HL Deb 21 October 1998 vol 593 cc1459-68

(".—(1) The Secretary of State may make an order about any body—

  1. (a) which he considers to be an implementation body; and
  2. (b) which is, or is to be, established on or before the appointed day.

(2) An order under this section may make any such provision as may be made (after the appointed day) by Act of the Assembly and may in particular—

  1. (a) confer on the body the legal capacities of a body corporate;
  2. (b) confer on the body any function which the Secretary of State considers necessary or expedient for the purpose for which it is, or is to be, established;
  3. (c) confer on a Northern Ireland department power to make grants to the body out of money appropriated by Act of the Assembly;
  4. (d) make provision as to the accounting and audit arrangements which are to apply in relation to the body; and
  5. (e) make consequential or supplementary provisions, including provisions amending or repealing any Northern Ireland legislation, or any instrument made under such legislation.

(3) In this section "implementation body" means a body for implementing, on the basis mentioned in paragraph 11 of Strand Two of the Belfast Agreement, policies agreed in the North-South Ministerial Council.").

The noble Lord said: This amendment deals with the initial group of North-South implementation bodies, which are to be set up under the North-South Ministerial Council. In considering this amendment it is important that noble Lords should understand the means by which these bodies will be established. Under the agreement, representatives of the Northern Ireland Administration and of the Irish Government operating in the North-South Ministerial Council are to identify and agree at least six areas where co-operation will take place through implementation bodies operating on a cross-border or all-island basis.

These bodies, which will begin to operate on the same day that powers are transferred to the Northern Ireland Assembly, must be given their necessary legal capacity, functions and powers through separate legislation in both jurisdictions. The clause enables the Secretary of State to make orders for this purpose. The noble Lord, Lord Cope, has put down two amendments, Amendments Nos. 114A and 181, which seek to ensure that the powers of the implementation bodies will be the same on both sides of the border. I can assure him that this will indeed be the case and that the proposed amendments are therefore unnecessary.

An implementation body will be one body operating in the same agreed manner on both sides of the border. While separate legislation is needed in each jurisdiction, it will give effect to agreement reached between the representatives of the Northern Ireland Administration and of the Irish Government, setting out the powers which the body is to have.

Amendment No. 205, a later government amendment, is a technical amendment which ensures that any orders made by the Secretary of State in relation to the initial implementation bodies are subject to affirmative resolution in each House. I beg to move.

4.15 p.m.

Lord Cope of Berkeley moved, as an amendment to Amendment No. 114, Amendment No. 114A:

Line 3, after ("body") insert— ("() which has the same powers in both the Republic of Ireland and Northern Ireland;").

The noble Lord said: The Minister mentioned Amendment No. 205 which I had not realised we were intending to discuss with this amendment. It is not on the list I have of proposed groupings, unless I have misread it. I thought we were discussing Amendments Nos. 114 and 114A. Can the Minister please clarify the position?

Lord Dubs

I mentioned Amendment No. 205 simply to be helpful. I will deal with it in its appropriate place later on, if that is easier.

Lord Cope of Berkeley

I am most grateful to the Minister. I am unsighted as regards that particular amendment at this moment. With regard to Amendment No. 114A and the associated Amendment No. 181, the intention is to make sure that there are the same powers on both sides of the border. The Minister has confirmed that that will be the case. I am not sure whether it is necessary to amend the Bill to say so, but the Government should make as clear as possible to everybody that that is the intention. It would reassure some people who had thought the cross-border bodies a way in which the Republic was to gain power over Northern Ireland. In fact, of course, it is mutual, because in Northern Ireland the Assembly and the Executive will gain power over the Republic—exactly equal to the power which the Republic will gain over Northern Ireland. In these days, when sovereignty is such a sensitive matter, it is very important to make that absolutely clear in order to reassure people.

I am a little unclear about the precise legal basis of these bodies. The Minister said that the cross-border bodies would be given legal capacity through separate legislation in each jurisdiction. That seems to be the Foyle Fisheries Commission model, if I can put it that way. That commission has, I understand, worked extremely well. However, it is rather an odd arrangement. There are really two bodies, one in Northern Ireland and the other in the Republic of Ireland, and they habitually function as one. Legally speaking, however, I believe that they are two separate bodies and not one single body.

A different model is that used for the International Fund for Ireland. That is a single international organisation, created by a treaty between the two states concerned, in this case the United Kingdom and the Republic. It has a legal personality as a single international body and can function in that way. I had rather thought that the new cross-border bodies would be of that international character and that there would be a single body with jurisdiction in both states within the limits of the agreement. However, it seems not. There are to be two separate legal bodies, one on either side of the border, carrying out the same functions. That is a rather more difficult model to follow. I should be grateful for more elucidation from the Minister as to exactly what is to be the legal position of the cross-border bodies.

Lord Fitt

I wish to reinforce what the noble Lord, Lord Cope, said in relation to clarity concerning cross-border bodies. One could go into a long lecture over what happened at Sunningdale, but I do not propose to do so. The cross-border bodies, as envisaged in the Sunningdale agreement, effectively brought the executive to an end. I can see, reading the Belfast newspapers and listening to the speeches of the various political parties, that there is some ambivalence in the minds of some of those involved in Northern Ireland.

One side is saying that the Assembly will have the legal authority to either accept or reject the implementation body. The other is saying that the Assembly will not have that force. It is of massive importance in relation to the North-South body to take into account the sensitivities of the two communities in Northern Ireland. When the Sunningdale executive was set up, the cross-border bodies were then referred to as the Council of Ireland. One section of political thought in Northern Ireland said that the cross-border bodies were absolutely no danger to the unionist majority in Northern Ireland; the other section of politicians were saying the opposite. In fact one member of my own party, Mr. Hugh Logue, in discussing at a press conference the Council of Ireland proposals—namely, what we have now in the North-South body—asked whether people did not realise that setting up the Council of Ireland proposals was the vehicle that would trundle the unionists into a united Ireland. Once that appeared in the press it spelt the end of the Sunningdale executive, because that was exactly what the opponents of Sunningdale were saying. That explains the urgent need for clarity over what responsibilities will be held by the implementation bodies and whether or not those bodies will, by agreement, be referred to the Northern Ireland Assembly and the Oireachtas in the Republic. The importance of clarity cannot be exaggerated in this very sensitive matter.

Lord Holme of Cheltenham

Perhaps I can press the Minister, when he replies, on the issues raised by the noble Lords, Lord Cope and Lord Fitt. In the Belfast agreement those bodies are described in several places on page 12 in the following terms: Matters … will take place through agreed implementation bodies on a cross-border or all-island level". In paragraph 11 it says, The implementation bodies will have a clear operational remit. They will implement on an all-island and cross-border basis policies agreed in the Council". Can the Minister say whether they are bodies in which co-operation is agreed or, to put it crudely, they are bodies which get on with it? The normal meaning of "operational remit" is that a body which, for instance, deals with tourism gets on with promoting tourism on a cross-border basis. Presumably those are not implementation bodies because both Northern Ireland and the Republic of Ireland already have such bodies. Is it intended by the Government that in any instance the cross-border bodies will be operational bodies, as opposed to bodies in which the modes and policies of co-operation are worked out? That is not exactly the same point as that raised by the noble Lord, Lord Cope, although it overlaps it. I am extremely unclear about this. It may be that one type of body will evolve into another, but it would be useful to hear the Government's thinking on that. I am not as modest as the noble Lord, Lord Cope—it is his amendment—but there is a great deal to be said for pressing the Government on this matter.

In relation to Amendment No. 114A it is important to define "reciprocity". The noble Lord's words were reassuring on this but I do not understand why it should not appear on the face of the Bill. It may be that the wording is not exactly right and it may be that it should read "has equivalent powers", because in two different jurisdictions identification of the same powers may be difficult. However, the notion that there should be an equivalence of powers in the two jurisdictions is an important point to enshrine in the Bill.

Lord Monson

I strongly support the noble Lords, Lord Cope, Lord Fitt and Lord Holme of Cheltenham. If support for the Good Friday agreement by the majority in the north is to be sustained, it is vital that there be reciprocity and that any powers enabling the Republic to interfere in the affairs of the north be matched by corresponding powers for the north to interfere in the affairs of the Republic.

The Minister says that that is unnecessary. However, to avoid any possible confusion and, even more importantly, to avoid any suspicion, why not dot the "i"s and cross the "t"s by supporting this modest amendment. It can do no possible harm and may well do a great deal of good.

Lord Molyneaux of Killead

I strongly support other Members of the Committee in saying that above all there must be clarity of interpretation. That has been missing up until now. I sincerely hope that both Governments are seized of the importance of remedying that deficiency.

There may be a temptation in some quarters to indulge in fudge. It may suit people at times to be somewhat vague about their intentions. But with all the force at my command I say that that is not a luxury that we can afford.

Lord Cooke of Islandreagh

We are discussing probably the most important part of the agreement and one which will give the most trouble. I strongly support all that was said by the noble Lord, Lord Fitt, and other Members of the Committee.

There is a great suspicion that the powers in the Republic of Ireland and Northern Ireland will not be the same. That may be because those powers have to be passed in the Parliament in Dublin and the Government there do not have as large a majority as the Government in Westminster. It may well be that the Bills which go through in Dublin are altered in one way or another. I think the appropriate word is "equivalent". It is important that that is included in the Bill. There must be no doubt or fudge on this matter of cross-border bodies.

Lord Dubs

I have been asked a number of questions and, particularly, to clarify how this system will work. Let me deal first with the key question.

I agree that implementation bodies are not intended to set policy. Policy will be agreed by Ministers operating in the North/South Ministerial Council. The policy having been set, its implementation will then be carried out by the implementation bodies. That reflects closely the wording of the agreement read out a few moments ago by the noble Lord, Lord Holme. There is a clear distinction between the North/South Ministerial Council, where policy will have to be agreed by Ministers, and, where an implementation body is to be set up, the implementation body itself, which will have specific responsibility for giving effect to those policies.

Of course I agree that bodies will be mutual and reciprocal and will implement agreed policies on both sides of the Border. It is clear that pressure can initially come in both directions, but those policies will have to be agreed by the council. The policies of the implementation bodies will be similar policies to those to which they have to give effect.

The noble Lord, Lord Cope, asked whether the Foyle Fisheries Commission might be an appropriate model. It is certainly an excellent body, but it is not the model we are following in this instance. We are saying that each body will be established by agreement and each will be a single body. But each body will have any power it needs conferred separately—by the Assembly in respect of Northern Ireland and the Irish Parliament in respect of the Republic. The best model for that is perhaps the current Decommissioning Commission—a single body established by agreement but with powers conferred in separate legislation from this Parliament and from the Irish Parliament. That may be a body which does not immediately come to mind as being the best example, but it indicates the way in which we see the implementation bodies working.

In asking for clarity the noble Lord, Lord Fitt, again asked whether the bodies would be subject to approval in the Assembly. The initial six bodies are to be agreed between the north and the south in the shadow of the North/South Ministerial Council, which I hope will be established fairly soon. Though the Assembly, during its shadow phase, has no formal powers, the need for cross-community representation in the council ensures broad support for those bodies. However, after devolution, for any body to be established new subsection (4) of Amendment No. 112 will require Assembly approval. I hope that assures the noble Lord that the position is clear, both during the shadow period and subsequently.

Lord Molyneaux of Killead

Before the Minister sits down, he was kind enough to mention in his opening words Amendment No. 205, to which we will come in Clause 78. However, it appears to be related to our present discussion because it refers to, "(Implementation bodies) … (Legislative power to remedy ultra vires acts)". Will there be uniformity in both jurisdictions given the different structure of justice in each and the Supreme Court influence in the Irish Republic? I do not press the Minister for a reply, but perhaps he can say whether or not that is the kind of thing he had in mind when he mentioned Amendment No. 205.

Lord Dubs

The position is this. We have to see on what basis powers are given to implementation bodies; first, in the shadow period leading up to the start of those bodies; and, secondly, when the Assembly is in place and further implementation bodies may be set up. Amendment No. 205 seeks to ensure that any orders made by the Secretary of State in relation to the initial implementation bodies are subject to affirmative resolution in each House. Subsequently, implementation bodies that are set up will have to take their legal basis from the Assembly in relation to Northern Ireland and, in relation to the Republic, the position will remain the same; that is, it will come from the Irish Parliament.

4.30 p.m.

Lord Cope of Berkeley

Dealing first with the question of the powers on both sides of the Border, I am encouraged by the support that has been expressed in the last few minutes for Amendment No. 114A. However, the Liberal Democrat spokesman has kindly suggested an improvement. I am not sure whether what he said amounted to the moving of a manuscript amendment, but, if it did, I would be prepared to accept the deletion of the words "the same" and substitution of the word "equivalent" before the word "powers". That would be a better way to phrase what I had in mind and would be a reassurance. If the Minister will consider that suggestion between now and Report stage, we can no doubt return to the matter then and take it further, if necessary.

I return to the question of the status of the implementation bodies. The Minister said that the decommissioning commission is the nearest thing to a model. I am not sure of its legal position, but I do not think that it has a legal personality in international law or in either of the national laws of the two jurisdictions. However, the implementation bodies will need a legal personality. They will need to be able to enter into contracts. They will need to be able to issue contracts of employment to enable staff to carry out their duties. They will need to be able to buy things and, probably, to sell things. They will need a legal personality.

As far as I understood the Minister, however, we are now talking about a single legal personality crossing the Border. But under which law? The only provision for an international legal personality, as I understand it—I am not a lawyer—is a treaty, but the Assembly and the Executive have no treaty-making powers and, as far as I know, it is not proposed to give them such powers. However, if they are to set up an international body with a legal personality, they may need limited treaty-making powers to be able to agree to such a body under international law.

The Secretary of State and the United Kingdom could agree with the Republic of Ireland Government to set up particular international bodies under this heading. Perhaps the clause is intended to give the Secretary of State the power to do that, but I must admit that I had not read it in that way. Perhaps the two governments can do so without such powers, but that is slightly different from the idea that we have been given, which is that the Assembly and the Executive could, without reference to the Secretary of State, agree with the Republic of Ireland to establish such a body and to set its work in motion. I do not think that that results in a legal personality unless the "Foyle Fisheries Commission" route is followed although the Minister said that that is not the route to be followed.

These are complicated legal matters and I am hesitant in outlining them to the Committee in case I do not understand them correctly. However, given what the Minister said, I believe that further reflection is required on the matter of the legal personality of the bodies once they are established.

Lord Holme of Cheltenham

Perhaps I may say a word because the dilemma that the noble Lord has outlined is acute. I am not sure that the Minister's reply a moment or two ago satisfied me entirely. There is a sort of ambivalence in the Belfast agreement between two possible roles. Perhaps I may restate them. One is that the bodies are a mechanism for co-operation. However, if they are simply a mechanism for co-operation—the disarmament commission is perhaps an example of that—I do not think that many of the problems outlined by the noble Lord, Lord Cope, would arise. Secondly, however, if the bodies are, as is stated in Clause 11, to have a clear operational remit to implement policies on an all-island basis, they will do things—and that means that all the problems to which the noble Lord referred could arise. When the Minister replies, will he make it absolutely clear whether the bodies are mechanisms for co-operation or are intended to get on with the job?

Lord Dubs

I shall try to make this simple by not entering the complicated areas into which I am being tempted. Yes, it is true that the implementation bodies represent a complicated area of domestic and international law. We believe that this clause enables the Secretary of State, for initial bodies, and the Assembly, for subsequent bodies, to confer all the necessary powers—that is to say, the legal powers of the implementation body with regard to Northern Ireland will be conferred either by the Secretary of State or subsequently by the Assembly and it will have its legal powers for its actions in the Republic conferred by the Irish Parliament. It will therefore have two bodies of law, which will achieve one end; namely, to give the implementation body the powers to act in all parts of Ireland, North and South. Because the legislative basis in the Republic may be different, the legislation in Dublin may take a different form from that in Belfast. However, the position is clear: the body will be buttressed by legislative support from the Assembly and from the Irish Parliament so that it can act freely across all parts of Ireland to give effect to the decisions made.

As I said earlier, the policy will be established by the North South Ministerial Council, but operational responsibilities will be for the implementation body. It will therefore have the legal basis on which to operate anywhere in Ireland.

Lord Holme of Cheltenham

This is an important point, so I do not apologise for pressing the Minister. Perhaps I may take tourism as an example. It is a concrete example. Let us suppose that it were thought to be a good thing in the council that there should be greater promotion of the island of Ireland as a destination for tourism. There is already a body responsible for tourism in Northern Ireland and an active body in the Irish Republic. Is the purpose of a new body to be established on tourism to be the mechanism by which the two would co-operate or is it to become a new, better tourism body, arranging tourism and itself implementing policy and operating in all parts of Ireland?

Lord Dubs

My understanding is this: the remit of the North South Ministerial Council will include many areas of co-operation. Some methods of co-operation might well be simply bilateral arrangements, such as suggested by the noble Lord, whereby the tourism body in the North would co-operate with the tourism body in the South, but they would remain separate bodies. That would not constitute an implementation body. However—this is purely a hypothetical example to deal with the point—it could be that the North South Ministerial Council decides that it does not need two tourism bodies and says, "Let us have one tourism body to attract tourists from overseas to all parts of Ireland". It would then set up an implementation body which would be charged with promoting tourism in that way. There are two ways of doing it. Clearly, the North South Ministerial Council would in each instance decide the most effective way of achieving such co-operation. There would be an implementation body only if it set up one body to do the work.

That is a hypothetical example. I do not want to be accused of having tried to suggest the way in which tourism in Ireland should develop in the future—far from it. That is purely an example to deal with the noble Lord's point.

Lord Cope of Berkeley

So, as I understand it, the bodies will have twin legal personalities: they will have one legal personality in the Republic and another legal personality standing next to it under the law of Northern Ireland—that is, the law of the United Kingdom. Let us suppose that, as the noble Lord, Lord Holme, suggested, a body relating to tourism wants to enter into a contract with a printer to print some brochures. It may have to enter into two contracts because, as I understand it, it will not have a single legal personality. It will be done under two different bodies of law. People could obviously buy the brochures solely in the north or solely in the south, but someone has to sign the contract as a legal personality and undertake to pay for them. This is an entirely hypothetical example, as the Minister has said, but I believe we shall all need to reflect more carefully on this matter and consider exactly how it will work. I hope that between now and Report stage the Minister will be good enough to write to me explaining the legal framework that is envisaged.

Lord Dubs

I was about to make that offer. I shall put my comments in writing because this is a fairly complicated matter. Once we enter areas of legal personality and international law, we had better make sure we are accurate.

Lord Hylton

I hope I can be helpful. I notice that subsection (2)(a) of the proposed new clause in Amendment No. 114 refers in the plural to, the legal capacities of a body corporate".

Lord Cope of Berkeley

I am sure that is wonderfully helpful, but I am not quite sure how. I say that with all due respect to the noble Lord, Lord Hylton. I have taken it to mean that a body corporate needs a number of different legal capacities in order to operate. No doubt that point will be incorporated in the letter which we look forward to receiving from the Minister. That brings us back to the question of the powers which will be the same or similar in the Republic of Ireland and in Northern Ireland and whether that should be written into the Bill. In view of the discussion we have had, I shall withdraw the amendment but we shall give further thought to the matter. I beg leave to withdraw, as an amendment to Amendment No. 114, Amendment No. 114A.

Amendment No. 114A, as an amendment to Amendment No. 114, by leave, withdrawn.

Amendment No. 114 agreed to.

4.45 p.m.

Lord Dubs moved Amendment No. 115:

After Clause 43, insert the following new clause—

Forward to