HL Deb 19 October 1998 vol 593 cc1214-23

5.37 p.m.

House again in Committee.

Clause 5 [Acts of the Northern Ireland Assembly]:

Lord Cope of Berkeley moved Amendment No. 9:

Page 2, line 42, after ("as") insert ("Northern Ireland").

The noble Lord said: I beg to move Amendment No. 9 and at the same time speak also to Amendment No. 10 in the name of the Minister. Amendment No. 9 is a very minor matter in comparison with some of the great issues of principle with which we sought to deal earlier in Committee. The amendment proposes that legislation passed by the Assembly should be known as Acts. My amendment proposes that they should be referred to as Northern Ireland Acts. In other parts of the Bill they are referred to as Acts of the Assembly. That appears to be the accepted designation elsewhere, although not for some reason in this clause. That makes them distinct from Acts of Parliament passed by this Chamber and another place, although presumably it may give rise to confusion with Acts of the Welsh Assembly and other legislation. It is rather confusing. My modest suggestion is that this legislation should be known as Northern Ireland Acts to distinguish them from Acts of Parliament.

Lord Dubs

I am grateful to the noble Lord for explaining his amendment. I think in fact that ambiguity will in practice be avoided. Legislation on the Northern Ireland statute book has generally been cited with the words "Northern Ireland" in brackets after the name of the enactment. So the 1974 Assembly passed an instrument called the Financial Provisions Measure (Northern Ireland) 1974. The same method of citation is still used for subordinate legislation on the Northern Ireland statute book. We envisage the convention applying to Acts of the new Assembly.

Nevertheless, it is true that the Bill refers here merely to "Acts", while otherwise it refers to "Acts of the Assembly". If the noble Lord will withdraw his amendment, I shall ask whether the drafting here could properly be expanded.

I turn to our own amendment, Amendment No. 10. It is intended to put beyond doubt that an Act of the Assembly, so long as it is otherwise within the bounds set by the Bill, can modify anything in an Act of Parliament, or in any legislation made under one. That is implicit in the Bill, and we at first thought such provision unnecessary. But, on reflection, we now believe it best to put the matter beyond doubt, particularly since there was such a provision in the Northern Ireland Constitution Act 1973, and it is possible that an inference could be drawn in the future from the omission now of such a provision that we intended something different.

Lord Cope of Berkeley

I am grateful to the Minister for giving further consideration to the point I made as a result of Amendment No. 9.

I am in sympathy with what the Minister seeks to achieve in Amendment No. 10, but I would like to suggest that this amendment is in the wrong place in the Bill. I am sure the noble Lord will be well aware, as will other noble Lords, that subsection (6) is taken from the Government of Ireland Act and is regarded as being of the greatest importance by many in Northern Ireland It does indeed implement a specific reference that the Westminster Parliament's power to make laws for Northern Ireland would remain unaffected. To qualify that by adding Amendment No. 10 at this point reduces the symbolic effect of the subsection.

I suggest that it would come better after Clause 5(1); that is, in line 42 on page 2 of the Bill, which says that the Assembly may make laws. Amendment No. 10 says: but an Act of the Assembly may modify any provision made by or under an Act of Parliament in so far as it is part of the law of Northern Ireland". It is logical to put the provision there. By leaving the provision as it stands, it makes that symbolic point. After all, it was important enough to be quoted by the Minister only an hour ago or thereabouts, just before the Statement intervened, as being of significance. I think that it remains a significant subsection which should be left unmodified. Therefore, the Government's Amendment No. 10 would be better placed earlier in this clause. I should be grateful for the Minister's views on this matter.

Lord Dubs

I understand what "the Minister" is saying. It is a question of where in the Bill to place the particular view expressed in Amendment No. 10. I hope that the noble Lord will accept that Amendment No. 10 is good and important to have on the face of the Bill. We are not taking anything away from Clauses 5 and 6 by inserting Amendment No. 10 where we are doing so. It is not derived from the Government of Ireland Act. Therefore, despite his wish to have it in a different place, I hope that the noble Lord will feel that Amendment No. 10 is a useful amendment and should be on the face of the Bill.

5.45 p.m.

Lord Cope of Berkeley

I am not objecting to it being on the face of the Bill, but I think that it modifies the effect of subsection (6). I do not see how that can be doubted. I am not objecting to this phrase being included, but I should be grateful if the Minister would give at least some consideration to whether it might be better placed in a different position, as I have suggested.

As regards Amendment No. 9, I am satisfied. A little flattery gets one a long way. It is some time since I have been called a Minister in a Chamber of this kind. I am most grateful for that and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 10:

Page 3, line 12, at end insert ("but an Act of the Assembly may modify any provision made by or under an Act of Parliament in so far as it is part of the law of Northern Ireland").

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 [Legislative competence]:

Lord Williams of Mostyn moved Amendment No. 11:

Page 3, line 22, leave out first ("matters").

The noble Lord said: In this group are to be found Amendments Nos. 11 to 14—and 15 and 16 which are in the name of the noble Lord, Lord Cope of Berkeley—and Amendments Nos. 18 to 20, 22, 24, 26, 29 and 30.

Essentially, the government amendments are very largely technical, intended to clarify drafting, and bring about consistency, which is plainly desirable.

There are one or two which I should touch on in a little more detail. We propose to leave out subsection (2) of Clause 9, by which it would have been possible for the Assembly to overrule a decision of the presiding officer about whether or not a provision of a Bill would be within legislative competence. As the Committee knows, noble Lords disapproved of the comparable provision in the Scotland Bill and, accordingly, we think it appropriate to bow to the will of the House, as always, and therefore take out subsection (2) of Clause 9.

We also propose to omit Clause 6(3) about reading Acts of the Assembly so as to be within legislative competence. There is a technical deficiency there. We shall want to bring forward a better form of words later—I think it is likely to be longer.

Amendment No. 11 is purely drafting; Amendments Nos. 12 and 13 are purely technical. Clause 6(2)(e) might at the moment suggest that to show that a provision of an Act of the Assembly was outside legislative competence, it would first be necessary to show that it was not incompatible with convention rights, which would be a perverse requirement.

Amendments Nos. 19 and 29 are purely of a drafting nature. Amendment No. 22 is to tighten the drafting of the Bill. Amendments Nos. 24 and 26 are intended to rule out the possibility of amendments being made to a Bill by the Assembly at what one might call third reading. The Bill provides that the Secretary of State may indicate her consent to a Bill before that stage. The Attorney may indicate that he does not intend to make a reference to the Judicial Committee of the Privy Council. Quite plainly, those provisions could not stand if the Assembly was free then to alter the nature of the Bill. Amendment No. 30 is purely a matter of drafting, making it plain that subsection (3) as well as subsection (2) of Clause 13 qualifies subsection (1).

The distinct amendments are those that I indicated in the name of the noble Lord; namely, Amendments Nos. 15 and 16. We do not favour them because they would rob the Assembly of flexibility in its capacity to legislate. They would reduce the range of provision beyond the transferred field that the Assembly was able to make with the consent of my right honourable friend the Secretary of State.

The definition of ancillary provisions comes from the Northern Ireland Constitution Act 1973. Therefore, the system in Northern Ireland is well familiar with it. Without such a definition, the Assembly might find that the reasonable provisions it wished to make as respects excepted matters, in the context of a legislative scheme about transferred ones, were beyond its competence; or as respects reserved matters, they would be subject to parliamentary control in accordance with Clause 13.

We think it is right that the Assembly should be able to fill out legislative schemes within the areas devolved to it with provisions that can reasonably be seen as useful for making it effective. The control of the Secretary of State is necessary, we believe, given the present pattern of devolution because ancillary provision might touch on sensitive areas to do with police and criminal justice, for instance, which remain within the control of the United Kingdom authorities for the present, as the noble Lord himself indicated on earlier amendments.

But we do not want to circumscribe the freedom of the Assembly unnecessarily. We would not want the uncertainty that would come from enabling the Assembly to make particular provisions if it were necessary for making others effective, but not if it were merely expedient for the purpose. We would not wish to deprive the Assembly of the power which seems, first, valuable, and, secondly, unobjectionable, of legislating incidentally to, or consequential on, provisions within its principal sphere.

I commend the government amendments to the Committee. I hope that it has been helpful for me to have indicated the Government's attitude to Amendments Nos. 15 and 16 tabled in the name of the noble Lord, Lord Cope.

Lord Holme of Cheltenham

Broadly speaking, we support the amendments, most of which are fairly minor drafting improvements. I wish in particular to speak in favour of Amendments Nos. 18 to 20 which limit the ability of the Assembly to overrule the decision of the presiding officer as to whether or not an issue is within the remit of the Assembly.

It seems to me desirable at this early stage when the institution is establishing itself that its presiding officer is given all reasonable latitude. It is difficult enough to be Speaker of another place, but to be presiding officer of this new institution will be a great challenge. I do not say that because the present Presiding Officer is a some time Member of these Benches, but because it is a difficult job. Those amendments strengthen somewhat his authority and that is highly desirable.

Lord Cope of Berkeley

I accept the amendments moved by the noble Lord on behalf of the Government. I agree with the noble Lord, Lord Holme of Cheltenham, that, noble Lords having persuaded the Government on the question of the presiding officer, it is wise of the Government also to put the provision into the Bill. The Minister sought to say that the Government always did what this House requested. I think that goes a little far. However, in this instance the Government have stepped, as it were, from one Bill to another in a perfectly proper manner which I support.

As the Minister explained, Amendments Nos. 15 and 16 standing in my name relate to how far the Assembly's competence goes beyond the power strictly given to them. There is no difference between us that the Assembly should be able to enforce the provisions that it is making. The question is whether we should go further. For matters to be considered expedient, incidental to, or consequential on, goes rather wide. Many issues can be regarded as consequential on something else. The provision opens potentially a wide door.

The noble Lord the Minister said that the provision was subject to the Secretary of State. I had not spotted that the Secretary of State was to be able to rein in the Assembly in this way. I am not sure what the noble Lord meant. He may have been referring to Amendment No. 17 or some other provision which I had not appreciated bore on this part of the Bill. If the noble Lord can help me on the matter, I may be able to agree with him, or go a little further along his line of argument.

Lord Williams of Mostyn

I am grateful to the noble Lord for his customary courtesy in giving way. I sought to say that the proposed scheme which underpins the Bill is to have a control by the Secretary of State, for instance, touching on sensitive areas to do with police and criminal justice, which I specified earlier. Equally, when one devolves power to an assembly of this kind, the Welsh assembly or the Scottish parliament, one needs to trust the assembly with the right to fill out legislative schemes in the areas devolved to it.

The amendments in the name of the noble Lord, Lord Cope, limit unnecessarily the ability of the Assembly. His amendments take out the word "expedient" but leave the power to legislate where necessary. They take out entirely matters which are incidental to, or consequential on provisions. We believe that if one is to trust an assembly to legislate, one should give it the tools reasonably so to legislate. That is why we think that it is better to leave the drafting in its present form. I hope that that is of assistance.

Lord Cope of Berkeley

Am I right in thinking that it is Clause 7 which gives the Secretary of State the leverage?

Lord Williams of Mostyn

It is.

Lord Cope of Berkeley

In view of that, I shall not move my amendments.

Lord Simon of Glaisdale

Perhaps I may say a word about Amendment No. 14 which leaves out subsection (3). It is clearly right because subsection (3) does no more than state what the law states without any statutory necessity. The doctrine is that there is a strong presumption in the present circumstances that an act is regular. I use the word "act" in the general sense, not as meaning a statute. Anything done is presumed to be regularly done; and therefore subsection (3) is unnecessary.

I intervene only because I may have misheard the Minister. I understood him to say that a different form of words to the same effect would be inserted later. I venture to submit that that is unnecessary because the law already takes care of the situation. It is true that the rule of law is generally expressed in Latin, but since the noble Earl, Lord Onslow, is not in his place, perhaps we can get by on the English words. Otherwise the Minister will have it readily at the tip of his tongue. I hope that he can reassure us that this provision disappears and will not reappear differently phrased.

Lord Williams of Mostyn

The noble and learned Lord is right. I stated—in English, not in Latin—that we were going to think about redrafting. But before any redrafting occurs, bearing in mind the helpful and instructive seminars we had on the Government of Wales Bill, I shall bear in mind the noble and learned Lord's cautionary words.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 12:

Page 3, line 25, leave out ("not incompatible with any of those rights but") and insert ("incompatible with Community law; (ea)")

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 13:

Page 3, leave out line 28.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 14:

Page 3, line 29, leave out subsection (3).

On Question, amendment agreed to.

[Amendments Nos. 15 and 16 not moved.]

Lord Dubs moved Amendment No. 17:

Page 3, line 41, at end insert—

("(5) Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Northern Ireland.

(6) No recommendation shall be made to Her Majesty to make an Order in Council under subsection (5) unless a draft of the Order has been laid before and approved by resolution of each House of Parliament.").

The noble Lord said: The package of amendments beginning with Amendment No. 17 is intended to clarify the Northern Ireland Assembly's powers to regulate sea fisheries. The scheme it sets out is, with the necessary amendments for our different context, the same as the one put to your Lordships in the Scotland Bill. The Assembly will be able to regulate sea fisheries inside a Northern Ireland zone defined in Amendments Nos. 210 and 214, but not beyond it, other than in respect of Northern Ireland fishing boats, because Amendment No. 244 makes regulation of sea fisheries outside the Northern Ireland zone, except in respect of these boats, an excepted matter. But within those limitations, there will still be cases where the Assembly's writ must run outside Northern Ireland. To avoid any doubt, Amendment No. 17 provides for an Order in Council, subject to affirmative resolution, to specify when functions are exercisable in or as regards Northern Ireland. We shall later have other consequential amendments to propose to Clause 72.

In putting forward these amendments, I emphasise to your Lordships that these powers allow the broad thrust of regulation and licensing of sea fisheries to continue, without imposing additional bureaucracy or disturbance on the fishing industry. I beg to move.

6 p.m.

Lord Cope of Berkeley

I understand the purpose of these amendments. As the noble Lord the Minister has said, it is to transfer fisheries matters in part to the Northern Ireland Assembly. The problem with them is that most of the important decisions in connection with fisheries are taken by the European Community by agreement. This brings us to the question of who will represent the Northern Ireland fishing interests when such matters are discussed and negotiated at the Council of Ministers. These matters, along with agriculture, are some of the most contentious and difficult negotiations that ever take place in the European Union, and that is saying an awful lot. There are some very difficult matters which have to be dealt with at the Council of Ministers, but fishing and agriculture are among the most difficult.

The present position is that UK Ministers will negotiate fish quotas, total allowable catches and matters of that kind. There is no question but that the United Kingdom will be involved in those negotiations. The United Kingdom is the body which is the member of the European Union, and will remain so. Northern Ireland will not become a separate member, nor is it desirable that it should. The UK Ministers will deal with the negotiations and will be answerable to Parliament for the decisions they have made and for the way in which the negotiations have turned out. I am sure they will consult with the Northern Ireland ministers, as they will with Scottish representatives, before they go and do their deals; but they will need to do their deals in the middle of the night and in the small hours of the morning, without benefit of immediate consultation at that time, unless they take a Scottish and a Northern Ireland representative with them. The UK Ministers will not be able to answer to the Northern Ireland Assembly, or indeed to the Scottish parliament or anywhere else but only to the Westminster Parliament.

This matter came up in some detail on a number of occasions in the Scotland Bill and the noble Lord, Lord Sewel, speaking for the Government, was quite clear about it. He was clear that Scottish ministers would report to the Scottish parliament and UK Ministers would report to the Westminster Parliament. He also said: Scottish ministers and UK Ministers will agree the UK line on negotiations in Brussels".—[Official Report, 28/7/98; col. 1434.] I am sure he meant that, once this Bill has been enacted, Scottish ministers, Northern Ireland ministers and UK Ministers would agree on the line insofar as it affects Northern Ireland interests, if these are to be transferred. At the stage that he was speaking this amendment had not been put down and there was not a proposal to move fisheries questions to Northern Ireland. I am not criticising what the noble Lord, Lord Sewel, said on that occasion; he was quite right at the time, but the situation has changed as a result of these amendments. The position will now be even more complicated for UK Ministers.

This makes one wonder whether it is sensible to move the responsibility for fisheries matters to Northern Ireland. I realise that it is a matter of great importance to Northern Ireland, as is agriculture. One could use the same arguments about agriculture, and I am not proposing that agriculture should not be devolved to the Northern Ireland Assembly. There is this difficulty, however: that all the important matters affecting fisheries inevitably happen in Brussels and Luxembourg, at the meetings of the Council of Ministers. It is important that the Government and the House understand that, at the time when we consider transferring fisheries matters to the Northern Ireland Assembly.

Lord Dubs

I am happy to answer the question of the noble Lord, Lord Cope, question. It is clear that our negotiating position in Brussels will be taken by the United Kingdom Minister, that is to say the Westminster Minister, whether it be at Agriculture Council meetings, Fisheries Council meetings or at other council meetings in Brussels. We shall certainly be following the Scottish example in Northern Ireland practice. UK Ministers will continue to negotiate on behalf of the Northern Ireland sea fishing industry. Northern Ireland ministers will have an opportunity to contribute to the United Kingdom negotiating position, however, and they may on occasions be invited to attend the Council of Ministers for appropriate discussions. Indeed, I have on occasion been to agriculture meetings in Brussels where the subject at issue has been of direct concern to Northern Ireland, but the responsibility for our negotiating position was, of course, with the senior MAFF Minister present.

As regards giving effect to Brussels measures, the present Northern Ireland Order in Council procedure has often been used and the Assembly would have that responsibility in future. The position is therefore clear. The negotiating position in Brussels is clear and then, to give effect to these measures, the Assembly would have to pass such measures as appropriate.

Baroness Park of Monmouth

May I ask the noble Lord the Minister how paragraph 17 of strand two of the agreement bears on all this? It is about the British-Irish Council and it reads: The Council to consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings". Can I take it that what he has just said would not lead to the issue of fisheries also being put to the British-Irish Council? It seems to me that that would cause immense complications.

Lord Dubs

These are fairly complicated matters and in some cases they might be a little hypothetical.

It is quite possible for there to be co-operation through the North/South body between Northern Ireland and Dublin. I think that is the point of paragraph 17 on page 13 of the Belfast agreement. The responsibility for this country's negotiating position, however, will still be that of the MAFF Minister, or whatever other Minister is appropriate. Clearly the Dublin Government would have its own Minister doing that, but that does not mean that there could not be co-operation and discussion. The views expressed through such a North/South body would clearly be listened to, both by the appropriate Minister in Dublin and by the appropriate Minister in London. That is different from who is responsible for negotiating for each country.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clauses 7 and 8 agreed to.

Clause 9 [Scrutiny by Presiding Officer]:

Lord Williams of Mostyn moved Amendments Nos. 18 to 20:

Page 4, line 8, leave out ("Subject to subsection (2),").

Page 4, line 10, leave out ("be outside") and insert ("not be within").

Page 4, line 11, leave out subsection (2).

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Scrutiny by the Judicial Committee]:

Lord Holme of Cheltenham had given notice of his intention to move Amendment No. 21:

Page 4, line 43, leave out ("Judicial Committee") and insert ("Constitutional Court").

The noble Lord said: It may be for the convenience of the Committee to know that this group of amendments deals with the constitutional court. My noble friends and I have notified the Government that we shall not move them today, although we shall return to them on Report, by which time the Report stage of the Scotland Bill will have gone through your Lordships' House.

[Amendment No. 21 not moved.]

Lord Williams of Mostyn moved Amendment No. 22:

Page 5, line 7, leave out subsection (3) and insert—

("(3) If he notifies the Presiding Officer that he does not intend to make a reference in relation to a provision of a Bill, he shall not make such a reference unless, after the notification, the Bill is approved as mentioned in subsection (2)(b).").

On Question, amendment agreed to.

[Amendment No. 23 not moved.]

Clause 10, as amended, agreed to.

Clause 11 [Stages of Bills]:

Lord Williams of Mostyn moved Amendment No. 24:

Page 5, line 19, at end insert ("but not amended").

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

Lord Williams of Mostyn moved Amendment No. 26:

Page 5, line 45, at end insert ("but not amended").

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

Lord Cooke of Islandreagh moved manuscript Amendment No. 26A:

After Clause 11, insert the following new clause:

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