§ House again in Committee.
§ Clause 70 [The Judicial Committee]:
§ [Amendments Nos. 184 to 189 not moved.]
§ Lord Dubs moved Amendment No. 190:
§ Page 34, line 17, at end insert—
§ ("() A statutory instrument containing an Order in Council under subsection (3)(a) or (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.").1776
§ The noble Lord said: Amendment No. 190 requires an order under the provisions of Clause 70(3)(a) and (b) of the Bill, by which powers can be conferred on the Judicial Committee, and the Judicial Committee Act 1833 applied to proceedings under the Bill, to be subject to the negative resolution procedure at Westminster. This follows a recommendation of the Select Committee on Delegated Powers and Deregulation which was in line with our own developing thinking, and which we are pleased to accept.
§ We will take account of the committee's other recommendation, which relates to Schedule 6, on Report: we may have other changes to propose to that schedule. I beg to move.
§ Lord Cope of Berkeley: I think that the Government are wise to accept the recommendations of the Select Committee.
§ On Question, amendment agreed to.
§ [Amendment No. 191 not moved.]
§ Clause 70, as amended, agreed to.
§ [Amendment No. 192 not moved.]
§ Clause 71 [Provision with respect to certain matters relating to Northern Ireland]:
§ Lord Dubs moved Amendment No. 192A:
§ Page 34, line 23, leave out ("the following matters").
§ The noble Lord said: This new clause, and the three consequential amendments to Clause 71 and one consequential amendment to Clause 80 which I am taking with it, will enable the Government to continue to make primary legislation in Northern Ireland for any reserved matters specified in paragraphs 8 to 15 of Schedule 3. These are matters chiefly relating to core Northern Ireland Office and Northern Ireland Court Service functions.
§ The clause will also introduce a statutory consultation procedure with the Assembly for all non-urgent orders and enhanced parliamentary scrutiny of such orders based on the consultation procedure in Schedule 2 to the Human Rights Bill.
§ The clause also provides for the making of orders by means of an urgency procedure.
§ While those matters designated as being excepted will be dealt with by Bill here at Westminster and those that are transferred will be dealt with by the Assembly, some means must be found of bringing forward provision on those matters within the reserved category.
§ The Government remain committed to seeking to legislate by Bill on any reserved matter of special significance or contentiousness; for example, serious consideration will be given as to whether any legislation resulting from the independent commission into policing in Northern Ireland that will report in the autumn of 1999 should be by Bill; and, of course, with the consent of the Secretary of State and the approval of Parliament, the Assembly itself will also be able to legislate for certain reserved matters.
§ There remains, however, a requirement for legislative provision on some reserved matters, deemed to be best dealt with at Westminster, where programming constraints or the limited size of the provision means 1777 that a government Bill is inappropriate or unfeasible. It is in those circumstances that we shall seek to bring forward an Order in Council.
§ The Government are aware of criticisms of the shortcomings of the Order in Council procedure and it is only because it is not possible to be sure that provision can be brought forward by Bill that we have sought to retain these powers. In an effort to alleviate the criticism of the Order in Council procedure, we have decided that additional statutory consultation should be offered. We have concluded that all orders that are regarded as non-urgent should be subject to a 60-day consultation period before the order is formally laid and approval is sought. At the same time as this Chamber is presented with a document containing drafts of our proposals, we shall refer the same document to the Assembly, seeking its comments within the same time-scale as that given to this place.
§ Due consideration will be given to any comments and consultation documents that are presented during that time. We hope that these additional steps will make the Order in Council procedure more palatable. I believe that Members of the Committee, like the Northern Ireland parties, will acknowledge that this legislative route will be needed by the Government and that there may be serious difficulty if we only have the Bill route open to us after devolution. It is to be hoped that our need to use the Order in Council procedure will diminish as and when items listed in Schedule 3 are moved into the transferred category to be dealt with by the Assembly.
§ If we could dispense entirely with the Order in Council procedure, we would do so. However, without it, the Government might have difficulty in bringing forward provisions for Northern Ireland and the latter might be put at a disadvantage. It is on these grounds that we seek by means of this clause to continue the Order in Council procedure but with the much improved consultation process. I beg to move.
§ Lord Cope of Berkeley
I think it is necessary to continue with the Order in Council procedure. Direct rule has functioned through this mechanism for quite a long time. In so far as direct rule continues over reserved matters, I believe that it is necessary to continue with the procedure. I see that the Orders in Council will require the approval of resolutions of both Houses of Parliament. I am not quite sure, but I believe that that probably extends the control of Parliament over such Orders in Council. Many of them are not subject to the affirmative resolution procedure at present, although I believe that more will be as a result of the way in which this clause is drafted. What I am saying is really in respect of Amendment No. 192D, which forms part of the group under discussion at present.
It is true that many matters which are at present reserved will during the course of the next few years be devolved and transferred to the Northern Ireland Assembly. However, as we heard earlier, some matters which are currently reserved are expected to be 1778 reserved for the foreseeable future, if not for all time. It is possible that, at some point, it would not be right to continue with the Order in Council procedure when such matters have been reduced to but a few, and that the procedure should perhaps be abandoned. However, we have not as yet reached that point.
§ Lord Holme of Cheltenham
We regard the retention of the Order in Council procedure as a regrettable or, as I believe the Minister put it, an unpalatable necessity. I believe that the hope and expectation of devolving power to Northern Ireland is that the number of issues that would need to be dealt with by Order in Council would be very limited and by exception. The one example that the Minister gave of something that would probably not be appropriate for an Order in Council—and I agree with him—would be any change or variation to the police powers and arrangements in Northern Ireland.
When responding, and just to clarify my mind, I wonder whether the Minister could give the Committee some examples of matters that he thinks will be dealt with by Order in Council in future. I sincerely hope that it will be very few and that, as powers are transferred to the new Assembly, Parliament will not find itself, as it often has in the past, doing too much too often by Order in Council. Of course, the notice period will help somewhat in that respect.
§ 8.45 p.m.
§ Lord Molyneaux of Killead
Having piloted a minority opposition party through this very inadequate process of Order in Council, I naturally would have preferred to see its abolition. However, for the reasons given by those noble Lords who have already spoken, retention is inevitable. I am encouraged by the contents of subsection (5) of the proposed new clause (Amendment No. 192D), which gives the Assembly, if not the right, at least the option of reporting to the Secretary of State,the views expressed in the Assembly on the proposed Order".I hope that notice will be taken of the Assembly's views.
We had such an experiment during the lifetime of what was called the "rolling devolution" experiment during the reign of the noble Lord, Lord Prior. Members of that Assembly were greatly disillusioned when, after having spent hours and days producing a submission in response to an invitation from the then Secretary of State, they found that every single one of their representations was rejected. I know that we are entering into a new age. I am sure that the present Government would not want to follow that path.
§ Lord Skelmersdale
I too, hope that Orders in Council will continue to be necessary on, as everyone has said, rarer and rarer occasions. However, as someone who has the honour to be one of your Lordships' representatives on the statutory instruments 1779 committee, I am intrigued by Subsection (11) of the proposed new clause, which says:Orders in Council under this section may be omitted from any annual edition of statutory instruments".I ask, why?
§ Lord Cope of Berkeley
I apologise for returning to the debate, but I forgot to mention a point which came to my mind during the remarks of the noble Lord, Lord Molyneaux. When the Assembly makes a report to the Secretary of State on its views on a particular order, can the Minister say whether it will be possible for such views to be laid before Parliament as well as being given to the Secretary of State?
§ Lord Dubs
We have had a short debate but I understand the concerns expressed about the use of the Order in Council procedure. As I made clear, we intend to use the procedure as little as possible, although there may be occasions when it would be appropriate to do so. Perhaps I may give Members of the Committee a few examples while replying to the question put by the noble Lord, Lord Holme of Cheltenham. I have in mind matters to do with court administration, such as technical changes in the legal aid system. There might also be detailed matters dealing with criminal justice. Indeed, we recently had an order on juvenile justice. Some of those matters may be very significant while others may not. Clearly, if they are fairly routine matters, I should have thought that the Order in Council procedure would be acceptable. Alternatively, if they are not large enough to justify a full Bill, I believe that Members of the Committee will appreciate that there may be occasions when we need to use the Order in Council procedure.
I believe that the noble Lord, Lord Cope, asked me whether the Assembly's views in response to its consideration of a draft Order in Council could be made public or could be made available to Members of this Chamber. I am afraid that I do not have the information with me, but I can assure the noble Lord that I will look into the matter.
§ Lord Skelmersdale
Is the Minister in a position to answer my question as to why subsection (11) should exist in this new clause?
§ Lord Dubs
Yes, I am. Because we are dealing with legislation on the Northern Ireland statute book, such statutory instruments would appear, like those under the current Order in Council powers, in the Northern Ireland collections and not in these. In other words, they would be available but not in the form requested.
§ On Question, amendment agreed to.
§ Lord Dubs moved Amendments Nos. 192B and 192C:
§ Page 34, leave out line 26.
§ Page 34, line 39, leave out subsections (5) to (9).
§ On Question, amendments agreed to.
§ Clause 71, as amended, agreed to.1780
§ Lord Dubs moved Amendment No. 192D:
§ After Clause 71, insert the following new clause—