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Lord Archer of Sandwell: My Lords, I rise simply to say that I wholly support what the noble Lord, Lord Goodhart, has just said, as I did at Committee stage. Nothing would be gained if I were to repeat his arguments.

Lord Dubs: My Lords, Amendment No. 102 would increase the scope of Clause 72 so that it covered indirect as well as direct discrimination. In the Bill we are seeking to implement the Belfast agreement as closely as possible, as well as re-enacting those parts of the Northern Ireland Constitution Act 1973 which are not covered by the agreement. Clause 72 largely re-enacts the provisions of Section 19 of the 1973 Act.

I recognise and understand the strong arguments for an extension of the ban on discrimination on the grounds of religious belief or political opinion so that it also covers indirect discrimination. But, as I explained when we considered this point in Committee and, indeed, on

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the previous amendment a moment or two ago, the Government argue that this Bill is not the place for such a far-reaching change in the law which is not envisaged in the agreement. I do not want to take up the time of the House by repeating the arguments of a moment ago. I would therefore invite the noble Lord to withdraw the proposed amendment.

Lord Goodhart: My Lords, I very much regret what the Minister has just said. I think this is an unsatisfactory situation. Obviously this is not an occasion on which it would be appropriate to ask for the opinion of the House, as the noble and learned Lord, Lord Archer, said in respect of the previous amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dubs moved Amendment No. 103:


Page 36, line 16, leave out ("(other than a Northern Ireland department)").

The noble Lord said: My Lords, Amendments Nos. 103 and 104 go together. They are technical amendments which improve the definition of "public authority" in the clause because Northern Ireland departments fall within the second order listed but the intention of the provision remains the same. I beg to move.

On Question, amendment agreed to.

Lord Dubs moved Amendment No. 104:


Page 36, line 19, leave out ("department or other authority") and insert ("authority (other than a Northern Ireland department)").

On Question, amendment agreed to.

Clause 73 [Unlawful oaths etc.]:

Lord Dubs moved Amendment No. 105:


Page 36, line 31, leave out ("that") and insert ("the").

The noble Lord said: My Lords, Amendment No. 105 is purely a matter of drafting to ensure consistency within Clause 73(1). It is a very small matter to trouble your Lordships with but any inconsistency in drafting in referring to similar things could lead to an assumption in the future that a different meaning was intended by it. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 106:


After Clause 75, 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.

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(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.").

The noble Lord said: My Lords, Amendment No. 106 caused a good deal of discussion in Committee. I withdrew the amendment at that time but promised to reflect on and consider what had been said and whether a fuller explanation might not be justified. I know that the noble Lord, Lord Renton, is not in his place. I pay tribute to his keen interest in this matter. I have had extensive discussions with him which I believe gave him the reassurance that he sought. I hope that I can convince your Lordships similarly.

The first matter I ought to make plain is that this new clause is exactly analogous to Clause 107--formerly Clause 94--of the Scotland Bill, which has now been approved in Committee, on Report and at Third Reading. It is true--this was part of the misunderstanding on the earlier occasion--that the Scottish clause has no equivalent of our subsection (2) but the effects are all achieved in relation to Clause 107 of the Scotland Bill by provisions elsewhere in that Bill--Clauses 113 and 114.

I acknowledged that this is a substantial power. It might be that there would be a judicial finding, some years after the legislation had been passed by the Assembly, that the legislation was ultra vires. In those circumstances, legislation might be the only appropriate way--indeed, the only way--to sort out the consequences following a decision of the judicial committee under the devolution issues mechanisms.

The powers in the clause arise, of course, not simply where an Act is outside legislative competence but where it may be so. One might have a decision of a court in another case unrelated to the particular legislation in point which raised a serious question as to whether the legislation was valid. One has to acknowledge that the power is broadly cast and I need to give some assurances as to how one deals with that.

The first proposition is that the exercise of the power is subject to oversight by the courts. The Secretary of State would be open to judicial review proceedings. No special provision for that is required in the Bill. The normal judicial review principles would apply. If, therefore, the Secretary of State sought to exercise her powers in any improper way, she would be subject to judicial review.

I have been asked whether under this clause the Secretary of State could in theory substitute her view for that of the courts relating to the validity of an Assembly Act or the exercise of devolved functions. If she did, she would be subject to the most serious scrutiny in the courts. She would also face similar questions in your Lordships' House. It is critically important to bear in mind that the exercise of this power--I refer to Clause 90(2)--requires prior affirmative resolution in this House and in another place. Therefore, that is a further safeguard commensurate with the significance of the power.

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It is quite possible that a judicial decision might be arrived at some years after the event impugning and therefore effectively impeaching the validity of an Assembly Act on the basis that it was ultra vires. Many people would have acted perfectly legitimately and innocently on a mistaken view of the law. Speedy legislation is often required to remedy those consequences. I stress that it can be done only by prior affirmative resolution in your Lordships' House.

Apart from that, it is right that I refer to what was said in the debate on the Scotland Bill. First, I repeat again the opportunity for judicial review proceedings. But, secondly, it is important that I should point out what my noble friend Lord Sewel said in the context of Scotland. He said--and I repeat it in the context of Northern Ireland:


    "Where there has been no court decision, it would be the Government's intention to use these powers only with the consent of the devolved Ministers".
I willingly repeat that assurance in the Northern Ireland context.

When we discussed this matter in Committee I was not in a position to give those reassurances or those undertakings. I think it was right that I undertook to your Lordships to go away and think about this matter. Indeed, it did trouble me. However, although the provision is in the same form, I hope that I have been able to give a much fuller and more satisfactory answer than I gave on a previous occasion. Certainly, the answer I gave on a previous occasion failed to satisfy me; and that is a reasonable test for going away and thinking about something. But now I am abundantly satisfied with the explanation I have offered. I pay tribute to the keen beavers among your Lordships who, even though it was late at night, pursued this point. It was right for it to be pursued; and it was right for us to go away and think about it and come back with a proper explanation.

8.15 p.m.

Lord Cope of Berkeley: My Lords, I accept the implied compliment from the Minister. I was one of those who raised the point and therefore, I suppose, I count as a keen beaver. However, I think the noble Lord's compliment was mainly intended for my noble friend Lord Renton, who spotted the point in the first place and drew our attention to it. As the Minister said, he has discussed the new clause with my noble friend and I since then. I understand that my noble friend is satisfied that there are reasons for introducing the clause and that the previous reservations about it which he raised in Committee have to a great degree been satisfied and answered.

I was not entirely convinced by the noble Lord's point about judicial review. The new clause states:


    "The Secretary of State may by order make such provision as he considers necessary or expedient in consequence of".
"Necessary or expedient" are matters to be judged by the Secretary of State. He or she would have to be extremely unreasonable in exercising his or her judgment as to whether it was "necessary or expedient".

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It would be quite difficult to get the courts to say that he or she was not reasonable in those circumstances, unless of course the Secretary of State had been completely unreasonable, which is unlikely.

I have looked at some of the debates on the Scotland Bill on this point. The question was raised of what the definition of ultra vires is in this respect--whether it should be read in the more general sense of ultra vires in administrative law, which apparently is very wide, or whether it is much narrower than that. It would be helpful to have advice on that point. We should also make it clear that this point is not only concerned with legislation passed by the Assembly but also with acts of a Minister, the Executive in Northern Ireland or one of the departments there which may be thought to be ultra vires as well. It catches administrative actions as well as laws which subsequently are thought to be ultra vires.

On Question, amendment agreed to.

Clause 76 [Powers of courts or tribunals to vary retrospective decisions]:


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