Northern Ireland Bill

HL Deb 19 October 1998 vol 593 cc1265-306

8.55 p.m.

House again in Committee on Clause 15.

Lord Cope of Berkeley moved Amendment No. 45:

Page 9, line 6, at end insert—

("() Where a political party is linked to a terrorist organisation, which has not been certified to the Presiding Officer by the chairman of any Commission of the kind referred to in section 7 of the Northern Ireland Arms Decommissioning Act 1997 as co-operating fully with that Commission, that political party shall be disregarded for the purposes of subsections (4) to (9) of this section.").

The noble Lord said: We now come on to a most important and topical matter; that is, decommissioning. It comes in the part of the Bill in which decisions are being made as to who can be members of the new Northern Ireland Executive. On these Benches, our belief is quite clear and can be very simply stated. It is that no one can be a terrorist and a democrat at the same time. Democracy cannot function properly under threat.

Of course, ex-terrorists can become democrats. Having been one does not exclude the other and there are good examples of that in Northern Ireland as well as in many other countries overseas. But how do you tell a terrorist from an ex-terrorist? Perhaps I should put that question the other way round. How can you tell an ex-terrorist from a continuing terrorist or, for that matter, how do you tell a democratic party from a group of terrorists? The answer is that when people give up violence, they have no more need for semtex or guns. It is that indication, that proof of the fact that a particular individual or group of individuals has moved from being terrorists to being democrats, that we seek in these amendments.

A great deal has been happening on this matter in public and on the airwaves as well as in private, of which we have no knowledge. I heard it said on Radio 4 this morning by a Sinn Fein representative that decommissioning is a matter only for General de Chastelain and the decommissioning commission which has been set up under the Belfast agreement to put all those matters into practice. I most strongly disagree with that. Whether or not there is decommissioning is a matter for everyone in Northern Ireland and it is most certainly a matter for this Parliament at this point.

I know that some of those in Sinn Fein-IRA talk as though what we require by this process is surrender. That is not so. I want to make that point extremely clear. If an army surrenders at the end of a conflict, it not only gives up its guns; it also holds up its hands. The soldiers are taken prisoner and are at the mercy of the victor to be placed in prisoner-of-war camps or whatever it may be. That is surrender. But that is not what we are looking for. Nor what is expected. On the contrary, prisoners are being released even now who would otherwise be held. There is no question but that people who come forward and hand in their guns will later be released. Indeed, the legislation we passed not too long ago specifically provides that the possession of a gun that has previously been used to commit murder or some other crime shall not be used as evidence in court to put people in gaol.

Therefore it is not a question of surrender. At the end of a conventional war—if one wants to use an analogy—we do not get surrender; we get demobilisation. That happened to the British Army and the allied armies that won the war in 1945 and has happened in every other major war. It is demobilisation with which we are concerned. That is what is happening with the British Army in Northern Ireland. As the situation allows, troops are being withdrawn. That will continue to happen provided that peace becomes a reality.

The reasons for having a decommissioning commission, the instructions it is given and the way it operates do not involve surrender; they involve verifying that people have given up their weapons and taken up democracy. That is what we are talking about. The commission is extremely important not only on its own account, but also because in people's minds it is symbolic of a movement away from terrorism to democracy.

It may be said that Amendments Nos. 45 and 81 set up in some way a new pre-condition. We have heard that many times. But they do not. They build on the Belfast agreement. Amendment No. 45 provides that nobody can become a member of the Executive or a Minister in the Northern Ireland Government unless their party has given up its weapons. The judge of that will be the chairman of the decommissioning commission. Amendment No. 81 strengthens the powers that the Assembly already has to reject a party for ministerial office because it does not support democracy.

Decommissioning has moved higher in perception over the time since the agreement was signed. The reason is simple. Decommissioning was agreed as part of the Belfast agreement and is supposed to be completed by May 2000—two years after the referendum took place. We are five months into that period and nothing whatever has happened in relation to Sinn Fein-IRA. Those on the other side of the divide are still waiting for action from the principals of that organisation.

That is the reason this issue has become so much more important. If a small amount of progress had already been made it would not loom so large in everybody's calculations; it would not be such a sticking point. Everybody agrees that the Belfast agreement must be taken as a whole. Decommissioning is part of that agreement and account must therefore be taken of it. It is not necessarily a matter, as David Trimble said on the radio this morning, of textual analysis; it is a matter of whether people trust former terrorists to be in government. Do they believe that they are no longer terrorists and are now democrats? That is what decommissioning is all about. It is because nothing has happened that we need to make progress at this time.

It was also said on the radio this morning that Sinn Fein must be on the Executive; that that is in the agreement. That is true—not in so many words, but it is implied; but so is decommissioning and we cannot pick out one piece and not follow the others. The agreement specifically says in several places and this Bill repeats that neither Sinn Fein nor anybody else can take their places on the Executive unless they are committed to democratic means. That has been spelt out by the Prime Minister, by the Taoiseach and everybody else since the agreement was concluded. The test of whether or not they are committed to democracy has become decommissioning.

It is also suggested that the pressure for decommissioning comes only from unionists. That is not true. The pressure for decommissioning comes from a wide spectrum of people throughout Northern Ireland; it certainly comes from this Chamber and many people here. It is time to be clear that in relation to terrorist supporters and the parties that have represented them over the years, if there is no decommissioning, they will not be allowed on the Executive. That may mean that the agreement begins to come apart and to founder. That would be dreadful.

However, it would not be right—it would not be democracy—to allow people to serve on the Executive who still support terrorism, who are still fully armed and who continue to use those arms in punishment shootings to almost the same extent as previously. It would not be right to allow that. In practical terms, that would not be acceptable to either unionists or the British people, as far as I can see. I do not think that now is the time to be mealy-mouthed about this issue. That is why I believe, given that nothing has happened, that this provision should be on the face of the Bill. That is the purpose of the two amendments. I beg to move.

Lord Molyneaux of Killead

I refer to paragraphs 3 and 6 on page 20 of the Good Friday agreement. I am not deliberately omitting paragraph 4. For some reason, in my copy of the "sacred agreement", there is not, and never was, a paragraph 5. I do not know what the missing book, the Apocrypha, contained, but those paragraphs to which I have referred make it abundantly clear, as the noble Lord, Lord Cope, said, that decommissioning must be part of the package; it cannot be detached or left behind. Decommissioning must move forward in accordance and in harmony with all the other provisions.

As the noble Lord, Lord Cope, said, those who drafted the agreement, and the democratic parties which subscribed to it and have observed it since Good Friday, are not in the business of demanding humiliation, surrender or anything else. It is simply a question of talking in terms of demobilisation, of disbanding the command structure of terrorist organisations. In the words of Mr. John Hume perhaps democratic parties cannot be expected to sit down with those bodies which have guns on the table, under the table or outside the door. I have always admired Mr. Hume for his courage in speaking out as he did.

Why is it that paramilitaries of whatever complexion are determined to retain their weapons? It is simply a matter of ensuring that they retain the known capacity to issue threats or, when democratic parties reach a point where their electoral supporters will not permit them to make further concessions, that the threat becomes real and is implemented. In other words, when terrorists in future see the conveyor belt conveying concessions under the guise of confidence-building measures, a threat will be issued and if the democratic parties do not look sharp, make concessions and speed up the conveyor belt, we may have two more major explosions.

I do not want to labour the point because I deliberately did not speak on this subject at Second Reading, but I listened with great interest to all noble Lords who contributed and they were not far out of line with what I have just said. However, one point worries me. There appears to be a fiction that we have peace at the moment. We all know that peace-breaking in the form of punishment shootings, beatings, threats, shadowing, and targeting is continuing—and we can prove that at first hand.

One point concerns me acutely. On 8th October I went to the city of Armagh to fulfil a fairly important engagement. I learnt on that very evening that an Army unit came under sustained fire. I cannot identify the body concerned. It is not my business. There are those who are qualified and equipped to do just that. However, I wondered why news of that was suppressed when I listened the next morning to the radio—those involved are never behind in issuing statements; blood-curdling statements—and why the newspapers seemed to conceal it as well. I wondered why, and in whose interests, the news was suppressed that the cease-fire had been broken on the evening of 8th October. Some day, in the nature of things, we shall discover the answer to the question, "Who dunnit?", if I may put it in that way, and to the question of which organisation decided calmly that it would suppress the news that the cease-fire was not entirely perfect.

Lord Cooke of Islandreagh

It is my belief that this amendment is probably the most important one that we shall have to deal with because, until this present difficulty is overcome, we shall not get much further. I listened with great interest to the noble Lord, Lord Cope, and also to the noble Lord, Lord Molyneaux. I can certainly vouch that everything they said is correct. However, I do not think it is understood that it is not just Unionists who want decommissioning; people right across the board in Northern Ireland want this agreement to succeed. Everyone who is a democrat knows that democrats cannot sit down under any circumstances with people who are not democrats, who have not said that the war is over and have given no indication that they have any intention of giving up their weapons.

This makes it impossible for the ordinary man to see how the assembly can work. Yet it is worrying that people are saying, "David Trimble would give way but, of course, he cannot because of his hardliners". That is all rubbish. It is not just him who cannot give in. No ordinary sensible democrat could possibly sit down with parties he has no confidence in and whom he cannot trust. I think we have come a long way because great effort was made to ensure that the IRA need not feel it was surrendering or was beaten. The agreement is quite implicit that all the arrangements for the release of prisoners and the removal of Army road blocks, and so on, were to run in parallel with decommissioning. All these other things have happened and yet we have not witnessed decommissioning. I am afraid that the leaders of Sinn Fein are making out that it is all everyone else's fault. I believe this amendment will make it a little clearer that decommissioning must run in parallel with the other measures that are being taken—for example, the release of prisoners and other such measures.

9.15 p.m.

Lord Holme of Cheltenham

I thought that the noble Lord, Lord Cope, put the matter extremely fairly in his introductory remarks to his amendment. We are now at an extremely difficult juncture. It is not in the end a matter of legalistic quibbling; it is a matter of political reality as to whether the people of Northern Ireland, the party leaders of Northern Ireland and the people of Britain have confidence that this is a serious process that will advance. Of course, trust cuts both ways and there are no doubt those militant Republicans who are asking apprehensively whether they can trust what they think of as the British state to deliver on its promises in the agreement.

I think the key words that we have to look at are the words to which the noble Lord, Lord Molyneaux, drew our attention on page 20 of the Good Friday agreement. Paragraph 3 states: All participants … confirm their intention to continue to work constructively and in good faith with the Independent Commission"— that is General de Chastelain's commission— and to use any influence they may have, to achieve the decommissioning of all paramilitary arms within two years''. Of course it is true that if you are to do it completely within two years you have to start some time. The days, weeks and months are ticking away and there is no sign yet of a start. Indeed, inspired by the example of the Provisional IRA, contumacious noises are now being made by the opposite equivalents on the Loyalist side. That is part of unravelling confidence rather than building confidence. But the words, continue to work constructively and in good faith with the Independent Commission suggest to me that what is needed at this stage above all is a timetable submitted to General de Chastelain by the Provisional IRA indicating the steps by which it will start decommissioning. I myself think—it is not a unique thought by any means—that the key issue is the high explosives, semtex and others, which cannot conceivably be represented to be used to defend a threatened community, which may have been the traditional Republican argument. These can only be used for mass murder of the kind that we have seen. It may well be that a sensible timetable would indicate that movement could be made on that component of the arms inventory earlier.

I repeat to the Committee what I said on a previous occasion. I hope eventually our combined words will get through to the leadership of Sinn Fein who have to use whatever influence they may have in this matter. Some of us would consider they have a great deal of influence, given who they are and their combined histories. They really need to make sure that General de Chastelain receives not merely the form of co-operation. If the noble Lord, Lord Cope, will forgive me, in this respect his amendment is slightly misplaced. He refers to working with the independent commission. I believe that they would say that they are working with the commission. Martin McGuinness has been appointed as representative to General de Chastelain's commission and its members have had meetings with him. They might say that that represented working with the independent commission. It is my belief that unless that takes a more tangible form than having meetings—and at this stage even the preparation of a timetable would build confidence—effectively they are making it politically impossible for the institution of the Assembly, in which we have all vested so much hope, to proceed.

We know that their history is one of paranoia and suspicion, and possibly fear of those who seek to isolate and defeat them. But they, too, have to have the imagination to realise that now a gesture is needed from them. I am sceptical that the erection of hurdles in the Bill is the way to go. Simply as a matter of political reality, if they do not come up with tangible measures in the next few weeks, they will make it, de facto, impossible for progress to be made in Northern Ireland. The onus of responsibility that rests on the shoulders of Gerry Adams and Martin McGuinness is overwhelming. They do not have to do a great deal but they have to do something.

Lord Desai

I wish to raise a small technical point. At Second Reading I said that I agreed with much of what the noble Lords, Lord Cope and Lord Holme, had said. I have since spoken to a colleague of mine who is a specialist in these matters. He raised a problem to which I should like my noble friend to give an answer; namely, that the agreement requires that Sinn Fein be included in the executive without any decommissioning, and if that fails to happen a move can be made in the Supreme Court of the Republic of Ireland to annul the result of the referendum held in the Republic. I am not an expert, but I have heard that said. If the promise to implement the cabinet is not honoured, we could see the unravelling of Articles 2 and 3 of the referendum in the republic.

I await an answer from the Minister; however, if that is the case, and if in principle the remarks of the noble Lord, Lord Cope, and other noble Lords are true, we might be taking a big risk by making this a precondition, whereas in the current situation it is not a precondition. I am entirely in sympathy with the spirit of their proposals; I merely wish to get the legalities clear.

Lord Fitt

It is with hesitation that I speak to this amendment. I am only too well aware that, given my political background as a former leader of the SDLP, as a Catholic and educated by the Christian Brothers, I am supposed to agree with every item in support of the nationalists, the SDLP and Sinn Fein. In Northern Ireland it is easy to be called a traitor who has betrayed his political, religious and nationalistic roots. I should not want to be in that position; however it is a strong possibility if I do not support every word and comma contained in the agreement.

I said at Second Reading that I wished to see the agreement work. I desperately want to see it work. But at present, from speaking to people who are deeply involved, I see a danger that the whole thing may collapse.

I know of people who speak to Gerry Adams. He says to them, "Look, all this talk doesn't mean anything. At the end of the day, in an eyeball to eyeball confrontation, Trimble will give way. He will take it to the very last second and then he will blink". The same people go to David Trimble and he says: "When it comes to the very last second, in an eyeball-to-eyeball confrontation, Adams will give way on decommissioning". That is dangerous. If they carry that through to the very last second, the whole thing could collapse.

I have said in this House that a gesture is needed, and my noble friend Lord Dubs will agree with me. I agree with the noble Lord, Lord Holme. The IRA and loyalist paramilitaries have been using arms for decades. I ask again whether it would not be possible for those organisations to make a gesture and say, "We have been using arms; the democratically elected politicians have not". They do not need to hand in tonnes of semtex or hundreds or thousands of revolvers or other kinds of armaments, but a gesture is desperately needed.

I was frightened when I read a report last week from Mr. Hutchison of the Progressive Unionist Party. He said, "We are not going to give up arms". They are in the key position. The loyalist paramilitaries say, "Unless the IRA give up arms, we are not going to give up our arms". The IRA says, "We are not going to give up our arms, either".

Although it was not written into the Good Friday agreement, it was said that the last prisoners would be released two years after the agreement was signed and that decommissioning would have to be complete after a period of two years.

Lord Cope of Berkeley

I apologise for interrupting the noble Lord. He will recall that the agreement says that the first lot of two years, for the release of prisoners, dates from later than the two years for the decommissioning. Decommissioning dates from the referendum, and the date for prisoner releases is after that. Under the agreement, decommissioning is supposed to be complete before the last batch of prisoners is released.

Lord Fitt

I agree with David Trimble on this matter. The point I am trying to illustrate is that it is implicit that these matters should run in parallel. At the moment it looks as if concession after concession has been made to the republican/nationalist agenda. In fact, I was told by people throughout last week in Northern Ireland that the British Government were no longer going to insist on extraditions. Three convicted IRA terrorists had been through the extradition process in America, having gone from court to court, until it was eventually said that everything had happened so long ago that the extradition would not be proceeded with. Mrs. Rita O'Hare, who has for many years had an extradition warrant against her in the republic, which the British Government have not given up, is now working in the Sinn Fein offices in America. The British Government did not insist on the extradition of that terrorist. It appears to the unionist community in Northern Ireland that concession after concession has been made to the republican/nationalist section of the community.

I never thought I would say this, but I believe that Gerry Adams has come a long way in dragging the republican movement away from its campaign of violence into the democratic process, and I think he deserves credit for that. I think that Martin McGuinness deserves credit for sitting down with John de Chastelain to talk about decommissioning. But I agree with the noble Lord, Lord Holme: the fact that he is talking to John de Chastelain does not mean much. The agreement said that all parties to it should use whatever influence they had. At the end of two years they could say that they had used all their influence but these people had not listened to them and still had their arms.

Northern Ireland has gone through a tortured period of 30 years. For someone like me who has lived in Northern Ireland and spent his political career there, to think that it has all come to an end after 30 years is absolute bliss. It would be a terrible tragedy for Northern Ireland if the agreement fell down on the question of decommissioning. Sinn Fein had an electoral mandate. I was in Belfast on the day the referendum took place and took part in many television programmes together with spokesmen for the Nationalists, Catholics, bishops, etc. I could detect in their responses the desperate belief that those 30 years of murder had come to an end. I agree with the noble Lord, Lord Molyneaux, that not only Unionists, Protestants and Loyalists ask for some gesture on decommissioning to take place. I am quite certain that the vast majority of the people of Northern Ireland, including the Nationalists and those who voted for Sinn Fein, which was given a mandate in the recent election that entitled it to take its seats, want decommissioning to take place.

My noble friend on this side of the Chamber said that if the Loyalists or Unionists do not give way on decommissioning and give up the crusade together, an action may take place in the Republic which means that the Belfast agreement is ultra vires. I do not believe that anyone in the Republic of Ireland, be he a lay citizen or the High Court that would have to decide the matter would lightly give such a decision that brought the agreement to an end. I also believe that the people in the Republic want to see the agreement succeed.

There will not be a vote on this matter this evening in this Committee. Even if we had the requisite numbers to vote for this amendment it would not mean anything because the Bill has been passed by the Commons and we shall pass it. But it is right to place on record our legitimate fears that all that has been achieved through this agreement and subsequent legislation may be brought crashing to the ground because of the intransigence of those who hold these arms in failing to make a gesture to bring peace and tranquillity to the whole of Northern Ireland.

9.30 p.m.

Lord Dubs

It may be helpful if, first, I restate briefly the Government's position on decommissioning. There must be progress on all elements of the agreement. The only way to break this impasse is for all sides to honour all the commitments that they made under the agreement and for all aspects of it to move forward in parallel. Decommissioning is an integral part of the agreement. It is not a precondition; it is an obligation and it must happen. The question is not whether it will happen but when.

However, decommissioning is not an end in itself. The reason that people rightly want decommissioning is because they want an end to violence in Northern Ireland and the confidence that this is a permanent end. That is the goal of the agreement and why decommissioning is an integral part of it. That is why decommissioning must happen. Furthermore, we condemn without reservation those engaged in so-called punishment attacks, to which the noble Lord, Lord Molyneaux, referred. These assaults must stop now. It is clear that the continuation of such behaviour would not be consistent with the assessments of good faith and a genuine commitment to move away from violence which lie behind the judgment of the Secretary of State. If such patterns of behaviour persist, the Secretary of State will not hesitate to review the situation.

The issue is whether any progress towards decommissioning would be furthered by adopting the amendments before the Committee today. I do not believe that that would be the case and it would not help at all at a time when the Prime Minister, this very week, is having negotiations with some of the party leaders from Northern Ireland in an attempt to make progress on this issue. I do not think that an amendment added to the Bill would further the cause of decommissioning at all.

Furthermore, Amendment No. 45 has no basis in the agreement. It would require the chairman of the Decommissioning Commission to certify that each party is co-operating with him. In the absence of such a certificate, the party would be disregarded for d'Hondt purposes.

Not only is this not in the agreement, it is surely wrong in principle for decisions on such important matters as holding executive office to rest anywhere else than in the hands of the Assembly, which is what the Bill provides.

The noble Lord's Amendment No. 81 would enable the Assembly to vote for exclusion if a party is linked to a terrorist organisation which is not co-operating with the Decommissioning Commission. But of course the Bill already provided that the Assembly can take account of whether a party is, committed to non-violence and exclusively peaceful means". Co-operation or otherwise with the Decommissioning Commission is certainly a factor which the Assembly will want to take into account here. But the judgment needs to be much broader than that. Indeed, the sort of factors the Assembly may want to take into account are set out in subsection (7) and go considerably further than just decommissioning, including directing violence, being involved in acts of violence and being committed to purely democratic and peaceful means to achieve its objectives.

The noble Lord, Lord Desai, asked me about a potential legal case in the republic. I do not think I am qualified to comment upon that, but the agreement certainly does not rule out a start to decommissioning now before the executive is formed. The agreement clearly requires that before taking office, any Minister must take the pledge of office. That includes a commitment to non-violence and exclusively peaceful and democratic means. If an individual or party is not so committed, the agreement provides for the Assembly, by cross-community vote, to exclude them from office.

My noble friend Lord Fitt asked about extraditions. It is not correct to say that the Government have given up the extradition of Artt, Brennan and Kirby from the United States. In those cases, the United States courts have made a number of recent rulings and granted bail, but the extradition cases remain live and still before the United States courts. There is no question of easing up the pursuit at home and abroad of those who have committed serious offences.

The noble Lord, Lord Molyneaux, also said that there had been a shooting, I believe in Armagh, which had had virtually no publicity. My officials have spoken tonight with the RUC and the Army at their headquarters in Northern Ireland. They have no record of any shooting taking place on 8th October, as the noble Lord, Lord Molyneaux, described. If he were to let me have more information, I would certainly see that that was looked into.

Incidentally, I cannot help him on the missing paragraph 5. Perhaps I can do better than not help him. I think it is missing because of a printer's error. We have had reference to that today. It is a simple printer's error and paragraph 6 follows paragraph 4.

Lord Molyneaux of Killead

As a former printer myself, I can understand that. I accept the explanation.

Lord Dubs

I am most grateful. For the reasons I have given, I believe that it would not be helpful to accept Amendments Nos. 45 and 81. Accordingly I would urge the Committee to reject them.

Lord Cope of Berkeley

I shall risk trying to help the Lord, Lord Desai, with his problem, but I do so with great hesitation and not great authority.

As I understand the matter, the referendum which was passed in the Republic of Ireland provides that the constitution shall change provided certain things happen. If those things happen, it becomes automatic. If they do not happen, the constitution does not change. Among those considerations is that the agreement is applied.

The question then is whether it is correct to say, as has been said, that the agreement provides that Sinn Fein must be on the Executive. Neither Sinn Fein nor any other party is specifically mentioned. Clearly the agreement provides that all parties concerned shall become members of the Executive provided that they fulfil the pledge of office, and are regarded by the Assembly as fulfilling the pledge of office.

I contend that no one can be considered to have become a democrat and to have fulfilled the criteria in the Bill if they are still fully armed, are using those arms in punishment beatings, and are prepared to use them for much worse. Therefore I believe it is possible that the terms of the agreement may be completely fulfilled without Sinn Fein being on the Executive if its members were regarded, as I regard Sinn Fein now, as not having become democrats because of the lack of proof that they are not still terrorists.

Having set that out, the noble Lord the Minister and everyone else will realise that there is endless scope for argument in the courts of the republic should the matter ever be tested; and we all hope that it will not be tested. However, returning to whether or not the amendments should be added to the Bill, I accept the criticisms made by the Minister of the precise wording and drafting of the amendments. I accept that whether or not we include them in the Bill may or may not help the Prime Minister and others engaged in negotiations which seek to achieve decommissioning. I do not wish to make the Prime Minister's life more difficult in this respect. No doubt I can think of one or two matters where I should like to make the Prime Minister's life more difficult, but in this matter he and his colleagues deserve every assistance in their difficult task.

While I do not entirely accept that adding such amendments to the Bill would not be helpful, I believe that it has been helpful to hear Members of the Committee from all sides of the Chamber express their views on decommissioning. They have made clear their sentiments. The sentiments expressed in this short debate are more important than the words of the amendment. That being so, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 46:

Page 9, line 11, leave out ("subsections (4) to (9) as applied by subsection (13)") and insert ("any application of subsections (4) to (9)").

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Lord Dubs moved Amendment No. 47:

After Clause 15, insert the following new clause—

JUNIOR MINISTERS

(".—(1) At any time after a First Minister and a deputy First Minister are elected under section 14(1), those Ministers acting jointly may determine—

1. (a) that a number of junior Ministers specified in the determination shall be appointed in accordance with such procedures for their appointment as are so specified; and
2. (b) that the functions exercisable by virtue of each junior Ministerial office shall be those specified in relation to that office in the determination.

(2) Procedures specified in a determination under this section may apply such formulae or other rules as the First Minister and the deputy First Minister consider appropriate.

(3) A determination under this section shall—

1. (a) make provision as to the circumstances in which a junior Minister shall cease to hold office, and for the filling of vacancies; and
2. (b) provide that a junior Minister shall not take up office until he has affirmed the terms of the pledge of office.

(4) A determination under this section shall not take effect until it has been approved by a resolution of the Assembly passed with cross-community support.

(5) Where a determination under this section takes effect—

1. (a) any junior Ministers previously appointed shall cease to hold office; and
2. (b) the procedures specified in the determination shall be applied within a period specified in standing orders.").

The noble Lord said: This new clause and the series of amendments consequential on it would enable the First Minister and Deputy First Minister and the Assembly to decide to have junior Ministers as well as the Northern Ireland Ministers provided for in the Bill.

There is nothing specifically in the agreement about junior Ministers, although they are provided for in the Scotland Bill and were a feature of previous devolved governments in Northern Ireland as well, of course, as at Westminster. During subsequent meetings with the parties, however, there has been strong support for some provision in the Bill to enable junior Ministers to be appointed.

Accordingly, the new clause provides for the First Minister and Deputy First Minister acting jointly to make a determination which may cover the number, functions and methods of appointment of junior Ministers.

Such a determination would not take effect until it has been approved by a resolution of the Assembly with cross-community support.

The other amendments in this group are consequential. They would subject junior Ministers to the provisions of Clause 23 on exclusion from office. They would provide that junior Ministers, like Northern Ireland Ministers, cannot serve as chairman or deputy chairman of a committee. Last but not least, the amendment to Clause 38 would enable junior Ministers to be paid extra.

9.45 p.m.

Lord Holme of Cheltenham

Perhaps the Minister could reassure me on one point. If it is up to the First Minister and his deputy to decide what junior posts there will be, how many of them and what they will be, how are they then allocated between the parties? The danger on which I would like his reassurance is that the two main parties concerned who will hold the First and Deputy First Ministerships—the UUP and the SDLP—will have all the junior Ministers. Am I right in thinking—I hope I am—that, having decided how many of them there will be and what functions they should hold, the determination would still be by d'Hondt, so that some of the smaller parties (the Women's Coalition or the Alliance Party) would, to the extent they were proportionately entitled, benefit and would not simply all go to the two major parties represented by the first minister and his deputy?

Lord Cope of Berkeley

Like the noble Lord, Lord Holme of Cheltenham, I was slightly surprised that Mr. d'Hondt seemed to be taking a rest when we got to this part, and that these junior ministerships were going to be dished out without reference to any formula. That is slightly surprising in itself, but also a very genuine question to put to the Minister.

I was also concerned, as I indicated on an earlier amendment, as to what these junior Ministers will do. When I was in the Northern Ireland Office there were five of us, and at other stages there have been four Ministers, carrying out not only all the functions of the First Minister, the Deputy First Minister and thel0 Ministers proposed earlier in the Bill, but also the functions of the Northern Ireland Office, some of which will remain in being even after all this apparatus has been set up. So I do not think that they will be overworked, except of course that they will have a very large number of Assembly members to keep happy. As a former Whip, I know that there is more than one way to keep Assembly members happy and perhaps the junior ministerships will make a contribution, both in themselves and in the amount of time the junior Ministers can spend talking to the Back-Benchers who will remain. As I understand it, however, this clause originates with the parties in Northern Ireland, who thought it would be a good idea to have the possibility of junior Ministers being in the new administration. I certainly would not wish to stand in the way of that.

I referred to my time in the Northern Ireland Office; now, as a spokesman, I am bombarded literally daily with Orders and correspondence from the different departments regarding legal issues about which it is often extremely difficult to make any real judgment. They are often extremely small matters: the closing of a short length of footway and things like that, being done by order. All these things will pass to the Northern Ireland executive and will much better be looked after by them—by the Minister, assisted no doubt by these junior Ministers—than they can possibly be by the machinery of direct rule. Although, having been a part of it for a short while, I believe that direct rule has served the Province well, it has served the Province long enough and these detailed matters should be transferred to the Ministers and the junior Ministers under this clause.

Lord Hylton

I hope that there will not be too many junior Ministers and that they will not be paid too much. I hope that the size of the payroll vote will not increase to anything like the size of that in another place.

Lord Fitt

I can confidently predict that we will run into a Parkinson's law situation. I vividly remember the Sunningdale agreement. When the executive was set up, Members of my own party exerted tremendous pressure on myself and Brian Faulkner as Chief Executive to create positions for them. I have absolutely no doubt and can confidently predict that the First Minister and his deputy will, by the pressures from Members of their own party, be forced to create junior Ministers.

What type of junior Ministers will there be? In Westminster there are Ministers of State and Under-Secretaries. Will there be only one level of junior Ministers? I know Northern Ireland and I know the circumstances of most of the personnel there. There are 108 Members and only 10 will have ministerial positions. That leaves 98 back benchers who will feel very unhappy. They will all be looking for some form of promotion. I predict that the party leaders will be subjected to great pressure to create jobs. Therefore, will there be a limit on the number? Will there be one Minister and one junior Minister for each department or will they be able to create as many as they like? Given the pressures, no doubt they will be able to find excuses to create as many junior Ministers as possible. There should be some limit on the number.

Lord Skelmersdale

There is a curious anomaly between Clause 14, which we have just agreed, Clause 15 and this amendment. Clause 14 begins firmly: Each Assembly shall … elect from among its members the First Minister and the deputy First Minister". One has to read a long way down Clause 15—to subsection (4)—before discovering that persons who hold office as junior Ministers must be Members of the party and of the Assembly. One wonders why the draftsman has chosen this convoluted formulation to achieve exactly the same object. It is clear to me that junior Ministers should be Members of the Assembly and that should be made patently obvious at the beginning of the clauses to which I have referred.

Lord Dubs

In essence, we have an enabling provision under which the First Minister and his deputy can make a determination providing for junior Ministers, their functions and the method of their appointment. Any such determination would have to be agreed by the Assembly voting on a cross-community basis. That is the answer to the question posed by the noble Lord, Lord Holme. The determination is that of the First Minister and his deputy and it would have to be endorsed by the Assembly on a cross-community basis. That effectively disposes of most of the arguments.

I understand what was said by my noble friend Lord Fitt, but clearly there are issues which we must leave to the Assembly to decide. There are powers which the Assembly will wish to take and it is only proper that we give it the chance to make decisions. It might be tempted to appoint too many junior Ministers and they would fall into the trap mentioned by my noble friend Lord Fitt. Equally, it might feel that that is not the proper way to go and will appoint very few, but it is a decision we felt appropriate to leave to the Assembly.

It was the wish of the parties that there should be provision for junior Ministers, but there was not agreement about the precise details of how many junior ministerial posts would be appropriate. Therefore, we are enabling the Assembly, on the basis of determinations by the First Minister and his deputy, to make progress in these appointments.

Lord Holme of Cheltenham

Before the noble Minister sits down, could he say whether there has been consultation with all the Northern Ireland parties on this particular matter of the discretion of proposal being solely in the hands of the First Minister and his Deputy?

Lord Dubs

I understand that there has been such consultation. I am not saying that every one of the parties agreed that that was the best way of doing it, in their eyes, but there has been such consultation.

On Question, amendment agreed to.

Clause 16 [The Executive Committee]:

Lord Dubs moved Amendment No. 48:

Page 9, line 20, leave out ("the") and insert ("each").

The noble Lord said: I beg to move Amendment No. 48.

Lord Cope of Berkeley

I think it has been suggested that we should also discuss with this amendment Amendments Nos. 49, 68, 76 and 78. That being so, I should like to make just a few remarks on Amendment No. 49. This is the one which proposes that Ministers of the Crown should not serve on the Executive Committee. It is a read-across from the other devolution Bills, and I must confess at once that it is unlikely that this provision will be required. Ministers of the Crown are, in the nature of things, unlikely to find themselves in a position to serve on the Executive Committee, at least as things stand now. However, we are designing this Bill and making these provisions in an attempt to make them last for many years. I think it is sensible therefore for us to look at all the possibilities that might arise and to read this across, as it were, from the other devolution Bills.

The other amendment which occurs in this group standing in my name which I want to mention is Amendment No. 70. This suggests that it should be a rule that the chairman of the relevant committee should not be of the same party as the Minister responsible for that department. This seems to me to be a sensible way to try to achieve a cross-party outlook on behalf of the Assembly. Clearly, the various committees will play a big part, just as they do in all parliaments, in monitoring the activities of the individual Ministers and the departments they are in charge of.

This Assembly will be in one sense extremely rare, if not unique, among assemblies in that it will have no opposition. Everybody in a sense will be in government—that is part of the point of it. But it means that it is in a very odd situation: every party will be in government all the time, although perhaps in different proportions as elections go one way or the other; but every party will be part of the government for ever and ever all the time. That is very rare.

I think that parliaments function well if there is an opposition and if there is somebody to question what is being proposed—in a constructive way of course, as I and my colleagues always try to do. It is difficult to see ways in which, in an assembly which is set up as this one is, one can provide for this role of opposition. One way in which it might be done is suggested by Amendment No. 70 and so I commend that to the Committee. I should very much like to know the Minister's view of that proposition.

10 p.m.

Lord Holme of Cheltenham

I am very taken by Amendment No. 70 in the name of the noble Lord, Lord Cope. It sounds sensible and practical. I shall be interested to see what reaction the Minister has to it.

I wish to speak to Amendments Nos. 72 and 75 which stand in my name and that of my noble friend Lord Lester. We have a potential discrepancy between the standing orders of the Assembly itself and what the Government are proposing in the Bill. That is what these amendments are intended to deal with. Paragraph 5 of the agreement asserts that allocations of committee chairs, Ministers and committee memberships shall be in proportion to party strengths. Are all the fruits of office, all those prizes in the sense that Lewis Carroll said, "All shall have prizes"—that the new Assembly will be one in which as many people as possible should have prizes is probably rather a good thing at this point—to be taken as a whole or is there to be proportionality within each of those three categories—within committee chairs, within ministries and within committee memberships? Using d'Hondt, you could come to quite different outcomes according to how you did it. If you used proportionality within ministries and within committeeships, you would tend to weight the final disposition to the larger parties. You could even quite easily have an outcome in which there would be no role, whether committee chairmanships or ministries, for the Alliance, for the Women's Coalition or for the PUP, which would tend to make the appointments exclusive.

As the Minister will know, the standing orders of the Assembly have taken the other interpretation—the one represented by this amendment—that the ministries are to be first allocated according to d'Hondt, because they are the most sought after, but that the other positions, when they are allocated subsequently, should be so operated that the d'Hondt rules should be applied, including the first tranche of ministerial appointments. Minor parties would get some appointments although the major parties would clearly get the lion's share. I think that the amendment is far more in tune with the standing orders adopted by the Assembly and is also more politically adept in that it gives a role for others than the major parties to play.

Lord Dubs

This grouping contains a series of government amendments which parallel amendments already made to the clause on appointing Ministers. These include adjustments to the d'Hondt formula, the definition of "S" in the d'Hondt formula, and other technical provisions.

Perhaps the most significant amendment is Amendment No. 69, which sets out on the face of the Bill the requirement for standing orders to ensure that committees have the powers set out in paragraph 9 of strand 1 of the Belfast agreement.

The Bill always gave committees of the Assembly a key role but this amendment addresses the concerns expressed by some parties during the consultation exercise that the Bill did not go as far as provided for in the Belfast agreement. I believe that the amendment puts the matter beyond doubt.

There is also one, entirely drafting, amendment to the provisions on the executive committee of the Assembly. The grouping also includes a number of other amendments tabled by noble Lords.

The noble Lord, Lord Cope, has put forward an amendment which would prevent Ministers of the Crown also serving on the executive committee of the Assembly. The issue may seem academic in the Northern Ireland context, although one can never entirely rule these things out. The noble Lord's amendment echoes similar ones laid during debate in another place and extensive discussions during the course of the Government of Wales Act and the Scotland Bill. I can only repeat the points made by my colleagues in those debates and say that the Government see no difficulty in principle with people holding offices in both Westminster and the devolved administrations, and urge the Committee not to support the amendment.

The noble Lord also seeks to prevent committee chairmen coming from the same party as the relevant Minister. We are clear that subsection (6)(b) already achieves this. Nominating officers are obliged to select any other committee post except one in which they have a party interest, if at all possible. But there may be circumstances in which they have no choice; for example, if all other posts are already taken. I believe it would be wrong to deprive them of their right to a post in those circumstances.

The noble Lord, Lord Holme, has put down two amendments which seek to adjust the d'Hondt formula for the purpose of allocating committee chairmanships and deputy chairmanships. The effect of these amendments would be to skew committee chairmanships heavily towards smaller parties. Instead of a party's number of assembly seats being related to its number of committee chairmanships alone, the amendment would require the number to be divided by the sum of the number of chairmanships and ministerial posts that the party already has. The effect would be to make it much more difficult for a party with posts already to gain more.

The formula we have at present is broadly mutual and proportionate. The Bill already provides for a considerable degree of proportionality and inclusiveness in the devolved structures. I can see no case for seeking to create an uneven playing field purely to benefit smaller parties over larger ones.

Lord Cope of Berkeley

The Minister did not expand on Amendment No. 74 which is in this group. It provides for the d'Hondt formula to run on the day on which the Assembly first meets following its election, with the party balance as it is at that time.

As the Minister said, earlier we agreed an equivalent provision with respect to the ministerial posts. But in the case of chairmanships we should just ponder for a few moments on whether that is the right way to go about it because the party allegiances of individual members of the Assembly can change. Indeed, there is some suggestion that some already have changed, even at this early stage.

If that happens, it seems to me that the chairmanships at least should be rethought at that point. Perhaps there should be a minimum below which it is not necessary. But merely to limit it, as Amendment No. 74 does, to the beginning of the Assembly immediately after an election and the particular split between the parties at that point seems to me to be rather inflexible if the political situation should change between one election and the next over a period of years. I appreciate that there may be difficulties in providing how it works but there is a genuine point underlying the matter. I am not happy about Amendment No. 74 in that context.

Lord Holme of Cheltenham

I hear what the Minister says on Amendments Nos. 72 and 75. I do not agree that there is a balance to be struck between the potential exclusion of minor parties and over-representation in the way that the Minister suggested might happen in relation to committee chairmanships. I am not convinced that that is the case. It may be something to which we shall wish to return, mathematically and not simply rhetorically, on Report.

Lord Dubs

Perhaps I may comment briefly on the remarks of the noble Lord, Lord Cope. The difficulty is that if the procedure laid down in Amendment No. 74 is not followed, one is liable to have to re-run d'Hondt at frequent intervals, which would be extremely destabilising. It is better to look at the party positions following an election and not keep moving the bases on which d'Hondt is run simply because one or two members of the Assembly have changed their minds as to their direct allegiances. It would not be helpful to go down that path and Amendment No. 74 is a better option.

On Question, amendment agreed to.

[Amendment No. 49 not moved.]

Clause 16, as amended, agreed to.

Clause 17 agreed to.

Lord Williams of Mostyn moved Amendment No. 50:

Before Clause 18, insert the following new clause—

STATUTORY FUNCTIONS

(".—(1) An Act of the Assembly or other enactment may confer functions on a Minister or Northern Ireland department by name.

(2) Functions conferred on a Northern Ireland department by an enactment passed or made before the appointed day shall, except as provided by an Act of the Assembly or other subsequent enactment, continue to be exercisable by that department.

(3) In this Act "Minister", unless the context otherwise requires, means the First Minister, the deputy First Minister or a Northern Ireland Minister.").

The noble Lord said: This amendment was tabled in response to concerns expressed during debate in another place, and in particular confusion about the location of executive authority under devolution. During debates there seemed to be genuine misunderstanding about the extent of the powers in current Clause 18 which are conferred on the First Minister and Deputy First Minister.

Clause 18 provides that prerogative and other executive functions in Northern Ireland are exercisable by the First Minister and Deputy First Minister acting jointly. Some interpreted that as meaning that all executive powers in Northern Ireland are vested in the First Minister and Deputy First Minister rather than in the Assembly or the Northern Ireland Ministers.

We are continuing to look at Clause 18. It may well be that we will bring forward amendments at Report stage, but it is important to realise that the clause is much more narrowly drawn than some appear to believe.

The main area covered by the prerogative is the management of the Northern Ireland Civil Service. The clause's references to "other executive functions" refers to the powers the government can enjoy in the same way as an ordinary citizen does—for example, the power to enter into contracts. We do, however, recognise that this confusion needs to be cleared up. What this new clause does is clarify the real source of executive authority in the transferred field after devolution.

As is the case now, the vast bulk of executive authority after devolution will be grounded in statutory powers and functions. This clause makes that clear, and also makes clear the Assembly's power to confer these functions and take them away. It is the Assembly which will be the ultimate source of legislative authority in the transferred field. Indeed, far from the provisions of Clause 18 giving the First Minister and Deputy First Minister an executive role above and independent of the Assembly, there will be nothing to stop the Assembly legislating in these or any other fields within its competence, and transferring the functions to whomsoever it wants.

Bearing in mind particularly the number of questions and perhaps misunderstandings in another place, we thought it better to bring this clause in at this stage. I beg to move.

Lord Skelmersdale

I am greatly relieved by the introduction of this new clause before Clause 18. However, I have a tiny "but".

The Minister said that he was considering bringing forward further amendments in relation to Clause 18 on Report. In that consideration, I hope he will be good enough to consider a point that occurred to me. The Marshalled List is littered with references to "junior" Ministers. Indeed, in every case that I could find it in the Bill, the word "Minister" has been replaced by the term, "junior Minister". However, in the new clause subsection (3) says, In this Act 'Minister', unless the context otherwise requires, means the First Minister, the deputy First Minister or a Northern Ireland Minister". Should not that be "junior Minister"?

Lord Cope of Berkeley

I, too, understand the reasons behind this new clause and support its insertion in the Bill. However, like my noble friend Lord Skelmersdale, I, too, have a "but".

I was struck by the wording of subsection (1) that, An Act of the Assembly or other enactment"— I presume that means an Act of this Parliament or perhaps an Order in Council; I cannot see what else it can mean though I am surprised it is not more clear— may confer functions on a Minister or Northern Ireland department by name". A Minister by name is Mr. Smith, Mr. Jones or perhaps Lord Williams of Mostyn. I am not sure it is the intention that the name of a Minister as opposed to his office should be the way in which the functions are designated. It should perhaps say "by reference to his office". I understand that a Northern Ireland department can be named—for example, the Department of Finance and other great departments of state; but I felt it odd to confer functions on a Minister by name.

With that exception, I support the new clause and believe it is right that the responsibilities given to the Northern Ireland Civil Service in the various departments should continue over into the new administration; otherwise a hiatus will arise and perhaps all sorts of other problems too.

Lord Williams of Mostyn

I thank Members of the Committee for the helpful tone of both those contributions. I shall certainly put the collective mind to the question raised by the noble Lord, Lord Skelmersdale.

A number of definitions need to be looked at. Despite the late hour and our weariness, it is gratifying that your Lordships are still able to pick up those points, which is most helpful. In answer to the noble Lord, Lord Cope, it may be that we need a comma.

On Question, amendment agreed to.

Clause 18 agreed.

10.15 p.m.

Clause 19 [Community law, Convention rights etc.]:

Lord Dubs moved Amendment No. 51:

Page 10, line 1, at end insert (", confirm or approve").

The noble Lord said: This group of amendments (with one exception) makes drafting and technical improvements to Clause 19, which is the clause which prevents Ministers and Northern Ireland departments from doing things, including the making of legislation, which are incompatible with rights under the European Convention on Human Rights, or with European Community law, or which involve discrimination on grounds of religious belief or political opinion. They enable the clause to set out more clearly the mischief which it aims to prevent, and bring certain additional matters within the scope of the clause so as to bring it into line with other provisions of the Bill.

Amendment No. 51 clarifies that not only is the making of legislation covered by the clause, but so is the confirming or approving of legislation. Amendment No. 52 makes clear the distinction between the legislative functions of a Minister or Northern Ireland department and the acts of a Minister or Northern Ireland department, so that such acts are properly covered by the clause.

Amendments Nos. 53 and 54 make it clear that aiding and incitement apply only in relation to acts and, additionally, have the effect of preventing a Minister or Northern Ireland department from making, continuing or approving legislation which modifies an enactment in breach of Schedule 4 to the Bill.

Amendment No. 55 brings the clause more fully into line with its part-predecessor, Section 19(4) of the 1973 Act. The amendment provides that the limitation on acting incompatibly does not apply to acts which are already unlawful or which would be unlawful but for some exception under the Fair Employment (Northern Ireland) Act 1976.

Amendment No. 56 removes from the clause the definition of "Minister", which is to be amended and inserted by the new clause. I beg to move.

Lord Cope of Berkeley

A few small points arise on this group of amendments. First, there is a slight hangover from the previous debate in that Amendment No. 56 takes out subsection (2), which is the part which defines the word "Minister". I do not think we had an answer—I certainly did not catch it—to whether the phrase "Northern Ireland Minister" includes "junior Minister", which was raised in the previous debate. That question is relevant to Amendment No. 56 which deletes such a definition, just as it was when that provision was included by another place.

As we are deleting the definition from this provision, why do we not move the definition of "Minister" to Clause 80 where everything else is defined which applies to the Act? I seem to remember that the report on the drafting of Bills by the noble Lord, Lord Renton, a good many years ago recommended good practice for the drafting of legislation. One point was that the definitions should appear in a convenient form, all in one place. The definition of "Minister" might usefully be put into Clause 80 instead of being left in the middle of the Bill where it is hidden away and tucked in with rather complicated clauses.

Lord Skelmersdale

Surely to goodness it is already in the Bill before Clause 18 by means of Amendment No. 50, which reads, Insert the following new Clause … (3) In this Act 'Minister' … means the First Minister, the deputy First Minister or a Northern Ireland Minister", or, if I am right, "junior Northern Ireland Minister" or "Northern Ireland junior Minister", or whatever description the Government decide on.

The point is that "Minister" is defined, according to the whole Act, or in reference to the whole Act, before Clause 18. I agree with my noble friend to the extent that, if my memory serves me correctly, the Renton Report suggested that all such definitions should be grouped together, in which case the definition would not be found before Clause 18 or even in Clause 18 or Clause 19 but would be found in a "definitions clause". Perhaps the Minister would like to comment.

Lord Dubs

As regards the question asked about Amendment No. 56, I think we are clear that we may have to tidy up the definitions of "Northern Ireland Minister" and "junior Minister" throughout the Bill. We shall do so on Report. I believe that will make things simpler and deal with all the points that have been made.

Lord Cope of Berkeley

I apologise to the Committee. I have just realised that Clause 80, the definitions clause, includes a definition of "Minister", or at least it will, assuming we pass Amendment No. 209. However, that definition just refers one to the definition in the amendment inserted just now. That does not seem to be a helpful way to do things. Why not incorporate the definition in Clause 80 in full rather than refer to an earlier clause?

Lord Dubs

I know it is getting late but I thought I had said we would consider this matter and tidy up the Bill on Report.

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 52 to 56:

Page 10, line 2, leave out ("other").

Page 10, line 6, leave out (", or aids or incites any person to discriminate,").

Page 10, line 8, at end insert— ("() in the case of an act, aids or incites another person to discriminate against a person or class of person on that ground; or () in the case of legislation, modifies an enactment in breach of Schedule 4.").

Page 10, line 8, at end insert—

("() Subsection (l)(c) and (d) does not apply in relation to any act which is unlawful by virtue of the Fair Employment (Northern Ireland) Act 1976, or would be unlawful but for some exception made by virtue of Part V of that Act.").

Page 10, line 9, leave out subsection (2).

The noble Lord said: I beg to move Amendments Nos. 52 to 56 en bloc.

On Question, amendments agreed to.

Clause 19, as amended, agreed to.

Lord Williams of Mostyn moved Amendment No. 57:

After Clause 19, insert the following new clause—

EXCEPTED AND RESERVED MATTERS

(".—(1) If any subordinate legislation made, confirmed or approved by a Minister or Northern Ireland department contains a provision dealing with an excepted or reserved matter, the Secretary of State may by order revoke the legislation.

(2) An order made under subsection (1) shall recite the reasons for revoking the legislation and may make provision having retrospective effect.").

The noble Lord said: These amendments are ungrouped. I indicate that for those who have followed the earlier grouping. The new clause in Amendment No. 57 is simply a redrafting of Clause 20(4)(b). The current provision is defective technically and in substance in that it relates only to excepted matters. We always intended that it should cover also reserved matters. Amendment No. 203 amends Clause 78 to require any order made under this provision to be subject to negative resolution at Westminster. I beg to move.

On Question, amendment agreed to.

Clause 20 [International obligations]:

Lord Cope of Berkeley moved Amendment No. 58:

Page 10, line 13, after ("international") insert ("treaty").

The noble Lord said: In moving Amendment No. 58 I wish to speak also to Amendments Nos. 59 to 63 and Amendment No. 204. Amendment No. 58 seeks to limit the power of the Secretary of State to strike down an Act of the assembly on the grounds that it offends against an international obligation of the United Kingdom. An international obligation is defined in Clause 80 on page 40 of the Bill. However, that is being amended in a slightly complicated way that I shall not trouble with at the moment. In the case of Ireland north and south there is a special significance in this amendment over and above the arguments which have been advanced in the course of debates on the Welsh Act and on the Scotland Bill.

The United Kingdom can be regarded as having all kinds of obligations. Some of them are contained in treaties of one kind or another but others are less formal. They may comprise understandings which develop between countries but which are regarded as obligations by Ministers.

The United Kingdom Government and the Republic of Ireland have long had close relations. When I was a Minister we had a lot to do with the Government of the Republic of Ireland during the course of the Anglo-Irish agreement. A variety of agreements were entered into from time to time by Ministers of every level of formality. There was a great deal of suspicion at the time about the whole process going on at Maryfield between myself and other Ministers and the officials who worked there and the equivalent officials and Ministers of the Republic. Much of that suspicion was unjustified; nevertheless, it was there.

In these circumstances the idea that the United Kingdom Government could strike down an act of the Assembly in response to some unpublished, but nevertheless appreciated by the British Government, obligation to the Republic of Ireland entered into at some time is bound to raise a great deal of suspicion. That is why this amendment suggests that the Secretary of State should be able to use these powers only in the case of treaty obligations which are well known and well understood.

There is a peculiarity in the Bill as I read it; namely, orders that are contrary to European Union law seem to be stated to be wrong, but so far as I can see the Secretary of State does not have power to strike those down, to "put the black spot on them", in the way that the Secretary of State will have the power to block any act which appears to offend against some agreement with the Republic of Ireland, or for that matter any other national government. I am not sure why European law should be given that kind of negative preference, as it were. Given the suspicion that lies behind it, we should be very careful as regards the way in which we phrase the power that is to be given to the Secretary of State to strike down the acts of the Assembly. I beg to move.

Lord Williams of Mostyn

I am grateful to the noble Lord. As he indicated, this group includes his Amendments Nos. 58 and 59 and government Amendments Nos. 60 to 63 and 204. Perhaps it is convenient if I deal with the government amendments first.

Amendments Nos. 61 and 62 are consequential on the new clause after Clause 19 which we have just considered, and Amendment No. 60 is purely a matter of drafting.

The new clause after Clause 20 proposed in Amendment No. 63 permits the making of an order determining the Northern Ireland share of a quota imposed on the United Kingdom by virtue of an international or European Community obligation. The clause is identical in intention, though there are obviously differences in form, to amendments made to the Government of Wales Act and the Scotland Bill. The principle has been accepted in those cases and we think it appropriate that it should also be included in the Northern Ireland context.

There is an obligation of consultation with the relevant Northern Ireland authorities. We shall expect robust negotiation between different regions of the United Kingdom about the proportions of a quota obligation allocated to each. We would hope that amicable arrangements could always be arrived at. We will use our best endeavours to that effect. But there must ultimately always be a means by which we can ensure that the UK as a whole meets its international obligations. Orders under this clause will, by Amendment No. 204, be subject to negative resolution at Westminster.

I now turn to the linked but separate amendments of the noble Lord, Lord Cope. Amendments Nos. 58 and 59 would limit the Secretary of State's powers to prohibit or require action under the first two subsections of Clause 20, confining them to cases involving international treaty obligations, not simply international obligations. The noble Lord is right. "International obligations" is partly defined in Clause 80. As amended, it would be cast so as to exclude obligations to observe and implement Community law or convention rights.

The amendments would mean that that limitation no longer applied, so widening the power. The real defect is that it would leave Her Majesty's Government, who have to be the guarantors of the Government's international obligations, without the means to enforce obligations in international law that are not treaty obligations but are obligations in customary international law. They include some of the most fundamental international legal duties. An important element in the structure and coherence of the Bill would be lost if there were not that residual power to enable this country to fulfil its duties under international law. On the basis of that explanation, I ask the noble Lord to withdraw his amendment.

10.30 p.m.

Lord Cope of Berkeley

Can the Minister give me an assurance that private understandings that may have been entered into between the United Kingdom Government and other Governments, such as the Government of the Republic of Ireland, would not be used as a reason for striking down legislation under this clause?

Lord Williams of Mostyn

That is a perfectly legitimate question. My understanding is that, if one has what one might call a moral obligation, which is not either a treaty obligation or an obligation under customary international law, that would not found the basis for the Secretary of State's powers, as the noble Lord indicated.

Lord Cope of Berkeley

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

Lord Williams of Mostyn moved Amendments Nos. 60 to 62:

Page 10, line 22, leave out ("or which could be revoked") and insert (", confirmed or approved").

Page 10, line 25, leave out from ("obligations") to end of line 29.

Page 10, line 31, leave out ("subsection (4) shall recite the reasons for revoking the legislation") and insert ("this section shall recite the reasons for making the order").

On Question, amendments agreed to.

Clause 20, as amended, agreed to.

Lord Dubs moved Amendment No. 63:

After Clause 20, insert the following new clause—

QUOTAS FOR PURPOSES OF INTERNATIONAL OR COMMUNITY OBLIGATIONS

(".—(1) A Minister of the Crown may make an order containing provision such as is specified in subsection (2) where—

1. (a) an international obligation or an obligation under Community law is an obligation to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise); and
2. (b) the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which is or includes the whole or part of Northern Ireland).

(2) The provision referred to in subsection (1) is provision for the achievement by a Minister or Northern Ireland department (in the exercise of his or its functions) of so much of the result to be achieved under the international obligation or obligation under Community law as is specified in the order.

(3) The order may specify the time by which any part of the result to be achieved by the Minister or department is to be achieved.

(4) Where an order under subsection (1) is in force in relation to an international obligation or an obligation under Community law, the obligation shall have effect for the purposes of this Act as if it were an obligation to achieve so much of the result to be achieved under the obligation as is specified in the order by the time or times so specified.

(5) No order shall be made by a Minister of the Crown under subsection (1) unless he has consulted the Minister or Department concerned.")

On Question, amendment agreed to.

Clause 21 [Agency arrangements between UK and NI departments]:

Lord Dubs moved Amendment No. 64:

Page 10, line 33, leave out from ("between") to ("any") in line 34 and insert—

1. ("(a) any department of the Government of the United Kingdom or any public body, or holder of a public office, in the United Kingdom; and
2. (b)").

The noble Lord said: In moving Amendment No. 64, I speak also to Amendments Nos. 65 and 66. The purpose of Clause 21 is to allow Northern Ireland departments to carry out functions on behalf of other UK administrations or vice versa. These agency arrangements were provided for in the 1973 Act and the amendments take devolved terminology into account. The inclusion of public bodies and holders of public office in the provision enables authorities outside central government departments to act on behalf of the executive, should the need arise. This will achieve parity between all three of the devolved systems and further leave scope for the making of agency arrangements with other UK public bodies and NDPBs.

Amendment No. 64 broadens scope to include any public body and/or holder of public office in agency arrangements. Amendment No. 65 ensures that any public body and/or holder of public office included in such arrangements retains responsibility for its functions regardless. Amendment No. 66 removes an obsolete clause, as the Post Office is a public body. I beg to move.

Lord Cope of Berkeley

Amendment No. 67, tabled in my name, falls to be considered with this group. It attempts to give a little more definition to these agreements between the Northern Ireland executive and the United Kingdom Government and various other people, but particularly, as expressed in the amendment, between the two Governments. I have suggested that these arrangements should be called "concordats" and that they should be formal in the sense that a draft of such a concordat should be approved both in Parliament at Westminster and also in the Assembly. It seems to me important that these agreements should be above board and entirely public, that they should be seen to be so and that they should have the necessary democratic approval.

Some guidance on these kinds of agreements was given in connection with the Scotland and Wales legislation in some notes that were put in the Library on 27th February this year. It suggested that concordats would normally be signed by officials and would not be legally enforceable, which rather surprised me. I would have thought it important that each side should be able to insist on the other side carrying out the agreement. It also suggested that some of them should not be published. That is an odd provision to insert, given what everybody else has said at different times about freedom of information in government. There was no question that such matters would require approval of any kind either by Parliament or the Assembly. That is what leads me to table this particular amendment.

Lord Holme of Cheltenham

Perhaps the Minister can clarify whether public bodies include the executive agencies that nowadays conduct so much of the business of government. I am not sure that I agree with the noble Lord, Lord Cope, about Parliament having to approve such agreements. At the moment if a government department's business is sub-contracted, which is what this amounts to—whether the Northern Irish Government sub-contract to a British Government department or agency, or vice versa—I am not sure that normally it requires parliamentary approval. I believe that the test of parliamentary approval is whether whatever arrangements normally require such approval should continue to attract it. But I believe that such arrangements for sub-contracting work should at least be placed in the Library and information on them should be made available. I would be grateful if the Minister could respond on that point.

Lord Molyneaux of Killead

I rise briefly to support the amendment moved by the noble Lord, Lord Cope of Berkeley. I believe it is important for the avoidance of doubt and even more important for the avoidance of friction to have the same form of endorsement and approval as the comparable legislation in the Scottish parliament and the Welsh assembly.

Lord Dubs

I first answer the specific question asked by the noble Lord, Lord Holme. The answer is that such agencies would be covered. Clearly, they carry out a great deal of the work in Northern Ireland. As regards Amendment No. 67 in the name of the noble Lord, Lord Cope, I cannot agree to this amendment which would introduce a formal parliamentary procedure in relation to concordats which these non-statutory agreements simply do not justify and merit. Concordats are not intended to be legally binding contracts or treaties between the two administrations. They are agreements to promote effective communications and joint working between the Northern Ireland Executive and the United Kingdom Government.

The noble Lord, Lord Holme, asked about the publication of guidance. We are making arrangements to publish the guidance given to Northern Ireland departments. The guidance for Scotland and Wales has already been published.

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 65 and 66:

Page 10, line 37, leave out ("department") and insert ("person").

Page 11, line 1, leave out subsection (4).

On Question, amendments agreed to.

[Amendment No. 67 not moved.]

Clause 21, as amended, agreed to.

Clause 22 [Statutory committees]:

Lord Dubs moved Amendments Nos. 68 and 69:

Page 11, line 4, leave out subsection (1).

Page 11, line 12, at end insert ("; and () conferring on the committees the powers described in paragraph 9 of Strand One of the Belfast Agreement.").

On Question, amendments agreed to.

[Amendment No. 70 not moved.]

Lord Dubs moved Amendment No. 71:

Page 11, line 18, leave out from ("the") to ("power") in line 19 and insert ("nominating officer does not exercise the power conferred by paragraph (a) within a period specified in standing orders, or the nominated person does not take up the selected office within that period, that").

On Question, amendment agreed to.

[Amendment No. 72 not moved.]

Lord Dubs moved Amendments Nos. 73 and 74:

Page 11, line 28, leave out ("are") and insert ("were").

Page 11, line 29, at end insert ("on the day on which the Assembly first met following its election").

On Question, amendments agreed to.

[Amendment No. 75 not moved.]

Lord Dubs moved Amendments Nos. 76 to 78:

Page 11, line 30, leave out ("or") and insert ("and").

Page 11, line 37, after ("Minister") insert ("or junior Minister").

Page 12, line 2, after ("vacant,") insert ("the nominating officer of the party on whose behalf the previous incumbent was nominated may nominate a person to hold the office who is a member of the party and of the Assembly.

() Standing orders shall provide that if—

1. (a) the nominating officer does not exercise the power conferred by subsection (8) within a period specified in standing orders; or
2. (b) the nominated person does not take up the selected office within that period,").

On Question, amendments agreed to.

Clause 22, as amended, agreed to.

Clause 23 [Exclusion of Ministers from office]:

Lord Dubs moved Amendments Nos. 79 and 80:

Page 12, line 6, after ("Minister") insert ("or junior Minister").

Page 12, line 12, after ("Minister") insert ("or junior Minister").

On Question, amendments agreed to.

[Amendment No. 81 not moved.]

Lord Dubs moved Amendment No. 82:

Page 12, line 18, leave out from ("because") to ("other") in line 19 and insert ("it is not committed to such of its members as are or might become Ministers or junior Ministers observing the").

The noble Lord said: The government amendments in this group reflect comments made during earlier stages of the Bill and during consultation with the Northern Ireland parties. Amendment No. 82 addresses the feelings many had that the provisions in the Bill as they stood on excluding parties from office were too vague. In particular, it was felt the ability to exclude a party because of the "likely failure" of its members to uphold the pledge of office was too hard to judge and could lead to a party being vulnerable to exclusion because of the behaviour of an individual.

The amendment makes it clear that exclusion under this provision is based on the Assembly's judgment of the party's own policy, and exclusion is possible if the Assembly believes the party is not committed to its Ministers upholding the pledge of office. An example might be if a party came up with a firm policy of not complying with decisions of the executive committee or rejected out of hand the provisions of the ministerial code of conduct.

I see that Amendment No. 86 is now a joint one. The amendment ensures that if the Secretary of State believes the Assembly should consider a motion for exclusions, she must require the Presiding Officer to move a motion for the Assembly to debate and vote on.

Government Amendment No. 84 is a purely drafting point, making clear that all resolutions under this clause will require cross community support to be successful. I beg to move.

Lord Holme of Cheltenham

I shall not speak at length to Amendment No. 86, not least because of the sheer exhilaration of seeing the Minister's name appearing on our amendment. I know that the noble Lord, Lord Cope, agreed with this amendment when we discussed it at an earlier stage and I am grateful to the Government for so gracefully acceding to it.

Lord Cope of Berkeley

I think that perhaps I should have added my name and the noble Lord would have felt even better, at least on this occasion.

I have only one small point. How will anybody know whether a party is committed to its members observing the pledge of office if they are still armed and their followers still have semtex, and so on? It seems to me to be extremely difficult to know.

Lord Holme of Cheltenham

The issue here is whether the Secretary of State knows, and whether he or she believes that she knows, at least as regards Amendment No. 86.

Lord Dubs

I am grateful to the noble Lord, Lord Holme, for his help on that. It would be a broad judgment that the Secretary of State would have to make in the round, taking all facts and factors into account.

Lord Cope of Berkeley

I was speaking to Amendment No. 82 in which the Assembly has to make the judgment, but I take it that the same reply from the Minister will do as a portmanteau reply for both questions.

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 83 to 85:

Page 12, line 21, after ("Ministers") insert ("or junior Ministers").

Page 12, line 29, leave out ("subsection (1), (2) or (3)") and insert ("this section").

Page 12, line 38, after ("Minister") insert ("or junior Minister").

On Question, amendments agreed to.

Lord Holme of Cheltenham moved Amendment No. 86:

Page 12, line 40, leave out ("may") and insert ("shall").

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 87:

Page 12, line 43, leave out ("party concerned") and insert ("junior Minister or the political party").

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clause 24 [Dates of elections and dissolutions]:

Lord Dubs moved Amendment No. 88:

Page 13, line 27, at end insert—

("(3A) At an Assembly elected under this section or section (Extraordinary elections) shall meet within the period of eight days beginning with the day of the poll at which it is elected.

(3B) For the purposes of subsection (3A), a Saturday, a Sunday, Christmas Day, Good Friday and any day which is a bank holiday in Northern Ireland shall be disregarded.").

The noble Lord said: Once again the government amendments in this group reflect the valuable debates we have had on the Bill both here and in another place. New Clause 90 radically restructures the Bill's provisions on extraordinary elections, bringing it more into line with the provisions of the Scotland Bill.

In the Bill as it stands, the Secretary of State may dissolve the Assembly and call fresh elections if she believes the Northern Ireland Ministers are unable to carry out their functions. This was seen as leaving too much power in the hands of the Secretary of State, and planning for failure.

Accordingly, the new clause in Amendment No. 90 leaves the power to call early elections to the Assembly on a majority of two thirds of all members—that is to say, not just those voting. In addition, a fresh election will be triggered if the Assembly fails within six weeks to elect a First Minister and Deputy First Minister.

Amendment No. 88 clarifies that the Assembly shall meet within eight working days of the election.

I urge noble Lords to reject Amendment No. 91 in the name of the noble Lord, Lord Cope. This amendment seeks to prevent any order-making provisions about elections creating new criminal offences. The House has this year already approved two orders which included provisions on criminal offences: the Referendum Order and the New Northern Ireland Assembly (Elections) Order. The sort of offences we are talking about cover a number of areas. Perhaps most significant are provisions on electoral fraud. This is a sensitive issue in Northern Ireland, and provisions are certainly necessary.

It is a moot point whether the provisions of such orders would fall foul of the noble Lord's amendment—whether we are creating new offences or applying existing ones. But on the grounds of clarity and consistency, I urge the Committee to reject the amendment. I beg to move.

10.45 p.m.

Lord Cope of Berkeley

The Minister correctly described the purpose of Amendment No. 91 standing in my name: that the Secretary of State should not be able, by order, to create criminal offences.

It is a difficult judgment. I believe that we legislate too much by subsidiary legislation, by secondary legislation, by order. At some stage we have to try to draw a halt to it by saying that we shall not make important law by means of orders. A few years ago, there were many fewer Acts of primary legislation on the statute books; and far fewer books full of statutory instruments. Unless at some point we in Parliament draw a line under it, and say that we shall have fewer statutory instruments, and draft improved primary legislation, the position as regards legislation on the statute book which people in this country are expected to obey will become worse.

That is a huge principle to apply to a small part of the amendment. However, if one does not stop somewhere, one will never stop. Serious offences require primary legislation rather than being invented at the whim of the Secretary of State and bowed through Parliament. Such measures are not always "bowed through", but in this House we have a convention that statutory instruments are not opposed. If we continue to put important legislation into statutory instruments that convention will not deserve to survive. At some point, the House will have to decide that we shall vote against statutory instruments of which we do not approve rather than automatically passing statutory instruments on to the statute book without opposition. That is not intended to be a threat but an observation on the number and importance of statutory instruments which are brought before us.

The relatively minor provision in Amendment No. 91 puts down a small peg in an attempt to illustrate the general point I make.

Lord Skelmersdale

Not for the first time this evening, I am amazed at the groupings on the Marshalled List. It is my fault that I have not complained earlier; and I do not complain now. However, the amendment of my noble friend Lord Cope, Amendment No. 91, has been discussed with Amendment No. 90. I cannot see the relevance between the two.

My interest is in Amendment No. 90, because it pre-supposes that the Assembly passes a resolution and then the Secretary of State acts. That is fine, but that resolution cannot be passed unless it has the support of two-thirds of the members of the Assembly. This is to be found in subsection (2) of the clause.

I do not want to be unduly cynical, but there could be an occasion when several members of the Assembly walk out. We have seen it before and it is just possible that we shall see it again. In those circumstances, it would be quite sensible for an extraordinary election to be held. That cannot be done. A resolution, by definition, cannot be passed because there are not enough members to pass it. What happens then?

Lord McConnell

I support Amendment No. 91. I have always held that it is objectionable to have legislation by Order in Council, which cannot be amended. It should really be done by a proper Act of Parliament. It is bad enough when it is done about certain procedures, but to create a criminal offence by a mere order is objectionable.

Lord Dubs

We have, as I instanced when I spoke a few moments ago, occasionally created criminal offences by order. Clearly there are concerns about the use of that procedure, but there are occasions when it is necessary to do so and, in those instances, it would be unduly restrictive if we were to pass Amendment No. 91. I do not think the noble Lord, Lord Cope, would urge us to do that; at least, I hope not.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 89:

Page 13, line 28, leave out subsections (4) and (5).

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Lord Dubs moved Amendment No. 90:

After Clause 24, insert the following new clause—

EXTRAORDINARY ELECTIONS

(".—(1) If the Assembly passes a resolution that it should be dissolved the Secretary of State shall propose a date for the poll for the election of the next Assembly.

(2) A resolution under subsection (1) shall not be passed without the support of a number of members of the Assembly which equals or exceeds two thirds of the total number of seats in the Assembly.

(3) If the period mentioned in section 14(1) or (7) ends without a First Minster and a deputy First Minister having been elected, the Secretary of State shall propose a date for the poll for the election of the next Assembly.

(4) If the Secretary of State proposes a date under subsection (1) or (3), Her Majesty may by Order in Council—

1. (a) direct that the date of the poll for the election of the next Assembly shall, instead of being determined in accordance with section 24, be the date proposed; and
2. (b) provide for the Assembly to be dissolved on a date specified in the Order.").

Lord Skelmersdale

Obviously I bounced the Minister in my previous question, and I would be perfectly happy if he would commit himself to writing to me with the answer.

Lord Dubs: I appreciate that, and I shall do so.

On Question, amendment agreed to.

Clause 25 agreed to.

Clause 26 [Elections and franchise]:

[Amendment No. 91 not moved.]

Clause 26 agreed to.

Clause 27 [Vacancies]:

Lord Dubs moved Amendment No. 92:

Page 14, line 39, at end insert—

("() The validity of any proceedings of the Assembly is not affected by any vacancy in its membership.").

The noble Lord said: This is a rather large group of amendments dealing with a series of related and technical issues. Amendments Nos. 98 to 103 deal with the Assembly's power to call witnesses and documents, including Amendment No. 101 in the name of the noble Lord, Lord Cope. Amendments Nos. 109, 110, 93 and 342 deal with the privilege of the Assembly and shadow Assembly and the validity of its proceedings. Amendments Nos. 336, 337 and 342 deal with disqualification provisions, as does Amendment No. 94 standing in the name of the noble Lord, Lord Molyneaux. Amendments Nos. 97 and 283 concern the Assembly's standing orders.

The amendments on the Assembly's power to call witnesses and papers are relatively minor. They remove references to the Assembly's powers in respect of shared functions, since these do not apply in the Northern Ireland context.

The noble Lord, Lord Cope, has put down an amendment which would remove the requirement on a defendant to prove he had a reasonable excuse for his refusal to comply with an Assembly ruling, leaving only a requirement to have a good excuse. I am not sure how this would work. The defendant must explain his case to the court, rather than being able to get off scot-free merely by assuring the court he had a good excuse but not explaining what it was or giving the court an opportunity to consider it. I would urge the House to reject this amendment.

Amendment No. 92 makes it clear that the Assembly's proceedings will not be invalidated by any vacancies in its membership. A number of other amendments concern the Assembly's privileges. In line with the Scotland and Wales legislation, Amendments Nos. 109 and 110 provide that those reporting the Assembly's proceedings will not be liable to conviction for contempt of court under the strict liability rule if the reports are accurate and made in good faith.

Amendment No. 342 gives the shadow Assembly full privilege from the time of Royal Assent. This is in line with the view of the parties and the Presiding Officer, the noble Lord, Lord Alderdice, and will enable the shadow Assembly to operate in very much the same way as the full Assembly.

There are a number of amendments dealing with the issue of disqualification. Amendment No. 96 provides for the case of bankruptcy and mental illness. In these cases, disqualification is not immediate but can follow after six months. The amendment ensures that the Member of the Assembly will not be able to participate in the Assembly's proceedings in the meantime.

Amendments Nos. 336 and 337 are minor and consequential amendments in the same area. They provide for the Presiding Officer to be informed if a Member is declared bankrupt or committed under mental health legislation.

The noble Lord, Lord Molyneaux, seeks to reimpose disqualification of members of the Irish Senate. This subject was extensively discussed during the passage of both this Bill and the elections Bill earlier in the year. Members of the Irish Senate have traditionally included figures from Northern Ireland who have played a valuable role in public life in Northern Ireland. We do not see any pressing reason to exclude them from the Assembly on the ground of their Senate membership alone.

Amendments Nos. 97 and 283 concern the Assembly's standing orders. They make clear that standing orders require cross-community support to be amended or repealed as well as made in the first place. Amendment No. 283 removes the need for standing orders to include provision on obtaining the Royal consent in certain circumstances since we do not believe that these will apply in devolution. The consent applies to matters such as the estate of the Duchy of Lancaster, which does not own land in Northern Ireland. I beg to move Amendment No. 92.

Lord Molyneaux of Killead

I fear that the Minister has been misinformed by his advisors. I am not seeking to alter the disqualification regulations; I am simply trying to remove one of the two references to the Irish Senate. One is in Irish and the other is in English. I would wish to have removed the reference in English because it will cause widespread confusion, particularly as it relates solely to Northern Ireland.

The Irish title of the Senate in the preceding line of Clause 28(5) is not understood in English-speaking areas, therefore it does not cause confusion and offence. However, where there exists in the same subsection reference to the Assembly and then the Senate of Ireland, surely we have a recipe for confusion, particularly in the Senate Chamber at Stormont where my noble friend Lord Cooke sat as a Senator. I believe that that could easily be remedied by removing one of the two references. In this case, I would be very generous and allow the Irish to keep it in their own language.

Lord Cope of Berkeley

As regards Amendment No. 94, I thought that the noble Lord, Lord Molyneaux, was going to ask for the provision to read "the Senate of the Republic of Ireland" in line with some of our earlier debates. I agree with him in being willing to leave it solely in the Irish language.

I rose in order to talk to Amendment No. 101, which is part of the group. As the Bill stands, it is a defence for a person charged with an offence of failing to attend proceedings as a witness or to produce documents and so forth set out in Clause 37 to prove that he had a reasonable excuse for his refusal or failure to live up to his obligations. I think that is a bit difficult. It is making somebody prove his innocence. Generally speaking, in our law it is up to the prosecution to prove that a person is guilty. I therefore suggested in Amendment No. 101 that it should be a defence to have a reasonable excuse. He would still have to justify it to the court but the prosecution, as it were, would have to show that he had failed to have a reasonable excuse.

All I am doing is shifting the onus of proof, because I dislike the onus of proof being on the accused party. It seems to me that he should be innocent until somebody else proves to the satisfaction of the court that he is guilty and did not have a reasonable excuse for refusing to attend. It is important that witnesses should be under a compulsion to attend and produce papers if the Assembly is to function properly, but it is not a reason for taking away the rights of the accused.

11 p.m.

Lord Monson

I am happy to support my noble friend Lord Molyneaux in his Amendment No. 94 because it removes the danger of confusion and misunderstanding, while being in no way insulting to the Irish Republic: if anything, rather the reverse, in that it gives enhanced status to the Irish language.

Lord Dubs

I apologise to the noble Lord, Lord Molyneaux, for having misunderstood the intention underlying his amendment. However, I do not believe there is any possibility of misunderstanding. The words in brackets are merely intended as a translation and I would have thought that, if anything, they would clarify matters rather than cause confusion.

Lord Molyneaux of Killead

I will not detain my noble friend, but can he imagine a situation where, as seems to be the case, the projected forum which appears to be provided for in the legislation is going to meet in the Senate Chamber in Stormont and the television producer says: "It's a dull day in the Assembly; at the other end we are now going over to the Senate to hear what is being said on cattle diseases" or whatever? I think the noble Lord would concede that that will cause confusion: that is, mention of the Senate of Ireland when there will be meetings held under the auspices of the Assembly, not under the auspices of this Bill, in the very same building in the Senate Chamber.

Lord Dubs

I am not sure that I am persuaded by the noble Lord's argument. It is not that often that television commentators actually quote from legislation, and I would have thought they would use whatever language was most appropriate. But in terms of the legislation itself, I think the existing way of having the English version in brackets seems to be perfectly clear and not likely to cause any undue difficulties.

I refer to the point made by the noble Lord, Lord Cope, about the burden of proof. No, non-compliance is an objective fact. Only the person failing to comply can give the reasons and it is likely that he would have to do so, and that they should be reasonable; otherwise we will lose clarity. I would have thought that the present wording is preferable to what the noble Lord suggests.

On Question, amendment agreed to.

Clause 27, as amended, agreed to.

Clause 28 [Disqualification]:

Lord Cope of Berkeley moved Amendment No. 93:

Page 15, line 14, leave out from ("Commons") to end of line 15.

The noble Lord said: I beg to move Amendment No. 93 and to discuss with it Amendment No. 95. We are concerned here with whether an individual is disqualified for membership of the Assembly. The clause states that someone, is disqualified for membership of the Assembly if he is disqualified for membership of the House of Commons", with which I agree. I would there put a full-stop. It seems to me that the same criteria should apply to both. However, the Bill goes on to say, unless my amendment is carried, otherwise than under the House of Commons Disqualification Act 1975". I am sure the Minister will be able to tell us the effect of those words, but we need some justification for the fact that people will be able to sit in the one but not the other.

While mentioning this point, I think it is worth inquiring whether Members of this House, who, after all, are not qualified for membership of the House of Commons, would, nevertheless, under the Bill as it stands be qualified for membership of the Assembly should they wish to stand for it.

Subsections (2) and (3) of Clause 29 provide that the Assembly, if it wishes, in certain circumstances—they are limited circumstances—can overrule a disqualification of any kind. That does not seem desirable. The rules for qualification should be laid down firmly in legislation of this Parliament and not be a matter which the Assembly can waive, even in limited circumstances. They should be part of the law of the United Kingdom. That is why I have suggested the deletion of subsections (2) and (3) of Clause 29. I beg to move.

Lord Dubs

Like some of the government amendments in the previous group, these amendments deal with the issue of disqualification. Amendment No. 93 would have the effect of applying the House of Commons disqualification provisions to the Assembly instead of the provisions of the Northern Ireland Assembly Disqualification Act, as provided for in the Bill. This matter was discussed in another place, where the Opposition's amendment was described as "probing". We believe that the Northern Ireland Assembly Disqualification Act is more appropriate as it is more tailored to the situation in Northern Ireland.

The 1975 Act was obviously designed specifically with the Northern Ireland Assembly in mind. It therefore includes in the list of disqualifying offices a number of posts which are specific to Northern Ireland and does not include a number of others which are not relevant to Northern Ireland. It also includes easier provisions enabling the Assembly to keep this list up to date rather than having to amend Westminster legislation, which would be the effect of the noble Lord's amendment.

The 1975 Act applied to the previous assembly in Northern Ireland under the provisions of the Northern Ireland Assembly Order 1982, which was made under the Northern Ireland Act 1982. I hope this clarifies the position for the noble Lord and that he will withdraw the amendment.

The noble Lord has also put down an amendment which would remove the Assembly's power to provide relief from disqualification. I find that curious. The power to provide relief is available in the House of Commons. It is also in the Scotland Bill and was enjoyed by previous assemblies in Northern Ireland. It provides a useful degree of flexibility is assessing where disqualification may have been short-lived and perhaps inadvertent. The power requires a vote of the Assembly which could be subject to a petition of concern if Assembly members object. It seems a sensible provision and I urge the noble Lord to withdraw his amendment. The noble Lord asked whether Members of this House could stand for the Assembly. The noble Lord, Lord Alderdice, has done just that. It is permitted for Members of this House to stand there.

I should like to make one other point about disqualification. Otherwise than under the House of Commons Disqualification Act", covers common law categories of disqualification; for example, mental health grounds and other statutes, such as the Representation of the People Act 1981. I hope that clarifies the position for the noble Lord and that he will feel able to withdraw the amendment.

Lord Cope of Berkeley

I shall certainly look very carefully at what the Minister has just said. With regard to Amendment No. 93, he seemed to me to be speaking to subsections (1), (2) and (3) of this clause rather than to subsection (4), which my amendment addressed.

At the end of his remarks, he mentioned the House of Commons Disqualification Act 1975. He seemed to be saying that that legislation prevented those with mental problems becoming Members of the House of Commons. That is not a very sensible provision to suspend in the case of the Assembly. There used to be a Member of another place some years ago who had had a mental illness and he would occasionally produce his discharge certificate to demonstrate that he was the only Member of the House who could prove he was sane.

If I understood the Minister correctly on that point, I shall wish to return to it. I may not have caught exactly what he said. Unless he wishes to comment further, which he does not seem to, I shall beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 94 not moved.]

Clause 28 agreed to.

Clause 29 [Effect of disqualification and provision for relief]:

[Amendment No. 95 not moved.]

Lord Dubs moved Amendment No. 96:

Page 15, line 41, at end insert—

("() Subsection (1)(b) has effect subject to section 141 of the Mental Health Act 1983 (mental illness) and section 427 of the Insolvency Act 1986 (bankruptcy etc); and where, in consequence of either of those sections, the seat of a disqualified member of the Assembly has not been vacated—

1. (a) he shall not participate in any proceedings of the Assembly; and
2. (b) any of his other rights and privileges as a member of the Assembly may be withdrawn by a resolution of the Assembly.

() The validity of any proceedings of the Assembly is not affected by the disqualification of any person from being a member of the Assembly or from being a member for the constituency for which he purports to sit.").

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clauses 30 to 32 agreed to.

Clause 33 [Standing orders]:

Lord Dubs moved Amendment No. 97:

Page 17, line 34, after ("made") insert (", amended or repealed").

On Question, amendment agreed to.

Clause 33, as amended, agreed to.

Clauses 34 and 35 agreed to.

Clause 36 [Power to call for witnesses and documents]:

Lord Dubs moved Amendments Nos. 98 to 100:

Page 19, leave out lines 12 to 15.

Page 20, line 1, leave out subsection (10).

Page 20, line 2, at end insert—

("() In this section "statutory functions" means functions conferred by virtue of any enactment, including this Act.").

On Question, amendments agreed to.

Clause 36, as amended, agreed to.

Clause 37 [Witnesses and documents: offences]:

[Amendment No. 101 not moved.]

Lord Dubs moved Amendment No. 102:

Page 20, line 28, at end insert—

("() For the purposes of section 36 and this section, a person shall he taken to comply with a requirement to produce a document if he produces a copy of, or an extract of the relevant part of, the document.").

On Question, amendment agreed to.

Clause 37, as amended, agreed to.

Lord Dubs moved Amendment No. 103:

After Clause 37, insert the following new clause—

WITNESSES: OATHS

(".—(1) The Presiding Officer or such other person as may be authorised by standing orders may—

1. (a) administer an oath to any person giving evidence in proceedings of the Assembly; and
2. (b) require him to take the oath.

(2) Any person who refuses to take an oath when required to do so under subsection (1)(b) is guilty of an offence.

(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a period not exceeding three months.").

The noble Lord said: This amendment enables the Presiding Officer to apply an oath to a witness, meaning that those giving untruthful answers will be guilty of perjury in the same way that it is already an offence under the Bill to refuse to answer questions at all.

This amendment is in line with similar provisions in the Scotland Bill and the Government of Wales Act. A witness may, under the terms of the 1978 Oaths Act, make an affirmation instead of an oath. I beg to move.

On Question, amendment agreed to.

Clause 38 [Remuneration of members]:

Lord Dubs moved Amendment No. 104:

Page 20, line 36, leave out ("a Ministerial office") and insert ("office as a Minister or junior Minister").

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 105:

Page 20, line 37, after ("deputy;") insert— ("(iia) holding office as a member of the Northern Ireland Assembly Commission;").

The noble Lord said: These amendments are of a practical nature. I am sure that the Committee will agree that it is just and sensible that those who continue to hold office and be responsible for the exercise of the functions of that office should continue to receive the same level of salary after dissolution as they received before.

Similarly, I am sure that the Committee will agree that if a member does not seek re-election after the dissolution, he should cease to receive a salary as a member of the Assembly.

I turn now to the individual amendments. Amendment No. 105 provides for members of the Assembly Commission to receive enhanced salaries. Amendment No. 106 provides for Ministers, the Presiding Officer and members of the Assembly Commission to continue to receive their enhanced salaries between the period after dissolution until such time as the new Assembly is formed. During that time, they will continue to carry out the functions of that office and should be rewarded accordingly. Additionally, it ensures that where a member does not seek re-election payment of the member's salary ceases on dissolution.

Amendment No. 107 is a technical amendment which deletes the definition of "Ministerial office" for the purpose of this section. Amendment No. 36 provides a definition of "Ministerial office" which will apply throughout the Bill. I beg to move.

On Question, amendment agreed to.

Lord Dubs moved Amendments Nos. 106 and 107:

Page 21, line 19, at end insert—

("() For the purposes of this section, a person who is a member of the Assembly immediately before the Assembly is dissolved shall be treated—

1. (a) if he continues to hold such an office as is mentioned in subsection (3)(a)(I) to (iia), as if he were a member of the Assembly until the end of the day on which he ceases to hold the office; and
2. (b) if he does not fall within paragraph (a) but is nominated as a candidate at the subsequent general election, as if he were a member of the Assembly until the end of the day of the poll for that election.").

Page 21, line 20, leave out subsection (10).

The noble Lord said: With the leave of the Committee, I shall move Amendments Nos. 106 and 107 en bloc. I beg to move.

On Question, amendments agreed to.

Clause 38, as amended, agreed to.

Clause 39 agreed to.

Clause 40 [Letters Patent etc.]:

[Amendment No. 108 not moved.]

Clause 40 agreed to.

Clause 41 [Privilege]:

Lord Dubs moved Amendments Nos. 109 and 110:

Page 22, line 26, after ("a") insert ("fair and accurate").

Page 22, line 26, at end insert ("which is made in good faith").

The noble Lord said: With the leave of the Committee I shall move Amendments Nos. 109 and 110 en bloc. I beg to move.

On Question, amendments agreed to.

Clause 41, as amended, agreed to.

Clause 42 agreed to.

Baroness Farrington of Ribbleton

I beg to move that the House do now resume.

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

House resumed.

House adjourned at eighteen minutes past eleven o'clock.