House Of Lords
Wednesday, 21st October 1998.
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Blackburn.
Lord Christopher
Anthony Martin Grosvenor Christopher, Esquire, CBE, having been created Baron Christopher, of Leckhampton in the County of Gloucestershire, for life—Was, in his robes, introduced between the Lord Murray of Epping Forest and the Lord Merlyn-Rees.
National Health Service: Computerisation
2.38 p.m.
asked Her Majesty's Government:
What advice they have taken in connection with further substantial computerisation of the National Health Service to avoid a repetition of past experiences such as in the Wessex Regional Health Authority.
My Lords, we have recently launched a new strategy for information within the NHS. This will provide the NHS with the most modern tools to improve the care and treatment of patients. Developing this strategy has involved extensive consultation with the NHS, professional organisations, suppliers, Her Majesty's Treasury and the NHS Executive. The strategy reflects lessons learned from past experience of poor management and procurement, and the lack of emphasis on supporting clinicians with the information and information systems they need.
My Lords, I am grateful to the Minister for giving such a detailed reply on this important subject. Is the Minister saying that advice of the highest order has been given on this matter to prevent any oversell, as in the case of the Wessex health authority, to make sure that the computers that are bought will be adequate for the job, and to ensure that we shall get maximum usage out of them and maximum value for money?
My Lords, my right honourable friend the Secretary of State in his introduction to the document Information for Health stated explicitly that money had been wasted in the past; that procurement procedures had not been what they should have been; and that the whole system had been geared too much to churning out information for management and accountancy purposes rather than to supporting high quality patient care and ensuring value for money within the NHS. We believe that we now have a strategy that will ensure that we do just that.
My Lords, is the Minister aware that the document, Information for Health, has not been placed by her department in either the Library of this House or the Printed Paper Office, and that it was not available for reading before Question Time? Is she further aware that Computer Weekly has published a detailed criticism of the department? One of its main points is that the NHS Executive, which has been responsible for the failures referred to by the noble Lord, Lord Dean of Beswick, is to be responsible for spending the £1 billion of new money. What does she have to say about that?
My Lords, if the document was not available in the Printed Paper Office or the Library, I apologise to the noble Lord. I was not aware of it and I shall certainly look into the matter. The document is available on the NHS website—appropriately perhaps! I will make sure that that is rectified.
On the major point raised by the noble Lord, we have examined the need to change the arrangements within the NHS Executive. The Information Management Group is to be disbanded and we will set up a new, separate special health authority with policy unit and performance management functions. We have made very clear that this is a strategy that has to be developed in co-ordination with other people, not in isolation. We have to take suppliers along with us and understand what can be supplied. Most of all, we have to take the clinical community who need to use this system with us; and we need to evaluate what we are doing. So we have built in some safeguards against the kind of criticisms raised by the noble Lord.My Lords, is my noble friend aware of the general view that hospitals would be far more effective if we brought back matrons?
My Lords, I never knew that my noble friend had so much in common with the right honourable Member in another place on this matter. It is probably one of the few things that they have in common. What is important is not the title we give to the heads of nursing units; it is that nurses have a key leadership role, whether in the new primary care groups, acute units or the work that they do within the community; and that we recognise that they need to be leaders and partners in the high-quality, responsive NHS that we are trying to build.
My Lords, in the safeguarding mentioned by the Minister have the Government now resolved the problem of patient confidentiality, which has been a major concern within the health service?
My Lords, this was one of the issues that Mr. Frank Burns, a chief executive from the health service, took on board in developing this strategy. The issue was raised by the professional leaderships, for example, the BMA and the Joint College. I was pleased that representatives of both nursing and medical organisations welcomed the strategy, and explicitly welcomed the recognition that problems of patient confidentiality had to be addressed all the way through the implementation of the system. We have the framework right; we need to do more detailed work as each phase comes in.
My Lords, as regards the new NHS information strategy, will the Minister detail the proportion of funding that is going towards information systems for patients and carers? In particular will she look closely at the "Start here" signposting system? Finally, in the light of the remarks of the NHS Confederation, will the Minister reassure the House that there will be the management capacity and skills to implement the NHS information strategy in the timescale envisaged?
Yes, my Lords. On the general point, this is a 10-year programme; I cannot provide information for the full 10 years on the proportion that will be spent on supporting patient information. It is one of the key roles of the strategy that we use information that helps people both to promote their own good health and to understand ill health better and the services that they are being offered. The noble Lord kindly showed me details of the system to which he alluded. My colleague in another place, Paul Boateng, will examine the system and meet those who developed it. There are many kinds of fascinating and innovative ways to develop means of making information accessible to patients, and this is a very important and potentially useful one.
On the noble Lord's final point, the management capacity is extremely important. If we are to manage this process well, we need to have people who understand it, and specific account is taken of that in the first phase of implementation so that there is support for the people on the ground who will be implementing the strategy.My Lords, following the question asked by my noble friend Lord Cledwyn, does my noble friend not agree that the very model of a modernising matron should be one who understands how to use a computer and has great need of the information provided thereby?
My Lords, I am sure that a thoroughly modern matron today would regard having information accessible as part of the tools of the trade. Nurses are too precious to spend their time looking for paper records that are lost or chasing test results. The importance of this system is not that we use technology because it is there but because it can support professionals in their day-to-day work and free them for the interface with patients which is particularly important.
Provision Of Refuges For Children
2.51 p.m.
asked Her Majesty's Government:
Whether they are taking any steps to encourage the provision of more refuges for children under 16 under the provisions of Section 51 of the Children Act 1989.
My Lords, we fully recognise the importance of refuges, which are designed to give a breathing space for young people who run away. Sir William Utting's Children's Safeguards Review drew attention to the importance of refuges and, as part of our consideration of the report, we are looking at the current provision. We shall publish our response to the Utting Report very soon.
My Lords, I am grateful to the Minister for that reply. Is she aware that every year approximately 43,000 children under 16 run away from home but that there are at present only three refuges under the provisions of Section 51 of the Children Act 1989? Does she agree that there is an imbalance here which needs addressing?
My Lords, I recognise that this is a serious problem and that the young people and children to whom the noble Lord refers are extremely vulnerable. We need better services for children who run away, and in that context we should look at the adequacy of refuge provision. I note that the Children's Society is planning to develop more refuges and hoping to secure funding of £1 million from the Millennium Children's Promise for that purpose. However, it is important that we do not focus only on services after children have run away; we must look at the causes of why children—particularly children in care—run away and try to stop it occurring.
My Lords, is my noble friend aware that many organisations concerned with the welfare of children, including the organisation with which I have been associated, Save the Children, have for some time been concerned about the position of refugee children who have come to this country from societies which have been torn apart by war? What arrangements are made in relation to such children, particularly at the point of entry?
My Lords, yes, I am aware of the concerns, particularly with regard to unaccompanied child refugees. This is a matter for which the Government have made funds available to local authorities, but, at a time when there is an increase in the number of unaccompanied asylum-seeking children, we need to look at what we can do and to recognise the problems that some local authorities face in providing care, and funding that care, for those children, particularly in the light of the recent influx of young people from Kosovo. We need to discuss with colleagues in the Home Office and the DETR ways in which we can ensure that local authorities are able to support these vulnerable children.
My Lords, I am sure that the Minister is aware that Section 51 of this Act is extremely widely drawn. It simply says, "at risk of harm". Does she agree that that includes children who are at risk of falling into prostitution or suffering other forms of sexual abuse? Is her department co-operating and co-ordinating fully with the Home Office on this point?
My Lords, we recognise that there are wide-ranging responsibilities for the needs of children who may be vulnerable and at risk from a variety of factors and that in meeting those responsibilities we cannot take a simple departmental approach. That is why the ministerial task force on children's safeguards was a wide-ranging and interdepartmental one, enabling these issues to be looked at across the board, not only with colleagues in social services departments and local authorities but also with colleagues in the Home Office and the police, who have a major role to play in this area.
My Lords, will the Government require local authorities to set out in their children's service plans how they will ensure that a service is available to children who are being abused through falling into prostitution and take preventive action to target children who may be vulnerable to abuse in this way?
My Lords, when considering children's services in 1996, local authorities were asked to identify within those plans various groups of children, including children who had run away and who might be vulnerable to falling into prostitution or being sexually abused. We hope that extra momentum to that requirement will result from the work done in responding to the Utting Report.
My Lords, my noble friend kindly made reference to the £1 million being made available from the Children's Promise campaign. I am most grateful to the very many who are supporting that campaign. As we shall raise £1 million to be disbursed for the benefit of children, may we have the support of the National Health Service in making this known to all who work in that very fine service and understand the work that we are doing?
My Lords, as I believe we all know, my noble friend has done a great deal to make the Children's Promise known to Members of your Lordships' House. I shall certainly consider how we can make it known to people who work within the NHS.
My Lords, does the Minister agree that bricks and mortar will not be enough in the provision of homes and that the quality and training of staff and their ability to communicate not only with teenagers but with teenagers' parents will be extremely important? In this context, is she aware of the pioneering work of the Caldecott college, to the foundation of which the late Lady Faithfull contributed so much, in the context of working with children in a residential field?
My Lords, the noble Lord is right to point out that we tend to use the word "refuges" as a shorthand and think of them only in terms of buildings. We know from the experience of people who work in this field and the research that has been done that availability of buildings alone is not the problem. Many of these children ran away from buildings that were provided for them because the people and the services within those buildings were not adequate and sensitive to their needs. I go back to my response to the noble Earl, Lord Russell: we need to look at all the factors that cause children to run away, as well as at the appropriate provision for them when and if that occurs.
Public Utilities: Pensioner Concessions
2.59 p.m.
asked Her Majesty's Government:
Whether they have made any representations to the public utilities about granting financial concessions to old age pensioners.
My Lords, no such representations have been made, but the Government are very conscious of the difficulties faced by many pensioners and have taken steps to tackle them. The Government have set up a group of senior Ministers to co-ordinate the Government's strategy for helping older people. We have reduced VAT on fuel from 8 per cent. to 5 per cent. We have introduced winter fuel payments. For the coming winter these will give at least £20 to every pensioner household and £50 to those in most need. We have allocated £500 million to enable winter fuel payments to continue for a further three years. We believe that pensioners should share in the prosperity of the nation and that this is the best way to tackle issues such as fuel poverty.
My Lords, does the Minister recognise that standing charges are an increasing burden on less well off elderly people and that is why the National Pensioners Convention has persistently called for their abolition in respect of old-age pensioners? Can the Minister explain to the House what is the attitude of the Government on this issue?
My Lords, as to the question whether pensioners who use prepayment meters are charged too much, gas and electricity regulators have drawn up an action plan to drive down costs and improve efficiency and choice to disadvantaged consumers. That includes action to encourage more cost-effective meters and offer a wider choice of payment methods. The Government are also concerned that disadvantaged consumers should have a fair share of the benefits of liberalising the markets and are considering the case for further action through the regulatory system, if necessary, to ensure that the benefits are widely shared.
My Lords, is my noble friend aware that in the developing gas and electricity market very considerable advantage can be enjoyed by those who pay by direct debit but that there is very little advantage, if any, for those with prepayment meters rather than bank accounts?
My Lords, I take my noble friend's point. Some people have had the benefit of payment by direct debit and in other cases those with prepayment meters have been disadvantaged. But the action that I have explained is related directly to the resolution of that problem and action has already been taken to that end.
My Lords, can my noble friend tell the House why some insist on referring to these bodies as public utilities? Are they not largely in the private sector and is not their only interest first, middle and bottom line making profits? Why would anyone remotely believe that they would have any interest in the plight of poor people in our society?
My Lords, all of them are controlled by regulators who place upon them certain duties. Noble Lords will also be aware that the Government are imposing a new duty on regulators to consider the needs of low income customers.
My Lords, despite the current fashion for means-testing and the taxing of benefits, does the noble Lord agree that it would not be appropriate for such concessions as were mentioned in the original Question either to be means tested or taxed?
My Lords, in this case we are not talking about concessions. In these circumstances no concessions have been asked for. We believe that the way to tackle these problems is by means of the measures that I enumerated not by concessions, for the reason that there is strict regulation of the utilities not to show undue preference to particular groups in setting charges. Any proposals for financial concessions for particular groups are matters for the regulators subject to their duties and the non-discrimination requirements of the legislation. The reason for taking that line is very clear. Any substantial concessions to pensioners, not all of whom are poor, would have to be paid for by an increase to other consumers some of whom are on low incomes.
My Lords, is the Minister aware that the number of deaths through hypothermia in this country is higher than in Sweden? Does he agree that that cannot be climatically explained? Can he tell the House what plans the Government have to reduce this figure?
My Lords, I cannot comment on the comparison between the two countries. Noble Lords will understand that the Government have introduced a whole series of measures aimed at enabling pensioners to pay bills and there are very strict regulations that govern the disconnection of meters and the turning off of heating arrangements.
My Lords, can my noble friend tell the House whether pensioners in London and elsewhere would be well advised to accept the offer of British Gas to become the sole provider of energy to their homesteads?
My Lords, I do not believe that it is for the Government to comment on the matter. People must make their own decisions based on the best advice that they can get.
My Lords, is the Minister aware that not very long ago I received a letter telling me that the Government had decided to give me £20 to help with my winter fuel bills and that that was more than any government had ever made available to pensioners? Does the noble Lord agree that it would have been less misleading to the many millions who doubtless received that letter had it been explained that the kind donor was the taxpayer and not the Government?
My Lords, the noble Baroness is perhaps misjudging the intelligence of most pensioners. I am sure that they are perfectly capable of understanding that point.
My Lords, I am rather disappointed by the reply of the Minister. He has utterly failed to answer the Question. Cannot the Government discuss with the respective regulators what action can be taken to remove these charges, for such a result will certainly be beneficial to the health and well-being of our elderly people?
My Lords, I believe that I have already covered that point. On the basis of our regulatory system there must be a charging system for these payments. Moves have been made to make certain that the payments are as fair as possible. In the light of that action, I believe that the point has been covered.
House Of Lords Restaurants: British Pig Meat
3.6 p.m.
asked the Chairman of Committees:
Whether pig meat served in House of Lords restaurants is of British origin.
My Lords, pig meat served in the House of Lords restaurants is of British origin, except the bacon in the staff restaurant, which is Dutch, and the wild boar, which comes from Hungary and at times from one or two other places. This is not a laughing matter. We do not make much of these matters in your Lordships' House, but it so happens that my arms bear the wild boar.
My Lords, while I thank the noble Lord for his relatively satisfactory Answer, is he aware that the fact that British pork is served in the restaurants is not well known, hence this Question? Will the noble Lord consider ways of publicising it further, such as descriptions on menus, so that Ministers from laggard departments such as the Ministry of Defence may have their consciences pricked and follow our example, as they probably follow that of another place and that great temple of value for money, Marks & Spencer?
My Lords, the last thing that I contemplated—I did not contemplate it at all—was that in this Question I would be asked about the Ministry of Defence. I can see possible advantages in the Ministry using wild boar on some occasions. I am very grateful to the noble Lord for what he has said. I shall consider whether this can be more widely publicised, because it would be an advantage to do so. I benefit from British pork because almost every day when your Lordships' House sits I enjoy a lunch of beautifully mashed potatoes and two hot sausages in the Home Room. They are delicious and I commend them to the House.
My Lords, is the Chairman of Committees aware that, amusing though his answers are, they will not amuse the many pork/bacon farmers who are going bust?
My Lords, I appreciate what the noble Lord says. However, important though those matters are, I do not believe that they are domestic matters for the House of Lords.
Northern Ireland Bill
3.10 p.m.
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—( Lord Dubs.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 43 [ Prorogation]:
On Question, Whether Clause 43 shall stand part of the Bill?
Rather unusually, I must recommend that noble Lords oppose the Question that this clause stand part of the Bill. Nor do we intend to introduce any amendments to replace it.
Clause 43 concerns the Secretary of State's power to prorogue the Northern Ireland Assembly. The power in the Bill as it stands is unfettered and does not need to be justified, although a draft Order in Council must be approved under the affirmative resolution procedure. Clause 43 reflects provisions in earlier Northern Ireland legislation which were briefly used on occasions—for example, in the summer of 1973. In discussions with the Northern Ireland parties, there was considerable opposition to the kind of emergency powers represented by this clause. We have already debated the powers to call emergency dissolutions and fresh elections. As a result, the Secretary of State's powers in this field have instead been given to the Assembly. We see the weight in the criticism of such emergency powers: that they are planning for failure and as a result might paradoxically make failure more likely. The Government are not in the business of planning for failure in Northern Ireland. We believe that the progress we have seen over the past year fully justifies this confidence. The Northern Ireland Bill reflects the Belfast agreement: the greatest success in building bridges across the community in the entire history of Northern Ireland. The agreement already provides for a review of its provisions after four years. If circumstances change dramatically, the power of Westminster to make provisions for Northern Ireland remains unaffected by the Bill. But we believe that the Bill provides the firmest foundation for political development over the years ahead and that the kind of powers included in this clause are therefore unnecessary. I beg to move.This is one of a number of clauses in the Bill which the Minister proposes to oppose, having put them before the Committee. However, I realise that that results from the consultations which took place over the summer, in particular with the Northern Ireland parties. Therefore my criticism of the noble Lord opposing his own clauses is muted a great deal.
The Minister describes this power as planning for failure. I do not envisage it in that way. I understand the clause to provide for contingencies, which I believe is a different issue. I should not wish to plan on the basis that the Assembly and all that goes with it will fail. Far from it; I am optimistic and hope very much that it will succeed. At the same time it seems to me that we should make provision for contingencies if all is not going entirely smoothly. A cooling-off period might be required and could be provided by the prorogation provision in the clause. However, at this stage I do not wish to go against the results of the consultation which the Minister and his colleagues in the Northern Ireland Office have had with the Northern Ireland parties. I am prepared to concur with the proposal made by the Minister.We, too, have no essential problem with what the Government seek to do. Perhaps I may be clear. The Assembly will be able to prorogue itself, the power having been removed from Her Majesty to do so. Will the Assembly be able to prorogue itself in the event to which the noble Lord, Lord Cope, referred—that all did not go well? If so, for how long? How would that relate to the provision—from these Benches we very much welcome it—that the Assembly will have a fixed term? It is an example that we might well follow in the Westminster Parliament. I should be grateful for an answer on those points.
I am reluctant to prolong this part of the debate. However, I had the impression that the clause as it stood did even more damage to what I call the sacred scrolls of the Good Friday agreement. Perhaps it was for that reason that wiser counsels prevailed. I was the recipient on many occasions of such exhortations, even when I was making tremendously significant suggestions that an amendment providing that the "Secretary of State shall" instead of "the Secretary of State may" sent the wrong signals and demoralised all who had subscribed in the referendum to the agreement.
However, I shall not anticipate what I and my colleagues may wish to say with the leave of the Committee on the new clause.The answer to the noble Lord, Lord Holme, is, yes. The Assembly has the power to prorogue. It can control its own sittings and set its own periods of adjournment.
Perhaps I may respond briefly to a remark by the noble Lord, Lord Holme, about fixed term parliaments. It is not appropriate to debate the matter on this clause. However, I believe that one of the advantages of the British constitution is that we do not have fixed-term parliaments. It means that our elections are short, which is highly desirable when one considers some comparable countries overseas. It also enables Parliament to resolve a situation where a government have lost the ability to govern; and there are plenty of historic precedents to which one could point.
Clause 43 negatived.
moved Amendment No. 111:
After Clause 43, insert the following new clause—
("Part Iva
Nsmc, Bic, Biic Etc
North-South Ministerial Council And British-Irish Council
.—(1) The First Minister and the deputy First Minister acting jointly shall make such nominations of Ministers as they consider necessary to ensure—
(2) It shall be a Ministerial responsibility of a Minister nominated under subsection (1)(a) or (b) to participate in the Council concerned in such meetings or activities as are specified in the nomination.
(3) Such a Minister shall act in accordance with any decisions of the Assembly or the Executive Committee which are relevant to his participation in the Council concerned.
(4) A Northern Ireland Minister may in writing authorise another Minister who has been nominated under subsection (1)(a) or (b) to enter into agreements or arrangements in respect of matters for which he is responsible.
(5) The First Minister and the deputy First Minister acting jointly shall, as far in advance of each meeting of either Council as is reasonably practicable, give to the Executive Committee and to the Assembly the following information in relation to the meeting—
(6) A Minister who participates in a meeting of either Council by reason of a nomination under this section shall, as soon as reasonably practicable after the meeting, make a report—
(7) A report under subsection (6)(b) shall be made orally unless standing orders authorise it to be made in writing.
(8) Subsection (3) does not affect the operation of section 19 in relation to the powers of Ministers.
(9) In this section "participate" shall be construed—
The noble Lord said: The next three groups of amendments deal collectively with the various bodies to be set up under strands 2 and 3 of the Belfast agreement. The Government's amendments introduced four new clauses to replace the existing Clauses 65 to 67 on which I have given notice of my intention to oppose the Question that they stand part of the Bill.
Before considering each group in turn, I remind noble Lords of the important institutions which are to be set up under strands 2 and 3 of the agreement. Those are: the North-South Ministerial Council which will develop co-operation between the Northern Ireland Administration and the Irish Government; the British-Irish Council, sometimes called the Council of the Isles, which will promote dialogue and consultation throughout these islands; and the British-Irish Inter-Governmental Conference in which the British and Irish Governments will co-operate on all matters of mutual interest including non-devolved Northern Ireland matters.
In addition, under the auspices of the North-South Ministerial Council, at least six implementation bodies are to be identified and established for the specific purpose of implementing on an all-island or cross-border level policies agreed in the council.
Strands 2 and 3 are an integral part of the Belfast agreement. That is reflected in the fact that they will now constitute a distinct part of the Bill rather than being included under "Miscellaneous and General" as at present. The various institutions I have outlined will enable the Northern Ireland administration to develop positive relationships and practical co-operation within the island of Ireland and within these islands in a way which will deliver real benefits to all the people living in these islands.
During consultation with the parties, two key issues have emerged in respect of the clauses: first, the need to ensure that Ministers in the North-South Ministerial Council are properly accountable to the Assembly, without introducing additional checks and balances not envisaged in the agreement which would hamper its effectiveness; secondly, the need to make clear that participation in the council when required is an essential responsibility of ministerial office.
The new clauses address these issues and reflect a number of points made by the parties. Ultimately, the key to successful development of North-South and East-West arrangements is not to be found in legislation. What is needed is for the elected representatives of the people of Northern Ireland to demonstrate the spirit of trust and co-operation that was the foundation of the agreement and to work together for the benefit of all the people. I am confident that, as with so many other challenges that have been faced, the politicians of Northern Ireland will prove able to rise to this challenge.
Turning to the detail of the new clauses, Amendment No. 111 requires the First and Deputy First Ministers to make such nominations as to ensure appropriate representation by Northern Ireland Ministers in the North-South Ministerial Council and in the British-Irish Council. This representation is clearly that which is required by the Belfast agreement.
The noble Lord, Lord Cope, has tabled Amendment No. 111A which seeks to ensure that the nominations shall be in accordance with paragraph 30 of strand one and that no one Minister shall represent the Assembly on his or her own. Paragraph 30 of strand one states that arrangements to represent the Assembly shall be such as to ensure cross-community involvement. While the clause's current reference to the agreement takes in this paragraph, I have some sympathy for the point raised by the noble Lord. If he will withdraw the amendment, I will consider further whether there needs to be more explicit reference to the need for representation to be on a cross-community basis.
Returning to Amendment No. 111, it is clear that Northern Ireland Ministers operating in the councils are fully accountable to the Assembly and must act in accordance with any relevant decision of the Assembly or executive committee. As my colleague the Minister of State said when this was being considered in another place, the council will be accountable both to the Dail in Dublin and to the Belfast Assembly. It must be so.
Accountability requires openness and transparency and these amendments also ensure that the Assembly is fully informed about business at the North-South Ministerial Council and the British-Irish Council. This includes being given details of the agenda and ministerial nominations in advance of meetings and a report on their outcome. Of course, Ministers will continue to be accountable to the Assembly in the relevant Assembly committee for their operation in either council, as they are for all their responsibilities.
Another important aspect of participation in the North-South Ministerial Council is that it is an essential responsibility of ministerial office. That is clearly set out in strand two of the agreement and is given effect in Amendment No. 111. It is my belief that Ministers will live up to their pledge of office by discharging all their duties. The people of Northern Ireland will expect them to do so. Of course, should a Minister fail to carry out this responsibility, as with any other breach of the pledge, it will be for the Assembly to decide whether any action is appropriate. If for any reason a Minister is unable to participate normally in the council the agreement allows for the First and Deputy First Ministers to be able to make alternative arrangements. This amendment enables the Minister to authorise another Minister who is nominated by the First and Deputy First Ministers to attend the council to enter into agreements or arrangements in respect of matters for which he is responsible, thus enabling work in the North-South Ministerial Council to proceed.
This is a complex area of the Bill through which we are seeking to give full effect to the provisions in strand two of the agreement for alternative arrangements. We will continue to give close scrutiny to this clause to ensure that this objective is met.
Amendment No. 111B, tabled by the noble Lord, Lord Cope, would enable all Ministers, including the First and Deputy First Ministers, to authorise another Minister to enter into agreements on their behalf. This provision is intended to enable only those Northern Ireland Ministers with departmental responsibilities to make such authorisation, and hence I must resist the amendment.
Amendment No. 112 provides that the Assembly may pass legislation for the purpose of giving effect to arrangements or agreements entered into by Ministers in the North-South Ministerial Council and in the British-Irish Council. There had earlier been some doubt as to whether the Assembly had legislative competence in this respect. This amendment ensures that the Assembly has the necessary authority. Amendment No. 112 also contains an important further provision in relation to the accountability of the North-South Ministerial Council to the Assembly.
On the specific matter of establishing new implementation bodies, which I know is of concern to some Members of the Committee, we have made clear that no agreement to establish a North-South implementation body shall come into operation without the specific approval of the Assembly. This is in line with paragraph 12 of strand two of the agreement. While Amendment No. 180, tabled by the noble Lords, Lord Holme and Lord Lester, and Amendment No. 112C, tabled by the noble Lord, Lord Cope, would also have this effect, they go further by requiring Assembly approval for every agreement entered into in the councils. This clearly goes further than the agreement, which envisages Ministers being able to operate within their defined authority and therefore not requiring specific Assembly approval for every decision.
I turn to the remainder of the amendments in the group tabled by the noble Lord, Lord Cope. I propose to accept Amendment No. 112A, which helpfully makes clear that it is only Ministers who may enter into agreements in the North-South Ministerial Council and the British-Irish Council. Amendment No. 112B proposes that, as a result of agreements in the North-South Ministerial Council, Acts of the Assembly should enable functions to be transferred to a body rather than to an authority, as currently drafted. The language currently used is taken from the Northern Ireland Constitution Act 1973 and, in view of the establishment of implementation bodies, it may be that the suggested language would be more appropriate. If the noble Lord will agree to withdraw the amendment we will look at the language further.
Amendment No. 112D suggests that the definition of an implementation body should be made with reference to paragraph 12 of strand two rather than to paragraph 11. I confess that I am unclear as to the reasoning behind the suggestion. The existing definition is entirely appropriate since it simply defines implementation bodies as set out in the agreement as bodies to implement on an all-island and cross-border basis policies agreed in the North-South Ministerial Council.
Before leaving the group, perhaps I may also mention government Amendment No. 226, which is a related technical amendment and includes provision to ensure that agreements made in the North-South Ministerial Council and the British-Irish Council, or in relation to implementation bodies, come within the Assembly's legislative competence. I beg to move.
moved, as an amendment to Amendment No. 111, Amendment No. 111A:
Line 10, at end insert—
("(1A) Such nominations shall be in accordance with paragraph 30 of Strand One of the Belfast Agreement and shall ensure that no one Minister represents the Assembly.").
The noble Lord said: I wish to make several points on this group of amendments; a portmanteau, as it were. The first concerns the suggested title for what is described as Part IVA, which covers all the different bodies; that is, NSMC, BIC, BIIC etc. It seems to me rather infelicitous. I attempted through the Public Bill Office to propose an amendment suggesting that instead the title "External Relationships", a phrase from the Belfast agreement, might cover these matters in a more felicitous manner. Unfortunately, we are not allowed to propose amendments to the cross headings of Bills and therefore my amendment does not appear on the Marshalled List. I must downgrade it to a suggestion because it seems that such matters are entirely within the hands of the Minister and his colleagues rather than the Committee as a whole.
As regards the principle lying behind the drafting of the new clause, which appears as Amendment No. 111, I am content with the general approach and the way it has been developed, as described by the Minister. However, I wish to raise a number of points. First, he was kind enough to suggest that were I not to press Amendment No. 111A he would look into it. It attempts to ensure that, in accordance with paragraph 30 of strand one of the agreement, the involvement of Northern Ireland Ministers in the council should be on a cross-party basis. It seems to me that that requires that normally two Ministers should be there. Admittedly, my amendment suggests that there should always be two Ministers there, but perhaps that lays down a little too much detail. The spirit of trying to make sure that those going to the Assembly represent all the Executive—and, for that matter, all the Assembly—as far as possible, on a cross-community basis, is the right one. In due course I shall not press that amendment in the hope that the Minister will come back on it.
Amendment No. 111B leaves out "Northern Ireland" in line 17 of the new clause. As the Minister said, the subsection enables a Minister to authorise another Minister to enter into agreements. I was slightly surprised by the Minister's response. He said that the wording had been chosen in order to stop the First Minister and Deputy First Minister being able to authorise another Minister to enter into an agreement. The departmental Ministers may do so, but if both they, the First Minister and his deputy are to do so, the wording, as refined by my amendment, would cover it because the Minister is defined elsewhere in the Bill as meaning the First Minister, the Deputy First Minister and the departmental Ministers. I imagine that that is what we wish to happen. I am pleased that my relatively modest suggestion in Amendment No. 112A has been accepted by the Minister and I need say no more about that.
Amendment No. 112B suggests including the word "body" instead of the word "authority". As the Minister rightly said, it seems that most of the institutions referred to here are cross-border bodies. In that context, "body" might be the more appropriate word. Again, I shall not press it in the light of what the Minister said. The other small matter concerns what paragraph of strand 2 of the Belfast Agreement should be referred to in subsection (5) dealing with the implementation bodies. I thought that it was just a slip in the drafting of the Bill. But the Minister seemed to suggest that paragraph 12 had been carefully chosen and preferred to paragraph 11, which states that,
"the implementation bodies will have a clear operational remit. They will implement on an all-island and cross-border basis".
That is the basis of them. Paragraph 12 suggests how the bodies might develop. My amendment should have included both paragraphs 11 and 12 because of the bodies that may develop as a result of further progress over the years. I shall not press my amendment as it stands; nevertheless paragraph 12 has some validity in that context.
A more important question, addressed in my Amendment No. 112C and also the amendment of the Liberal Democrat Party, is the authority that Northern Ireland Ministers will have when attending these meetings. My amendment suggests that no agreement or arrangement shall come into operation without the approval of the Assembly whereas the Minister is suggesting that the approval of the Assembly will only be required to set up a cross-border body. I believe that the best solution probably lies somewhere between us. I wish to reflect more on that before we finalise it. But it should be clear that when Ministers attend meetings of this character they are doing so as representatives not only of the Northern Ireland Executive, but also as representatives of the Northern Ireland Assembly. What they say in the councils cannot of itself bind the Assembly, which should be able to make its own decisions as to whether to support a particular measure or not.
It is not an entirely analogous situation. As a Minister I used to go to European meetings of various councils when I was with different departments. It was noticeable that British Ministers at such European councils frequently entered parliamentary reserves on the decisions that we were making in order to permit debates to take place in this House and also in the other place to get approval for what we were agreeing to. Obviously, we did not agree to anything about which we did not believe we could persuade Parliament. Nevertheless, we entered a parliamentary reserve and, very frequently, so did the Danes. Virtually no country apart from those two ever entered a parliamentary reserve, but simply took their parliaments for granted. It seemed to me that it was the strength of the Danish and British systems that to some degree the parliaments remained in control of what Ministers did when they attended the various councils and reached conclusions, sometimes as a result of very hard bargaining in the middle of the night.
Although that situation is not entirely comparable, it is related to the situation we are discussing here. It should be clear that, in attending these councils, Ministers are answerable to the Assembly for what they do and have to obtain approval for any significant departures from the policy which the Assembly has already agreed. Quite how we express that in the Bill is more tricky. It may be that my drafting or that of the noble Lord representing the Liberal Democrats is not entirely satisfactory, but something like it needs to be stated, if only by the Minister. After all, in these days of Pepper v. Hart we hope that that can have some influence on the matter even if it is not written into the Bill. I beg to move.
3.30 p.m.
I very much welcome the fact that the Government have made a new start in Amendments Nos. 111 to 114. We had got ourselves into a tangle with the drafting and it is right to go for a fresh and clarificatory start here on such matters as the Executive Committee being given dates, times, venues and agendas of north-south meetings, and the fact that Ministers who attend such meetings are to make reports to the Executive and Assembly, which is extremely important, and also that the First Minister and Deputy First Minister have a duty to ensure reasonable attendance at the north-south council meetings. I also welcome that, in terms of new implementation bodies, the Government have tried to deal with the point raised by my Amendment No. 180 and Amendment No. 112C of the noble Lord, Lord Cope.
I wish to speak briefly about my amendment. But first I ask the Minister how frequently the Government envisage these strand 2 and 3 meetings taking place. He may reply to the effect that it is simply up to the Assembly and the Irish Government. But it is legitimate for this Committee to hear the Government's view. As regards the question of reasonable attendance, perhaps I may clarify this point. If the two DUP Ministers do not attend, would that still constitute reasonable attendance for the members of the Executive? As regards the other amendments in this grouping, which is a somewhat motley one, I was delighted to hear that the Government will accept Amendment No. 111A in the name of the noble Lord, Lord Cope, with which the Liberal Democrat Benches agree. On Monday the Government told us that as regards Amendment No. 111B they were intending to clarify titles generally. We are in a mess of nomenclature. We have Northern Ireland Ministers; First and Deputy First Ministers; departmental Ministers and junior Ministers. The promise that the Government have made to sort out titles throughout the Bill is welcome. I shall be grateful if the noble Lord believes it will help this amendment as well. As to Amendment No. 112B, the noble Lord, Lord Cope of Berkeley, is entirely right to try to use the word "body" rather than "authority", for a reason that neither he nor the Minister have so far mentioned. It is crucial, in building this new relationship between the new assembly and the Republic of Ireland, that we do not revert to the language of earlier discussions in Anglo-Irish relations 10 years ago and try to impute an authority that does not exist for this cross-border body. For that reason the term "body", which implies an evolving co-operative relationship, rather than "authority" is highly desirable. I speak now, briefly, to my own Amendment No. 180, which is similar in intent to Amendment No. 112C in the name of the noble Lord, Lord Cope. I concede that mine is a probing amendment. It seeks clarification on how new north-south agreements will be endorsed, or otherwise, by the Assembly. At one extreme we have the kind of amendment which has been proposed by the UKUP in the Assembly, which I would interpret as a wrecking amendment, which provides that every single issue that arises has to be approved by the Assembly. Presumably that is designed by the UKUP to be a brake on the whole process. It is desirable that some positive momentum is built up in the north-south body. To that extent it is desirable that the executive Ministers have some latitude, particularly since they are now committed to reporting back to the Assembly. I hope that it will be common ground with the Conservative Benches that some latitude for the executive Ministers on that body is desirable. It is equally desirable that they should report. I am not clear, beyond the new implementation bodies, whether the Government envisage any matters upon which the approval of the Assembly would have to be sought for agreements entered into by executive Ministers in that cross-border body. In order to determine my own attitude and my amendment, I would be grateful if the Minister could deal with that point when he responds.When we finished our deliberations on Monday evening at around 11.30, I went home feeling somewhat depressed. It seemed to me that we were setting the standard for the remainder of the Committee stage, Report stage and Third Reading, with the Minister, through no wish of his own, finding himself in the position of having to block every amendment tabled by the Official Opposition or other parties represented in your Lordships' House. That is not intended as a slight on the Minister. We have to remember that he is dealing with these matters at long range and he is burdened with the responsibility of speaking for four of his colleagues in the Northern Ireland Office in addition to his own onerous duty. I am greatly encouraged by the willingness of the Minister not only to say that he will look at the amendments put forward by, in this instance, the Official Opposition, but to do his best to take them on board and implement them.
When I had the responsibility of leading a minority party at the other end of the building I always took the view that it was necessary for minority parties to align themselves as far as possible with the government of the day and Her Majesty's Official Opposition of the day, otherwise we would have a collection of isolated voices crying in the wilderness, and we would get nowhere. I pay tribute to the Minister and to his opposite number, the noble Lord, Lord Cope of Berkeley, who leads for Her Majesty's Official Opposition. While I would not want to raise expectations too high, I think we can rely upon the Minister to ensure that reasonable amendments put forward in a reasonable way will be given a fair hearing by Her Majesty's Government. In that way we may secure something like all-party agreement on the broad principles of the Bill on which your Lordships are now deliberating for a third day.3.45 p.m.
I too welcome the opening statement by the Minister, which, as the noble Lord, Lord Molyneaux, has just said, is evidence of an open-mindedness, certainly towards this part of the Bill. I, too, was going to make the same points as the noble Lord, Lord Holme of Cheltenham, on the subject of Ministers and on clearing up definitions, but we have had that discussion and there is no need for me to labour the point. We will watch, eagle-eyed, on Report to see what amendments emanate from the Government.
Any of us who have had any connection with Northern Ireland, whether as outsiders or those who live and work there, know that words matter tremendously in the context of Northern Ireland. One of the reasons for the failure of the Anglo-Irish Agreement and the hate that it generated was the words used. I lend my very positive support to my noble friend Lord Cope in his Amendment No. 112B. I agree with the noble Lord, Lord Holme, that we will be doing everybody a great disservice if we leave the word "authority" in the Bill. "Body" is a far, far better term. There may be others, but I am not a wordsmith. As to Amendment No. 180 in the name of the noble Lord, Lord Holme of Cheltenham, I also lend my support to that amendment. It is absolutely vital. The cross-border relationship has become a touchy subject over recent years, notwithstanding the signing of the Belfast Agreement by virtually everyone in the Province. It will continue to be a touchy subject. One way of avoiding such touchiness must be to get as much cross-party agreement about external relations as can possibly be achieved. I am sure that the Government will take that on board.I shall refer briefly to this amendment by referring to what is said in strand 2 of the Belfast Agreement. The first line of paragraph 2 reads:
That seems to be as clear a unanimity rule as one could possibly hope to have. Paragraph 5 goes on to speak of using best endeavours to reach agreement and then, in the next subsection, to taking decisions by agreement. In paragraph 6 it refers to:"All Council decisions to be by agreement between the two sides".
That is the parliamentary approval, of which mention has already been made. I hope that the mention of those points in the agreement document will help to dispel certain fears that have already arisen and are likely to arise in future among certain people."co-ordination of executive functions within each jurisdiction. Each side to remain accountable to the Assembly and to the Oireachtas respectively".
I am grateful for the supportive comments which have been made by various Members of the Committee. I am sorry that the noble Lord, Lord Molyneaux, went home depressed on Monday night. I cannot guarantee that he will be utterly cheerful this evening, but certainly the Government are open-minded about many of the issues which your Lordships may wish to put forward. We shall reflect on all amendments, and where we can meet a point we shall do so, as I indicated a few moments ago.
Let me deal with some of the specific questions that have been raised. The noble Lord, Lord Cope, made a point about the way in which parliamentary counsel attach sub-headings or headings to part of the Bill. This is not within the direct responsibility of the Government, but certainly I would like to reflect on the points made by the noble Lord to see what can be done by using our influence. I am grateful to the noble Lords, Lord Cope and Lord Holme, and other noble Lords for their helpful comments about whether Ministers, including the First Minister and Deputy First Minister, would have the power to authorise other Ministers to participate on their behalf. I should like to consider that point further in the light of the comments made this afternoon. The noble Lord, Lord Holme, asked about the frequency of meetings of the North-South Ministerial Council. Strand 2 of the agreement makes it clear that the North-South Ministerial Council should meet in plenary form twice a year, but it should also meet in sectoral formats on a regular and frequent basis as is appropriate. So, the exact frequency of such meetings, as the noble Lord anticipated, will be for the Northern Ireland administration and the Irish Government to agree, rather than having anything set down in the legislation. The noble Lords, Lord Cope and Lord Holme, and other noble Lords asked about the basis for approval by the assembly of agreements made in the North-South Ministerial Council. I agree that Ministers must be accountable. Indeed, subsection (5) of Amendment No. 111 provides for a report to the assembly on each council meeting. I also agree that Ministers must act in accordance with decisions of the executive committee and assembly. That is set out in subsection (3) of Amendment No. 111. I also agree that where any agreement in the council requires legislative or financial approval from the assembly, such an agreement cannot come into effect without such specific approval. The Minister would have to go back to the assembly and secure the necessary legislative and financial authority. But beyond that there are all kinds of points on which agreement might be entered into by a Minister. One would not want unduly to trammel the freedom of action of the Minister, particularly if he is acting in accordance with stated policies. So where legislative or financial approval is not required, the agreement intends that the Minister should be able to act within his or her own defined authority. Of course, even in such instances the Minister will still be obliged to report to the assembly, and doubtless when members of the assembly make their views clear the Minister will take account of them. What I am saying in brief is that there may be occasions when the Minister will be obliged to go to the assembly for authority but there will be other occasions when, by acting within existing policy and acting entirely within his authority and where legislative or financial approval is not necessary, it would be unduly restrictive to demand that the Minister goes back to the assembly for approval on each of those matters.I am grateful to the noble Lord for giving way. I find that explanation very helpful. However, the crux of the matter seems to be the phrase "Ministers acting within their defined authority". Can the Minister explain what that means in this specific context? What does he mean by "Ministers acting within their defined authority", beyond the report back, not needing to seek the approval of the assembly?
I would give the analogy of the way in which Ministers in this House and another place act in relation to being accountable. After all, Ministers have to make a large number of decisions. If Ministers reported to the House on each one of those and sought the House's approval, our proceedings might well come to a standstill. I shall give an example from the annex to the agreement, which indicates 12 headings for North-South co-operation and implementation. The first refers to agriculture and animal and plant health. As I am the agriculture Minister for Northern Ireland, I am aware of the authority I have to deal with a number of matters under animal and plant health. I do not need financial or legislative authority for those. Therefore, my successor—the agriculture Minister in the assembly—would have similar scope. He would be able to take action, as he would for matters that are exclusively matters for Northern Ireland which do not come into the North-South arrangements. We are simply indicating what would be normal ministerial practice in this House and in another place. There is nothing untoward about that. In the end, I suppose that one has to be specific in relation to particular examples, but I think the position is clear. Ministers are accountable but, subject to the way I have described it, they do not have to go back with every single decision that they make.
Before the noble Lord leaves that point, does he accept that he and other noble Lords who have served as United Kingdom Ministers in Northern Ireland have acted under a form of delegated authority? If he accepts that, surely to goodness the Ministers who are the representatives of the assembly on these bodies ought to act with the same kind of delegated authority. At the moment, as I understand it, there is no system for the assembly to delegate a Minister to do a job. It might well be that a way out of this would be to have in the assembly's standing orders the power of delegation from the whole assembly to the Ministers who are going to participate in these bodies.
If the noble Lord is talking about standing orders, those will be up to the Assembly. It is not a matter which we would want to put on the face of the Bill.
The noble Lord, Lord Holme, asked about Ministers' attendance. Ministers are obliged to attend. It is part of the condition of their taking office that they have to fulfil their responsibilities. Those include attending North-South Ministerial Council meetings where they are appropriate for them. The failure of any Minister to do so would be a matter with which the assembly would then have to deal.Unless I missed it, I am not sure that the noble Lord responded to Amendment No. 111B; that is, which Ministers are to be allowed to authorise other Ministers to enter into an agreement. The question is whether or not the First Minister and Deputy First Minister are able to nominate someone to enter into an agreement.
The noble Lord may have missed it. I said at the beginning that I was grateful for his helpful comments and that I would consider the matter further.
On the point about ministerial attendance, the words used are "reasonable attendance", which implies a less than 100 per cent. attendance. So, with respect, the noble Lord's reply that Ministers are expected to attend does not solve the problem of "reasonable attendance". If the representatives of two parties did not attend, would that still be "reasonable attendance"?
I am anxious not be drawn into too much detail on this point. However, if it so happens that on a particular occasion and for good reason a Minister is unable to attend, that would come within the scope of "reasonable". If there is a deliberate intention not to take part, that would be unreasonable.
This debate is founded on Amendment No. 111A. I was interested in the Minister's phrase that he was "influential with" parliamentary counsel over the matter of cross-headings as opposed to being "in charge of" parliamentary counsel. I know exactly what he means and I am glad that he will use his influence correctly. In the light of what he said about Amendment No. 111A, I beg leave to withdraw it.
Amendment No. 111A, as an amendment to Amendment No. 111, by leave, withdrawn.
[ Amendment No. 111B, as an amendment to Amendment No. 111, not moved.]
On Question, Amendment No. 111 agreed to.
moved Amendment No. 112:
After Clause 43, insert the following new clause—
(".—(1) This section applies to any agreement or arrangement entered into by a person participating, by reason of a nomination under section (North-South Ministerial Council and British-Irish Council), in a meeting of the North-South Ministerial Council or the British-Irish Council.
(2) Provision may be made by Act of the Assembly for giving effect to any agreement or arrangement to which this section applies, including provision—
(3) Subsection (2) has effect notwithstanding anything in subsection (2)(a) of section 6; but it does not affect—
(4) No agreement or arrangement to which this section applies entered into for the establishment after the appointed day of an implementation body shall come into operation without the approval of the Assembly.
(5) In subsection (4) "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.").
moved, as an amendment to Amendment No. 112, Amendment No. 112A:
Line 3, leave out ("person") and insert ("Minister").
The noble Lord said: I beg to move.
On Question, Amendment No. 112A, as an amendment to Amendment No. 112, agreed to.
[ Amendments Nos. 112B to 112D, as amendments to Amendment No. 112, not moved.]
On Question, Amendment No. 112, as amended, agreed to.
4 p.m.
moved Amendment No. 113:
After Clause 43, insert the following new clause—
British-Irish Intergovernmental Conference
(".—(1) This section applies where excepted or reserved matters relating to Northern Ireland are to be discussed at a meeting of the British-Irish Intergovernmental Conference.
(2) The First Minister and the deputy First Minister acting jointly shall ensure that there is such attendance at the meeting as appears to them to be required by the Belfast Agreement.
(3) In this section "attendance" means attendance by one or more Ministers.").
The noble Lord said: Amendment No. 113 deals with attendance by Northern Ireland Ministers at meetings of the British-Irish intergovernmental conference which is to be set up for the purpose of enabling the British and Irish Governments to co-operate on all matters of mutual interest, including non-devolved Northern Ireland affairs. This clause provides that when Northern Ireland matters are to be discussed at a meeting of the conference, the First and Deputy First Ministers shall ensure such attendance by Northern Ireland Ministers as is required by the agreement.
I should like to take a few moments to emphasise the significance of the clause. Previously, the British and Irish Governments came together in an Anglo-Irish intergovernmental conference to discuss a range of issues in relation to Northern Ireland. It was a cause of some frustration that there was no involvement of the elected representatives of Northern Ireland during those discussions. That is now being remedied in the new British-Irish intergovernmental conference.
Furthermore, the British-Irish intergovernmental conference will enable the two governments to work together on all matters of mutual interest. While Northern Ireland will be a key part of that agenda, it will be open to Ministers to discuss any issues of mutual concern.
Amendments Nos. 113A and 113B, tabled by the noble Lord, Lord Cope, deal also with the attendance of Northern Ireland Ministers at meetings of the British-Irish intergovernmental conference. The former would amend the current provisions to ensure that at least two Ministers attend, thus allowing for cross-community involvement. As I said earlier, we are discussing that matter further in relation to representation at all of the new institutions. The latter amendment would delete any definition of "attendance" in this clause and in my view would make it unclear whether attendance was limited to Northern Ireland Ministers or whether it could go wider. I beg to move.
moved, as an amendment to Amendment No. 113, Amendment No. 113A:
Line 6, after ("attendance") insert ("by at least two Ministers").
The noble Lord said: I was interested to hear the Minister say that he thought that if the wording were tidied up by leaving out subsection (3) and incorporating the point in subsection (2), it would somehow weaken the definition of "attendance". However, subsection (3) says that:
"'Attendance' means attendance by one or more Ministers".
It struck me first that we might include the phrase "one or more Ministers" after "attendance" in subsection (2). That would mean that with rather better English we should have achieved in one subsection what it has taken the draftsman two subsections to achieve. That is a purely drafting amendment of no great consequence except to improve the English, which we always seek to try to do.
A further thought that strikes me in order to ensure cross-border representation is that the provision should say—and could do so in either of the methods to which I have just referred—that two Ministers should normally be expected to attend so as to ensure cross-community representation. That is a separate point and the Minister has said that he will look at it.
A suggestion made to me is that the Belfast agreement, at paragraph 7 on page 15, more or less gives the First Minister and Deputy First Minister the right to attend. It states:
"Relevant executive members of the Northern Ireland Administration will be involved in meetings of the Conference, and in the reviews referred to in paragraph 9".
That seems more or less to give them the right to attend. I am not quite sure that that is fully carried into the Bill by Amendment No. 113.
A different and wider point arises from what the Minister said. He used the expression "including non-devolved matters". As I understand it, the British-Irish intergovernmental conference will discuss only non-devolved matters. It will not discuss devolved matters. Strand 3 says about the British-Irish intergovernmental conference that it will,
"promote bilateral co-operation at all levels on all matters of mutual interest within the competence of both Governments".
But of course the Government are devolving to Northern Ireland a raft of responsibilities. Paragraph 5 states that,
"there will be regular and frequent meetings of the Conference concerned with non-devolved Northern Ireland matters".
The paragraph later refers to,
"cross-border co-operation on non-devolved issues".
Paragraph 6 states:
"The conference also will address … areas of rights, justice, prisons and policing in Northern Ireland (unless and until responsibility is devolved to the Northern Ireland administration)".
Once devolved, the British-Irish intergovernmental conference will cease to be involved in those matters, as the agreement stands.
Amendment No. 113 states:
"This section applies where excepted or reserved matters relating to Northern Ireland are to be discussed".
That implies that devolved matters will be discussed sometimes but goes on to imply that the First Minister and the Deputy First Minister will not attend when devolved matters are discussed but will attend when non-devolved matters are being discussed. That is extremely odd. I believe that further reflection may be necessary in relation to these provisions.
I support the two amendments. I listened carefully to what the Minister said about the point made in lines 8 and 9. It seems to me that the argument is the other way around. I find it difficult to understand why it is necessary to have those two lines as a kind of interpretation post-script at the end of the proposed new clause. The provision would be strengthened if the words appeared in subsection (2), as suggested in the amendment of the noble Lord, Lord Cope.
I agree with the noble Lord, Lord Cope, that we need to think more carefully about devolved, reserved and non-transferred matters. Perhaps at a later stage we can address our minds to those issues.I am grateful for the comments of both noble Lords. As regards subsection (3), I should like to consider the matter further in the light of those comments.
As to whether the British-Irish intergovernmental conference can discuss non-devolved matters, it will be able to discuss any areas of mutual interest, including subjects not related to Northern Ireland. That goes rather wider than the noble Lord understood. The conference will not discuss devolved matters in relation to Northern Ireland. The reason that that terminology is used is because we wish to allow for the possibility of discussing any areas of mutual interest, including subjects not specifically relating to Northern Ireland.For the avoidance of doubt, would there not be a case for the Northern Ireland Ministers to be present even as observers? There are many examples of misunderstanding. We can rely on the news industry to make sure that friction is created if Ministers are not there at first hand to hear what is happening.
It depends on how many Minsters there would have to be at such meetings. We are going rather wider than is appropriate even on such a detailed Bill as this one. Ministers who have a key need to be there will be there. The Assembly and the Executive would have to decide the basis of attendance through the First Minister and Deputy First Minister.
This debate is founded on Amendment No. 113A, and I beg leave to withdraw the amendment.
Amendment No. 113A, as an amendment to Amendment No. 113, by leave, withdrawn.
[ Amendment No. 113B, as an amendment to Amendment No. 113, not moved.]
On Question, Amendment No. 113 agreed to.
moved Amendment No. 114:
After Clause 43, insert the following new clause—
Implementation Bodies
(".—(1) The Secretary of State may make an order about any body—
(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—
(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.
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?
I mentioned Amendment No. 205 simply to be helpful. I will deal with it in its appropriate place later on, if that is easier.
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.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.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:
In paragraph 11 it says,"Matters … will take place through agreed implementation bodies on a cross-border or all-island level".
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."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".
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.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.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.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.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,
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."(Implementation bodies) … (Legislative power to remedy ultra vires acts)".
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.
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.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?
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.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?
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.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.
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.
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".
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.
moved Amendment No. 115:
After Clause 43, insert the following new clause—
Civic Forum
(".—(1) The First Minister and the deputy First Minister acting jointly shall make arrangements for obtaining from the Forum its views on social, economic and cultural matters.
(2) The arrangements so made shall not take effect until after they have been approved by the Assembly.
(3) In this section "the Forum" means the consultative Civic Forum established in pursuance of paragraph 34 of Strand One of the Belfast Agreement.").
The noble Lord said: These amendments concern the civic forum, one of the bodies provided for in the Belfast agreement for obtaining the views of various sectors of the community, including business, trade unions and the voluntary sector.
This amendment moves the provisions from the obscurity of Part VII, miscellaneous and general provisions, to a more prominent place in the Bill alongside the other institutions provided for in the agreement. There have also been some minor changes to the provisions. These include omitting the reference to the First Minister and Deputy First Minister obtaining through the forum the views of the community, just in case anyone got the impression that we were seeking to imply in the Bill that the elected representatives in the Assembly were not sufficiently representative of the views of the community which elected them! That is far from the case.
We have also removed specific references to funding from the provision on the forum. We are considering the general question of funding the institution in the Bill and may introduce amendments at Report stage if these are necessary.
Amendment No. 345 amends the schedule on transitional provisions in Schedule 12 to ensure that arrangements concerning the civic forum made during the shadow phase of the Assembly carry forward after devolution. I beg to move.
moved, as an amendment to Amendment No. 115, Amendment No. 115A:
Line 8, after ("established") insert (", by the First Minister and the Deputy First Minister acting jointly,").
The noble Lord said: This is intended to make clear that the civic forum is to be established by the First Minister and the Deputy First Minister, which is how I read paragraph 34 of strand one of the agreement. I beg to move.
I am a little worried about the poor old civic forum. The Committee will probably have noticed that the Bill completed its passage through the Commons without their noticing that it was absent from the Bill. That went entirely unremarked. We are now restoring it at this stage in the Lords. I suppose it is quite a good principle that if there is no reason to have a body, one should not have it. We have an admirable title in the civic forum. We had a body with a short vestigial life which I imagine played a useful role in an earlier stage of the peace process.
I think we need to be quite certain what we want a civic forum for. I believe there is a need for such a body in a Province which has such a weak civic culture. There is perhaps a role for a body called a civic forum to reach out into Northern Ireland society to try to build civic institutions which are the necessary accompaniment to the elaborate constitutional structure we are setting up. Clearly we shall not create a civil society in Northern Ireland simply by having better parliamentary institutions and a better sharing of relationships north and south. It has to be done by animating a greater civic spirit and responsibility in Northern Ireland. My slight concern is that the civic forum is an afterthought put in the Belfast agreement for reasons of piety and that it is in this Bill for the same reason. We find ourselves saying that First Ministers are to provide guidelines on the selection. Why could not the civic forum be drawn fairly widely from Northern Ireland society? Why should not certain bodies be established as nominating bodies which could nominate people to it? Why should it not meet in different places around Northern Ireland? Why should it not act as a sounding board for building around the new assembly and the new all-Ireland institutions greater levels of consent and information? Why should it not in some ways act as a public information service giving information from the Assembly? I think it would be a great shame if it just reproduces the conventional, cross-community deal represented by the Assembly itself. I do not have the answers and this is probably not the appropriate place to discuss them when we are discussing specific amendments to the Bill. However, I think we should all recognise that at the moment this is a title in search of a role. We have some obligation to try to think what would make a civic forum useful to the developing, and we hope peaceful, society in Northern Ireland.I agree with a great deal of what has just been said by the noble Lord, Lord Holme of Cheltenham. As someone who is involved to some extent in voluntary organisations in Northern Ireland I very much welcome the coming into being of the civic forum. It may not be terribly well known in this country that Northern Ireland has a wonderfully good structure of community organisations which exist even in the smallest neighbourhoods and villages. That experience should be used to develop and to build up civil society and to help the assembly to cope and to grapple with the difficult problems that it will have to face.
As to the future role, some of the areas that such a forum might attempt to address would include looking at proposals before they have got as far as being White Papers or draft Bills. It might also consider the consequences of legislation and how it will work in practice and to what extent it may need to be amended, modified or changed completely. Those are the kinds of functions in which such a body could be helpful.In a debate on an earlier amendment we spoke about clarity. The same subject applies in speaking to this amendment. The noble Lord, Lord Holme, is right. Very little attention has been given to the forum: how many people will be on it; how it will be funded; where it will sit; whether it will work in competition with the Assembly—that would be one of the worst things that could happen. Above all, we do not want to set up another factory of grievances. There have been too many bodies in Northern Ireland over the past 30 years where everyone has expressed their grievance, political, religious and in relation to all the other divisive events in Northern Ireland. If the forum is to be a positive factor for Northern Ireland, we should know exactly how it will be constituted. How many personnel will be on it? Will Assembly representatives be able to sit on it as well as carrying out their functions in the Assembly? Will they be able to make recommendations to the Assembly? Will they be able to reject or oppose some of the recommendations that come from the Assembly? The phrase, "civic forum", is loaded with all kinds of imponderables.
The Minister has been helpful in the debates that have taken place on the Bill. He has listened to the concern expressed in this Chamber; he has gone away, examined matters and returned with amendments. I hope that on Report he will be able to give us a further idea as to exactly what the forum is meant to be and what it can be.Before dealing with the various comments and questions raised, perhaps I may turn to the amendment tabled by the noble Lord, Lord Cope. It seeks to make clear that the First Minister and Deputy First Minister are responsible for establishing the civic forum.
We are clear that the responsibility rests with the First Minister and Deputy First Minister. The clause as it stands makes that clear. If the First Minister and Deputy First Minister have the duty to make arrangements to obtain the forum's views, as is clearly stated, that seems to us to give them also the duty to establish it in the first place. However, I have noted the noble Lord's comments. I should like to consider the matter further and come forward with an amendment on Report if we believe it to be necessary. I am grateful to the noble Lord for the useful contribution he has made. On that basis, I ask him to withdraw his amendment. Turning to the points made by the noble Lord, Lord Holme, the Commons took note of this matter. It was then included in Clause 64 and we have moved it forward. The Commons did have a chance to consider it. Perhaps the more important point is that raised by the noble Lord and by my noble friend Lord Fitt on the specific arrangements for the forum—how it will function and so on. The noble Lord, Lord Holme, made a number of excellent suggestions as to how it might work, the job it might do and how its members might be selected. My noble friend Lord Fitt asked questions on the same matter. The key issue is that these are all matters which the shadow Assembly has already invited the First Minister and Deputy First Minister to consider and report on. Under the agreement it is the First Minister and Deputy First Minister who are to establish guidelines for the selection of members of the civic forum. All these matters to do with the civic forum are best considered by the Assembly, which has already begun to consider them. The alternative would be for us to ask to set down a blueprint as to the precise way in which the civic forum might be selected and how it might operate. I suggest that that might be going a little far in relation to the responsibilities of this House and indeed of Westminster. I should prefer to have a limited reference to the civic forum, as in the Bill as presently drafted, and to leave it to the Assembly to take these matters further. After all, if the Assembly is not happy about its relationship with the civic forum, the civic forum will not be all that effective. It is not meant to be an alternative body to the Assembly; it is meant to be a helpful way of, as it were, tapping opinion across a whole range of bodies in Northern Ireland. If the civic forum is to work, it must be seen by the Assembly as being helpful to it, and in particular as being helpful to Assembly Ministers. For that reason I should be reluctant to go down the path of specifying more precisely how the civic forum should work. We ought to leave it to the Assembly.I wonder whether the Minister can answer a question that has just been prompted by his remarks. As he understands the position, namely that the First Minister and Deputy First Minister, acting jointly, will set the body up and make arrangements for its operation, presumably they can "unmake" it if they find that it is not useful. Is that the case?
The civic forum was agreed as part of the Good Friday agreement. Given that that will be within the responsibility of the Assembly First Minister, Deputy First Minister and other Ministers, we have to leave it to them. I suppose that theoretically they could. But that would mean that they would be tearing up a part of the Good Friday agreement. Given that the vast majority of Members of the Assembly have supported the Good Friday agreement, I should think that that is not a path down which they would wish to go. I should have thought that in the spirit of the Good Friday agreement they would want to give effect to the proposals for the civic forum.
The Minster has just put his finger on exactly the point I was trying to make. Is it in the power of the Assembly to build on the Good Friday agreement? It seems to me that it should be. That then raises a question as to whether there will be interference with that decision of the Assembly either by the Parliament in London or by the Dail in Dublin.
This is becoming rather hypothetical. Let me restate the position. The civic forum is part of the Good Friday agreement. The majority of politicians elected to the Assembly were elected on the basis of supporting the Good Friday agreement. We fully expect the Assembly, through its Ministers, to establish a civic forum—not in terms of any detail that we set down for them but on the principle that there should be such a forum. The noble Lord asked whether theoretically they could kill it off. I suppose that they could; but there would have to be cross-community voting in the Assembly to achieve such an end.
I am sorry to pick the noble Lord up on this point, but that is extremely important. Up to now I have often loyally defended the Government on the sanctity of the Belfast agreement and how we must not detract from it, take parts away from it that we do not like. The Belfast agreement states clearly that there will be a civic forum. Is the Minister now saying that the Assembly can unilaterally remove it?
I said that the debate is becoming theoretical and I do not wish to be taken down this path. The Government's position is clear. We support the totality of the Good Friday agreement and we expect the Assembly to do likewise. Theoretically I suppose that the Assembly could at some future date decide on a cross-party basis to go further or to do different things. But at this stage it is the Government's obligation fully to support the Good Friday agreement and to make it clear that we expect all participants to do so. To go further and look into the distant future is theoretical; it is a trap into which I do not wish to be drawn.
Surely what everyone needs to know is what is the power of the Assembly. The noble Lord seems to have just said: "That is the Belfast agreement; this is the Bill; matters are set in concrete". What a terrible thing to be doing!
I did not say that. I said that in setting up the Assembly we are sticking totally by the Good Friday agreement and we expect Members of the Assembly to do likewise. I then said that perhaps matters would change in the fullness of time. The Assembly would have to make decisions of that sort on a cross-party basis. Clearly, we do not set in concrete all aspects of the way in which the Assembly is to operate. What we are saying is that, here and now, the Good Friday agreement is a test by which we judge these particular actions.
In the light of the undertaking given some minutes ago by the Minister to reconsider these matters, and particularly Amendment No. 115A, I beg leave to withdraw the amendment.
Amendment No. 115A, as an amendment to Amendment No. 115, by leave, withdrawn.
On Question, Amendment No. 115 agreed to.
5 p.m.
moved Amendment No. 116:
After Clause 43, insert the following new clause—
Review Of Impact Of Act On Functions And Composition Of Parliament
(". The Secretary of State shall publish, within 12 months of the passing of this Act, a review of the impact of this Act on the functions of Parliament in relation to Northern Ireland and on the representation of Northern Ireland in the House of Commons.").
The noble Lord said: this amendment allows us to raise our heads from the details of the agreement on the new mechanism to be set up in Northern Ireland, the Assembly etc., and look to a more underlying and long-term matter; namely, the English dimension to all of this, otherwise known as the West Lothian question. Trafalgar Day is an excellent day on which to discuss such a matter. I do not know my ancestry in as great detail as many Members of your Lordships' House know theirs, but all the ancestors that I know of are English, and I am a vice-president of the Royal Society of St. George, so at least in this matter I start from that standpoint.
I believe that the West Lothian question will come back to haunt us over many years if we do not answer it. It asks what is to happen to another place when substantial powers are transferred away from this Parliament to devolved institutions in other parts of the United Kingdom.
There was a time, not long ago, when substantial powers rested with Stormont as far as Northern Ireland was concerned. What we now know as the West Lothian question was answered in 1920 by a proportionate reduction in the number of Members of the Westminster Parliament elected from Northern Ireland. There were originally 13 constituencies in Northern Ireland, one university constituency and 12 of the conventional kind. Later the university constituency disappeared. Northern Ireland had about two-thirds of the number of Members of Parliament to which it would have been entitled had its representation been on the same basis as that of England. This satisfactory and undisputed response to what we now call the West Lothian question existed until very recently. However, that was an answer to the question when the only devolved part of the United Kingdom was Northern Ireland. We are now moving into a new situation in which Scotland and Wales matters, as well as Northern Ireland matters, will be devolved, though to different extents, from Westminster. That makes the question both larger and more difficult to answer.
The Government seem so far to have taken the view on the Scotland Bill and in other pronouncements that there is no answer to the West Lothian question and that they will ignore it and hope that it will go away. I do not believe that it will go away. I believe that, on the contrary, it will grow in importance as time goes on and as English people see a substantial number of Scottish, Welsh and Northern Irish Members of Parliament voting in Westminster on English matters when English Members of Parliament no longer vote on those matters when they are devolved to other parts of the United Kingdom.
One possible way to answer the West Lothian question is to follow the Stormont route and reduce the number of Westminster Members representing Scotland, Wales and Northern Ireland to a proportionately lower number given the population of those three countries in comparison with the population of England.
Another way to answer it is the so-called in-and-out way whereby Members representing constituencies in Northern Ireland, Scotland or Wales would not vote on English matters where those matters are devolved as far as Northern Ireland, Scotland or Wales are concerned. That is an extremely complicated way. It appears to be the way favoured by Mr. Tam Dalyell, who has said that, if the Scotland Bill goes through in its present form, he will abstain when English matters which are devolved as far as Scotland is concerned are under discussion. That is his answer to the West Lothian question, which he himself posed in such a strong manner a few years ago.
There are difficulties with the in-and-out solution. Who will decide which Bills are solely English Bills and which Bills affect other parts of the United Kingdom? In future there will be some Bills which affect England only, some that affect England and Wales, some that affect England, Wales and Scotland, some that affect England, Wales and Northern Ireland, and some that affect other possible combinations, because some powers are to be given to the Northern Ireland Assembly which are not to be given to the Scottish parliament and vice versa, and the Welsh Assembly seems to have less powers than the others. It would therefore be an extremely complicated system to try to run. In addition, it would lead to problems for the Government if they had a different position as regards their majority in another place on some matters but not others and would lead to great difficulty as between departments. That answer to the question is, therefore, not an easy one.
An answer apparently favoured by my noble friend Lord Baker is that there should be an English parliament in addition to the devolved assemblies about which we are talking. I believe that that answer, too, has great disadvantages and would lead to a federal constitution for the United Kingdom as a whole. That is not an easy answer, therefore.
However, we are not looking for a perfect answer, because there is not one. I believe that, had there been a perfect answer, we should have been able to go along that route a long time ago. I believe that we are looking for the least bad option. Above all, I believe that the Government must address this question, because it will not go away. It will be of increasing importance as the years go on and the situation of English Members in another place becomes ever more apparent as the population sees what is happening. I fear that this is just one aspect of this process, particularly in regard to Scotland and Wales, that heads towards a break-up of the United Kingdom, which I would not want to see. I believe that all parts of the United Kingdom, as presently constituted, gain strength from one another, and I wish to see it continue in its present form. But the West Lothian question will have to be addressed by the Government at some point and will have to be answered by the Westminster Parliament. I beg to move.
Although I usually agree with the noble Lord, Lord Cope, on Northern Ireland matters, I cannot do so on this occasion, although I strongly agree with him that the West Lothian question is extremely important and must be answered soon. The main reason why I cannot agree with the amendment is that there is no corresponding clause in the Scotland Bill. Scotland is to have approximately the same degree of self-government as Stormont had before 1972, yet there are no plans to reduce Scotland's representation at Westminster to Stormont levels, which would give Scotland only 39 or 40 seats. Instead, Scotland will be brought into line with England and Wales, albeit far too slowly, reducing Scottish representation to no fewer than 57 or 58 seats in the other place. As the Northern Ireland Assembly will have far fewer powers than the Scottish Parliament will, having no powers over criminal matters, for example, there can be no case for reducing the Province's representation at Westminster.
My noble friend Lord Cope has raised a very important matter and has justifiably put it into a wide context. I should welcome the co-operation of the noble Lord, Lord Molyneaux, on this matter. He and I served on a committee of the other place which had to consider how Northern Ireland was to be represented there after the Stormont Parliament and Government were brought to an end. The Bill is not changing that matter. Northern Ireland will have its own Assembly and will be very fully represented in the House of Commons.
As my noble friend has said, it is right that within a reasonable time of the Assembly coming into operation Parliament should consider the question of the representation of Northern Ireland in the House of Commons. All of this is linked up with the West Lothian question. A number of my noble friends in this House and old friends who are no longer in Parliament who were Northern Ireland Members were very restrained when Parliament legislated on matters that did not affect Northern Ireland but the rest of the United Kingdom. That was very splendid of them. However, we do not know how it will work in future given the present representation. I cast no slur on the present representation of Northern Ireland in the Commons, but it may be that some of them will be overzealous. It is right that the Secretary of State should be under an obligation to report to Parliament as to how matters have gone. The broader point is that we are setting up a new kind of assembly which is different from the old Stormont Parliament and is necessarily a little experimental. On the advice of the Secretary of State we should take cognisance of how the new Assembly is working. I therefore hope that the Government will give a favourable response to the argument put forward by my noble friend whether or not they decide that his amendment is the best way to meet the case.I shall not detain the Committee for very long. Perhaps I should say a word or two particularly as the noble Lord, Lord Renton, referred to the exercise that led to an increase in the number of constituencies in Northern Ireland. Like him, I also served on the Speakers Conference, as my noble friend Lord Fitt has reminded me. The West Lothian question appears to emerge at points that are convenient to those who have little representation in the areas that may benefit, but the fact remains that for a considerable part of the past quarter of a century the country has been seen as being governed from the south-eastern corner of England. Those in Scotland, Wales and Northern Ireland, and those whom I represented in Yorkshire, have felt increasingly divorced from the administration and capital in the south-east. For that reason there may well be an argument that if democracy is to continue and the sense of "country" is to develop and be maintained, there may be a case for over-representation. I do not say that this should apply for all time or that it should be cast in stone, but if people are to retain confidence in their community, society and government that consideration should be borne in mind.
A moment or two ago I was reminded by my noble friend Lord Walker of Doncaster that the previous administration was not averse to persuading the noble Lord, Lord Molyneaux, and some of his colleagues to go into the Lobby with them on issues that had very little to do with Northern Ireland. We heard very little about the West Lothian question in that context. I hope that the noble Lord, Lord Cope, and his noble friends accept that while these matters may not be permanent or eternal, there must be a modicum of flexibility to enable this Bill successfully to complete its passage through Parliament.5.15 p.m.
The noble Lord opposite has missed a cardinal point. The previous administration governed a United Kingdom. In those circumstances it was a unitary state. If, as has happened since the war, there is a left wing or Labour Government imposed on the rest of the United Kingdom by over-represented Wales and Scotland it does not matter. It does not matter in the slightest if those who live in the south-east have imposed on them a government of which they do not approve. In a unitary kingdom that is perfectly reasonable. I agree with the noble Lord that the further away one is from the centre of things the stronger the case for over-representation. In a unitary state that does not matter.
The difficulty arises—it is more difficult in Scotland than in Northern Ireland—where one has the slightly ridiculous situation in which the Labour Party forbids anyone to vote for it and will not put forward candidates in Northern Ireland. Therefore, all that the Northern Ireland MPs can ever do is represent a small interest in what is in effect parish council politics. I believe that that is extremely unhealthy for Northern Irish MPs. I should like to return to the days when Prime Ministers represented constituencies in Ireland as they did in the early part of the 19th century. I believe—I may be wrong—that at the time of the corn laws Peel represented Trim or somewhere like that. Those Members represented Irish seats after the Act of Union. I do not mind that. If I were an MP and my base was such that I had only a Northern Irish view, I would not feel that I was participating sufficiently in the whole of the United Kingdom. It is a disgrace that both my noble friends on the Front Bench and the not quite so friendly noble Lords on the other side of the Chamber should forbid people to stand either as Conservatives or Labour Members of Parliament for County Down, Fermanagh or South Tyrone. There is another incredible danger arising from the West Lothian question. For the sake of argument, let us assume that after the next election there is a Conservative majority in England but a Labour majority in the rest of the United Kingdom. That is perfectly fair in the unitary state. Let us assume further that the Tam Dalyells of this world do not vote on the question of English education and the Government of the day lose on a point that they believe to be important which gives rise to a vote of confidence. That vote of confidence in the Government of the whole of the United Kingdom will be imposed on the English by the Welsh, the Scots and perhaps even Northern Irish MPs, none of whom has the slightest interest in the education system in Biddlecombe-under-Frome in Bassetshire or somewhere like that. That is dangerous. We should also remember that one of the reasons why England has quite frequently revolted against its kings is that Irish troops have been used, for example, by Richard II, Charles I and James II. Macaulay refers to the Irish troop garrison in Southwark. That resulted from an imposition by outsiders on the English in this context. I concede that the Irish have every right to get cross about English troops in Shannon, Donegal and Munster. But the English unfortunately—I use the word advisedly—are the vast majority of those in the United Kingdom. The whole aspect of the Bill shows the haphazard, lackadaisical and ill thought out process in the mind of Her Majesty's present advisers to the constitutional change in the United Kingdom. They do not have the faintest idea of what they are doing or of the consequences. If I am not here in six months' time I shall still be moaning about their incompetence on the constitution. I have a feeling that that is exactly what will happen. It fills me with foreboding.We owe a great debt of gratitude to the noble Lord, Lord Cope, for putting down the amendment which has introduced into our rather pedestrian proceedings peals of constitutional thunder which have relieved us of our labours for the past 20 minutes or so.
One would have to have a heart of stone not to feel great sympathy for the noble Lord on the Conservative Front Bench, agonising about these constitutional issues and torn between being a member of the Conservative and Unionist Party and an English nationalist party, knowing that the logical conclusion is federalism but also that thanks to the noble Baroness, Lady Thatcher, federalism has become an "f' word not to be used. He may yet find himself with the noble Lord, Lord Baker, in a federalist position—a position adopted by this party for a long time. However, I shall not detain noble Lords on that subject. Is the Minister aware that the House of Commons Select Committee on Procedure has already set in hand a review of the interrelationship of legislation in the Assembly and the Westminster Parliament? I think I am right in saying that the Northern Ireland Assembly has set up a committee to feed into that process. At a more practical level, will that not in part deal with the purpose of the amendment tabled by the noble Lord, Lord Cope?It does not seem to me unreasonable that there should be a review after a year of the impact of the legislation. I entirely accept what the noble Lord, Lord Holme, said. Some provision may be in hand to produce a result. But with the creation of the British-Irish Council and a number of other bodies with which we shall be constantly interacting internationally on the affairs of Northern Ireland, we should derive benefit from having Irish Members sitting in the House of Commons who will be conversant with the day-to-day problems.
I recognise that the Assembly will have its own important part to play. But it does not seem unreasonable that after a year stock should be taken of the impact of this entirely new world which we are entering as regards the Irish political scene: that we should have a review and consider the result.It is true that in former times there was some misunderstanding over the attitude of my party. In self-defence I can only say that as a party we tended to vote on the merits of the item before us. Under my reign, we tended to incur the displeasure of people who criticised me for keeping, first, a Labour Prime Minister in power for two years, and, later, a Conservative Prime Minister in power for two years longer than might otherwise have been the case. When I was asked at that time, usually every week, "When will you bring down the Government?"—of whichever colour—I had this formula, which I think I repeated in my sleep occasionally: "Provided that Her Majesty's Government are governing in the best interests of the United Kingdom in general and Northern Ireland in particular, we see no good reason for terminating the life of this Parliament prematurely".
I had not intended to contribute to this debate but I have been stimulated by comments from many noble Lords. I wish to keep on the right side of the noble Lord, Lord Cope. Now that he has raised the standard of St. George, there is the danger that if we annoy him too much he may take England out of the United Kingdom. London is almost certainly bound to go when Ken Livingstone is elected! When the 1978 Speaker's Conference was set up by the Callaghan Government, the late Enoch Powell and at least three noble Lords at that time avoided pressing a case for representation on the scale of Scotland. Without great difference of opinion, we decided to opt for the same scale of representation as Wales rather than Scotland. We saw the possibility in the future that Scotland would be given a form of devolution, perhaps leading to home rule, or perhaps independence. We in Northern Ireland did not want our scale of representation thrown into that melting pot. Looking with hindsight, I believe that we were probably prudent to do so. The Speaker's Conference report referred to 17 or 18 members, as the Boundary Commission thought fit. In mentioning the word "fit", perhaps I may say that the noble Lord, Lord Fitt, wanted even fewer members—ideally none! We should like to consider the establishment of a Select Committee for what I would call the devolved regions of the United Kingdom. I am glad to be reminded by the noble Lord, Lord Holme, that steps are being taken to study the impact of devolution on other parts of the United Kingdom, I hope including Northern Ireland. Given that for the time being the United Kingdom Parliament remains the sovereign Parliament and Government of the United Kingdom and will be responsible for a great many of the matters of importance throughout the United Kingdom, it seems sensible, practical and workable to have a Select Committee considering the relationship between the sovereign Parliament and the three new devolved assemblies and government.The noble Lord, Lord Cope, has opened up a can of worms. If I were to go into reasons for an increase or decrease of seats in Northern Ireland it would throw the Government Front Bench into the frenzy of a nervous breakdown. The only people who would be more concerned about that would be the Members of Parliament in another place representing Northern Ireland constituencies. Any diminution in the number of their seats would have an effect on them. Whatever may be said in public. I do not think that anyone wishes to see a diminution in the number of seats. Two Northern Ireland MPs at present do not attend—Gerry Adams and Martin McGuinness. Whatever decision may be taken, I do not think that Northern Ireland representation will have any effect on the complexion of a British Government for the next 10 years. It is highly unlikely that Northern Ireland MPs can decide what the complexion of the government will be.
My noble friend Lord Hardy, the noble Lord, Lord Renton, and others—many are here as colleagues—attended the Speaker's Conference in 1978 under the chairmanship of the then Speaker to decide whether there should be an increase in the number of seats held by Northern Ireland constituencies. In one of my usual roles in politics in Northern Ireland, I was in a minority of one. I said month after month that there should be no increase. Everyone else—Labour, Conservative and Liberal Members—said that there should be an increase from 12 to 17. When Stormont came into being on the partition of Ireland in 1920, it was given certain devolutionary powers. It was in control of health, social services, housing and employment—all the issues which affected the everyday living of people in Northern Ireland. I remember when I first came to Westminster in 1966 running in and out of the Table Office, as it was then, trying to put down Questions on Northern Ireland—about housing, jobs, discrimination and social deprivation—and continuously being told, "They are matters for the Northern Ireland Parliament and cannot be dealt with at Westminster". I was told that all I could talk about here was defence and financial matters. I had a very frustrating time trying to break the convention— and it was only a convention; there was nothing legal about it—that one did not discuss matters which had been reserved to the Northern Ireland Parliament. In 1972, the Speaker's Conference was set up on the abolition of Stormont. Sure enough, the Unionist Party, as it was then, under the joint leadership of the noble Lord, Lord Molyneaux, and Enoch Powell, used all their political guile—particularly Enoch Powell—to keep the Labour government in power until they had what they wanted: the Speaker's Conference. I remember the day it was set up and seeing the names of those who would be members. Martin Flannery, a Sheffield MP, said to me, "You would be as well not going there. They're going to increase the number of seats". We knew before the conference had even met or deliberated that there would be an increase in the number of seats from 12 to 17. I thought that the additional seats would go to my opponents in the Unionist Party. As it turned out, they did not; some of them went to the SDLP. If there were to be any diminution in the number of seats there would have to be a re-drawing of the boundaries. In Northern Ireland, boundaries for local government and parliamentary elections are drawn far more frequently than anywhere else because they have to take into account where the Catholics, the Protestants and the Sinn Feiners live and sometimes where Alliance Party supporters live in Cherry Valley and North Down. All those factors must be taken into account when drawing the boundaries. At present, we have 18 seats, two of the Members not attending. I do not want to cause a revolution in Northern Ireland, but if the boundaries were re-drawn I would not be too sure about Gerry Adams and Martin McGuinness sticking by their pledge not to take up their parliamentary seats. That is a matter for them. If they will take advice from me—and they certainly will not—it is to take up their seats because, after all, they are elected by their constituency voters. Northern Ireland was given 12 seats. The way in which the boundaries were delineated in the run-up to the abolition of Stormont in 1972 almost assured that the Unionist Party held those 12 seats for the most part. As a result of the divisions which existed among the nationalists, there were always split votes which meant that the Unionists would always win. When I won West Belfast in 1966 it was a miracle and they thought that I was a man from Mars. The Unionists could not believe it, but I won it and held it for five elections. The amendment tabled by the noble Lord, Lord Cope, provides that the Secretary of State for Northern Ireland should have a say in whether or not different issues would have arisen with the involvement of the Assembly. That would not be a matter for the Secretary of State for Northern Ireland; it would be for the Prime Minister of the day to decide whether to change their representation. The Secretary of State should not have the authority to decide. Although I see the ramifications of introducing the West Lothian question into Northern Ireland, I do not believe that Northern Ireland representation will have any effect on representation at Westminster or the complexion of the Government for at least 10 or perhaps 20 years.
5.30 p.m.
The House is full of temptation this afternoon. There has been temptation to discuss the West Lothian question, temptation to discuss Labour Party or Conservative Party representation in Northern Ireland; temptation to discuss the constitutional changes in this country with the Scottish parliament, the Welsh assembly and so forth; temptation to discuss the thesis of the noble Lord, Lord Molyneaux, about supporting the Government or not; and even temptation to discuss English devolution. I shall resist all those temptations—perhaps they are for another day—because they go way beyond the amendment before us.
Of course we will all watch what the Assembly does. We will be fascinated by how it works. The noble Lord, Lord Cope, and I have seen it and I am sure that your Lordships will be interested to see how it proceeds with its deliberations. The intention behind the amendment is apparent; namely, in the wake of the Bill being passed to examine whether there is a case for modifying the functions of the Westminster Parliament in relation to Northern Ireland and altering Northern Ireland representation at Westminster. While we understand the thinking underlying the amendment, the Government would not wish to commit themselves on the face of the Bill to completing and publishing such a review within 12 months of the Bill being passed. Under the Belfast agreement, the Government are committed to carrying out a general review of the arrangements following devolution, including the details of electoral arrangements and of the Assembly's procedures. But it surely makes more sense for any such review to take place only after the devolved institutions have bedded in. We need a little more time and do not wish to provide on the face of the Bill that the review process shall be carried out within 12 months. I believe that Members of the Committee will agree. Nor am I sure whether the Secretary of State for Northern Ireland is necessarily the best person to carry out the review. The noble Lord, Lord Holme, has already referred to the Procedure Select Committee of the House of Commons, which has already commenced a review of the impact of devolution in general on working practices in Westminster. I suggest that that might be the most sensible forum to discuss many of the issues which noble Lords have raised today. A Select Committee for the devolved regions of the United Kingdom has been suggested. Again, that is a matter for the other place, but a forum where such deliberations could well take place. As regards Northern Ireland representation in Westminster, there are no plans to reduce it. Unlike Scotland, Northern Ireland is not over-represented. The legislation provides for between 16 and 18 constituencies, with 17 as the optimum. The Boundary Commission recommended 18 constituencies, the basis on which the 1997 election was fought and on which the election arrangements for the assembly were founded. The average size of constituency in Northern Ireland is 66,000, not far off the English average of just over 69,000 and a lot higher than that for Scotland of 55,000. So on an arithmetic basis, there is no case for considering changing the number of constituencies in Northern Ireland. However, there are a number of other reasons why Northern Ireland Members of Parliament at Westminster will have a significant role to play. Initially, as your Lordships are aware, important powers relating to criminal law, the police and prisons will remain at Westminster. Northern Ireland Members will rightly have a close interest in such issues. Indeed, I believe that Parliament will not wish to take a complete hands-off attitude to the Assembly and I am sure that people in Northern Ireland will welcome the close interest and support of the rest of the UK in the path on which they are embarking. Furthermore, there may be many politicians, particularly on the unionist side in Northern Ireland, who would not wish to have their significance reduced to a lower representation in this Parliament. Finally, Parliament will continue to have a role in legislating for Northern Ireland in a number of respects. For all those reasons, I believe that it is right and proper that Northern Ireland parliamentary representation in the other place should continue. Indeed, I believe that there is no need to set on the face of the Bill a review in a year's time. The Government are already committed to carrying out such a review when it is most appropriate.Before my noble friend replies, will the noble Lord bear in mind that it is not good enough to leave it to chance as to whether the Secretary of State will express her views to Parliament about how the Northern Ireland Assembly has worked? Is it not better that she should be asked to review the matter and let Parliament know the conclusions?
Under the Belfast agreement the Government are committed to carry out such a review. That is a firm commitment. But we do not consider it appropriate to conduct such a review within 12 months. We should consider the most appropriate time when we know how the Assembly is working. I am sure that is the way in which most Members of the Committee would wish us to proceed.
Before the noble Lord sits down, perhaps I may refer to something he said which started an alarm bell ringing in my brain. He said that Parliament will take a very close overview of the Assembly. Perhaps the noble Lord can elucidate. I got the impression that that remark implied that if Her Majesty's Ministers did not like what the Northern Ireland Assembly did, irrespective of what the Assembly thought it was going to do, Ministers would overturn it without a justified fiat. Is that the case?
No, that is not the case. I do not believe I said that. I certainly did not intend it. In a general sense I believe that Parliament will show a great deal of interest in the way in which the constitutional changes in this country take place and how they are working out. I am sure that Parliament will want to discuss such matters at intervals. It may be that the Select Committee of the other place will wish to keep such matters under review. That is all I meant.
This is a matter of tremendous importance. I have already spoken of the convention which existed between 1920 and 1972 when it was impossible to ask questions about specific subjects over which the Stormont Parliament maintained control. These were unemployment, housing, health and social services and all the myriad issues under its control. That meant that one could not ask questions at Westminster because those matters were reserved to the Northern Ireland Parliament. When the Northern Ireland Assembly is set up, will a new convention be created or will we still be able to ask questions at Westminster about health, social services and all the other issues that are to be taken over by the Assembly? Will a new convention be set up to the effect that these matters cannot be talked about because they are for the new Assembly?
I do not believe that it is up to the Government to say what issues should be discussed either in this House or the other place. It is a matter for those responsible for the procedures of this House and the other place to decide what may be debated. At this stage I would not wish to suggest a new convention—far from it.
I am sorry to return to the issue. Of course it is for the Government to say what they will answer for in relation to the powers they have over the subjects of the Queen and of the United Kingdom. One cannot just say, "We do not know whether we are going to answer questions on this or that". That is slaphappy to the degree of irresponsibility.
Perhaps I may help the noble Lord, Lord Fitt, before the Minister replies. The noble Lord has raised a very interesting point and I would like to enlighten him about precedents. When I came to the other place in 1970, for two years I could do nothing but ask questions about defence and taxation. For some reason I could also ask questions about the obscure issue of imperial pensions, whatever they were. Then the shutters came down when Stormont was abolished and everything was returned to Westminster.
It will be of interest to the noble Lord, Lord Fitt, that in 1974–75 the power-sharing executive was installed. Immediately that body took effect and began its work, the day after I returned with my usual questions on agriculture, education and everything else, the young Clerk in the Table Office said, "I am sorry, you have to address that particular query to Mr. Faulkner or Mr. Fitt, who are now in charge".5.45 p.m.
Perhaps I may repeat what I said earlier. The House of Commons Procedure Committee is considering many of these matters. I believe it is prudent for us to see the outcome of its deliberations before asking any one else to pronounce on how we might go forward.
We have had an interesting debate on this question. At one point I thought we were eavesdropping on a meeting of the Speaker's Conference old comrades association. That is one of the wonders of this House. The experience which has been on show in the past few minutes of this debate has been valuable to us.
I shall respond to some of what has been said without attempting to reply to the whole debate. The noble Lord, Lord Monson, suggested that my amendment should have been drawn in wider terms to cover Scotland. I tried to do that, but the Long Title of the Bill confines the issue to Northern Ireland matters. That is why the amendment is drawn in a rather narrow form. The noble Lord, Lord Hardy, suggested that I was trying to hold up this Bill as a result, but the amendment does not do that. It asks for a report in 12 months time. It does not hold up the Bill or the whole process of setting up the Assembly. The amendment asks for reflection on the matter. My noble friend Lord Onslow suggested that the Conservative Party as well as the Labour Party somehow forbade candidates standing in Northern Ireland. That is not so. On the contrary the Conservative Party produced candidates but, I have to admit, without any great degree of success. Nevertheless, they had my support on occasions, and perhaps that is the reason they were not successful. They stood as Conservatives for Parliament and local government as well, and may they continue to do so with increased success in the future. The noble Lord, Lord Holme, accused me of being frightened of federation on account of that word. That is not so. But I believe that a federation that consisted of England, Scotland, Wales and Northern Ireland would be very unbalanced. That is why I do not believe that to be a very attractive route. The question which underlies all this is what is going to happen in respect of the West Lothian question. I was careful not to advance a single answer to it, but several for the Committee to choose from, as it were. My intention was to put the question in the Northern Ireland context, and that has been achieved. Whether or not we were able to carry an amendment of this character, we shall all have to return to this matter, including the Government and the Secretary of State. Perhaps I should have included the Prime Minister in the amendment instead of the Secretary of State, as the noble Lord, Lord Fitt, suggested, because inevitably he will be drawn into the issue. This matter will not only affect Northern Ireland, but the answers to the West Lothian question as regards Scotland will affect Northern Ireland. There is no getting away from that, because one hinges on the other. It is a very difficult question. As he said, the Minister resisted temptation. He said that there were no plans at this time, but the Government will have to review the matter both in the context of the Belfast agreement in specifically Northern Ireland terms and also in response to the Select Committee in another place and public pressure as time goes on. In those circumstances, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
moved Amendment No. 116A:
After Clause 43, insert the following new clause—
Grounds Of Stormont Estate
(" . The grounds of the Stormont Estate shall only be used for events other than those authorised by resolution of the Assembly where permission has been granted by the Northern Ireland Assembly Commission.").
The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 194 to 199, which also stand in my name and refer to Clause 75. In so doing let me declare an interest. Some Members of the Committee may be aware that in June this year I was elected to the Northern Ireland Assembly as a Member for the East Belfast constituency in which the Stormont estate is situated. Therefore, unusually for a Member of your Lordships' House, this is a matter which I can regard personally as a constituency matter.
After my election I was appointed initial Presiding Officer of the Assembly. As such I feel that it is inappropriate during my tenure of that office to speak in your Lordships' House on issues which might be contentious in Northern Ireland or which are or may become the responsibility of the Assembly.
As initial Presiding Officer, I am also chairman of the shadow Assembly Commission, a body analogous in a designate form to the Commission of the other place. The purpose of tabling these probing amendments—their rather inelegant construction, particularly Amendment No. 116A, reveals them as probing amendments—is at the request of my colleagues on that Assembly Commission. Let me explain to the Committee why I do so.
First of all, I must set out the background to the concerns. One of the first acts of the Northern Ireland Parliament in 1921, when it was established, was to look for a site for the new government buildings. The site at Stormont on the outskirts of Belfast was chosen and Parliament Buildings erected, at a cost to the Treasury on this side of the water, as a gift from the rest of the United Kingdom to the people of Northern Ireland, and opened in November 1932. The land and estate were transferred under the Stormont Regulation and Government Properties Act 1933 to the Northern Ireland Ministry of Finance to be held, retained and used for the accommodation of Parliament and public departments.
In those days the notion of Parliamentary Commissions established as bodies corporate was not envisaged. Indeed, it was almost 50 years later when the House of Commons Commission was established. This Bill and the Scotland Bill make provision for the establishment of relevant commissions for the newly devolved bodies. It is surprising therefore that the old system of vesting ownership in a government department is contained in the Bill. It is even more remarkable, as Erskine May points out, that since 1992, as a result of a report by Sir Robin Ibbs, each House of this Parliament takes full responsibility for managing its
own internal administration. This involved in particular taking over from the Department of the Environment responsibility for the maintenance of the fabric of the Palace of Westminster and the Parliamentary estate. In other words, the maintenance, repairs, works services and all matters which were previously the responsibility of the Department of the Environment have come directly within the responsibility of the House of Commons Commission and are borne on its vote. It is remarkable that, given this development, the Bill takes the retrograde step of vesting the responsibility, the ownership and the management in the hands of the Department of the Environment, not in the hands of the Assembly Commission which the Bill establishes. Furthermore, the Bill establishes it as a reserved matter of the Department of the Environment—in other words, although changes may take place in Northern Ireland there is nothing that the Northern Ireland Assembly can do to address this matter subsequently.
Other matters follow. There has been no decision yet on whether there will be a Department of the Environment in Northern Ireland, as Members of the Committee will know. It is for the First Minister and Deputy First Minister of the Assembly to put forward a report to the Assembly on the number, type and form of departments that there might be, and for the Assembly to vote on the issues. There is a real question as to whether the current Department of the Environment in its present form will continue or whether it will be divided up into a number of departments. If that were to be the case—and it is not altogether an unlikely scenario—then the Assembly could not regulate for the placing of the responsibility for this matter in one of the new elements of the Department of the Environment because it is a reserved matter. It could legislate for a change of department. It could legislate to get rid of the Department of the Environment. But it could not deal with one of the responsibilities of the Department of the Environment.
Furthermore, planning permission in Northern Ireland—unlike the situation on this side of the water—is not a local government matter. On the issue of the prime site, in political terms, in Northern Ireland, the ownership of the site would be vested in the Department of the Environment; any development of the site would be with the Department of the Environment; any planning permission required would be with the Department of the Environment; and even in respect of its consideration as an historic building, the historic buildings branch of the Department of the Environment would have the decision. No other government department and no other level of government in Northern Ireland would have the capacity to monitor what was happening on that site.
In the new system of government for Northern Ireland there is no collective Cabinet responsibility. Ministers will be elected in proportion to the number of Members they have in the Assembly. There is no necessity—and some would even speculate little likelihood—for collegiality among all the Ministers. It is therefore quite possible that the estate, the very seat of government in Northern Ireland, could become a matter of internecine squabbling and dispute between the Minister of the Environment, if such there continued to be, and other members of the Executive with whom he or she might disagree. That is a completely inappropriate eventuality but one that it is not entirely difficult to foresee.
It therefore seems to the shadow commission, of which I am the chairman—and let us not forget that the shadow commission has been elected on a cross-community basis by the Northern Ireland Assembly—that it would be much better if the whole estate were to come under the ownership of the commission after the appointed day, although some elements of its use and management might be delegated to a relevant government department.
One further issue causes unease among my colleagues on the commission and Members of the Assembly. Under Clause 75 the Secretary of State is empowered to require the Department of the Environment to make available, for whatever purpose the Secretary of State may wish, any accommodation or facilities—other than the Parliament Buildings—within the Stormont estate. The shadow Assembly Commission is wholly supportive of the view that the Secretary of State should have accommodation for herself, her staff and her colleagues, and all that is necessary, on-site. Of this there is absolutely no question. It is vital for the functioning of the new arrangements that the Secretary of State, the new Executive, the Assembly as a whole and relevant civil service departments are in close proximity to each other.
However, the Secretary of State has also shown that she has an interest in holding rock concerts and other open-air events in the parliamentary estate. Some of these—such as the recent Elton John concert—are excellent. They are welcome, successful events. But the fact that any successor to the current Secretary of State may—without any prior consultation with the Assembly or its commission—simply require the Department of the Environment to make available any accommodation and facilities, temporary or permanent, has created a degree of uneasiness in the shadow commission.
It is clear that there could easily be a conflict between leisure activities going on outside on the front lawn of Stormont and parliamentary and government activities going on inside. Some of your Lordships might say that this is simply Assembly Members insisting that if there is entertainment to be provided they should have exclusive propriety over providing the entertainment. But it is much more serious than that. People who live in the area have concerns about what happens on the estate. Both they—my own constituents, people in the area—and the Assembly Members would be astonished if the Northern Ireland Assembly did not have any say about what went on in the grounds of their own Assembly building.
As I have noted in correspondence to the Secretary of State, I am sure there is bound to be a way in which all the interests can be accommodated. Much more difficult and controversial matters have been accommodated in other agreements that we have reached. I have no doubt that this matter can be resolved, too. I very much hope that in his reply the Minister will be able to clarify the matter in a way that the Bill manifestly does not. That is the purpose of these probing amendments. I beg to move.
6 p.m.
I am sure we would all agree that if the Assembly is to gain respect as a governing body it is surely right and proper that the standing of the estate should be restored, particularly in the aftermath of certain carnival events in the grounds. I wonder how the curtilage of what the noble Lord referred to as the whole estate is defined. Would Stormont House and Stormont Castle be included, or would that perhaps have the effect of downgrading the Secretary of State for Northern Ireland as a tenant?
I have a good deal of sympathy with the amendments spoken to by the noble Lord, Lord Alderdice. In the course of describing the role, as planned, of the Department of the Environment in its various guises, the noble Lord revealed what not everyone in Great Britain has appreciated over the past few years. I refer to the extent to which direct rule has been very direct and very complete. Until now, under direct rule, the Department of the Environment has had all those powers.
Like the noble Lord, Lord Fitt, I hesitate at the phrase "the whole Stormont estate". It does not seem to be logical or very wise that Stormont Castle, Stormont House and the government buildings that lie below them should be included in the part to be controlled by the commission. But it does seem that the commission has a good case for controlling Parliament Buildings itself and the main part of the fine grounds, down to the two entrance lodges, particularly as Amendment No. 116A refers to controlling events which may occur on the terrace in front of Parliament Buildings. I have occasionally attended events there—band concerts by the RUC and so on—with great pleasure. It is a wonderful setting for such events and I hope that they will continue. However, it should be, I am sure, the commission in future which gives permission and makes the arrangements for such events to happen from time to time when possible, rather than the Department of the Environment, if such a department is set up. The noble Lord, Lord Alderdice, has put his finger on an important matter. I trust that the Government will be able to respond at least fairly favourably.I rise only to say that the Department of the Environment has no say in what happens in West Clandon village hall; it has no say in what happens in Guildford town hall; and it has no say in what happens in Surrey County Council. It seems rather odd that it has these draconian powers over Stormont. If I were from Northern Ireland, I would be very cross about it.
It is a pleasure to have the noble Lord, Lord Alderdice, back with us. I appreciate the constraints under which he will make contributions in the House in future. Nevertheless, it is good to see him here today. On the last occasion I saw him he was presiding over the Assembly, and he did that very effectively.
I assure the noble Lord, Lord Alderdice, that there is no intention on the Government's part to interfere with the right of the Northern Ireland Assembly, through the Northern Ireland departments, to control and manage all government property in the transferred field. For example, we intend to table an amendment to paragraph 1 of Schedule 3 to limit the reservation of government property to that property which belongs to Her Majesty in right of the Crown, or which belongs to a department of the Government of the United Kingdom, or is held in trust for Her Majesty for the purpose of such a department. All other property of the Northern Ireland departments will become a transferred matter, thus avoiding what could have been an undesirable fetter on the Assembly. We shall return to this point later. Clause 75 deals with property held in trust or used for the purposes of the previous Northern Ireland Assembly or partly for that purpose and partly for other purposes. This essentially refers to the Stormont estate, but that is actually held in trust for the purposes of the old Stormont Parliament and the public departments in Northern Ireland rather than for the previous Assembly. So the Government will be introducing an amendment to Clause 75 to put beyond doubt that the clause is intended to refer to the Stormont estate. The Assembly commission will be responsible for whatever property, staff and services are required for the Assembly's purposes. That will certainly include Parliament Buildings itself, but the commission will have no capacity to hold land for the purpose of the public service in Northern Ireland and can have no jurisdiction over those parts of the Stormont estate which are not required for the purposes of the Assembly. The clause vests control of such property in the Department of the Environment for Northern Ireland and makes clear that in future, subject to one exception, all such property shall be applied for the purposes of the Assembly or such other purposes as the department may determine. As the Department of the Environment will be accountable to the Assembly, that will give the Assembly fairly comprehensive control. The exception to which I referred is found in Clause 75(2), which provides that the Secretary of State may require the department to make available to him or to her any premises or facilities which fall within the scope of the clause except Parliament Buildings itself, subject to payment of such charges as the Secretary of State and the department may agree. The noble Lord, Lord Alderdice, acknowledges the likely need for the Secretary of State to have suitable accommodation on the Stormont estate. I am delighted to hear that he senses no widespread objection to that. It would facilitate the kind of close and constructive working relationship with the new institutions which the Government certainly want to develop. He expressed concern, however, about the implications of the word "facilities". I can assure him that the term was not included with any ulterior motive. It is the language of the equivalent provision in the 1973 Act and simply reflects the likely need for ancillary services to be made available to the Secretary of State along with any office accommodation he or she may require. I believe that the term should therefore remain in the Bill. However, I can give the noble Lord the assurance that the sole intention behind the clause is to enable the Secretary of State to obtain appropriate and convenient office accommodation and support services on the Stormont estate and that there is no intention on our part that the terms of the clause should be used to override the views of the Assembly on what should be the appropriate use of the Stormont estate as a whole. To do otherwise would fly in the face of the principle of devolution. Indeed, in general, I and my right honourable friend the Secretary of State would expect any arrangements made between the Secretary of State and the Department of the Environment to be reached by agreement following consultation and to be generally acceptable to all interested parties, including the Assembly. I trust therefore that, with those assurances, the noble Lord will feel able to withdraw his new clause.I am grateful to the Minister for his comments. I hope he appreciates that, with regard to accommodation for the Secretary of State, the noble Lord and his colleagues, staff, and so on, there is no sense of anything other than a welcome and a feeling that we all wish to work together.
However, there are some practical problems. The Bill states that Parliament Buildings is the only place that is exempt. I do not need to tell Members of your Lordships' House that when one comes to work in a building where one parks one's car is a rather important issue. It will be no surprise to your Lordships to know that, apart from the functioning of the Assembly chamber itself, office accommodation within the building and car parking space outside it are matters that have preoccupied myself and my colleagues considerably over the past few weeks. As the noble Lord, Lord Molyneaux of Killead, indicated, the question of curtilage is critical. According to the Bill, it is Parliament Buildings alone. Therefore, the Assembly commission will have no right to decide anything about who should and who should not use the car parking spaces immediately outside the building. In practical terms, we have been doing that, but there is a real question as to whether the Bill gives us the right to do so. When we move beyond that, we are immediately into the question of the driveways, as to who can park on them and who cannot, where and when. Indeed, there are questions of security. Just yesterday we were honoured to have a visit from the President of the Czech Republic, President Václav Havel. Recently we have had visits by President Clinton and the Prime Minister. It is of great importance that the Assembly commission should be able to make arrangements properly and decently for such guests. It needs to have some say over what happens in relation to the driveways; whether the grass is cut; questions of security and so on. And yet it is quite clear that we have no say in that. It must be done at arm's length through the Department of the Environment. Our experience of that department, whether recently or over a long period of time, is not such as to inspire us to believe that everything will be, as they say, hunky-dory in making sure that matters are all to rights. It would be quite possible to say that an element of the parliamentary estate—that portion which is not being used for other buildings which involves the driveways, the lawnways and so on which directly surround Parliament Buildings itself—could be identified and that portion of property which is entirely appropriate to Parliament Buildings and the functioning of the Assembly would come under the remit of the commission. That is not necessarily a complex business. Of course, there is the question of Stormont House, Stormont Castle and whether they may be appropriate settings for the new executive which will quite clearly need extensive accommodation outside of Parliament Buildings. In the past, when there was a Northern Ireland administration, it used Stormont Castle. Apparently it is undergoing renovations but in future there may be a wish to use the castle. Those are not specifically matters for the Assembly commission. The commission's concern is not just with Parliament Buildings but its surroundings—the car parks, drives, lawns, gardens and so on. Those are all matters which are associated directly with Parliament Buildings and would affect its functioning and its proper keeping in order. Those matters should be the responsibility of the Assembly commission. It is a complex legal matter which goes back to a number of Acts of the Northern Ireland Parliament and subsequently back to 1933. A number of the comments which the Minister has made about technical changes which he hopes to introduce in respect of Clause 75 and others are matters which the commission and I shall wish to study closely. There has been a reasonably full airing of these matters. I shall be content to withdraw the amendment but I shall reserve my right, on my own behalf and on behalf of the commission, to return to the issue at a later stage if we are not able to work out matters satisfactorily.I want to be as helpful as I am able to be. The reference to Parliament Buildings simply excludes the Secretary of State from making a request. It does not imply that the commission's writ is limited to Parliament Buildings. The commission is charged under Clause 22(4) with providing the property or services required by the Assembly. I hope that that goes some way towards helping the noble Lord.
The noble Lord's comment is extremely helpful because it opens up possibilities which we may be able to explore at a fairly early stage. He has opened up an extremely helpful door. We may be able to explore that with his colleagues and achieve a resolution which is satisfactory to us all. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 44 and 45 agreed to.
6.15 p.m.
Clause 46 [ Payments out of Fund without appropriation Act]:
moved Amendment No. 117:
Page 23, line 22, after ("three") insert ("working").
The noble Lord said: The aim of our financial provisions is to continue the tried and tested methods which have been in place now for more than 70 years.
The government amendments which I am moving are mostly technical. Amendments Nos. 117 to 122 tidy up Clause 46 which is designed, first, to enable the financing of public services to continue if the Assembly is unable to agree a budget by the end of the financial year; and, secondly, to encourage it to agree by the prospect of a substantial cut in the amount of money available for public services. There is a risk that the Assembly might not agree because the budget, in accordance with the terms of the agreement, is subject to a cross-community vote. I hope it is not a big risk. I am sure the Assembly will take its financial responsibilities very seriously. But it is a risk with this sort of voting and we need to make provision.
The noble Lords, Lord Cope of Berkeley and Lord Molyneaux of Killead, also address that contingency in Amendment No. 127 where they propose that the Secretary of State should fix the budget if the Assembly cannot do so before the end of the financial year. But I believe that their solution is wrong in principle because it would involve the Secretary of State in devolved matters which are not her responsibility and would provide an easy way out of an impasse for some members of the Assembly.
The default provision provided in the Bill, as amended, would enable the Department of Finance and Personnel to authorise up to 75 per cent. of the previous year's budget from the start of the financial year to keep public services running. If the Assembly still had not reached a decision by July, the Department of Finance and Personnel could authorise the expenditure of additional sums up to a total over the whole period from the start of the financial year of 95 per cent. of the previous year's budget. That cut in the amount of money available for public expenditure on default would act as an incentive to members of the Assembly to agree a budget on time while providing protection for essential services.
In Amendments Nos. 119A and 121A the noble Lord, Lord Cope, suggests that we should reduce the sums of money available to the Department of Finance and Personnel to 50 per cent. at the start of the financial year and 75 per cent. for the whole year. That would certainly be an even stronger incentive to the Assembly to agree a budget than our proposals. But I think ours are strong enough. The noble Lord's proposal would present a grave risk to the people of Northern Ireland if the Assembly were not to agree. I beg to move.
As the Minister said, I have tabled several amendments which are designed to make it more difficult for the Assembly if it does not agree a budget and hence to put pressure on it to agree a budget.
The Minister suggested that my proposal in Amendment No. 127 would be an easy way out; that is, giving permission for the Secretary of State to take over the budget if the Assembly fails to agree one. I had hoped that it would be difficult for the Assembly to give up its own powers, particularly over finance, to the Secretary of State. But I suppose that it could work either way. At one stage I had some experience, which is not irrelevant, when I had responsibility at the Treasury for agreeing the Community budget during the British presidency. We had an awful job to achieve agreement among all the necessary parties by 31st December. It is therefore within my knowledge that the European Union has a device whereby if it fails to agree, one-twelfth of the previous year's allocation can be released each month as time goes on. That obviously provides considerable difficulties for the administration and hence it is extremely keen to avoid that happening. However, it has happened in quite a number of years. We avoided it happening in the year that I was in charge of those matters. I would like the Committee to think that that was entirely due to my skill and ability but I had some luck on my side. Therefore, I succeeded, but not everybody has managed that. It seems to me that 75 per cent. and 95 per cent. are very high and not much of a penalty. It is not a penalty which would bite very quickly. I believe that 75 per cent. is nothing of a penalty to apply between March and July. I should imagine that they would have an awful job to get through 75 per cent. of last year's money in that period of time, and even 50 per cent. is not a very sharp instrument in that respect. Ninety-five per cent. for a whole year is of course a considerable incentive. A reduction of 5 per cent. is not easily obtained in public expenditure, but it does not apply for much of the year. I also suggest tightening that up, but I do not feel all that strongly about these issues. It is important that there should be a mechanism, and that it is provided in the Bill. I should like to see it a little stronger so as to encourage the Assembly to come to an agreement. However, unless I am encouraged by subsequent debate, I do not think that I shall be pressing the three amendments very hard.I think that the eventuality with which the government amendments and those of the noble Lord, Lord Cope, seek to deal is by no means unlikely. We could be faced with precisely this eventuality, so we are not talking about an academic problem but about a real problem resulting from the Assembly not having the political maturity to deal with its responsibilities properly. It is a possibility. We hope it is not a likelihood; but it is a possibility. I have to say that between the two ways of dealing with it I was glad to hear the noble Lord, Lord Cope, say that he was not too dogmatic about them. I quite take his point that the Government's penalties are not "front loaded" as it were, and in that sense do not act as a sufficient deterrent. However, given the choice between his method of dealing with it and the one that the Government are proposing, from these Benches we would support the Government.
I thank the noble Lord, Lord Holme, for his support. I should like to say to the noble Lord, Lord Cope, that a reduction of 75 per cent., which he suggested would not have that much impact for quite some time, could in fact bite fairly quickly, because the Assembly would very soon find that the departments in Northern Ireland were developing serious cash-flow problems; indeed, they might develop those problems within a month or two. So I think that it is a tougher sanction than perhaps the noble Lord suggested.
On Question, amendment agreed to.
moved Amendment No. 118:
Page 23, leave out lines 26 to 29 and insert—
("(a) the authorised officer of the Department of Finance and Personnel may, subject to any Act subsequently passed, authorise the issue of sums out of that Fund for the service of year 2; and").
On Question, amendment agreed to.
moved Amendment No. 119:
Page 23, line 31, at end insert—
("() The aggregate of the sums issued under subsection (1) for the service of year 2 shall not exceed 75 per cent of the total amount appropriated by Act for the service of year 1.").
[ Amendment No. 119A, as an amendment to Amendment No. 119, not moved.]
On Question, Amendment No. 119 agreed to.
moved Amendment No. 120:
Page 23, leave out lines 35 to 38 and insert—
("(a) the authorised officer of the Department of Finance and Personnel may, subject to any Act subsequently passed, authorise the issue of sums out of that Fund for the service of the year;").
On Question, amendment agreed to.
moved Amendment No. 121:
Page 23, line 41, at end insert—
("() The aggregate of the sums issued under subsection (2), and (where applicable) the sums issued under subsection (1), for the service of any financial year shall not exceed 95 per cent of the total amount appropriated by Act for the service of the preceding financial year.").
[ Amendment No. 121A, as an amendment to Amendment No. 121, not moved.]
On Question, Amendment No. 121 agreed to.
moved Amendment No. 122:
Page 23, line 42, after ("section") insert—
(""Act" means an Act of the Assembly or, in relation to any time before the appointed day, an Order in Council under Schedule 1 to the Northern Ireland Act 1974;").
On Question, amendment agreed to.
moved Amendment No. 123:
Page 23, line 44, at end insert—
("(4) Subject to subsection (5) below, the Secretary of State shall make such a payment at least once every financial year.
(5) No such payment shall be made unless the Secretary of State has laid before the House of Commons a statement certifying that the payment recognises the needs of Northern Ireland relative to the needs of the United Kingdom as a whole.").
The noble Lord said: I beg to move Amendment No. 123 and it has been suggested that it would be convenient to discuss Amendment No. 124 at the same time. Both these amendments address the question of how much money is going to go from the United Kingdom to Northern Ireland to enable the Assembly and the Executive to carry out their tasks. There is an expectation that if this whole process works as we hope and a more peaceful time comes to Northern Ireland, public expenditure can be reduced considerably within Northern Ireland.
Of course I go along with that to a certain degree. But it does concern me that the Treasury—whose ways we all know well—might take this as an excuse to advance too early on the Northern Ireland budget and try to save money that way. I shall not go into the difficulties which the Treasury faces at the moment as a result of the Government's economic policy, although one could go on for some time about that. We know that all governments at all times—and certainly the Treasury at all times—look, quite rightly, for savings in public expenditure, so they might look at Northern Ireland a bit sharply.
It therefore seemed to me that we should try to place some safeguards into the Bill to ensure that Northern Ireland got its fair share, even though that might be less than has been required in recent years when the security situation has been so difficult. Amendments Nos. 123 and 124 suggest two ways in which we might achieve this desirable end. I am reinforced in making the case for this by the fact that I have read, and heard about, reports that the Treasury was doing its best the other day to reduce the amount of money that was likely to be provided for redundancy for prison officers.
There may be nothing in this, and I am not necessarily asking the Minister to comment specifically on this case, but if the Treasury were trying to cut down the amount of money being made available to prison officers who have been made redundant, I think that would be a false economy. It should certainly not be regarded as part of the peace dividend. In the course of the past few years, prison officers have been among those, alongside the Royal Ulster Constabulary and others, in the front line of fighting terrorism. If we have now got to the position, partly as a result of the releases under the Belfast agreement, where in future we shall require fewer prison officers, it is my belief that those who no longer have a job in this capacity should be most generously treated.
That view is reinforced by what seems to me, and to many people, to be the generous treatment apparently being lined up for those prisoners being released. The comparison has already been drawn, and I need not emphasise it. At any rate, it is my view that Northern Ireland will continue to require a considerable amount of finance even if the, so-called, "peace process" goes ahead as smoothly, as easily and as fully as we would all wish. There will be a lot of winding down to do. There will be a lot of unemployment at the end of the peace process and there will be many deserving cases, as it were, who have been part of the security effort.
The economic situation within Northern Ireland is not such as to allow anybody to relax. The level of unemployment, and so on, is high and will get higher rather than lower initially if peace comes fully. For all these reasons, I have a great deal of sympathy with Northern Ireland continuing to receive a disproportionate share, by comparison with its population, of the funds available from United Kingdom taxpayers as a whole. Without any safeguards, I think the situation will be so much more difficult to resolve and will leave a lot of bitterness behind. It is with all those thoughts in mind that I advance these two propositions, which are intended to secure the funding of the Northern Ireland government in future upon a sound and, I believe, a generous basis.
6.30 p.m.
I am not a lawyer nor an accountant and I hesitate to go into too much detail in relation to the admirable case made by the noble Lord, Lord Cope. However, when one lives in Northern Ireland—in that I include the Minister, who does so for a great part of his time—one is aware of the hardships and difficulties which will, strangely enough, arise from the establishment of peace. Looking at this long-range from the Treasury point of view, one would imagine that the opposite might be the case. But I hope that the hand of Northern Ireland Ministers will be strengthened as the noble Lord, Lord Cope, as a former Treasury Minister has proposed. I recognise that generosity is not a speciality of the Treasury, but in this case it ought to look carefully, through the eyes of the natives, at the situation which will develop in Northern Ireland, not just for the remainder of this financial year, but, in particular, for the year beyond that.
Now that I fully understand the purpose of these amendments, which I confess I did not originally, I wholeheartedly support them. They are worded in such a way that it was not immediately apparent to me. I had the opportunity of speaking with the noble Lord, Lord Cope, beforehand and now understand that they are meant to keep the Treasury at bay. That is absolutely essential.
The economy of Northern Ireland has many assets but it is still precarious. There will need to be generous and enlightened support from mainland Britain and consistent support from the Treasury for some years to come. If the amendments do nothing else, I hope that they will allow the Minister, when he replies to this discussion, to make it clear that there will not be an early pre-emptive strike by the Treasury to try to claw back the peace dividend to Whitehall rather than leaving it in Northern Ireland where it can fructify.There is no need to stipulate that the Secretary of State shall pay money into the Northern Ireland Consolidated Fund every year. The Secretary of State is merely the vehicle through which the money for the fund is conveyed. It is the House of Commons which votes the money as part of the annual allocations.
The noble Lord, Lord Cope, proposes that there should be a special provision so that money will not go to Northern Ireland unless the Secretary of State certifies that it recognises the needs of Northern Ireland in relation to the needs of the United Kingdom as a whole. That is unnecessary. The money which goes to the Northern Ireland Consolidated Fund is allocated according to a formula which takes account of the financial requirements of all regions within the United Kingdom. It acts by applying Northern Ireland's broad population share (currently 2.9 per cent.) to changes in comparable Great Britain programmes. This formula has produced fair settlements for Northern Ireland and enabled the Secretary of State to determine spending decisions in accordance with Northern Ireland needs and priorities. The Government are committed to maintaining this formula for the foreseeable future. I hope, therefore, that the noble Lord will feel it unnecessary to press his amendment.If the Secretary of State is a vehicle for paying money voted by Parliament across to the Assembly, why do we need Clause 45? Clause 45 states,
"The Secretary of State shall from time to time make payments into the Consolidated Fund of Northern Ireland out of money provided by Parliament of such amounts as he may determine".
That is formal procedure through which consolidated money is paid and therefore it appears on the face of the Bill, as it should.
In the light of the discussion, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46, as amended, agreed to.
Clauses 47 and 48 agreed to.
[ Amendment No. 124 not moved.]
Clause 49 [ Financial acts of the Assembly]:
moved Amendment No. 125:
Page 24, line 35, after ("Personnel") insert ("or such other Minister appointed under section 15 as shall be nominated by the Treasury").
The noble Lord said: Amendment No. 125 is directed to subsection (1)(a) of Clause 49 which provides for the Minister of Finance and Personnel to approve any vote of money. It was said earlier in our discussions that we cannot prejudge whether there will be a Minister of Finance and Personnel; he may be called something else. It was said that it is not for this Chamber under the legislation as proposed to designate the Ministers; it is up to the new machinery being set up, particularly the First Minister and Deputy First Minister, who have some difficult hoops to go through in that process.
It may be that at some crucial point there is a vacancy in the post as a result of the mechanics not being applied. That is not desirable. The amendment enters a kind of threat to the Assembly; I am using the Treasury as a blunderbuss, or perhaps as a Sword of Damocles, to be held over the machinery to make sure that they appoint someone as Minister of Finance and Personnel. It is desirable that there should be somebody in that position. That is the purpose of the amendment. It raises the question as to what happens if there is a vacancy at DFP at the relevant time. I suggest one answer, but there may be others. I beg to move.
I can understand why the noble Lord, Lord Cope, wants a fall-back minister to be able to make recommendations on financial matters, but I do not believe his solution will work. The Treasury may not make nominations to ministerial posts in the Assembly under Clause 15. The Assembly is a devolved government and should not be subject to direct influence or interference from the Executive. Even supposing that the Treasury could play such a role it would not be appropriate. The Minister of Finance and Personnel—or whatever title he may be given—will have a difficult role in needing to obtain cross-community support for major decisions. He must be given the trust and respect which a permanent substitute, standing in the wings, would scarcely allow him to develop.
I hope therefore that the noble Lord will feel able to withdraw the amendment.I am glad the Minister understands that I tabled the amendment because of the danger of there being a vacancy. However, he did not suggest a solution to the potential problem. In the phrase he used,
the Minister cast doubt on his Bill. If he is called anything else, as I see it he cannot act under this provision. If he was given some other title, then he would not be the person referred to in the section. In that situation a difficulty would arise."The Minister of Finance and Personnel—or whatever title he may be given",
Before my noble friend withdraws his amendment, as he is clearly going to do, perhaps I can say that as the nomenclature of departments is in the hands of the First Minister and Deputy First Minister—according to the formula—they may easily come up with a different title. Will the Minister consider within the next few days whether it would be appropriate to substitute the words, "as nominated by the Treasury", for "nominated by the Assembly"? That would address his point and help out my noble friend.
I apologise to the Committee for taking any part in this debate; I have not taken part before. This specific point seems to me to be a simple and practical one. As the Minister said, there may not be a Minister of Finance and Personnel as such. Would there then be the ludicrous situation such that primary legislation would be required to change what would then be the Act? Surely there is an easy way around this, such as was suggested by my noble friend.
Let me see whether I can help. We cannot prejudge whether there will be specifically a Minister of finance and personnel, but the arrangements for allocating ministerial functions and, if necessary, for transferring such functions will ensure that a Minister remains responsible for that function. If a vacancy arises, Clause 15 provides for such a vacancy to be filled by the nominating officer of the party concerned. I believe that we have covered all such contingencies reasonably satisfactorily. As I said earlier, if we assume that the Assembly will fail in some way, we are simply encouraging a mentality of failure, which is surely not helpful. We have to believe that the Assembly will succeed in this as in other matters.
We have had an exchange on that matter previously. However, I believe that in drawing up the legislation, we must consider some contingencies and the fact that the whole thing may not go entirely smoothly.
With regard to this clause, we still have the difficulty that at some point the Assembly may want to give the Minister fulfilling that role a different title. The Assembly may want the responsibility for personnel to rest with a different department from that with the central responsibility for finance. That has happened here in Great Britain. The Minister responsible for the Civil Service looks after the personnel side. The same could easily happen over there. Therefore, I shall give further thought between now and Report to the possibility of altering the clause so that it refers to "the Minister responsible for finance" or another such more general phrase because that may cover that aspect of the difficulty.Perhaps I may make one further comment. I am advised that a Minister with a different title cannot act in the way suggested, but the arrangements for the transfer of functions will ensure that a Minister with a different title can inherit the functions of an existing department or Minister. I believe that we have still covered the point.
That sounds very interesting and I shall consider it between now and Report in deciding whether to table another amendment. However, I shall not pursue that now and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
moved Amendment No. 126:
Page 24, line 42, leave out from ("Crown") to end of line 1 on page 25 and insert—
("(2A) Notwithstanding any other provision of this Act and any Order in Council made under the provisions of this Act, the Assembly shall neither impose nor vary taxes.").
The noble Lord said: I believe that this amendment is fairly clear. It seeks to place beyond peradventure the fact that the Assembly and the Northern Ireland Government cannot impose or vary taxes. We shall come later to some slightly confusing or at least oddly worded provisions on taxation. I note that the Government have tabled some amendments to those provisions which will probably improve them.
I believe that it is clear—I am suggesting in the amendment that it should be made very clear—that the Assembly will not be a tax-raising body. The particular form of devolution chosen for Scotland provides for a tax-raising body although that for Wales does not. I believe that we need to make clear what we are doing in this case. I beg to move.
I am not persuaded of the necessity for this amendment. It seems redundant to insert into the Bill references to those things that the Assembly shall not do. However, to the extent that this is a philosophical issue, I think that there is probably a difference between the Conservative Benches and our own. I believe that ultimately the logic of devolution is that there should be greater tax-raising—or at least tax-varying—powers in the bodies to which power is devolved to the nations of the United Kingdom, including Northern Ireland. However, I am content for the present because we are all clear that the Assembly shall not have such powers in the short and medium term. I do not like the amendment, however, because I would not like it to appear that that option is closed for ever when it seems to me to be the logical development over time of the principle of devolution.
I referred to this thorny subject at an earlier stage. I am not in favour of a devolved assembly, wherever it may be in the United Kingdom, having tax-varying powers, because ultimately everything depends on Treasury decisions. However, the problem is that in the early years of the existence of this Assembly—the same would apply to an even greater extent in Scotland—extra funding will be required (from whatever source) for the simple reason that so much is expected of the devolved structures. So much is being promised by those who in Northern Ireland have stood for election and by those who—Heaven help them!—will stand for election in Scotland that they will make promises which they cannot possibly deliver when they come into office. It might be a salutary safeguard to have on the face of the Bill a clear statement that, however great the pressure applied, Members of the Assembly cannot be expected to find an easy way out by increasing taxation.
I believe that it has been estimated that in Scotland taxation may vary—may be raised—by up to 3p in the pound and that, on current calculations, that is intended to produce about £450 million. However, having read the Scottish papers, I believe that about three times that amount will be required if all the promises being made by the parties which are striving for electoral support are to be fulfilled. I support the amendment because it is important clearly to establish that however great the needs, the demands and the clamour, such a power will not be available.Perhaps I may raise one small point. On an earlier occasion, the noble Lord, Lord Rathcavan, pointed out that when attracting investment Northern Ireland is competing with the Republic, which has a much lower rate of taxation. That is why it may be necessary to consider such powers. Why, therefore, seek to put such an amendment on the face of the Bill when it merely makes life difficult?
I think that this amendment reflects a misunderstanding. The reference in Clause 49(2)(d) to,
does not give the Assembly power to impose general taxes of a type which are normally levied on a UK basis such as income tax. It refers only to local taxes and in practice to the regional rate—there is no community charge in Northern Ireland—which, as a purely local tax, it is perfectly suitable for the Assembly to levy. If your Lordships look at Schedule 2(9) to the Bill, which I hope will be slightly amended to cover duties as well as taxes, you will see that taxes under any law applying to the United Kingdom as a whole are in the excepted category, which means that they are permanently outside the competence of the Assembly. They cannot change category by order. They can be changed only by a subsequent Act of this Parliament. So there is no possibility of the Northern Ireland Assembly being able to levy, for example, income tax, but it can levy taxes which are not levied on a UK basis such as rates. This is the power which the Assembly has had in the past and it is right that it should continue. Reference has been made to the possibility of the Assembly having tax-varying powers generally. There is no provision in the agreement for the Assembly to have a wider tax-varying power so that it could, for example, vary income tax. The issue was put to the parties both during the talks and afterwards but there was no great degree of support for it. It will be open to the Assembly to ask for such a power in future if it wishes. I hope, therefore, that the noble Lord will feel able to withdraw the amendment."imposes or increases a tax",
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 agreed to.
Clause 50 [ Draft budgets]:
[ Amendment No. 127 not moved.]
Clause 50 agreed to.
Clause 51 [ Audit]:
moved Amendment No. 128:
Page 25, line 15, at end insert ("on the nomination of the Assembly.
() The Comptroller and Auditor General for Northern Ireland shall not, in the exercise of any of his functions, be subject to the direction or control of any Minister or of the Assembly; but this subsection does not apply in relation to any function conferred on him of preparing accounts.").
The noble Lord said: Government Amendment No. 128, which affects Clause 51, is the first in a series of amendments which fulfil undertakings given by my right honourable friend the Minister of State in another place to the Chairman of the Public Accounts Committee. It makes the Assembly responsible for nominating to Her Majesty the Queen its preferred candidate for the post of Comptroller and Auditor General for Northern Ireland. It makes it clear on the face of the Bill that the Comptroller and Auditor General for Northern Ireland will continue to be independent of the Assembly's and Ministers' control except in preparing accounts where he will, of course, prepare and submit them as the Assembly requests.
In another place my right honourable friend undertook to consider whether we could make additional amendments to the Bill which would bring the audit provisions more into line with those in the Scotland Bill. I hope to do so on Report.
In connection with the same clause, I ask the noble Lord, Lord Cope, to reconsider his Amendment No. 129 which makes the Secretary of State responsible for advising Her Majesty about a suitable candidate for appointment as Comptroller and Auditor General. The comptroller will audit the expenditure of a devolved Assembly and other bodies for which the Secretary of State will have no financial responsibility. It would be contrary to the principles of devolution for the Secretary of State to be involved in making a recommendation to the Queen about such a devolved post.
Amendment No. 128A proposes to insert a reference to "junior Minister". I have sympathy with this. We shall be reviewing generally the various references to Ministers and junior Ministers before Report.
This series of amendments concerns the position of the Comptroller and Auditor General. There are three points to consider. There is also the minor point of the insertion of the words "junior Minister". In the light of what the Minister has said, I shall not move the relevant amendment when we reach it.
The three points of substance are, first, the appointment of the Comptroller and Auditor General for Northern Ireland; secondly, his independence; and, thirdly, his relationship with the main Comptroller and Auditor General. It is proposed that, as in Scotland, the Comptroller and Auditor General for Northern Ireland should be appointed on the nomination of the Assembly. The main Comptroller and Auditor General for the United Kingdom is appointed now by the Commission of the House of Commons. That seems to me to be the better way to do it rather than have the Assembly make the nomination. I shall not press that point. I believe that he should be appointed through the parliamentary machinery. I think that is probably the correct way to appoint him. Therefore I shall not pursue Amendment No. 129. Secondly, we are also concerned about the independence of the Comptroller and Auditor General. I shall leave that matter until we discuss later amendments. The third aspect is the position of the Comptroller and Auditor General for Northern Ireland vis-à-vis the main Comptroller and Auditor General for the United Kingdom. I am not sure whether the latter will have any oversight over what the CAG for Northern Ireland does. After all, we are talking here substantially about United Kingdom taxpayers' money. There should certainly be some link between the two people. We should certainly consider whether the Comptroller and Auditor General should have some oversight through the Comptroller and Auditor General for Northern Ireland as regards what happens to the United Kingdom's money. This is a difficult point but it is important to get it right. There has long been a separate Comptroller and Auditor General for Northern Ireland, as there has been a separate Consolidated Fund for many years. That has continued to be the position—in some respects this is slightly anomalous—during direct rule. The CAG for Northern Ireland is still in post, as he has been throughout the period of direct rule. If possible, I should like to be given reassurance now or later on the matter of the relationship between the CAG and the CAG for Northern Ireland.I think that the key issue here is the relationship between the Comptroller and Auditor General for the UK as a whole and the Comptroller and Auditor General for Northern Ireland. I look forward to hearing the Minister's comments on that point. The noble Lord, Lord Cope, rightly said that we are talking here substantially about British taxpayers' money. Although we have a devolved Assembly, the oversight of the correctness of process seems to me to be relevant to the British taxpayer too. I should be grateful if the Minister could spell out what relationship, if any, is envisaged between the Comptroller and Auditor General for the United Kingdom and the Comptroller and Auditor General for Northern Ireland.
The Northern Ireland Comptroller and Auditor General will be entirely independent. It is not envisaged that he would in any way report to the United Kingdom Comptroller and Auditor General, or indeed that there would be oversight on the part of the UK comptroller over the Northern Ireland comptroller. That is not the intention. However, in a more informal sense there is nothing to prevent the Northern Ireland Comptroller and Auditor General from having links with the United Kingdom Comptroller and Auditor General. I believe that has been the case in the past and will continue in the future. However, in a formal sense, the Northern Ireland Comptroller and Auditor General will be entirely independent.
Before the noble Lord sits down, will he go further as it would be extremely sensible to establish some rationalisation of process and approach between the two Comptroller and Auditor Generals, even, as he put it, on an informal basis?
I fear if it were to be suggested that the Northern Ireland comptroller would in some way report to the United Kingdom comptroller, that would detract from the authority of the Northern Ireland Comptroller and Auditor General. I think it is proper to view the Northern Ireland Comptroller and Auditor General as an independent person who has full authority and full responsibility for the reports that he makes on government expenditure.
If the noble Lord will forgive me, that is not what I said. I did not suggest that the Northern Ireland comptroller should report to the UK comptroller. I asked the Minister whether he would go so far as to say that it would be extremely sensible and desirable for them to establish a close liaison on process and other matters. I did not merely suggest that that might happen, but rather that it would be sensible for it to happen.
There would be a lot of sense in pursuing informal contact and informal co-operation of that kind. I know the noble Lord did not quite suggest the point to which I replied. I simply wanted to establish the independence of the Northern Ireland Comptroller and Auditor General as well as agreeing that informal links and a relationship with the UK Comptroller and Auditor General would be mutually beneficial.
[ Amendment No. 128A, as an amendment to Amendment No. 128, not moved.]
On Question, Amendment No. 128 agreed to.
[ Amendment No. 129 not moved.]
Clause 51, as amended, agreed to.
Clause 52 agreed to.
moved Amendment No. 130:
Before Clause 53, insert the following new clause—
Commencement Of Sections 53 To 57
(".—(1) Sections 53 to 57 shall have effect from such day not less than four and not more than six years after the passing of this Act as the Secretary of State may by order appoint.
(2) An order under subsection (1) shall also establish a period of at least one year within which relevant bodies, organisations and individuals may submit proposals for and comments on the powers and functions of the Northern Ireland Human Rights Commission; and the Secretary of State shall ensure that that consultation period is otherwise advertised in such manner as he considers appropriate.
(3) The Secretary of State shall, by the day appointed under subsection (1)—
The noble Lord said: I wish to move this amendment which stands in the name of my noble friend Lord Morris of Manchester. He regrets that he cannot be present because he has a prior appointment. He has already spoken to this amendment when he spoke to Amendments Nos. 38 and 39 on Monday. I refer to cols. 1236–38 of the Official Report. I do not wish
to comment further on this amendment except to say that on Second Reading I expressed sentiments about this proposed new clause which are entirely in line with those of my noble friend. I beg to move.
7 p.m.
I have serious doubts about the wisdom of this amendment, although I understand why it is being moved. It seeks to delay the establishment of the new Northern Ireland human rights commission for at least four years to allow for a period of consultation with various bodies and individuals on the powers and functions to be given to the human rights commission, and then to allow for a review to take place of all existing equality legislation so as to consolidate and amend the quality of that legislation.
We on these Benches strongly support the need to consolidate existing equality legislation, which is in a hopeless mess, and to turn it into a comprehensive, user-friendly equality code, just as the Treasury is seeking to turn the mess of the financial services legislation into a sensible, user-friendly code. It is important that there should be effective enforcement of the equality code, and that it should be extended to cover, for example, discrimination on grounds of sexual orientation and age and to have an equal and consistent method of enforcement. However, we do not believe that such a review, which we believe is urgent, should be linked in any way to the establishment of the human rights commission. Equality issues are linked with other human rights issues. However, we should not wish to do anything to delay the establishment of such an important body as the Northern Ireland human rights commission in accordance with the Good Friday agreement. What is absolutely vital is that the equality commission should have the same status as the human rights commission; that there should be no devolution of the equality legislation to the Northern Ireland Assembly, because it is a core civil right. There should be no dilution, no placing of the equality code under the will of the majority in the Northern Ireland Assembly—it should remain a core responsibility—and there should be an effective and speedy review of the underlying equality law throughout the United Kingdom as a whole. For those reasons we oppose this amendment as merely delaying the setting up of a human rights commission—which we deplore—and not sufficiently dealing with the underlying malaise in equality legislation or the need to make the equality commission a strong and effective enforcement agency.The amendment proposes new institutions for Northern Ireland relating to human rights, and subsequent amendments seek to create new institutions. In considering these amendments, I ask the Committee to have regard to the influence that they may have on the economy of Northern Ireland.
All my working life I have been involved in manufacturing, distribution and other activities relating to the Northern Ireland economy. Its fabric is delicate and requires sensitivity. We sometimes forget that, without a thriving economy, we cannot pay for an Assembly, with the high salaries offered to so many. Small companies are very important in the private sector in Northern Ireland. To cite a simple statistic, 78 per cent. of all the companies there employ fewer than 20 people, but they employ 32 per cent. of those employed in the private sector. It is important that we have regard to the problems of such companies. They have to deal with the rate of change—which everywhere is almost frightening in what is undoubtedly a global economy. It means that the managers of small companies are wholly engaged in looking after those companies in these changing times. Small companies in particular have little or no time to spare to attend to the demands of bureaucracy in all its forms. In recent years we have had to conform to European directives, sometimes at considerable cost, and the Fair Employment Commission has imposed an additional load. For instance, there is a requirement to keep notes of all interviews with prospective employees for at least three years in case someone may claim discrimination, which is quite common. That imposes a very great load on small companies. The perception is that employers in Northern Ireland are sectarian. That is far from the reality. In the past 30 years there has been surprisingly little trouble of a sectarian or community nature on the shop floor. Employers and employees have come to understand the importance of fair employment and no discrimination. The regulations relating to fair employment and equality of treatment impose a significant cost on small businesses. It is hard to quantify, but in the case of my own company, employing some 100 people, compliance with those regulations costs several thousand pounds a year. We cannot afford a specialist to study all the regulations with regard to fair employment and other matters and employ a consultant to advise us on all matters concerning employment and dismissals. We must therefore be very careful in regard to any new regulations. No matter how desirable they appear, we must have regard to the effect that they will have on business generally, and on small businesses in particular.This new clause contains several different proposals. First, it seeks to postpone the start of the new human rights commission provisions for between four and six years. That is not desirable, primarily because of the promise given in the Belfast agreement. Paragraph 5 on page 17 of the agreement, in the section headed, "Rights, Safeguards and Equality of Opportunity", states firmly:
etc. It is important that that is carried out. It is certainly important in the minds of some people who supported the Belfast agreement in the belief that this would happen. It has been a significant element. Whether we like it or not, this is a deal in which all the pieces have to be accepted at this point, desirable or otherwise. I am therefore not in sympathy with the idea of simply postponing the start of the human rights commission for four to six years. Subsection (3) of the amendment seeks a review of the legislation with regard to the Fair Employment Commission and the other equality commissions that presently exist in Northern Ireland. We shall return to this matter later; it does not fall very naturally at this point. Under the Belfast agreement there is certainly more latitude in relation to what happens over this aspect. I have some sympathy with the idea of a single equality commission replacing the four existing bodies. The amendment proposes, thirdly, that in due course there should be additional legislation to prohibit discrimination on the additional grounds of age and sexual orientation. I do not object to consideration being given to that over a period, but I would prefer to leave it aside for the moment until we have solved the problems and established the machinery for human rights and the new equality commission or whatever is eventually decided upon on the existing basis. The constitution of the United Kingdom is in a state of upheaval, as we have already discussed, but the constitution and the institutions of Northern Ireland are in an even greater state of upheaval. We are stepping into uncharted territory. We are full of optimism as we do so, but the more extra matters we try to bolt on at the same time, the more risks we take. This may be only a small risk, but it exists. I share with the noble Lord, Lord Cooke, a reluctance to have additional regulations, for the sake of small businesses, in particular. We discussed this matter briefly the other evening when I expressed my view. Additional regulations should be carefully pondered before they are imposed upon small businesses, particularly in Northern Ireland where the employment and economic situation will have a lot to do with whether all these matters succeed and where political and security factors also affect the situation. The employment and economic situation remains important and extremely delicate. It is for that reason that I have hesitations about the third element of the new clause."A new Northern Ireland Human Rights Commission … will be established by Westminster legislation, independent of Government",
Within this group of amendments are those standing in the name of the noble Lord, Lord Hylton. He may wish to address the Committee before I reply.
Amendment No. 131, the first of my amendments, has been degrouped and stands by itself.
That amendment has been decoupled but still within the group are the noble Lord's Amendments Nos. 284 and 285.
May we deal with those amendments when we come to the schedules?
I am happy to deal with the matter as is convenient to the Committee. The amendments are grouped. I was simply offering the noble Lord the opportunity to speak to them.
The new clause proposed in Amendment No. 130 would postpone the establishment of the human rights commission for at least four years to allow time for further consultation and would require a review of existing anti-discrimination legislation. As has been observed, the setting up of a human rights commission is a fundamental part of the Belfast agreement. We wish to set it up as soon as possible, as the noble Lord, Lord Cope, pointed out. There has already been a great deal of consultation with interested organisations. Amendment No. 132, to which I shall come later, would require the commission to carry out a review of its powers and functions within two years of its establishment. As the noble Lord, Lord Hylton wishes, I shall not refer at this point to Amendments Nos. 284 and 285. Government Amendments Nos. 286 and 287 are technical amendments which make it possible for employment by the commission to fall under the terms of a superannuation scheme under the Superannuation Act 1972. Originally within this group were Amendments Nos. 288, 289 and 290, also standing in the name of the noble Lord, Lord Hylton. I do not speak to those, either, if he wishes them to be decoupled. Dealing with the observations of the noble Lord, Lord Lester, much of the current equality legislation on fair employment—equal opportunities, for instance—is already within the responsibility of the Northern Ireland Department of Economic Development. The agreement makes it plain that all existing responsibilities of Northern Ireland departments are to be devolved. If we withheld this body of equality law from devolution, that would be contrary to the agreement. I agree that equality is fundamental and central to the agreement. I believe that the safeguards in the agreement and this Bill will ensure that in practice the Assembly will not sweep away important protections. If necessary, votes in the Assembly can require cross-community support.7.15 p.m.
I am grateful to the Minister for giving way. I perfectly understand that responsibility rests with the Northern Ireland department so far as enforcement is concerned at a departmental level. But am I not right in thinking that, so far as the Scotland Bill is concerned, responsibility for equality law is not to be devolved to the Scottish parliament and that, so far as the Northern Ireland Bill is concerned, as it now stands, subject to any amendment that may be tabled later, responsibility for equality law is not devolved? Equality law is a matter for which provision is made by the Northern Ireland Bill, as referred to in Schedule 2, paragraph 17. Would it not, therefore, be a departure from the scheme for Scotland, the scheme in the Northern Ireland Bill and the pattern of existing UK legislation as a whole if responsibility for making and amending the equality law were now to be transferred from this Parliament to the Northern Ireland Assembly?
I hope my question is clear. I am sorry that it is so long but, in order to make it intelligible, one has to go back to the Scotland Bill and the schedule to the Northern Ireland Bill and the fact that so far legislation on equality has been made by a mixture of primary legislation by Parliament—for example, the Equal Pay Act—and by devolved legislation made by Order in Council in relation to gender and race and primary legislation in relation to the Fair Employment (Northern Ireland) Acts of 1976 and 1989. Would it not be a major departure if we were later to amend the schedule and then devolve the whole of equality legislation to be entirely in the gift of the Northern Ireland Assembly, subject only to Community law and the limited guarantees in the Human Rights Bill? This may be a matter on which the Minister would prefer to write rather than give an off-the-cuff answer today. I suggest that it is a very important issue.I believe the answer is that the Scotland devolution is a first devolution whereas at the moment powers are effectively "devolved" to the Northern Ireland Department of Economic Development. The noble Lord is right that provisions on equality in this Bill are reserved by subsection (3), but that does not extend to the wider body of equality law—for instance, fair employment and equal opportunities. I agree with the noble Lord that the outcome will be different on this basis in the context of Northern Ireland, but that is because significant responsibilities for matters in this area already rest with the Northern Ireland Department of Economic Development.
If the noble Lord will forgive me, I do not understand that answer. The Bill makes provision for collapsing the EOC for Northern Ireland, the CRE for Northern Ireland, the Fair Employment Commission for Northern Ireland and the Disability Rights Council for Northern Ireland into the equality commission. It therefore amends the equality legislation dealing with those four bodies. That is a matter for which provision is made under the Northern Ireland Bill within the meaning of paragraph 17 of Schedule 2. In my dealings with officials from the Northern Ireland department, when I have had the pleasure of discussing it with them, I have understood that that was therefore a matter that was not to be devolved.
The Northern Ireland department does not have the power to make laws; only the Westminster Parliament has that power. As I have tried to explain, the laws so far made by primary and delegated legislation have been approved by the Westminster Parliament. If we were now to transfer to the Northern Ireland Assembly the law-making function over sex equality, race equality, religious equality and disability equality, that would be to erode national standards in a quite extraordinary way. I am sure that that cannot be intended by the Government. Nothing that I have seen in the Good Friday agreement or the Bill as it stands gives notice that that is the intention of the Government, which is why I would be grateful to have further clarification of the point.I understand what the noble Lord has said, but I do not understand how it comes within the compass of Amendment No. 130. It may be that I am being unnecessarily obtuse. I do not believe that any of the propositions that the noble Lord puts forward are germane to Amendment No. 130.
My remarks arise out of the remarks of the Minister in reply to a question put by me. Referring to the Official Report, I understood him to say in response to a contribution from me that equality legislation would be a devolved subject. It was in response to that that I rose to my feet. However, it may be better if this point is clarified hereafter.
I believe that it would be beneficial if the matter could be clarified now. I had thought that as the Bill stood it was intended that equality and human rights legislation would remain a Westminster responsibility. But I understood the Minister to say just now that it would be devolved, either now or in future. Perhaps I misunderstood the Minister.
I said that I hoped the agreement made plain that all existing responsibilities of Northern Ireland departments would be devolved. Much of the current equality legislation has been the responsibility of the Northern Ireland Department of Economic Development. There will be no change. I am perfectly happy, if it is required, either to discuss matters privately with the noble Lords, Lord Lester and Lord Cope, or deal with them in writing, in which case I shall place a copy in the Library. The answer is that in dealing with an amendment like Amendment No. 130 one should not be tempted or teased into other more philosophical general views.
I shall not be tempted to enter into this debate or even the question posed by the noble Lord, Lord Lester. I believe that I already know the answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 [ The Northern Ireland Human Rights Commission]:
moved Amendment No. 131:
Page 25, line 36, at end insert ("independent of Government and political parties and").
The noble Lord said: After various preliminaries the Committee comes to what I consider to be Part VI of the Bill proper. I hope that the Committee will permit me to say something by way of introduction to the amendments standing in my name. They seek to achieve a number of purposes. The first is to ensure that the human rights commission is independent, is seen to be independent and has sufficient resources to carry out effectively functions that are somewhat wider than those currently carried out by the Standing Advisory Commission on Human Rights in Northern Ireland. I hope that the new commission's additional functions will be: first, to investigate breaches of human rights; secondly, to litigate in its own name; thirdly, to assist individuals in legal actions; and, fourthly, to scrutinise both assembly and Westminster legislation that may affect human rights in Northern Ireland. The commission should also be free to decide its own financial priorities.
Amendment No. 131 inserts words to clarify the meaning of "representative of the community" in line 37 on page 25 of the Bill. We know that Northern Ireland is a deeply divided society, not only between two broad traditions but also within particular communities. The divisions are religious, political and cultural. It is essential that the human rights commission be seen to be independent of government and political parties. I believe that that principle is accepted by Her Majesty's Government. Indeed, it would be difficult for the Government not to accept it in the light of paragraph 5 on page 17 of the Belfast agreement. It is also in accord with the Paris principles. I trust that the amendment will find favour with the Committee. I beg to move.
We support the sentiment behind the amendment. The commission must be seen to be independent of government and sufficiently well endowed with funds to be effective. However, we are troubled by seeking to bar anyone who belonged to a political party from being a member of the commission. It is one thing to say that political parties cannot secure nominations, which is quite right. However, the fact that in one's life one has belonged to a political party is scarcely misconduct or a disqualification from holding office on an independent commission of this kind. Therefore, although we support the sentiment that lies behind the amendment we do not believe that it is right to limit in that particular way the pool from which candidates can be chosen.
With respect to the noble Lord, Lord Hylton, whose sentiments on this issue I entirely share, I believe that a statement from the Minister that he agrees with the underlying principle to which the amendment is directed should be sufficient to guarantee the objective that he seeks.
I listened with interest to the noble Lord, Lord Lester. I agree with him, except in one respect. I believe it to be consistent with the amendment moved by the noble Lord, Lord Hylton, that up to the moment of appointment the particular person could be a member of a political party but, thereafter, should behave independently. One thinks as an example of British commissioners in the European Community, many of whom have been very active members of political parties but who, quite successfully, have been seen to become, as if by a stroke, very independent once they are installed in Brussels. I see absolutely no reason why the same cannot apply to human rights commissioners in Northern Ireland.I am happy to respond to the noble Lord, Lord Kingsland, that there is no difference between us. We intend that the human rights commission should be wholly independent of government and political parties and that is why the Bill is constructed in this way. It ensures that the commission is independent. The commission decides how it is to carry out its functions, what staff to employ and which cases to support. It is free to give any advice that it chooses to the Secretary of State and the Assembly. It will be able to investigate where it believes that human rights issues are involved. It will itself define what "human rights" means, although that definition must include convention rights. All of that is already in the Bill. There is also the provision in paragraph 11 of Schedule 8. Having put our stance as unambiguously and as clearly as possible, I ask the noble Lord to withdraw his amendment.
I am grateful for all of the comments that have been made on the amendment. I understand the point raised by the noble Lord, Lord Lester, about party membership. However, one wonders whether that may be dealt with by resignation in the manner suggested by the Opposition Front Bench. However, my principal concern is the total independence of the commission. I note what the Minister has said. Therefore, for the time being I am prepared to seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 agreed to.
My Lords, 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 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
Smoking In Public Places
7.30 p.m.
asked Her Majesty's Government what plans they have to ban or restrict smoking in restaurants, other eating places and other public places.
The noble Lord said: In begging leave to ask the Question which stands in my name on the Order Paper, I inquire what steps the Government propose to take to deal with smoking in restaurants and other public places, especially those where people are entitled to enjoy their food and drink without the nuisance of other people's smoke.
It is not a new problem. James I of England in 1604 gave the classic description:
"A custom [smoking] loathsome to the eye, harmful to the brain, dangerous to the lungs, and in the black stinking fume thereof, nearest resembling the horrible Stygian smoke of the pit that is bottomless".
And in all these years the position has not changed. That fact is recognised not only by those who do not smoke but by vast numbers of those who smoke and who deeply regret their addiction.
From the start I declare my former interest as one of those persons. As a young soldier in the British Army of the Rhine, I shared a car with a soldier called Freddy Granville, a former SAS man. He induced me to start smoking. It took 10 years to become unhooked, and it was a difficult and miserable process. Ever since then I have represented not only myself but millions of other former addicts in my deep dislike of other people blowing their smoke wherever I happen to be. Untold millions more who have never smoked resent having the smoke of others inflicted on them.
I wish to refer in particular to places where we eat and drink—places where we are entitled to do so in decency and comfort, and without smoke if we wish it. I recognise that there are distinguished noble Lords present—I was about to say and ancient noble Lords—who have smoked for a long time and cherish their right so to do. They have that right. Any adult in this country, whether or not of sound mind, is fully entitled to destroy his or her health as and when he or she thinks fit, as long as he or she respects the equal right of other persons not to have their health destroyed.
Is it a matter of health? A man called Knebel said a few years ago:
"It is now proved beyond doubt that smoking is one of the leading causes of statistics".
Some are accurate, and some are not. It is now again clear from the report of a recent government committee that passive smoking causes lung cancer and ischaemic heart disease. The report states:
"Long exposure to environmental tobacco smoke increases the risk of dying from the disease by 20–30 per cent. in non-smokers, accounting for several hundred extra deaths from lung cancer in the United Kingdom every year. Passive smoking damages children's health and is an important cause of childhood respiratory infections and chronic lung disease".
Active smoking for adults is a matter for them. Passive smoking is not because it affects the health of others. But those who smoke—they are entitled to do so and I respect their right—should respect my right and that of others not to have the impact of their smoke blown into our lives. While they are fully entitled to smoke if they wish, and where they wish, they are not entitled to do so in a way that affects others who do not appreciate smoking. They are free to smoke. I am free to eat my meals without having the taste affected by other people's smoke. They are entitled to blow their smoke anywhere they like, provided that they do not blow it at me and others who object to it. It is a free world. They are free to smoke; but I must also be free not to be "smoked at".
That is the balance. Opponents of change say that it is a free country. It is indeed a free country in which we have free speech, but it is still a country where we restrict people's freedom of speech. One cannot defame, use racist attacks, or pornographic speech. There are restrictions on speech. It is a balance. People are free to drive their cars on the road but not to do so in a way that endangers other people's lives and health. That is restricted by law. People are free to smoke, but they should not do so, and should be restricted from doing so, in a way that affects other people's freedom not to have their comfort and health affected by smoking.
The noble Lord, Lord Hunt of Kings Heath, who will reply will no doubt decline to tell us anything that the Government have not published. However, as usual there are prior leaks, on this occasion in an article in the
Observer On Sunday which states that the Government are
"on the brink of agreeing a new voluntary code of conduct which will be seized on eagerly by licencees and restaurateurs as their last chance of avoiding an outright ban".
I am not against voluntary agreements provided that they work. But I do not believe that this voluntary agreement will work. I am not against voluntary agreements if there is a good chance of their working. If this agreement is backed by the Government's clear statement—I venture to hope that my noble friend may yet produce it tonight—that if the agreement does not work they will take action, I should be happy to be patient.
But meanwhile what is to happen? In the Palace of Westminster I am told that there are 23 places where people can eat and drink. In many of them there is an attempt to separate smokers from non-smokers. It is not necessarily successful. There are many places where some of us will not go because we do not like the smoke blown around by others who are exercising their freedom to smoke as and when they will. I am sorry that the noble Baroness, Lady Trumpington, is not present tonight. No doubt she would descend with great wrath upon my arguments and accuse me of many wicked offences. However, the noble Baroness told me that she has to be in Madrid. That is a great loss to the debate, this House and the cause of smokers. I should have liked to have heard the noble Baroness. In some ways the extent to which her passion for smoking overlaps into the realms of hyperbole helps my case. I sent her my best wishes.
For the remainder of us, the debate is an opportunity to express a point of view. It is a chance to say that we recognise that to smoke in a public place is not purely a matter of an individual right for the person smoking; it has effects on the comfort and health of others. It is our opportunity to salute those many businesses which no longer allow smoking in their buildings, and those countries which have already introduced legislation to deal with this issue, including many parts of the United States. American guests are amazed and appalled that people can still fill restaurants in this country with smoke when they are trying to eat without discomfort or interference of their right not to be disturbed by tobacco smoke.
I therefore ask the House to support my effort to encourage my Government—it is a Government I support willingly and wholeheartedly—to express a clear view today. If the Government cannot do so, I hope that my noble friend will do so in his personal capacity. One way or another we must make our restaurants, eating places and bars better, cleaner and more decent places for all by keeping smokers on one side of a room where they can smoke in their own way and in their own time while respecting the rights of others not to be disturbed by the smoke to which they are addicted.
7.40 p.m.
My Lords, it is with great diffidence that I rise to make my maiden speech in your Lordships' House. I am grateful to the noble Lord, Lord Janner, for bringing such an important matter to the attention of the House. I am also pleased to have the opportunity to participate in a debate in which I have an interest and where I hope my own experience is of relevance.
My family's business, which has been in existence for more than 200 years, is that of operating places in which people gather to drink, eat and socialise. Today, as chief executive of that business, I am responsible for the operation of more than 2,000 licensed outlets which range from small public houses to five-star hotels. In all, we employ just over 25,000 people across the United Kingdom. There is no doubt in my mind that smoking and the damage it causes is a serious public health issue. However, the subject of this debate is the control of public behaviour, which I regard as a different matter and one which should not be confused with health education. I do not believe that the restriction on smoking in licensed premises either can or should be brought about by legislation. The Brewers and Licensed Retailers Association, of which my company is a member, estimates from its recent research that 47 per cent. of pub customers are smokers. Interestingly, the BLRA also notes that 72 per cent. of those who frequent pubs socialise in groups containing both smokers and non-smokers. That tends to contradict the idea that the two parties are actively pursuing segregation. Although the pub industry has moved a long way from the days of spit and sawdust, the fact is that smoking remains a part of the social experience of pub-going. Those who contemplate legislation are ignoring practical difficulties as well as matters of principle. For example, where ventilation is concerned many British pubs are historic buildings in which the installation of air extraction systems raises planning as well as cost concerns. Frankly, I cannot see how legislation in this regard could fail to harm smaller, older outlets, including those which are most cherished not only by the traditionalists but by tourists to this country from all over the world. By that, I do not mean that we should do nothing. I take the view that clean air is both generally desirable and good for business. But it is the business of pub operators to run pubs, not to engage in social engineering. The operators of licensed premises should address themselves not to changing the behaviour of smokers, but to removing the smoke they produce, thereby both benefiting and retaining all their customers. I respectfully suggest to your Lordships that that task can be accomplished, and indeed is already being undertaken, most effectively without government intervention. Responsible operators are actively developing industry-wide initiatives which encourage a common approach to reducing risks and enhancing safety for all who visit and work in licensed premises. In closing, I beg to draw your Lordships' attention to my conviction that it is both unreasonable and unworkable to impose regulation and its attendant cost on licensed premises. Today's pub industry should not be used as an instrument of social change. Attempts to do so will inevitably lead to the disruption of trade and the destruction of jobs.
7.43 p.m.
My Lords, no one will doubt that it is an extra special pleasure for me to congratulate the noble Lord, Lord Daresbury, on his eloquent and well judged speech. A Daniel come to judgment, indeed. From his great experience in the brewing industry and other industries he brings the courage to join in one of these controversial debates as an innocent maiden. When he is let off the leash for his future speeches, to which we look forward, we will be in for some rare treats.
Alas, I have to declare an interest as the chairman of FOREST, which is the leading European smokers' rights group. I have an even more anxious interest to declare as the part author of a forthcoming book, to be published by Duckworth next month, with the suitably lurid title Murder a Cigarette. I mention that only because it finally kills off the phantom of so-called "passive smoking". Of course, we are grateful to the noble Lord, Lord Janner, for the opportunity to dispel the smokescreen of stale rhetoric and shed a little light on this widely misconceived topic. I say most solemnly that after intensive study of the literature on so-called "passive smoking" I am left with not the least whiff of doubt that all the blood-curdling talk we hear is wholly misguided. It rests on nothing more substantial than pseudo-science, compounded of anecdotal evidence, selective surveys and statistical jiggery-pokery. The flawed findings are then solemnly spread by mournful individuals using a process I describe as passive thinking. It may be thought special pleading, but the latest and largest survey on the subject, a 10-year survey conducted for the World Health Organisation by the International Agency for Research on Cancer, has just issued its report and concludes that there is,As regards so-called "spousal smoking", which sounds rather unpleasant, try as they might, the researchers had to admit that their findings were "statistically non-significant". I earnestly appeal for an end to the mischievous propaganda about health dangers from "passive smoking". The way of a free society in settling such conflicts is not through the coercion of law and crude prohibition; it is the way of tolerance and mutual respect for the freedom of others. The true liberal should always seek accommodation before confrontation. In my view, that is the two-sided, unwritten compact of a free society. The noble Lord said that voluntary negotiations are always taking place in order to accommodate both smokers and non-smokers. Even hospitals have begun to bring back smoking areas to avoid the conflicts which their bans produced. Despite their occasional authoritarian lapses, I urge Her Majesty's Government to stand firm against the divisive lobbying of ASH and its acolytes."no relationship between childhood exposure to second-hand smoke at home and lung cancer".
7.47 p.m.
My Lords, I shall not go into the arguments as to whether smoking and passive smoking are health hazards. I simply refer the noble Lord, Lord Harris, to the ASH website which I visited when preparing for the debate. I assure him that if I were a smoker I would have discontinued smoking there and then. I suggest that if parents want to discourage their children from smoking they get them to play the Tobacco Explored game on the website. Perhaps the noble Lord, Lord Harris, might play the game. I believe that it would make him change his mind.
Where smoking is concerned, there are spurious economics. There are 120,000 smoking-related deaths a year, but we still allow advertising to encourage it. Furthermore, 450 children take up smoking every day. Norway banned cigarette advertising and the number of children taking it up halved. The economics are distorted by manipulation and addiction. My noble friend Lord Janner told us about that. It is not enough for the Government to say that they will leave restrictions on smoking to consumer choice and to people's good sense. Addiction and manipulation distort that good sense. For instance, smoking is not allowed on any American flight, not because of a wave of anti-smoking feeling and rules, but because the airline staff sued their employers for failing to provide them with a healthy environment at their place of work. British employers, too, have a duty under the health and safety Act to provide their employees with a healthy working environment. But what about the staff who work in restaurants which allow smoking and those who work in pubs which also allow smoking? Are they not also entitled to work in a healthy environment? Indeed, what about the staff who work in your Lordships' restaurants, the Library, Guest Room and bars? I would like to see the Government implementing the health and safety and COSHH regulations with more determination. The other area in which the Government must act is that of children. The noble Lord, Lord Harris, is wrong. There is little doubt that passive smoking increases the risk of respiratory tract infection in children. It increases the severity of the symptoms of asthma in children. Childhood respiratory illness contributes to the development of respiratory diseases in adult life even if the children become adult non-smokers. The Government take upon themselves the protection of children from all kinds of health hazards. By law we vaccinate our children and immunise them against measles and polio. So why not protect them from tobacco smoke? I am concerned that passive smoking is an area where adults are asserting their rights to the detriment of children and it is wrong. The response usually given to this argument is in terms of the nanny state. It is the view of some that we need to be protected from an overbearing state. However, others believe that the Government should protect us from overbearing companies. I believe that there is a middle way—dare I say it, a third way. Where people are powerless there is a role for government to step in and shape society. Passive smoking is a case where the citizen is helpless and the Government must step in.7.51 p.m.
My Lords, first I would like to congratulate my noble friend Lord Daresbury on his maiden speech. He put forward a very sensible and well-reasoned argument in favour of retaining the status quo and encouraging the industry to solve the problem caused by smoking. Secondly, I should declare an interest as a committee member of the Restaurateurs Association of Great Britain and particularly as its spokesman on smoking-related issues. I am also a restaurateur owning Porters Restaurant in Covent Garden.
However, I find myself agreeing to a great extent with the noble Lord, Lord Janner. I have been an avid non-smoker for over 20 years. I loathe sitting in a restaurant with someone's cigarette smoke polluting my food. I remember on one occasion asking the redoubtable Dame Diana Rigg if she would refrain from smoking underneath my nose while I was trying to enjoy my main course. However, equally I could comment on what the noble Lord, Lord Haskel said about the nanny state. I feel that to extend it further—it looks as though we are going to rescind the beef-on-the-bone ban—would be an enormous mistake. Laws were introduced in France which did not work. The French just ignored them. No prosecutions were carried out at all. A ban was introduced in New York which drove an enormous amount of business out of that city into the suburbs. Our polls within the industry have shown that not only does it not want it, but the public do not want it either. However, they also agree with us that there are three sensible options which the industry should adopt and which in fact the Restaurateurs Association promotes to its members extremely keenly. First—and this has already been dealt with—there is ventilation. I have ventilation and air conditioning extraction in my restaurant. I can sit next-door—fortunately, there is a little bit of room between our tables—to a table of smokers and watch the smoke going straight upwards and out of the restaurant. Therefore, it does not cause me a nuisance in my restaurant. As a result we do not have a non-smoking area. We are promoting to the industry and our members that they should adopt proper ventilation. If they are unable to do so or to put in adequate ventilation, they should consider setting aside an area for non-smokers so that they are not forced to breathe in the smoke of the smokers in the smoking area. The third option is that where restaurants are so small and cannot install adequate ventilation, they should consider the possibility of becoming completely non-smoking. So I, like the noble Lord, Lord Haskel, am trying to promote a middle way that relieves the Government of the responsibility and where the industry takes the responsibility on itself.
7.55 p.m.
My Lords, it is a pleasure to take part in the debate on this Unstarred Question moved by the noble Lord, Lord Janner. I also congratulate the noble Lord, Lord Daresbury, on his excellent maiden speech; and I am grateful to the noble Earl, Lord Bradford, for showing us practical ways in which the restaurant trade can get over these problems and therefore accommodate both smokers and non-smokers.
In putting the case for the non-smokers, the noble Lord, Lord Janner, said that it is the right of non-smokers to eat in peace and comfort without having smoke blown into their faces—he might have added into their food, their lungs, onto their clothes, into their faces and ash flicked onto the food. I do not smoke cigarettes. I occasionally smoke cigars when in the company of Colonel Robbins, the distinguished Wiltshire soldier, who pointed his platoons into battle in Normandy in 1944 waving his cigar in the direction that he wanted them to go. I do take tobacco: I take snuff. If people find the taking of snuff offensive when I am in their company in a restaurant and they tell me so, I refrain. Likewise, I also ask people if they find it offensive and, if so, then I desist. I am prompted to take part in this debate for one reason. When I ask questions of the Foreign Office and of the Ministry of Defence I normally roughly know the answer. I asked the noble Baroness, Lady Jay, in her former capacity as Minister of Health in a Starred Question tabled by the noble Lord, Lord Janner, how much it cost the National Health Service to deal with those who are afflicted with diseases caused by tobacco. I did not know the answer. The answer was given in a written reply because the noble Baroness did not know it. She said that the figure was between £1.4 billion and £1.8 billion a year. That is a considerable sum of money and a large proportion of resources that could be spent elsewhere. I return to the point as to whether we should try to ban or to restrict smoking. I am on the side of those who wish to restrict. I am grateful to the noble Earl, Lord Bradford, for his ideas. I would like to see restaurants and public places of entertainment take the lead and set an example. The Daily Mirror informs me that several places have banned smoking already, such as Buckingham Palace, Wimbledon and the London Underground. We are all aware that a cigarette caused the ghastly King's Cross accident in which 31 people were killed five or six years ago. Smoking is also banned in public museums, galleries and restaurants. One can go outside if one wishes to smoke. I do not agree with the noble Lord, Lord Harris of High Cross, who informs us that passive smoking does not cause cancer. The evidence points to the contrary. I hope that the Minister will give us a peep at the end of this debate into the White Paper. I wish to see positive ways in which restaurants and places of entertainment will be encouraged to put in a ventilation system and to provide a grant if necessary. I also hope that we shall be given a little peep to see how we can encourage young people not to smoke. Some of them are already smoking when they become teenagers. Self-regulation is better than legislation.8 p.m.
My Lords, my noble friend Lord Janner of Braunstone mentioned James I as being a virulent anti-smoker. So was Adolf Hitler. I imagine that my noble friend would not want him as his ally in tonight's debate.
My noble friend made a moderate speech. Unfortunately his Question is not moderate. He is asking what plans Her Majesty's Government have to ban or restrict smoking in restaurants and other eating and public places—in other words, anywhere to which the public has access. People would not be able to smoke on the roads, on pavements, even outside the 200-mile limit, as well as on beaches, if the Government were stupid enough to agree to this particular Question. Smokers are being hounded and demonised by government and other organisations subsidised by government. It is quite unjustified. Indeed, it is cruel. This persecution is based on flawed research concerning environmental tobacco smoke. These flaws were shown up starkly by the report to which the noble Lord, Lord Harris of High Cross, referred, which said that there was no significant risk to non-smokers' health through ETS. An attempt was made to pigeon hole that report, but it was unsuccessful and the report was published. The findings are clear and unequivocal. They state that ETS, environmental tobacco smoke, is not a risk to the health of non-smokers. Tobacco smoke may be irritating and unpleasant to non-smokers, but the risk to their health is negligible. Why pick on the smoker? Enormous damage is caused to the health of people and society through alcohol abuse. Wives are beaten up, there are knifings outside pubs, children are beaten up through alcohol abuse. We hear very little about that. Indeed, people are greatly encouraged to drink even more. There is the annual carnage on roads, with billions of pounds lost in destruction of property, not to mention the disease caused by vehicle emissions, especially from diesel vehicles. Smokers may or may not do damage to their health—that is a matter for them—but it is now becoming quite clear that the ETS scaremongering has been based on junk and bogus science. It is a disgrace—not only because it has led to unjustified and vicious attacks on smokers but, as Professor Nisson of Stockholm University has said:As to restaurants, there is much more danger in restaurants from salmonella, lysteria and e-coli than there is—with apologies to the noble Earl, Lord Bradford—from environmental tobacco smoke. Perhaps we ought to concentrate on that."ETS has been the victim of scientific dogma and this obsession with ETS is preventing research into other causes of cancer".
8.3 p.m.
My Lords, I have only three minutes and so I apologise to other noble Lords for not taking up the themes of their speeches.
At the outset, I must declare that I am totally against banning things and activities. There is far too much of it going on, from beef-on-the-bone to boxing, foxhunting and smoking. The last three are still legal activities, which is as it should be. The police have quite enough to do. As to smoking in restaurants, that it is a matter for the restaurant owner. If he or, in his judgment, most of his customers want a smoking-free restaurant, that is entirely up to him. I am glad to hear that ventilation might overcome this problem. I do not believe that the Government have any business in intervening or telling the restaurateur what he should or should not do about this matter on his own premises. In my opinion, exactly the same applies to pubs. Indeed, a ban on smoking in all pubs would almost certainly result in 90 per cent. of them being closed down. I do not believe that hardworking and often hard pressed restaurateurs and publicans deserve to be treated in this way. When the 1948 anti-foxhunting Bill was debated in the other place, the then Labour Minister of Agriculture, Tom Williams, said:I also hope that it will not be said in 1998. Pressure groups like ASH will never be content until smoking is illegal everywhere, including in the home. Indeed, that situation has almost come to pass, or so I gather, in California, where you are not allowed to smoke within three feet of the window of your own house or in your own garden if another garden is next door to it. That is tyranny. I fear that we may be on the road to a similar fate—banned from smoking, drinking more alcohol per week than the Government allows, eating beef, driving our cars, eating sugar and goodness knows what else. A recent photograph appeared in the press. It was of an unshaven Frenchman of the Routier variety. He was sitting smoking a Gauloise under a large notice which read:"I hope it will not be said that a Labour Government was going round the country finding out what people were doing and telling them not to".
I would like to raise a brimming glass of cognac, with an alcohol level well above government guidelines, to salute this splendid guardian of liberty."Defense de Fumer"
8.6 p.m.
My Lords, I would like to acknowledge the assistance I have received from the National Asthma Campaign and the Department of Respiratory Medicine at Addenbrookes Hospital.
Mention has been made of no smoking areas, the definition of which could be those places where tobacco smoke is present but where smokers are not—the smoke itself does not know that it is confined to any particular area and will drift everywhere. In the time available it is not possible to mention the fact that about 85 per cent. of the smoke from a lit cigarette goes straight into the air, where it can be passively smoked; nor that tobacco smoke is made up of more than 4,000 chemicals, including some 60 known or suspected carcinogenic chemicals; nor that tobacco smoke causes difficulty for 80 per cent. of asthmatics; nor that the risk of hospitalisation of asthmatic children is greater where a smoker is present; nor that passive smoking during pregnancy may be a greater problem than is generally appreciated; nor that almost 50 children a day under the age of five are admitted to hospital suffering from illness linked to passive smoking, including asthma and bronchitis; nor that there was a 14 per cent. increase of bronchitis in children up to the age of 10 where the mother smoked more than four cigarettes a day, and this figure was increased to 49 per cent. when more than 14 cigarettes were smoked daily; nor that doctors back a ban on smoking in all public places; nor of the evidence of the increased risk of heart disease and lung cancer upon exposure to passive smoking; nor of the chronic respiratory symptoms in adults resulting from passive smoking; nor of the association between maternal cigarette smoking and the cot death syndrome; nor of the effects on infants' growth. Every one of these statements is backed by scientific publications and has come from medical sources throughout the world. I have not been made aware of any scientific publications which encourage tobacco smoking and extol its virtues. It is often said by smokers that it is their right to smoke—and so it is—but non-smokers do not have choice in respect of inhaling their smoke. I recently developed late onset asthma, and due to sensitivity to tobacco smoke, particularly pipe and cigar smoke, I am unable to go to most eating establishments—including your Lordships' dining rooms and watering holes, which I treat with due caution as I do not want to be very, very unwell—or places of entertainment. The noble Lord, Lord Hams of High Cross, knows personally that I am very adversely affected by passive smoking. It is the freedom of smokers to smoke which determines where I and many others can go and, for purely health and NHS cost reasons, I hope that smoking will be curtailed. Ask a smoker dying of lung cancer if he regrets smoking and the answer will probably be no. Ask a non-smoker dying of lung cancer caused by passive smoking if curtailment should be imposed, and the answer will probably be that it should. Some sort of compromise can be achieved, and I hope that it will.8.9 p.m.
My Lords, the noble Lord, Lord Janner of Braunstone, with great charm it must be said, asks Her Majesty's Government what plans they have to ban or restrict smoking in restaurants and other public places, other eating places. In what is still, albeit by the skin of its teeth, a free country, I trust that the answer of Her Majesty's Government will be "None at all".
The right law to determine matters of this sort is the law of supply and demand. If customers object to a smoke-filled atmosphere in restaurant or cafá—and as a light smoker I myself dislike an excessively smoky atmosphere—or, alternatively, if they object to there being no facilities provided for smokers, they have a simple remedy—to boycott the establishment in question, in the same way as those who object to certain advertisements should simply resolve to boycott the goods being advertised rather than run off whining to the preposterous Advertising Standards Authority. This simple exercise in determined consumer choice will ensure that before very long all eating places, save the smallest and/or poorest will feel themselves obliged, if only for the sake of economic survival, either to install the efficient and not unreasonably priced smoke extraction systems, which have recently been much improved and perfected, or to provide both smoking and non-smoking areas, as many restaurants and hotels in North America, on the Continent of Europe and indeed in the United Kingdom already do. Reference has already been made to that. In a free country, I submit, the state has a right to intervene in such matters only to protect the citizen's health. Despite the contention of the noble Earl, Lord Carlisle, and the noble Viscount, Lord Simon, the World Health Organisation has recently conceded that passive smoking does not cause cancer and is no serious threat to health, however irritating it may be. To protect people from mere discomfort or annoyance should be no business of the state.8.11 p.m.
My Lords, I am most grateful to the noble Lord, Lord Janner of Braunstone, for raising this extremely interesting question. I have two interests to declare. The first is that I do enjoy a cigar, particularly after a good dinner, and the second is that I am connected in many ways with various aspects of the hotel, restaurant and licensing trade.
The noble Lord, Lord Janner, began his speech by saying that if there is one thing smoking is guaranteed to do it is to create statistics. We have certainly had our fill of statistics this evening. I managed to get hold of a copy of the journal of the National Cancer Institute which contains a report on the report to which many noble Lords have referred. It is quite clear that, as in all these things, extremists and those holding extreme views tend to polarise towards the parts of reports they like to read. There are two aspects of the report which strike me. One is the conclusions, which state:The report goes on to quote the interesting statistic that the increased risk from ETS from both spousal and workplace exposure is approximately 20 per cent., but that is to be compared with the risk of lung cancer from actually smoking, which is an increase of tenfold. That puts in measure the degree of risk. The most important aspect of this question is whether it should be voluntary or obligatory to have some form of action. In his opening remarks, the noble Lord, Lord Janner, said that voluntary action simply does not work. I do not believe that to be the case. Today I received a report from the British Hospitality Association. It points out that eight out of 10 hotels in Britain are voluntarily restricting smoking in restaurants. The survey of nearly 700 hotels revealed that half have banned smoking in their restaurants. A further 30 per cent. have created non-smoking areas in their restaurants and nearly half offer non-smoking bedrooms. Great efforts have been made by hotels. In his excellent maiden speech, the noble Lord, Lord Daresbury, referred to a report by the BLRA. The report revealed that the BLRA has been conducting polls through MORI for more, than 25 years. In 1973, 55 per cent. of adults disliked most about pubs a smoky atmosphere. In 1982, the figure was 52 per cent. However, by 1992, that had fallen to 35 per cent. As the number of people and the number of smokers going in are roughly constant, that would indicate that increasing the amount of ventilation and other actions have been successful. Ultimately, this should be a matter of choice. It is quite right to restrict smoking wholly in places of work; it is quite right to do it wholly on airlines, where there is no choice; it is quite right to do it wholly in concerts, where people are going to one concert. However, in the matter of hotels, restaurants and pubs, a degree of choice is open to the consumer and people do vote with their feet."Our results indicate no association between childhood exposure to environmental tobacco smoke and lung cancer risk. We did find weak evidence of a dose response relationship between risk of lung cancer and exposure to spousal and workplace ETS".
8.15 p.m.
My Lords, I, too, should like to thank the noble Lord, Lord Janner, for bringing this matter to our attention and also to congratulate the noble Lord, Lord Daresbury, on his splendid maiden speech. If I am not mistaken, it was he who saved the Aintree race course and also won the Foxhunters' Chase at Aintree over the Grand National course in 1983 on Lone Soldier.
It may be worth emphasising that those who start smoking as teenagers and go on smoking 20 cigarettes a day have a one in two chance of taking 20 years off their lives. No one can contradict that. As has been pointed out, the statistical evidence incriminating passive smoking is not so clear, but it may be that the risks of heart disease and lung cancer are increased by about 25 per cent. in people who do not smoke but who live with smokers. When we come to the risks involved in frequenting restaurants polluted by smoke, clearly the risks are very much less for people who are completely healthy. However, there are two categories of people who are at risk. The first category—I do not think this has been mentioned—is those who actually work in these restaurants all the time. The second category is those customers who are prone to asthma or heart disease, as mentioned by the noble Viscount, Lord Simon. I think the noble Lord, Lord Stoddart, has forgotten that it is well known that people who are prone to asthma can have an asthmatic attack precipitated by quite small quantities of smoke. As everyone is well aware, asthmatic attacks can be very serious indeed and can kill. The presence of smoke in the environment of those suffering from heart disease decreases the amount of oxygen that can be carried in the blood because of the carbon monoxide in the smoke. This may lead to angina. That, too, is certain evidence. My impression of smokers over the past decade is that they have become much more considerate to those who do not smoke. The ideal arrangement is to build on this good will and go on developing voluntary codes based on courtesy and sound medical evidence. As small amounts of smoke can be very irritant to the eyes—that is definite—and as small amounts of smoke can cause asthmatic and heart attacks, these people have an incontrovertible right to be in a smoke-free atmosphere in restricted public places. As has been said, it is perfectly possible to have a good ventilation arrangement in restaurants or separate no-smoking areas, but on an airliner it is not possible. Smoking on an airliner will eventually contaminate every person on that flight. Therefore, the answer has to be no-smoking flights. Personally, I believe that legislation is to be avoided. It is far too heavy-handed and of course very difficult to enforce. The extension of voluntary restrictions on smoking is a far more sensible solution.My Lords, I very much welcome the initiative of my noble friend Lord Janner in allowing us to debate this extremely interesting Question this evening. First, I add my congratulations to those of other noble Lords to the noble Lord, Lord Daresbury, on his very clear and effective maiden speech.
My noble friend Lord Janner, while recognising the Government's action in this area, urges us to go further. I wish to assure my noble friend that the Government are considering carefully their approach to the problem of smoking in public places. Smoking results in about 120,000 deaths a year in the UK. It is the largest cause of preventable disease and premature death and adds considerably to the costs of the NHS, as illustrated by the noble Earl, Lord Carlisle. The Government were elected with a clear manifesto commitment to phase out tobacco advertising. On 22nd June, the European Union Council of Ministers formally adopted the directive to ban tobacco advertising and sponsorship which was voted through the Parliament of the European Union on 13th May. It is, however, clear that the harmful effects of smoking are not confined to the smoker. This issue has become more prominent as the size of the non-cigarette-smoking majority in the population has increased and as other sources of environmental contamination have diminished. The noble Viscount, Lord Thurso, spoke about the degree of risk. A clear link with several conditions such as lung cancer and childhood respiratory illness and exacerbation of asthma has emerged. There are several other conditions that current research suggests may be linked with passive smoking, though further evidence is required. My noble friend Lord Simon made many pertinent points on that, although I note the doubts of the noble Lord, Lord Harris of High Cross, and my noble friend Lord Stoddart of Swindon. The fact is that the effects of passive smoking have been reviewed by numerous scientific and medical committees worldwide. All conclude that passive smoking is harmful to the health of non-smokers. In Britain, the Fourth Report of the Independent Scientific Committee on Smoking and Health was published in 1988 and sought to quantify the dangers. The US Environmental Protection Agency has declared environmental tobacco smoke a Class A carcinogen (capable of causing cancer in humans). The findings of those authorities were broadly confirmed in the report of the Scientific Committee on Tobacco and Health earlier this year. I should say to the noble Lord, Lord Monson, that our statisticians confirm that a full reading of the WHO report confirms the findings of several hundred lung cancer deaths every year. The Government are fully committed to phasing out tobacco advertising as an essential step in building an effective strategy to deal with smoking and also share the view the people are entitled to breathe air unpolluted by environmental tobacco smoke. We are committed to the creation of a non-smoking environment, with facilities where appropriate for those who wish to smoke, by encouraging suitable voluntary policies on smoking in all enclosed public places. In December 1991 the previous government published a code of practice on smoking in public places which provides practical guidance to owners and managers on implementing suitable smoking policies. That code advises that the policy to be adopted should depend in part on the reason the public are visiting the building; that is, whether members of the public are attending out of necessity (or to receive a service) or whether they are attending out of choice. The implementation of a smoking policy is at the discretion of the manager of the facilities and/or provider of services, but in all cases the Government expect efforts to be made to cater for the interests of the non-smoker. I should say to the noble Lord, Lord Daresbury, that the majority of people are in favour of some form of smoking control. Smoking restrictions in restaurants have the support of 92 per cent. of non-smokers, 88 per cent. of ex-smokers and 70 per cent. of smokers. There is less support for smoking restrictions in pubs, although 60 per cent. of non-smokers and 52 per cent. of ex-smokers are in favour and even 25 per cent. of smokers would support some kind of restriction. Policy on smoking in public places was based on the 1988 advice of the Independent Scientific Committee on Smoking and Health and set out that non-smoking should be regarded as the norm in enclosed areas frequented by the public or employees, with special provision being made for smokers rather than vice versa. Up to now, government action has been based on a voluntary approach both because it has been considered that people react better to persuasion than regulation and because regulation can be too inflexible to allow individual circumstances to be taken into account. In its report published on 11th March, the Scientific Committee on Tobacco and Health recommended that smoking in public places should be restricted on the grounds of public health. The committee suggested that the level of restriction should vary according to the different categories of public place but that smoking should not be allowed in public service buildings or on public transport, other than in designated and isolated areas. It also recommended that, wherever possible, smoking should not be permitted in the workplace. The conclusions and recommendations of the Scientific Committee on Tobacco and Health are being taken into account in the development of the forthcoming White Paper on tobacco control. The Government are fully aware of the health effects of smoking and passive smoking and of the particular difficulties posed by public places. Restrictions are very difficult to enforce without solid public support. As the public and employers become increasingly aware of the scientific evidence of the risks of passive smoking, they contribute to the positive impetus needed to continue to make good progress. Virtually all public places are workplaces and the legal duties of employers to protect the health and welfare of non-smoking staff working in places such as pubs and restaurants will be an important factor. What matters is that the manager and/or provider of services or facilities sees the need to take account of the majority who do not smoke and in general do not like having their outing for a meal or a drink in a restaurant or licensed premises being spoilt by inhaling other people's smoke, a point well put by my noble friend Lord Janner and the noble Earl, Lord Bradford. We urge landlords and restaurateurs to bring their own voluntary codes to set aside smoke-free zones and also to do all they reasonably can to provide a safe and comfortable place of work for their staff. I thought the noble Earl, Lord Bradford, made some very good points on that. The Health and Safety Executive's guidance on passive smoking at work recommends that all employers should have a specific policy on smoking in the workplace. The policy should give priority to the needs of non-smokers who do not wish to breathe tobacco smoke. Employers also have legal duties under health and safety law and the guidance explains the implications of that. If a risk to health can be demonstrated—for example, if a worker with a respiratory condition is forced to work in a smoky atmosphere which could make his condition worse—the employer should take action to deal with the risk. Again, the noble Lord, Lord McColl, had some important points to make on that. In the public sector, we certainly want to lead by example by controlling smoking in government and public sector premises, including the NHS. Most government and public sector premises including NHS hospitals already have non-smoking policies which either completely ban smoking on the premises or confine it to designated areas. We are considering carefully our approach to the problem of smoking in public places and whether there is a case for new measures. The full details of our policy on smoking in public places, together with the timescale for implementation of the tobacco advertising directive in UK law, will be presented as part of a comprehensive tobacco control strategy in a White Paper at the end of this year. My noble friend Lord Haskel and the noble Earl, Lord Carlisle, will have to be a little more patient on that. The noble Earl, Lord Bradford, spoke about ventilation in restaurants and the noble Lord, Lord Daresbury, referred to the costs to business. It is appreciated that to provide a fully smoke-free environment would for some premises involve a considerable amount of expenditure. For that reason, government officials have been, and will continue to be, involved in detailed discussions with representatives of the licensed trade and restaurant industries. There are, however, positive aspects. Besides improved staff health and lower cleaning costs, more pleasant surroundings are likely to attract more customers who are likely to stay longer. The noble Viscount, Lord Thurso, had much to say of interest about the response of business to that. I have noted the comments of noble Lords concerning smoking, in particular, my noble friend Lord Haskel, in the vicinity of your Lordships' House. Smoking is ultimately for the House. I suggest that noble Lords should communicate their views to the Lord Chairman of Committees and the Offices Committee. We have heard about the issue of freedom for smokers. My noble friend Lord Stoddart had much to say on that, as did the noble Lord, Lord Belhaven and Stenton. I am no health fascist. Like the noble Lord, Lord Janner, it took me years, and many attempts, to give up smoking. The Government do not seek to ban smoking, but they have a duty to ensure that all smokers are fully aware of the dangers associated with their habit. We recognise, however, that those who do not smoke—almost three-quarters of the population—have the right to breathe air unpolluted by tobacco smoke. We will therefore continue to work towards a situation where non-smoking is the norm, but with provision for smokers where appropriate. In conclusion, in the case of public places there is clearly scope to build on the progress made by means of voluntary measures over recent years. The experience in countries which have tried to ban smoking in pubs and restaurants suggests that it is difficult to enforce and may not help in changing public attitudes; but public attitudes have moved an enormously long way in the last 20 or 30 years, and smoke-free public and workplaces are on the increase. Our aim is to go with the grain of public opinion, but building on what has already been achieved. I am convinced that that is the right way to proceed and the most effective way to proceed.Northern Ireland Bill
8.30 p.m.
House again in Committee.
Clause 54 [ The Commission's functions]:
moved Amendment No. 132:
Page 26, line 3, at end insert—
("() The Commission shall, before the end of the period of two years beginning with the commencement of this section, make to the Secretary of State such recommendations as it thinks fit for improving—(a) its effectiveness; (b) the adequacy and effectiveness of the functions conferred on it by this Part; and (c) the adequacy and effectiveness of the provisions of this Part relating to.").
The noble Lord said: Amendment No. 132 relates to Clause 54, which sets out the functions of the Northern Ireland human rights commission. The clause is designed to reflect the list of functions in paragraph 5 of the Rights, Safeguards and Equality of Opportunity section of the agreement. The commission will keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights. The Bill does not attempt to restrict the meaning of "human rights". It is deliberately intended to be wide, enabling the commission itself to identify what it considers constitute such rights.
It will advise the Government and the Executive Committee of measures which ought to be taken for the protection of human rights. The Bill provides that it will see all proposed Assembly Bills and will be able to offer an opinion on whether they are compatible with the European Convention on Human Rights. It will be able to help people whose rights have been denied or abused. It will develop, through education and research, an active human rights culture in Northern Ireland. It will consult and advise as a matter of priority on the drawing up of a Bill of Rights to suit Northern Ireland's particular needs. It will do everything it can to ensure that the North-South human rights committee envisaged by the agreement is set up.
We have listened carefully to various arguments which have been put, not only in this Chamber this evening but also outside, in many useful conversations and discussions. We have not closed our minds on any issue and therefore we are bringing forward this amendment, which I hope will meet with general agreement and satisfaction, to require the commission not later than two years after establishment to review the adequacy of its powers. I beg to move.
As I listened to the Minister, I was thinking how good it would be if we could have a body of this kind for Great Britain as well as Northern Ireland to promote a culture of liberty and the full implementation of the rights of the rest of us in this part of the United Kingdom. Unfortunately, that is beyond the scope of this Bill although fortunately the Minister has a responsibility in Great Britain as well as in Northern Ireland.
This amendment has been included to counter the criticism made by the Committee for the Administration of Justice and other non-governmental groups in Northern Ireland that the new commission has not been given adequate powers. The Government have responded by suggesting that the commission can review its own functions and powers after two years of operation and then recommend changes. Of course we welcome that on the old principle that a quarter of a loaf is better than no bread. But it still falls short of the international standards set out in the UN-sponsored Paris Principles 1991 concerning the status of national human rights commissions where human rights commissions are supposed to be given sufficient powers from the start. There is of course no guarantee that the commission will recommend an extension of its powers nor any requirement for the Government, the Assembly or Parliament to act on the commission's recommendations. So while we welcome the amendment wholeheartedly, we very much hope that when we come to the later amendments, including those tabled in the name of the noble and learned Lord, Lord Archer of Sandwell, we will be able to strengthen the existing powers now to be given to the human rights commission rather than wait for the result of a review in two years' time. We therefore support the amendment but will come back to the powers of the commission later.I welcome the government amendment. It will be helpful, particularly when the commission has had a chance to establish its first priorities for spending money, and then to review how they have worked out in practice. As regards the Paris Principles, referred to by the noble Lord, Lord Lester of Herne Hill, I would just mention that a piece of work in which I was involved in a minor way and which ended up as a book, published by Macmillan, entitled Human Rights in Great Britain and Ireland—meaning the whole of Ireland, north and south—actually proposed such a commission quite some time in advance of the 1991 text.
Bearing in mind the practice in the rest of the United Kingdom, we think that the noble Minister has got this matter in his amendment exactly right.
That is very generous—not unexpectedly, because the noble Lord is always generous. As I read out the menu I thought that I detected the ghost of times past in the conversations that the noble Lord, Lord Lester of Herne Hill, and I have had on many occasions, as to his desired menu for the rest of the United Kingdom. All I can say is that this is very, very substantially more than a quarter of a loaf: I think it is a good three-quarters.
On Question, amendment agreed to.
moved Amendment No. 133:
Page 26, line 3, at end insert—
("() The Commission shall be as concerned with issues of discrimination on grounds of age and sexual orientation as they are with other forms of discrimination.").
The noble Lord said: I beg leave to move this amendment on behalf of my noble friend Lord Morris who is unable to be here this evening. In moving Amendment No. 133 I shall, with permission, also speak to Amendment No. 134.
Amendment No. 133 deals with a matter which we have dealt with before in Amendment No. 130, which proposes legislation for Northern Ireland to prohibit discrimination on grounds of age or sexual orientation. In reply to earlier criticisms, I would say that in the light of Amendment No. 132, which we have just passed, if the commission is surveying various things about its effectiveness, and so on, it may as well take on board whether these two additional grounds for discrimination are worth including, or not. I certainly think that they are worth including, but I shall not speak any further because I am sure that at this late hour your Lordships will want to make progress.
Amendment No. 134 proposes that matters referring to an equality commission should be under the human rights commission. Again, I do not want to speak very much about that because my noble friend explained it all in a speech on an earlier occasion. I only wish to say that I strongly support the proposed subsection (1C)(a), which is about resources. The Committee will recall that at Second Reading the noble Lord, Lord Molyneaux, and other speakers, including myself, expressed some anxiety that resources may not be available for what might be called non-controversial grounds for discrimination because they were neglected whereas the more controversial grounds were given more money. I therefore think it is very important that subsection (1C)(a) should be taken seriously. I beg to move.
If amendments like Amendment No. 133 are not agreed to, is there not a danger that Northern Ireland, to a greater extent than anywhere else in the United Kingdom, will become a paradise for the politically correct, therefore a paradise for the litigious and hence a paradise for lawyers?
I am sorry that the Minister thinks that I am the ghost of times past; I always felt that I was the spirit of the future. Being an optimist by nature I continue to battle for the same commitment for equality by this Government as was demonstrated by a government I had the honour to serve in 1974 to 1976. We were then a minority government facing an embattled opposition as we sought to legislate for equality.
I have great sympathy for what is behind these amendments. However, because of the way in which the Government are legislating, I feel that the amendments are being put into the wrong box. Perhaps I can speak about the separate boxes which trouble me. It is right to have one body called an equality commission and another called a human rights commission. Each deals with a different aspect of human rights. Equality without discrimination is just as much a basic human right in Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the European Convention on Human Rights. Equality is as much a part of human rights as prohibitions on torture, inhumane treatment or any other fundamental human right. But it is sensible to have a specialist enforcement mechanism to deal with equality without discrimination. The problem is that in the scheme of the Bill, which I am beginning to understand, the equality commission is to be a body subordinate to the Assembly whereas the human rights commission will have full constitutional status being accountable to the Secretary of State and the Westminster Parliament. Many people would agree that discrimination on grounds of age or sexual orientation is unfair, as is discrimination on any other ground. Therefore it is right that they should come within an equality code and that public authorities in Northern Ireland and everywhere else should be bound not to discriminate on those grounds. Amendment No. 133 is wrong, therefore, to seek to put sexual orientation and age discrimination into the human rights commission box rather than the equality commission box. That is the wrong place. They should be in the equality commission box, provided that what we get is a full-blooded equality commission of the same status as the human rights commission. Logically, discrimination belongs as part of the remit of the equality commission. On a rather narrow ground, therefore, I oppose Amendment No. 133 because it is concerned with discrimination and therefore is a matter for the equality commission rather than the human rights commission. But if the Government do not create an equality commission of equivalent status to the human rights commission I would change my mind and regard it as so fundamental to the rights of everyone in Northern Ireland that they be protected from discrimination on any unfair ground that I would rather have it dealt with by the human rights commission than nobody at all. At the moment, therefore, my mind is open. I oppose Amendment No. 133 at this stage as being better dealt with by the equality commission but will wait until a later stage in the debate to see what the Government intend to do about the status of the equality commission, at which time I may return to this subject. We are also dealing at this stage with Amendment No. 134. That would dissolve the Fair Employment Commission, the Equal Opportunities Commission, the Commission for Racial Equality and the Human Rights Council and give their functions to a human rights commission. That would essentially copy what the Government propose to do in establishing the equality commission; that is, give those functions to the human rights commission. While I agree that equality rights are a subset of human rights generally, merging all the equality agencies into a conglomerate human rights commission would rightly cause consternation among minorities in Northern Ireland. We have already seen a strong feeling in Northern Ireland among women—the Women's Coalition—the disabled and ethnic minority groups that this amalgamation into the equality commission will lead to a hierarchy of rights and so forth. I have been prepared to support the Government in creating a single equality commission on terms I have indicated before. But it would add to the sense of unfairness if the equality agencies were to be amalgamated not just into an equality commission, but also into a human rights commission which will have a vast range of matters to deal with; for example, the entire contents of the European Convention on Human Rights and the International Covenant on Civil and Political Rights. I apologise for having taken a few minutes to explain myself, but for those reasons I am opposed to Amendments Nos. 133 and 134, although I entirely understand why they were tabled.The Opposition believe that Amendment No. 133 is rather premature. In relation to Amendment No. 134, it would be impertinent of me to add anything to what the noble Lord, Lord Lester, said, with which I entirely concur.
The noble Lord, Lord Monson, said that if these amendments were agreed it would be a litigious paradise for lawyers. That is a compelling argument for my accepting the amendment. However, I shall resist that temptation.
We have not strictly defined human rights in the Bill and I am happy to repeat that if the commission chooses to concern itself with human rights involving issues of discrimination it will be free to do so without the need for special provision. We want it to develop organically with its own sense of purpose and priorities in a very difficult situation. Amendment No. 134, as has been said, would subsume the functions of the equality commission into the human rights commission. We are trying as far as possible to implement the Belfast agreement, which envisaged an equality commission and a human rights commission as two distinct bodies. I therefore invite my noble friend Lord Desai not to press the amendment.I thank all Members of this Committee who have spoken in the debate. I am reassured by what my noble friend Lord Williams said on Amendment No. 133 and take heart from that. Before I proceed to withdraw the amendment perhaps I may say that the argument of the noble Lord, Lord Lester, in general in relation to the unequal status of the two bodies should perhaps make him favour equality issues coming under an independent human rights commission, which would have a higher status than an equality commission. However, I shall not press that.
I see that there is a difference, but eventually I consider these things to be very much a part of the European Convention on Human Rights, the universal declaration or the social and political rights convention and they could be merged. I do not want to press that. I am grateful for my noble friend's comments and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 134 not moved.]
moved Amendment No. 135:
Page 26, line 9, at end insert—
("(2A) The Executive Committee of the Assembly shall refer all proposed Bills in draft to the Commission.").
The noble Lord said: Amendment No. 135 should perhaps have been inserted earlier in the Bill to replace Clause 11(4)(a) which requires Bills to be sent to the commission as soon as reasonably practicable after introduction.
The purpose of my amendment is to save time and to enable human rights scrutiny to begin while Bills are still in draft form and therefore are probably more malleable. I trust that this is a simple proposal which is likely to have good and practical consequences.
In moving Amendment No. 135, I should like to speak also to Amendments Nos. 136 and 138 which stand in my name. These amendments widen the scope of the commission's work slightly by giving it a right to look at, and to comment on, Westminster Bills which could affect human rights in Northern Ireland. As I understand it, "the Secretary of State" mentioned means the Secretary of State responsible for a particular Bill or for the subject matter of a Private Member's Bill. It would be most unfortunate if some oversight here in Westminster or in Whitehall were to prejudice human rights in Northern Ireland. Those amendments, and Amendment No. 137 which is consequential, are intended to prevent such a possibility. I beg to move.
The amendments which stand in the name of the noble Lord, Lord Hylton, seek to provide that the executive committee of the Assembly shall refer all proposed Bills to the commission. I entirely agree with that. Indeed, I agree with everything that the noble Lord said and, at this time in the evening I do not think that the argument would benefit if I were to repeat what he said.
I derive a further feeling of comfort from the fact that, following discussion elsewhere, the Bill now provides that the commission shall not have to wait for a request from the Assembly before tendering advice; it may tender unsolicited advice. Those who care about human rights in Northern Ireland are grateful for that. A commission which was not empowered to tender unsolicited advice would be a poor thing indeed. I pay tribute to the receptive ears of my noble friends on the Front Bench who have responded to some of our representations. It is always a delight when either my noble friend Lord Dubs or my noble friend Lord Williams of Mostyn responds to one of our amendments.Oh!
I do not expect that flattery will carry my cause very much further, but I thought that that should be said.
I rise to speak simply to my amendment, Amendment No. 136A, which seeks to address the converse anxiety. At present, as I understand it, the Bill would compel the commission to respond to any request for advice from the Executive or the Assembly. Those of us who have been involved with non-governmental organisations, commissions and quangos know that if the commission receives too many requests it may well become over-burdened, especially if its resources are limited—and somehow I do not see this particular coffer being overflowing. The commission could then be inhibited from concentrating on the Bills which it believes demand its concentration. I believe that the commission will be more effective if it has full control over its own workload. I am assuming that normally it will want to respond to requests for advice. However, I believe that it should be left to the commission to apportion its own resources. My amendment would provide that the commission is not bound to respond to every request for advice and, in due course, as at present advised, I shall seek to move it.I entirely agree with everything that has been said by the noble and learned Lord, Lord Archer of Sandwell. I support Amendment No. 136A, which stands in his name, for the reasons that he has given, including not overloading the human rights commission.
I entirely agree with the aim of Amendment No. 135. I simply wonder whether the matter could be dealt with without writing it on the face of the Bill but by an undertaking being given by the Government that they would expect all proposed Bills to be referred to the human rights commission before publication. Perhaps the standing orders of the Assembly should be amended to ensure compliance with that. Obviously, it is sensible for all proposed Bills to be referred to the human rights commission before publication—that is, before public positions have been taken up—rather as in France the Council of State considers draft legislation at an early stage. On Amendment No. 137, I believe that, for the reasons given by the noble and learned Lord, Lord Archer, its provisions would be a time-consuming and oppressive remedy and I would not favour that. The provisions of Amendment No. 138 would make sense because the Westminster Parliament will still have the ability to enact legislation that may affect human rights in Northern Ireland and therefore it seems sensible to enable the human rights commission to comment on Westminster legislation of that kind. Westminster would retain the obligation to observe international human rights conventions, but it would be logical for the commission also to have that function.I have some reservations about the executive committee referring all proposed Bills to the commission in draft. It seems to me as a matter of principle to contravene the separation of powers. Informal discussions between the commission and the executive committee would be perfectly proper. In my view, the development of such a practice would meet adequately the concerns expressed by the noble and learned Lord, Lord Archer of Sandwell.
On the other hand, I entirely endorse what lies behind the drafting of subsection (3A) as suggested in Amendment No. 136A. The obligation for the commission to advise the Assembly on every Bill would be not only excessively onerous on the commission, but also, in terms of the business of the Assembly, excessively onerous on the Assembly. For that reason, I am greatly attracted by the amendment and urge the Government to consider it seriously.Again, I am grateful for the contributions that have been made because I do not think that the end purpose towards which we are working differs between us. Essentially, it is a matter of emphasis and judgment.
Perhaps I may deal with the amendments in sequence. Amendments Nos. 135, 136, 137 and 138 stand in the name of the noble Lord, Lord Hylton. They would add to the existing requirement in Clause 11 for the Assembly to refer a copy of each Bill, as soon as reasonably practicable, to the Northern Ireland human rights commission. One of the commission's key functions is to consider draft legislation referred to it by the Assembly. We think that Clause 11 has got it about right. It requires that all legislation be referred to the commission, but with the commission having the appropriate and necessary freedom to give its advice only when it thinks necessary, except in those cases where the Assembly specifically requests such advice. If the Assembly so decides, it could refer proposed legislation to the commission at a much earlier stage. For those reasons, which I have given shortly, I believe that Clause 11 has got it about right, bearing in mind that we want the Assembly to have discretion within appropriate parameters. The amendments would also require Bills introduced in Parliament to be submitted to the commission if they appear to affect human rights in Northern Ireland. We do not think that that is necessary because Westminster Bills will be subject to the regime proposed in the Human Rights Bill to ensure that Ministers consider their compatibility with the European Convention on Human Rights. As is well known to the Committee, in the future every Minister introducing a Bill will have to certify compatibility or non-compatibility with the convention. That will be part of a Minister's duties when introducing a Bill.I am grateful to the Minister for giving way. I understand what he has just said, but that applies only to the European Convention on Human Rights. A great gap in that convention is that the guarantee of equality without discrimination is much weaker than under Article 26 of the International Covenant on Civil and Political Rights. Therefore, that mechanism of certifying Bills will be confined to only the European Convention on Human Rights, not the covenant. There will therefore be a gap in that element of parliamentary scrutiny. I wonder whether that might be considered hereafter.
9 p.m.
I certainly undertake to consider that. The answer to the noble Lord's point—which I think is a fair one in terms of being accurately descriptive—is that any government are free, without special provision, to send future Westminster Bills in draft to the commission for comment. I refer to a point that was made earlier; namely, that one does not want to overload the commission in the early stages when it will have a vast workload. That is an important point which I believe was made by my noble and learned friend Lord Archer of Sandwell.
I am grateful to my noble friend for apparently agreeing with my argument. If I now appear to be backpedalling it is because I think there is a danger in what he has just said. Human rights are not a purely academic exercise. It is important that someone who is close to the grassroots and to the daily life of people should be able to advise on where human rights bite. Would not there be that advantage in submitting them to the commission in Northern Ireland, which would not have to respond?
There is an advantage in that. Equally, there is an advantage in flexibility and looking at the organic development of the commission's work in Northern Ireland where conditions are quite different historically and presently from experience in the rest of the United Kingdom. We all know that, otherwise we would not be discussing this Bill. Therefore we oppose these amendments. We think they are unduly prescriptive.
Amendment No. 136A stands in the name of my noble and learned friend Lord Archer of Sandwell. It requires the executive committee to refer all proposed Bills to the commission in draft. However, it also requires the Assembly to take into account the commission's advice on the human rights compatibility of the proposed Bill. We do not think that requirement ought to exist and we do not think that the Assembly should be required to take into account the advice of the commission. There is a difficulty that if the commission is overburdened and delays giving advice, the passage of legislation which might otherwise be desirable could be held up. The agreement does not of course say anything about the Assembly having a duty to take the commission's advice into account. I do not always regard the agreement as holy writ but it is extremely important beyond its own wording. The agreement was concluded with great difficulty. The agreement provides at page 17 only that the commission should consider draft legislation referred to it by the Assembly. The existing clause reflects the agreement. I do not say this out of faintheartedness—I think I have a deeper purpose—but one wants to be extremely cautious (I think the noble Lord, Lord Cope of Berkeley, mentioned this earlier in our discussions) in going outside the ambit of the agreement.Before the Minister sits down, I wish to make a comment which I hope is helpful in considering this amendment. Am I right in thinking that whatever we do on this Bill it would still be open to Parliament to create the Select Committee on human rights that has been promised or indicated in the Government's White Paper on the Human Rights Bill, and that that Parliamentary Select Committee could be given the function, if Parliament so wished, of scrutinising measures of the Westminster Parliament to ensure that they are compatible with human rights in the wide sense?
I am obliged for that helpful indication. As the noble Lord will know, the noble and learned Lord the Lord Chancellor said in his Second Reading speech in introducing the Human Rights Bill in your Lordships' House—I paraphrase, I think fairly, as I had something to do with the drafting of the measure—that we would give a fair wind to any proposal to set up either a Commons committee, a Lords committee or a Joint parliamentary Committee to deal with these matters. That remains the Government's position. It seems to me that that Joint Committee—if it is set up—would have whatever remit it decided was appropriate at that time. I am happy to give that understanding.
I am grateful for everything that has been said on this group of amendments. I should have underlined earlier that the Belfast agreement at paragraph 5 on page 17 specifically refers to the submission of Bills in draft. I can go along with the suggestion of the noble Lord, Lord Lester, that the submission of these Bills in draft should, or might be, covered by standing orders of the Assembly. I do not think there is anyone in this Chamber—I stand open to correction, however—who can deliver such a commitment on behalf of the Assembly. Having said that, it is quite possible that the drafting of the noble and learned Lord, Lord Archer of Sandwell, is superior to mine. I have an open mind on that. However, I should now withdraw Amendment No. 135. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 136 not moved.]
had given notice of his intention to move Amendment No. 136A:
Page 26, line 10, leave out subsection (3) and insert—
("(3) The Executive Committee shall refer all proposed Bills to the Commission in draft.
(3A) The Commission may advise the Assembly whether a proposed Bill is compatible with human rights as the Commission thinks appropriate.
(3B) The Assembly shall take such advice into account when considering the proposed Bill.").
The noble and learned Lord said: It is a lesson which I learned long ago, but constantly forget, that the longer one's amendments, the longer is the flank which is exposed to attack. What I really wanted to propose was that the commission may respond rather than shall respond. However, I promise to read carefully what my noble friend has said. For the moment I shall not move Amendment No. 136A.
[ Amendment No. 136A not moved.]
[ Amendments Nos. 137 and 138 not moved.]
moved Amendment No. 139:
Page 26, line 24, at end insert—
("() For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.").
The noble Lord said: In moving Amendment No. 139 I wish to speak also to Amendment No. 140 in the name of the noble Lord, Lord Hylton. Government Amendment No. 139 states:
"For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient".
This amendment has been tabled in response to many representations that have been made to us. We found the arguments to be persuasive and therefore adopted them and incorporated them in this amendment. Above all, it is designed to be a facilitating amendment. As I said, we have had many representations. They were carefully considered and we found them to be persuasive. The commission may want to consult affected individuals. It may want to carry out research into specific incidents, or indeed a pattern of activity.
The basis of Amendment No. 140 is that the commission may have certain powers, including the power of compulsion in respect of the attendance of witnesses and the production of documents. A number of noble Lords have on different occasions said that the commission should be able to obtain information under compulsion if necessary even where no individual is alleging that his or her human rights have been breached or even where no case is being brought before the courts. Not all, but a number of Northern Ireland parties have supported that. We do not want the commission to be a toothless body. However, our overriding purpose is to implement the Good Friday agreement. The agreement is silent as to whether the commission should have available to it formal powers of compulsion. There is a good deal of detail filled in about where the agreement is silent. However, in all significant areas we have looked for—and by and large have achieved—consensus.
My honourable friend the Minister of State has had extensive consultations with the parties to the agreement. Most supported the sort of powers advocated in this amendment. However, we do not believe that there is a sufficient consensus. Therefore, having come to a fairly careful conclusion, we believe it would be wrong to re-open this issue. We are sympathetic to the point underlying Amendment No. 140. I know that and understand it well even before the noble Lord develops his theme. However, we believe that it is wrong to proceed in this Bill where there is not a sufficient consensus. I hope that our open-minded view on Amendment No. 139 may reassure noble Lords that to press Amendment No. 140 at this time would not be sensible or prudent. I beg to move.
I submit that my Amendment No. 140 is superior to Government Amendment No. 139 on two grounds. First, it is slightly more precise in that it limits investigations to breaches of the Human Rights Act 1998 and to offences arising under Clauses 61 and 62 of this Bill. That might well be far enough to go, at least during the first two years of the new commission's existence. I should add that Clauses 61 and 62 are specific to Northern Ireland, concerning as they do discrimination and unlawful oaths.
Secondly, my amendment has teeth in it, unlike that of the Government. These would enable it to compel the attendance of witnesses and the production of documents in ways similar to those that have always been available to the High Court. My understanding is that the Fair Employment Commission and the ombudsman already have similar powers at the present time. I cannot see how the human rights commission can be sure of properly investigating uncooperative people without such powers. I believe that the comparable commission in Australia has such powers but in practice has been able to use them only sparingly. If on consideration the Government conclude that some saving for national security in Northern Ireland is required, I should be willing to consider a further amendment. I commend my amendment to the Committee.My noble friend has again been handsomely forthcoming. I hope that he will not think that some of us who are pressing him to go further are simply being tiresome. I appreciate the argument that it might be counter-productive to press the matter further than the agreement goes. I take that point fully on board. Perhaps I may suggest that when my noble friend comes to reflect on this matter there is an argument on the other side; namely, the disaster that would follow if it transpired that the commission was ineffective. It needs to have an effective path to investigate if it is to fulfil its other functions.
Let us briefly examine three of its functions. It is there to provide advice to the Secretary of State and to the executive committee. It is difficult to see how it can do that effectively unless it can investigate where the breaches are occurring. Otherwise, the advice is likely to be concerned not with the real world but with a somewhat academic exercise—I say academic exercise, but I must break myself of a habit of calling something academic when I mean that it does not really matter. I apologise to my academic friends. It would be a somewhat theoretical exercise. Its second purpose is to give assistance to individuals. Again, that assistance is presumably with regard to pursuing specific complaints. How is it to decide what complaints should be pursued, and how, if it cannot investigate effectively? Thirdly, it is to promote understanding and awareness of the importance of human rights. That can be effective only in relation to matters where human rights are being infringed or denied. This is not about understanding of a set of jurisprudential principles; it is about respect for the practical needs and feelings of individuals in everyday life. Those purposes embrace a wide spectrum of situations. Some will require only a very minor investigation: they may require listening to someone making a complaint or asking someone questions to which the answers will be readily forthcoming. They may entail a much wider investigation, requiring people to give advice, information and assistance. I hope the powers would be used with restraint. Unless they are available where they are needed, it may well transpire that the commission will be ineffective. I do not say that dogmatically. I hope that the noble Lord, Lord Hylton, will not press his amendment tonight, but that is a question for him. This is a matter on which we should all reflect; the arguments are by no means all one way.9.15 p.m.
I speak in the same spirit as all who have spoken so far in the debate. We are all trying to make these provisions in the Bill effective without going further than is necessary.
I greatly welcome Amendment No. 139, which shows precisely the open-minded attitude that Ministers have indicated in this Chamber as regards this part of the Bill. The problem with the amendment is that, although it empowers the human rights commission to,it does not spell out any specific powers that are needed when the going gets tough. I have hesitations about giving any body subpoena powers. We did it in respect of the equal opportunities commissions, the commissions for racial equality, the fair employment commission and, I think, the Ombudsman for Northern Ireland. Those subpoena powers have been carefully drawn so that they apply only in cases of suspected unlawful conduct, and they are subject to judicial control. In other words, there has to be, where necessary, an order from a court of competent jurisdiction before the powers can be exercised. Those safeguards seem to me to be essential. As the noble Lord, Lord Hylton, said, bodies that have these powers have rarely found them necessary in practice. The existence of the powers usually induces sensible bodies and individuals to co-operate without the powers having to be exercised. I can think of scarcely a single instance since the mid-1970s when subpoena powers have been necessary, but their existence in carefully defined circumstances has undoubtedly promoted the effectiveness of an investigation. If we resist the spirit of Amendment No. 140 and do nothing to add to the provisions in Amendment No. 139 during the Bill's passage through this House, a strange situation will result. The equality commission, which will inherit the powers of the existing equality agencies, will have subpoena powers under the fair employment, sex discrimination and race relations legislation. Under the terms of Clause 61, religious discrimination by a public authority is not a matter which comes within the remit of the equality commission. A public authority may be discriminating on religious grounds in breach of Clause 61, but there are to be no subpoena powers where there is suspected unlawful conduct in breach of that clause, yet subpoena powers are to be enjoyed by the equality commission where there is suspected unlawful religious, sex or racial discrimination by an employer. I do not believe that that makes much sense. I believe that we should try to produce rational and consistent powers to make absolutely sure that there are safeguards for those who are being investigated and we do not make martyrs of people by giving excessive powers or inadequate judicial protection. In short, I strongly support the Government's amendment and also the amendment moved by the noble Lord, Lord Hylton. However, I believe that further consideration should be given to ways of tightening up the provision so that the human rights commission is endowed with no more powers than are strictly necessary to ensure the effectiveness of its investigations. Obviously, to have access to relevant information is crucial, and when dealing with a recalcitrant, cantankerous, obstinate or stupid respondent the commission requires reserve powers to deal with the matter. One hopes that those powers will never be exercised, but if they are not put into the Bill at all one may produce an ineffectual commission which will be a tragedy for the whole enterprise."conduct such investigations as it considers necessary or expedient",
In all such matters I bow to the sound judgment of the Minister and other noble Lords who are learned in the law. One wonders whether the Amendment No. 149 powers undermine to some extent the judiciary in Northern Ireland. Noble Lords with first-hand knowledge of legal matters in Northern Ireland will concede that the Northern Ireland judiciary has been the one solid rock throughout all the decades of troubles.
I agree with the Minister that the Government have an obligation to implement the Good Friday agreement in full. I suggest that there are some serious dangers if they go beyond that into what has been very reasonably proposed by the noble Lord, Lord Hylton. The commission would be under constant pressure to use these draconian powers if Parliament granted them and it would be very difficult for it to resist all-corners. To revert to a point made earlier by the noble Lord, Lord Monson, I am afraid that this may become something of an industry. As to the matter raised by my noble and learned friend Lord Archer, based on first-hand knowledge of the situation in Northern Ireland in which he has taken a very great interest he will admit that in its previous incarnation the Advisory Commission on Human Rights, which is now to be phased out, has proved to be extremely effective. I am equally optimistic and hopeful about what is proposed in the Bill.The Opposition support Amendment No. 139 and congratulate the Government on introducing it. As far as Amendment No. 140 is concerned, I am inclined to the view expressed by the noble Lord, Lord Molyneaux, rather than that expressed by the noble Lord, Lord Lester. As time goes by it may well be desirable to put flesh on the generally expressed power to investigate under Amendment No. 139; but we should move towards that in stages and react to the experience of the commission over time.
It strikes me that the drafting of Amendment No. 140 almost produces an institution that mirrors the powers of a court. So trenchant are these powers that, were they ever introduced, it is to be hoped that the exercise of them would itself be subject to the human rights provisions.I am a member of the Northern Ireland Bar. I am more than happy to endorse what was said courteously by the noble Lord, Lord Molyneaux. The judiciary in Northern Ireland over the past 25 years has been a body of extraordinary courage, quality and independence. Every lawyer to whom I have ever spoken, whatever his private political beliefs, has been able to endorse that.
Amendment No. 139 gives a wide remit, and that is deliberate. I take the point about Australia. I am familiar with the Australian commissioner, Mr. Sedoti, who has done excellent work. But in Northern Ireland at present we are inching forward slowly by consent. I think that I can say four things which should be of assistance to allay some fears. First, the Government will fully co-operate with any investigation undertaken by the commission. We will provide it with any information and any necessary documents subject only to proper adequate arrangements to protect information where confidentiality is necessary to safeguard national security, public safety and public order. I believe that that is an important undertaking which I willingly give. Secondly, if the commission considers that it is being truly frustrated in obtaining the necessary information, we would expect the commission to say so robustly and to draw that to the attention of Parliament and the Assembly in the context of a failure to co-operate. It is then open either to the Assembly or to either House of Parliament here to take up the investigation and use its own powers to compel witnesses and the production of documents. We would not expect the commission to be shy in doing that. Thirdly—I make this absolutely plain—the Government have not closed their mind on this issue. Indeed, we are sympathetic to the arguments advanced by noble Lords. That is why we brought forward amendments to require the commission, not later than two years after its establishment—it is a quite tight timescale—to review the adequacy of its powers. This is not the long grass syndrome; quite the reverse. Two years is quite short in the lifetime of such a commission. Fourthly, if the commission reported that it had been frustrated in carrying out its work, we believe that that would offer a powerful case for legislation to deal with the absence of the powers. And if there were broad consensus among the Assembly that the commission should have additional powers, I undertake that the Government will look sympathetically at legislation to provide them. I think that the wide remit and those four observations and undertakings I have given are pretty strong and, I hope, acceptable.On Question, amendment agreed to.
Clause 54, as amended, agreed to.
moved Amendment No. 140:
After Clause 54, insert the following new clause—
Investigations, Etc
(".—(1) The Commission may conduct such investigations as they consider appropriate to determine whether a breach of—
has occurred or may occur.
(2) Where the Commission propose to conduct an investigation under this section, they shall publicise the fact and shall afford an opportunity to those with sufficient interest to comment on the desirability of conducting such an investigation.
(3) The Commission may require any person who in their opinion is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such documents.
(4) For the purposes of an investigation the Commission shall have the same powers as the Court in respect of—
(5) If any person without lawful excuse obstructs the Commission or any officer of the Commission in the performance of their or his functions under this section, or is guilty of any act or omission in relation to any investigation under this section which, if that investigation were a proceeding in the Court, would constitute contempt of court, the Commission may certify the offence to the Court.
(6) Where an offence is certified under subsection (5), the Court may inquire into the matter and deal with the person referred to in that subsection in any manner in which the Court could deal with him if he had committed the like offence in relation to the Court.
(7) If, after conducting an investigation under this section, it appears to the Commission appropriate, they may lay a special report before each House of Parliament and the Assembly.
(8) In this section "Court" means the High Court in Northern Ireland.").
The noble Lord said: In moving the amendment, perhaps I may say this to the noble Lord, Lord Molyneaux. I am sure that he will be well aware that the old Standing Advisory Commission on Human Rights is a totally different animal from the proposed new human rights commission. They are barely comparable. I beg to move.
There is a certain ancestry. I believe that it has established a fairly good model with good foundations for future development.
I do not deny that. I am grateful to the Minister for the four assurances he gave. However, I hope that between now and Report stage it might be possible to draw together the best points arising from Amendment No. 139 and my amendment, Amendment No. 140, in order to come forward with something new.
We have yet to consider later amendments standing in the name of the noble and learned Lord, Lord Archer of Sandwell, which concern judicial review and injunctions. Those may go some way to meeting the points I sought to raise about investigations and compulsory powers. Having said that, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
9.30 p.m.
Clause 55 [ Assistance to individuals]:
moved Amendment No. 141:
Page 26, line 34, leave out from ("to") to end of line 38 and insert—
The noble Lord said: Government Amendment No. 141 widens the ambit of the clause so that the commission will be able to assist persons in any proceedings which, in the view of the commission, involve the law or practice relating to the protection of human rights.
We want to give the commission a wide discretion. That is why we have brought the amendment forward. The commission will therefore be free to assist persons in cases beyond those involving breaches of rights under the European Convention on Human Rights and under what I hope will become the Human Rights Act. That was all that the Bill as originally drafted allowed. It is our intention that it should be free to assist in cases involving breaches of Clauses 61 and 62 of the Bill which deal with discrimination by public authorities and the making of unlawful oaths.
The width of the commission's remit means that there may well be some overlap with the remit of the equality commission. The Government therefore propose that the way to address the proper relationship between the commission and other relevant bodies should be in a non-statutory "memorandum of understanding" agreed between the Government and the commission and by separate non-statutory arrangements agreed between the two commissions.
I hope that the changes which the Government propose to the clause will enable the noble and learned Lord, Lord Archer, and the noble Lords, Lord Hylton and Lord Lester, not to seek to press Amendments Nos. 142 and 143.
Amendments Nos. 144 to 148 are technical improvements which ensure that the Bill allows the commission to assist "persons" rather than simply "individuals". I beg to move.
Once again we are engaged in dialogue. That will go into my diary. My noble friend's amendment addresses the same point as the amendment that I shall seek to move. We do not provide quite the same answer.
Clause 55 is about the power of the commission to assist an individual in bringing proceedings. Subsection (1) defines the proceedings for which assistance may be given. As my noble friend said, as at present defined it is limited to proceedings under the Human Rights Act. He seeks to extend that as he indicated. I appreciate that my attempt to address the problem goes wider and is subject to the criticism indicated earlier by the noble Lord, Lord Lester, that there would be an overlap between the jurisdiction of the commission and the jurisdiction of the equality commission. The reason why I thought the overlap might be a price worth paying was that the question arises: what would be the position if the same individual sought to rely both on the provisions of the Human Rights Act, or the further provisions which my noble friend has extended to that subsection, and the legislation relating to discrimination? It would be absurd if someone needed to go first to the human rights commission for assistance with one part of his claim and then solemnly to the equality commission for assistance with the other part, particularly if both were involved in the same proceedings. I have considered my noble friend's amendment and I very much welcome it. Given the scheme of the Bill, I wonder whether it would meet the situation which I have endeavoured to indicate. I believe that my noble friend has now very helpfully made it clear that it is not intended to go more widely into the sphere of anti-discrimination than most of us thought. In those circumstances, if it is the Government's intention that the power should not apply, I believe that we are entitled to ask the Minister how he would address the problem of the proceedings which embrace both sets of provisions. I noted the amendment of the noble Lord, Lord Lester. I certainly would not pretend that my drafting is an improvement on his. At this stage I am content to await the debate and then we can see how to proceed from there. I believe it is right that we pay tribute to the Government. In another place Mr. Paul Murphy indicated that the Government were going to reflect on this matter in the interim period, and clearly they have done so. I am sure that they are not surprised that we also have reflected, together with a number of people closely concerned with human rights in Northern Ireland. It may be that together we can deal with the problems which exist without necessarily trespassing on the ground that troubles my noble friend.I pay tribute to the Government for tabling Amendment No. 141. Before I come to that may I say in response to the earlier debate that I, too, am a member of the Northern Ireland Bar, which I regard as an enormous privilege. I pay particular tribute to the independence and impartiality of the judges there, who are among the bravest people I have ever had the privilege of knowing. They have managed to uphold the rule of law in terrible circumstances and at great personal deprivation.
I support Amendment No. 141. I wish that we had something like it for the people of England, Wales and Scotland. I say that because I have been depressed to read a ministerial response to a Question for Written Answer in which I asked whether, under the Human Rights Act, the Government would instruct their counsel not to ask for costs except in abusive or vexatious cases brought under the Human Rights Act. The answer was that they intended to instruct their counsel to ask for costs from unsuccessful applicants under that Act. Of course, in Northern Ireland the position would be quite different, because under Amendment No. 141 the human rights commission will have the power to give financial assistance for proceedings brought under the Human Rights Act and under the Northern Ireland Act. In the end I hope that we shall find something similar on this side of the Irish Sea so that we can enjoy genuine access to justice here as well. Subject to clarification from the Minister, it seems to me that Amendment No. 141 is wide enough to cover what is in Amendments Nos. 142 and 143. Amendment No. 141 covers assistance for proceedings involving law or practice relating to the protection of human rights. I take it that that includes proceedings for unlawful religious discrimination by public authorities and everything else which is in Amendment No. 142 or 143. For example, in Amendment No. 143, which is my own amendment, I assume that it will include action contrary to Section 6(2)(e) of the Act—I hope the noble Lord will forgive me. I thought that originally. I was somewhat troubled because I believe there is some ambiguity about it. To some extent that was resolved by my noble friend Lord Williams, who said that that was not the Government's intention and that they did not intend to cover the whole area of discrimination.
I am grateful. If that is right, speaking for myself, I do not mind whether the equality commission or the human rights commission has the power to grant individuals assistance for access to justice as long as one or other of them has that power. I do not mind if the matter is dealt with by administrative arrangements between each commission and the Government. That seems to me to be perfectly sensible. All I am concerned about is that there should not be a hole in the middle. In other words, any breaches of human rights law, including the equality code, should be capable of being assisted either by the human rights commission or by the equality commission, with suitable dovetailing arrangements to avoid wasteful duplication. Provided that we can get those assurances, it then becomes purely a matter of plumbing of machinery.
The key question is: are individuals, including companies, because of the addition of the word "person" as a substitution for "individual", who are victims of human rights violations—whether of quality of treatment or in other ways—able to be assisted in meritorious cases by a statutory agency? Provided that the answer to that is yes, I would not wish to move Amendment No. 143. That would mean that the Government ensure that that is covered by one means or another and I would therefore be entirely satisfied so far as Northern Ireland is concerned. I will continue to grumble with increasingly cantankerous noises if the Government do not do the same or similar on this side of the Irish Sea.It may be that the noble and learned Lord, Lord Archer, misheard me or I did not speak sufficiently clearly. I did say that under Amendment No. 141 it was our intention that the commission could assist cases under Clauses 61 and 62 of the Bill. I do not think that there is a hole in the middle. Our amendment is a wide and generous one. I will consider very carefully the points—which are of some technical detail—which the noble Lord, Lord Lester, and the noble and learned Lord, Lord Archer, have put. If we feel that we are not sufficiently astute in our present construction of Amendment No. 141—I think we are—it does not do any harm to think again.
Perhaps I too failed to make myself clear. What was troubling me was that the sections that were mentioned were to be confined to public authorities. They do not seem to deal with discrimination by private individuals.
That is so. I wanted to make it clear that I had referred to Clauses 61 and 62. Amendment No. 141 does not restrict itself to public authorities. I will think quite carefully again, together with the officials who have spent so much labour and time and enormous expertise in considering these matters. If we are wrong—I do not think we are—then we will return to the matter on Report.
Before the Minister sits down, could he also include Clause 6(2)(e) and Clause 19 (1)(c) as well as Clauses 61 and 62. I wholly welcome inserting "person" instead of "individual"—I have not spoken to that—and I wholly welcome Amendments Nos. 144 to 148, which seem very sensible.
I take all those points on board and undertake that either I or, preferably, my noble friend Lord Dubs will deal with them when we come to Report. In the meantime I commend Amendment No. 141.
On Question, amendment agreed to.
[ Amendment Nos. 142 and 143 not moved.]
moved Amendments Nos. 144 to 148:
Page 26, line 39, leave out ("individual") and insert ("person").
Page 27, line 1, leave out ("individual") and insert ("person").
Page 27, line 3, leave out ("individual's") and insert ("person's").
Page 27, line 13, leave out ("an individual") and insert ("a person").
Page 27, line 14, leave out ("individual") and insert ("person").
On Question, amendments agreed to.
Clause 55, as amended, agreed to.
moved Amendment No. 149:
After Clause 55, insert the following new clause—
Power To Seek Restraining Injunction
(" . Where the Commission consider that a person is likely to engage in conduct that will lead to a persistent breach of the provisions of—
they may apply to the High Court for an injunction preventing that person from such conduct; and the High Court, if satisfied that the
application is well founded, may grant the injunction sought in the terms applied for or in such more limited terms as it considers appropriate.").
The noble and learned Lord said: As we are all giving some biographical details, perhaps I should add myself to the list of those who are privileged to be members of the Northern Ireland Bar. I too would like to add to the very real tributes which have been paid to the moral and physical courage of the Northern Ireland judiciary, some of whom I am privileged to number among my friends.
This amendment approaches from a slightly different angle the question of the ability of the commission to engage in litigation. Amendment No. 149 seeks to deal with the situation where there has not merely been one isolated infringement of human rights but a pattern of violations. In fact, I was tempted to make the point by inserting the word "persistent" before the word "breach", but I resisted it because the necessity of establishing a persistent pattern has in the past sometimes given rise to difficulties.
If this power is not included, I suspect there will be occasions when a remedy which has sometimes been effective may not be available. I note Amendment No. 150 in the name of my noble friend Lord Morris and I am grateful for the reflections which have obviously been afforded to our representations. That amendment does not specifically refer to injunctions. It may be that I am being unduly cautious and that it would include injunctions, but I should be grateful for my noble friend's reflections on that.
Perhaps I may, with the Committee's leave, discuss with Amendment No. 149 Amendments Nos. 150 and 151. Amendment No. 151 takes a stage further our debates about the power of the commission to engage in litigation. I appreciate that Clause 56 accords with the policy of the Human Rights Act to confine the right of action to victims. I appreciate the reasoning behind that. But, as I understand it, the Human Rights Act does not address the power of a commission of the kind we are discussing here. It would be very strange if the commission did not have power to undertake litigation of its own accord and not necessarily have to wait for the victim.
I say that for two reasons. First, an individual victim may be reluctant to initiate proceedings. He may be threatened; or, even if he is not specifically threatened, he may be intimidated or he may be under pressure from a peer group. Secondly, an assault on human rights may be directed at a group or class of people. I appreciate the amendment which the Government have moved to extend the protection to persons as opposed to individuals, but that would not necessarily include groups or classes. For those reasons, I would ask that the restriction to a victim of an infringement should be extended at least a little. I am content at this late stage to await what my noble friend says about this. For the moment, I beg to move.
9.45 p.m.
Amendment No. 149 gives the human rights commission the same power as is already given to the EOC, the CRE and the FEC, all of which, in the equality field—certainly the CRE and the EOC—can bring proceedings to deal with persistent unlawful conduct by seeking an injunction. Therefore, it seems to be entirely appropriate that the human rights commission should have no less a power, where necessary, to deal with a persistent breach by seeking the order of the court. That is very rarely needed in practice but it is an important power to have within its armoury.
Amendment No. 150 may be better dealt with by Amendment No. 151, which stands in my name as well as that of the noble and learned Lord, Lord Archer of Sandwell. Amendment No. 151 seeks to give the equality commission or the human rights commission the power to bring enforcement proceedings in the same way as a Law Officer may do so. First, there seems to be an omission from the Human Rights Bill to which I have drawn attention in correspondence. I do not know whether it has been put right in another place; it is that, whereas the Law Officers have the power under the devolution legislation to bring enforcement proceedings in respect of breaches of human rights by devolved public authorities, there is no similar power under the Human Rights Bill itself. That seems to me to be an unfortunate gap. It may be caused simply by a failure to read across from the devolution legislation to the human rights legislation. It seems to me that the great advantage of Amendment No. 151 is that without completely destroying the narrow victim test, to which I take strong objection but am stuck with because that has already been agreed to in the Human Rights Bill, this ensures that specialist equality and human rights commissions are able to bring public interest litigation to secure compliance with the law of the land just as may the Law Officers. That seems to me to be entirely right. It means that public interest litigation will be brought by the public authorities which are dealing with strategic law enforcement and they may do so whether together with or separate from Law Officers. For those reasons, I hope that in one form or another the Government will agree that there should be the capacity to deal with persistent breaches and the capacity for strategic public interest litigation to be brought in the name of one or other of the two new commissions.The wonderful thing about participating in a debate on human rights when the noble Lord, Lord Lester, is present is that he does almost all one's work for one. I should add only that I agree entirely with his analysis. We support Amendments Nos. 149 and 151.
I am sorry to be disappointing because this is the last amendment of the evening but my noble and learned friend Lord Archer and the noble Lord, Lord Lester, are right to assume that I shall adhere to the policy which was adopted in our many long debates and discussions in the Chamber and outside it over many months, if not years, on the Human Rights Bill.
As has been rightly indicated, Amendment No. 149 would enable the commission to bring cases on its own behalf and to seek restraining injunctions if a person were likely to engage in conduct which would lead to a persistent breach without having a specific victim. We believe—and this is the theme on which we have expanded in the Human Rights Bill context—that breaches of human rights affect individuals and are best judged by their effect on the individual. If the commission wishes to test a point in court, it would not be difficult in practice to find someone who had been adversely affected and therefore fell within the victim bracket. That is the policy that we have adopted on the Human Rights Bill. I cannot expand on the policy reasons because they have been expanded at length if not ad nauseam on many previous occasions. Amendment No. 151 relates to Clause 56. As drafted it is designed to keep the Northern Ireland Bill in line with the approach to the bringing of proceedings that the Government have adopted in the Human Rights Bill. As both noble Lords indicated, that does not allow an individual to bring proceedings unless that individual would be a victim for the purposes of the convention. The exceptions to the rule in this Bill relate simply to the Attorney-General, the Attorney-General for Northern Ireland and the Lord Advocate. It is a very limited exception; namely, when they need to bring devolution proceedings under Schedule 11 in respect of legislation or actions which are or may be contrary to the convention. If this amendment were accepted—and I am not able to accept it for the reasons I have shortly given—that would add to the list of persons who could bring victimless proceedings. We have decided in the past to resist that approach. Consistency is not always the hobgoblin of lesser minds, but on this occasion I have to be consistent.Before the noble Lord sits down, dealing with the principle of consistency, is there any consistency in allowing the equality commission, with the powers it inherits from the EOC and the CRE, to bring proceedings for persistent discrimination without there being an individual victim, while not empowering the human rights commission or the equality commission to do so? Where the persistent discrimination is religious discrimination arising under the Human Rights Bill, will the noble Lord consider whether consistency might not suggest in that narrow area—I take the point about human rights violations generally—that there should be a power to seek an injunction where the discrimination is arising under the Northern Ireland Constitution Act 1973, as embodied in this Bill, where one is dealing with government discrimination, as it were, by public authorities of one kind or another?
I think the noble Lord has a point there. The consistency I was pointing to was that we have adopted this stance or this platform on the Human Rights Bill in the context of England and Wales, and I am not able to depart from that concluded policy decision in this respect.
Before the movers of either of these amendments decide to do with them, could I as a non-lawyer raise a small point? I have noticed that no one this evening has mentioned a thing called an amicus curiae brief. As a non-lawyer, I am not at all clear what that involves or entails, but I wonder whether it could be at all helpful to the subject matter of either of these amendments.
We only have an amicus brief if there are proceedings already extant. On the scheme that we offer there are not likely to be any extant proceedings. An amicus is certainly able to address the court. Our experience has been that certainly on judicial review the higher courts have extended the ambit of who can properly address the court; but that depends, alas, on getting your proceedings off the ground—and you cannot at the moment on our scheme. Therefore an amicus, however friendly, is not going to be available to assist the court.
Before the noble Lord sits down, that was not, I think, what was said by the noble and learned Lord the Lord Chancellor on the Human Rights Bill, when he dealt with the victim point by saying that, although he was sticking to the narrow victim test, he hoped that the courts would take a generous view of amicus representations, which would help to tackle the problem. I wonder whether the noble Lord would be kind enough to look again at what was said in the—he said "years" but I think it was only days of—debate on the Human Rights Bill in that respect.
It was days of debate and years of discussion. I think that the noble Lord, Lord Lester, has the scars of the years of discussion more than I have. The Lord Chancellor, as I recall it, was not suggesting that one could sidestep the necessity for a victim by simply having an amicus. As I understood it, what he was doing was endorsing and welcoming the fact that the courts are much more flexible and open-minded about giving—this is almost a contradiction in itself—a locus to an amicus in a particular instance.
The possibility of the amicus role was discussed in another place. I do not propose to embark on it tonight, but it may be something to which we would wish to return at a later stage of our deliberations.
I confess to an element of disappointment because consistency is certainly one of the qualities which I would happily accord to my noble friend. Tonight he has been somewhat selective in the matters on which he wishes to be consistent. One inroad into his consistency has already been pointed out by the noble Lord, Lord Lester. I would have thought another matter on which his consistency was in some doubt was that the exception for law officers must be based on the fact that the law officers are guardians of the public interest. What on earth is the commission doing if it is not a guardian of the public interest? I would have thought that if one were really dedicated fiercely to consistency, that too might be a consideration. As my noble friend says, much of this ground has been traversed before. I do not promise that it will not be traversed again. For the moment, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[ Amendment No. 150 not moved.]
Clause 56 [ Restrictions on application of rights]:
[ Amendment No. 151 not moved.]
Clause 56 agreed to.
Clause 57 agreed to.
I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at ten o'clock.