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Lord Dubs moved Amendment No. 192R:

Page 38, leave out lines 6 to 8.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 192S:

Page 38, line 9, leave out ("other").

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 192T:

Page 38, line 10, at end insert--
("( ) The Joint Authority shall also have power to make any necessary financial adjustments, including adjustments between the National Insurance Fund and the Northern Ireland National Insurance Fund.").

On Question, amendment agreed to.

Clause 74, as amended, agreed to.

Lord Dubs moved Amendment No. 192U:

After Clause 74, insert the following new clause--

Industrial Injuries Advisory Council

(".--(1) For subsection (1) of section 149 of the Social Security Administration (Northern Ireland) Act 1992 (Social Security Advisory Committee) substitute--
"(1) The Department may from time to time--
(a) refer to the Social Security Advisory Committee for consideration and advice such questions relating to the operation of any of the relevant enactments as the Department thinks fit (including questions as to the advisability of amending any of them);
(b) refer to the Industrial Injuries Advisory Council for consideration and advice such questions as the Department thinks fit relating to industrial injuries benefit or its administration."

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(2) After subsection (2) of that section insert--
"(2A) Subject--
(a) to subsection (3) below; and
(b) to section 150 below,
where the Department proposes to make regulations relating only to industrial injuries benefit or its administration, it shall refer the proposals, in the form of draft regulations or otherwise, to the Industrial Injuries Advisory Council for consideration and advice."
(3) At the end of subsection (3) of that section insert "; and subsection (2A) above does not apply to the regulations specified in Schedule 5A to this Act".
(4) After that subsection insert--
"(3A) The Industrial Injuries Advisory Council may also give advice to the Department on any other matter relating to industrial injuries benefit or its administration."
(5) In subsections (1), (2) and (5) of section 150 of that Act (cases in which consultation not required), after "the Committee", in each place, insert "or the Council".
(6) In subsection (3) of that section--
(a) after "the Committee", in the first place, insert "or the Council"; and
(b) after "the Committee has made its report" insert "or, as the case may be, the Council has given its advice";
(7) In subsection (6) of that section, after the definition of "the Committee" insert--
""the Council" means the Industrial Injuries Advisory Council;".
(8) After Schedule 5 to that Act insert--
Regulations not requiring prior submission to Industrial Injuries Advisory Council
1. Regulations under section 120(1)(b) of the Contributions and Benefits Act.
2. Regulations which state that they contain only provisions in consequence of an order under section 129 or 132 above.
3. Regulations made within a period of 6 months from the date of any Act passed after this Act and directed to be construed as one with this Act, where--
(a) the regulations state that they contain only regulations to make provision consequential on the passing of the Act; and
(b) the Act does not exclude this paragraph in respect of the regulations;
and in this paragraph "Act" includes an Act of the Northern Ireland Assembly.
4. Regulations which state that they contain only regulations making with respect to industrial injuries benefit or its administration the same or substantially the same provision as has been, or is to be, made with respect to other benefit as defined in section 121(1) of the Contributions and Benefits Act or its administration.
5. Regulations which state that the only provision with respect to industrial injuries benefit or its administration that is made by the regulations is the same or substantially the same as provision made by the instrument with respect to other benefit as defined in section 121(1) of the Contributions and Benefits Act or its administration.
6. Regulations made for the purpose only of consolidating other regulations revoked by them.
7. Regulations making only provision corresponding to provision contained in regulations made by the Secretary of State or the Lord Chancellor in relation to Great Britain."

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(9) In section 192(5) of the Social Security Administration Act 1992, after the entry relating to section 170 (with Schedule 5) insert--
"section 171 (with Schedule 6);".").

The noble Lord said: The new clause after Clause 74, for which this amendment provides, imposes a requirement on the DHSS for Northern Ireland to refer matters to the Industrial Injuries Advisory Council, in circumstances equivalent to those where the Department of Health in London would be obliged to do so.

This amendment is very much in the spirit of those we have considered already, ensuring the best degree of co-ordination possible between the social security systems in Great Britain and Northern Ireland, while respecting the fact that these matters are, under the terms of the agreement, transferred. By an amendment to Clause 3, the obligations to refer matters to the Social Security Advisory Committee and the Industrial Injuries Advisory Council become reserved matters. I beg to move.

Lord Skelmersdale: I am sure I am not alone in finding the drafting of this new clause extremely difficult. I refer to subsection (3) of the new clause which states,

    "At the end of subsection (3) of that section".
I hope the noble Lord can elucidate exactly what that subsection or what "that section" is.

Lord Dubs: I do not think I would venture to do that offhand. I prefer to write to the noble Lord if he is kind enough to accept that.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 192V:

After Clause 74, insert the following new clause--

("Discrimination: certificates by Secretary of State
Effect of certificates

.--(1) This section applies where in any proceedings--
(a) a person claims that an act discriminated against him in contravention of section 19 or 61; and
(b) the person against whom the claim is made proposes to rely on a certificate purporting to be signed by or on behalf of the Secretary of State and certifying--
(i) that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and
(ii) that the doing of the act was justified by that purpose.
(2) The claimant may, in accordance with rules made by the Lord Chancellor, appeal against the certificate to the Tribunal, that is to say, the tribunal established under section (The Tribunal)").
(3) If on an appeal under subsection (2) the Tribunal determines--
(a) that the act specified in the certificate was done for the certified purpose; and
(b) that the doing of the act was justified by that purpose,
the Tribunal shall uphold the certificate; in any other case, the Tribunal shall quash the certificate.

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(4) If--
(a) the claimant does not appeal against the certificate; or
(b) the certificate is upheld on appeal,
the certificate shall be conclusive evidence of the matters certified by it.
(5) In this section "act" does not include the making, confirmation or approval of a provision of subordinate legislation.").

The noble Lord said: This grouping also contains Amendments Nos. 192W, 192X, 205A, 212A, 324A, 347A, and 213A. Clause 80(4) and (5) as drafted restates Section 23(3) and (4) of the Northern Ireland Constitution Act 1973. This enables the Secretary of State to issue a national security certificate, the purpose of which is to be conclusive evidence that an act was undertaken for national security reasons. A similar power exists in Section 42 of the Fair Employment (Northern Ireland) Act 1976. The United Kingdom was, this summer, found to be in breach of Article 6 of the European Convention on Human Rights because there is no right of appeal against the issue of a certificate under Section 42. Clause 80 is therefore deficient. The government amendments are simply intended to rectify that. The Minister of State undertook in another place to review Clause 80 in the light of the ECHR's ruling; and, in addition, the Belfast agreement requires the Government to review existing national security certificate powers.

There are similarities between these arrangements and the Special Immigration Appeals Commission, established by the Bill I introduced in your Lordships' House in June 1997. Although this Tribunal is slightly different in character, there is a common link in that both are aimed at protecting and upholding national security, while always recognising the rights of individuals. The noble Lord, Lord Lester, put it well in the debate on the earlier Bill but pointed out

    "that it is compatible with the rule of law to adopt a special procedure ... fairly to determine appeals in these exceptional cases without prejudicing the interests of justice or of national security and to do so by means of a special procedure".
That is exactly what we have done today.

Amendments Nos. 192V and 192W establish a tribunal and give effect to a new schedule. The tribunal will exist to hear appeals against certificates issued under Clause 80 and it will, in doing so, consider two issues. First, it will consider whether the original act--which might, for example, be a decision not to appoint an individual to a public body--was taken for the reasons certified in the certificate. Secondly, it will consider whether that act was justified--that is, to use the phrase of the noble Lord, Lord Lester, a reasonable and proportionate response.

The amendments build on Section 23 of the 1973 Act in two key areas. First, at present, a certificate can be given as conclusive evidence of national security grounds. The requirement that the act should be justified is, therefore, new and the Government believe that this is an important new provision to protect the rights of individuals.

Secondly, these amendments will also enable certificates to be issued, and challenged before the tribunal, on the grounds of public safety or public order.

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The purpose of that is to ensure consistency with Section 42 of the Fair Employment (Northern Ireland) Act 1976 which allows certificates to be issued on those grounds.

To test the grounds and the proportionality of the original act, the tribunal may need to have before it sensitive intelligence information. The Government remain convinced however of the need to protect that intelligence information and it is important to note here that the ECHR judgment did not require its disclosure.

But to balance this, we must have a suitable method of ensuring that the appellant's interests are fully represented. The Special Immigration Appeals Commission--established in the light of the ECHR ruling in the Chahal case--provides a model for this in the form of special advocates, appointed by the Attorney-General, to represent the interests of the appellant. We follow that model in subsection (7) of Amendment No. 192W. This ensures that an appellant's interests will be fully represented in proceedings before the tribunal by a suitably qualified person. We believe that the special advocate provisions are central to the aim of balancing the legitimate rights of an individual to challenge a certificate and the equally legitimate rights of national security.

The tribunal will have two options before it. It may uphold the issue of the certificate on both grounds, in which case there is no further action to be taken. The tribunal will have confirmed that the original act was indeed taken for national security reasons and that it was justified.

The tribunal may, of course, decide not to uphold the certificate on either or both of the grounds before it. In those circumstances, it is right that the appellant can continue his discrimination case before the courts. In those circumstances the tribunal will have disposed of the national security defence and that would not be further relied upon by the respondent. There may, of course, be other grounds on which the respondent would wish to defend the discrimination allegation, for example, lack of suitable qualification. But we do not expect intelligence information to be disclosed in discrimination proceedings if national security is no longer a relevant issue.

We are considering whether further amendments are necessary to these provisions to reflect properly the interests of the Secretary of State as the certifier of the act and her responsibility and accountability for national security, though she may not have been a party to the original proceedings. We may need to return to this issue on Report. I can signal our intention to bring forward further amendments to safeguard national security. That is a vital responsibility of government, of course. So we need to protect defence, national security, public safety and public order in Northern Ireland.

Turning to subsection (2) of Amendment No. 192W, the Lord Chancellor is by this provision required to make procedural rules for the tribunal. They will be subject to the affirmative resolution procedure.

The schedule in Amendment No. 324A ensures that the tribunal will consist of three members, all appointed by the Lord Chancellor, one of whom will hold high

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judicial office. The other two will be from a panel appointed by the Lord Chancellor and I can tell the Committee that we are working towards a mix of legally qualified and publicly appointed members.

Finally, some transitional provisions are required to save the power to issue certificates between the appointed day and the establishment of the tribunal. I should tell the Committee that certification powers in other Northern Ireland statutes will also be made ECHR-compliant. Section 42 of the Fair Employment (Northern Ireland) Act 1976 was the power in question in the ECHR ruling. I give that assurance. We intend that the fair employment and treatment order will bring Section 42 and the other certification powers contained in race and gender legislation within the remit of the tribunal.

The noble and learned Lord, Lord Archer of Sandwell, is not here but this group includes his amendment to delete the existing power to issue certificates. That would have been an appropriate response if we had not brought forward the right of appeal. I hope that I have satisfied the Committee that the government amendments, modelled as they are on the special immigration appeals tribunal, are the right way forward. I beg to move.

9 p.m.

Baroness Park of Monmouth: I had intended to oppose the amendment proposed by the noble and learned Lord, Lord Archer of Sandwell, and I am relieved that the Government's own amendments go far to reassure me. However, intelligence is the one resource available to the authorities which enables them, though to a limited degree, to guard against attack. The IRA and its surrogates operate in an international dimension. Valuable intelligence, for example, on proposed purchases of arms may come to the intelligence services from sources needing the utmost protection, not least because they may be supplying equally valuable intelligence on other threats to the UK.

The noble and learned Lord, Lord Lloyd of Berwick, demonstrated the difficulty of making statements without backing them up with detail. He pointed out how difficult it would be to proceed with the proposed legislation on statements by an RUC officer. It seems to me that the Secretary of State might be in a rather similar position. That could result in the collapse of his case.

I believe that we shall continue to need intelligence sources, and the Irish Government at least have recognised in their latest legislation that the collection of intelligence by terrorist groups on possible targets can and should be an indictable offence.

The time may be coming--it may not be far off--when the IRA, having got as much as it can through the political phase of the struggle, may return to the armed struggle. We must do nothing now that could jeopardise the successful operation of intelligence gathering. The Secretary of State must retain special powers in the field of national security which Clause 80(5) provides. That, of course, is equally true of paragraph 4 (defence of the realm) and paragraph 16 (national security) of the list of

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excepted matters under Schedule 2. Those vital areas of work would be at risk if we were to accept the full amendment.

I welcome the Government's amendments. They reassuringly reinforce the provision safeguarding national security. But they add a new provision for a tribunal which, as the Minister explained, will have the power to consider appeals against the Secretary of State's decision and power to quash the certificate. I feel great unease about that. If the Secretary of State had to produce chapter and verse on the intelligence basis for a decision, it could make it very difficult to protect men and women working in highly vulnerable and dangerous situations. I believe that there are times when the Secretary of State must be able to make decisions without having to justify them in detail.

We have to balance a possible injustice against a certain threat to the security of everyone. Increasingly, as we withdraw troops and dismantle the whole apparatus of security, we shall be dependent on reliable advance intelligence, inside knowledge of the intentions and capabilities of those who remain hostile and have not given up the use of force. I hope therefore that there will be no question of relinquishing the Secretary of State's eventual unquestioned power to give priority to national security when choices have to be made. I feel that that would be very difficult to do if a tribunal is constituted and has the power proposed by the Government.

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