Northern Ireland Bill

HL Deb 17 November 1998 vol 594 cc1202-32

7.45 p.m.

Read a third time.

Clause 6 [Legislative competence]:

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs) moved Amendment No. 1:

Page 3, line 39, leave out ("the Parliament of the United Kingdom") and insert ("Parliament").

The noble Lord said: My Lords, we have burdened the House with a great many amendments in the course of the proceedings on this Bill. I indicated that we would do so at the outset of our deliberations. This is not an ordinary Bill; nor has it been prepared in an ordinary timescale. The motivation for our main amendments has been to respond to points expressed in debate, here and in another place. and to those made to us by the parties in Northern Ireland which will have to operate the mechanisms we are setting up. I hope it will be agreed that we are right to be responsive in this way. We have also had to make a large number of adjustments to the technical workings of the Bill, but I hope that that will be thought right, too, because technical flaws could interfere seriously with the smooth operation of the novel institutions for which the Bill provides.

Your Lordships have shown great forbearance. We have only a few more amendments this evening. All of them are technical with the exception of some further reinforcement of the safeguards for audit standards in the devolved institutions, which I hope will be welcome to your Lordships.

I turn specifically to Amendment No. 1. It is purely a drafting amendment to align the practice in referring to Acts of Parliament with that elsewhere in the Bill. I beg to move.

On Question, amendment agreed to.

Clause 7 [Entrenched enactments]:

Lord Dubs moved Amendment No. 2:

Page 4, leave out lines 6 and 7 and insert— ("(c) section 43(1) to (6) and (8), section 67, sections 84 to 86, section 95(3) and (4) and section 98.").

The noble Lord said: My Lords, Amendments Nos. 2 and 29, with which it is grouped, are technical. They represent a final tidying up of the arrangements by which the Assembly is prevented from encroaching on the main elements of the Bill, either by the subject matter of clauses being made an excepted matter or by the text of the clauses being entrenched under Clause 7; that is, protected against modification by the Assembly. I beg to move.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 3:

Page 4, line 10, at end insert— ("(3) In this Act "Minister", unless the context otherwise requires, means the First Minister, the deputy First Minister or a Northern Ireland Minister.").

The noble Lord said: My Lords, government Amendments Nos. 3, 5 and 26 are purely a matter of drafting and move one final time our old friend the omnibus definition of "Minister", which would now occur in its rightful place where the expression is first used in Clause 7. It will be deleted from Clause 9, and the reference in the interpretation clause—Clause 98—is corrected.

Amendment No. 4, in the name of the noble Lord, Lord Skelmersdale, is an amendment to Amendment No. 3. I am grateful to him for the amendment, which I believe seeks to clarify the drafting in the definition of "Minister" in Clause 7. However, I believe that the amendment is not necessary. I believe that, as it stands, the definition is entirely clear. Amendment No. 3 amends Clause 7 to include a definition of "Minister" as meaning, the First Minister, the deputy First Minister or a Northern Ireland Minister". There can be no doubt who the First Minister and the Deputy First Minister are; they are provided for in Clause 16. It is clear that the Bill's definition of a "Northern Ireland Minister" does not cover junior ministers.

Clause 17 provides that the determination on the number of ministerial offices should cover, the number of Ministerial offices to be held by Northern Ireland Ministers". The following clause, Clause 18, deals with how these offices are filled; namely, by the d'Hondt formula. The posts allocated by Clauses 17 and 18 are clearly the senior ministerial posts and are separate from the permissive provisions on junior Ministers in Clause 19.

I do not believe that there is any doubt about the definition of "Minister" in the Bill, and I therefore hope that the noble Lord, Lord Skelmersdale, will not feel it necessary to press his amendment. I beg to move.

Lord Skelmersdale moved, as an amendment to Amendment No. 3, Amendment No. 4:

Line 4, at end insert ("other than those determined under section 19").

The noble Lord said: My Lords, had I had the benefit previously of hearing what the Minister has just said, I probably would not have put down the amendment. The Minister described the Bill as not having had an ordinary timescale. Since he has shifted the definition, it has not even had an orderly timescale, let alone an ordinary one.

I do not yet understand exactly what a "Northern Ireland Minister" is. I am sure that the noble Lord can tell me. What kind of an animal is he? The noble Lord made clear many times in our proceedings on the Bill that the Government will not accept any amendment which seeks to alter the terms of the Good Friday agreement. I would be the first to agree with him that, since it was confirmed in a referendum in both the North and the South, that agreement was the expressed will of the population and that any unravelling—to use a word that the Minister has used in previous stages of the Bill—should be in response to the wishes of the people of Northern Ireland and not done arbitrarily from Westminster.

The House will remember that the agreement states that executive authority is to be discharged on behalf of the Assembly by the First Minister and Deputy First Minister and up to 10 Ministers with departmental responsibilities. The noble Lord described his amendment as a drafting amendment. It is in a sense a technical amendment in that it was introduced into Clause 9 as a definition which was required because the phrase "a Minister" appears in several places in the Bill and clearly ought to mean the Northern Ireland Cabinet, consisting of the First Minister, the Deputy First Minister and the departmental Ministers, as the noble Lord has just said. The departmental Ministers presumably have a measure of control over junior Ministers appointed under Clause 19, which the Government inserted in Committee.

The purpose of my addition to the government amendment is twofold. Its first purpose is to thank the Minister for the amendment brought forward on Report to make it clear that junior Ministers must be members of the Assembly. I regret that I was not in the Chamber at the time to hear what the Minister very generously said on that occasion.

Secondly, it is surely right to exclude junior Ministers from the body which I referred to a few moments ago as the Northern Ireland Cabinet. Clause 22(1), for example, does precisely that: functions may not be conferred legislatively on a junior Minister. It seems to me imperative that any definition clause, which the government amendment is, should make it clear as soon as practicable in the Bill what is included and what is not.

I take what the Minister said in respect of my amendment to the government amendment extremely seriously. Nonetheless others may wish to discuss the matter. I therefore beg to move the amendment.

Lord Holme of Cheltenham

My Lords, I am grateful to the noble Lord, Lord Skelmersdale, for moving his amendment, if only because it gives us a chance briefly to discuss the role of the junior Ministers. I realise from his remarks at a previous stage of the Bill that the noble Lord, Lord Dubs, believes that there is not yet a consensus as to what functions they should exercise or as to how they should be appointed but that it is clear that they will not have a major role. In my opinion, it is important to know what role they will have, and this is a chance to discuss that matter. It is one thing to say that the role of junior Ministers is still unclear; it is altogether something else to say that they are outside our consideration. They will be an important part of the machinery of government in Northern Ireland.

I think the noble Lord, Lord Skelmersdale, would agree that his Amendment No. 6 would be redundant if his Amendment No. 4 were to be passed.

Lord Skelmersdale

My Lords, and vice versa; that is quite right.

Lord Cope of Berkeley

My Lords, I am one of those who expressed some hesitation about the appointment of junior Ministers. The Northern Ireland Office has functioned for several decades with sometimes four, sometimes five, Ministers managing all the departments, and indeed more than will be the responsibility of the executive, at least in the initial stages, because the Northern Ireland Office has had responsibility also for security matters as well as for the departments which are to be devolved.

Nevertheless, I am not against the appointment of junior Ministers, if that is what is required in Northern Ireland. I can see that it will help in the management of the Assembly—which will be difficult enough, given the complexities—to have some junior Ministers to help the 10 departmental Ministers who will be in charge.

I take this opportunity to draw attention to the fact that, although we have been told by the Minister at frequent intervals that we have to stick to the absolute letter of the agreement, the insertion of junior Ministers into the Bill is a departure from that agreement. Of course, I understand that it departs from the agreement with the encouragement of the parties in Northern Ireland; it is a matter that was not thought of when the precise words of the Good Friday agreement were settled. But there have been a number of other matters of the same character that we have discussed in the course of the Bill. This is one place where the agreement is being "bent", which I think may be a more appropriate word than "broken".

As the Minister said, Amendment No. 3 once again moves the definition of "Minister". The noble Lord described it as moving the definition to its rightful place. As I said on an earlier occasion, I believe that its rightful place is in the definitions clause, Clause 98, which contains every other definition that applies to whole of the Bill. There are some definitions which apply to only one clause, and I think it is sensible to have those in the clause to which they apply, but it seems to me that general definitions are much better put in a single interpretation clause. When so many other definitions are contained in Clause 98, I believe that this one should be there as well. However, I made that point earlier and it did not commend itself to the Government, so I shall not press it at this stage.

Lord Molyneaux of Killead

My Lords, I am not opposed to the appointment of junior Ministers provided there is a general role for them. Being rather cynical, I cannot help but recall the time when Stormont was flourishing, admittedly in its last decade, when certain Prime Ministers occasionally appointed junior Ministers but did not seem to have any jobs for them. My cynicism then took root. I felt that when the Prime Minister of the day, whoever he might have been, was in some difficulty with his own party, it was perhaps a temptation to appoint junior Ministers to ensure that a vote of confidence could be carried without having to rely entirely on Back-Benchers. I hope that my suspicion was not well-founded, but, as an outsider at that time, I am afraid that that was my perception.

At present the Minister and his colleagues have the responsibility for two major departments and, if I may venture to say so, discharge their duties efficiently and well. We should therefore consider very carefully whether there is a need for duplication of responsibility which I do not believe would be in anyone's interests. I believe that the First Minister and ultimately the Secretary of State may be under pressure from those who feel that unless all of the tiddler parties are placed in posts, junior ministries and so forth, it will be difficult to keep the peace. Although that may be an unworthy thought, we may need to be prepared for such pressure being applied at a later stage.

Lord Dubs

My Lords, I suppose that the nearest thing to a cabinet in the Bill is an executive committee set up under Clause 20. That does not include junior Ministers but only the First Minister, the Deputy First Minister and Northern Ireland Ministers; that is, those whose positions are established under Clauses 17 and 18. As to the role of junior Ministers, we shall have a greater opportunity to discuss that matter in the context of Amendment No. 6 tabled by the noble Lord, Lord Skelmersdale. I do not wish to cut across the debate that we shall have then, except to say that the noble Lord, Lord Molyneaux, made reference to "tiddler parties". I do not endorse such a pejorative expression. The smaller parties will not necessarily have an opportunity to have ministerial posts. We have left it mainly to the Assembly, the First Minister and Deputy First Minister to decide what is appropriate in the way of junior Ministers. That is why the powers to establish junior Ministers are simply enabling. I say no more than that; otherwise, I shall pre-empt the debate on the next amendment.

Lord Skelmersdale

My Lords, I am grateful to all noble Lords who have spoken in this mini debate that went rather wider than I expected in the context of this particular amendment. When the Minister sought to pre-empt my moving the amendment I understood him to say that the addition of, other than those determined under section 19", was unnecessary because it was quite clear that in his amendment deputy Ministers were not included. Therefore, I am delighted to hear that I have got it right. The noble Lord indicates by a nod that that is so. In that case, I am delighted that my amendment is not needed. I beg leave to withdraw my amendment.

Amendment No. 4, as an amendment to Amendment No. 5, by leave, withdrawn.

On Question, Amendment No. 3 agreed to.

8 p.m.

Clause 9 [Scrutiny by Ministers]:

Lord Dubs moved Amendment No. 5:

Page 4, line 23, leave out subsection (3).

On Question, amendment agreed to.

Clause 22 [Statutory functions]:

Lord Skelmersdale moved Amendment No. 6:

Page 12, line 24, leave out ("(but not a junior Minister)").

The noble Lord said: My Lords, Amendment No. 6 has a very simple objective. It is so simple that it is almost self-explanatory. The House has just agreed in Amendment No. 3 that in this Bill "Ministers" as defined does not include "junior Ministers". Therefore, one cannot have it both ways. If "Ministers" does not include "junior Ministers" there is no need to exclude junior Ministers from this particular clause. I beg to move.

Lord Dubs

My Lords, I regret that I cannot welcome Amendment No. 6 moved by the noble Lord, Lord Skelmersdale. This amendment seeks to enable junior Ministers to have statutory functions conferred upon them.

Lord Cope of Berkeley

My Lords, that is not so at all. The House has just agreed that the definition of "Minister" does not include "junior Minister". Therefore, functions are not being conferred on a junior Minister but only on what may be called a senior Minister. All that the amendment seeks to do, if I have correctly understood my noble friend, is to improve the drafting considerably.

Lord Dubs

My Lords, I am advised that there may have been a misunderstanding about the purpose of the amendment, in that it does not include junior Ministers. I am still not sure that I have completely understood the purpose of the amendment. The noble Lord, Lord Skelmersdale, moved his amendment very briefly. I am not sure what he seeks to achieve. However, I believe that the purpose of this amendment, in the circumstances, is unnecessary.

Lord Holme of Cheltenham

My Lords, it is quite clear that the only purpose of the amendment is to remove from the Bill redundant words. I suggest that the Government are well advised to accept this helpful drafting amendment. From what the Minister said, he may perhaps have misunderstood the purpose of the amendment.

Lord Skelmersdale

My Lords, there has been some confusion in this matter. As the noble Lord, Lord Holme of Cheltenham, said, my intention is to tidy up the Bill and remove what I regard as extraneous words. I was reinforced in my belief by the response of the Minister when dealing with Amendment No. 3. However, given the way in which parliamentary proceedings work we do not have to make a decision on this matter tonight. The noble Lord and his advisers can reflect upon it and it can come back from another place. A great raft of amendments will come back. I am sure that my noble friend Lord Cope can give me the exact number, but I believe that about 450 amendments have to be agreed to and discussed in another place. The Government will have ample opportunity to return to this matter if I am right in my assertion that these words are superfluous.

Lord Dubs

My Lords, before the noble Lord sits down perhaps I may seek to clarify matters. I regret the misunderstanding that has arisen on this particular amendment. As I understand it, the noble Lord wants to delete a term that he believes to be redundant. That would be so if the clause referred to a Northern Ireland Minister. However, the particular wording refers to "a Minister". Therefore, the words in brackets are appropriate to clarify what is meant.

Lord Skelmersdale

My Lords, I am becoming even more confused. Presumably, the Minister was listening to the words that he uttered in dealing with Amendment No. 3 which state: In this Act 'Minister', unless the context otherwise requires"— in this particular case it does not— means the First Minister, the deputy First Minister or a Northern Ireland Minister". A Minister is a Minister is a Minister as defined in Clause 7 as we have just amended it.

Lord Cope of Berkeley

My Lords, before my noble friend sits down, I am not sure that he was correct in suggesting that this matter could be resolved in the course of this Bill going to the other place and returning to this House. If this amendment is not made there will be no opportunity for the other place, or this House at a later stage, to make it. If the amendment is made now and it turns out that it should not have been made, the other place can correct it and this House can agree to that correction. Therefore, I believe that we should make the amendment now and if necessary the other place can correct it. It is a very simple drafting amendment that brings this particular part of Clause 22 into line with the amendment agreed a few moments ago.

Lord Skelmersdale

My Lords, I do not know whether the Minister wants to intervene before I finally sit down. I am very conscious of the fact that this is Third Reading.

Lord Dubs

My Lords, I regret the misunderstanding that has occurred. The intention is that the Assembly should not be able to confer statutory functions on junior Ministers. If Clause 22 were silent on the matter—for example, as it is in relation to local authorities—the Assembly could confer functions. That is the point at issue. I still urge the noble Lord not to press his amendment.

Lord Skelmersdale

My Lords, this places me in a rather difficult position. If, with the excision of the words, but not a junior Minister", the clause allows legislative functions to be conferred on junior Ministers, we have made a glaring error in agreeing Amendment No. 3. However, I believe that there will be an opportunity for the other place to correct this matter despite what my noble friend Lord Cope said simply because the Bill has been amended so much. I am sure that if Ministers and their advisers decide that I am right they will find a way of squeezing it in somewhere. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 [Financial control, accounts and audit]:

Lord Dubs moved Amendment No. 7:

Page 31, line 25, after ("made,") insert ("an Act of the Assembly or other").

The noble Lord said: My Lords, Amendments Nos. 8 and 9 are amendments of real substance and represent a further strengthening of the protection for proper audit in the Bill. They reflect a helpful dialogue which has been going on between my colleague, Paul Murphy, and the chairman of the Public Accounts Committee in another place.

Amendment No. 8 to Clause 60 ensures that anyone other than the Comptroller and Auditor General who exercises auditing functions has the same freedom as the comptroller from direction or control by the devolved authorities.

Amendment No. 9 to Clause 65 is intended to underpin the independence of the Comptroller and Auditor General for Northern Ireland by ensuring that he cannot be removed unless two-thirds of the total number of Members of the Assembly endorse that proposition.

Amendment No. 7 to Clause 60 is a matter of drafting and there is a related repeal in Amendment No. 39 for incorporation into Schedule 15.

Lord Cope of Berkeley

My Lords, as the Minister said, Amendments Nos. 8 and 9 are a useful strengthening of the Comptroller and Auditor General's position. I am not sure why Amendment No. 7 is necessary. It adds the words, an Act of the Assembly or other in front of the words, "Northern Ireland legislation". However, the words "Northern Ireland legislation" are specifically defined in Clause 98 as including acts of the Assembly. The amendment therefore seems to me redundant. The words to be inserted are simply unnecessary, given the definition in Clause 98 at page 55 of the Bill.

While the Minister seeks to confirm what I say, perhaps I may say a word or two about the other two amendments. As the Minister said, these amendments reinforce the position of the Comptroller and Auditor General. I think that is desirable. In particular, the two-thirds rule, applied under Amendment No. 9, means not merely two-thirds of those voting but two-thirds of the whole membership of the Assembly. That is a slightly novel formulation in UK law; namely, that two-thirds of a legislative assembly should have to vote on an issue. However, I do not think that it is necessarily undesirable on those grounds alone and I support the reinforcement of the position of the Comptroller and Auditor General. My main reason for intervening, however, is to raise the point on Amendment No. 7.

Lord Holme of Cheltenham

My Lords, I reinforce the point made by the noble Lord. Page 55, line 26 makes quite clear that Acts of the Assembly are included in the Northern Ireland legislation. Therefore, this is an issue of redundancy that we are seeking to "clean up".

I support Amendments Nos. 8 and 9 most warmly. It is helpful to obtain for the Comptroller and Auditor General maximum independence from the Assembly. In that context I do not mind the somewhat high test of two-thirds of the Members rather than two-thirds of those present. If anything, that establishes an even higher standard of non-interference.

Lord Dubs

My Lords, I am grateful for the support for some of the amendments. Perhaps I may clarify the position as regards Amendment No. 7. The amendment is necessary because paragraph 22(e) of Schedule 2 would otherwise prevent the Assembly from legislating on the matter. This interacts with paragraph 22 of Schedule 2. I think that it is necessary and that it clarifies the position. I hope that that is acceptable to the House.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 8:

Page 32, line 14, at end insert— ("( ) Persons (other than the Comptroller and Auditor General for Northern Ireland) charged with the exercise of any function under subsection (2) or other like function conferred by Northern Ireland legislation shall not, in the exercise of that or any ancillary function, be subject to the direction or control of any Minister or Northern Ireland department or of the Assembly.").

On Question, amendment agreed to.

Clause 65 [Audit]:

Lord Dubs moved Amendment No. 9:

Page 33, line 29, at end insert— ("( ) A recommendation shall not be made to Her Majesty for the removal from office of the Comptroller and Auditor General for Northern Ireland unless—

1. (a) the Assembly so resolves; and
2. (b) the resolution is passed with the support of a number of members of the Assembly which equals or exceeds two thirds of the total number of seats in the Assembly.").

On Question, amendment agreed to.

Clause 69 [The Commission's functions]:

[Amendment No. 10 not moved.]

Clause 71 [Restrictions on application of rights]:

Lord Dubs moved Amendment No. 11:

Page 36, line 20, after ("tribunal") insert ("on the ground that any legislation or act is incompatible with the Convention rights").

The noble Lord said: My Lords, Amendments Nos. 11 to 13 in Clause 71 are technical amendments which ensure that the human rights commission can bring proceedings involving non-ECHR issues. The final amendment provides that the Advocate General for Scotland is exempt from the restrictions, as well as the other Law Officers listed. He will, of course, be the United Kingdom Law Officer for Scotland after devolution.

8.15 p.m.

Lord Lester of Herne Hill

My Lords, these amendments all seem unobjectionable and welcome. However, perhaps the Minister can clarify one matter on Amendment No. 14 which adds the Advocate General for Scotland to the list of exempted persons. We wonder why the Government are not also adding the human rights commission and the equality commission to this list. It would seem to us perfectly right in principle to do so. I should be grateful if that could be clarified.

Lord Dubs

My Lords, I think I have understood the noble Lord's point correctly. We shall shortly be bringing forward the Fair Employment and Treatment Order to give effect to further aspects of the White Paper Partnership for Change. Among other things, the order will extend the protections available under the fair employment legislation in Northern Ireland to cover the provision of goods, facilities and services. I think that that is the point the noble Lord makes.

Lord Lester of Herne Hill

My Lords, I am dealing with Amendment No. 14 which inserts the words: the Advocate General for Scotland". The amendment concerns the exemption to the victim test in Clause 71 so as to enable the Attorney-General for Northern Ireland and the Lord Advocate to bring proceedings notwithstanding that they are not victims of breaches of convention rights. My point is that that has to be done, quite sensibly, because these are all Law Officers who are in a position, in the public interest, to seek to ensure compliance with convention rights and obligations. My question to the Minister is why one would not include the human rights commission as a law enforcement agency and, to the extent that it is relevant, the equality commission and give them standing to be able to bring strategic enforcement proceedings in the public interest, even though they are not individual victims of breaches of the convention.

I hope that I have clarified my question. The reason it is important is that if we are to set up these new commissions, we need to use their skill and expertise to good advantage in the public interest. The matter should not be left only to Law Officers, it seems to me. The commissions themselves should have that strategic role and therefore should be exempt from the victim test in order to bring those proceedings.

Lord Dubs

My Lords, I seem to remember that we discussed this in detail at earlier stages of the Bill. I am not sure that I am able to go into the same detail now as I did then. The point at issue is that the Law Officers need to be able to bring devolution proceedings, but in line with the policy to which Parliament has agreed in relation to the Human Rights Act, only victims should be able to bring ECHR cases. That is the point.

As regards the noble Lord's further points, we exhausted them in earlier debates on the Bill.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 12:

Page 36, line 22, leave out ("in respect of an act").

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 13:

Page 36, line 23, after second ("the") insert ("legislation or").

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 14:

Page 36, line 26, after ("Ireland") insert (", the Advocate General for Scotland").

On Question, amendment agreed to.

Clause 75 [Statutory duty on public authorities]:

Lord Dubs moved Amendment No. 15:

Page 38, line 14, leave out ("in Northern Ireland shall in carrying out its functions") and insert ("shall in carrying out its functions relating to Northern Ireland").

The noble Lord said: My Lords, Amendment No. 15 is a matter of drafting. It concerns Clause 75 which deals with statutory equality duties. It brings Clause 75(2) into line with Clause 75(1) in making clear that it bites on public authorities in carrying out their functions relating to Northern Ireland. We are not of course seeking to regulate in the Bill what an authority with a remit extending elsewhere in the United Kingdom does outside Northern Ireland.

On Question, amendment agreed to.

Clause 76 [Discrimination by public authorities]:

Lord Lester of Herne Hill moved Amendment No. 16:

Page 38, line 38, after ("Ireland") insert (", including functions relating to the provision of goods, facilities or services to the public or a section of the public,").

The noble Lord said: My Lords, the purpose of the amendment is to seek clarification on an issue which may be important or may turn out to be trivial. Clause 76(1) makes it unlawful, for a public authority carrying out functions relating to Northern Ireland to discriminate … on the ground of religious belief or political opinion".

The problem arises because of case law. Unless it is made clear in Clause 76, it may be construed not to include functions relating to the provision of goods, facilities or services to the public or a section of the public. In earlier debates, the Minister indicated, as he did a few moments ago, that it is the Government's intention by Order in Council to plug the gap by amending the fair employment legislation. Speaking for myself, I do not understand why that is the chosen method, or whether it will fill the gap. Clause 76 is a constitutional guarantee embodied in the Northern Ireland Bill. It applies to the functions of a public authority relating to Northern Ireland right across the board.

I shall be grateful if the Minister can make clear whether the proposed amendment by Order in Council to the fair employment Act would have the same effect as my amendment. If it had absolutely the same effect, the fact that it is done by subordinate legislation under the fair employment legislation rather than by amending what will become this primary legislation of course will not matter. I am not moving the amendment to raise an issue of form; I am only moving it to raise an issue of substance. If one can have an assurance that the purpose of my amendment and its scope will be met by the introduction of subordinate legislation, I shall be entirely satisfied.

On the other hand, if there is any gap between my amendment and what the Government intend, speaking again for myself, I should much prefer the Northern Ireland Bill to spell out on its face that it is unlawful for a public authority to discriminate on religious grounds where it is providing goods, facilities or services to the public or a section of the public in Northern Ireland. Otherwise there would be a serious gap in the protection given to the people of Northern Ireland against discrimination by public authorities. I beg to move.

Lord Cope of Berkeley

My Lords, I hesitate to intervene in a legal reading of the Bill. However, the provision of goods, services and facilities to the public must be implied by the Bill. Some public authorities' sole function is to supply a service. If it did not include goods and services without the necessity of specific reference, the clause would be in some cases totally ineffective.

If we were to insert the words "including goods or services", would we not also have to insert them in Clause 75(1)? Otherwise it might be held that by comparison Clause 76 applied to goods and services and Clause 75 did not. That would not be satisfactory. I hope that the amendment is unnecessary. I agree with the purpose underlying it, wishing to include public authorities supplying goods and services in the clause. I hope that it is unnecessary to achieve that purpose.

Lord Lester of Herne Hill

My Lords, before the noble Lord sits down, perhaps I may say that I agree with him that it seems extraordinary if such provision is not covered. However, the reason that it may be held not to be covered is the curious reasoning of a majority of the Law Lords in the case of Re Amin under the Race Relations Act, holding that marketplace functions only were within the scope of that legislation, and not provision of goods and services by a public authority. It is only for that rather boring reason that I wish to ensure that what the noble Lord, Lord Cope, said, is intended to be reflected in Clause 75, and will be reflected in any consequential amendment to the fair employment legislation.

Lord Cope of Berkeley

My Lords, the noble Lord has indicated why I was unwise to tread in these legal waters.

Lord Dubs

My Lords, Amendment No. 16 proposed by the noble Lord, Lord Lester, would add to the definition of "functions" in respect of which discrimination is banned, functions relating to the provision of goods, facilities or services". We certainly want the kind of functions that the amendment describes to be covered by this provision. But it is our clear understanding that the clause as drafted covers all acts of relevant public authorities. The term "functions" in this clause is already wide enough to achieve the desired effect of the amendment.

However, perhaps I may cover the point about the fair employment and treatment order which I mentioned earlier. That gives effect to further aspects of the White Paper, Partnership For Change. Among other things the order will extend the protections available under fair employment legislation in Northern Ireland to cover provision of goods, facilities and services. The difference between the forthcoming fair employment and treatment order and this clause is that the new order will cover indirect as well as direct discrimination.

In this Bill we are simply re-enacting the relevant provisions of the 1973 Act. But the order to which I referred would clearly extend into indirect as well as direct discrimination.

Lord Lester of Herne Hill

My Lords, before the Minister sits down will he be so kind as to explain one matter? Will that protection against discrimination apply to public authorities as well as to private bodies? Will it apply to government and public authorities? It sounds as though it will. Perhaps I can have clarification on that.

Lord Dubs

My Lords, the answer is yes.

Lord Lester of Herne Hill

My Lords, that is a most welcome announcement by the Government. It seems to me to fill an important gap. I express great appreciation and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

Clause 77 [Unlawful oaths etc.]:

Lord Dubs moved Amendment No. 17:

Page 40, line 15, leave out ("department or authority") and insert ("authority (other than a Northern Ireland department)").

The noble Lord said: My Lords, this amendment is a matter of drafting. It omits a duplicated reference within the clause to a Northern Ireland department. Without the amendment Northern Ireland departments would be included both in subsection 4(d) and subsection (5) of the clause. I beg to move.

On Question, amendment agreed to.

Clause 80 [Legislative power to remedy ultra vires acts]:

Lord Kingsland moved Amendment No. 18:

Page 41, line 10, leave out ("or expedient").

The noble Lord said: My Lords, this amendment seeks to exclude the words "or expedient" from Clause 80(1) which states, The Secretary of State may by order make such provision as he considers necessary or expedient". Besides being rather chilling, the word "expedient" in this context is also otiose. The word "necessary" is cast in subjective terms. The expression is, "he considers necessary". I believe that that is sufficient to encompass any acts of expediency that the Secretary of State may wish to commit. If the Minister does not agree with me perhaps he would like to speculate on what acts of expediency the Government might have in contemplation that go beyond a subjective analysis of necessity.

Amendment No. 19 concerns the circumstances in which subordinate legislation might be issued to affect an ultra vires decision either by a Minister or by a Northern Ireland department. The reason for the amendment is to inquire—ultra vires what? Is the clause intended to affect decisions by a Minister that are ultra vires the reserved powers; or is it intended to affect decisions which are ultra vires other legislation such as European Community legislation, the Human Rights Act or certain categories of international obligation? Or is it intended to go even further than that and affect ultra vires in the general sense that it is used in administrative law? If it is the latter, then I express great concern; because it suggests that, for example, subordinate legislation could issue to change a court's decision that an act of a Minister was against the rules of natural justice.

I have one final point to make in relation to Amendment No. 19. If subordinate legislation is going to issue in one or other of these circumstances, when will that act take place? I can quite understand that it might take place after a court has taken its decision. I put it to the Minister that it would be quite improper for it to issue during litigation. I say that because it is a well established principle in regard to the separation of powers, that the courts do not interfere in parliamentary proceedings and parliament does not interfere in judicial proceedings. I shall be most interested to hear from the Minister whether or not there is intended to be some constraint on the timing of the issue of any subordinate legislation that the Minister might consider necessary. I beg to move.

Lord Lester of Herne Hill

My Lords, I agree entirely with everything that the noble Lord, Lord Kingsland, has said. He has raised several important points which need to be addressed at this late stage in the passage of the Bill. I entirely agree with him that the words "or expedient" are unnecessary in Clause 80(1).

I would like to explain why I believe it important, not merely on the grounds of drafting, that we do not put in more words than we need in that clause. As I understand it, the scheme of the legislation is, wherever possible, to leave it to the courts to resolve issues of vires and to avoid Ministers becoming embroiled in political disputes and using override powers to remedy ultra vires acts except where necessary.

The way in which Clause 80 is drafted at the moment gives ample scope for discretionary powers to be exercised by the Secretary of State because, as the noble Lord, Lord Kingsland, said, it does not say, make such provision as is necessary … in consequence of but, make such provision as he considers necessary". That is a subjective discretion which will only be reviewed by the courts if the Minister takes leave of his or her senses. The words "or expedient" are a rigmarole or boiler plate statutory language, which one finds again and again in modern Bills. They are simply put in for the administrative convenience of the government of the day who say to themselves, "Let us shove in the words 'or expedient' in case there is some other reason that we cannot think of at the moment which might arise in the future and make quite sure that we have very wide powers indeed". Since this provision is expressed in subjective form, it is not necessary or expedient to include the words "or expedient" in the Bill.

As regards the other points raised by the noble Lord. Lord Kingsland, again I entirely agree with him. We must be very careful to ensure that the way in which a Minister's override powers are exercised does not conflict with the rule of law and the judgments of the independent judiciary whether retrospectively or otherwise.

Lord Dubs

My Lords, we have had a thorough debate of the clause on legislative power to remedy ultra vires acts, to which these amendments refer, in Committee and on Report. The clause is based on Clause 107 of the Scotland Bill, which your Lordships have approved. Amendments Nos. 18 and 19 would change aspects of the clause which correspond to the Scottish provisions.

The first amendment would confine the Secretary of State's present power under the section to make provision she believes necessary or expedient, to solely that provision that she believes necessary. I believe this is a bad amendment because it creates uncertainty. There may be a range of steps that have to be taken in order to deal with the consequences of a finding of invalidity of legislation that has been widely relied on for years. It might be a point of endless argument among lawyers whether such steps were necessary, or merely expedient. The fact that the Scottish clause refers to expedient provision might lead to a particularly narrow view being taken of the scope of this provision, if it were amended. Such uncertainty might lead to us being unable to take steps in Northern Ireland that might be taken in Scotland, and provoke possible further litigation itself.

An order under this clause is subject to affirmative resolution at Westminster, and we gave undertakings earlier of consultation with the devolved authorities if this clause was used when there had not been a court judgment. Those are substantial safeguards against any possibility of abuse. Neither do I believe it justifiable to confine the use of the clause to the cases set out in Amendment No. 19. Those are certainly the primary cases at which the clause is directed. But it is possible to envisage other kinds of cases, under other legislation, where a provision may be ultra vires, and hardship would occur unless the consequences could be ameliorated by an order under this clause.

The clause may be something of a last resort, and other more conventional courses, like corrective legislation by the assembly, might well be more appropriate in many cases. But there may be cases where resort to this clause is the best solution. The affirmative resolution procedure is the safeguard for it. The Scotland Bill shows greater flexibility than the noble Lord proposes, and I believe we should have no less flexibility for Northern Ireland.

Perhaps I may elaborate on the point made about subordinate legislation, which we discussed at Report stage. My noble friend Lord Williams said that the Secretary of State's power in that respect is judicially reviewable. That consideration would also weigh heavily on the mind of the Secretary of State if she sought to make legislation where action was pending in the courts. As I said before, we should recall that such orders are subject to affirmative resolution.

Lord Kingsland

My Lords, before the Minister sits down, I asked in relation to Amendment No. 18 whether he would like to give your Lordships' House an example of a situation in which the Minister might consider that action was not necessary but was expedient. For reasons that I well understand, he did not proffer any such illustrations.

As regards Amendment No. 19, I wish to press him on two matters. First, is he saying that Ministers can issue subordinate legislation to change the decisions of courts which have been based on ordinary administrative law, such as the principles of natural justice or the principles of reasonableness? If so, this legislation is going way beyond its terms of reference. Secondly, can he assure the House that if and when subordinate legislation is issued it is not issued while judicial proceedings are underway?

Lord Dubs

My Lords, the answer to the first question is no. I shall turn to his second question in a moment. As was said by the noble Lord, Lord Williams, at the Report stage, there is a power judicially to review a decision by the Secretary of State. I would have thought that that would be a safeguard, particularly in view of the fact that it would weigh on the mind of the Secretary of State if she sought to make legislation while action was pending in the courts.

The safeguard exists and I would have thought that if action were pending in the courts the Secretary of State would be unlikely to take such a step because of the possibility of judicial review. That goes a long way towards dealing with the noble Lord's point.

As regards his request for an example of the difference between "expedient" and "necessary", I do not want to be tempted down that path and the noble Lord would not expect me to be. I am sure he will take the point that, given the difference between the Scottish and Northern Ireland legislation, if we were to go down the path of the amendment we would be left in an unsatisfactory position. For that reason alone, the noble Lord ought to accept the use of the word "expedient".

Lord Lester of Herne Hill

My Lords, I am grateful to the Minister for giving way. Is he aware that by retaining the words "or expedient", as he tends to do for Scottish reasons, the effect is to make judicial review almost impossible. If the word "necessary" were inserted and if a subjective discretion were included it would be possible. However, the safeguard of judicial review is diluted if the words "or expedient" are included. In view of what the Minister has just said, that is one good reason for accepting the amendment; to ensure that the courts have the power judicially to review the subjective discretion of the Minister where there is no necessity for using his powers.

Lord Dubs

My Lords, I am not sure that I take the noble Lord's point. In view of the fact that the Scottish Bill refers to "expedient", the provision might lead to a particularly narrow view being taken of its scope if it were amended. Such uncertainty might lead to us being unable to take steps in Northern Ireland which might be taken in Scotland. I believe that in this respect it would be better to keep the two pieces of legislation in line, otherwise the wrong conclusions might be drawn as to the reasons for the differences between them. Given that the point was argued fully during debates on the Scottish Bill, I am reluctant to go further. I believe that the wording is proper. It coincides with what has been provided in the Scottish Bill and is therefore sensible.

I refer to the point made by the noble Lord, Lord Kingsland. He asked whether the Secretary of State could use the power unless something unlawful happened. That would ultimately be for the courts to decide. What the Secretary of State then does by way of subordinate legislation is rightly a matter for her judgment. I suggest that that distinction is the proper one.

Lord Kingsland

My Lords, before the Minister sits down, he has been extremely generous in dealing with perhaps a record number of supplementary questions on Third Reading. On the other hand, the matter was unearthed in the Scotland Bill only on Third Reading. Therefore, there are good reasons for the fact that it has surfaced in this Bill only now. As regards separation of powers, the Minister almost met my question, but not quite. Can he assure the House that there will be no circumstances in which legislation will be issued to affect judicial proceedings before they are terminated?

Lord Dubs

My Lords, I believe that the answer to that is yes. I am reluctant to be 100 per cent. categoric, but I understand that the answer is yes.

Lord Kingsland

My Lords, in those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

[Amendment No. 19 not moved.]

Clause 81 [Powers of courts or tribunals to vary retrospective decisions]:

Lord Dubs moved Amendment No. 20:

Page 42, line 1, after ("(4)") insert ("or, where such notice is given to the First Minister and the deputy First Minister, those Ministers acting jointly").

The noble Lord said: My Lords, Amendments Nos. 20 and 21 make certain drafting changes in Clause 81, which concerns the powers of courts or tribunals to vary retrospective decisions. Amendments Nos. 34 to 36 make similar changes in Schedule 10, which concerns devolution issues. They clarify the drafting of the way in which the First Minister and Deputy First Minister are to act in such proceedings. I beg to move.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 21:

Page 42, line 8, leave out ("acting jointly").

On Question, amendment agreed to.

Clause 83 [Interpretation of Acts of the Assembly etc.]:

Lord Kingsland moved Amendment No. 22:

Page 43, leave out subsection (2) and insert— ("( ) The provision shall be read as narrowly as is required for it to be within competence, if such reading is possible, and is to have effect accordingly.").

The noble Lord said: My Lords, I am encouraged by what the Minister said during our brief discussion of Clause 80. He suggested that it was important to keep closely to the Scottish precedent. I say to the noble Lord that what is sauce for the goose is sauce for the gander. We have an interpretation clause in the Scottish Bill which I believe seeks to achieve the same objective as the interpretation clause in this Bill.

The matter was addressed by the noble Lord, Lord Williams of Mostyn, at the Report stage. He claimed that there was great merit in the version in the Northern Ireland Bill. So which is it to be? Is it the case that the Scotland Bill ought to have taken its lead from the Northern Ireland Bill?

At the beginning of this parliamentary Session we had only one rule of interpretation, laid down by the common law. Since then we have acquired three further rules of interpretation; one in the Human Rights Act, one in the Scotland Bill and another in the Northern Ireland Bill. Each one of those drafts seeks to achieve the same objective; that is to say, the objective of sympathetic interpretation. Where it is possible to interpret a clause or an expression so that it is intra vires it should be so interpreted. If that is so why is this simple and straightforward aspiration expressed in three different ways? It is likely to lead to much confusion when the judges get hold of it. I beg to move.

Lord Lester of Herne Hill

My Lords, again, I entirely agree with what the noble Lord, Lord Kingsland, said. The problem is that one is playing curious games here. Sometimes it suits to follow the Scotland Bill and sometimes not; sometimes it suits to follow the Human Rights Act and sometimes not. However, the principles of interpretation which the courts must apply should be consistent as far as possible between the three devolution Acts and the Human Rights Act. This amendment has the virtue of seeking to make the legislation user-friendly and consistent. In my view, it is to be welcomed for those reasons.

Lord Dubs

My Lords, I deal first with the point of whether in all respects we should replicate the Scotland Bill. Amendment No. 22 picks up a point the noble Lord, Lord Cope, raised at Report. I have written to him about it this morning, and placed a copy of my reply in the Library.

The amendment would insert a provision borrowed from Clause 101 of the Scotland Bill in our Bill. As I have written to the noble Lord, I believe the transplantation is inappropriate. Though the Scottish clause and ours are drafted to achieve similar objectives, they reflect the different structures of the two Bills. The Scotland Bill has a general concept of devolved competence as respects subordinate legislation. Ours has a more restricted concept of invalidity under Clause 24 or 76. The drafting reflects that.

But I assure the noble Lord that the two clauses closely resemble each other in effect. Both clauses are directed at possible readings of legislation; both require that where, of such possible readings, a broader one would lead to a finding that an Act would be outside legislative competence, or subordinate legislation invalid, and a narrower one would lead to a finding that it was within competence or valid, the narrower one is to be preferred.

I hope that, in view of my letter and of what I have said, the noble Lord will not press his amendment. I hope too that I have reassured the noble Lord, Lord Kingsland, that, although there are instances where it is appropriate to replicate the Scottish legislation in our legislation, there are other instances where that is not appropriate because the structure of our Bill is different and has a different starting point from the Scottish legislation. I hope the noble Lord is satisfied with my answer.

Lord Kingsland

My Lords, I thank the Minister for his reply. If I say that I am not as satisfied with his answer as he would like me to be, I hope he will not be offended. I have read the letter, a copy of which he has placed in the Library. It is a challenging document. I have sought to understand it. After the third reading, I think I almost succeeded.

The fact remains that, although the contexts of the two Bills, of course, are different, a common-sense reading of the different way that the rule of interpretation is expressed in the different drafts is the same. Therefore, the point which the Minister has made is not relevant to the point which I am advancing. However, I recognise that he will stick to the point that he makes. He was extremely generous to me on my previous two amendments and in those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 23:

Page 43, line 7, leave out ("in relation") and insert ("relating").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 25 and 27. Amendments Nos. 23, 25 and 27 in Clauses 83 and 98 are purely a matter of drafting to clarify interpretation and to ensure consistency within the Bill. I beg to move.

On Question, amendment agreed to.

Clause 98 [Interpretation]:

Lord Cope of Berkeley moved Amendment No. 24:

Page 54, line 29, at end insert— (""the Commission" means—

1. (a) the Northern Ireland Assembly Commission, in section 40 and Schedule 5;
2. (b) the Northern Ireland Human Rights Commission, in sections 68 to 71; and
3. (c) the Equality Commission for Northern Ireland, in section 73 and Schedule 9;").

The noble Lord said: My Lords, this is an extremely minor drafting point. The words "the Commission" occur in three separate parts of the Bill and refer to three separate commissions—the Assembly Commission, in some clauses, the Human Rights Commission in others and the Equality Commission in others. There is no single definition. The words are defined in all three ways but they do not seem to me to be defined in a way which carries clearly across all the clauses.

There are various ways in which that might be dealt with. I have proposed one in Amendment No. 24. Amendment No. 33, which is grouped with it, goes to the same point in relation to Schedule 5. I beg to move.

Lord Holme of Cheltenham

My Lords, I support Amendment No. 24. I feel that there is an element of reproof or a slap on the wrist for the Government in relation to this, because there is some sloppiness in the Bill. There is a slightly ironic tone to this but I support the amendment. The words "the Commission" are used quite sloppily.

However, I do not support Amendment No. 33 because the schedule itself is headed the "Northern Ireland Assembly Commission". Therefore, it is impossible to read it in any way other than that the commission in the schedule refers to the commission at the head of the schedule.

Lord Molyneaux of Killead

My Lords, I support the amendment. Following on from the points made in our brief discussion on Amendment No. 16, I wonder whether it is possible to identify for the purposes of clarification the role which will be required of one of the two commissions in the campaign to find jobs for the elderly. It would seem to me that that is a fashionable initiative and it has blossomed since we began our discussions on the Bill many months ago. Of course, I have a vested interest but at the moment, I am not looking for any more jobs.

Lord Dubs

My Lords, I sympathise with the noble Lord's desire, exemplified in his Amendments Nos. 24 and 33, to do anything to make the interpretation of this Bill clear. But I am not sure the noble Lord's amendments actually help us in achieving that aim.

I think, in fact, it is reasonably plain which commission is being spoken of at all relevant points in the Bill. In Clause 40, it is clear from subsection (1) that it is the Assembly Commission that is referred to, and that is also apparent in Schedule 5, the subject of the noble Lord's second amendment, No. 33, since the schedule is headed in capital letters "NORTHERN IRELAND ASSEMBLY COMMISSION". This is a point to which the noble Lord, Lord Holme, referred, and I thank him for that. There is equally no ambiguity in Clauses 68 to 70: it is clear that the Human Rights Commission is referred to; nor in Clause 73 is it unclear that we are concerned with the Equality Commission. I believe that in Schedule 9, to which the noble Lord's amendment refers, it is also clear which commission is involved, since the schedule opens with a reference to the Equality Commission.

But, even if we were disposed to accept that the noble Lord's first amendment made things even clearer, I fear we must hesitate, because it is not comprehensive, and may therefore sow doubt. For example, it does not refer to Clause 74, which sets out the Equality Commission's functions, nor to Schedule 8, which sets out that commission's constitution.

I believe, therefore, that the noble Lord's first amendment is flawed, his second is unnecessary, and I ask him not to press them. As regards the question asked by the noble Lord, Lord Molyneaux, I am sure that he can always make his case convincingly when that is necessary.

Lord Cope of Berkeley

My Lords, I shall not press this matter. The Minister has answered my question in part. As regards Clause 74, I did not include that because the words "the Commission" do not appear in it. The Equality Commission is referred to as the Equality Commission throughout the clause. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendments Nos. 25 to 27:

Page 54, line 42, after ("includes") insert ("any provision of this Act and").

Page 55, line 12, leave out ("9(3)") and insert (" 7(3)").

Page 55, line 42, leave out ("or Bill") and insert (", Bill or subordinate legislation").

On Question, amendments agreed to.

Clause 101 [Short title and commencement]:

Lord Dubs moved Amendment No. 28:

Page 57, line 2, leave out subsection (2) and insert—

("(2) The following provisions shall come into force on the day on which this Act is passed—

1. (a) sections 3, 55, 86, 93, 96 and 98;
2. (b) paragraph 20 of Schedule 13 and section 99 so far as relating to that paragraph;
3. (c) in Schedule 15, the repeal of section 31(4) to (6) of the Northern Ireland Constitution Act 1973 and section 100(2) so far as relating to that repeal; and
4. (d) this section.").

The noble Lord said: My Lords, in Amendment No. 28, we propose some slight adjustments to the commencement clause to bring into effect a number of provisions immediately on Royal Assent, rather than by a later commencement order.

They include among the provisions to come into force immediately those for consequential legislation, and for the setting up of the north-south implementation bodies, orders under which will have to be made before the appointed day. They also include the provisions relating to the Stormont Estate. I beg to move.

9 p.m.

Lord Lester of Herne Hill

My Lords, these amendments are wholly unobjectionable. However, can the Minister give some indication as to the timetable for bringing into force by commencement orders the provisions relating to human rights? I have in mind, for example, Clauses 6, 7 and 24. The reason that I ask the question is that, from the moment that the new Northern Ireland Government and Assembly are operating under the Bill when it becomes enacted, they will be bound to comply both in their legislative and executive capacities with the convention rights and freedoms. The judges will then have to ensure that they interpret the executive and legislative actions compatibly with convention rights. Therefore, without giving away any official secrets, can the Minister give some indication of the timetable so that judges, practitioners and the general public in Northern Ireland know when the convention rights are to be triggered under the devolution scheme?

Lord Dubs

My Lords, Clauses 6 and 7, which are to be found in Part II of the Bill, come into effect under the devolution order. That is also the case with Clause 24. However, if the noble Lord requires further details, I shall be happy to write to him giving more information.

Lord Lester of Herne Hill

My Lords, I am grateful to the Minister; indeed, he has been most helpful. However, can he say when he anticipates the devolution order is likely to be made, as that would meet my point?

Lord Dubs

My Lords, I think that it would be more appropriate for me to write to the noble Lord. There may be a simple answer but he asked a number of complicated questions. I do not wish to mislead the noble Lord.

On Question, amendment agreed to.

Schedule 2 [Excepted matters]:

Lord Dubs moved Amendment No. 29:

Page 61, line 1, leave out ("60") and insert (" 67").

On Question, amendment agreed to.

Schedule 3 [Reserved matters]:

Lord Dubs moved Amendment No. 30:

Page 61, line 37, after ("and") insert ("the Republic or).

The noble Lord said: My Lords. Amendments Nos. 30, 37 and 38 are government drafting amendments to the schedules. The amendment to Schedule 3 is consequential on the amendment of the noble Lord, Lord Monson, that we accepted at an earlier stage, inserting a reference to "the Republic of Ireland" in Schedule 2 rather than "Ireland". The passage in Schedule 2 is one that takes out of the excepted category the surrender of fugitive offenders between the two parts of Ireland. Paragraph 9(f) of Schedule 3 makes the same matter reserved, and our amendment brings the drafting there into line.

The amendments to Schedule 14 merely ensure that, for any determination by the First Minister and Deputy First Ministers-designate in relation to junior Minister to carry over from the shadow period, it must have been approved by the Assembly, just as it would have to be approved after the appointed day under Clause 19(4). I beg to move.

Lord Lester of Herne Hill

My Lords, I gave the Minister very short notice that I wanted to raise the following points. My concern is that nothing in the amendment makes it harder rather than easier to achieve the extradition of fugitive offenders across the Border, both north and south. My concern arises because of the controversial decision of the Supreme Court of Ireland in 1989 in the case of Ellis v. O'Dea. The Supreme Court made it clear that any UK warrant for the arrest of a fugitive wanted in Ireland for extradition to the United Kingdom would be invalid if it referred to the name of the state as "the Republic of Ireland".

The reason given by the highest court in Dublin was that the name used in the UK warrant was incorrect because it was contrary to Article 4 of the Irish Constitution, which states that the name of the state is either Eire or, in the English language, Ireland. That case is reported in [1989] Irish Reports at page 530 and it is the judgment of the late Justice Brian Walsh which is particularly relevant. Unless the authorities in the UK and in Northern Ireland use the politically correct nomenclature in seeking the extradition of fugitive offenders in what I shall refer to as Ireland, my concern is that it will become harder rather than easier to achieve the extradition of such offenders.

It goes without saying that nothing that I have said expresses a view one way or the other as to whether the politically correct designation from a UK or other point of view should be the Republic of Ireland or Ireland. Indeed, I am only concerned with ensuring that fugitive offenders can in fact be extradited from what I shall now call the Republic of Ireland.

Lord Molyneaux of Killead

My Lords, I wish to congratulate and commend my noble friend Lord Monson on his tenacity in fighting this battle. It is not just one of pride or prejudice or, indeed, of anything else. During an earlier stage of our proceedings some weeks ago I pointed out that when the name of what is a republic was changed in 1948 to Eire or Ireland, the then Prime Minister Clem Attlee said, on being asked to respond, "Call yourselves what you like; you remain as you are." That was not an insulting remark and I am not insulting our neighbours in the south. I am simply saying that I imagine in British constitutional law that the correct title would be the Republic of Ireland. It was for that reason that my noble friend Lord Monson sought to make such a change.

Lord Monson

My Lords, I am most grateful to my noble friend for his kind words. However, although I spotted the offending phrase in both Clause 1 and Schedule 2, I can only express some embarrassment at having failed to spot it in Schedule 3. Nevertheless, I am most grateful to the Minister for having tidied up the provisions.

Lord Holme of Cheltenham

My Lords, I, too, congratulate the noble Lord, Lord Monson, and associate myself with the remarks of the noble Lord, Lord Molyneaux. Indeed, I believe that the noble Lord, Lord Monson, has been consistent and the Government have now tried to respond to that. However, there is a problem; namely, whether they have responded to it in this particular context of the fugitive offenders in terms which will make it impossible for us to extradite people from Ireland or the Republic of Ireland who ought to be charged in the United Kingdom. To judge from the precedent of Ellis v. O'Dea, it is now a potential problem.

Baroness Park of Monmouth

My Lords, in supporting the noble Lord, Lord Monson, I also took the view—I think I said it at the time—that I considered there would be legal problems in our not calling it the Republic of Ireland. I did not know then what we have now been told. Although I still feel strongly that it should be the Republic of Ireland, I would be the last to wish to see a situation in which we were not able to carry out extradition in important criminal cases. Therefore I am in a difficulty. I must apologise for having confused the issue. My intention was to make sure that the legal situation was in our favour in terms of extradition and also to establish the fact that we are not talking about Ireland as a united country, which is what the political implication must be, but that we are talking about the Republic.

Lord Dubs

My Lords, I am also grateful for the alertness of the noble Lord, Lord Monson, in having drawn attention to these matters and in having been persuasive in his advocacy of the point at issue. I shall deal specifically with the extradition point, which I think is the only one about which there are some doubts. Paragraph 9(f) of Schedule 3, to which the amendment relates, simply defines the nature of a reserved matter and so regulates the Assembly's power to legislate. The amendment does not bear on the terminology used in extradition documents which I understand has at times caused difficulty in extradition cases. The provision simply concerns the Assembly's power to legislate.

Lord Lester of Herne Hill

My Lords, before the noble Lord sits down, I must say that I am most grateful for the clarification. In order that we all know what is happening, does that mean that we are preserving the correct position under the British constitution of referring to the Republic of Ireland, just as the Republic of Ireland uses its terminology and refers to itself as Ireland? However, where necessary, warrants for extradition will defer to Irish parlance in order to secure the extradition of fugitive offenders so that nothing that we are now doing will in any way impair our ability to obtain the extradition of fugitive offenders from south of the Border and west of the Irish Sea.

Lord Dubs

My Lords, the answer is yes.

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 31:

Page 61, line 39, after ("(c)") insert ("include matters relating to the prevention and detection of serious crime in the Interception of Communications Act 1985 and matters relating to any information. document or other article protected against disclosure by section 4(2) of the Official Secrets Act 1989, but").

The noble Lord said: My Lords, this amendment refers to a new matter which we have not yet debated. The question is whether the Interception of Communications Act and the Official Secrets Act are to be transferred matters; that is to say, transferred now to the responsibility of the Assembly, or whether they are to remain excepted matters, or whether they are to be reserved matters. Schedule 2 which concerns excepted matters states that the Interception of Communications Act is to be an excepted matter and will always remain under the jurisdiction of Westminster except in the case of serious crime.

Schedule 3 states that the subject matter of paragraph 17 to Schedule 2, which I have just summarised, is not to be regarded as a reserved matter because it is an excepted matter. However, that leaves out serious crime which, by default as it were, then becomes a transferred matter according to my reading of the Bill. This is a slightly complicated matter but what concerns me is that in respect of serious crime the Official Secrets Act, the Interception of Communications Act and so on should not be transferred now, by mistake as it were, having fallen through the holes between Schedule 2 and Schedule 3 of this Bill. I beg to move.

Baroness Park of Monmouth

My Lords, I strongly support this amendment because of its relevance for the future. The present agenda of Sinn Fein/IRA appears to include the abolition of the RUC and its replacement by a people's police. The Patten Commission has already been told publicly by Sinn Fein/IRA activists that the RUC must be abolished and that not one single RUC officer would be eligible to join a new police force. The only decommissioning it will discuss with the decommissioning commission is the withdrawal of the British Army from Northern Ireland and the abolition of the RUC. Since Mr. McGuinness has already recently said bluntly that there will be no decommissioning by the IRA because "the IRA says so", and has pointed out that the IRA was never a party to the Belfast agreement, it seems clear that its emerging agenda will be to devote its energies to its own kind of decommissioning.

In those circumstances it is essential in my view that the Government should not lose their absolute control of every aspect of intelligence. Without intelligence they would be blind to the IRA's training, recruiting and targeting programme, let alone its profitable criminal activities. If the RUC is, at the same time, being steadily undermined and weakened, the situation must become dangerous. The RUC needs to be seen to be valued and supported in the interests of law and order. That includes retaining an effective capacity in every aspect of intelligence.

I hope that we can be assured that the community restorative justice units being set up by the paramilitaries in nationalist areas and indeed loyalist equivalents—the Shankill Alternative, for instance—will not be allowed to set themselves up as a people's police and will not be allowed to usurp the functions of the RUC by dealing with petty criminals themselves and meting out their own punishments in a quasi-legal way. That could be the first move to the people's police and could create a situation which would be extraordinarily difficult for Her Majesty's Government. How could the Government share intelligence obtained from all kinds of sources with an organisation having that kind of background? I believe that it is very important that we retain full control of every aspect of intelligence.

9.15 p.m.

Lord Dubs

My Lords, I understand the point that the noble Lord seeks to address in Amendments Nos. 31 and 32. I do not think that there is any difference between us in the intention of the provisions. However, I am advised that the amendments are unnecessary; indeed, they are harmful to the coherence of the drafting.

Perhaps I may explain. Under paragraph 17 of Schedule 2, the subject matter of the Interception of Communications Act 1985 and of the Official Secrets Act 1989 are essentially excepted, with certain matters carved out from those exceptions relating to the prevention and detection of serious crime. The reason behind that is that the criminal law and the prevention and detection of crime are reserved matters under paragraph 9 of Schedule 3. Therefore, to the extent that the Interception of Communications Act 1985 and the Official Secrets Act 1989 relate to criminal matters, they too should be reserved matters.

However, the noble Lord is concerned that those matters will effectively become transferred matters because of the provision in paragraph 9 which excludes from the reservation of criminal matters those matters within paragraph 17 of Schedule 2. If that were the case, I too would be concerned. But I am advised that the carving out of certain matters from paragraph 17 means that they are not therefore "included within paragraph 17." Since they are not, they are caught by the general terms of paragraph 9 of Schedule 3 and become reserved. To make the suggested amendments would cast doubt on the same drafting elsewhere.

With that explanation, I hope that the noble Lord is reassured, and will feel able to withdraw the amendment.

Lord Cope of Berkeley

My Lords, to the extent I needed it, I have the reassurance that the Minister and I want to achieve the same purpose. I am not thoroughly convinced by the argument about the drafting, but I shall not argue at this point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 32 not moved.]

Schedule 5 [Northern Ireland Assembly Commission]:

[Amendment No. 33 not moved.]

Schedule 10 [Devolution issues]:

Lord Dubs moved Amendments Nos. 34 to 36:

Page 75, line 36, after ("5") insert ("or. where such notice is given to the First Minister and the deputy First Minister, those Ministers acting jointly").

Page 76, line 27, after ("13") insert ("or, where such notice is given to the First Minister and the deputy First Minister, those Ministers acting jointly").

Page 77, line 29, after ("23") insert ("or, where such intimation is given to the First Minister and the deputy First Minister, those Ministers acting jointly").

On Question, amendments agreed to.

Schedule 14 [Transitional provisions and savings]:

Lord Dubs moved Amendments Nos. 37 and 38:

Page 89, line 24, after ("made") insert ("and approved").

Page 89, line 31, after ("made") insert ("and approved").

On Question, amendments agreed to.

Schedule 15 [Repeals]:

Lord Dubs moved Amendment No. 39:

Page 92, line 23, column 3, at end insert—

("Section 28(1).")

On Question, amendment agreed to.

9.18 p.m.

Lord Dubs

My Lords, I beg to move that this Bill do now pass. I do not think it would be appropriate for me to speak for long on the merits of the Bill which we have considered at great length, albeit in a short span of time. It is, as we have made clear throughout, a Bill to give effect to the Good Friday agreement in the most effective way possible, with consensus where possible on any additions. I believe that it fulfils that purpose faithfully, more faithfully, indeed, as a result of the amendments your Lordships have accepted, deriving from points made in this House or another place or in consultations with the parties in Northern Ireland.

I am well aware that we have asked your Lordships to consider a great deal of material—much of it very complex—in a short period of time throughout the passage of the Bill. My noble friend Lord Williams and I are deeply indebted to your Lordships for the courtesy, understanding and good humour displayed in facing those demands. I pay particular tribute to noble Lords on the Front Benches opposite who have had the particularly onerous and, in some ways, thankless task of probing and challenging all the proposals we have brought forward. Noble Lords concerned have been assiduous in discharging their responsibilities and on many occasions have given us rather more to think about than we could respond to on the spur of the moment. I am grateful for their understanding when some detailed points appeared particularly elusive.

There have also been many distinguished and persuasive contributions from the Back Benches in all parts of the House, informed by the highest degree of expertise and always made with the moderation and thoughtfulness that characterises debates in your Lordships' House.

We shall have to return to your Lordships from time to time with further subordinate legislation, much of it provided for by this Bill, to complete the arrangements for implementing the agreement under it.

For the present, perhaps I may say that we are profoundly indebted to your Lordships for the commitment made to the consideration of the Bill and for the quality of the deliberations on it. I hope it will be acknowledged that we have responded to a substantial proportion of the points that your Lordships have raised during the various stages of the Bill.

I am grateful for all the effort that has been put into the Bill. I pay tribute to my officials who worked very hard throughout the summer and during the Bill's passage to ensure that we were kept up to date in all respects. This has been a very full Session, and this Bill has been a key element. I hope and believe that it will appear in a few years' time to be another great milestone in the transformation of Northern Ireland and its prospects. Your Lordships have played a vital part in enhancing its capacity to achieve that. I commend the Bill to the House.

Moved, That the Bill do now pass.—(Lord Dubs.)

Lord Holme of Cheltenham

My Lords, I shall not detain your Lordships long; however, it is right to say that with the passage of this Bill we have participated in the most extraordinary parliamentary event. It is barely recognisable as the measure that passed through the other place before the summer. It has been totally transformed. I dare say that we have dealt with more amendments than on any comparable Bill, including a number of amendments today which were far beyond the normal parliamentary experience at this stage. I cannot say that it has been an orderly procedure. However, I believe that all of us accept that it has been in a great cause and we have been prepared to bend our patience considerably in order to deal with it.

In the context of patience, it is right for me, in turn, to pay tribute to the noble Lord, Lord Dubs, for his courtesy, his tenacity and his incredible stamina during the Bill's passage. We thank him very much.

Lord Cope of Berkeley

My Lords, I, too, am grateful for the Minister's kind words to those on these Benches. I reciprocate in thanking him for the way in which he has conducted affairs with his colleague, the noble Lord, Lord Williams of Mostyn.

As he said, the Bill has been based on the Belfast Agreement and has therefore had our support. We have co-operated with the Government as much as possible—though I have to say with a considerable amount of unease on two grounds: first, that it has sometimes seemed a very ramshackle way in which to reform the United Kingdom constitution; and secondly, at times there has been a feeling that the whole of the agreement has been in grave danger.

On the first point, this Bill will leave the House in a very different form from that in which it came. Nearly 500 government amendments were tabled. Not all have actually reached the face of the Bill, because some were withdrawn before we even debated them. However, the vast proportion have passed into the legislation. That process has continued even this afternoon. Frankly, that makes us doubt whether the Bill is watertight even now. Obviously we hope that it is. But it has also become clear again this afternoon that devolution is proceeding on a most inconsistent basis across the United Kingdom. This Bill is on a very different basis from either the Scotland Bill or the Welsh Bill, which themselves differ, and no one has even attempted to answer "the English question".

The second cause for our unease is the more serious. The Belfast Agreement was settled on Good Friday. It is now past Michaelmas and progress on implementing the agreement has been, to say the least, very patchy. The constitutional changes incorporated in the Bill and other legislation, and all that go with them, as well as the prisoner releases, have gone full steam ahead. But decommissioning has not started at all. I do not know whether the Minister is in a position to give any further information about that.

Without decommissioning, this Bill ought to moulder on the shelf and never be put into operation; and for that matter, I believe that the prisoner releases should also come to an end. We all hope that that will not happen and that all parts of the agreement will proceed so that the Bill can come into force properly. Otherwise, the bitterness and mistrust on all sides will be heavily reinforced.

I honestly hope and pray that the agreement is implemented in all its parts, massively to the benefit of all the people of Northern Ireland and of the United Kingdom as a whole. It is for that reason that we have supported the Bill throughout and done our best to improve it with the co-operation of the Minister, for which I am grateful.

Lord Molyneaux

My Lords, perhaps I may briefly but sincerely say a word of appreciation on behalf of the Northern Ireland contingent in your Lordships' House for the patience and the courtesy shown by the noble Lord, Lord Dubs. I also thank his colleagues on the Front Bench for their supporting role, and others elsewhere. It has been a difficult operation. I noticed that during the final stages of the Scotland Bill earlier this evening the Scottish team said, almost as a boast, that they had dealt with some 300 amendments. We are coming to nearly double that number in our case.

Lord Monson

My Lords, I too thank the noble Lord, Lord Dubs, for his unfailing patience, courtesy and good humour in coping with the prolonged passage of this major and ever-evolving Bill. I would also like to thank him for the meticulous way in which he has answered in writing virtually every question asked of him in the course of our debates, and for the way in which he and the Northern Ireland Office have kept us so well briefed. I also pay tribute to those of his Front Bench colleagues who have been involved with this Bill and the Front Bench spokesmen of the two other main parties.

In doing so I must enter one caveat—and I hope that noble Lords will not mind me doing so. The noble Lord, Lord Williams of Mostyn—and I am sorry not to see him in his place; I had somehow expected that he would be—and the noble Lord, Lord Cope of Berkeley, are the most intelligent and best-intentioned of men. However, on 26th October in Committee they both, in quick succession, appeared to fall into a Republican trap. The noble Lord, Lord Williams of Mostyn, said: the problems described in —the clauses dealing with discrimination— occur in England and Wales but not to anywhere near the same extent and have not … brought about more than 3,000 deaths in a relatively short period of time".—[Official Report, 26/10/98; col. 1746.] Very shortly afterwards the noble Lord, Lord Cope of Berkeley, said, the nub of what we are trying to do is to tackle the religious and political discrimination which has led to 3,000 deaths and untold other agony".—[Official Report, 26/10/98; col. 1747.] I hope that the words used there were slips of the tongue and do not represent the considered convictions of the Labour and Conservative leaderships respectively. As a small "u" unionist, I have never claimed myself to be wholly impartial, but I do not think that any impartial historian would agree that individuals place bombs in a bus station, blowing a dozen strangers to pieces, or drill through the knee-caps of their co-religionists, merely because they suspect that someone slightly less qualified than themselves has unfairly been promoted over their heads.

We should remember the refusal of the nationalist leadership in the north to accept the authority of the state, the sustained bellicosity of De Valera and the Republicans in the 1920s and much of the 1930s; the subsequent irredentist claims in the 1937 Constitution; and the massive ethnic cleansing that took place in the south between 1920–25, leading to the expulsion of at least 105,000 people, most of them unionist civilians but many of them Catholics who had served in the Royal Irish Constabulary, the British Army or the Royal Navy. No impartial historian would deny that these factors have contributed to a very substantial extent to fear and tension in the north, paving the way for the subsequent violence later on.

More than 29 years ago, on the 12th September 1969, in the wake of the Cameron Report, the Times commented: The grievances—though real—are towards the bottom of the scale of human injustices—and are not getting worse. Indeed, some of those injustices, such as the restrictive local government franchise—which was no different from that pertaining in England and Wales up until 1945—had already been rectified by the Stormont Government, and other reforms followed on swiftly afterwards. So not for a quarter of a century has the small degree of discrimination remaining objectively justified as much as a broken finger. But cultural and national antipathies and suspicions, once aroused, have their own momentum.

I hope, on reflection, noble Lords will agree that it is inadvertently playing into Sinn Fein's hands to suggest that almost 3,500 people have been killed, and thousands more have been knee-capped and otherwise maimed for life, because of some wholly unprovoked minor discrimination like jumping a council house queue that took place more than 25 years ago. I hope they will agree that green fascism, as it is called, and other less extreme forms of national sentiment on both sides of the divide are at least as responsible for the violence and probably much more so.

9.30 p.m.

Lord Dubs

My Lords, I should make it clear that my noble friend Lord Williams of Mostyn is very busy at the moment dealing with the consequences of an earlier vote in this House. Perhaps I may also say that I am absolutely certain that he and I—and I am sure I can speak for the noble Lord, Lord Cope—would utterly condemn without reservation every single death, shooting and other injury that has been caused by terrorists in Northern Ireland. I say that without reservation and without equivocation.

Perhaps I may deal with the point raised by the noble Lord, Lord Cope, about decommissioning. The Government's view is that decommissioning is an integral part of the agreement. It is an obligation that must happen; and the question is not whether it is to happen but simply when. The only way to achieve decommissioning is by the full implementation of all aspects of the agreement by all the parties, including the Government. In taking this Bill forward, the Government have moved substantially in fulfilling their part of the agreement. We ask all other parties to the agreement to fulfil their parts.

On Question, Bill passed, and returned to the Commons with amendments.