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The Deputy Chairman of Committees (Lord Murton of Lindisfarne): If Amendment No. 5 is agreed to, I shall not be able to call Amendment No. 6, which follows it.

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Lord Dubs moved Amendment No. 5:

Page 2, leave out lines 4 to 7 and insert--
(""excepted matter" means any matter falling within a description specified in Schedule 2;
"reserved matter" means any matter falling within a description specified in Schedule 3;
"transferred matter" means any matter which is not an excepted or reserved matter.").

The noble Lord said: I had some difficulty in understanding Amendment No. 6, which stands in the name of the noble Lord, Lord Cope, although he then explained it in writing to me, for which I am grateful. Excepted matters would be defined as those not reserved or excepted, and transferred matters defined as those not reserved or excepted: one would not know which matters were excepted and which transferred, and Schedule 2 would no longer appear to bear on the matter. As the amendment stands, it would undermine the Bill technically.

What the noble Lord suggests is that, rather than list all excepted matters in the Bill, we should list all transferred ones. That sounds quite simple but I do not believe it is right in principle, quite apart from which it is technically an extremely complex proposition.

The present model, in which excepted and reserved matters are listed, and transferred matters are all the remainder, is that which is followed in the previous Northern Ireland constitutional legislation. The agreement was prepared against the background of that legislation. It is also the model followed in the Scotland Bill. The Government of Wales Act proceeds on a different basis, it is true, but that is in the context of a different system of devolution entirely, where powers of primary legislation are not devolved. I believe, therefore, that, on the principle, the model we have followed is the right one.

Apart from that, however, it would be technically an extremely complex and time-consuming process to produce a list of all the transferred matters. The present schedules, even though they are based on the 1973 division, have required much work to bring them up to date, as will be evident by the number of amendments to the schedules which we have been obliged to bring before your Lordships. To define all transferred matters would delay the Bill very seriously. So, even if we had been persuaded, as I fear we are not, that it was right in principle, that would be a formidable objection to the noble Lord's amendment. I ask him to withdraw it.

The noble Lord's other two amendments, Amendments Nos. 7 and 8, seek to prevent any transferred matters becoming reserved matters. I think it is indeed unlikely that this would occur in any significant way. The agreement envisages in certain circumstances that matters such as policing and criminal justice may become transferred. It does not envisage any other transfer. Nevertheless, one can envisage circumstances in which, on a much lesser scale than these two weighty topics, it may be sensible for matters to change category. It is the nature of the model that we have chosen, in which excepted and reserved matters are enumerated, and transferred matters are defined as everything else, that new subjects of legislation arise in

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the transferred field. That happened on a number of occasions during the life of the 1973 constitutional legislation--which as your Lordships may know has continued on the statute book, albeit overlaid by the provisions for direct rule since 1973--and a number of new matters for legislation were by Act of Parliament subsequent to 1973 made reserved. I think the provision does no harm, since it can only be given effect if there is general agreement in Westminster and in the Assembly. I ask the noble Lord to withdraw the amendment.

We are ourselves proposing a technical amendment in this clause, slightly altering the definition of excepted, reserved and transferred matters. The present definitions of excepted and reserved matters are simply,

    "the matters specified in Schedules 2 and 3".
This might be taken to suggest that transfers in the future from the reserved to the transferred category can only operate on whole paragraphs or sub-paragraphs of that schedule. That is not our intention. We intend that any matter that falls within the reserved field, whether it is expressly mentioned in Schedule 3 or merely falls within one of the descriptions there, should be capable of transfer, if there is the general agreement required by Clause 4.

In this context I ought to expand on some remarks I made last week which indeed bear on the question of future transfers of matters that, as the Bill is cast at present, are reserved. During the course of the Second Reading debate I referred to the abortion law in Northern Ireland being a matter of criminal law and hence currently reserved in Northern Ireland terms. Any reform of the law along the lines of the 1967 Act would fall into that category, though of course many of the issues around the topic relate to social and health policy.

I said also that as and when it was deemed appropriate to do so, some reserved matters, which may include criminal justice matters, could be passed to the Assembly. That will have to be considered in the light of the reviews envisaged in the agreement. I should make it clear that I cannot give any guarantee about when such transfers might be made or what might be part of any transfer of responsibility.

Any change in the status of reserved or transferred matters can be made under the Bill only with the agreement of the Assembly based on cross-community support and after the approval of an appropriate resolution of each House here at Westminster. Which matters are transferred must be matters for decision at the time. I beg to move Amendment No. 5.

4.30 p.m.

Lord Cope of Berkeley: Both the Minister and I are seeking to alter the wording of the first part of Clause 4. As the Minister said, he is making relatively minor drafting alterations to express the matters in better "legalese". I certainly support what he wishes within the context of what he is trying to do.

However, I wish to make two other points relating to the same matter. First, as the Minister rightly said, Amendment No. 6 is concerned with the question of how this whole process should be set up. As the

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Minister rightly spotted, it is a paving amendment. I have not attempted to work out in full and to table all the consequential amendments which would be required. I accept entirely from the Minister that they would be extensive.

But the point which lies behind the amendment is quite simple. The Bill as drafted means that certain specified powers are to be retained permanently by Westminster: those are the excepted matters. Other powers are to be retained temporarily at Westminster but will be transferred in the future and they are described as reserved matters. The third group--everything else--is to be transferred automatically now. Those are described as the transferred matters but they are nowhere defined except as matters which are not excepted or reserved.

That seems to me to be the wrong way to proceed. The Welsh model is the better one to follow in this case. Responsibilities which are to be transferred, either now or at some future date, should be listed in the legislation, leaving everything else to be retained by Westminster. In that way, the Westminster Parliament clearly remains the sovereign Parliament dealing with any matter which is not given specifically, either now or at some later stage, to the Northern Ireland Assembly.

The first reason for saying that is the range of government amendments to this Bill at this stage. There is a huge number. Those are matters which the Government, in their wisdom in the summer, did not think of transferring or where the definition has been refined. Amendment No. 5 refines the definition because the Government had not quite got it right. I am quite sure that there will be other matters which we have not yet thought of and further refinements which may be required. That is a reason for retaining any powers not stated specifically in Westminster rather than having them go to the Northern Ireland Assembly.

Secondly, there will be new topics which have not yet emerged into public debate or, in some cases, not arisen at all which will emerge in the next few years. We expect this legislation to last for many years as the basis of government in Northern Ireland. I have no doubt that science will move on and new matters will come to concern us. There are listed in Schedules 2 and 3 some words which, perhaps, we would not have recognised 10 or 20 years ago.

Lastly, in the United States, one runs across arguments about states' rights: what are the rights retained by the states and what are the rights which go to Washington, to the federal government, the Senate and the Congress? The individual states make very clear that the United States is a federation and that powers not given specifically to Washington remain with the states. That is a federation. That is almost the definition of a federation. It is certainly one definition although, as we are discovering, there is more than one possible definition of a federation.

However, we are not seeking to set up a federation here. We have a situation where Westminster will remain the sovereign Parliament. Those are my points in relation to Amendment No. 6.

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Amendments Nos. 7 and 8 are different and address a different point. The Bill permits the Secretary of State to lay an order moving a matter between the reserved and transferred categories in either direction provided that the Assembly has passed, with cross-community support, a resolution praying that that should happen.

In relation to any matter which is to be transferred to the Northern Ireland Assembly--that is, which ceases to be a reserved matter and becomes a transferred matter--it is right that the Assembly should ask for those powers to be given to it. But it seems to me that there may be cases, particularly if the Assembly becomes deadlocked at some stage in the future, when it is desired to take back powers from Northern Ireland. An example of that may be law and order if that has been transferred in the meanwhile. It may be desired to take those powers back from Northern Ireland to Westminster. It may be impossible to achieve agreement on that on a cross-community basis with the very elaborate voting system which is being set up. It would then be impossible, under this Bill, for the powers to be taken back to Westminster and exercised here by the Westminster Government and by this Parliament.

It seems to me that that is a risk. It will be fine if the Assembly runs smoothly and there is cross-community support for everything for many years and generations to come. But if that is not so at some point--and we need to think about that contingency although none of us wants it--the Secretary of State should have the power to lay an order without the consent of the Assembly withdrawing powers back to Westminster so that those matters can be dealt with here.

Of course, such an order, if laid by the Secretary of State, would require under the Bill--and I think it is right that it should--the approval of both Houses but not the approval of the Assembly. I commend my amendments to the Committee.

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