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Lord Holme of Cheltenham: I hear what the Minister says on Amendments Nos. 72 and 75. I do not

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

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

On Question, amendment agreed to.

[Amendment No. 49 not moved.]

Clause 16, as amended, agreed to.

Clause 17 agreed to.

Lord Williams of Mostyn moved Amendment No. 50:


Before Clause 18, insert the following new clause--

Statutory functions

(".--(1) An Act of the Assembly or other enactment may confer functions on a Minister or Northern Ireland department by name.
(2) Functions conferred on a Northern Ireland department by an enactment passed or made before the appointed day shall, except as provided by an Act of the Assembly or other subsequent enactment, continue to be exercisable by that department.
(3) In this Act "Minister", unless the context otherwise requires, means the First Minister, the deputy First Minister or a Northern Ireland Minister.").

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

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

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

The main area covered by the prerogative is the management of the Northern Ireland Civil Service. The clause's references to "other executive functions" refers to the powers the government can enjoy in the same way

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as an ordinary citizen does--for example, the power to enter into contracts. We do, however, recognise that this confusion needs to be cleared up. What this new clause does is clarify the real source of executive authority in the transferred field after devolution.

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

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

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

The Minister said that he was considering bringing forward further amendments in relation to Clause 18 on Report. In that consideration, I hope he will be good enough to consider a point that occurred to me. The Marshalled List is littered with references to "junior" Ministers. Indeed, in every case that I could find it in the Bill, the word "Minister" has been replaced by the term, "junior Minister". However, in the new clause subsection (3) says,


    "In this Act 'Minister', unless the context otherwise requires, means the First Minister, the deputy First Minister or a Northern Ireland Minister".
Should not that be "junior Minister"?

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

I was struck by the wording of subsection (1) that,


    "An Act of the Assembly or other enactment"--
I presume that means an Act of this Parliament or perhaps an Order in Council; I cannot see what else it can mean though I am surprised it is not more clear--


    "may confer functions on a Minister or Northern Ireland department by name".

A Minister by name is Mr. Smith, Mr. Jones or perhaps Lord Williams of Mostyn. I am not sure it is the intention that the name of a Minister as opposed to his office should be the way in which the functions are designated. It should perhaps say "by reference to his office". I understand that a Northern Ireland department can be named--for example, the Department of Finance and other great departments of state; but I felt it odd to confer functions on a Minister by name.

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

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

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

On Question, amendment agreed to.

Clause 18 agreed.

10.15 p.m.

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

Lord Dubs moved Amendment No. 51:


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

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

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

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

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

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

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

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


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