Northern Ireland Bill

HL Deb 19 October 1998 vol 593 cc1177-201

3.19 p.m.

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

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 1 [Status of Northern Ireland]:

Lord Monson moved Amendment No. 1:

Page 1, line 13, after ("shall") insert (", subject to subsection (3),").

The noble Lord said: I should first point out that there is a mistake in the grouping. Amendment No. 2 should not be grouped with Amendments Nos. 1 and 3; it stands separately. I should like to speak also to Amendment No. 3 to which Amendment No. 1 is a paving amendment. Ever since 1972 successive British governments, be they Labour or Conservative, have decreed that straightforward majority rule will no longer do.

Baroness Farrington of Ribbleton

I apologise for interrupting the noble Lord. It is impossible for Ministers to hear what is being said when noble Lords are speaking when leaving the Chamber.

Lord Monson

Perhaps I should start again. With the leave of the Committee, I should like to speak to Amendment No. 3 to which Amendment No. 1 is a paving amendment. Ever since 1972 successive British governments, whether Conservative or Labour, have decreed that straightforward majority rule in Northern Ireland will no longer do; nor will majority votes on most issues henceforth be regarded as conclusive. Every abortive assembly and proposed constitutional arrangement since then has had elaborate checks and balances incorporated to ensure that minorities have substantial blocking powers at their disposal.

The Good Friday agreement takes matters much further. For better or worse, it positively institutionalises the notion that Northern Ireland is composed of two utterly distinct and separate communities and lays down that virtually no new legislative steps, however trivial, may be taken without the support of the majority of each of the two communities through the medium of their elected representatives. This principle runs like a golden thread through the 83 clauses of the Bill but with one vital exception. It fails to embrace Clause 1, which covers the most important issue of all: nationality and national identity. On this issue, as matters stand, all that will be needed to detach the Province from the United Kingdom and annex it to the Republic of Ireland is a 50.001 per cent. vote in favour, possibly on a low turn-out, with no real guarantee against personation and intimidation and no evidence whatsoever of cross-community support. Therefore, demographic changes could lead to the Province being incorporated into the Republic against the fervent wish of every single member of one of the two communities.

When similar objections regarding border polls have been raised before there have been two responses. The first is, "Well, we will keep our options open and cross that bridge when we come to it. After all, a border poll is indicative or advisory rather than binding". However, Clause 1 is drawn specifically so as to exclude any procrastination or fudge. The second response goes something like, "When it comes to the crunch many Republicans and Nationalists will be reluctant to leave the United Kingdom after all, mainly for financial considerations". Really? Lavish EU subsidies mean that the south is now very much richer than it used to be. More importantly, if one had predicted a dozen years ago that within five years the "evil empire" (the Soviet empire) would collapse and all the countries of eastern and central Europe and most of Soviet Asia would be free, and that within a little over five years apartheid would collapse, with hardly a shot being fired, and a multi-racial government would be elected on the basis of universal suffrage, people would have regarded one as stark raving mad. Yet both of those events have occurred. The attitudes and patterns of five or 10 years ago are no guide to what may happen five or 10 years hence.

In a nutshell, the provisions of Clause 1 as drafted are both unfair and very unwise. I deal first with unwisdom. As the noble Lord, Lord Merlyn-Rees, pointed out in an article that I quoted at Second Reading, to try to push 1 million people into another state against their will is dangerous folly. Even the possibility of it would make them much more edgy and volatile in the next few tricky years than would otherwise he the case. Considerations of this kind lead wise governments to stipulate that where strong resistance is anticipated a majority of well over 50 per cent. of those voting must be obtained before major constitutional, or quasi-constitutional, change is set in train. Examples are the Scottish devolution proposals of 1979 and the Belgian referendum of 1950.

Our spiritual leaders take the same line. Although obviously there is no question whatever of bloodshed or even the mildest fisticuffs, so strong is resistance in some quarters to the Anglican-Methodist unity proposals that the established Church has decreed that unity must be delayed until 75 per cent. of the Synod votes in favour of it. So far this has not happened.

I remind the Committee that five-sixths of the island of Ireland is available to those who wish, as is their right, to spurn everything British. Is it not only fair for the remaining one-sixth of the island to continue to be a haven for those who wish to remain British and live in a British environment until such time, if it ever comes, as half of them change their mind? There is nothing remotely extreme or radical about these amendments. On the contrary, they remove an anomaly and bring the clause into line with the worthy and fair-minded principles of bi-communal consent which underpin the rest of the Bill. I beg to move.

Lord Cope of Berkeley

As the Committee begins its deliberations on the very large number of amendments from all parts of the House perhaps I may be forgiven for taking a moment to express congratulations to Mr. Trimble and Mr. Hume on the award to them of the Nobel peace prize. The efforts of both well deserve the award of that prize and it is symbolic of the efforts of many other people as well. One can only hope, as Mr. Trimble has himself pointed out, that it does not turn out to be a premature award.

The Government have proposed over 200 amendments. They include a number of new delegated powers and alterations to the existing delegated powers in the Bill. Therefore, I took the liberty to suggest a day or two ago to the noble Lord the Minister that the amendments should be seen by the Delegated Powers and Deregulation Committee in addition to its report on the Bill as it stands. These are sweeping amendments which include new order-making powers and should be looked at so that noble Lords can have the benefit of the advice of that committee at least in the later stage of their debates.

I turn to the amendment moved by the noble Lord, Lord Monson, and the other two amendments grouped with it. I very much sympathise with the efforts of the noble Lord to get a triple lock on the potentially momentous change in the status of Northern Ireland. The three parts of the lock are: the people of Northern Ireland and the referendum referred to in the Bill; the United Kingdom Parliament, which is also referred to in the Bill; and the Northern Ireland Assembly. Unfortunately, this is not what the agreement says. We have been told frequently and have come to accept that it is extremely difficult to vary the agreement, which is complicated and has involved long negotiations with many people over a number of years, even if we wished to do so in a small way. This is not a small change but a big change. Therefore, it is difficult to support the amendment at this stage much as one may wish to do so.

Lord Monson

I am grateful to the noble Lord for giving way. I said earlier—probably no one heard because of the mass exodus—that Amendment No. 2 had been wrongly grouped with Amendments Nos. 1 and 3. I intend to move that amendment separately. Amendment No. 2 should be grouped with Amendment No. 225.

3.30 p.m.

Lord Cope of Berkeley

In that case I shall reserve my remarks on Amendment No. 2 to a subsequent point and conclude there.

Baroness Park of Monmouth

I should like to support this amendment strongly. We have to remember that the IRA spokesman, speaking in Dublin in early September just before the recall of Parliament, said, after confirming that there would be no decommissioning and refusing to say that the war was over: If the objective conditions exist for violent conflict, then such conflict will occur". That is IRA speak for "we haven't gone away". They said that though they were concerned at the slow pace of movement, they were confident they would achieve their objective—a united and independent Ireland.

Martin McGuinness told the BBC today that the decommissioning issue was entirely a matter for General John de Chastelain; that Sinn Fein-IRA made their position clear at the talks; that decommissioning was not part of the peace process and only the Unionists were trying retrospectively to make it a precondition. He said that he would, far from talking to the Prime Minister about decommissioning, be telling him that the agreement was in default by four months.

Against that background of arrogant intransigence—which he can afford since the IRA have their prisoners out now—it seems to me that it is more than ever necessary for the Governments to offer all the strong reassurance they can to the people of Northern Ireland that they are sticking to the agreement. Part of that would be for the Irish Government to act at once to enact the necessary legislation to abrogate Articles 1 and 2 of their constitution. The agreement expressly requires each government to notify the other of: the completion of the requirements for entry into force of this agreement. This agreement shall enter into force on the date of the receipt of the later of the two notifications". It is up to the Government of the Republic of Ireland to ensure that there will be no delay. But, more than that, it is essential to reassure the Assembly, and particularly the Unionists, that they have so acted given Sinn Fein-IRA's somewhat triumphalist behaviour and their glaring lack of good faith over ending punishment beatings and their failure to give any hope, even now, to the families of the disappeared. Those are actions well within the power of Sinn Fein-IRA, whatever they may say about having no arms themselves to decommission.

I am, incidentally, concerned about the meaning of two sections of Article 3 in the agreement which appear on page 4. What extra-territorial jurisdiction is in question, and why will subsection 5, though to be omitted, still have the force of law?

Unless David Trimble can point to the fact that the Irish Government are not only fully and formally accepting Northern Ireland's decision to choose to stay in the UK but have relinquished the claim which would require a united Ireland, I do not see how he can hope to carry the majority of people in Northern Ireland with him in whatever action he deems necessary to create an assembly visibly committed to peace, giving the necessary proof of commitment and spelling out that we are at present talking of two separate entities: the Republic of Ireland and Northern Ireland, as part of the UK by its own choice. Sinn Fein-IRA must not be allowed to fudge this, nor to put through a major constitutional decision without clear thinking about what we and they are doing.

Lord Cooke of Islandreagh

I wish to support Amendment No. 3 proposed by the noble Lord, Lord Monson. In the Bill, as it is written in Clause 1, it seems an extraordinary, simplistic and peremptory way to say goodbye to part of the United Kingdom. It does not say how large the majority must be. It could be one. It is more than likely, as in the recent past, that there will be substantial electoral fraud. The very least that could be done is that the position after the vote should be looked at. I believe that the proper authority to look at that will be the Assembly, who will know what is going on and know what has taken place. To merely state that, the Secretary of State shall lay before Parliament", does not give her any authority to make a judgment on the way that the vote has been taken or the way it has gone. Therefore, it is entirely proper to give the Assembly the job of considering the vote and approving of it.

Lord Holme of Cheltenham

We have a great many amendments so, in the spirit of getting through the business in the time allotted to us, I shall be very brief. I do not support this amendment because it cuts across Section 1(1) of the Belfast agreement and therefore goes further than I think is proper for this House to attempt to do.

Lord Molyneaux of Killead

I warmly support the amendment moved by the noble Lord, Lord Monson. Amendment No. 3 simply restores the power which resided in the parliament of Northern Ireland as set out in the Government of Ireland Act 1920. When Stormont was abolished, with it went the constitutional guarantee. It was replaced after a fashion by the border poll which was a clear-cut question which asked, "Do you wish to remain within the United Kingdom or do you wish to join in an Irish republic?"

As I understand it, with devolution now about to be restored, the Bill does not restore in any tangible or convincing way that constitutional guarantee because anything resembling the recent referendum does not meet the need for voters to settle the question one way or the other. In that referendum they were asked to approve what started life, and ended in a slightly more condensed but not improved form, as a document of 65 pages. There simply has to be a clear-cut opportunity for all the citizens of Northern Ireland, whatever their viewpoint, to answer the question. There must be a cast-iron assurance that any future referendum—that is if the Government reject this amendment—will be a straight "Yes" or "No" question and answer.

Lord Campbell of Alloway

Perhaps I may ask the noble Lord, Lord Dubs, for some clarification. Of course, I would not support this amendment, for the reasons that have been given. Those were the reasons put forward in relation to the previous Bill which I supported.

It is true that there is no express provision in the arrangement—I do not think that the arrangement has yet been signed by all parties to it—that there should be decommissioning. I am not surprised that it is suggested that it was not part of the agreement in the sense that there was no reference to it, but was it not part of the background to the whole arrangement? Was that not why these negotiations were so difficult to conclude, and is that not why concessions were made on all sides, with the concept of decommissioning being accepted?

Lord Skelmersdale

I am slightly suspicious of this amendment, for the simple reason that it gives the power in the new subsection (3) of Clause 1 for the Assembly to second-guess the electorate of Northern Ireland. Given the circumstances of Northern Ireland, which certainly exist now and are likely to exist then, I think that that would be a bad thing.

Lord Dubs

First, I concur wholeheartedly with what the noble Lord, Lord Cope, said about his delight that David Trimble and John Hume have been awarded the Nobel Peace Prize. I am sure that has caused a great deal of pleasure on all sides of the House.

We tabled a large number of amendments to this Bill last week, as we warned the House we would. I appreciate that your Lordships have been given a great deal of work to do in preparing for today's session of the Committee and, indeed, the subsequent ones. I hope that we may have lightened the burden slightly with the written explanation of the first half of the amendments which I sent to some of your Lordships towards the end of the week, along with the offer of a briefing meeting. Indeed, a copy of that letter was also placed in the Library. If the letter were thought useful, I should be happy to repeat the exercise for the later amendments.

On one other preliminary matter, the noble Lord, Lord Cope, has written to me to express the wish that the Delegated Powers and Deregulation Committee will have an opportunity to examine the amendments we are proposing and report on them to the House. The chairman of the committee, the noble Lord, Lord Alexander of Weedon, QC, has let me know that the committee intends to report on these amendments next Wednesday, 28th October, which will give the House good time to digest the committee's observations before Report stage.

The report of the committee on the Bill as it stands, published last week, proposes that the negative resolution procedure should attach to order-making powers in the Bill; namely, those in Clause 70 and paragraph 6 of Schedule 6. I am grateful to the committee for its report. We have already put down an amendment to make the relevant change to Clause 70. I can tell the Committee that we propose to do the same in respect of Schedule 6.

We start off this Committee stage with a discussion of perhaps the single most significant aspect of the agreement. The resolution in the agreement of the old dispute about the constitutional status of Northern Ireland opens the way to advancing beyond the conflicts that have so complicated the affairs of Northern Ireland, of the island of Ireland, and of relations between all the peoples of the United Kingdom and of the Republic of Ireland.

I say right away that the effect of the amendments would be wholly to subvert the provisions of the agreement on the consent question, and we simply cannot accept them. Clauses 1 and 2 of the present Bill, along with Schedule 1, were set out in the agreement, along with the amendments to the Irish constitution that represents the reflection in its law of the consent principle. Clause 1 provides that Northern Ireland should not cease to be part of the United Kingdom without the consent of a majority of the people voting in a poll; but that if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of the United Ireland, the Secretary of State must put before Parliament proposals to give effect to that wish, agreed with the Irish Government.

The Secretary of State may by Schedule 1 order the holding of a poll at any time, subject to a minimum interval between polls of seven years; and she must make an order if it appears likely to her that a majority of those voting would express a wish to form part of the United Ireland. Any such order is by Clause 78 subject to affirmative resolution in this House and another place.

Those are the provisions of the agreement. I confine myself to Amendments Nos. 1 and 3 as the noble Lord, Lord Monson, expressed a wish to deal subsequently with Amendment No. 2. Those amendments insert another, wholly new, condition to a change in constitutional status; namely, a cross-community vote in the assembly. There is nothing to suggest such an extra condition in the agreement, and it cannot be imagined that the agreement would have been concluded between the parties with such a condition. I have to say, therefore, that those who propose this amendment are effectively rejecting the agreement, whether or not that is their intention.

What we must hope is that the two communities in Northern Ireland will increasingly find ways of working together co-operatively and for the greater good, whatever the constitutional status of Northern Ireland. The agreement offers the best hope there is of developing such co-operation. But if these amendments were accepted, there would be no agreement, and no such prospects.

Lord Molyneaux of Killead

I am grateful to the Minister for giving way. He indicated that there might appear to the Secretary of State the possibility of change. How is that appearance to be judged? Would it be, for example, by an opinion poll?

Lord Dubs

The Secretary of State would have to make a decision in the round, based upon all the evidence available to her. I do not think it appropriate for me to indicate precisely the way she would make her decision. I believe that she would look at all the facts. Opinion polls might be helpful. Other forms of expressions of opinion by people in Northern Ireland would be helpful. She would take an overall view and we would then go through the process I have indicated.

We shall deal with Amendment No. 2 later. I believe that Amendments Nos. 1 and 3 are contrary to the spirit and the letter of the agreement; and we cannot support them.

Lord Hylton

Before we leave this part of the clause, can the Minister tell us what progress is being made by the Irish Parliament in modifying Articles 2 and 3 of its constitution in accordance with the agreement?

Lord Dubs

I am not aware of the exact timetable to which it is working. All I know is that the Government in Dublin are totally committed to playing their part in all aspects of the agreement over which they have control; and in due course such a change will take place.

Lord Monson

I am most grateful to my noble friends Lord Cooke of Islandreagh and Lord Molyneaux for their support. I am also grateful for the support of the noble Baroness, Lady Park, and the noble Lord, Lord Cope.

The noble Lord, Lord Cope, is right. I was trying to achieve a triple lock. We have heard from the Liberal Democrat Benches and the Minister that we cannot proceed anywhere on these amendments because of the agreement. It is the agreement itself which is at fault. We all know why that should be: why the agreement did not incorporate this fair-minded safeguard—I doubt whether anyone can describe it as unfair. It is because Sinn Fein/IRA would not wear it for one second. Shortly after the agreement, Mr. Martin McGuinness was quoted as saying exultantly words to the effect that the agreement brings us much closer to a united Ireland. Mr. McGuinness knows precisely what he is talking about. He has been working all his adult life towards a united Ireland in ways not all of which can be detailed here for the sensitive ears of Members of the Committee.

I suspect that the British Government and possibly the Irish Government too are not happy about the clause as it stands. They know the consequences if, as the noble Lord, Lord Merlyn-Rees, wrote, a million people are pushed into a united Ireland against their will. The Government are crossing their fingers and hoping that somehow it will be all right on the night. I can go no further with the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

3.45 p.m.

Lord Monson moved Amendment No. 2:

Page 1, line 15, after ("of') insert ("the Republic of").

The noble Lord said: With the leave of the Committee, perhaps I may speak also to Amendment No. 225 to Schedule 2 which is consequential. The purpose of the amendment—I do not believe that it can possibly contravene the Good Friday agreement—is to substitute accuracy for inaccuracy.

Clause 1 and Schedule 2 set out important relationships between two legal entities, two sovereign nation states: the United Kingdom and the Republic of Ireland. "Ireland" may be everyday constitutional shorthand for the Republic of Ireland but everyday conversational shorthand has no place in an Act of Parliament. To substitute "Ireland" for "the Republic of Ireland" is like substituting "the Iberian peninsula" for "Spain"—the only difference being that it is 350 years since Spain last claimed jurisdiction over the whole peninsular rather than the 85 per cent. to which it is entitled.

Undoubtedly unionists—I use the word broadly to include all shades of unionism—in Northern Ireland will see this usage as reintroducing Articles 2 and 3 of the Republic's constitution by the back door: in other words, effectively asserting the Republic's right of jurisdiction over the whole island—not of course that Articles 2 and 3 have yet been repealed or seriously modified.

It will doubtless be argued that in the Good Friday agreement Her Majesty's Government were persuaded to substitute "Ireland" for "the Republic" as a goodwill gesture to the Republic. That is fair enough. However, we are not discussing today an international agreement but a Bill destined to become an Act of the United Kingdom Parliament. Surely no other nation has the right to dictate the wording of an Act of Parliament. I beg to move.

Lord Cope of Berkeley

The phrase "Government of Ireland" in the Bill may be thought to be the correct legal terminology in the Republic of Ireland. They are in the habit of referring to themselves as the Government of Ireland. So far as it concerns them, it is the official title of their organisation. But, like the noble Lord, Lord Monson, it does not seem to me that we have necessarily to use their legal terminology in our Act of Parliament. It seems to me offensive to describe in an Act of Parliament the government of which we speak as being the Government of Ireland with the implication that it is the only legitimate Government in the island of Ireland. None of us accepts that. Certainly the United Kingdom Government do not accept it and never have, and I do not think that this Parliament should bow easily to that suggestion. It seems to me that there is no need to use the Irish legal phrase in a British Act of Parliament.

The case is even clearer on Amendment No. 225. The amendment deals with the question of extradition between Northern Ireland and the Republic of Ireland. In that case it seems to me positively misleading to speak about people being extradited to or from Northern Ireland and to or from Ireland. Northern Ireland is part of the island of Ireland. For the Bill to be clear, therefore, the words "Republic of should be inserted when we come to that point.

Lord Holme of Cheltenham

I have a great deal of sympathy with the amendment. Those of us who deal with Northern Irish affairs have schooled ourselves to refer to the Republic of Ireland. It will become an important issue when we move on to Strand Three of the Good Friday settlement which deals with the council of the islands and the relationships between the various parts of what used to be called the British Isles. It will be absolutely essential in that context to have clarity between the various parts that make up the council of the islands. I ask the Government to consider the amendment sympathetically, for that reason if for no other.

Lord Molyneaux of Killead

I too share those reservations because I can quite see how the term could create difficulties in, for example, an extradition application, particularly where a third foreign country was involved.

We are all aware of the fact that the Irish Republic—and I make no criticism of it—has over the years given itself various titles. In 1948 Clement Attlee, then Prime Minister, was asked to comment on a new title which was the word, in Irish, "Eire". His reply, typical of the man, was, "Call themselves what they like, they remain what they are." I am not being discourteous in repeating Clement' s brief summary of the situation, but I think we should be reasonable, as the noble Lord, Lord Cope, has been reasonable, and let the Irish Republic term itself as it wishes, as it did when signing the Anglo-Irish agreement in 1985. Noble Lords may not be aware of the fact that the British and Irish governments signed two different copies with two different titles on the cover page. They were in effect signing two different agreements, to meet with the sensitivities. Even then, it did not call itself the Government of Ireland.

Lord Fitt

I too have sympathy with the amendment. I do so with the experience of having been an elected member of Stormont. Since the partitioning of Ireland and the setting up of the two states, there has been great controversy about the names of the two states. Many a time I made a speech in the old Stormont and referred to Northern Ireland as the six counties. I did that deliberately to be provocative. Others on the Unionist side referred to the state as Ulster. It actually was not Ulster; it was only six counties of the nine counties of Ulster. In the Republic it was "Eire". When first I was a member of the Irish Labour Party, the unionist newspapers referred to me as being a member of the Eire Labour Party. That was to make it sound foreign.

There was never any great argument about Articles 2 and 3 until—it has already been referred to by the noble Lord, Lord Molyneaux—I had handed to me on 15th November 1985 the two copies: the Irish copy of the Anglo-Irish agreement and the British copy. On the face of the British copy it said, "This is an agreement between the Government of the United Kingdom and Northern Ireland and the Government of the Irish Republic." Factually that is correct. It is the terminology used to describe the two states. The Irish version said, "This is an agreement between the Government of the United Kingdom and the Government of Ireland". It was the first time I had seen terminology relating to the state which did not include the words "the Republic of''. It is a bit late in the day, therefore, to object to the terminology.

It is offensive to the majority of people in Northern Ireland to see reference to the Government of Ireland. Factually, it is the Government of the Republic of Ireland and the Government of Northern Ireland. It appears, however, that this was agreed in the Belfast Agreement. I wonder if in international circles, for example, at the United Nations, the Republic of Ireland is referred to as the Government of Ireland or is it specifically in relation to the Northern Ireland end of the agreement? That in itself would be a contradiction.

I believe there is justification for the Government including the words, "the Republic of Ireland". This may be against what was negotiated in the Belfast agreement; but the term "Government of Ireland" produces a highly emotive situation where the majority of the population of Northern Ireland see Articles 2 and 3 of the constitution as laying claim to the state of Northern Ireland. If that offensive connotation could be removed, it would be far better in relation to finding an agreement in Northern Ireland.

Lord Mayhew of Twysden

I am most grateful to the noble Lord, Lord Dubs, for providing us with Notes on Clauses. I read that paragraph 3 of Schedule 2 deals with, International relations, including treaties, the making of peace or war and neutrality, and connected matters". but that among three exceptions is, (a) the surrender of fugitive offenders between Northern Ireland and the Republic of Ireland". If it is thought desirable to express the meaning by the use of the words "the Republic of Ireland" in Notes on Clauses, it is a little difficult to see why it is not similarly thought to be right in the Bill itself. It rather looks as though the Government have flinched from saying "between Northern Ireland and Ireland" in the Notes on Clauses, for reasons which lie behind this amendment and every speech that has been made in support of it.

Lord Cooke of Islandreagh

Surely it is very simple. This Bill is in error. Ireland, when referred to, means the island of Ireland. There is no such thing at present as the government of the island of Ireland. Ireland cannot therefore be referred to as having a government. I believe that the amendment corrects mistakes of drafting.

The Earl of Balfour

I did not think I would hear in your Lordships' House so many varied descriptions of the southern part of Ireland. If the amendment as drafted is not acceptable—and I think there should be a correct definition of the Government of the Republic of Ireland—can I suggest "the Republican Government of Ireland?" That at least would cover it another way.

Legislation must give the correct name. From what I have heard, I am not satisfied that the words as used in the Bill, "the Government of Ireland", correctly describe that independent country.

4 p.m.

Lord Dubs

Amendment No. 2 would substitute the words "Government of the Republic of Ireland" for "Government of Ireland" in Clause 1(2). This language was part of the agreement itself, and on that basis alone I would not favour changing it. But in any event, it actually represents the welcome disappearance of one small but significant difference in practice between the British and Irish Governments that the resolution of the consent question in the agreement has made possible. Hitherto, the Irish Government have referred to themselves, and generally been referred to in international circles, as the "Government of Ireland". We, however, have called them "Government of the Republic of Ireland". Similarly, while the proper name of this state is the "Government of the United Kingdom of Great Britain and Northern Ireland", the Irish have used solely the name "Government of the United Kingdom".

With the agreement we have aligned our practice. We will call them by the name they favour, and they will use the name for us that we favour. Since the constitutional status of Northern Ireland is no longer a matter of disagreement between us, we can put an end to the argument about names. The agreed terminology appears at the head of the international agreement that is annexed to the Good Friday agreement between the parties. I hope that the noble Lord, Lord Monson, will not press the amendment.

Lord Cope of Berkeley

Perhaps before the Minister sits down he will address Amendment No. 225, which is different. He cannot rely on the argument that it is built into the agreement. A draft clause in the agreement supports his contention as regards Amendment No. 2, but not Amendment No. 225.

Lord Dubs

I believe that the point at issue in Amendment No. 225 is the same and I would use the same arguments against it. I did not respond to the comments made by the noble and learned Lord, Lord Mayhew. I believe that it was simply a mistake in the Notes on Clauses—there can be no other explanation. I congratulate the noble and learned Lord on his diligence and on having unearthed the point, but it was a mistake.

Lord Cope of Berkeley

I return to Amendment No. 225. It relates to the surrender of fugitive offenders between Northern Ireland and the Republic of Ireland. It does not refer to the Governments; it does not refer to the Government of the United Kingdom or the Government of Ireland. It refers to two places; one place called Northern Ireland and another place called, in the Bill, Ireland. A different case is being made out for Amendment No. 225 from Amendment No. 2.

As regards Amendment No. 2, I accept that the Minister and the rest of us, to a degree, are stuck with the words which appear in it and which were in a draft clause. However, as regards the amendment to Schedule 2, it does not refer to the Governments but to two places: Northern Ireland and, my contention and that of the noble Lord, Lord Monson, the Republic of Ireland.

Lord Dubs

I understand the point that the noble Lord makes, but I still believe that it would cause confusion rather than clarification if we pursued his argument. I do not believe that there is any ambiguity, but I will consider the points that have been made.

Lord Monson

I am grateful to the noble Lords, Lord Cope, Lord Holme of Cheltenham and Lord Fitt, the noble and learned Lord, Lord Mayhew, the noble Earl, Lord Balfour, and my noble friend Lord Molyneaux for their support. They all supported the amendment from different angles and all gave different but equally persuasive reasons why the matter ought to be looked at again.

I accept that the word "Ireland" was used in the Good Friday agreement. However, as I maintained in my opening remarks, I do not believe that what was agreed on Good Friday can have any bearing on the wording of an Act of the United Kingdom Parliament. It does not contradict or go against the agreement in any way.

If one looks up Ireland in any year book, one will see that it is subtitled "the Republic of Ireland", the equivalent being given in Irish. If one is talking about France in a philosophical context, for example, one refers to La France. On the other hand, if one is talking about France in a legal context one talks about La République Française. That is what appears on stamps and coins. The same principle should apply here.

In view of the large level of support that I have received, I may well return to the matter on Report. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 [Devolution order]:

Lord Cope of Berkeley moved Amendment No. 4:

Page 1, line 18, at beginning insert ("Subject to section 83(4) to (6) of this Act,").

The noble Lord said: In moving Amendment No. 4, I shall speak also to Amendments Nos. 215 and 219. The purpose of the amendments is to ensure that the changes to the United Kingdom constitution march stride by stride with the comparable changes to the constitution of the Republic of Ireland. That is the intention of the Belfast agreement. It was made clear in the agreement and has since been made clear time and again by Ministers and others. Most recently, the United Kingdom Parliament and the parliament of the Republic of Ireland sat on the same day during the Recess to pass the emergency legislation following the Omagh bomb. A great deal was made in this House and elsewhere of the two Parliaments moving ahead on the same day. It was held to be symbolic—and it was symbolic—that the two Parliaments moved together. Indeed, so far as we were concerned the whole event was symbolic because the powers granted in the Bill have not been used and the case then made out for the urgency in passing them has evaporated slightly. But that comes as no surprise to those who heard the debates in this House, which made clear that the powers were of that character.

Ministers have constantly talked about all parts of the process moving together. The Bill makes a fundamental change to the constitution of the United Kingdom and it should move with the fundamental changes to the constitution of the Republic of Ireland. I understand that the necessary legal moves have been made within the Republic, in particular the holding of the referendum, so that the change to the constitution of the Republic will be triggered automatically by the exchange of agreements which take place in accordance with the last part of the Belfast agreement. I refer to the agreements signed by both Governments under the names they respectively go by, which appear in the final pages of the Belfast agreement. It provides that the amendments are to be made in the two jurisdictions and that such legislation shall have been enacted as may be required to establish the institutions referred to in Article 2; they are the North/South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference. Once those have moved forward, each Government will notify the other in writing of the completion of the requirements for entry into force of the agreement, and it then automatically enters into force.

On reflection, my amendment may have been drafted a little too widely because some parts of the Bill need to move forward before the constitutional changes can take place in either jurisdiction. The point I was addressing in these amendments is that I believe the changes to be made to our constitution should not come into force except at the same time as that of the Republic of Ireland. I am not seeking to make it a pre-condition. I think we should move together. My amendments do not say that this cannot come into place until the Irish changes are in place; they say that these changes cannot "come into force" they say before they come into force in the Irish legislation, and that specifically leaves open the prospect of them both coming into force together. That is what I would like to achieve. Perhaps Amendment No. 4 should be drawn a little more narrowly to make it clear that I am only going for the constitutional changes in the first clauses of the Bill. That is the purpose that lies behind this amendment. I beg to move.

Lord Molyneaux of Killead

I would support this amendment moved by the noble Lord, Lord Cope, because on Good Friday, and since then, much has been made of the principle of reciprocity between the two governments as a principle binding on the two governments, on the political parties and on the terrorist organisations. Apart from the two governments, I think it is correct to say that none of the others signed the agreement. They may have assented, with varying degrees of enthusiasm, but we are entitled to call in aid our old friend of long standing, "Solomon Binding". I am in full support of the principle of the amendment moved by the noble Lord, Lord Cope, perhaps with some very minor refinements made at Report stage.

4.15 p.m.

Lord Holme of Cheltenham

I think it will be interesting, when the Minister replies—and it would reflect upon my own attitude towards this amendment—if he were to give us some sense of progress in the Irish Republic as regards their obligations. When we are trying to move as it probably is not quite enough we did on security matters, closely in step and reciprocally, to say: "That is up to them". I think it would be of great interest to Members of the Committee to hear what their projected timetable is.

Lord Skelmersdale

I observe in Article 4 at the end of the agreement that it says in paragraph 1(c): Such legislation shall have been enacted as may be required to establish the institutions referred to in Article 2 of this Agreement". Of the legislation referred to under paragraphs (a) and (b), the first is British legislation and the second, which is germane to this particular amendment, says that, the amendments to the constitution of Ireland, set out in Annex B to the section entitled Constitutional Issues' of the Multi-Party Agreement shall have been approved by Referendum". In my book, that is not quite the same as legislation. I think that my noble friend Lord Cope, and indeed all of us, would wish to know exactly what is the progress of the legislation in the Republic of Ireland to back up the referendum, and whether it is appropriate. It certainly seems to me to be within the context and understanding of the agreement to have such amendments as this in place.

Lord Dubs

The noble Lord's amendments make the commencement of the Bill conditional on a number of developments relating to the Republic of Ireland. Essentially they now concern amendments to Articles 2 and 3 of the Irish constitution. The resolution of the constitutional issue embodied in the agreement and in the changes to British and Irish constitutional law set out in the Bill and in the amendments to the Irish constitution are obviously of the greatest significance. It has been the constitutional issue that has been at the heart of the political division in Northern Ireland.

The amendments to Articles 2 and 3 have already been approved by an enormous majority at a referendum in the Republic. The point at which this and other key aspects of the agreement come into force is settled. The provisions are somewhat involved, but it may be helpful if I summarise them.

The British-Irish agreement, which is attached to the Good Friday agreement, will come into force on an exchange of notes between the two Governments. That agreement provides that the amendments must come into force on that event. The amendments are themselves so cast as to permit this. This date will, as is made clear by the same international agreement, be the same as that of the creation of the north-south bodies; and, as the "Implementation" section of the Good Friday agreement sets out, that will also be the day that the assembly assumes its legislative and executive powers. It will be on that day also that my right honourable friend the Secretary of State makes a commencement order covering Clauses 1 and 2 of this Bill, and Schedule 1.

So all those steps will happen on the same day. I hope the noble Lord will be content that there will be absolutely parallel action here. I believe that the spirit of this amendment is met, but a statutory provision appears unnecessary. In any event, this Chamber will have an opportunity to reflect whether sufficient progress has been made with the agreement before it comes into force because the devolution order made by my right honourable friend under Clause 3 must be approved here and in another place. In the light of that explanation I hope that the noble Lord will feel able to withdraw his amendment.

Lord Monson

I wonder whether the noble Lord, Lord Dubs, could possibly clarify something? Is he saying that Articles 2 and 3 can be modified overnight, as it were, without going through any legislation progress in the Republic? That is what I have inferred from what he has just read out.

Lord Dubs

I am not sure that I would feel competent to comment on the basis of legislation in Ireland, but I understand that that is the case. The position is that—

Baroness Park of Monmouth

I wonder whether I might ask the noble Lord this. As I understand Article 4, the Irish Government is only committed to the referendum before the statement which says: Each Government shall notify the other in writing of the completion … of the requirements for entry into force of this Agreement. It goes on to state: Immediately on entry into force of this Agreement, the Irish Government shall ensure that the amendments to the Constitution … set out … take effect. I think we are concerned because that sounds as if only after the agreement has been agreed formally will they have to play their legislative formal constitutional part. I think that is what worries us.

Lord Dubs

The position as regards Dublin is that the Irish Government have already legislated to achieve the amendment of Articles 2 and 3. An Act was necessary to make provision for the referendum held on 22nd May. That Act made all the necessary provision, subject to the outcome of the referendum, to achieve the desired result. In other words, the legislation there took place first and it will come into force on the date agreed, subject to approval by the referendum. That approval did of course take place.

Lord Cooke of Islandreagh

There is a further complication. An application is now before the Supreme Court in Dublin asking it to rule that the Act dealing with the referendum is out of order because it conflicts with another part of the Irish constitution. Until that has been before the Supreme Court, we will not know what will happen.

Lord Dubs

I cannot possibly comment on that, but we need to act in good faith on the assumption that the Irish Government will fulfil its part of the agreement and we intend to fulfil ours. The Irish Government, as I said, have in fact taken the necessary action to give effect to the amendment of Articles 2 and 3.

Lord Fitt

The noble Lord, Lord Dubs, will be aware—indeed, he just referred to it—that one of the most emotional aspects of the constitutional position in Northern Ireland was the Government of Ireland Act 1920. The Unionist majority, or the Protestant majority in Northern Ireland, whatever term is used, regarded that particular section of the Act as a guarantee. I think it was Section 75, which I will quote from memory: notwithstanding any other thing contained within this Act, all matters, persons, places, and things remain under the supreme jurisdiction of the United Kingdom Government. Those emotive words, in the minds of Unionists, gave them a guarantee of their position and that was one of the really big issues that was debated during the referendum.

Many people in Northern Ireland who voted against the agreement—I cannot quantify them—voted "No" specifically because of the repeal of that section of the Government of Ireland Act. So one can see how emotive it was, because the Unionist majority in Northern Ireland felt concerned about all the guarantees that they had been given by the Union with Ireland Act 1800 and the Ireland Act, 1949 (under a Labour government); and particularly by the emotive words contained in Section 75 of the Government of Ireland Act. They regarded this as their bulwark against any attempt to put them out of the United Kingdom. Given that it has such emotional significance to the Unionist majority, every effort should be made by the Irish Government to do away with Articles 2 and 3. If Section 20 of the 1920 Act is repealed while Articles 2 and 3 remain in the constitution of the republic, that will do nothing but engender fear within the larger community in Northern Ireland. The Irish Government should take that on board and realise how significant those two articles have been.

Lord Cope of Berkeley

I am far from being an expert on the constitution or law of the Republic of Ireland, or for that matter of anywhere else. I am not a lawyer. However, as I understand it, the legislative events in Northern Ireland have made the change in the republic's constitution—the abolition of Articles 2 and 3—conditional on the other factors in the agreement attached to the Belfast agreement coming into play. It is conditional. Should all this process collapse at some point, the changes in the Irish constitution will not therefore come into force. It would be most unfortunate if through this Bill we were to set up a situation in which the changes to our constitution set out in Clauses I and 2 of the Bill, and in particular the changes to the Government of Ireland Act, to which, as the noble Lord, Lord Fitt, has rightly said, a great deal of importance is attached, were to come into force or to be put into law unconditionally. At the moment, that seems to be where we are heading. The republic's change is conditional; our change is unconditional, except on the passage of this Act.

The Minister relies on the fact that this provision will not come into force until an order is made by the Secretary of State. He actually said, if I heard him correctly, that such an order appointing the commencement day would need to be approved by a resolution of each House of Parliament. I am not sure that is correct. It is true that Clause 3 requires a resolution of each House of Parliament for the commencement of Parts II and III of the Bill, but this provision is in Part I of the Bill. It therefore falls under Clause 83: The remaining provisions of this Act (except Parts II and shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint". I do not think it would require approval in either House of Parliament, let alone both.

Of course, it still requires an order by the Secretary of State to come into force. What the Minister is asking us to accept is that the Secretary of State will not make us such an order until these other things have happened. We are relying on the word of the Secretary of State. I do not wish to cast doubt on that but we will wish to give further consideration to this point. In any case, as I said in my opening remarks, I think that, on reflection, Amendment No. 219 is too widely drawn. In those circumstances, unless the Minister wishes to comment further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Transferred, excepted and reserved matters]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

If Amendment No. 5 is agreed to, I shall not be able to call Amendment No. 6, which follows it.

Lord Dubs moved Amendment No. 5:

Page 2, leave out lines 4 to 7 and insert— (""excepted matter" means any matter falling within a description specified in Schedule 2: reserved matter" means any matter falling within a description specified in Schedule 3; transferred matter" means any matter which is not an excepted or reserved matter.").

The noble Lord said: I had some difficulty in understanding Amendment No. 6, which stands in the name of the noble Lord, Lord Cope, although he then explained it in writing to me, for which I am grateful. Excepted matters would be defined as those not reserved or excepted, and transferred matters defined as those not reserved or excepted: one would not know which matters were excepted and which transferred, and Schedule 2 would no longer appear to bear on the matter. As the amendment stands, it would undermine the Bill technically.

What the noble Lord suggests is that, rather than list all excepted matters in the Bill, we should list all transferred ones. That sounds quite simple but I do not believe it is right in principle, quite apart from which it is technically an extremely complex proposition.

The present model, in which excepted and reserved matters are listed, and transferred matters are all the remainder, is that which is followed in the previous Northern Ireland constitutional legislation. The agreement was prepared against the background of that legislation. It is also the model followed in the Scotland Bill. The Government of Wales Act proceeds on a different basis, it is true, but that is in the context of a different system of devolution entirely, where powers of primary legislation are not devolved. I believe, therefore, that, on the principle, the model we have followed is the right one.

Apart from that, however, it would be technically an extremely complex and time-consuming process to produce a list of all the transferred matters. The present schedules, even though they are based on the 1973 division, have required much work to bring them up to date, as will be evident by the number of amendments to the schedules which we have been obliged to bring before your Lordships. To define all transferred matters would delay the Bill very seriously. So, even if we had been persuaded, as I fear we are not, that it was right in principle, that would be a formidable objection to the noble Lord's amendment. I ask him to withdraw it.

The noble Lord's other two amendments, Amendments Nos. 7 and 8, seek to prevent any transferred matters becoming reserved matters. I think it is indeed unlikely that this would occur in any significant way. The agreement envisages in certain circumstances that matters such as policing and criminal justice may become transferred. It does not envisage any other transfer. Nevertheless, one can envisage circumstances in which, on a much lesser scale than these two weighty topics, it may be sensible for matters to change category. It is the nature of the model that we have chosen, in which excepted and reserved matters are enumerated, and transferred matters are defined as everything else, that new subjects of legislation arise in the transferred field. That happened on a number of occasions during the life of the 1973 constitutional legislation—which as your Lordships may know has continued on the statute book, albeit overlaid by the provisions for direct rule since 1973—and a number of new matters for legislation were by Act of Parliament subsequent to 1973 made reserved. I think the provision does no harm, since it can only be given effect if there is general agreement in Westminster and in the Assembly. I ask the noble Lord to withdraw the amendment.

We are ourselves proposing a technical amendment in this clause, slightly altering the definition of excepted, reserved and transferred matters. The present definitions of excepted and reserved matters are simply, the matters specified in Schedules 2 and 3". This might be taken to suggest that transfers in the future from the reserved to the transferred category can only operate on whole paragraphs or sub-paragraphs of that schedule. That is not our intention. We intend that any matter that falls within the reserved field, whether it is expressly mentioned in Schedule 3 or merely falls within one of the descriptions there, should be capable of transfer, if there is the general agreement required by Clause 4.

In this context I ought to expand on some remarks I made last week which indeed bear on the question of future transfers of matters that, as the Bill is cast at present, are reserved. During the course of the Second Reading debate I referred to the abortion law in Northern Ireland being a matter of criminal law and hence currently reserved in Northern Ireland terms. Any reform of the law along the lines of the 1967 Act would fall into that category, though of course many of the issues around the topic relate to social and health policy.

I said also that as and when it was 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 make it clear that I cannot give any guarantee about when such transfers might be made or what might be part of any transfer of responsibility.

Any change in the status of reserved or transferred matters can be made under the Bill only with the agreement of the Assembly based on cross-community support and after the approval of an appropriate resolution of each House here at Westminster. Which matters are transferred must be matters for decision at the time. I beg to move Amendment No. 5.

4.30 p.m.

Lord Cope of Berkeley

Both the Minister and I are seeking to alter the wording of the first part of Clause 4. As the Minister said, he is making relatively minor drafting alterations to express the matters in better "legalese". I certainly support what he wishes within the context of what he is trying to do.

However, I wish to make two other points relating to the same matter. First, as the Minister rightly said, Amendment No. 6 is concerned with the question of how this whole process should be set up. As the Minister rightly spotted, it is a paving amendment. I have not attempted to work out in full and to table all the consequential amendments which would be required. I accept entirely from the Minister that they would be extensive.

But the point which lies behind the amendment is quite simple. The Bill as drafted means that certain specified powers are to be retained permanently by Westminster: those are the excepted matters. Other powers are to be retained temporarily at Westminster but will be transferred in the future and they are described as reserved matters. The third group—everything else—is to be transferred automatically now. Those are described as the transferred matters but they are nowhere defined except as matters which are not excepted or reserved.

That seems to me to be the wrong way to proceed. The Welsh model is the better one to follow in this case. Responsibilities which are to be transferred, either now or at some future date, should be listed in the legislation, leaving everything else to be retained by Westminster. In that way, the Westminster Parliament clearly remains the sovereign Parliament dealing with any matter which is not given specifically, either now or at some later stage, to the Northern Ireland Assembly.

The first reason for saying that is the range of government amendments to this Bill at this stage. There is a huge number. Those are matters which the Government, in their wisdom in the summer, did not think of transferring or where the definition has been refined. Amendment No. 5 refines the definition because the Government had not quite got it right. I am quite sure that there will be other matters which we have not yet thought of and further refinements which may be required. That is a reason for retaining any powers not stated specifically in Westminster rather than having them go to the Northern Ireland Assembly.

Secondly, there will be new topics which have not yet emerged into public debate or, in some cases, not arisen at all which will emerge in the next few years. We expect this legislation to last for many years as the basis of government in Northern Ireland. I have no doubt that science will move on and new matters will come to concern us. There are listed in Schedules 2 and 3 some words which, perhaps, we would not have recognised 10 or 20 years ago.

Lastly, in the United States, one runs across arguments about states' rights: what are the rights retained by the states and what are the rights which go to Washington, to the federal government, the Senate and the Congress? The individual states make very clear that the United States is a federation and that powers not given specifically to Washington remain with the states. That is a federation. That is almost the definition of a federation. It is certainly one definition although, as we are discovering, there is more than one possible definition of a federation.

However, we are not seeking to set up a federation here. We have a situation where Westminster will remain the sovereign Parliament. Those are my points in relation to Amendment No. 6.

Amendments Nos. 7 and 8 are different and address a different point. The Bill permits the Secretary of State to lay an order moving a matter between the reserved and transferred categories in either direction provided that the Assembly has passed, with cross-community support, a resolution praying that that should happen.

In relation to any matter which is to be transferred to the Northern Ireland Assembly—that is, which ceases to be a reserved matter and becomes a transferred matter—it is right that the Assembly should ask for those powers to be given to it. But it seems to me that there may be cases, particularly if the Assembly becomes deadlocked at some stage in the future, when it is desired to take back powers from Northern Ireland. An example of that may be law and order if that has been transferred in the meanwhile. It may be desired to take those powers back from Northern Ireland to Westminster. It may be impossible to achieve agreement on that on a cross-community basis with the very elaborate voting system which is being set up. It would then be impossible, under this Bill, for the powers to be taken back to Westminster and exercised here by the Westminster Government and by this Parliament.

It seems to me that that is a risk. It will be fine if the Assembly runs smoothly and there is cross-community support for everything for many years and generations to come. But if that is not so at some point—and we need to think about that contingency although none of us wants it—the Secretary of State should have the power to lay an order without the consent of the Assembly withdrawing powers back to Westminster so that those matters can be dealt with here.

Of course, such an order, if laid by the Secretary of State, would require under the Bill—and I think it is right that it should—the approval of both Houses but not the approval of the Assembly. I commend my amendments to the Committee.

Lord Molyneaux of Killead

The former parliament of Northern Ireland was always fully aware of where exactly the dividing line was. Over all those years of its existence, there was never any doubt, friction or dispute with the sovereign Parliament. But we are embarking on a new and extremely complicated form of devolution which is different from that which has been granted to Scotland and Wales. Therefore, in alliance with the Minister, I emphasise the need for continuing examination of what we are setting about throughout the remaining stages of the Bill.

In this very difficult field, none of us should take a step-trench attitude. We should do our best to try to look to the future and avoid unnecessary complications, particularly as there can be confusion in the minds of the Northern Ireland Assembly as it looks across the channel to Scotland on the one hand and Wales on the other. It sees those assemblies being given different powers and some of those powers are subsequently modified. That three-way traffic in devolution is something which must be handled extremely carefully and sensitively.

Lord Holme of Cheltenham

The remarks of the noble Lord, Lord Cope, on Amendments Nos. 7 and 8 are particularly interesting because the central dilemma with which he and the Government are wrestling is the question of what happens if people make the wrong decision, in the views of Westminster and Whitehall, when power has been devolved to them. In the case of Northern Ireland, where we are establishing a sensitively balanced new body, the considerations are not the same as they are in Scotland and Wales. We must acknowledge that. We are in a period of trial, making a tentative disposition and hoping to get it right. Can the Minister say in what circumstances he imagines the Secretary of State wanting to take powers back from the Assembly that have already been granted?

Lord Dubs

It is important to keep this whole arrangement as simple as possible. If we were to go down the path suggested by the noble Lord, Lord Cope, we would have to produce an extremely long list of transferred matters. It may be so long that it would be unhelpful and indeed confusing. I need only to think of the list of responsibilities of my two departments—the Department of the Environment and the Department of Agriculture in Northern Ireland—to realise what a long list one would need to cover all those matters.

Surely it is much clearer and better to do it in the way envisaged by the Bill; that is, to have a short list of items and transfer everything else. That has the merit of clarity and simplicity. Indeed, I also draw the attention of the Committee to the powers of the Westminster Parliament, which will remain. Clause 5(6) says, This section does not affect the power of the Parliament of the United Kingdom to make laws for Northern Ireland". Therefore the supreme power of Parliament will not be affected by the Bill.

The noble Lord, Lord Holme, asked a question which is so hypothetical that I would get into serious trouble if I tried to give him more than one example. The one example that comes to mind is if there were to be a change in the powers of the European Union in Brussels. If those powers dealt with issues which at the moment are transferred, that may well have an effect. Given that we would have only one negotiating stance in Brussels through the British Government, it would be difficult to allow a Northern Ireland Assembly to continue with the powers it now has in relation to matters which would then come closely under Brussels.

I should not have fallen into that trap. The noble Lord smiled so charmingly that I succumbed. I can assure him that there are other examples, but I shall not give him any more.

Lord Cope of Berkeley

I do not believe that the noble Lord addressed Amendments Nos. 7 and 8 in relation to what happens if we want to take back powers and the Assembly is deadlocked due to the cross-community arrangement. It would be impossible for the Westminster Parliament to recover any powers. Is that sensible?

Lord Dubs

I drew attention to Clause 5(6) which says that the United Kingdom Parliament still has powers.

At some point we must have confidence in the Assembly and its relationship with the Government in order to make it run smoothly. If we assume that everything will go wrong, we will not give the new Assembly the chance to go ahead. The noble Lord, Lord Cope, is heading into areas where he assumes that everything is doom and gloom and therefore we must have a contingency plan for every disaster. I do not believe that that will be the case. I am more optimistic.

Lord Cope of Berkeley

I am optimistic about the Assembly; I am optimistic about the whole thing. But that does not mean that one does not need to have regard to what might happen if our optimism proves to be misplaced.

One cannot design legislation totally on the basis of optimism with no regard for what happens if it goes wrong. If I was in the Treasury and we designed tax legislation in that way, we would have an awful lot of trouble. However, I must not draw myself down that road.

4.45 p.m.

Lord Molyneaux of Killead

I am sure the noble Lord, Lord Cope, is correct because there did not seem to be any such powers in the 1920 Act; at least, if there were, they were well concealed. At that time two major crises developed in the security field and the only remedy then was for the Westminster Parliament, in the shape of the then Prime Minister, to lean on the Prime Ministers of Northern Ireland. At that time there were two, one following the other and both suffered the same fate. They had to carry out what in fact was the clawback power and pretend to be implementing those powers. The result was that both Prime Ministers were demolished within a matter of weeks.

Lord Cope of Berkeley

In some circumstances one may be able to lean on a Prime Minister or First Minister and Deputy First Minister. But this is a question of trying to lean on the Assembly as a whole. What is more, because cross-border voting would apply, it would be much more difficult. As the noble Lord, Lord Molyneaux, pointed out in his example, it did not work anyway and the two Prime Ministers lost their power.

It seems as though I shall have to rely on Clause 5 which says that the powers of the United Kingdom are not affected. Quite how that will play against a specific arrangement for the withdrawal of orders in the courts, I cannot anticipate.

On Question, amendment agreed to.

[Amendments Nos. 6 to 8 not moved.]

Clause 4, as amended, agreed to.

Baroness Farrington of Ribbleton

Before I move that the House do now resume so that my noble friend Lady Symons of Vernham Dean can repeat a Statement being made in another place, I should like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.