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The Chairman of Committees (Lord Boston of Faversham): I must tell the Committee that, as Amendments Nos. 221 and 222 are also being spoken to, if Amendment No. 221 is agreed to I cannot call Amendment No. 222.
Lord Skelmersdale: It is a great relief after a whole string of government amendments--and we are about to have a whole string more--to have an amendment from my noble friend on the Opposition Front Bench. I have no doubt--indeed we have had warning thereof--that there will be vast numbers of amendments again at Report stage and, who knows, probably at Third Reading as well.
As to this group of amendments, I, too, find it extremely odd that there is an exception to the excepted matters in paragraph 1(a) of Schedule 2, namely,
- "functions in relation to Northern Ireland of any Minister of the Crown".
I was extremely confused by paragraph 1(c),
- "the foreshore or the seabed",
Lord Campbell of Alloway: I shall be very brief. Surely the remarkable speech of my noble friend Lord Cope of Berkeley shows that there is a need for definition and clarification. There are so many questions that arise that need to be dealt with. On the question of definition, it is all very well to use the word "functions" without any definition at all but it is not very acceptable. Some functions--and I am not going to take time--are clearly within the remit of the United Kingdom Parliament and other functions are within the remit of the Assembly.
As to the matter of the seabed--which is a very difficult question in any form of international contract, international agreement, territorial claims, and so on and so forth--the Government need to clarify exactly what paragraph 1(c) means. If the Government are not prepared to, or are unable to define and clarify--I am sure they possibly are--then I shall support this amendment.
Lord Molyneaux of Killead: I wholeheartedly agree that there is a need for clarity in respect of those matters which will remain permanently under the control of Westminster. It is very important to establish a clear understanding of those matters because, through no fault of the Minister and his colleagues, we are told that clauses as yet unseen will be brought forward, perhaps at Report stage. That is not a criticism of the hard-working draftsmen or the Minister supervising them. I am sure the Minister will ensure that in the course of drafting the various new clauses and amendments great care will be taken so that they do not conflict with the position as we perhaps understood it, even when we finished last evening.
I am glad that mention has been made of the waterways. It is important to ensure that, for example, the control of the foreshore is not overlooked. In some places in Northern Ireland, in certain waterways, the international boundary does not take the expected line of mid-distance between two portions of land. In some cases the international boundary is on the high water mark on the other side of the inlet.
Lord Dubs: Yesterday I wrote to a number of your Lordships giving some background information as to the Government's thinking on some matters which we discussed yesterday and today. I learned this morning that some of your Lordships did not receive that letter until earlier today. I apologise that it was not with you yesterday before we started the proceedings.
It may be helpful if, before I deal with the detail of the amendments by the Government and other noble Lords to Schedules 2 and 3, I give a brief account of our general approach to these schedules. This will set the context in a more helpful manner.
Our primary concern, here as everywhere else in the Bill, is to give effect to the agreement. Several passages of the strand one section in particular set out the broad framework we are to follow. They are drafted against the background of the Northern Ireland Constitution Act 1973, which is still in force, though overlaid by the provisions for direct rule.
Paragraph 3 makes clear that the Assembly will exercise full legislative and executive authority in respect of those matters currently within the responsibility of the six Northern Ireland government departments. Those responsibilities correspond very largely to matters that are at present transferred by virtue of the Northern Ireland Constitution Act 1973, as it has been amended.
Paragraph 27 provides that the Assembly will have authority to legislate in reserved areas with the approval of the Secretary of State and subject to parliamentary control.
Accordingly, our starting point has to be the 1973 divisions. But some tidying up has been required. It is the nature of the model that we have chosen that new subjects for legislation arise in the transferred field. In one or two such cases where the matters concerned fall naturally to be handled at national level, and in one or two other cases where transferred matters have come under UK-wide legislative regimes, we have moved matters into the reserved or excepted categories.
The reserved category includes a number of matters which the agreement envisages as being suitable for transfer in the fields of policing and justice. But not all reserved matters are, or were in 1973, envisaged as suitable for transfer. A number of factors have led us, as they did our predecessors, to prefer the reserved to the excepted field where a decision has been needed.
It may at times be useful for the Assembly to legislate on some of these matters, especially where there is existing Northern Ireland legislation. Such legislation would be subject to the consent of the Secretary of State and the system of parliamentary control set out in Clause 13 of the Bill.
Putting matters in Schedule 3 also preserves the flexibility to transfer parts of them, in circumstances unforeseen at present, so long as there is general agreement at Westminster and in the Assembly. Under the Scotland Bill, there is a greater flexibility to change the constitutional categorisation of matters; under our Bill, there is no mechanism for moving matters out of the excepted field.
It is right to stress here the point I have previously made to your Lordships about the inevitable differences between our approach and that of the Scots. Whereas they start with a clean sheet, we are building on a legal foundation of arrangements for devolution in Northern Ireland that goes back to 1921. The dissimilarity in our starting points shows through in the key matter of drafting style; that is, the way in which matters to be reserved are set out in the Scotland Bill and the listing of excepted and reserved matters in our Bill.
Schedule 5 to the Scotland Bill sets out in substantial detail the matters to be reserved. Schedules 2 and 3 to the Northern Ireland Bill, on the other hand, approach the matter in a broader brush way that is consistent with the approach in the 1973 Act. It is right that this should be so for policy reasons. The agreement is set against the backdrop of the 1973 legislation.
It is also desirable in legal terms because the Northern Ireland system has operated in this context--and in particular the legislation has been drafted consistently
with it--and a change in approach could throw up many uncertainties. But these differences in approach mean that a comparison between the two Bills may sometimes be deceptive.I hope this explanation may be of some assistance to your Lordships in fathoming what may at times seem an arbitrary division. Even against the principles I have outlined, the categorisation of particular matters is not always clear cut, and we shall of course, as always, listen with care to your Lordships' views.
I turn to the detail of the amendments. There are a large number of government amendments.
3.30 p.m.
Lord Lester of Herne Hill: I am grateful to the noble Lord for giving way. Before he comes to the detail, I wonder whether he will deal with one point. He has given an extremely clear explanation of the Government's thinking on what is to be reserved and what is to be excepted and the difference from the Scottish devolution settlement. In view of the similarity--in fact, the almost identical nature--of the legislation dealing with gender discrimination, race discrimination and disability discrimination in Great Britain and in Northern Ireland, I do not understand, from what he said, what is the impediment to putting those subjects either in Schedule 2 or in Schedule 3 so that there can be some protection on the statute book where there are core equality rights. His explanation on matters of principle does not explain that. I know that we dealt with it yesterday, but without the benefits of the explanation today, I wonder whether he can deal with that point before he comes to the detail.
Lord Dubs: I should have thought that the explanation I have given today reinforces the arguments I used yesterday in favour of the scheme adopted in the Bill as regards equality legislation. It is partly history and it is partly the Good Friday agreement. As regards history, as I argued yesterday, given that responsibility for the departments is a matter that has been transferred to the assembly, it is right and proper that the equality commission, which has an oversight of the way in which some of those departments operate, should also come under the assembly. I should have thought that that is fully in keeping with what I have just said about the general approach.
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