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Lord Hylton: Is one to understand that there will be government amendments at Report stage to replace all of the three clauses that are in process of being deleted?

Lord Dubs: If they are not dealt with elsewhere there will be further amendments.

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Clause 66 negatived.

Clause 67 [Recognition etc. of implementation bodies]:

[Amendment No. 181 not moved.]

Lord Dubs: I beg to oppose the Question that the clause stand part of the Bill.

Lord Cope of Berkeley: I wonder whether this is an opportunity for the noble Lord to refer to cross-border bodies, which are the subject of this clause and which we discussed earlier when inserting the new clause to replace this one. There was some confusion at least in my mind, and perhaps in the mind of others, as to the exact legal status of cross-border bodies. If the noble Lord is not in a position to respond now, clearly there will be other opportunities at later stages of the Bill, but here is one opportunity.

Lord Dubs: I appreciate the opportunity that the noble Lord gives me, but I am not sure that there is very much to add to what I said last time. If there is, I should like to take a future opportunity to do so.

Lord Molyneaux of Killead: I am very grateful for the assurance given by the Minister because some noble Lords have had second and third thoughts on these matters. It would be very helpful to have a debate at a later stage of the Bill.

Clause 67 negatived.

Clause 68 agreed to.

Lord Dubs moved Amendment No. 182:


After Clause 68, insert the following new clause--

Legislative power to remedy ultra vires acts

(".--(1) The Secretary of State may by order make such provision as he considers necessary or expedient in consequence of--
(a) any provision of an Act of the Assembly which is not, or may not be, within the legislative competence of the Assembly; or
(b) any purported exercise by a Minister or Northern Ireland department of his or its functions which is not, or may not be, a valid exercise of those functions.
(2) An order under this section may--
(a) make provision having retrospective effect;
(b) make consequential or supplementary provision, including provision amending or repealing any Northern Ireland legislation, or any instrument made under such legislation;
(c) make transitional or saving provision.").

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

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unusual power. I hope that the Minister will be able to provide full justification for it; I do not believe that he will find that very easy.

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

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

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

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

The noble Lord, Lord Cope, referred to Amendment No. 186A. I made it plain earlier to the Committee that we shall not move Amendments Nos. 184 to 189, which should have included Amendment No. 186A. It has popped out of the grouping. We shall return to that

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matter on Report. On the fascinating point about the Lord Chancellor, the noble Lord will have to await the next thrilling instalment on Report.

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

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

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

I find this puzzling about Amendment No. 182. It states that:


    "The Secretary of State may by order make such provision as he considers necessary or expedient"--
"expedient" being a notoriously vague term--


    "in consequence of any provision of an Act of the Assembly which is not, or may not be, within the legislative competence of the Assembly".
I can understand the phrase,


    "which is not...within the legislative competence of the Assembly".
If a court of competent jurisdiction--let us say the Judicial Committee of the Privy Council--decided that an Act of the Assembly was outside its competence, if it were necessary (I do not think that it would be) one can imagine a ministerial consequential order. But I do not understand why it is envisaged that it is to be left to the Minister to speculate without a court ruling as to whether something is within legislative competence, and then to make an order which will immediately cause huge political controversy between the central government and the devolved government and Assembly. I should have thought that that would be a most unwise power to keep.

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

Lord Lester of Herne Hill: If the individual acted perversely, completely arbitrarily, it might be capable of

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being subject to judicial review; and if he made an order with retrospective effect that breached the Human Rights Bill, that also could be subject to review.

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

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

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

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

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


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