HL Deb 26 October 1998 vol 593 cc1752-9

(".—(1) The Secretary of State may by order make such provision as he considers necessary or expedient in consequence of—

  1. (a) any provision of an Act of the Assembly which is not, or may not be, within the legislative competence of the Assembly; or
  2. (b) any purported exercise by a Minister or Northern Ireland department of his or its functions which is not, or may not be, a valid exercise of those functions.

(2) An order under this section may—

  1. (a) make provision having retrospective effect;
  2. (b) make consequential or supplementary provision, including provision amending or repealing any Northern Ireland legislation, or any instrument made under such legislation;
  3. (c) make transitional or saving provision.").

Lord Renton

I do not know whether this matter has already been discussed. My reading of the Marshalled List is that this matter is due for discussion along with Amendments Nos. 168A and 205. I had hoped that the Committee would receive an explanation from the noble Lord. If one compares the powers given in this clause with those given to the courts in deciding legislative matters that may be ultra vires it is very strange. Amendment No. 182 gives the Secretary of State a very unusual power. I hope that the Minister will be able to provide full justification for it; I do not believe that he will find that very easy.

Lord Cope of Berkeley

I have very great sympathy with the point made by my noble friend Lord Renton. It is an extremely powerful provision whereby the Secretary of State can overrule anything that he believes is not or may not be within the legislative competence of the Assembly. Amendment No. 186A which is grouped with this amendment is a matter of discrimination against a small but distinguished body of persons. It provides that no member of the Judicial Committee shall be a person who is or has been Lord Chancellor. I believe that a little explanation is required as to why not only the present Lord Chancellor but all former Lord Chancellors are being discriminated against in this way. I do not know that many of them would often wish to sit on the Judicial Committee, but it is a very direct piece of discrimination against a small but distinguished class of person.

Lord Desai

I too am rather puzzled by Amendment No. 182. Not being a lawyer, I should explain my puzzlement. We have debated the Scotland Bill and understand what the Judicial Committee of the Privy Council does. We now come to this Bill and the same provision is to be applied except that the Secretary of State has much greater powers in this respect than in the Scotland Bill. I had thought that one of the distinctions between the Scotland Bill and anything to do with Northern Ireland was that we were not devolving powers to Northern Ireland but simply reviving what happened long ago and has lain dormant.

The question I wish to ask the Minister is this. Were these the provisions applicable to the 1973 Act or the 1920 Act; or is it a modification of the previous powers of the Secretary of State for Northern Ireland?

Lord Holme of Cheltenham

Perhaps I may express our misgivings on Amendment No. 182 as regards the powerful terms—I use the phrase of the noble Lord, Lord Cope—in which the provision is worded and the strength of the powers it gives to the Secretary of State to overrule ultra vires Acts of the Assembly or Ministers of the Assembly. I find myself deeply unhappy with the requiring of a power to make retrospective legislation. If I read the amendment aright, there seems no requirement that the Secretary of State's order should be directly linked to an ultra vires Act, and no reference to who determines what is ultra vires. It would be helpful if the Minister will clarify why the provision is so strongly worded.

The noble Lord, Lord Cope, referred to Amendment No. 186A. I made it plain earlier to the Committee that we shall not move Amendments Nos. 184 to 189, which should have included Amendment No. 186A. It has popped out of the grouping. We shall return to that matter on Report. On the fascinating point about the Lord Chancellor, the noble Lord will have to await the next thrilling instalment on Report.

Lord Renton

Before the noble Lord sits down, I wonder whether he or the noble Lord, Lord Lester of Herne Hill, has applied his mind to the conflicts that could arise between the judicial powers given in the detailed Schedule 11 and the powers—I would call them dictatorial—in the new clause we are now discussing.

Lord Molyneaux of Killead

My noble friend Lord McConnell confirms my recollection that this kind of power never seemed to be exercised during the period of the Stormont Parliament. I wonder whether the power resided, although it may not have been used, in the Government of Ireland Act 1920. The only body which could have exercised any such power would have been the Government, the Parliament and possibly the Lord Chancellor of the United Kingdom.

Lord Lester of Herne Hill

I was not going to speak, but since the noble Lord, Lord Renton, invites me to do so, I shall not resist. I, too, am troubled about Amendment No. 182. I am troubled because I had thought that the scheme of the Act was to give to the courts the function of deciding what was or was not within the devolved legislative competence of the Assembly; and, sensibly, to depoliticise the matter by way of judicial review.

I find this puzzling about Amendment No. 182. It states that: The Secretary of State may by order make such provision as he considers necessary or expedient"— "expedient" being a notoriously vague term— in consequence of any provision of an Act of the Assembly which is not, or may not be, within the legislative competence of the Assembly". I can understand the phrase, which is not…;within the legislative competence of the Assembly". If a court of competent jurisdiction—let us say the Judicial Committee of the Privy Council—decided that an Act of the Assembly was outside its competence, if it were necessary (I do not think that it would be) one can imagine a ministerial consequential order. But I do not understand why it is envisaged that it is to be left to the Minister to speculate without a court ruling as to whether something is within legislative competence, and then to make an order which will immediately cause huge political controversy between the central government and the devolved government and Assembly. I should have thought that that would be a most unwise power to keep.

Lord Cope of Berkeley

I apologise for interrupting the noble Lord. If there were a decision by the Secretary of State that some matter were not within the legislative competence, and an order flowed from that, could it be the subject of judicial review?

Lord Lester of Herne Hill

If the individual acted perversely, completely arbitrarily, it might be capable of being subject to judicial review; and if he made an order with retrospective effect that breached the Human Rights Bill, that also could be subject to review.

Lord Williams of Mostyn

I am so sorry for any apparent discourtesy. I had not realised that the Committee would progress quite so swiftly. I was taking detailed instructions on a later amendment because something seemed to have gone wrong. Bearing in mind the indication of the noble Lord, Lord Holme of Cheltenham, I shall not speak to that matter which will be dealt with on a later occasion.

The provision is to deal with the possibility that the devolved Assembly may have acted beyond its power. In the circumstances we have tried to follow the Scottish and Welsh examples for dealing with issues arising under the Bill's provisions, in particular the framework in Clauses 68 to 70 and Schedule 11.

The Committee is quite right. Amendment No. 182 inserts a new clause directly equivalent to Clause 94 of the Scotland Bill providing a legislative power to remedy ultra vires Acts. Where an Act of the Assembly, or an exercise of executive functions, is found to be legally defective I have to remind Members of the Committee that there may need to be the opportunity take action to ensure that third parties who may have acted in entire innocence and good faith, and relied on the legislation or the action subsequently impugned, do not suffer unjustly. There could be wide, harsh, consequences in the circumstances envisaged.

We wished to be sure that this was appropriate in our present context. Having reflected on it, we think that it is justifiable here, as it was in the Scotland Bill. I recognise the point made by the noble Lord, Lord Renton. This is a power of substantial significance and an order under this clause by virtue of Amendment No. 205 would be subject to the affirmative resolution procedure at Westminster.

In answer to the specific question posed by the noble Lord, Lord Molyneaux, I believe that this was not the power which existed in 1920. If I am wrong about that—the research had to be done rather quickly—I shall correct it of course.

Lord Renton

Can the Minister give me some guidance? There is obviously a dual opportunity of putting right ultra vires legislation of the new Northern Ireland Assembly. Under Clause 68 and Schedule 11, the courts are given considerable powers to deal with such a matter. Is there to be any kind of division of function between the power of the Secretary of State under the new clause and the power of the court under Schedule 11? It seems to me wrong to have both systems available. What would be the justification for having that with the possibility of conflict between the decision of the court and the decision of the Secretary of State when using this power?

Lord Desai

Perhaps I may pursue the point I made. From what my noble friend said, it is clear that these powers did not exist under the 1920 or 1973 legislation. My understanding has been throughout the Bill, and as regards the parallel question on the Scotland Bill, that we are not devolving power to the Assembly; we are restoring something that was suspended some time ago. If I am wrong, I shall stand corrected. Suddenly, a drastic new power has been given to the Secretary of State for Northern Ireland and I should like to hear stronger justification for it than I have heard so far. It is a troublesome matter and politically sensitive.

Lord Cope of Berkeley

I heard what the Minister said about the Scotland Bill. I am by no means an expert on it, but a quick glance reinforces my understanding that, if a Bill in the Scottish parliament is thought to be outside the legislative competence the Advocate General, the Lord Advocate or the Attorney General will refer it to the Judicial Committee for decision. Furthermore, that must be done before the Bill becomes an Act so that the matter can be clarified before the legislation comes into force. Perhaps I have missed a provision to which the Minister will draw my attention.

Lord Lester of Herne Hill

I have been puzzled because we have been told that the Scotland Bill is a separate devolution settlement and that this Bill springs from the Good Friday agreement. I see nothing in the agreement which authorises or requires the Secretary of State to have these draconian powers. Perhaps I have not read the relevant part of the Belfast agreement, but I have looked in particular at the role of the Secretary of State in paragraph 32 and at the role of the Westminster Parliament in paragraph 33 and elsewhere.

Given that it is a tailor-made devolution settlement for Northern Ireland rather than a read-across from Scotland, will the Minister indicate where in the Belfast agreement it was thought necessary to give political override powers to the Minister without guidance from the courts or an opinion that an issue is outside legislative competence, or simply that it might not be within legislative competence?

Lord Williams of Mostyn

Those are all reasonable questions. One cannot find spelt out in the Belfast agreement either the ultra vires judicial remedy or the Secretary of State remedy. Perhaps I may draw together one or two thoughts, in particular the most interesting question raised by the noble Lord, Lord Renton. I may be responding per incuriam because I am wondering whether there is an answer to the question.

Speaking immediately, it seems to me that one should look at Clause 68, which states "Schedule 11 …; shall have effect". Turning to Schedule 11, it seems that one has the opportunity for a judicial determination as to whether a particular Act of the Assembly, or a purported or proposed exercise of a function, is intra vires or not. The noble Lord, Lord Renton, is right is saying that that would be a judicial determination. However, I tried to point out that if there had been a legislative action in the Assembly and widespread adverse consequences to individuals who had acted in good faith one might need the Secretary of State's power to give effect retrospectively to the determination of Parliament following the affirmative resolution procedure.

I do not believe that it would be open to the judiciary to put things right retrospectively. Therefore, I shall think and take advice carefully on these points, because they are not light points. It may well be that the Secretary of State, on the affirmative resolution procedure, may need the opportunity to introduce an order having retrospective effect. In answer to the theme developed by the noble Lord, Lord Renton, it may be that it would be more apt to leave questions of compensation to the Secretary of State to deal with by affirmative order rather than asking the judges to do something which they would not necessarily have the power to do. That is a thought and I need to think about it further.

Lord Renton

I am grateful to the Minister for the consideration which, without previous notice, he has given to this important constitutional question.

As I mentioned at the outset, I am concerned about the possibility of a conflict of decision between the judiciary acting under Schedule 11 and the Secretary of State acting under the proposed new clause. There is a serious possibility which must be considered. It becomes even more important, and perhaps could lead to a difficulty, bearing in mind that the power given to the Secretary of State under the new clause is to be retrospective.

In view of what the Minister has said and the views expressed on all sides of the Committee, I suggest that, instead of passing the new clause now, the Government should take it away and consider the matter still further. It is quite clear that the Minister has not had an opportunity of considering all the implications.

Lord Holme of Cheltenham

I support the noble Lord, Lord Renton. There is a lack of connection between Clause 68 and Amendment No. 182. I understand that a judicial decision under Schedule 11 would trigger the use of these exceptional powers by the Secretary of State. However, there is no connection between the two as we are being invited to pass them. There is a raft of extensive new powers for the Secretary of State which are not connected to the trigger which would make him choose to exercise them under Clause 68. I am delighted to hear that the Minister wishes to consider the matter further and that is well worth while, but would it not be sensible to withdraw the amendment now?

Lord Hylton

I believe that I have found in the Belfast agreement the passage that is relevant to the amendment. It appears on page 8 at paragraph 26(d) and refers to: mechanisms, based on arrangements proposed for the Scottish Parliament, to ensure suitable co-ordination, and to avoid disputes, between the Assembly and the Westminster Parliament". I believe that that would call on the Attorney-General for Northern Ireland to refer a suspect Act or work of the Assembly while it is still before the Assembly as a Bill. I hope that that would prevent the kind of damage to innocent and unsuspecting third parties that has been referred to by the Minister.

Lord Renton

I am glad that the noble Lord has quoted the Belfast agreement, but, with great respect, the power suggested for the Attorney General to exercise does not resolve the conflict mentioned by me and other Members of the Committee under the Bill. It is the conflict between the powers given to the judiciary under Clause 68 and Schedule 11 and the powers proposed to be given to the Secretary of State under the new clause. I do not believe that that potential conflict is resolved.

7.30 p.m.

Lord Cope of Berkeley

I do not believe that it resolves that potential difficulty. If we are, under the agreement, to rely on the Scottish precedent, we need more detail on exactly what part of the Scotland Bill it is that we are supposed to be reproducing with this new clause.

Lord Williams of Mostyn

It is Clause 94.

Lord Cope of Berkeley

I shall study that but if the noble Lord is going to accede to the very sensible suggestion of my noble friend Lord Renton, supported by the noble Lord, Lord Holme of Cheltenham, we shall all have an opportunity to reconsider the position and discuss it on a subsequent occasion.

Lord Williams of Mostyn

I am grateful to the noble Lord, Lord Hylton, for pointing out page 8, paragraph 26(d). That refers to mechanisms to avoid disputes. It may well be that the noble Lord is absolutely right. His example was a Bill in course of passage. I must try to be as helpful and as candid as possible with the Committee. Amendment No. 182 deals with, any purported exercise by a Minister or Northern Ireland department of his or its functions". The answer is in Clause 94 of the Scotland Bill, which has already been approved by this Chamber. However, Members of the Committee have been quite courteous in asking me to think again. In all scruple, the proper course is to withdraw the amendment at this stage. That is an unusual course to take but that does not matter because I am indicating, I hope fairly plainly, that I shall bring back something in this form perhaps with an explanation which will satisfy your Lordships. However, it is better for me to withdraw the amendment at this stage; to have a further thought; to take further advice; and, as I have said without discourtesy, I am making it plain that I am likely to bring back an amendment in virtually this form but it is only courteous to the Committee to do that.

Lord Cope of Berkeley

That is an extremely wise and sensible decision at this stage, particularly bearing in mind that Clause 94 of the Scotland Bill does not give any equivalent powers to the Secretary of State or anybody of that sort at all. It is all to do with the legislative power to remedy ultra vires acts within Scotland. However, as the Minister said, we shall return to that at a later stage. We look forward to receiving a similar but no doubt improved proposed new clause in due course and improved arguments in support of it.

Amendment, by leave, withdrawn.

Clause 69 [Powers of courts or tribunals to vary retrospective decisions]:

Lord Dubs moved Amendment No. 183:

Page 33, line 42, leave out subsection (7).

On Question, amendment agreed to.

Clause 69, as amended, agreed to.

Baroness Farrington of Ribbleton

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage of this Bill begin again not before 8.35 p.m.

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

House resumed.