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Lord Renton: Can the Minister give me some guidance? There is obviously a dual opportunity of putting right ultra vires legislation of the new Northern Ireland Assembly. Under Clause 68 and Schedule 11, the courts are given considerable powers to deal with such a matter. Is there to be any kind of division of function between the power of the Secretary of State under the new clause and the power of the court under Schedule 11? It seems to me wrong to have both systems available. What would be the justification for having that with the possibility of conflict between the decision of the court and the decision of the Secretary of State when using this power?
Lord Desai: Perhaps I may pursue the point I made. From what my noble friend said, it is clear that these powers did not exist under the 1920 or 1973 legislation. My understanding has been throughout the Bill, and as regards the parallel question on the Scotland Bill, that
Lord Cope of Berkeley: I heard what the Minister said about the Scotland Bill. I am by no means an expert on it, but a quick glance reinforces my understanding that, if a Bill in the Scottish parliament is thought to be outside the legislative competence the Advocate General, the Lord Advocate or the Attorney General will refer it to the Judicial Committee for decision. Furthermore, that must be done before the Bill becomes an Act so that the matter can be clarified before the legislation comes into force. Perhaps I have missed a provision to which the Minister will draw my attention.
Lord Lester of Herne Hill: I have been puzzled because we have been told that the Scotland Bill is a separate devolution settlement and that this Bill springs from the Good Friday agreement. I see nothing in the agreement which authorises or requires the Secretary of State to have these draconian powers. Perhaps I have not read the relevant part of the Belfast agreement, but I have looked in particular at the role of the Secretary of State in paragraph 32 and at the role of the Westminster Parliament in paragraph 33 and elsewhere.
Given that it is a tailor-made devolution settlement for Northern Ireland rather than a read-across from Scotland, will the Minister indicate where in the Belfast agreement it was thought necessary to give political override powers to the Minister without guidance from the courts or an opinion that an issue is outside legislative competence, or simply that it might not be within legislative competence?
Lord Williams of Mostyn: Those are all reasonable questions. One cannot find spelt out in the Belfast agreement either the ultra vires judicial remedy or the Secretary of State remedy. Perhaps I may draw together one or two thoughts, in particular the most interesting question raised by the noble Lord, Lord Renton. I may be responding per incuriam because I am wondering whether there is an answer to the question.
Speaking immediately, it seems to me that one should look at Clause 68, which states "Schedule 11 ... shall have effect". Turning to Schedule 11, it seems that one has the opportunity for a judicial determination as to whether a particular Act of the Assembly, or a purported or proposed exercise of a function, is intra vires or not. The noble Lord, Lord Renton, is right is saying that that would be a judicial determination. However, I tried to point out that if there had been a legislative action in the Assembly and widespread adverse consequences to individuals who had acted in good faith one might need the Secretary of State's power to give effect retrospectively to the determination of Parliament following the affirmative resolution procedure.
As I mentioned at the outset, I am concerned about the possibility of a conflict of decision between the judiciary acting under Schedule 11 and the Secretary of State acting under the proposed new clause. There is a serious possibility which must be considered. It becomes even more important, and perhaps could lead to a difficulty, bearing in mind that the power given to the Secretary of State under the new clause is to be retrospective.
In view of what the Minister has said and the views expressed on all sides of the Committee, I suggest that, instead of passing the new clause now, the Government should take it away and consider the matter still further. It is quite clear that the Minister has not had an opportunity of considering all the implications.
Lord Holme of Cheltenham: I support the noble Lord, Lord Renton. There is a lack of connection between Clause 68 and Amendment No. 182. I understand that a judicial decision under Schedule 11 would trigger the use of these exceptional powers by the Secretary of State. However, there is no connection between the two as we are being invited to pass them. There is a raft of extensive new powers for the Secretary of State which are not connected to the trigger which would make him choose to exercise them under Clause 68. I am delighted to hear that the Minister wishes to consider the matter further and that is well worth while, but would it not be sensible to withdraw the amendment now?
Lord Cope of Berkeley: I do not believe that it resolves that potential difficulty. If we are, under the agreement, to rely on the Scottish precedent, we need more detail on exactly what part of the Scotland Bill it is that we are supposed to be reproducing with this new clause.
Lord Cope of Berkeley: I shall study that but if the noble Lord is going to accede to the very sensible suggestion of my noble friend Lord Renton, supported by the noble Lord, Lord Holme of Cheltenham, we shall all have an opportunity to reconsider the position and discuss it on a subsequent occasion.
Lord Williams of Mostyn: I am grateful to the noble Lord, Lord Hylton, for pointing out page 8, paragraph 26(d). That refers to mechanisms to avoid disputes. It may well be that the noble Lord is absolutely right. His example was a Bill in course of passage. I must try to be as helpful and as candid as possible with the Committee. Amendment No. 182 deals with,
The answer is in Clause 94 of the Scotland Bill, which has already been approved by this Chamber. However, Members of the Committee have been quite courteous in asking me to think again. In all scruple, the proper course is to withdraw the amendment at this stage. That is an unusual course to take but that does not matter because I am indicating, I hope fairly plainly, that I shall bring back something in this form perhaps with an explanation which will satisfy your Lordships. However, it is better for me to withdraw the amendment at this stage; to have a further thought; to take further advice; and, as I have said without discourtesy, I am making it plain that I am likely to bring back an amendment in virtually this form but it is only courteous to the Committee to do that.
Lord Cope of Berkeley: That is an extremely wise and sensible decision at this stage, particularly bearing in mind that Clause 94 of the Scotland Bill does not give any equivalent powers to the Secretary of State or anybody of that sort at all. It is all to do with the legislative power to remedy ultra vires acts within Scotland. However, as the Minister said, we shall return to that at a later stage. We look forward to receiving a similar but no doubt improved proposed new clause in due course and improved arguments in support of it.