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Lord Dubs: My Lords, Amendments Nos. 4 and 5 would mean that the agreement of the Assembly would not be required under the Bill for transferred matters to become reserved. The noble Lord, Lord Cope, explained in Committee that if the Assembly became deadlocked at some stage in the future, it might be desirable to, as he put it, take powers back, but impossible to achieve agreement on a cross-community basis for so doing. He used that argument again a few minutes ago. He suggested that, in that case, it would be impossible for powers to be exercised by Parliament.
We are not planning for failure in the Bill. We have not included the contingency arrangements that applied in earlier constitutional legislation by which the Secretary of State could step in in various ways. Once the Act comes fully into force, the direct rule powers will be dead. We have deleted provisions that appeared in the Bill as first drafted giving the Secretary of State a role in the decision to call an early election, or to prorogue the Assembly. So I do not think we should plan for failure here either.
If the working of the institutions goes radically wrong, of course, Parliament may have to step in. But it would do so by virtue of its general authority, preserved in the Bill, to legislate for the United Kingdom as a whole. I do not see that the noble Lord's amendment would add anything to its authority; it would simply impose restrictions on the ability of the Assembly to legislate in fields that had ceased to be transferred.
It is true that executive powers could be moved away from the devolved institutions to the UK authorities by a consequential order under Clause 80. But that would be a radical step, with an implication of permanence about it. In those circumstances, Parliament might in any event have to legislate to make other changes, so that the institutions could operate more effectively.
We are conferring a range of powers on the devolved institutions by virtue of the agreement. If we are to alter that feature of the agreement, whether by adding to or taking away from the powers, we should do it only by a similar measure of cross-community consensus as applied in the talks. That is what the Bill achieves, but the noble Lord's amendments would take away the
requirement. I do not think we should be acting faithfully to the agreement if we did that. I therefore ask the noble Lord not to press his amendment.4 p.m.
Lord Cope of Berkeley: My Lords, we are constantly being accused of not acting in accordance with the agreement although we always do our best to do so. Personally, I do not see that the agreement in any way covers this particular point or lays down what should happen if powers are being taken away and brought back to Westminster. However, it is not a matter that I wish to pursue to a Division at this point. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Acts of the Northern Ireland Assembly]:
Lord Williams of Mostyn moved Amendment No. 6:
The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendments Nos. 7, 8 and 9, 35 and 168. Amendments Nos. 6 to 9, which, as I have said, fall with Amendments Nos. 35 and 168, are simply drafting matters, moving the existing Schedule 4, which entrenches certain enactments so that they cannot be modified by the assembly, into a new clause after Clause 6. That is because Schedule 4, following earlier amendments, is now very short. It seems to us that the Bill is likely to be more intelligible if the provisions about entrenchment appear in Part II itself. I beg to move.
Lord Cope of Berkeley: My Lords, it seems rather fussy at this stage of the drafting of the Bill to be moving matters from a schedule to a clause and to very little advantage. I appreciate that it is probably a marginal improvement on the drafting, but it is an example of the kind of thing which is being done with this Bill. There are marginal improvements in the drafting being inserted at the last minute to the extent of crossing out a schedule and reinserting the matter in a clause. I do not disapprove of that happening, but it is part of the huge burden that is being put on this House and on other people in trying to follow what is happening in this Bill.
On Question, amendment agreed to.
Clause 6 [Legislative competence]:
Lord Williams of Mostyn moved Amendments Nos. 7 and 8.
On Question, amendments agreed to.
Lord Williams of Mostyn moved Amendment No. 9:
Page 2, line 43, after ("6") insert (", (Entrenched enactments)").
Page 3, leave out line 25.
Page 3, line 29, at end insert--
("( ) it modifies an enactment in breach of section (Entrenched enactments)").
After Clause 6 insert the following new clause--
(".--(1) Subject to subsection (2), the following enactments shall not be modified by an Act of the Assembly or subordinate legislation made, confirmed or approved by a Minister or Northern Ireland department--
(a) the European Communities Act 1972;
(b) the Human Rights Act 1998; and
(c) sections 78 to 80, subsections (3) and (4) of section 89 and section 92.
(2) Subsection (1) does not prevent an Act of the Assembly or subordinate legislation modifying section 3(3) or (4) or 11(1) of the European Communities Act 1972.").
On Question, amendment agreed to.
Clause 8 [Scrutiny by Ministers]:
Lord Williams of Mostyn moved Amendment No. 10:
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 11. Amendment No. 10 modifies Clause 8 to take account of the possibility that the First Minister and the Deputy First Minister may introduce Bills as well as departmental Ministers, who are referred to in the Bill as "Northern Ireland Ministers"--the expression that appears at present in Clause 8. The possibility of the First and Deputy First Ministers presenting legislation is all the greater if an "office of the centre" under those two Ministers is established, as later amendments to Clause 19 would now permit.
Because we are now substituting the general term "Minister" in Clause 8, it becomes appropriate to move back to that clause the omnibus definition of Ministers, and this is the effect of Amendment No. 11. Your Lordships will recall that it was indicated in Committee that we need to do some tidying up. Indeed, I believe your Lordships invited us to do so, in the context of Ministers. That is what these amendments are designed to achieve. I beg to move.
Lord Cope of Berkeley: My Lords, I do not entirely approve of transferring the definition of "Minister" to this clause, but we shall discuss that in relation to another amendment when I propose that the definition of "Minister" should be inserted with the main body of definitions in the interpretation clause, Clause 92. With that reservation, I believe that the substance of what is happening as regards the First Minister and the Deputy First Minister is entirely acceptable.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 11:
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 12:
Page 4, line 8, leave out ("Northern Ireland").
Page 4, line 12, at end insert--
("(3) In this Act "Minister", unless the context otherwise requires, means the First Minister, the deputy First Minister or a Northern Ireland Minister.").
After Clause 10, insert the following new clause--
(".--(1) This section applies where--
(a) a reference has been made under section 10 in relation to a provision of a Bill;
(b) a reference for a preliminary ruling has been made by the Judicial Committee in connection with that reference; and
(c) neither of the references has been decided or otherwise disposed of.
(2) If the Assembly resolves that it wishes to reconsider the Bill--
(a) the Presiding Officer shall notify the Attorney General for Northern Ireland and the Attorney General of that fact; and
(b) the Attorney General for Northern Ireland shall request the withdrawal of the reference under section 10.
(3) In this section "reference for a preliminary ruling" means a reference of a question to the European Court of Justice under--
(a) Article 177 of the Treaty establishing the European Community;
(b) Article 41 of the Treaty establishing the European Coal and Steel Community; or
(c) Article 150 of the Treaty establishing the European Atomic Energy Community.").
The noble Lord said: My Lords, this group also includes Amendments Nos. 14 and 15. These amendments relate to the new clause which it is proposed should be inserted after Clause 10. We are building on the Scotland Bill to an extent and, obviously, we have borrowed fairly freely from it. Your Lordships recently approved very similar amendments to these at the Report stage of the Scotland Bill.
Perhaps I may summarise them briefly. The new clause in Amendment No. 12 deals with the possibility that, when a Bill of the Assembly has been referred by the Attorney-General to the Judicial Committee for a decision as to whether it is within the legislative competence of the Assembly, the Judicial Committee may decide that it must refer a matter to the European Court of Justice. Since incompatibility with Community law is a ground on which an Act of the Assembly may be outside legislative competence, this is a live possibility. Such a reference may cause quite considerable delay and in such a case the Assembly may wish to reconsider the Bill, and seek to avoid the difficulty that has brought about the reference by the Judicial Committee to the European Court. I ought to stress that the new clause gives the Assembly the option of flexibility. There is no obligation to reconsider. If the Assembly decides that it wishes to do so, the Attorney-General is obliged to request the withdrawal of the reference to the Judicial Committee.
Amendment No. 14 requires the assembly to make provision in its standing orders for reconsideration of a Bill where a reference has been withdrawn at the Assembly's request under the new clause after Clause 10.
Amendment No. 15 amends Clause 12(3), so that where a reference to the Judicial Committee has been withdrawn at the Assembly's request under the new clause, which I have explained, the Secretary of State is not to submit the Assembly's Bill in its unamended form for Royal Assent. If an amended Bill comes forward, of
On Question, amendment agreed to.
Clause 11 [Stages of Bills]:
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