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Lord Skelmersdale: Not for the first time this evening, I am amazed at the groupings on the Marshalled List. It is my fault that I have not complained earlier; and I do not complain now. However, the amendment of my noble friend Lord Cope, Amendment No. 91, has been discussed with Amendment No. 90. I cannot see the relevance between the two.
My interest is in Amendment No. 90, because it pre-supposes that the Assembly passes a resolution and then the Secretary of State acts. That is fine, but that resolution cannot be passed unless it has the support of two-thirds of the members of the Assembly. This is to be found in subsection (2) of the clause.
I do not want to be unduly cynical, but there could be an occasion when several members of the Assembly walk out. We have seen it before and it is just possible that we shall see it again. In those circumstances, it would be quite sensible for an extraordinary election to be held. That cannot be done. A resolution, by definition, cannot be passed because there are not enough members to pass it. What happens then?
Lord McConnell: I support Amendment No. 91. I have always held that it is objectionable to have legislation by Order in Council, which cannot be amended. It should really be done by a proper Act of Parliament. It is bad enough when it is done about certain procedures, but to create a criminal offence by a mere order is objectionable.
Lord Dubs: We have, as I instanced when I spoke a few moments ago, occasionally created criminal offences by order. Clearly there are concerns about the use of that procedure, but there are occasions when it is necessary to do so and, in those instances, it would be
unduly restrictive if we were to pass Amendment No. 91. I do not think the noble Lord, Lord Cope, would urge us to do that; at least, I hope not.On Question, amendment agreed to.
Lord Dubs moved Amendment No. 89:
On Question, amendment agreed to.
Clause 24, as amended, agreed to.
Lord Dubs moved Amendment No. 90:
Page 13, line 28, leave out subsections (4) and (5).
After Clause 24, insert the following new clause--
(".--(1) If the Assembly passes a resolution that it should be dissolved the Secretary of State shall propose a date for the poll for the election of the next Assembly.
(2) A resolution under subsection (1) shall not be passed without the support of a number of members of the Assembly which equals or exceeds two thirds of the total number of seats in the Assembly.
(3) If the period mentioned in section 14(1) or (7) ends without a First Minster and a deputy First Minister having been elected, the Secretary of State shall propose a date for the poll for the election of the next Assembly.
(4) If the Secretary of State proposes a date under subsection (1) or (3), Her Majesty may by Order in Council--
(a) direct that the date of the poll for the election of the next Assembly shall, instead of being determined in accordance with section 24, be the date proposed; and
(b) provide for the Assembly to be dissolved on a date specified in the Order.").
Lord Skelmersdale: Obviously I bounced the Minister in my previous question, and I would be perfectly happy if he would commit himself to writing to me with the answer.
Lord Dubs: I appreciate that, and I shall do so.
On Question, amendment agreed to.
Clause 26 [Elections and franchise]:
Lord Dubs moved Amendment No. 92:
The noble Lord said: This is a rather large group of amendments dealing with a series of related and technical issues. Amendments Nos. 98 to 103 deal with the Assembly's power to call witnesses and documents, including Amendment No. 101 in the name of the noble Lord, Lord Cope. Amendments Nos. 109, 110, 93 and 342 deal with the privilege of the Assembly and shadow Assembly and the validity of its proceedings. Amendments Nos. 336, 337 and 342 deal with disqualification provisions, as does Amendment No. 94 standing in the name of the noble Lord, Lord Molyneaux. Amendments Nos. 97 and 283 concern the Assembly's standing orders.
The amendments on the Assembly's power to call witnesses and papers are relatively minor. They remove references to the Assembly's powers in respect of shared functions, since these do not apply in the Northern Ireland context.
The noble Lord, Lord Cope, has put down an amendment which would remove the requirement on a defendant to prove he had a reasonable excuse for his refusal to comply with an Assembly ruling, leaving only a requirement to have a good excuse. I am not sure how this would work. The defendant must explain his case to the court, rather than being able to get off scot-free merely by assuring the court he had a good excuse but not explaining what it was or giving the court an opportunity to consider it. I would urge the House to reject this amendment.
Amendment No. 92 makes it clear that the Assembly's proceedings will not be invalidated by any vacancies in its membership. A number of other amendments concern the Assembly's privileges. In line with the Scotland and Wales legislation, Amendments Nos. 109 and 110 provide that those reporting the Assembly's proceedings will not be liable to conviction for contempt of court under the strict liability rule if the reports are accurate and made in good faith.
Amendment No. 342 gives the shadow Assembly full privilege from the time of Royal Assent. This is in line with the view of the parties and the Presiding Officer, the noble Lord, Lord Alderdice, and will enable the shadow Assembly to operate in very much the same way as the full Assembly.
There are a number of amendments dealing with the issue of disqualification. Amendment No. 96 provides for the case of bankruptcy and mental illness. In these cases, disqualification is not immediate but can follow after six months. The amendment ensures that the Member of the Assembly will not be able to participate in the Assembly's proceedings in the meantime.
Amendments Nos. 336 and 337 are minor and consequential amendments in the same area. They provide for the Presiding Officer to be informed if a Member is declared bankrupt or committed under mental health legislation.
The noble Lord, Lord Molyneaux, seeks to reimpose disqualification of members of the Irish Senate. This subject was extensively discussed during the passage of both this Bill and the elections Bill earlier in the year. Members of the Irish Senate have traditionally included figures from Northern Ireland who have played a valuable role in public life in Northern Ireland. We do not see any pressing reason to exclude them from the Assembly on the ground of their Senate membership alone.
Amendments Nos. 97 and 283 concern the Assembly's standing orders. They make clear that standing orders require cross-community support to be amended or repealed as well as made in the first place. Amendment No. 283 removes the need for standing orders to include provision on obtaining the Royal consent in certain circumstances since we do not believe that these will apply in devolution. The consent applies
Lord Molyneaux of Killead: I fear that the Minister has been misinformed by his advisors. I am not seeking to alter the disqualification regulations; I am simply trying to remove one of the two references to the Irish Senate. One is in Irish and the other is in English. I would wish to have removed the reference in English because it will cause widespread confusion, particularly as it relates solely to Northern Ireland.
The Irish title of the Senate in the preceding line of Clause 28(5) is not understood in English-speaking areas, therefore it does not cause confusion and offence. However, where there exists in the same subsection reference to the Assembly and then the Senate of Ireland, surely we have a recipe for confusion, particularly in the Senate Chamber at Stormont where my noble friend Lord Cooke sat as a Senator. I believe that that could easily be remedied by removing one of the two references. In this case, I would be very generous and allow the Irish to keep it in their own language.
Lord Cope of Berkeley: As regards Amendment No. 94, I thought that the noble Lord, Lord Molyneaux, was going to ask for the provision to read "the Senate of the Republic of Ireland" in line with some of our earlier debates. I agree with him in being willing to leave it solely in the Irish language.
I rose in order to talk to Amendment No. 101, which is part of the group. As the Bill stands, it is a defence for a person charged with an offence of failing to attend proceedings as a witness or to produce documents and so forth set out in Clause 37 to prove that he had a reasonable excuse for his refusal or failure to live up to his obligations. I think that is a bit difficult. It is making somebody prove his innocence. Generally speaking, in our law it is up to the prosecution to prove that a person is guilty. I therefore suggested in Amendment No. 101 that it should be a defence to have a reasonable excuse. He would still have to justify it to the court but the prosecution, as it were, would have to show that he had failed to have a reasonable excuse.
All I am doing is shifting the onus of proof, because I dislike the onus of proof being on the accused party. It seems to me that he should be innocent until somebody else proves to the satisfaction of the court that he is guilty and did not have a reasonable excuse for refusing to attend. It is important that witnesses should be under a compulsion to attend and produce papers if the Assembly is to function properly, but it is not a reason for taking away the rights of the accused.
Lord Monson: I am happy to support my noble friend Lord Molyneaux in his Amendment No. 94 because it removes the danger of confusion and
Page 14, line 39, at end insert--
("( ) The validity of any proceedings of the Assembly is not affected by any vacancy in its membership.").
11 p.m.
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