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Lord Skelmersdale: I congratulate the noble Lord, Lord Molyneaux, on returning to the amendments before us. The Minister may have been mildly surprised, as I was, that this very large grouping of amendments has in fact given rise to a clause stand part debate which
We all know that there has been considerable consultation over this matter. We all know that in certain quarters, not least among some of the chairmen and chairwomen of the current constituent parts, there has been expressed a certain amount of disagreement and a certain amount of worry. Are those people for whom they are currently acting going to be looked after properly under these new arrangements?
Then we heard last week from the noble Lord, Lord Fitt, that the Minister had sent a letter saying that this consultation was still continuing, which I must admit was news to me. We also heard last week that the Northern Ireland agreement, as far as the Assembly was concerned, was not set in stone and that various bits could be altered, albeit by cross-party agreement, as the noble Lord said. This would be done by the Assembly and, although we have not yet discovered which bits are to be altered, I have no doubt that during the course of this Committee stage we shall discover which they are. Nonetheless, he also wrote to my noble friend Lord Cope on 14th October:
That begs the question: what exactly is the Secretary of State hanging on to? Where do the Government see the position ending up? On one side you have reserved matters for the Secretary of State and the Government at Westminster and on the other hand you have what I suppose could be called almost interference by the Assembly, with cross-party agreement, in parts of those matters which I regard as being semi-reserved. That cannot be a satisfactory situation for anybody.
Lord Cope of Berkeley: This debate, as my noble friend said a moment or two ago, has rather widened from the individual amendments and I propose to go along with that widening, as it were, and say one or two general things. I am doing my best to support the Belfast agreement, as I understand it, throughout this whole process and I am prepared indeed to give the
I am grateful to the noble Lord, Lord Lester, for admitting at the start of what he had to say that even he, with his legal expertise, and particularly his expertise in these matters, finds it extremely difficult to unravel exactly what is happening in the Bill and what the Minister said a few moments ago. He said that the policy on these matters will be a reserved matter.
We know that a reserved matter is something which is not devolved immediately but will be devolved at some time. It is a different use of the word "reserved" from the use in the Scotland Bill. The words "excepted matters" are used in that Bill. The Minister said that responsibility for the policy will be a reserved matter. That is exactly the same as he said to me in the letter of 14th October, which I think was sent to other noble Lords as well, namely that Clauses 58 to 60 will be reserved matters for which the Secretary of State will have responsibility. He did not say "responsibility for the time being", but that is what a reserved matter means.
So he is proposing that in due course--a year or two--these matters will be transferred completely to Northern Ireland and out of the responsibility of the Secretary of State, as I understand it. However, when we looked the other day at related or similar clauses relating to the human rights commission, it was pointed out that Schedule 2(17) specifically excepts matters for which provision is made by this Bill or the Northern Ireland Constitution Act 1973. Provision is made in Clause 59 for the functions of this new commission--the equality commission. I am open to correction--from any lawyer, in particular--but it seems to me that Schedule 2(17) means that the setting up of this commission and its basic functions are to be an excepted matter, not a reserved matter, as the Minister said. That I can understand. I think that is desirable.
We shall still be in a position where the Assembly will say what the law is. That seems to be what the Government are aiming for. Perhaps I can put it in biblical rather than legal terms. The Assembly will say, "Thou shalt not discriminate in the following ways", with a whole lot of small print following on to define it. However, the Secretary of State will still be responsible for the equality commission, which will be there to ensure that people obey the law and do not discriminate in various ways. I think that that is a desirable end but I do not think that it is the end that the Minister set out, either in his letter to me of 14th October before we began our discussion in Committee, or this afternoon. However, it may be what is in the Bill. I say "may be", but I think I am about to receive some legal advice--
I share the noble Lord's puzzlement. It arises because of the ambiguity of that paragraph in the schedule to which he referred. It also arises from the fact that under the Northern Ireland Constitution Act 1973, everything is devolved except that which is specifically not devolved. Of course, all the equality legislation came after 1973. However, he said that there are safeguards in Clause 4 of the Bill. I think that is not quite right. First of all, as I understand it, equality legislation policy, which is to be reserved, could not be devolved without subordinate legislation approved by both Houses. If the Northern Ireland Assembly were to use its devolved powers unconscionably, which I very much doubt, the matter could always be transferred back by the Secretary of State under Clause 4 and would become a reserved matter again.
So, as I understand it, provided there is a claw-back provision--clawing the subject back again to preserve national minimum standards of equality of treatment, protected by law--there would be that safeguard. It may not be enough but, as I understand it, that is the position.
Lord Cope of Berkeley: I entirely agree that there is the safeguard that a reserved matter cannot be transferred without the approval of Parliament in secondary legislation. I do not entirely follow the force of the second part of what the noble Lord, Lord Lester, said. As the Bill stands, I believe I am right in saying that for powers to be taken back to Westminster, it is necessary not only to have secondary legislation but also the agreement of the Assembly with cross-community support.
Lord Cope of Berkeley: I thank the noble Lord for agreeing to that. I tabled an amendment to Clause 4 which seemed to me to be desirable, which would have meant that the Assembly did not need to agree to a power being taken back. Apart from anything else, the Assembly might be deadlocked at a certain point over what to do and the Secretary of State might want to take the power back to resolve the deadlock. I am not speaking only now about equality powers but any other powers that are involved.
As far as I am concerned, the question of taking powers back is not entirely resolved. However, it would be much clearer if the powers and the responsibility which this new body is to have were set out in the Bill instead of by reference. At the moment the Bill states that it will have the functions of the four bodies that it is replacing. If the Bill spelt out the different forms of discrimination with which the equality commission is supposed to deal, including any new forms that may be thought desirable, I think that Schedule 2(17) would certainly bring those into the "excepted" category, presumably from the point of view of making law as well as from the point of view of setting up the commission and the management of the commission.
Turning to the amendments, I am prepared to go along with the inflation of titles that is involved, although I thought that the noble Lord, Lord Molyneaux, had a point about remuneration.
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