlightenment on that in the Minister's reply.

Lord Dubs

My Lords, the effect of the amendment would be to move broadcasting from the reserved field to the excepted field. Broadcasting was a reserved matter under the 1973 Act. As I have said before, the division of matters in the Bill between the excepted and reserved fields has been based very much on the 1973 Act.

As I have said also before, where a matter falls in the reserved field, that does not mean that it is necessarily envisaged as suitable for transfer. But the reserved field offers a much greater degree of flexibility than the excepted field, and that is an important factor in our consideration.

In respect of broadcasting, there may be some aspects where in the future the Northern Ireland Assembly will want to have some say, and we do not think that it would be appropriate to rule out this possibility by making it an excepted matter.

Lord Glentoran

My Lords, before the Minister sits down, perhaps I may raise one issue. I trust that the rules regarding political broadcasts will remain with Westminster.

Lord Dubs

My Lords, I understand that that is so.

Lord Cope of Berkeley

My Lords, this is another matter which is not regarded as suitable for transfer even in the future for the most part, although the Assembly may be allowed to have a small amount of influence on it.

Lord Dubs

My Lords, I am grateful to the noble Lord for giving way. He makes a number of assumptions about matters which I did not state. The noble Lord is entitled to make whatever assumptions he wishes, but I did not say whether or not a certain matter would be transferred, except where it is in the agreement. I do not want my silence to be taken as agreeing with the noble Lord. Hence I interrupt him.

Lord Cope of Berkeley

My Lords, I am grateful to the Minister for that interruption. I sought to be a little more specific about what the future was likely to be. However, the noble Lord wishes to leave it vague; and he is entitled to do so. If the noble Lord makes the same speech, so can I. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope moved Amendment No. 145:

Page 55, line 32, at end insert—

(" . Internet services; electronic encryption; the subject-matter of Part II of the Wireless Telegraphy Act 1949 (electromagnetic disturbance).").

The noble Lord said: My Lords, this is the last of this group of amendments which seeks to put matters into the excepted field. The amendment deals with the Internet services, electronic encryption and the Wireless Telegraphy Act.

The Internet is a growing field around the world. I find it an extremely useful facility in the limited amount of use that I make of it. I have no experience of electronic encryption, but I have no doubt that that too is valuable. We should encourage the universality of Internet services in particular and the other matters covered in the amendment because they are such a valuable tool for mankind. If we do not have the same rules throughout the United Kingdom, there is even less chance of having the same rules internationally. Yet without international rules those services will not be able to flourish to the benefit of mankind as they have the potential to do.

It is not sensible to provide for the possibility of different and separate legislation, and so on, on matters of this kind in Northern Ireland compared with the whole of the United Kingdom. That is the argument for having these matters in the excepted category. I beg to move.

Lord Dubs

My Lords, as noble Lords will have noted from my comments, there are a number of matters which the Government have preferred to keep in the reserved field in order to retain a greater degree of flexibility. The matters of Internet services, electronic encryption and electro-magnetic disturbance are among them.

These are matters of developing technology and we do not know with any certainty how they will develop over future years and decades. There are commercial aspects to them on which it might at some future stage be appropriate for the Assembly to be able to legislate—even if only at the fringes.

It is for that reason, and against the possibility of circumstances as yet unforeseen, that we consider it important to keep that flexibility. I ask the noble Lord to withdraw the amendment.

Lord Cope of Berkeley

My Lords, I understand the need for flexibility, as the Minister expresses it. However, I do not think that it is as appropriate to the provision of Internet services and the other matters dealt with by the amendment, as in many other cases. However, the Government have had to make their decision. I do not propose to challenge it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 146:

Page 55, line 38, at end insert—

(". Regulation of activities in outer space.").

The noble Lord said: My Lords, in moving Amendment No. 146, I wish to speak also to Amendment No. 164. These amendments move the regulation of activities in outer space from Schedule 3 to Schedule 2 making it an excepted matter. That fulfils the commitment I gave to the noble Lord, Lord Cope, in Committee.

As I said in Committee, we agree with your Lordships that this should be a matter for Westminster alone and have no difficulty in putting it in the excepted field. I beg to move.

Lord Cope of Berkeley

My Lords, I am grateful to the Minister for agreeing that at least this matter should be transferred into the excepted category. It always seemed extremely unlikely that Northern Ireland would have its own space programme separate from the rest of the United Kingdom or that it would wish to have a different regime applying in outer space above Northern Ireland compared with that above the remainder of the United Kingdom. I was always astonished that the provision was in Schedule 3 as opposed to Schedule 2. I am grateful to the Minister for agreeing that and for moving it to a more appropriate category.

Lord Goodhart

My Lords, I welcome the amendment. It would have been absurd to leave the issue as a reserved and therefore potentially transferred matter. There is no such thing as a Northern Ireland zone in outer space compared with the Northern Ireland zone at sea. In so far as it is possible to regulate activities in outer space, it will almost inevitably be through international treaties. Therefore there would have been a potential conflict between Schedules 2 and 3 if the matter had remained in Schedule 3.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 147:

Page 55, line 44, leave out ("20, 21(2) and (3)") and insert (" 18, 20, 21(2) to (4)").

The noble Lord said: My Lords, Amendments Nos. 147 to 151 and 165 to 167 represent a further modification which I suggested at Committee stage might be needed in the detail of which particular provisions of the Bill are designated as excepted and reserved matters. As I indicated before, we intend that the main provisions of the Bill, reflecting as they do the agreement, should be excepted so that they are beyond substantive change by the Assembly. If the Assembly wishes to propose changes, it may do so, and in particular the agreement makes a number of provisions about reviews in the course of which it might do so.

However, there are some provisions which we think should be reserved or even transferred. They are not central to the agreement. Sometimes that is also necessary in order to avoid inadvertently preventing the Assembly from acting perfectly legitimately.

Amendment No. 147, with Amendment No. 165, moves the provisions on the executive committee from the excepted to the reserved field. This move is dictated by the technical reasons I referred to. It would permit the Assembly to confer functions on the Committee. That seems to us welcome flexibility.

Amendments No. 150 and No. 167 move the matter of unlawful oaths substantially into the reserved field. Since legislation on oaths is itself a reserved matter under the terms of the Bill, and since existing legislation, which the Assembly might perfectly legitimately wish to modify, refers to oaths, it seems to us that there is no reason to deny it flexibility to do so, subject to the safeguards associated with reserved status.

Amendment No. 166 omits several matters from the reserved field, notably the Assembly commission. Since the composition and functions of the commission are in large part in any event left to the Assembly to define, and its composition is regulated by standing orders, and since the commission is not an institution provided for by the agreement but a filling out of the mechanics, it seemed to us right to leave the Assembly free to make its own dispositions in this area if it wished. In doing so it will of course be subject to the safeguards of Assembly procedure, especially the petition of concern mechanism.

We have also proposed in Amendments Nos. 148 and 149 excluding from the excepted field certain provisions on members' interests and audit. Were they to be included, any substantive legislation by the Assembly in those areas would be impossible. The same logic applies to the treatment of the clauses on legislative proposals to remedy ultra vires acts and interpretation of Assembly Acts in Amendment No. 151. I beg to move.

5 p.m.

Lord Cope of Berkeley

My Lords, I agree with the general thrust of what the Minister said about the amendments and I support them. However, I did not follow his final remarks. Amendment No. 149, which deals with financial control, accounts and audit, excepts such matters from the provisions of the clause; in other words, they become transferred matters rather than reserved matters. It allows the Assembly control of its own audit.

Some of the amendments which we debated yesterday increased the powers of the Assembly over the Comptroller and Auditor General and that is correct. However, Amendment No. 151 refers to the legislative power to remedy ultra vires acts and appears to prevent the Assembly from tinkering with those powers. Those amendments move in opposite directions. Amendment No. 149 gives the Assembly greater powers, while Amendment No. 151 limits its powers in the matter to which it refers. Both those proposals are right, but I was not sure that that was what the Minister was saying.

Lord Dubs

My Lords, it is our intention that the provisions of the Bill should not be open to change by the Assembly. That is also the case with ultra vires acts. That probably explains why we have taken such a path. Our debate yesterday on audit safeguards related to a different issue; the wider audit control of the work of the Northern Ireland departments. Here we are talking, for example, about members' interests and so forth. There is a logic in our approach to the issue.

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 148 to 151:

Page 55, line 45, leave out (" 41(7)") and insert (" 41").

Page 55, line 47, leave out ("section 55(1)") and insert ("sections 55(1) and (Financial control, accounts and audit)").

Page 56, line 1, leave out ("and 71") and insert (", 71 and 73").

Page 56, line 2, after ("77") insert (", (Legislative power to remedy ultra vires acts) and (Interpretation of Acts of the Assembly etc.)").

On Question, amendments agreed to.

Schedule 3 [Reserved matters]:

[Amendment No. 152 not moved.]

Lord Molyneaux of Killead moved Amendment No. 153:

Page 56, line 29, at end insert (", but not the law relating to abortion").

The noble Lord said: My Lords, in Committee on 27th October I explained that the Government's decision to withhold powers relating to abortion from the Scottish and Northern Ireland parliaments was of great concern to a much wider swathe of the electorate than those concerned with the morale issue. The Government's position would have been more easily defended had they not allocated powers over euthanasia to both the Scottish parliament and the Northern Ireland Assembly. One must ask why the two devolved structures should be entrusted with authority over one form of killing but not over another.

In Committee, I drew attention to the debate on the Scotland Bill on 27th July 1998 in which the Scottish Office Minister, the noble Lord, Lord Sewel, reminded us that abortion had been placed in the list of reserved matters. He then added significantly that the reserved matters: can be reviewed by agreement between the two parliaments".— [Official Report, 27/7/98; col. 1305.] I thought that that was encouraging; it was a start.

Those words encouraged me to withdraw my amendment and with the benefit of hindsight that was a wise decision. In the interval, your Lordships returned to the Scotland Bill on Report. On the fourth day we debated the contradiction inherent in the Government's efforts to grant the Scottish parliament the power to legislate on euthanasia but not on abortion. Winding up for the Government on that occasion, the noble Lord, Lord Sewel, accepted that the Government had to make their case, adding these significant words which transformed my view entirely: That case [the Government's] can be made briefly, but powerfully and persuasively. It is simply this. If in the future there were to be a considerable difference in the abortion law north and south of the Border and that in itself produced a significant cross-Border trade of women seeking abortion, that would be regarded as offensive by public opinion. That is the case that I make. It is the case upon which I rely".—[Official Report, 3/11/98; col. 212.]

The Government's problem is the land frontier in the case of Scotland: an open border and in most cases an unmarked border. But that demolishes the same Government's arguments against my proposal in Committee with regard to the Northern Ireland Assembly. The Irish Sea is regarded by some and deplored by others but it is there and we cannot ignore that. Crossings of the Irish Sea are controlled, admittedly for a different purpose. But at the port of entry and at the airport of entry one has an obligation to have in one's possession a document of identity.

Even if we eventually have a real ceasefire, there will be a continuing need for those controls to exist between the island of Ireland, north and south, and the island of Great Britain. Those powers will remain necessary to eliminate the flourishing drugs trade between the two islands. Alas, I regret to say that on the other island it is centred mainly on Dublin; and that is no criticism of the Irish Republic.

Now that the Government have admitted that their case rests solely on the land frontier problem with Scotland, I trust that your Lordships may support my reasonable and balanced amendment. I beg to move.

Lord Stallard

My Lords, in the absence of my noble friend Lord Fitt, who I understand cannot be here because of a hospital appointment, I am more than happy to support the amendment moved by the noble Lord, Lord Molyneaux. I have no hesitation in agreeing with what he said about the need to leave the decisions in the hands of the Northern Ireland Assembly. In fact, the Government have said on more than one occasion this year in ministerial replies that they have no plans at present to extend the Abortion Act 1967 to Northern Ireland. They have said that umpteen times.

But this debate is not about abortion. It is about giving those people the right to decide the questions raised by this amendment. I do not wish to go into the details of the Abortion Act and so on. That is not what this is about. It is about leaving the right to decide that in the Northern Ireland situation. We know that strong opinions are held in Northern Ireland. I happen to agree with many of them. There are strong opinions there and the people should be allowed to discuss and decide on the issue themselves. That is why I support the amendment.

5.15 p.m.

Lord Alton of Liverpool

My Lords, on Second Reading and in Committee, I advanced a number of arguments in support of the amendment which the noble Lord, Lord Molyneaux, has placed before your Lordships' House today. It would be tedious to reiterate arguments which your Lordships have already heard.

What can be said in addition to those arguments already deployed? First, there is a reference in a letter from the noble Lord, Lord Dubs, who has gone out of his way to be extremely helpful and patient in dealing with the questions which arose in Committee. That letter is dated 9th November. It contains a reiteration of the remarks he made in Committee and states: We have no intention of foisting unwanted change on the law on this matter upon the people of Northern Ireland". I welcome that statement.

On 26th October a letter was issued by Matthew Ellesmere of the Constitutional and Political Division of the Northern Ireland Office in response to a letter from a Mrs. McCann of Dumbartonshire. In his letter he went even further. He said: In such circumstances the Government recognises that any change to the law should only come about at the request of a broad cross-section of the people who live there. I hope that this will reassure you that the Government has no intention of forcing any change on the people of Northern Ireland and will continue to honour their wishes in this matter". It is important to put those statements on the record because there is a sustained and determined campaign, especially in another place. As recently as in the past two weeks, a further Early Day Motion has been tabled calling for changes in the law. Many Parliamentary Questions have been tabled. There is intense pressure by Members who would wish to use the Private Members' procedure to change the law over and above the heads of the elected politicians from Northern Ireland.

It would not have been necessary to have this debate today had the Government gone as far as reiterating what one might call the John Major principle. That was the principle which the former Prime Minister adumbrated to a cross-party group who went to see him during the life of the last parliament. He said that his government would not allow time for the law to be changed until the majority of politicians from Northern Ireland requested it. That seemed to me to be a perfectly proper position. He also said wryly that he was pleased to see such unanimity among the unionists, nationalists, Liberals, Conservatives and socialist representatives who went to see him that day. It is ironic, is it not, that we constantly berate people in Northern Ireland for a lack of consensus and for not perhaps co-operating with one another to the extent that they might do but on that issue, which unites the community, we are prepared, in many cases for politically correct reasons, to go over their heads and seek to impose from outside?

As the noble Lord, Lord Stallard, said to the House, this issue is not about whether we are in favour of or against abortion. The issue is about who should decide on that matter. We should not build further inconsistencies into our law. As the noble Lord, Lord Molyneaux, pointed out on the Scotland Bill, we have said that the Scottish parliament will decide on the issue of euthanasia but not on the issue of abortion. I find that inconsistency extraordinary. It would be far better to say that in the case of each devolved assembly, each alone will decide those crucial ethical questions.

They are grown-up people who can have those debates in their own communities. They do not need us to hold back those issues. After all, even the Government have conceded that this is a question which will be transferred ultimately to Northern Ireland if that is the wish of the Parliament there. Why do we not make a clean job of it now and take this issue away from the cut and thrust of Westminster politics and allow it to be decided in Northern Ireland, where cultural traditions may be different from some of the traditions which we have in England, but that is how it should be within these islands? If we are truthful and honest in our belief in favour of devolution, then we should be saying that such questions should be decided there and not merely on the basis of our own views about abortion here at Westminster.

For those reasons, I believe that this amendment is moderate and reasonable. It does not seek to open up the substantive question of abortion. It merely seeks a decision on the issue of where this matter should be concluded, whether it should be here or in Northern Ireland. I hope that the amendment will commend itself to your Lordships' House.

The Duke of Norfolk

My Lords, from these Benches, I should like to raise a voice that we feel very strongly on this subject and hope that the Government will accept the amendment. I shall not rehearse all that has been said. Some of us feel very strongly about abortion, and the Irish, both north and south, are perhaps more concerned about religious and ethical matters than we are in our country. It would be quite wrong for us not to allow them to decide that issue for themselves.

Lord Monson

My Lords, my noble friend Lord Molyneaux has made out a good logical case for his amendment. But as a libertarian I must approach the matter from a rather different angle.

I voted for abortion to be devolved to the Scottish parliament in the firm belief that in the end Scottish abortion law would turn out to be not very different from that prevailing in England and Wales. But, as we know, Northern Ireland is rather different. A number of noble Lords have stressed that already this afternoon.

There is a human rights aspect here. With the possible exception of Poland, nearly every country on the continent of Europe, be it mainly Catholic, mainly Protestant or mainly Orthodox, permits abortion up to the 12th week of pregnancy, subject to certain not-too-onerous restrictions; and possibly longer than 12 weeks in the case of rape victims.

Where pregnancy is further advanced, laws tend to vary quite sharply from country to country, understandably so, as different considerations then come into play—the viability of the foetus, the possibility of the foetus experiencing pain and so on. It then is no longer essentially a libertarian or human rights matter.

As regards the first stage of pregnancy, I believe that women in Northern Ireland, and indeed in the Republic of Ireland, are to some extent being deprived of the rights which are available to women in most other industrialised nations. It is therefore one of those fields where local majority opinion should not necessarily prevail over minority rights, and it may be that in the future—not immediately—the Westminster Parliament will decide that certain minimum rights in this sphere should prevail throughout the United Kingdom.

Lord Goodhart

My Lords, as in all matters concerned with abortion, my party has a free vote. Speaking for myself. I do not believe that it would be appropriate to transfer this matter alone when the whole of the rest of the criminal law, including the subject of euthanasia, remains a reserved matter.

Abortion is a particularly sensitive and emotive matter. It has the potential to inflame relationships between the communities in Northern Ireland and indeed between the Republic and Northern Ireland. I hope that matters will develop in a way in which the criminal law and abortion can be transferred in due course, but that time is not now.

I agree with the noble Lord, Lord Alton, that it would not be right to legislate for Northern Ireland on this issue without the consent of its people. That is not the same as saying that abortion should, at this stage, be a transferred matter. Treating abortion as a special case in a sense invites the Assembly to take up the issue with possibly damaging results. For that reason abortion is best placed as the Government placed it; that is, along with the rest of the criminal law as a reserved matter.

Lord Peston

My Lords, after a word of support for the Government, following on from what the noble Lord, Lord Goodhart, said, I am somewhat puzzled that noble Lords stated that they did not want to debate abortion and yet tabled an amendment on it. The Government are overwhelmingly right as a matter of principle not to devolve the criminal law to this Assembly. That is both the beginning and the end of the matter. I hope that my noble friend the Minister will not be remotely deflected by any of those arguments, which I find quite preposterous.

Lord Glentoran

My Lords, I remember the days when the right to legislate over abortion resided in Stormont. However, I have lived a long time in Northern Ireland. I have seen the stress and problems that can be caused through young women being unable to obtain abortions and would therefore love to see it legalised there.

However, as the noble Lord, Lord Monson, pointed out, the island of Northern Ireland and the Republic, sadly, is not an ordinary place. If the right to legislate over abortion was placed tomorrow in the new Assembly, it would cause untold difficulties. Nobody is sure in this House—certainly I am not—if there were to be a debate and a vote in the Assembly, what the result would be. Strong and divided feelings exist, not necessarily down the straight, religious-political divide that we are used to in Northern Ireland.

Much has been said on the subject. I have discussed it with a number of people and given it a considerable amount of thought. Because being reserved leaves the Government with considerable flexibility and because it will be easier at any stage for the Government to move it from the reserved to the transferred list rather than the other way round, the matter should be reserved. Also, were the Northern Ireland Assembly to legislate to legalise abortion in Northern Ireland, it would probably cause serious offence and be used as a tool to cause offence in Dublin whereas, if that were enacted here at some stage, it could be done in a more tactful and agreed manner.

To summarise, having given the matter much thought and having seen the hardships of living in a country where abortion is illegal; where young women have to catch a boat or a plane to the mainland—if they can afford it—and where those who cannot are left carrying a foetus or baby that they do not want, I believe that the Government are making the correct decision in keeping the right to legislate on abortion in Westminster.

The Earl of Perth

My Lords, I can be brief. Once again from the Cross-Benches I should like to support the amendment of my noble friend Lord Molyneaux. This is essentially a matter—I know it is extremely delicate—for the citizens of Northern Ireland. I cannot see any reason why we should not grant them the right, if they so wish, to choose what their own conscience dictates. In that connection we must remember that the fact that southern Ireland and Northern Ireland are one geographical whole is important.

Lord Cope of Berkeley

My Lords, first, I should say to the noble Lord, Lord Peston, that, as his noble friend Lord Stallard made clear at the beginning of the debate, the question before us is not what the law on abortion should be; it is whether it should be this Parliament or the Assembly who decides it.

But the question is even more complicated. It relates to who should decide the matter at this stage. The Government's view, as expressed in Committee, is that in due course the Assembly should be able to decide the law on abortion; but not now. Two considerations arise in that regard. The first is what happens in the meanwhile, while it is still Westminster's responsibility; the second is how it is affected by the agreement. The Government relied considerably on the agreement in pursuing their case.

The timing of when this matter should be transferred to Northern Ireland will be decided by other matters connected with the criminal law and the state of Northern Ireland generally—the police and so forth—not necessarily specifically to do with abortion. The timing is therefore uncertain; it has nothing to do with abortion and may be an extended period. But what happens in the meanwhile?

The Government have said they will not wish to do anything about the law on abortion in Northern Ireland without the consent of the people there. That seems to me a reason for transferring it, so that the people there can make the decision. Others have said that the law on abortion in Northern Ireland should be changed. In debates on the Scotland Bill Back-Benchers from both the Liberal Democrat Benches and the Government Benches have expressed the view that abortion law should be uniform throughout the United Kingdom; that is to say, in Northern Ireland as well as in Great Britain. That view is held by some Members of another place.

Therefore, there may be attempts—even if the Government do not necessarily wish for or indeed initiate such moves—to alter the law on abortion in Northern Ireland during the period in which Westminster remains responsible for it. Given the fact that the Government's view is that they should not alter the law or lend their weight to an alteration in the law without the agreement of the people of Northern Ireland, why not let the Assembly decide the matter now?

However, the Government have also said—I believe that the Minister made the point in Committee—that we must stick to the agreement. We understand that; it has been made clear to us during our debates on the various amendments. But at times the Minister has also departed from the agreement during our proceedings as a result of consultations which have been held with other people. Of course, we have not objected to that. Indeed, there has been continuous consultation with the parties. That is part of what has led to the 450 amendments which have been tabled during the course of our proceedings on the Bill. Some of them have brought the Bill closer to the agreement in detail, while others have been a reaction to further suggestions and have, in some cases, put more flesh on the bones of the agreement.

There is nothing specific in the agreement about abortion. There are references to the criminal law, but I do not know whether abortion was ever mentioned or discussed during the course of the negotiations which led to the Good Friday agreement. It would be helpful to know if abortion, although not specifically referred to in the agreement, was nevertheless in the minds of those who agreed to the Belfast agreement. It would also be helpful to know if the First Minister and Deputy First Minister or the Assembly parties have been consulted during the past few weeks about this matter, as they have been about so many other matters arising from the Bill.

It seems to me that the agreement in this case is not something which can be relied upon totally: first, because it is not mentioned in the agreement and, secondly, because we are not at this stage aware of the opinion of the various other parties to the agreement on the matter. In general, I stand by the statement of my right honourable friend John Major, which was read to your Lordships a few minutes ago. I believe it is right that the law on abortion should be the responsibility of the Assembly. Indeed, as the noble Lord from the Liberal Democrat Front Bench said, it is a matter upon which anyone is entitled to express his or her own opinion. For myself, I support the amendment.

5.30 p.m.

Lord Dubs

My Lords, let us be clear on the matter. As my noble friend Lord Stallard said when he spoke earlier, this debate is not about the merits or de-merits of abortion. Indeed, it would have been a quite different afternoon had that been the case. The debate is about where decisions on abortion should be taken in the immediate future as regards Northern Ireland; in other words, whether those decisions should be made in Westminster or Belfast.

I have consistently argued—the whole Government have argued—that we stand fully behind the Good Friday agreement. We have not, as the noble Lord, Lord Cope, suggested, departed from the agreement. Indeed, the whole thrust of our support for the Good Friday agreement can be seen in the fact that we have at every point referred to the agreement as being the basis on which this Bill and other government measures should be supported. The Good Friday agreement is the key to all of this. It is clear that the agreement says that criminal justice is one of the matters which is to be reserved for decision here at Westminster.

There is no doubt at all—indeed, no one has suggested otherwise—that abortion is part of the criminal law. Therefore, it follows that it would be a breach of the Good Friday agreement if we were to do other than have criminal justice and those matters as reserved matters for decision at Westminster. The amendment would have the consequence that the whole of the law on abortion in Northern Ireland would become a transferred matter. I said very clearly in Committee, and on other occasions, that the abortion law in Northern Ireland was a matter for the Belfast agreement because criminal law is currently reserved in Northern Ireland terms.

I have also said that, as and when it is deemed appropriate to do so, some reserved matters, which may include criminal justice matters, could be passed to the Assembly. That will have to be considered in the light of the reviews envisaged in the agreement. I should also make it clear that I cannot give any cast-iron guarantees about when such transfers might be made or what individual items might be part of any transfer of responsibility. Any change in the status of reserved or transferred matters can only be made under the Bill with the agreement of the Assembly, based on cross-community support, after the approval of an appropriate resolution in each House here at Westminster. Which matters precisely are transferred must be a matter for decision at the time.

In particular, I should like to re-emphasise what I said during the debate at Committee stage; namely, that our guiding principle should be adherence to the Belfast agreement. It is my deeply-held view that it would be wrong in the principal Bill giving practical effect to the agreement to diverge from what the agreement commits us to. While it makes provision for a possible transfer of abortion law to the transferred category in future, it does not commit the Government to carrying it forward now. I believe that that is the heart of the argument before us this afternoon.

Noble Lords referred to the situation in Scotland. I do not want to divert the debate to the Scotland Bill, except to say that the position there is quite different. Indeed, the 1967 reform does extend there. Therefore, the starting point for Scottish legislation is a different matter.

I have already given reassurances to the House that the Government have no intention of forcing change upon Northern Ireland in respect of the current abortion law; nor have they plans to bring forward legislative provision of any kind. We are, of course, aware that the situation is regarded as unsatisfactory by some while others are anxious to ensure that there is no change in Northern Ireland. We will continue to listen to local opinion in Northern Ireland but will not—and I stress the word "not"—move forward without consensus. Therefore, I urge noble Lords not to support the amendment. Indeed, I urge the noble Lord who moved it not to pursue the matter. As I said, we stand fully by the Good Friday agreement. That is the basis upon which I say to the noble Lord that his amendment is outside the agreement. Therefore, it is one that I urge him not to press.

Lord Molyneaux of Killead

My Lords, perhaps I may, first, say something to mitigate some of the fears of the noble Lord, Lord Glentoran, as regards the possibility of blood-letting if this matter were to be discussed on the floor of the Northern Ireland Assembly. I believe that the noble Lord would concede that the elections held for the Assembly produced a result not very different from that which was obtained the previous year in the general election for the House of Commons. On occasions, when Members representing Northern Ireland in another place were confronted with this issue, they unanimously and right across the political and religious divide voted roughly in line with my amendment. I hope that what I have said will do something to allay the noble Lord's fears. Indeed, whatever else may happen in the Assembly, that is not likely to happen.

I have been greatly encouraged by the volume of correspondence which I have received in the past two or three weeks since I first tabled the amendment. It has come from Church men and women representing all the main denominations in Northern Ireland. I venture, to say that, if one could have a vote in the shadow Assembly at present, that would reflect the volume of opinion expressed in the other place by the elected representatives. I do not believe that there is a great gap in the attitude of those who were elected to the House of Commons and those who were elected to the Assembly.

I join the noble Lord, Lord Alton, in his expression of appreciation for the helpful attitude of the Minister. We realise that he has his problems with the Good Friday agreement. It is rather interesting to note that the Government now appear to be using two entirely different reasons for withholding powers over abortion for Scotland and for Northern Ireland; indeed, there are two entirely different grounds on which they stand. However, that may be resolved in due course.

I trust that your Lordships will concede that I have sought to set this debate in a wider constitutional sphere. Most noble Lords have followed that course. I can see that the Minister does not find himself in a position to meet the desire of what I believe to be a large number of your Lordships. In those circumstances I feel compelled to test feeling in a Division.

5.41 p.m.

On Question, Whether the said amendment (No. 153) shall be agreed to?

Their Lordships divided: Contents, 104; Not-Contents, 160.

Division No. 1
CONTENTS
Aldington, L.	Lauderdale, E.
Alton of Liverpool, L. [Teller.]	Leigh, L.
Ampthill, L.	Liverpool, E.
Ashbourne, L.	Long, V.
Astor of Hever, L.	Longford, E.
Belhaven and Stenton, L.	McColl of Dulwich, L.
Berners, B.	McConnell, L.
Biffen, L.	Masham of Ilton, B.
Blatch, B.	Mayhew of Twysden, L.
Brabazon of Tara, L.	Mersey, V.
Braine of Wheatley, L.	Molyneaux of Killead, L.
Brentford, V.	Monteagle of Brandon, L.
Brougham and Vaux, L.	Mountevans, L.
Byford, B.	Mowbray and Stourton, L.
Campbell of Alloway, L.	Moyne, L.
Chesham, L.	Munster, E.
Chichester, Bp.	Napier and Ettrick, L.
Clanwilliam, E.	Newall, L.
Clark of Kempston, L.	Norfolk, D.
Cochrane of Cults, L.	Northesk, E.
Cope of Berkeley, L.	Nunburnholme, L.
Craigmyle, L.	Palmer, L.
Cranborne, V.	Patten, L.
Denbigh, E.	Pearson of Rannoch, L.
Denham, L.	Pender, L.
Dixon-Smith, L.	Perth, E.
Downshire, M.	Prior, L.
Dundee, E.	Rankeillour, L.
Effingham, E.	Rathcavan, L.
Elles, B.	Rawlinson of Ewell, L.
Elliott of Morpeth, L.	Renton, L.
Elton, L.	Saint Albans, D.
Fitt, L.	Saltoun of Abernethy, Ly.
Forte, L.	Seccombe, B.
Fraser of Carmyllie, L.	Shaw of Northstead, L.
Gainsborough, E.	Simon of Glaisdale, L.
Gardner of Parkes, B.	Southwell, Bp.
Gisborough, L.	Stallard, L. [Teller.]
Glenarthur, L.	Stoddart of Swindon, L.
Haddington, E.	Strathclyde, L.
Halsbury, E.	Swinfen, L.
Harding of Petherton, L.	Swinton, E.
Hayhoe, L.	Thomas of Gwydir, L.
Henley, L.	Vinson, L.
Home, E.	Vivian, L.
Hooper, B.	Waddington, L.
Hylton, L.	Weatherill, L.
Hylton-Foster, B.	Wigram, L.
Kenyon, L.	Wilcox, B.
Kilbracken, L.	Wise, L.
Knight of Collingtree, B.	Wynford, L.
Lang of Monkton, L.	Young, B.

NOT-CONTENTS
Acton, L.	Hunt of Kings Heath, L.
Addington, L.	Irvine of Lairg, L. [Lord Chancellor.]
Ahmed, L.
Alderdice, L.	Islwyn, L.
Allenby of Megiddo, V.	Jay of Paddington, B. [Lord Privy Seal]
Alli, L.
Amos, B.	Jopling, L.
Annan, L.	Judd, L.
Archer of Sandwell, L.	Kennedy of The Shaws, B.
Ashley of Stoke, L.	Kinnoull, E.
Bach, L.	Kintore, E.
Barnett, L.	Kirkhill, L.
Bassam of Brighton, L.	Linklater of Butterstone, B.
Blackstone, B.	Lockwood, B.
Blease, L.	Lofthouse of Pontefract, L.
Brightman, L.	Lovell-Davis, L.
Brooke of Alverthorpe, L.	McIntosh of Haringey, L. [Teller.]
Brooks of Tremorfa, L.
Carlisle, E.	Mackenzie of Framwellgate, L.
Carmichael of Kelvingrove, L.	Mackie of Benshie, L.
Carter, L. [Teller.]	McNair, L.
Chandos, V.	McNally, L.
Charteris of Amisfield, L.	Merlyn-Rees, L.
Chorley, L.	Milner of Leeds, L.
Christopher, L.	Mishcon, L.
Clarke of Hampstead, L.	Molloy, L.
Clement-Jones, L.	Monkswell, L.
Clinton-Davis, L.	Monson, L.
Cocks of Hartcliffe, L.	Montague of Oxford, L.
Craig of Radley, L.	Montgomery of Alamein, V.
Crawley, B.	Morris of Castle Morris, L.
Darcy de Knayth, B.	Morris of Manchester, L.
David, B.	Murray of Epping Forest, L.
Davies of Coity, L.	Newton of Braintree, L.
Dean of Beswick, L.	Nicol, B.
Desai, L.	Noel-Buxton, L.
Dholakia, L.	Northfield, L.
Dixon, L.	O'Cathain, B.
Dormand of Easington, L.	Park of Monmouth, B.
Dubs, L.	Paul, L.
Evans of Parkside, L.	Peston, L.
Evans of Watford, L.	Phillips of Sudbury, L.
Ewing of Kirkford, L.	Pitkeathley, B.
Falconer of Thoroton, L.	Ponsonby of Shulbrede, L.
Farrington of Ribbleton, B.	Prys-Davies, L.
Flather, B.	Puttnam, L.
Gallacher, L.	Ramsay of Cartvale, B.
Garel-Jones, L.	Randall of St. Budeaux, L.
Geraint, L.	Razzall, L.
Gilbert, L.	Rea, L.
Glanusk, L.	Rendell of Babergh, B.
Glenamara, L.	Richard, L.
Glentoran, L.	Rodgers of Quarry Bank, L.
Goodhart, L.	Rogers of Riverside, L.
Gordon of Strathblane, L.	Rotherwick, L.
Goudie, B.	Russell, E.
Gould of Potternewton, B.	Sainsbury of Turville, L.
Graham of Edmonton, L.	Sandwich, E.
Gray of Contin, L.	Sawyer, L.
Grenfell, L.	Scotland of Asthal, B.
Grey, E.	Sewel, L.
Hacking, L.	Shannon, E.
Hampton, L.	Sharples, B.
Hanworth, V.	Shepherd, L.
Hardie, L.	Simon, V.
Hardy of Wath, L.	Simon of Highbury, L.
Harris of Greenwich, L.	Slim, V.
Harris of Haringey, L.	Smith of Gilmorehill, B.
Haskel, L.	Strabolgi, L.
Hayman, B.	Symons of Vernham Dean, B.
Hilton of Eggardon, B.	Taverne, L.
Hogg of Cumbernauld, L.	Taylor of Blackburn, L.
Hollis of Heigham, B.	Tenby, V.
Hoyle, L	Thomas of Gresford, L.
Hughes of Woodside, L.	Thomas of Walliswood, B.

Thomson of Monifieth, L.	Walker of Doncaster, L.
Thornton, B.	Warnock, B.
Tordoff, L.	Westbury, L.
	Whitty, L.
Turner of Camden, B.	Wigoder, L.
Uddin, B.	Williams of Mostyn, L.
Varley, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.50 p.m.

[Amendments Nos. 154 and 155 not moved.]

Lord Dubs moved Amendment No. 156:

Page 57, line 34, leave out ("to this Act").

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 157:

Page 57, line 34, at end insert—

(". The subject-matter of the National Minimum Wage Act 1998.").

The noble Lord said: My Lords, although this amendment has already been dealt with, I understand that the noble Lord, Lord Cope of Berkeley, would like to develop the argument. I would therefore like to reserve my position to speak when he has done so.

Lord Cope of Berkeley

My Lords, the Minister is very kind to give me the opportunity. I did not particularly seek it. This amendment reserves the minimum wage to Westminster, for the time being at any rate. It is part of the single market that such restrictions, if they are to exist, should take place right across the United Kingdom.

The contrary argument is that in areas of highest unemployment and greatest economic difficulty, such regulations do the greatest damage. Given that the wage levels and so on in the more difficult areas of any country, including Northern Ireland within the United Kingdom, are likely to be lower than they are elsewhere—and that this helps the region to do better than it otherwise would—it is dubious whether the minimum wage should extend in exactly the same form across the whole United Kingdom. But that is what the amendment seeks to achieve. The Minister will obviously do his best to make the case for a single minimum wage across the United Kingdom in support of this amendment. I have some reservations about it, but I will leave it to the Minister.

Lord Dubs

My Lords, I did not want to take the noble Lord, Lord Cope of Berkeley, unawares. From what he said yesterday I understood that he wanted to have time to reflect upon this particular amendment, and it is only right to give him the opportunity to have his say.

This amendment makes the subject matter of the National Minimum Wage Act 1998 a reserved matter. We debated the matter yesterday, together with an amendment to allow the Northern Ireland Assembly to legislate 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 that workers across the United Kingdom 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. It is therefore right that the National Minimum Wage Act should be a reserved matter.

In framing in this Bill the reservation of the National Minimum Wage Act, however, we have also 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 universal approach of the National Minimum Wage Act. We have done this by proposing an amendment, which we discussed yesterday, 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.

On Question, amendment agreed to.

[Amendment No. 158 not moved.]

Lord Dubs moved Amendment No. 159:

Page 57, line 40, leave out from beginning to end of line 2 on page 58 and insert—

(" . The following matters—

1. (a) financial services, including investment business, banking and deposit-taking, collective investment schemes and insurance;
2. (b) financial markets, including listing and public offers of securities and investments, transfer of securities and insider dealing.

This paragraph does not include the subject-matter of—

1. (a) the Industrial and Provident Societies Act (Northern Ireland) 1969;
2. (b) the Credit Unions (Northern Ireland) Order 1985;
3. (c) the Companies (Northern Ireland) Order 1986;
4. (d) the Insolvency (Northern Ireland) Order 1989;
5. (e) the Companies (Northern Ireland) Order 1990;
6. (f) the Companies (No.2) (Northern Ireland) Order 1990;
7. (g) the Open-Ended Investment Companies (Investment Companies with Variable Capital) Regulations (Northern Ireland) 1997.

. The subject-matter of—

1. (a) the Building Societies Act 1986;
2. (b) the Friendly Societies Act 1992.").

The noble Lord said: My Lords, this amendment replaces existing paragraph 22(2) of Schedule 3. It will widen the current reservations in respect of building societies, friendly societies, banking and investment business to cover the whole area of financial services and markets. It will not encroach on the subject-matter of existing Northern Ireland legislation in respect of credit unions, industrial and provident societies, insolvency and other matters whose transferred status is protected by the Belfast agreement. I beg to move.

Lord Cope of Berkeley

My Lords, as I said earlier, many of these matters should have been excepted rather than reserved. I certainly do not disagree with the re-writing of this particular part of the schedule.

On Question, amendment agreed to.

[Amendments Nos. 160 to 162 not moved.]

Lord Dubs moved Amendment No. 163:

Page 58, line 25, at end insert ("in relation to goods").

The noble Lord said: My Lords, this amendment clarifies the scope of the reservation in Schedule 3 on consumer safety. It makes it clear that consumer safety is concerned with the safety of goods and does not embrace the safety of services, facilities or accommodation. This is in line with Part II of the Consumer Protection Act 1987 and a large number of related EC directives which provide for the safety of goods. I beg to move.

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 164 to 167:

Page 58, leave out line 38.

Page 58, line 43, after ("17") insert (", 18").

Page 58, leave out line 44.

Page 59, line 1, leave out ("and 71") and insert (", 71 and 73(1), (2) and (4) to (8)").

On Question, amendments agreed to.

Schedule 4 [Enactments protected from modification]:

Lord Dubs moved Amendment No. 168:

Leave out Schedule 4.

On Question, amendment agreed to.

Schedule 6 [Northern Ireland Assembly Commission]:

Lord Dubs moved Amendment No. 169:

Page 61, line 6, at end insert— ("(aa) charging for goods or services;").

The noble Lord said: My Lords, the Bill provides at Schedule 6 that the Assembly commission may do anything which appears to it to be necessary or expedient for the purpose of or in connection with the discharge of its functions. The principal function of the commission is to provide the Assembly, or ensure that the Assembly is provided, with the property, staff and services required for the Assembly's purposes. This amendment puts beyond doubt that the commission has the power to charge for services provided, for example, a restaurant facility.

This amendment gives the Assembly commission an express power to sell goods or provide services to the public. It is necessary because, as Schedule 6 to the Bill is currently drafted, it is not a function of the commission to provide services other than those required for the purposes of the Assembly. If the commission should wish, for example, to sell souvenirs the amendment will give it the necessary power. The power is enabling and is not intended to confer a function to sell goods or provide services to the public, if the commission does not wish to do so. I beg to move.

Lord Cope of Berkeley

My Lords, this is an entirely proper amendment for the Minister to move. Not long ago, both the Minister and I had the pleasure of listening to a debate in the Assembly, which included some exchanges about whether or not a bar should be provided in the Assembly. It was a matter of much greater controversy than I have ever heard in this building on the same subject. Nevertheless, it is right that the commission should have the power, should it wish to use it, to charge for goods and services of the types described by the Minister.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 170:

Page 61, line 10, at end insert—

("( ) The Commission may sell goods or provide services, and may make arrangements for the sale of goods or provision of services, to the public.").

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 171:

Page 61, line 21, leave out ("proceedings") and insert ("acts").

The noble Lord said: My Lords, this amendment provides that acts of the Assembly commission are protected in the event of a vacancy in the membership of the commission or any defect in the appointment, or qualification for membership, of a member. I beg to move.

On Question, amendment agreed to.

6 p.m.

Lord Dubs moved Amendment No. 172:

Page 61, line 39, at end insert—

("( ) A statutory instrument containing an Order in Council under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: My Lords, this is a technical amendment to correct an earlier failure to provide for the parliamentary process by which any Order in Council to confirm Crown status on the Assembly commission for particular purposes would become law. I beg to move.

On Question, amendment agreed to.

Schedule 8 [The Northern Ireland Human Rights Commission]:

Lord Dubs moved Amendment No. 173:

Page 64, line 14, leave out ("their") and insert ("its").

The noble Lord said: My Lords, Amendments Nos. 173 and 174 are simple drafting amendments. I beg to move.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 174:

Page 64, line 16, leave out ("non-Commissioners)") and insert ("persons who are not Commissioners)").

On Question, amendment agreed to.

Schedule 9 [The Equality Commission for Northern Ireland]:

Lord Dubs moved Amendment No. 175:

Page 64, line 42, leave out ("member") and insert ("Commissioner").

The noble Lord said: My Lords, I am pleased to inform the House that this group of amendments includes the Government's response to several points raised earlier in the passage of the Bill and by interested parties outside Parliament. The government amendments in particular effectively meet the objectives of Amendment No. 179 tabled by the noble and learned Lord, Lord Archer of Sandwell.

Schedule 9 deals with the detailed arrangements for the equality commission, which is established by Clauses 69 and 70 and will take over the existing functions of the Fair Employment Commission, the Equal Opportunities Commission for Northern Ireland, the Commission for Racial Equality for Northern Ireland and the Northern Ireland Disability Council. In addition, it will take on new responsibilities in relation to the equality of opportunity obligation. Those are specified in Schedule 10.

Amendment No. 175 is a technical amendment, following up Committee stage amendments which gave members of the equality commission the title of commissioner. Government Amendment No. 178 is also technical and is designed to remove the risk of a double audit of the commission's accounts by giving the responsibility for examining, certifying and reporting on the accounts solely to the Comptroller and Auditor General for Northern Ireland.

In discussion at the Committee stage and in the other place, much attention was paid to the balance of responsibility for the equality commission between this Parliament and the Assembly. Amendment No. 177 enhances the interest of Parliament in the activities of the commission by requiring a copy of its annual report to be laid before both Houses. Amendment No. 176 will require the commission to include in its annual report information on the progress which it and other public authorities have made in promoting equality of opportunity.

Together, Amendments Nos. 176 and 177 meet the essential objectives of Amendment No. 179, which stands in the name of my noble and learned friend Lord Archer. The only significant difference is that my noble and learned friend's amendment would require an annual report separate from the equality commission's report on its own activities, required by paragraph 5 of Schedule 9. The government amendments would create an effective system of annual reporting on the overall compliance of the public sector with Clause 71 obligations. They render the current amendment unnecessary. I therefore hope that my noble and learned friend will not move Amendment No. 179.

My noble and learned friend has also tabled Amendment No. 194, which would require public authorities to submit an annual report to the equality commission on its measures and policies for complying with the statutory equality duties. The Government expect other public authorities to co-operate fully with the equality commission in the preparation of this aspect of the commission's annual report. In particular, we would expect public authorities to provide the necessary information on their own compliance with the new statutory obligation to enable the commission to report generally on progress throughout the public sector. This would achieve the aim of putting into the public domain information on the progress of the implementation of the statutory obligations.

However, it does not seem necessary to impose a further statutory administrative requirement on public authorities to make annual reports to the commission. They will of course have to submit their equality schemes to the commission. We will shortly be discussing Amendment No. 191, which would, in addition, require a public authority to carry out a five-yearly review of its scheme. Therefore, I hope my noble and learned friend will think that, in the light of what I have said, his Amendment No. 194 is necessary. I beg to move.

Lord Archer of Sandwell

My Lords, it would be ungenerous of me if I did not express gratitude to my noble friend for his very forthcoming response to some of the points which we made to him at the Committee stage. I do that unreservedly. I hope I was not being tiresome in inviting him to go a stage further. My noble friend's amendment would require the commission to report annually on what it had been doing. My Amendment No. 179 would impose a requirement on the commission to report on what the public authorities had been doing. I thought that might help to concentrate minds and to ensure that these matters were not totally overlooked. However, in view of what my noble friend said a few moments ago, I would probably be over-egging the pudding if I tried to carry the matter further.

As to my Amendment No. 194, I included it largely because, if the commission is to report annually on what public authorities have been doing—I understand from what my noble friend has just said that that is the intention—it would require the co-operation of the public authorities in supplying that information. That in itself might be a useful intellectual discipline on the public authorities. But, again, in view of what my noble friend has just said—that that is what would be expected—and knowing most of the public authorities with which we are dealing, I would be surprised if they were less than co-operative. I say at once that I do not propose to move those two amendments.

Lord Goodhart

My Lords, I welcome the move the Government have made in encouraging the wider publication of these reports. That is an important step towards greater transparency and very helpful for that purpose. Like the noble and learned Lord, Lord Archer of Sandwell, I would have wished the Government to go the final step forward which the noble and learned Lord proposed. However, this is certainly a very valuable move in the right direction. I conclude by paying tribute to the noble and learned Lord for the pressure that he has brought to bear on this as on so many other occasions. It is encouraging to see that it has borne fruit on this occasion.

Baroness Darcy de Knayth

My Lords, perhaps I may very briefly, from the mobile Bench, extend a very warm welcome to the government amendments. I would have supported the amendment of the noble and learned Lord, Lord Archer, but I take on board what he said about over-egging the pudding. I felt that they would have flourished symbiotically very happily and that it would have been a better pudding. But we must be very grateful for seven-eighths of the pudding.

Lord Cope of Berkeley

My Lords, like other noble Lords who have spoken, I think it was wise and good of the Government to have accepted to this extent the spirit of the amendments moved at an earlier stage of our deliberations. One can have too many reports. It may be necessary to introduce at a later stage the additional reporting requirements in Amendment No. 194, but I think we have sufficient reports for the time being.

Similarly, with regard to Amendment No. 178, it seems to me that one audit is sufficient. I was slightly surprised when I realised that two audits were provided for side-by-side in the Bill for these operations. That is unnecessary. I believe that the Comptroller and Auditor General is the right person to audit the accounts. After all, as a result of our labours yesterday he will be responsible to the Assembly, so there is no need for additional auditors to be appointed. That will be another way in which, from that specific point of view, the commission will be answerable to the Assembly, as is right and proper.

Lord Dubs

My Lords, I am grateful for the supporting voices I have heard from all parts of the House.

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 176 to 178:

Page 65, line 36, at end insert ("; and (b) on any steps which, during the year, have been taken by it and other public authorities to promote such equality of opportunity as is mentioned in section 71(1).").

Page 65, line 40, leave out ("send a copy of the report to the Assembly") and insert ("lay a copy of the report before the Assembly and send a copy of the report to the Secretary of State. ( ) The Secretary of State shall lay a copy of the report before each House of Parliament.").

Page 66, leave out lines 11 and 12.

On Question, amendments agreed to.

Schedule 10 [Equality: enforcement of duties]:

[Amendment No. 179 not moved.]

Lord Dubs moved Amendment No. 180:

Page 67, line 16, at end insert ("or, if later, the establishment of the authority").

The noble Lord said: My Lords, I am pleased to present this series of government amendments which strengthen considerably the arrangements for equality schemes and impact assessments. They respond to comments made at earlier stages of the Bill and to external consultations held over the summer.

These amendments relate to Schedule 10 which gives details of the equality schemes to be prepared by public authorities and also the arrangements for their validation by the equality commission and the handling of complaints about the failure of a public authority to comply with its scheme. These are key dimensions to the equality clauses.

Schedule 10 both puts into operation the statutory obligation of Clause 71 and also gives a role to the equality commission in the oversight of equality schemes. As has been said before, this is not an externalisation by the public sector of its obligations on equality of opportunity. The statutory obligation will fall squarely on each public authority. There will be internal arrangements in the Northern Ireland Civil Service to ensure that departments and non-departmental public bodies are aware of their new statutory responsibilities and meet them. But the equality commission will be able to draw on the accumulated experience of the four statutory bodies to add an independent dimension, validating schemes, requesting revisions and considering complaints.

The Government have been responsive to those who have suggested improvements to the arrangements originally set out in the March White Paper, whether within Parliament or outside. A series of amendments has been prepared which strengthen the provisions on impact assessments in Schedule 10. These are rightly seen as vital instruments for mainstreaming equality considerations into the policies of the public sector.

There has been some comment that paragraph 4(2)(b) of Schedule 10, which refers to arrangements for impact assessment, is ambiguous in its scope. To clarify the position, it is the Government's intention that impact assessments should relate to the whole range of a public authority's policy. It is not intended that the assessments should be restricted only to policies aimed at promoting equality of opportunity. I hope that this makes our intentions clear.

Responding to criticisms of the Committee stage amendments, Amendments Nos. 180 and 181 extend the direct obligation on public authorities to prepare schemes to new public authorities, created after the schedule comes into operation, as well as to existing ones.

Amendments Nos. 187, 188 and 184 make clear that schemes must include details of the arrangements for monitoring any adverse impact of policies which are actually implemented, the publication of assessments and monitoring and for consultation on impact assessments. I would expect such consultation to embrace those directly affected by a policy as well as non-governmental organisations and relevant statutory bodies.

The Government are also moving Amendment No. 197, which would establish a special procedure in the case of the Northern Ireland Office and other UK government departments for dealing with problematic schemes and complaints. This is to avoid a situation where the Secretary of State must reach a decision or issue directions in a case involving her own department or that of a Cabinet colleague. To avoid a potential conflict of interest, it is intended that the normal arrangements under Schedule 10 should be amended in these cases. This could lead ultimately to an adverse report from the equality commission or a complaint against a UK government department being laid before Parliament and the Assembly. This would, in itself, be a most effective sanction. I beg to move.

Lord Archer of Sandwell

My Lords, it is a pleasure doing business with my noble friend. These amendments bear witness to his readiness to respond to some of the representations and anxieties which we expressed at Committee stage. I also express my thanks to the noble Lord, Lord Goodhart, for his kind reference to me. He, the noble Lord, Lord Cope, and myself at Committee stage expressed anxieties on these matters. We are all grateful to my noble friend.

Lord Cope of Berkeley

My Lords, like the noble and learned Lord, Lord Archer, I endorse what is being said in these amendments and what is being done here. I have a query as regards Amendment No. 188A which appeared on the Marshalled List overnight. I do not believe that the noble Lord referred to it, but perhaps I missed the reference. It appears to delete the provision which says that a scheme prepared by a public authority under this heading should include arrangements for consultation, including details of the people who have been consulted. It is odd that they are not required to say who they consulted in the course of a scheme. I should have thought it desirable to have such a provision as part of the scheme. I am somewhat surprised that it has been taken out of the requirement. No doubt the Minister will be able to tell us why this amendment was added overnight.

Lord Dubs

My Lords, I am grateful for the support that these amendments have received. As regards the specific point that the noble Lord raised, the point of Amendment No. 188A has already been included in Amendment No. 183. It simply tidies up the matter.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 181:

Page 67, leave out line 19.

On Question, amendment agreed to.

6.15 p.m.

Lord Archer of Sandwell moved Amendment No. 182:

Page 67, line 19, leave out from ("Schedule") to end of line 21.

The noble and learned Lord said: My Lords, we all welcome the amendment introduced by my noble friend to provide that a public authority should prepare a scheme showing how it proposes to fulfil the duties imposed by Clause 71 and submit it to the commission. Not only will that enable the commission to monitor what public authorities propose to do; it will also concentrate the mind of the public authorities themselves. When one is charged with a task there is no better discipline than to have to write down in an intelligible form how one proposes to go about it.

Therefore, I am a little reluctant to introduce a dissident note. Our joy was somewhat modified when we read that the commission should have power to exempt a specific public authority from the duty to prepare a scheme. There were no conditions or restrictions on the power. The commission appears to have a complete discretion. This is not a Henry VIII clause, but a James II clause. It is a claim to total dispensing and suspending power.

It raises two questions in my mind. First, in what situation and for what purpose is it envisaged that the commission shall exempt an authority from the duty? Secondly, if the discretion is intended to be exercised in order to achieve some specific purpose, why should that not be stated and written into the Bill? Why is the discretion put in such unrestricted terms? I may well find my noble friend's reasons convincing, but at the moment I do not know what they are. I beg to move.

Lord Goodhart

I support the noble and learned Lord, Lord Archer of Sandwell, on this amendment. It may well be that there are explanations as to why the provision should be implemented, but on the face of it it appears excessive to give unrestricted power to exempt the authorities from the need to prepare schemes. There is no guidance as to the ground on which exemption can be given. I, too, am somewhat concerned by this measure. I await with interest to hear what the Minister will say.

Lord Cope of Berkeley

My Lords, it seems to me that it was a useful example of flexibility to allow the equality commission to exempt a public authority. I doubt whether it will want to do that very often. The commission makes the decision and not the Government or the authority concerned. No doubt there will be some public authorities—the definition is extremely wide—where the commission itself will not consider it necessary to call for a scheme of this kind. We do not want people undertaking bureaucratic work unnecessarily. Provided the Minister can suggest some public authorities which come within the definition where it would not be very sensible for them to go through such trouble, then a degree of flexibility given to the commission—I would have a different view if it were given to the Government or the authorities concerned—may be wise.

Lord Dubs

My Lords, my noble and learned friend's amendment would remove the provision whereby the commission may exempt a public authority from the need to prepare an equality scheme. It is intended that such exemptions will be rare and that the vast majority of the public authorities, defined in Clause 71(3) and operating in Northern Ireland, will prepare such schemes.

There are, however, circumstances where the work involved in preparing a scheme and having it validated by the equality commission, would be disproportionate to a particular public authority's activities in Northern Ireland; for instance, some UK-wide public authorities carry out functions to only a very limited extent in Northern Ireland. An example is the Central Bureau for Educational Visits and Exchanges.

In other cases, it might be more efficient to subsume a public authority's equality scheme within another. For instance, the definition in Clause 71(3), as amended, includes all the sub-committees of Northern Ireland district councils, as well as councils themselves. The commission might consider it more feasible to exempt sub-committees of councils from the need to prepare individual equality schemes, provided that the activities of each were fully covered by the equality scheme of the district council to which it belonged. Such an arrangement would be a matter of common sense.

As the noble Lord, Lord Cope, said in his helpful speech, which uniquely made part of my speech for me, any decision on exempting an individual public authority would lie with the equality commission but we would expect it to bear in mind these considerations and to make only limited use of the power to exempt. We believe, nonetheless, that, for the reasons I have given, it is a useful reserve power for the commission to hold. Therefore, I hope that my noble and learned friend will feel able to withdraw his amendment.

Lord Archer of Sandwell

My Lords, my noble friend and the noble Lord, Lord Cope, have persuaded me. I think that I noted the noble Lord, Lord Goodhart, nodding his understanding, if not his agreement. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 183:

Page 67, line 32, at end insert ("and for consulting on matters to which a duty under that section is likely to be relevant (including details of the persons to be consulted)").

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 184:

Page 67, line 33, after ("assessing") insert ("and consulting on").

On Question, amendment agreed to.

The Deputy Speaker (Viscount Allenby of Megiddo)

My Lords, before calling Amendment No. 185, I must inform the House that if this amendment is agreed to, I cannot call Amendment No. 186.

Lord Archer of Sandwell moved Amendment No. 185:

Page 67, line 33, leave out from ("impact") to end of line 35 and insert ("on the promotion of equality of opportunity of policies adopted or proposed to be accepted by the authority;").

The noble and learned Lord said: My Lords, at the risk of being thought a pussy cat, I say at the outset that this, too, is a probing amendment. Paragraph 4(2)(b) of the schedule requires a public authority to subject its policies to an impact assessment. That is precisely what some of us called for in Committee and I strongly support that.

However, I wonder whether the drafting is ambiguous. I am not given to criticising parliamentary counsel; they do a remarkable job, sometimes under formidable pressure. Their workload this Session must have been onerous. However, unless I have misunderstood the provision, this is an unusual fall from grace. Does it require a scheme to state the arrangements for assessing the likely impact of policies which relate to the promotion of equality, or for assessing the likely impact on the promotion of equality of all policies? I hope that the intention is the latter. It is not only policies designed to promote equality which need to be assessed; all of an authority's policies, even those which do not leap from the page as having an impact on equality, will need to be assessed.

My amendment is designed to remove the ambiguity, but my noble friend may be able to persuade me that I have simply failed to read the paragraph correctly; that it is not ambiguous; and that it means what I have always hoped it means. I beg to move.

Lord Dubs

My Lords, Amendment No. 185 would amend paragraph 4(2)(b) of Schedule 10. It may also be helpful if I explain the intended meaning of that provision.

Paragraph 4(2)(b) refers to the inclusion in an equality scheme of details of arrangements for assessing the likely impact of policies adopted or proposed to be adopted by the authority on the promotion of the equality of opportunity mentioned in Clause 71(1). There has been some comment that the sub-paragraph is ambiguous. Indeed, my noble and learned friend suggested that. To clarify the position, I should state that it is the Government's intention that impact assessments should relate to the general run of a public authority's policies. It is not intended that the assessments should be restricted only to policies aimed at promoting equality of opportunity.

I hope that that makes our intention clear, that I have answered my noble and learned friend's question and that he will therefore feel able to withdraw his amendment.

Lord Archer of Sandwell

My Lords, my noble friend has, indeed, answered my question and precisely as I had hoped. I suggest only that as it seems that the Government have heard from other sources that there might be ambiguity—I was not aware of that—there might be some merit in suggesting a possible redrafting to remove the ambiguity. However, I do not press that matter today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendments No. 186 to 188:

Page 67, line 34, leave out ("the equality of opportunity mentioned in section 71(1)") and insert ("equality of opportunity").

Page 67, line 35, at end insert— ("(bb) for monitoring any adverse impact of policies adopted by the authority on the promotion of equality of opportunity;").

Page 67, line 36, leave out ("assessments") and insert ("such assessments as are mentioned in paragraph (b) and such monitoring as is mentioned in paragraph (bb)").

On Question, amendments agreed to.

The Deputy Speaker

My Lords, before calling Amendment No. 188A, I must inform the House that if that amendment is agreed to, I cannot call Amendment No. 189 which stands in the name of the noble and learned Lord, Lord Archer.

Lord Dubs moved Amendment No. 188A:

Page 67, leave out lines 37 and 38.

Lord Archer of Sandwell

My Lords, I am placed in a difficulty. I confess that I had not noticed Amendment No. 188A. Perhaps I may indicate briefly the problem that was in my mind which impelled me to table Amendment No. 189. In Committee, I ventured to point out that human rights are largely about empowerment. They are about giving people a voice in their own destiny. They are not tablets of stone handed down from Heaven to Mount Sinai. They are about meeting the practical anxieties and aspirations of ordinary people living their daily lives. So consultation is at the heart of the problem. The Government have already provided for that in paragraph 4(2)(d).

My concern is really a very narrow one; that the authority is required to state whom it proposes to consult. I should simply like to be assured that among those whom the authority will consult are those directly affected by the policies in question. By all means consult the experts, lawyers and the NGOs—they might have a real and useful input to make into the process—but can we be assured that there will be consultation with the people who will actually be affected? That is my anxiety. If my noble friend can allay that anxiety, I do not propose to pursue the matter further.

Lord Dubs

My Lords, I think I can. Amendment No. 188A is a tidying-up measure. The point at issue is contained in Amendment No. 183 which deals substantially with the concern of my noble and learned friend.

On Question, amendment agreed to.

[Amendment No. 189 not moved.]

Lord Dubs moved Amendment No. 190:

Page 68, line 1, after ("paragraph") insert— (""equality of opportunity" means such equality of opportunity as is mentioned in section 71(1);").

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 191:

Page 68, line 28, at end insert—

("( ) A public authority shall, before the end of the period of five years beginning with the submission of its current scheme, or the latest review of that scheme under this sub-paragraph, whichever is the later, review that scheme and inform the Commission of the outcome of the review.").

The noble Lord said: My Lords, I am pleased to move government Amendment No. 191, which, again, has been tabled in response to helpful suggestions on how the provisions on equality schemes could be improved. My noble and learned friend Lord Archer has also tabled Amendment No. 192.

These amendments would have a very similar effect. Both require reviews by a public authority, after five years' experience of implementing an equality scheme. In some ways, the government amendment is more rigorous as it requires the public authority to notify the equality commission of the outcome of its review.

In the light of government Amendment No. 191, I hope that my noble and learned friend will withdraw his amendment.

Lord Archer of Sandwell

My Lords, my noble friend is absolutely right in relation to both propositions. His amendment is very similar to my Amendment No. 192, and his amendment is better than mine. It therefore remains only to thank him for having an open ear and for responding to points that we made in earlier debates. I give notice that I shall not be moving my amendment. On Question, amendment agreed to.

[Amendment No. 192 not moved.]

6.30 p.m.

Lord Archer of Sandwell had given notice of his intention to move Amendment No. 193:

Page 68, line 28, at end insert—

("( ) A public authority shall consider—

1. (a) measures to mitigate any adverse impact of its policies on the promotion of equality of opportunity; and
2. (b) alternative policies which might better achieve the promotion of equality of opportunity.").

The noble and learned Lord said: My Lords, this amendment, too, is in terms very similar to Amendment No. 195 standing in the name of my noble friend. Once again, he has generously responded to our earlier representations. Accordingly, I do not propose to move the amendment and am content to leave the matter to my noble friend when he moves Amendment No. 195.

[Amendment No. 193 not moved.]

[Amendment No. 194 not moved.]

Lord Dubs moved Amendment No. 195:

Page 68, line 28, at end insert—

("Duties arising out of equality schemes

.—(1) In publishing the results of such an assessment as is mentioned in paragraph 4(2)(b), a public authority shall state the aims of the policy to which the assessment relates and give details of any consideration given by the authority to—

1. (a) measures which might mitigate any adverse impact of that policy on the promotion of equality of opportunity; and
2. (b) alternative policies which might better achieve the promotion of equality of opportunity.

(2) In making any decision with respect to a policy adopted or proposed to be adopted by it, a public authority shall take into account any such assessment and consultation as is mentioned in paragraph 4(2)(b) carried out in relation to the policy.

(3) In this paragraph "equality of opportunity" has the same meaning as in paragraph 4.").

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 196 and 197:

Page 69, line 12, leave out ("(2)(c)") and insert ("(3)(a)").

Page 69, line 16, at end insert—

("Government departments

.—(1) Paragraphs 6, 7 and 10(2)(b) and (3) do not apply to a government department which is such a public authority as is mentioned in section 71(3)(a).

(2) On receipt of a scheme submitted by such a government department under paragraph 2 or 3 the Commission shall—

1. (a) approve it; or
2. (b) request the department to make a revised scheme.

(3) A request under sub-paragraph (2)(b) shall be treated in the same way as a request under paragraph 3(1)(b).

(4) Where a request is made under sub-paragraph (2)(b), the government department shall, if it does not submit a revised scheme to the Commission before the end of the period of six months beginning with the date of the request, send to the Commission a written statement of the reasons for not doing so.

(5) The Commission may lay before Parliament and the Assembly a report of any investigation such as is mentioned in paragraph 10(1) relating to a government department such as is mentioned in sub-paragraph (1).").

On Question, amendments agreed to.

Schedule 11 [Devolution issues]:

Lord Dubs moved Amendment No. 198:

Page 69, line 21, leave out ("a question").

The noble Lord said: My Lords, Amendments Nos. 198 to 220 in Schedule 11 are essentially of a technical nature. They relate to the devolution issues schedule in the Bill, which provides a mechanism by which certain critical types of legal issues that may arise under the Bill can achieve a hearing by a court appropriate to matters of this seriousness, in proceedings in which, besides the parties, the relevant authorities can also appear. The group also includes a transitional amendment in Schedule 14. Some of our amendments here reflect amendments approved by the House yesterday to Clause 76.

The earlier amendments in this group relate to the issues that may be examined under the schedule. The first three are simply a matter of drafting, but Amendment No. 201 includes several new issues. One is a question about a failure by a Minister or Northern Ireland department to comply with the convention rights or obligations under Community law, including a quota obligation under Clause 25. The Bill envisages that the devolved institutions should implement directly obligations of these kinds that fall into their field of responsibility; and it is a ground of invalidity of legislation by the Assembly or the Northern Ireland executive authorities that they have legislated incompatibly with obligations under Community law or the convention. The first element of the amendment permits the devolution issues mechanism to be used to assess whether the devolved institutions have fulfilled their responsibilities in this context.

The second element of Amendment No. 201 permits the consideration under this procedure of other issues that may arise in connection with excepted or reserved matters under the Act. The drafting is deliberately broad, because it is not possible to define precisely all the questions relating to the policing of the constitutional boundaries set up by the Bill. The Scotland Bill now contains, in Schedule 6, paragraph 1(f), a similarly broadly-cast question.

The amendments following Amendment No. 201 are chiefly concerned with ensuring that the appropriate parties are before the court. Our main concern here has been to give the devolved institutions a proper role in such proceedings, a question we have already touched on in connection with amendments to Clause 76 of the Bill. Whereas Clause 76 relates to a court's judgment about the consequences that should flow from a finding of invalidity, the devolution issues procedure relates to the consideration of the question of invalidity itself.

The devolution issues provisions in all three devolution Bills have conferred a right to institute proceedings only on Law Officers, and we believe that that is right. But we also think it right that the devolved institutions should have an opportunity to express their views when their legislation is in question.

Accordingly, Amendment No. 204 gives them the right to defend such proceedings and other amendments give them a right to have notice when a devolution issue arises in proceedings in Northern Ireland and to take part in the proceedings so far as they relate to the devolution issue. They are given similar rights in the later parts of the schedule, which relate to the contingency, which we expect will be rare, of Northern Ireland devolution issues arising in proceedings in England and Wales or Scotland.

As we explained previously in relation to Clause 76, we gave a good deal of consideration to the identity of the appropriate party to represent the devolved institutions in such proceedings. It seemed to us inevitable that it must be the First Minister and Deputy First Minister: there was no other single point to which these responsibilities could attach, in the absence of a Law Officer in the devolved arrangements. But it may be unnecessary for them to be involved directly in particular kinds of case which concern only one Northern Ireland department, and under Amendment No. 218 the First Minister and Deputy First Minister may arrange for a Minister or Northern Ireland department to exercise their functions on their behalf in proceedings that they specify.

Amendment No. 220 resembles amendments already made to the Scotland Bill to take account of the contingency, which again is likely to be infrequent, of devolution issues arising in criminal proceedings. The existing law on bail and legal aid is supplemented to ensure that adequate powers are available in all situations where they may be necessary.

Finally, Amendment No. 235 takes account of the fact that there will not immediately be an Advocate-General for Scotland, since his position as the UK Law Officer for Scotland arises in the context of devolution there. I beg to move.

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 199 to 220:

Page 69, line 22, at beginning insert ("a question").

Page 69, line 24, at beginning insert ("a question").

Page 69, line 25, at end insert— ("( ) a question whether a Minister or Northern Ireland department has failed to comply with any of the Convention rights, any obligation under Community law or any order under section 25 so far as relating to such an obligation; or ( ) any question arising under this Act about excepted or reserved matters.").

Page 69, leave out lines 26 and 27.

Page 69, line 38, after ("General") insert ("or the Attorney General").

Page 69, line 38, at end insert— ("( ) The First Minister and the deputy First Minister acting jointly may defend any such proceedings.").

Page 70, line 3, leave out ("for Northern Ireland (unless he") and insert (", the Attorney General for Northern Ireland, the First Minister and the deputy First Minister (unless the person to whom the notice would be given").

Page 70, line 5, leave out from beginning to ("may") in line 6 and insert ("A person to whom notice is given in pursuance of paragraph 5").

Page 70, line 31, leave out ("or the Attorney General for Northern Ireland").

Page 70, line 32, at end insert—

("( ) The Attorney General for Northern Ireland or the First Minister and the deputy First Minister acting jointly may defend any such proceedings.").

Page 70, line 37, leave out ("General and") and insert ("General,").

Page 70, line 38, after ("Ireland") insert (", the First Minister and the deputy First Minister").

Page 71, line 33, leave out ("Lord Advocate or the Attorney General for Northern Ireland") and insert ("Advocate General for Scotland").

Page 71, line 34, at end insert—

("( ) The Attorney General for Northern Ireland or the First Minister and the deputy First Minister acting jointly may defend any such proceedings.").

Page 71, leave out lines 38 to 40 and insert—

("23. Intimation of any devolution issue which arises in any proceedings before a court or tribunal shall be given to the Advocate General for Scotland, the Attorney General for Northern Ireland, the First Minister and the deputy First Minister (unless the person to whom the intimation would be given is a party to the proceedings.").

Page 71, line 41, leave out from beginning to ("may") in line 42 and insert ("A person to whom intimation is given in pursuance of paragraph 23").

Page 72, line 38, leave out ("for Northern Ireland, the Attorney General or the Lord Advocate") and insert (", the Attorney General for Northern Ireland, the First Minister and the deputy First Minister acting jointly or the Advocate General for Scotland").

Page 72, line 40, after ("is") insert ("or they are").

Page 72, line 41, leave out ("for Northern Ireland, the Attorney General or the Lord Advocate") and insert (", the Attorney General for Northern Ireland, the First Minister and the deputy First Minister acting jointly or the Advocate General for Scotland").

Page 73, line 11, at end insert—

("Delegation by First Ministers

35A. The First Minister and the deputy First Minister acting jointly may determine that a Minister or Northern Ireland department specified in the determination may exercise on their behalf, in relation to any proceedings under this Schedule so specified, any power conferred on them by this Schedule.").

Page 73, line 31, leave out ("intimation or notice") and insert ("notice or intimation").

Page 73, line 31, at end insert—

("Bail and legal aid in criminal proceedings

37A.—(1) Sub-paragraph (3) applies where a devolution issue arises in proceedings against a person ("the defendant") for an offence and the issue is referred to the Court of Appeal in Northern Ireland under paragraph 7.

(2) Sub-paragraphs (3) and (4) apply where such an issue arises in such proceedings and—

1. (a) the issue is referred by the Court to the Judicial Committee under paragraph 9 or 33; or
2. (b) the issue is determined by the Court under paragraph 7 and—
1. (i) an appeal to the Committee against the determination is brought under paragraph 10; or
2. (ii) an application for leave to bring such an appeal is made to the Court under that paragraph.

(3) The Court may, if it thinks fit, on the application of the defendant, admit him to bail pending the determination of the reference, appeal or application.

(4) The Court may at any time when it appears to the Court—

1. (a) that it is desirable in the interests of justice that the defendant should have legal aid; and
2. (b) that he has not sufficient means to obtain that aid,

assign to him a solicitor and counsel, or counsel only, in the reference, appeal or application.

(5) If, on a question of granting a person free legal aid under sub-paragraph (4), there is a doubt—

1. (a) whether it is desirable in the interests of justice that he should have legal aid; or
2. (b) whether he has sufficient means to obtain that aid,

the doubt shall be resolved in favour of granting him free legal aid.

(6) The fees of any counsel, and the expenses and fees of any solicitor, assigned to a person under sub-paragraph (4) shall be defrayed, up to an amount allowed by the Master (Taxing Office), by the Lord Chancellor out of money provided by Parliament.

37B. Where a devolution issue arises as mentioned in sub-paragraph (1) of paragraph 37A and—

1. (a) the issue is referred to the Judicial Committee under paragraph 9 or 33; or
2. (b) the issue is determined by the Court of Appeal in Northern Ireland under paragraph 7 and—
1. (i) an appeal to the Committee against the determination is brought under paragraph 10; or
2. (ii) an application for special leave to bring such an appeal is made to the Committee under that paragraph,

sub-paragraphs (3) to (6) of paragraph 37A shall apply as if the references to the Court were references to the Committee.").

On Question, amendments agreed to.

Schedule 14 [Minor and consequential amendments]:

Lord Dubs moved Amendment No. 221:

Page 79, line 6, at end insert—

("Audit (Northern Ireland) Order 1987 (S.I. 1987/460 (N.I.5))

. In Article 6(2) of the Audit (Northern Ireland) Order 1987 (expenses and accounts of Northern Ireland Audit Office)—

1. (a) for "the Department", in the first place where it occurs, substitute "the committee established under section (Expenses of Northern Ireland Audit Office) of the Northern Ireland Act 1998"; and
2. (b) for "the Department", in the second place where it occurs, substitute "that committee".").

On Question, amendment agreed to.

The Deputy Speaker

My Lords, before Amendment No. 222 is moved, I have to inform the House that if it is agreed to, I cannot call Amendment No. 223 in the name of the noble Lord, Lord Dubs.

Lord Cope of Berkeley moved Amendment No. 222:

Page 79, line 44, leave out from beginning to end of line 1 on page 80 and insert—

("(2) For subsection (1)(b) substitute— (b) a Minister within the meaning of section 20(3) of the Northern Ireland Act 1998 or a junior Minister appointed under section 17 of that Act;"").

The noble Lord said: My Lords, we have now moved on to the part of Schedule 14 dealing with the Official Secrets Act. Paragraph 8 applies the Official Secrets Act to Northern Ireland Ministers. The provision is necessary, not only in a general sense but particularly because of the negotiations in which they will be involved with the European Union and so on, as we discussed at earlier stages.

I have proposed a relatively modest amendment. It brings the terms of this Bill into line with the equivalent provision in the Scotland Bill. The drafting of my amendments follows that of the Scotland Bill with the necessary adjustments.

If I have understood matters correctly, the amendment would have three effects. First, Northern Ireland Ministers would be defined for this purpose as Crown servants. Under the Bill as presently drafted they are neatly not defined as Crown servants, although Scottish Ministers, United Kingdom Ministers, etc., are. It seems better that they should be placed on the same basis as Ministers from other parts or the United Kingdom.

The second effect of my amendment is to bring junior Ministers under the Official Secrets Act. It has exactly the same purpose as government Amendment No. 223. We are at one over this matter. A provision for junior Ministers having been inserted into the Bill, it is obviously right to do this.

The third effect is that contractors to the Northern Ireland Executive will be brought within the Official Secrets Act, just as contractors are in Great Britain or for that matter in Northern Ireland at present. That is important. Many government matters, including sensitive matters, are delegated these days by government to agencies of one kind or another. It seems appropriate that they should be covered by the same rules as would be the case if they were being carried out by civil servants or others within the government machine.

For all those reasons, I thought that the drafting proposed in Amendment No. 222 might commend itself to the Government as being a slightly more desirable version. I am extremely cautious about taking on Parliamentary Counsel at their own game by trying to re-draft this, just like the noble and learned Lord, Lord Archer. I have even more reason to be cautious about it than he has. At the same time, we have a duty to put forward these matters when we can. I beg to move.

Lord Glentoran

My Lords, I support the amendment moved by the noble Lord, Lord Cope. It seems eminently sensible that Northern Ireland Ministers should become Crown servants or should be known as Crown servants. More particularly, the Official Secrets Act should clearly cover all those mentioned in the amendment. I support it.

Lord Dubs

My Lords, this amendment which has been proposed by the noble Lord, Lord Cope, would have the effect of including junior Ministers under the Official Secrets Act. Our own Amendment No. 223 has the same effect.

This amendment also alters the way in which Ministers or junior Ministers are brought under the scope of the Official Secrets Act. Previously, Northern Ireland Ministers under the Constitution Act 1973 were to be appointed by the Secretary of State. It was therefore appropriate for them to be defined as Crown servants for the purposes of the Official Secrets Act.

Under the Belfast agreement we are introducing a wholly new system for the appointment of Northern Ireland Ministers. The Northern Ireland Bill makes clear that they will be appointed automatically in proportion to party strength under the d'Hondt procedure. Junior Ministers may also be appointed from among members of the Assembly in accordance with procedures specified by the First Minister and Deputy First Minister. Since they are not to be appointed by Ministers of the Crown, it is necessary to bring them under the scope of the Official Secrets Act by a different means.

It is of course important that we ensure that Ministers are covered by the Act in the same way as those defined as Crown servants. I can assure the noble Lord that this outcome is achieved.

In the Scotland Bill, First Ministers are appointed by Her Majesty and other Ministers are appointed with her approval. As I indicated, Northern Ireland is different and under the agreement Ministers are selected by the procedures defined in the Bill. However, the outcome is the same: all Ministers will be covered by the Official Secrets Act.

Lord Cope of Berkeley

My Lords, I am not entirely persuaded to go along with the Minister. However, I shall not pursue the matter, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendments Nos. 223 to 226:

Page 80, line 1, at end insert ("and junior Ministers").

Page 80, line 30, at end insert—

("Civil Service (Management Functions) (Northern Ireland) Order 1994 (S.I. 1994/1894 (N.I.9))

. In Article 3(1) of the Civil Service (Management Functions) (Northern Ireland) Order 1994, for paragraphs (a) and (b) substitute "which, by virtue of a prerogative order made under section 21(3) of the Northern Ireland Act 1998, is exercisable by the Department of Finance and Personnel".").

Page 81, line 4, leave out ("and (8)").

Page 81, leave out line 6 and insert—

(""52.—(1) Schedule 5, except paragraph 7(a) to (c), shall have no effect.

(2) In paragraph 7(a) to (c), for "Secretary of State" wherever it occurs substitute "Department of Health and Social Services".".").

The noble Lord said: My Lords, this is a series of minor and consequential amendments to the Bill. Amendment No. 223 subjects junior Ministers as well as the First Minister and Deputy First Minister and Northern Ireland Ministers to the provisions of the Official Secrets Act.

Amendment No. 224 is consequential on the amendments being made to Clause 21. Amendments Nos. 225 and 226 modify this schedule to preserve elements of the Disability Discrimination Act which would otherwise have been extinguished. I beg to move.

On Question, amendments agreed to.

Schedule 15 [Ministerial offices]:

Lord Dubs moved Amendments Nos. 227 to 231:

Page 82, line 16, after ("made") insert ("and approved").

Page 82, line 20, at end insert—

("Junior Ministers

. Any of the following made before the appointed day—

1. (a) a determination of the number of junior Ministers to be appointed;
2. (b) a determination of the functions to be exercised by the holder of each junior Ministerial office; and
3. (c) an appointment of a junior Minister,

shall have effect on and after that day as if it had been made and approved under section 17.").

Page 82, line 20, at end insert—

("Department of First Minister and deputy First Minister

. Any Northern Ireland department established before the appointed day under the charge of the First Minister and deputy First Minister acting jointly shall be treated on and after that day as if it had been established by an Act of the Assembly under section 19.").

Page 82, line 20, at end insert—

("Prerogative orders

. Any prerogative order made by the Secretary of State under the Letters Patent of Her Majesty dated 20th December 1973 before the appointed day shall on and after that day have effect as if it had been validly made under section 21(3) by the First Minister and the deputy First Minister acting jointly.").

Page 82, line 24, at end insert—

("Statutory committees

.—(1) Any committee of the Assembly established before the appointed day to advise and assist a Northern Ireland Minister in the formulation of policy with respect to his responsibilities as a Minister shall be treated on and after that day as if it had been established by standing orders under section 27.

(2) Any appointment of a member, or the chairman or deputy chairman, of such a committee made before the appointed day shall have effect on and after that day as if it had been made under section 27.").

On Question, amendments agreed to.

Lord Dubs moved Amendment No. 232:

Page 83, leave out lines 1 to 5.

The noble Lord said: My Lords, Amendments Nos. 232 and 233 are purely drafting amendments moving the entry about the Comptroller and Auditor General in Schedule 15. I beg to move.

Lord Cope of Berkeley

My Lords, I have no comment on this amendment, but as it is the last group of amendments I wish to thank the Minister for his courtesy and patience in dealing with us throughout the discussions on the Bill.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 233:

Page 83, line 15, at end insert—

("Comptroller and Auditor General for Northern Ireland

. Any appointment made by Her Majesty under section 36(1)(d) of the Northern Ireland Constitution Act 1973 before the appointed day shall on and after that day have effect as if it had been an appointment made by Her Majesty on the nomination of the Assembly under section 62.").

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 234 to 236:

Page 83, line 19, at end insert—

("Certificates by Secretary of State

Section 84 shall have effect—

1. (a) in relation to any act done before the appointed day, as if the reference to section 22 were a reference to section 19 of the Northern Ireland Constitution Act 1973 so far as relating to a member of the Northern Ireland Executive or other person appointed under section 8 of that Act or a Northern Ireland department;
2. (b) in relation to any act done before the commencement of section 72, as if the reference to that section were a reference to section 19 of that Act so far as relating otherwise than as mentioned in sub-paragraph (a); and
3. (c) in relation to any such act as is mentioned in sub-paragraph (a) or (b), as if—
1. (i) the reference in subsection (1)(b) to a certificate were a reference to a certificate purporting to be signed by or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for the purpose of safeguarding national security; and
2. (ii) subsection (3)(b) were omitted.").

Page 83, line 19, at end insert—

("Devolution issues

. In relation to any time before the first appointment of the Advocate General for Scotland, paragraphs 22, 23, 33 and 34 of Schedule 11 shall have effect as if references to him were references to the Lord Advocate.").

Page 83, line 42, leave out from beginning to end of line 11 on page 84.

On Question, amendments agreed to.