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Lord Williams of Mostyn: It can work quite easily because the nature of the tribunal is a High Court judge and a special panel, and no one will appoint someone to a special panel without there being some sensible vetting in place. No one will be chosen as counsel except on the determination of the Attorney-General in Northern Ireland. Therefore the ambit of disclosure will be very limited. It does not have to be in public; and the Secretary of State can come to her own conclusion, obviously on security advice, as to precisely what appropriately can be disclosed.

We have thought about these problems quite carefully. The representation is not perfect but it is as good as can be achieved in circumstances where one has to be cautious and careful about national security. In a sense it is a scheme which has been taken from Chahal,

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which had similar problems in similar circumstances. I make no apology for saying again that I think we have got it right.

Lord Renton: The Minister gives a convincing answer to the point I made.

Lord Lester of Herne Hill: I apologise for the fact that I could not be present for the earlier discussion on this amendment. In support of the position taken by the Government on the amendment, perhaps I may say that I was in the case in Strasbourg of Tinnelly where the issue arose. During the deliberations on the Special Immigration Appeals Tribunal legislation, I supported the Government on what is a compromise between the need to protect national security and the need for due process of law. Indeed, it was argued in Strasbourg that precisely a compromise of this kind would meet the needs of both public interests. Although I would much prefer an entirely open adversarial system, I do not think it realistic in the context of national security claims of this kind to go as far as that. Therefore, although I like to think of myself as entirely liberal, I support the compromise represented by the amendment.

Lord Desai: I wish to ask a question as an amateur. I am satisfied with Amendment No. 192V, but wish to know whether Amendment No. 192X represents the end of the appeal process? Can the appellant go on to the Judicial Committee of the Privy Council? If the court of appeal in Northern Ireland rejects an appeal, can an appellant go to the Judicial Committee of the Privy Council, invoking Schedule 11?

Lord Williams of Mostyn: On a question of law, an appellant's normal avenue of appeal would be to this House.

I am grateful for the support given by the noble Lord, Lord Lester. I cited his words on Chahal. He is not being liberal. I do not think liberal means being unrealistic about the true balance between the two interests which are legitimate.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 192W and 192X:


After Clause 74, insert the following new clause--

The Tribunal

(".--(1) There shall be a tribunal in relation to which Schedule (Tribunal established under section (The Tribunal)) shall have effect.
(2) The Lord Chancellor may make rules--
(a) for regulating the exercise of rights of appeal to the Tribunal;
(b) for prescribing the practice and procedure to be followed on or in connection with appeals to the Tribunal, including the mode and burden of proof and admissibility of evidence on such appeals; and
(c) for other matters preliminary or incidental to or arising out of such appeals.
(3) Rules under this section may provide that a party to any proceedings before the Tribunal on an appeal has the right to be legally represented in the proceedings, subject to any power conferred on the Tribunal by such rules.

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(4) Rules under this section may, in particular--
(a) make provision enabling proceedings before the Tribunal to take place without a party being given full particulars of the reasons for the issue of the certificate which is the subject of the appeal;
(b) make provision enabling the Tribunal to hold proceedings in the absence of any person, including a party and any legal representative appointed by a party;
(c) make provision about the functions in proceedings before the Tribunal of persons appointed under subsection (7); and
(d) make provision enabling the Tribunal to give a party a summary of any evidence taken in his absence.
(5) Rules under this section may also include provision--
(a) enabling any functions of the Tribunal which relate to matters preliminary or incidental to an appeal to be performed by a single member of the Tribunal; or
(b) conferring on the Tribunal such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exercise of its functions.
(6) In making rules under this section, the Lord Chancellor shall have regard, in particular, to--
(a) the need to secure that certificates which are the subject of appeals are properly reviewed; and
(b) the need to secure that information is not disclosed contrary to the public interest.
(7) The Attorney General for Northern Ireland may appoint a person to represent the interests of a party to proceedings before the Tribunal in any proceedings from which he and any legal representative of his are excluded.
(8) A person appointed under subsection (7)--
(a) shall be a member of the Bar of Northern Ireland;
(b) shall not be responsible to the party whose interests he represents.
(9) In this section and section (Appeals from the Tribunal) "party", in relation to proceedings an appeal, means the appellant or the person proposing to rely on the certificate which is the subject of the appeal.").
After Clause 74, insert the following new clause--
Appeals from the Tribunal

(".--(1) Where the Tribunal has determined an appeal under section (Effect of certificates), any party to the appeal may bring a further appeal to the Court of Appeal in Northern Ireland on any question of law material to the Tribunal's determination.
(2) An appeal under this section may be brought only with the leave of the Tribunal or, if such leave is refused, with the leave of the Court of Appeal in Northern Ireland.
(3) The Lord Chancellor may make rules regulating, and prescribing the procedure to be followed on, applications to the Tribunal for leave to appeal under this section.
(4) Rules under this section may include provision enabling an application for leave to appeal to be heard by a single member of the Tribunal.").

On Question, amendments agreed to.

Lord Cope of Berkeley moved Amendment No. 193:


After Clause 74, insert the following new clause--

("European Community matters
Business in Council of Ministers: consultation with and participation of Executive Committee

.--(1) Before any Minister of the Crown attends a meeting of the Council of Ministers of the European Community at which consideration is to be given to any issue relating to transferred matters, the Secretary of State shall consult the Executive Committee and seek its views on that issue.

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(2) When a Minister of the Crown attends such a meeting of the Council of Ministers, he may permit members of the Executive Committee to attend with, and participate in, the United Kingdom delegation.").

The noble Lord said: We move away from the technical legal matters with which we have been struggling for some time and on to a more overtly political and obvious matter. It concerns the way in which Northern Ireland interests are in future to be represented at meetings of the Council of Ministers of the European Community and its constituent bodies.

The basis of the amendment is to be found in the Belfast agreement at page 8, paragraph 31. It states:


    "Terms will be agreed between appropriate Assembly representatives and the Government of the United Kingdom to ensure effective co-ordination and input by Ministers to national policy-making, including on EU issues".
It is important to provide for that. Many of us who have had experience in the Northern Ireland Office know that the way in which Northern Ireland's affairs are handled within the Community is a matter of great interest within Northern Ireland, particularly because of the comparisons between the treatment of Northern Ireland as part of the United Kingdom and the treatment of the Republic of Ireland.

Sometimes there have been difficult divergences for Ministers to explain--I speak from experience--and it has been awkward for the Northern Ireland Office to ensure that within the United Kingdom's negotiating position full weight is given to Northern Ireland's affairs. Generally speaking, we managed to achieve full weight, but sometimes we were criticised. That is part of political life, but we are now moving into a different situation. Many of the issues which are important in EU negotiations, particularly agriculture, fishing and so forth, will be the responsibility of the Assembly and the executive within Northern Ireland. That makes it more important and difficult to achieve the right balance between the representation of Northern Ireland interests and the representation of United Kingdom interests as a whole.

Of course, that is not unique at this time to Northern Ireland. The same point has arisen in connection with both Scotland and Wales. The White Paper in the case of Scotland, called Scotland's Parliament, the measures within which have since been incorporated into the Scotland Bill, had a very important passage which set out extremely clearly what was intended to happen in Scotland. I take it that that is what the Government intend to happen in Northern Ireland.

The White Paper stated:


    "The UK Government wishes to involve the Scottish Executive as directly and as fully as possible in the Government's decision making on EU matters. It is part of the Government's intention that Scottish Executive Ministers and officials should be fully involved in discussions within the UK Government about the formulation of the UK policy position on all issues which touch on devolved matters. This will require, of course, mutual respect for the confidentiality of those discussions and adherence to the resultant UK line, without which it would be impossible to maintain such close working relationships".
There is something of an implied threat about confidentiality. Nevertheless, it seems to express the position very clearly.

26 Oct 1998 : Column 1795

The White Paper went on to explain that from time to time, Scottish Ministers and officials would need to go with UK Ministers to meetings within the European Union and to be part of the UK team. I presume that that is the case also in relation to Northern Ireland. Subsection (2) of the proposed new clause provides for just that eventuality.

I have provided only for Ministers from Northern Ireland to attend and not officials. We all know that some of the meetings, including some very important ones at European level, take place between officials and representatives of the UK permanent representation in Brussels rather than between Ministers. I should perhaps have included that in drafting the proposed new clause. However, there is an important element of confidentiality in these matters. Therefore, it occurs to me to wonder whether, and if so how, the Official Secrets Act will apply to Ministers from Northern Ireland and members of the executive there. I believe that it should do so in respect of these matters if not in relation to many other matters. Provision is made in the other Bill and in the Government of Wales Act for the Official Secrets Act to apply to members of the respective executives in those two parts of the United Kingdom. It needs to apply also in Northern Ireland. If it does not, then the necessary confidentiality will be dubious, I believe.

At the same time I recognise that it may sometimes be difficult to expect members of the Northern Ireland executive to abide by the Official Secrets Act when they are being pressed in their own legislature, their own Assembly, to answer questions about why it is that Northern Ireland interests have not been represented as fully as members of the Assembly may wish. One hopes those occasions will be rare but they will occur and may not be quite as rare as we should wish.

Generally speaking, it is important, as the new clause suggests, that when UK Ministers go to meetings of the European Union and its various councils they should ensure that they understand the position of the Northern Ireland Ministers in forming a UK policy line and a negotiating line to be taken at a particular meeting.

I also believe it is important that, where matters are discussed which are of great importance to Northern Ireland, Northern Ireland representatives should be present. We all know that these negotiations sometimes go on for a long time, well into the night, and it can be necessary to take decisions and come to conclusions that were not necessarily envisaged in full when the negotiating position was worked out. Those of us who have been in that position know of the experience of telephoning Whitehall in order to get clearance for some move that had not been anticipated. That will be reinforced by devolution to the three parts of the United Kingdom where powers are being devolved. That situation will be made much more difficult--not impossible--and the new clause is intended to provide the framework within which these kinds of things can happen. I beg to move.

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9.30 p.m.

Lord Holme of Cheltenham: I rise to support the new clause of the noble Lord, Lord Cope. It is good to hear him recognise how central the European Union is to the progress of all parts of the United Kingdom.

In introducing the new clause, the noble Lord mentioned page 8, paragraph 31, which talks about preparing the approach to the European Union. That is also mentioned at two other points in the Good Friday agreement, and that is apropos Strand Two and Strand Three. Strand Two is on page 13 at paragraph 17 and Strand Three is on page 14 at paragraph 5.

In supporting the clause, I hope that the noble Lord will recognise that there is also an important Irish dimension. It is possible that to have the Republic of Ireland fighting in the same corner on the issues that most closely affect Northern Ireland would be a positive benefit. Quite apart from the merits of the United Kingdom delegation taking Northern Ireland Ministers with them, I believe that it is good to get the Irish on side as well.

I believe that the noble Lord's clause is absolutely necessary. We have only to imagine what would happen if we were to have the BSE crisis in two years' time rather than two years ago, and what the feelings would be in Northern Ireland with a healthy herd, well documented, if British Ministers were to go to Brussels to discuss the situation without the Northern Ireland Minister at their elbow, able to put the Northern Ireland point directly. I believe that it is a strong clause and well worth supporting.


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