I will just round off the little character study with which I was endeavouring to solace the few last moments before we decided to go on after 10 o'clock—a decision, I fear, that many of those who participated in it will later regret.
The second of the unsupported asseverations made by the Secretary of State was that direct rule—the only form of government discovered for some time that is subject to widespread acceptance throughout the community in Northern Ireland—is unacceptable, intolerable and damaging to the Province
The right hon. Gentleman spoke of widespread acceptance of direct rule in the Province. I recall that in earlier debates he used the term "acquiescence". There is quite a difference
The hour grows a little late and the mot juste probably escaped me. I am obliged to the Minister for his onomasiological assistance—I wish Hansard the best of luck with that. I am sure that "acquiescence" is indeed the word that I seek:.
The Secretary of State's third observation, which brings us into closer contact with the subject matter of the amendments, is the proposition that the only prospect of stability in the Province is to establish the structure adumbrated in the Bill—a structure which is shot through with inconsistencies, paradoxes and incompatibilities such that it is difficult to imagine how it could be erected, let alone remain standing.
Clause 3(2) brings us to another of the anomalous characteristics of the Assembly structure which is the centrepiece of the Bill.
Subsection (2) is concerned with the Assembly and legislation. Of course, at the stage of evolution to which clause 3 refers, in the absence of partial or complete devolution, the Assembly will have no legislative powers, so one might at first sight wonder how one could have a subsection on the subject of the Assembly and legislation. But so it is that subsection (2) provides for the Assembly to perform a consultative or deliberative function in relation to legislation applying to Northern Ireland, and that is the subject that we have to examine in studying subsection (2).
Amendment No. 43, which proposes to leave out the subsection altogether, enables us to consider whether there is an unacceptable contradiction in the Assembly examining legislation in areas in which it has no executive or legislative authority. I think that it is an accurate statement of the position. The consequence of the subsection giving it that permission, or in some circumstances giving it the instruction, is that a duplication of overlap is created between the deliberations of the Assembly and the functioning of the House as a legislative body that I believe is open to serious objection.
I shall endeavour to illustrate that by reminding the Committee of the present structure of legislation for Northern Ireland under the interim period provisions of the 1974 Act. Of course, by the mercy of God, a great deal of legislation for Northern Ireland goes through the House and through Parliament in the form of proper legislation.
But, in so far as the law is made for Northern Ireland under the direct rule procedures, there are three distinct forms of instrument by which this is performed. The equivalent of substantive legislation that for the rest of the United Kingdom would require a Bill in Parliament is an Order in Council that is presented in draft and requires to be affirmed in draft and approved by the House before the Order in Council can be made. So far as legislation takes place under the direct rule provisions an Order in Council is Northern Ireland's substantive legislation.
We then come to subordinate legislation that, as we are accustomed to it in this House, is of two kinds—subordinate legislation requiring the affirmative procedure, and subordinate legislation that is in theory, though, alas, hardly in practice, subject to a negative procedure of annulment within a certain period by either House of Parliament.
Under the temporary provisions of the 1974 Act, each of those processes is, as it were, pushed down by one grade. A statutory instrument that would have been subject to the affirmative procedure becomes subject to the negative procedure in this House. A statutory instrument that would have been subject to the negative procedure but for the suspension of the 1973 Constitution in Northern Ireland, becomes a statutory instrument with no parliamentary procedure whatever. Such statutory instruments pour out at the rate of 400 or 500 a year. Those of us who have a curiosity to do so, diligently collect them, arrange them in numerical order, and tag them neatly at the top left-hand corner. But that is about all that we as Members of Parliament can effectively do with the great mass of statutory rules and orders—the non-negative and "no procedure at all" statutory instruments.
That is the specifically Northern Ireland legislation which under clause 3(2) it is proposed to be submitted to the "consideration" of the Assembly. That consideration will take place upon the reference of the Secretary of State. The Assembly does not do it suo motu but must wait for the Secretary of State to send a draft Order in Council or statutory instrument asking it to consider them.
On what principle is the Secretary of State likely to decide which instruments he should send and which he should not? Prima faci6, it would not seem a bad idea, if the Assembly is to be able to consider these documents at all, if it were able to consider them at its own discretion and possibly, just as we do with European legislation, even to decide which it would like to consider more seriously than others. However, as the clause stands it is the reference of the Secretary of State to the Assembly that starts the whole process and initiates consideration.
The Assembly's activity is null and of no effect. When it has considered the matter, apart from making a report, if it so decides or if the Secretary of State so instructs, nothing happens. It is not within the power of the Assembly at this stage and in these circumstances to approve a draft order, to affirm an affirmative statutory instrument or to negate a negative statutory instrument. It cannot do anything about it. It can only consider it.
Two rather opposite considerations present themselves to my mind as I contemplate the Assembly going about this part of its non-labours under clause 3. Let us suppose that after considering a draft Order in Council the Assembly does not like it—it may have taken a dislike to it for all kinds of reasons—or at any rate does not like various portions of it.
The House of Commons, as the legislative authority of the realm, proceeds to consider the draft orders that are part of the substantive law making for Northern Ireland. Very often, we consider them in several stages. First, we consider the proposals—the earliest form in which the orders are issued—and very often the Northern Ireland Committee looks at those with the assistance of the Minister. That is often followed by discussions between Northern Ireland Members and the Minister who will lay the order. Thereafter, there is a debate in the House upon the draft order itself. Therefore, there is a parliamentary procedure that is effective not only in a technical sense but often in a practical sense.
I am glad to see the right hon. Member for Mansfield (Mr. Concannon) doing his lonely stint on the Opposition Front Bench. It was with his assistance and hearty cooperation that between us we were able to make a far better job of the codes of compensation for criminal injury and criminal damage in 1977–78 than either of us would have been able to accomplish separately. We succeeded in turning the procedure, by way of proposal and draft order, into something reasonably resembling a legislative procedure in the House, so that when we came to our final debate on the draft on the Floor of the House we were able to submit a document, behind which both Northern Ireland Members and the right hon. Gentleman could, with some assurance and good conscience, stand.
In my imaginary case, the Assembly in its wisdom has examined the draft order and, as far as it can by an unfavourable conclusion, thrown it out. What is the position of Northern Ireland Members of the House in those circumstances? They are the representatives of the same electorate as the Assembly who have, in the more spacious, although perhaps architecturally less agreeable, circumstances of Stormont, gone into a huddle together and considered, as directed by the Secretary of State, those proposals for a draft order. They have come to a negative conclusion, and by a process that we shall be considering in the context of later amendments we have come to know about it.
What are we to do? Are we to say "Well, that settles the matter. The alternative representatives of our constituencies have done our work for us. They have considered the order and have decided that they do not like it"? We might therefore conclude that there was nothing left for us to do but to turn up at 11 o'clock at night and vote against it ineffectually. That is one possible conclusion, and not entirely an illogical one.
Suppose that we are too proud, too self-confident, too much impressed with the status of a real Member of a real Parliament to take that course of action. We examine the proposals, we consult interests in the Province, obtain advice from those in the Province in our constituencies who may be affected by the order if and when it is made, and we came to a different conclusion.
We come to the conclusion, let us suppose in my imaginary example, that in principle it is an order that ought to be made but that it has a number of serious deficiencies. We can set to work with the Minister concerned, utilising the procedure of the Northern Ireland Committee and utilising the ultimate sanction, such as it is, of a debate on the Floor of the House to try to turn the order into such an order as we judge will be in the interests of the Province and of our constituents.
What is then the position of the Assembly? What is it to make of the task that it has been directed to perform? It has been directed to consider the order and has come to a conclusion. Not only has that had no practical effect but it has been disregarded. It has been thrown out by those contumacious 17 Members who will be representing the Province in the House. They have done a proper parliamentary job upon it, in so far as the procedure by Order in Council enables a proper job to be done at all. There is not merely an overlap between the activity of the Assembly and that of the representation of the Province in the House but there is a contradiction between them which cannot but lead to frustration, irritation and bad blood between the two bodies—the Assembly, which has no legislative powers but is invited to consider legislation, and this House which has legislative powers—which, of course, we have to exercise, as any other 17 hon. Members of this House have to exercise, within the context of the Parliament of the whole of the United Kingdom. That is one of the possible reflections to which one might be led by contemplating subsection (2). We have denoted that conclusion by the first of our amendments, which seeks to leave out the subsection altogether.
However, there is an alternative approach. We could say "Why not use a spare Assembly, on the assumption that it has spare time to have a look, at any rate, at those documents that we are not allowed to look at—or, to be more accurate, if we do look at them, there is nothing that we can do about them?" When one is struck by that idea, another comes close upon its heels. If we have the Assembly that can actually look at these documents, would it not be a spiffing idea if the Assembly were in a position to carry out the negative procedure, which is the basic intention in regard to that class of statutory instrument?
I do not want the hon. Member for Oxford (Mr. Patten) to think that my hon. Friends or I are unduly warming towards the proposition of this Assembly. He already knows from the preceding debates our views on the whole notion. Nevertheless, directing one's attention to this subsection and to the inadequacies of the direct rule legislative process for the Province, it is fascinating to consider whether we could get some use out of the Assembly.
If the Assembly were allowed to look at the statutory instruments which are not subject to negative procedure in this House—that is the lowest category—and were allowed to make reports on them, we would have something. We should have some check on that mass of subordinate legisaltion which is going on under our noses, and I think that we would be grateful for additional manpower in carrying out the attempt to scrutinise those documents which we ourselves make. But would it be necessary to stop there? Since we have an Assembly, could we not allow those documents to be laid before the Assembly so that we could revive, at any rate for those documents—perhaps this thought is too bold; at any rate, I shall complete it—the negative procedure so that the Assembly could be given some responsibility, legislative responsibility, at this stage if, after scrutiny, it decided to reject a statutory instrument to do so?
I realise that my Friends and I, in going this far, may well have been carried away by enthusiasm, because certain implications would follow. Indeed, it would be necessary for the Assembly, in that context, to have the co-operation of the relevant Minister or, at any rate, an official of the relevant Department—for it would be an irrelevant and irresponsible process to come to a negative conclusion on an instrument without proper briefing and without the means of interrogation. Therefore, we put forward the idea and the suggestion, which the amendment of the right hon. Member for Brighton, Pavilion (Mr. Amery) and, in a different sense, amendment No. 48, that has not been selected and to which I therefore cannot refer, were groping towards.
I summarise that argument by saying that there is an inherent contradiction between the lack of responsibility of the Assembly in the context of clause 3 and the task of considering legislative material. Sooner or later that contradiction is bound to lead to trouble, misunderstanding, frustration and irritation.
On the other hand, the legislative procedure under direct rule is so unsatisfactory, certainly so far as the subordinate instruments are concerned, that it is a pity to have to pass up any opportunity of even a partial improvement to it. Hence the suggestion that we might be able to get some practical benefit, some real responsible work, out of the Assembly in the relatively limited context where the House, even now, is not functioning in any real sense of the term as a legislative body.
In my disquisition I have not referred at all to the intermediate grade of statutory instrument where, theoretically, the right of prayer exists for hon. Members. I am not at all sure for these purposes into which category it would be appropriate to place those statutory instruments. We all know, and many hon. Members who do not like the House to be made a fool of by its own procedure regret, that the availability of the negative procedure is in practice largely cancelled by the fact that time is not made available by the Government. There is only a limited means whereby in Committee, or very rarely on the Floor of the House by arrangement through the usual channels, the negative procedure can be brought into existence.
One is bound to query whether the intermediate class of legislation could not also be dealt with by the Assembly, if only at the level of simple consideration.
It may help my right hon. Friend if I point out that in the course of a discussion with the Secretary of State some four months ago we touched on the two matters to which he has referred, namely, the statutory rules and the limited category of prayable statutory instruments.
I was then inclined to share what I believed to be the view of the Secretary of State that there might be a difficulty in the Assembly examining and pronouncing upon prayable statutory instruments, simply because the Assembly would be seen, or thought, to be praying that Her Majesty be asked to annul an order that presumably had been made under the authority of the House.
I simply mention that so that my right hon. Friend can perhaps suggest that, the Secretay of State may later be inclined to let us know the outcome of his deliberations on that point.
I am delighted at my hon. Friend's assistance and that latest evidence of the marriage of minds that exists between us. I had come to the same conclusion. However constricted it is in practice, we do have a real legislative procedure with the negative resolution in the case of this intermediate class of statutory instruments. It should be retained in the House and we should do what we can to improve our opportunities to deal with those instruments in the House.
Does not the right hon. Gentleman believe that he may be setting a dangerous precedent by suggesting that the lowest level of statutory instrument should be considered by the Assembly? Is not that playing into the hands of the Treasury Bench and the Secretary of State and setting a precedent for devolution to which many hon. Members are opposed?
Does the right hon. Gentleman agree that striking out subsection (2) would remove an instrument of conflict from the Bill? Giving the Assembly the ability to discuss and be no more than a talking shop or hot air chamber, could create conflict between the Assembly to be and the House of Commons.
The hon. Member for Macclesfield (Mr. Winterton) has evidently followed my reasoning closely. He is right that strict logic would incline in the direction of the amendment to delete the subsection. If I were to attempt to defend the slight deviation which the hon. Gentleman may have detected I must say that one does not willingly lay aside the opportunity of securing more scrutiny or control of subordinate legislation, if that can be achieved without too great an attendant disadvantage. One is prejudiced in the direction of looking for some means of coping more satisfactorily than at present with subordinate legislation.
So much by way of excuse. By way of palliation I point out that the same Assembly, perhaps while the procedures that we are discussing are still being applied, may already—and it is envisaged in the Bill—have proceeded to devolve responsibility in respect of one or more Departments. If so, in respect of those Departments it will already be exercising the affirmative powers in respect of the middle class of instruments and the negative powers in respect of the junior class. The hon. Member for Macclesfield will agree that there is not too great an anticipation, not too huge a feeling of the insatiable appetite for power, involved in the mere suggestion that it might just be possible to consider whether we can get some useful work out of the Assembly, even in areas where devolution has not taken place, by letting it deal with the third class of statutory instrument. If we are to do that, I doubt whether the amendments are sufficient. It would be necessary to delete, as Government Members propose, the last three lines of the subsection. If there were any disposition by the Government to follow that line of thought further, we should have to rely upon them to provide us with the appropriate drafting to achieve the purpose.
I ask the right hon. Gentleman for Down, South (Mr. Powell) to accept, in furtherance of the point made by my hon. Friend the Member for Macclesfield (Mr. Winterton), that I genuinely believe that the sentiments that the right hon. Gentleman has just expressed are a genuine attempt to improve the Bill within the terms in which it is written.
There are two ways of improving the Bill. There are purely technical ways, such as improving the wording. We are already grateful to the hon. Member for Antrim, South (Mr. Molyneaux) and his colleagues for helping us on amendment 35, where there was a technical problem. I can also see that the right hon. Member for Down, South is genuinely trying to improve the present face of the Bill. I would ask him—I think it is more than a semantic point—whether one should not be careful about the use of the word "improve" when, if one does not like the Bill—I know the right hon. Gentleman does not—one should perhaps use the word "change".
That is a genuine semantic point. One can improve even that which one intends in principle to reject. One can introduce improvements into a text or a project which in the end one decides not to adopt as a whole. I hope that there is not too severe an inconsistency there.
The conclusion to which the train of thought that I have placed before the Committee probably leads is that we should withdraw from the Assembly that subordinate legislation which this House possesses and as to which it is exercising live legislative power, but that it is worth considering whether in that area of subordinate legislation where the House has no live legislative power we could not, within the framework of the clause, find some means of utilising the Assembly more effectively than is proposed in the subsection as it stands.
I apologise, Mr. Armstrong. I wish to make it clear to the Committee that I am speaking to amendment No. 112 which is grouped with amendment No. 43. I apologise for my technical inaccuracy.
I wish to refer to the point made by my hon. Friend the Under-Secretary of State in his intervention in the speech of the right hon. Member for Down, South (Mr. Powell). His comments apply very much to amendment No. 112. I seek to suggest in amendment No. 112 that the Assembly should have any draft instrument laid before it. My hon. Friend may be wondering why, bearing in mind the previous debates and knowing of our opposition to the Bill, I am supporting such an amendment which would appear to strengthen if anything the power and authority of the Assembly, notwithstanding the fact that those who have spoken in the debates in the past days have suggested that the sovereign power over the people of Northern Ireland should rest with their elected representatives here in Westminster.
We must accept that the House of Commons expressed its support of the Bill on Second Reading. Although some of us want to ensure that the entirety of our opposition to the Bill is expressed in Committee, we must assist my right hon. and hon. Friends on the Treasury Bench to ensure that if the Bill reaches the statute book it is in a workable form and meets the Government's objectives. I do not criticise my right hon. Friend's objective, which is to introduce an Assembly for the better government of Northern Ireland. I am sure that we all want to provide opportunities for the better government of the United Kingdom, or any part of it. However, we feel that the path that my right hon. Friend has taken will not lead him to his objective.
The clause provides that when the Assembly is in operation some powers of the Northern Ireland Office will not be immediately devolved to it. Some of us think that certain powers may not be devolved for a considerable time.
We must ensure that the Assembly will not be meaningless and that it will have a role. The purpose of amendment No. 112 is to give the Assembly a legitimate role in considering instruments, drafts and proposals for the making of orders under the 1974 Act. Although some of my hon. Friends may disagree, I think that that is a legitimate role for the Assembly. I am concerned that it may be in danger of becoming a mere talking shop because of the many restrictions that will be placed upon it. My right hon. Friend seeks to put many road blocks in the way of genuine devolved government—for example, the requirement to obtain cross-community support and the requirement that Westminster should have the final say.
Against that background we must address ourselves to how we can prevent the Assembly from degenerating into nothing but a talking shop when there is a general expectation that the Bill will provide genuine devolution and place real power in the hands of an Assembly. Since that is the objective of my right hon. and hon. Friends in bringing forward the Bill, we must consider what the Assembly will do.
While the carrot is being dangled before the Assembly of having the opportunity of running certain Government Departments, a legitimate role might be to consider instruments or drafts, given the experience of the House and the way it often fails adequately to consider important draft instruments and other similar secondary legislation.
What is the point of subsection (2), under which the Secretary of State may refer to the Assembly certain matters, but then four lines later saying that
the reference to the Assembly under this section of an instrument or draft shall not be regarded for the purposes of the said paragraph 3 as laying it before the Assembly."?
My hon. Friend asks a metaphorical question. What my right hon. Friend is seeking to do is transparently obvious. He is seeking to place before a very young Assembly measures of general interest which can be openly and properly discussed without any legislative weight or significance being attached either to that discussion or to the outcome of the discussion when the talking is finished. In other words, the Assembly will have the opportunity to express an experienced and expert point of view on different matters without having legislative power to enact anything. I think that that is what he has in mind.
That is right. My right hon. Friend the Secretary of State is in effect saying "Look, you politicians in Northern Ireland are big boys now and we think it is time you started running your own affairs." But then in the small print of this subparagraph the Secretary of State seems to assume that these grown-up boys may not be capable of taking a decision on a draft instrument or other secondary delegated legislation. He is holding out the prospect that they can run their own affairs but that big brother in the Northern Ireland Office will still have the final say.
My right hon. and hon. Friends should address themselves to the problems posed not only in this group of amendments but in the earlier discussion as to how to prevent the Assembly from becoming a more talking shop. If it is nothing more than that, it will carry the seeds of its own destruction. if we are to provide nothing more than a platform for prejudices to be rehearsed and repeated as in the past, and if we are to trust the Assembly and give it some minor power and influence, it should be able to consider certain instruments or drafts.
The Secretary of State will refer matters to the Assembly, but he will not regard that as laying them before the Assembly. Will the Secretary of State explain the difference between referring something to somebody and laying something before somebody? There is a difference in the wording of the subsection. There was obviously some purpose in doing that in the minds of those who drafted the Bill. I understand "referring" to mean that the Government expect the Assembly to work for its living and do more than talk about the weather. It is reasonable that the Assembly should consider delegated legislation. Delegated legislation is important. It often passes through the House on the nod, late at night with inadequate debate.
I represent a steel constituency. Many legislative problems are caused by the Common Market. They come to my attention through statutory instruments laid before the House under directives from the Common Market. I have seen the impact that secondary legislation can have. It is important that there should be adequate debate by the appropriate body. That would be a genuine role for the Assembly.
Under the clause the Secretary of State will refer certain matters to the Assembly. The Secretary of State believes that the people of Northern Ireland should be responsible for their own affairs. He should therefore allow the Assembly to consider instruments and drafts that he will refer to it but not lay before it.
When an order is laid before Parliament the implication is that Parliament will consider what has been laid before it and make a decision. I assume that the Secretary of State is worried that if he gives the Assembly the right to have laid before it certain drafts or instruments it may come to a decision that he does not like. He would then have the problem of what to do about that decision.
I wonder whether there is a doubt in the Secretary of State's mind. Throughout the Bill it is said that the people of Northern Ireland and their elected representatives should be responsible for their own affairs, but there is a hidden brake. If the Assembly takes a decision that is not to the liking of the Northern Ireland Office, it will retain the power.
I always like to see power resting with Departments that are accountable to the House, but as the Government want to take power away from the House and give it to an Assembly backed by legislative force, they must surely be prepared to trust the Assembly.
The Secretary of State ought to regard the interim period, during which the Assembly will have to find something to do, as an opportunity to train the Assembly Members.
Yes. My hon. Friend the Under-Secretary is in charge of the Department of Health and Social Security in Northern Ireland. Eventually he will come to the House with an order to devolve to the Assembly responsibility for all the weighty matters that he has to decide on at present. That is an important Department and the decisions require the skill of a Minister. My hon. Friend exercises that skill responsibly and in a way consistent with his great sense of duty.
If an order is passed by the House, Assembly Members, who will have been doing nothing much during the interim period, will have transferred to them the responsibility for taking decisions on the important matters that are currently my hon. Friend's responsibility. Those Assembly Members could be getting used to taking decisions by having their consideration of instruments and so on taken seriously by the Secretary of State. That will be a good training ground for them.
Is it not more than a little condescending to talk about the people in Northern Ireland needing training to take over the task? What sort of training has the hon. Gentleman had and to what use has he put it?
I do not claim to be anything other than the elected representative of my constituency and I speak for no one but my constituents. In suggesting that others should be trained for the duties of government, it is not necessary for me to have been a Government spokesman or to have had some training in Government. However, all Back-Bench Members have a view as to those of their colleagues who are capable of holding office. I know, as a humble Back-Bench Member, that my hon. Friend the Minister has had the necessary training to be considered by my right hon. Friend the Prime Minister for the position that he has the honour to hold—[Interruption.] I shall stop when I have finished.
I am sure that the hon. Member for Hammersmith, North (Mr. Soley) will accept that some Members may be elected to the Assembly who have not had the same experience as my right hon. and hon. Friends. My hon. Friend the Minister is an exception, but a Minister who must deal with the weighty problems of Northern Ireland has probably been a Member of the House for a long time. The right hon. Member for Mansfield (Mr. Concannon) and his colleagues at the Northern Ireland Office had considerable experience before they went there. However, we shall be devolving power to people unknown and unelected. We could usefully lay before the Assembly orders and instruments for their serious consideration.
This group of amendments deals with the consolidation role of the Assembly. The Assembly may have only immediate functions and it is important that the Committee should consider those functions as closely as it can to ensure that it has as much of a role as possible.
The three functions of the Assembly are deliberation, scrutiny and consultation. Amendment No. 43 is aimed at removing the consultative role for draft orders and goes further to limit the Assembly's functions. I and my colleagues are trying to increase the role of the Assembly. Therefore it is clear that we will not follow the path advocated by the right hon. Member for Down, South (Mr. Powell).
It is important to recognise that in Northern Ireland there already exists a consultative role for people in various groups and walks of life. The draft orders that eventually find their way to the House are sent out to all types of people and groups. One such group is the 26 district councils in Northern Ireland. They are asked, within time limits, to give their comments on those draft orders.
I can see little reason why we should ask district councillors and, in some cases, community and special interest groups for their comments on proposed legislation, and shy away from the possibility of asking elected representatives of the people of Northern Ireland in an Assembly. I do not share the reluctance of the Official Unionist Party that is demonstrated in its amendment.
We should also recognise how Orders in Council are dealt with in the House. It should be remembered that when they are discussed there is a time limit. Some 90 minutes is set aside for what is often important legislation. I should not like to suggest that Front Bench spokesmen can be long-winded but there have been occasions when at least half the available time has been taken up by Front Bench speeches. We are always glad to hear hon. Members from constituencies outside Northern Ireland with a special interest in the subject.
After the speeches from the Front Benches and from those with a special interest who do not come from Northern Ireland, there is often little time left for Northern Ireland Members. There are often Northern Ireland Members who have come with a well-prepared speech which they have not been able to make, and they might have made a valuable contribution to the debate. They feel the frustration that I have seen on the face of the hon. Member for Wolverhampton, South-West (Mr. Budgen) for the past few days.
Rather than extending his sympathy to me, would the hon. Gentleman extend it to the hon. Member for Londonderry (Mr. Ross) who sat through all of our last debate and, no doubt, had an important speech to make? Much in his constituency concerns the security forces, but the draconian closure procedure descended and he was unhappily unable to tell the Committee a word about it.
The hon. Gentleman's story almost brings tears to my eyes. It must have been difficult for the hon. Member for Londonderry (Mr. Ross), but I can offer him some comfort and hope. If he stands for the Northern Ireland Assembly and the functions in the Bill are implemented, there is every chance that he will have all the time in the world to talk about the matters that are important to him and his constituents.
The hon. Member will appreciate that we are always glad to discuss the problems of our constituencies, but I am much more interested in having the power in my hands to do something about those problems.
I share that view. I trust that the hon. Gentleman will therefore want to give the Assembly more power rather than, as his amendment suggests, take away what little power it has. It seems a contradiction that he should try to lessen the power of the Assembly when he now says that he wants it to be increased.
If I am close to the mark in suggesting that the immediate functions may be the only functions that the Assembly will ever have because the difficult if not impossible criterion laid down by the Secretary of State will ensure that no devolved powers will be given to it, a future Government and Parliament may decide to consider how the Assembly has behaved, how it has dealt with legislation proposed by this Parliament and whether it has been generally responsible. If the Assembly has shown itself to be responsible and prepared to work in the best interests of all the people, Parliament may then decide that it has sufficient confidence in the Assembly to devolve powers to it by passing new legislation even though the criterion has not been met.
I trust that the hon. Member for Londonderry will therefore join me in seeking as much power as possible for the Assembly—limited though its role may be as a result of the Secretary of State's criterion.
I was interested in the comments of the hon. Member for Brigg and Scunthorpe (Mr. Brown) on amendment No. 112. The hon. Gentleman has probably noticed that those of us who come from Northern Ireland are apt to be suspicious. As the amendment was tabled by integrationists, I must confess that my first reaction was that they were probably up to something, that the amendment must be pro-integration and that I should probably oppose it. I was therefore pleasantly surprised when the hon. Gentleman said that if the Bill were to become an Act he wanted it to be the best that it possibly could be, and that he hoped that the Assembly would have more control and power to act responsibly. In case I have been gulled or led up the garden path by the hon. Gentleman's eloquence, may I say that I shall be interested to hear the Minister's reply. Nevertheless, I am so far convinced at present that I may well find myself joining the hon. Member for Brigg and Scunthorpe in the Lobby to vote for the amendment.
I hope that we shall give the Assembly as much power as possible within the functions delegated to it and that we shall indeed go a step further. The Bill provides that the Secretary of State may—I emphasise the word "may"—send Orders in Council to the Assembly for discussion. Our amendment makes it essential that he does so. I think that the Secretary of State will find it difficult to convince the Assembly that its opinion is valuable on some pieces of legislation but not on others. It may well ask why, if its opinion is considered worthy in one case, the Secretary of State does not invite it to give its opinion in others.
Being suspicious people, we might think that there was an ulterior motive—that it might have been controversial legislation on which the Secretary of State could not have gained the Assembly's support. To remove any such suspicion and doubt, the Committee should accept amendment No. 44. It is a reasonable amendment. It does not drastically change the course of the Bill, but it gives more power to the Assembly to act responsibly and reasonably.
I am glad to have this opportunity to put before the Committee one or two of my thoughts on the amendments. However, I first deal with the misunderstandings that are evident from the speech of the hon. Member for Belfast, East (Mr. Robinson). He appeared to teeter between making up his mind on whether or not the Assembly will have power. I assure him that the Assembly will have no powers.
There was also an evident misunderstanding following my intervention in his speech. He did not appear to understand the import of the amendments and had not tied them to the group of amendments that was unfortunately rejected by the Government Whips earlier this evening. Those earlier amendments proposed to open up any subject for discussion by the Assembly. In the light of that, there is no way that he can say that my right hon. and hon. Friends and I are trying to silence the elected Members of the Assembly.
If there is to be an Assembly, there is no doubt that those who are elected to it will talk about any thing and everything that they have a mind to talk about. Whether the Secretary of State wishes them to do so is another matter. It will make not a blind bit of difference. They will still talk about anything and everything under the sun if they decide to do so.
The Secretary of State can refer any proposals in an Order in Council to the Assembly for discussion, although it has no legislative powers, to ascertain its views. It is important to note that there will be consultation only. In common with the hon. Member for Belfast, East, I, too, have served on a local council in Northern Ireland. He still does. Councils consult various bodies responsible for road services, water services, the Housing Executive and heaven knows what else. But it is only consultation. Those bodies can listen politely and then say "Yes. We accept that members of the council have a number of priorities that are arranged in a certain order. We have listened with interest to all that has been said and we have decided that we shall nevertheless do our own bit. We do not have to take any notice of you. We have a programme laid out, a certain amount of money to carry it through and we intend to go ahead with it. Thank you very much and good evening." That is what consultation boils down to in almost any sphere.
We are told in the notes on clauses that careful account will be taken of the views expressed. A careful account can be taken but, like consultation, that does not mean anything. Ultimately the responsibility and decision-making power will lie not with the Assembly but with the Minister, who can and will do whatever he decides.
The reports from the Assembly are not simply majority reports. A party political view might be taken and would be one way of reaching a decision. That happens in the local councils now. That will not be the position in the Assembly or with the reports from the Assembly.
We are told that the reports must contain a wide measure of cross-community agreement and that that support must be reflected. We are not told how it is to be reflected or whether the Minister in charge of the Department will take the reports and count heads to see the colour the support. We are not told whether it will be 51 per cent. plus one or 70 per cent. The wording of the clause is merely a repeat of earlier wording, when we talked about the nonsense of cross-community support and the devolution of powers in general. In any event, cross-community support is a subjective view of the Secretary of State of the day. That is not acceptable now, any more than it was acceptable earlier.
On top of that, the views taken by the Assembly must not conflict with the Government's financial or other policies. It is difficult enough for hon. Members, including Conservative Members, to avoid conflict with their financial policies, never mind the conflict that always exists between Government, councils and other spending bodies.
Even if we could satisfy ourselves that we were acting within Government financial strictures, we would still have to be certain that we were acting within general Government policy. Once more, this brings us face to face with Government priorities.
I take the building of hospitals as an example. I am not sure whether a new hospital is to be built in the constituency of my hon. Friend the Member for Antrim, South (Mr. Molyneaux), but there is still no sign of a new hospital for Coleraine in my constituency. Many of my constituents would feel that the constituency of Antrim, South could do without a hospital if only they had theirs.
That is a matter of contention between us. I have no doubt that if I were a Member of the Assembly and put my views with vigour and determination, there would at least be a reasonable chance that many Members would listen to the powerful case that I could make in support of that hospital. However, having made such a recommendation to the Minister, we would find that it did not fit in with Government priorities, never mind financial policy. We would be told politely "You have wasted your time talking about this matter and reaching the broadly-based agreement set out in your report. We are very sorry, we shall simply not accept your view. We shall not build the hospital in Antrim either".
I am grateful to the hon. Gentleman for giving way. It gives me the opportunity to reaffirm that we intend to proceed with the building of the Antrim hospital as soon as possible after 1984. That was a commitment that I gave 18 months ago.
I can imagine the impassioned speech that the hon. Member for Londonderry (Mr. Ross) would make on behalf of his hospital, but the Assembly, doubtless under the training initiatives proposed by my hon. Friend the Member for Brigg and Scunthorpe (Mr. Brown), would contain people who had done the background work. They would have read the most recent publication by the Northern Ireland Economic Council, which pointed out three important facts—first, that expenditure on the Health Service in Northern Ireland has been generous in recent years; secondly, that the hospitals there are more modern than on this side of the water; and, thirdly, that in Northern Ireland there is a considerable over-provision of beds. I would hope that the debate would be more balanced and responsible than the hon. Gentleman suggests.
The question is whether the beds are in the right places, whether they are the right sort of beds and whether proper provision is being made. Once again, we are back to priorities.
It is clear that a great deal of training is needed elsewhere. Why was it that we went down a year or two ago on a wet day to plant trees on the site of the new hospital in Antrim, to be told that the thing would be built? What went wrong? Who got their sums wrong? Whose training was not so sufficiently and thoroughly done as to make sure that they got their sums right and had things in the proper order so the hospital that was needed was built according to the original plan? What and who went wrong?
I cannot see any way in which we can avoid conflict with the Government, especially when they stop building hospitals, providing money for houses and so on overnight. There is bound to be conflict. The Members of the Assembly, who will know the feelings of the electorate with fairly good accuracy will be cross. They will say all sorts of nasty things about the Ministers concerned, and explain to them that they have not done very well. They have not made sufficient provision, or made a wrong provision and the money has been wrongly spent.
The Secretary of State could refer to the Assembly matters connected with the present Minister's Department, under subsection (2). As the Minister has said, my hon. Friend the Member for Londonderry (Mr. Ross) would deploy his case in a formidable fashion, as we have heard him do in the several debates in Committee. However, at the end of the day, if it were possible to take a vote, South Antrim would outvote him, because according to the end of the schedule, South Antrim would have 10 seats and Londonderry would have only seven.
In those circumstances I should find myself in a most difficult position. I should have to look for support to places other than South Antrim. That would cause a certain degree of friction between my hon. Friend and myself and between those who would be representing the respective constituencies. Those people, being elected under the proportional representation system, would find it vital to make their point known to their electorate, whether or not there was a party interest.
There is in my constituency a wider spread of political opinion—or perhaps not. My hon. Friend the Member for Antrim, South has in his constituency parts of West Belfast, where there will be just as much way-out opinion as in the west bank of Londonderry and elsewhere in my constituency. However, we have not yet come down to the level of the electorate of Fermanagh and South Tyrone. One would hope and pray that we would never do so. I should have thought that there would be a wide spread of political opinion elected to the Assembly from the city and county that I represent.
I must get away from this discussion about hospitals and party representation, because I hope that we shall have an opportunity to return in the future to the questions of the system of proportional representation, and how the Members of the Assembly will be elected. I pointed out on one occasion to my hon. Friend the Member for Antrim, South that with 10 seats in South Antrim and a proportional representation system, there will be a ballot paper with approximately 50 names. That is to say, it will be as long as a sheet of newspaper.
I have no idea what will come out of that sort of general dog's breakfast. There will be so many names on the list that even if people are given the names of the members of the party that they support, they will have great difficulty in finding them. I suppose that the best thing would be to find people whose surnames begin with A and B, and at least they would be near the top of the list—or perhaps Z, if that were possible. Of course, that is simply an added incentive to members of the Unionist Party to stress to the Minister the vital need for the Assembly election to be held on the basis of the 85 seats, so that the number of names on the ballot papers would be much fewer, the ballot papers need only be the size of the Official Report, and thus there would be a better chance of finding the candidates of one's choice among the long list of names that is always presented to us on these occasions.
There is another problem. We are told in the excellent notes that it would be inappropriate to refer to the Assembly appropriation orders, consolidation orders, and orders subject to urgent procedure, under paragraph 1(4)(b) of schedule 1 to the 1974 Act. In my view, it is most unusual to elect an Assembly of people and give the electorate the impression that they are important people who can do something for the electors, and then we say "All the real meat will be withheld". I appreciate that consolidation measures do not matter, because they simply go through on the nod in this House anyway. There is no harm in giving them to the Assembly, where the Members can nod their heads just as well as we can. The sheer speed required in the case of urgent orders prohibits them being sent out for investigation by various bodies. The same strictures would apply to the Assembly.
However, appropriation orders relate to all the sums spent. If there is an order that is worth considering, an order that the Assembly should look at, and on which the Assembly should have an opportunity to state its view, surely it is the appropriation order. I cannot understand why it has been excluded. All matters relating to hospitals, roads, water, sewage works, housing, approvals by the Housing Executive, grants from the Housing Executive, the sale of houses and the problems that arise in that connection, the structure and operation of the Housing Executive, are specifically excluded from the consideration of the Assembly. There is no way in which the Assembly can carry out a meaningful discussion of any of those functions unless it has some understanding of the financial implications, but we are told that the Assembly is not allowed to consider the financial implications. It will have to work in the dark. It will have to grub and dig to see what small information it can garner from various sources. The Assembly will not be given any hard and fast information. Neither the Secretary of State nor the Secretary of State for the Environment will appear before the Assembly to inform it about the situation. No one will say that there are so many millions of pounds for this, so many hundreds of thousands of pounds for that; that there is no way that there will be any more; that the priority is so and so and it cannot be changed.
It is ridiculous that we should elect such worthy people, that we should ask them to drive for many miles to Stormont or wherever, that we should sit them down there and then not give them anything meaningful to do but merely turn them into a talking shop.
Those hon. Members who look after Government spending in Northern Ireland—for example, commerce—have their priorities. Would a Northern Ireland Assembly have built Courtaulds, of Campsie? Would it have poured money into Strathearn Audio Ltd? Would it have backed Mr. De Lorean? Would it have put money into a gas pipeline across the North Sea instead of to Kinsale? That is what I mean by priorities.
We find that the Assembly will be locked, as it were, in a darkened room, able to discuss the frivolous but quite unable to give any consideration to what matters to an electorate.
Subsection (2) tells us that any instrument or draft to which paragraph 3 of schedule 1 to the Northern Ireland Act 1974 applies may be referred to the Assembly. The Assembly can be invited to comment, but such an instrument or draft must not be regarded as being laid before the Assembly in the legal sense. There is no advice, only comment. The Assembly might as well say "It is a nice day, let's go home again" for all the difference it makes.
not be regarded … as laying … before the Assembly.
mean? Is there some sort of an "unusual channels" operation going on here? Will some sort of back-room deals be done here? What do the terms really mean? What useful function does the procedure fulfil? If there is a useful function, I cannot find it.
We are told that there is no formal requirement for the Assembly to pass a resolution on the draft instrument. Is there not? It does not matter whether there is a formal requirement for the Assembly to pass a resolution on a draft instrument or not. It will be passing resolutions on every draft instrument that comes before it; make no mistake about that. It will not necessarily be doing it to be bloody-minded. It will not be doing it without reason. It will not be doing it to be awkward. It will be doing it because on practically everything that comes before it, on every draft instrument, it is bound to take a view. It matters but little whether that view is in accordance with the view of the Secretary of State and his hon. Friends on the Front Bench.
What does matter is that people who have been elected in Northern Ireland have been elected on the understanding of their constituents that they will take a view on the things that are put before them. By heaven, they will certainly take a view on every subject under the sun. They will express that opinion, and having expressed it, being unable to put their views into effect, they will turn around and say that the whole thing is a con trick. They will be left without any responsibility and they will inevitably become irresponsible. It cannot be otherwise.
Where people are put in a position where they have trappings of power but no responsibility—because their actions will have no consequences other than bits of paper and resolutions—that can lead to nothing but misery, frustration, irritation and anger. Eventually that would lead to an all-out confrontation with the Government. The sooner that the Government realise that, the better. If they realise that before they go too far, we might have something sensible for Ulster out of all the nonsense. There is no sign of anything sensible or reasonable. The Government's intention seems to be to drive on with a Bill, which enjoys neither respect nor—
The hon. Gentleman says that the Assembly will be irresponsible because it will not have responsibility for the functions that it discusses. Surely the hon. Gentleman is in the same position. With the greatest will in the world, Members from Northern Ireland will not become Members of the Government in the House. They will not have ultimate responsibility at any time. Does, not the hon. Gentleman have a place in the House without any responsibility?
Who knows what 10 or 20 years may bring? We do not know what may happen. No person can know what will happen in the long term. The right hon. Member for Mansfield (Mr. Concannon) and his right hon. and hon. Friends may change their minds about organising the Labour Party in Northern Ireland. They may take into their ranks the hon. Member for Belfast, West (Mr. Fitt). Perhaps the present Secretary of State will decide to organise the Conservative Party in Northern Ireland. The hon. Member for Manchester, Withington (Mr. Silvester) shakes his head. Is he not a member of a national party? Is not one of the proudest boasts of the Conservative and Unionist Party that it is a national party? Does the hon. Gentleman say that he does not want to be a member of a national party? It is a sad reflection on his political outlook if he fears to put his views before the Northern Ireland electorate. Members of his party have tried that in some of the most unlikely circumstances on this side of the Irish Sea. If they have the courage of their convictions, they should put them before the Northern Ireland electorate, as we shall if the Bill proceeds. We shall see who wins, because that is where the real vote will be taken.
The people of Northern Ireland need much better than what is offered. We are not interested in a talking shop. We are not interested in a powerless Assembly. We are interested in something that can deliver the goods for the people. I do not believe that the Bill will do that. The sooner that the Secretary of State rethinks his ideas the better for us all.
We are discussing an illogical subsection in a somewhat illogical Bill. It deals solely with the method of putting to the Assembly provisions dealt with by direct rule under schedule 1 of the 1974 Act.
If my right hon. Friends wish to move towards devolved legislation and a devolved Executive in Northern Ireland, it is curious that the steps that they are taking in subsection (2) are so timid. They are taking two steps forward and one back.
The basic illogicality is that my right hon. Friend is willing to refer to the Assembly those matters of legislation which are adequately dealt with in the House, yet he is not willing to go a little further and give the Assembly power to scrutinise those measures of legislation which are not dealt with in the House—the bottom class to which the right hon. Member for Down, South (Mr. Powell) referred. It is especially illogical if one considers that the Assembly during this period may be partially devolved in dealing with the affairs of some Departments. In some cases it is possible that the Assembly would be handling matters itself and in other cases, the matters would be referred to it by the Secretary of State. Yet even those matters which had not been dealt with in the House of Commons would not be laid before it and discussed under the negative procedure.
In discussing the clause, we must remember that we are referring solely to legislation. Why is the Secretary of State so coy about referring these matters to the Assembly? Surely, if he wishes to lead the Assembly on to be a full legislative Assembly he will consider putting all legislation before it so that it may be consulted. If it is purely a consultative Assembly in this role, it would be
helpful to the Committee if he could let us know the criteria he intends to use with regard to the words in clause 3(2):
the Secretary of State may refer to the Assembly".
My second point refers to the wording of clause 3(2) (a) and (b). Clause 3(2) (a) states that the Secretary of State may refer to the Assembly
any proposal for the making of an Order under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974".
Clause 3(2)(b) refers to
any instrument or draft of an instrument to which paragraph 3 of that Schedule applies;
Paragraph 1(1)(b) of the schedule refers to new legislation, while paragraph 3 of that schedule refers to changes.
Will the Secretary of State confirm that he may put direct to the Assembly instruments or drafts of instruments which refer to a change in existing legislation but that if new legislation is involved he has to put a proposal and not that instrument or draft?
The phrasing of the clause makes it plain that my right hon. Friend has to put to the Assembly not a draft instrument but a proposal for one.
That must mean that what he refers to the Assembly is done before there is any question of the draft clause coming before the House. It goes to the Assembly first before it is even a draft. I find that slightly odd and I am not sure what the purpose is. The Assembly may or may not report to the Secretary of State and it must do so if he requires it. If it does report, the Secretary of State will lay before Parliament the report given to him by the Assembly. But if it does not report, how does it express a view? How does the Secretary of State take that view into consideration?
If the Assembly is to consider a proposal for a draft instrument before that draft instrument is put before the House, it must be for some purpose unless he intends to ask it to report on everything. If a proposal is considered and no report is made, the only purpose of that procedure is to advise the Secretary of State. That is reasonable, but it is a little odd to rely on the prior advice of an Assembly which is not trusted to examine subordinate legislation that is not considered in the House of Commons. I hope that my right hon. Friend can reassure us that he is not giving the Assembly a right of veto over what he will put forward in due course.
The hon. Member for Belfast, East (Mr. Robinson) referred to the consultative role of the Assembly and said that the Secretary of State could consult many people in Northern Ireland, rightly and properly, before submitting a draft. I should like my right hon. Friend's assurance that the power that he is taking to consult the Assembly before putting a draft before Parliament is in addition to and not instead of his normal consultations with local authorities and other interested parties that are part of the normal function of government throughout the United Kingdom. It seems dangerous to rely over-much on a consultative Assembly which by definition is divided on sectarian lines, rather than on local authorities and other bodies that are more directly concerned with the details of proposed legislation.
The main doubt about this part of the Bill could be removed by removing the subsection. That would be the simplest thing to do. If my right hon. Friend is not willing
to consider doing that, will he give serious consideration to the point that I have made about the phrasing of the second line of the subsection—
the Secretary of State may refer to the Assembly"?
Amendment No. 44 would remove "may" and insert "shall". What is my right hon. Friend's reason for rejecting "shall", if he intends to reject it, and retaining "may"? What are my right hon. Friend's criteria for making that judgment?
If my right hon. Friend is determined to keep the subsection, my right hon. Friend should heed the right hon. Member for Down, South, who said that it would be more logical on his own premise, and perhaps enable the Assembly to do less damage than it might otherwise do, if he would allow the Assembly to scrutinise the subordinate legislation which, under the terms of the Northern Ireland Act 1974, is not scrutinised in the House of Commons. We have had considerable discussion of these matters and I hope that we shall be able to get some direct and positive answers.
I shall direct my remarks, first, to amendment No. 43, which if accepted would cause subsection (2) to be removed from the clause. The argument in favour of that course as deployed by the right hon. Member for Down, South (Mr. Powell), It was helpful when the right hon. Gentleman illustrated the three types of Order in Council, or subordinate legislation, which are now in operation. He referred particularly to the third type, as he called it, of subordinate legislation, the negative resolution, which rarely gets debated in this place. Later he pointed out that he thought it would be useful if the third member of the league of subordinate items of legislation were discussed by the new Assembly and that provision should be made for that.
We must be careful about the manner in which the Assembly would discuss the third type of subordinate legislation. It could consider items relating to negative resolutions but it should not be given legislative power to say yea or nay to the contents. When discussing the negative type of resolution it should be in a similar situation to a regional council in Scotland or a county council in England—
—whereby matters are placed before a council for discussion and expression of opinion, which is noted by the Government and is of considerable value to them. For instance, nearly all the major county councils in England and Wales have been engaged in recent months in discussing in great depth the Green Paper issued by my right hon. Friend the Secretary of State for the Environment on rating reform. My right hon. Friend approached county councils for their views on the Green Paper. That is frequently a Government course in relation to White Papers.
Order. I am sorry to stop the hon. Gentleman in mid-flight, but we are debating matters that should be referred to the Assembly. We are not dealing with county councils.
I was about to say that I should like to see Green Paper or White Paper matters referred to the Assembly for its view, in the same manner as regional councils and county councils in England and Wales express an opinion on such things for the benefit of the Government.
With that in mind we should be in a much better position because the Assembly would be able to express a direct opinion It would still leave the three types of subordinate legislation with the House of Commons. We would not divest ourselves of one of them, as suggested by the right hon. Member for Down, South. Nevertheless, it would be helpful and valuable if the Assembly could present such an opinion as and when required by the Secretary of State. The best way of achieving that NS to support amendment No. 43 to leave out subsection (2).
Some hon. Members have displayed great ingenuity in suggesting that significant powers could be given to the Assembly in its initial stage under clause 3, particularly subsection (2). Clause 3 begins:
During any period for which no Order is in force.
That means that no direct rule order is in force, whether total or partial direct rule. The pre-condition means that all that follows is dependent upon direct rule being in force. With respect to all hon. Members, including the hon. Member for Belfast, East (Mr. Robinson), who have made suggestions about the clause, it is not a question of extending the powers under clause 3(2), or any amendment to it, because that pre-condition is based on the premise that the Assembly will have no power.
Amendment No. 43 deals with the problem that is implicit in the proposal to refer Orders in Council to the Assembly. That is a different category. Such proposals are circulated to political parties in Northern Ireland, and I hope that they are made available to opposition parties in the House of Commons. I have always felt that it is nonsense for the Government—whatever their complexion—to go ahead with the mechanism of legislation for Northern Ireland without the support of the Official Opposition. They should play a prominent part in processing legislation for Northern Ireland, perhaps more than any other part of the United Kingdom, because the system for governing Northern Ireland is peculiar.
I trust that the proposals for draft orders are circulated to all interested parties. I know that they are circulated to the various institutions arid bodies in Northern Ireland likely to be interested in the proposals. The Government's invitation to those bodies to comment is responded to with varying degrees of enthusiasm. The comment represents the view of the body making the submission. I have attempted to construct a picture of the processing of the submissions from a wide variety of organisations. I have visualised the civil servants in the Department responsible for preparing the proposals and draft orders compiling a file of all the views expressed and then identifying the major objections and suggestions for improving the proposal.
It is important to emphasise that the public and interested bodies should seize the opportunity given by the circulation of the, proposals to express their views. It is only at that stage that significant changes can be incorporated in the proposals. Once the draft order appears on the Table of the House it does not matter how long we debate it, it cannot be amended.
The hon. Member for Belfast, East said that it is standard practice to debate the order for 90 minutes. Successive business managers have usually been receptive to suggestions that the time should be extended when the order has a special significance. My party has asked the Government for a time extension on the order that we are likely to debate on Monday. In case anyone is alarmed, I should make it clear that we shall not be seeking to waste time. We may not use all the time for which we have asked, but we would not want a restriction on the debate on an important amalgamation of Departments order that is designed to prepare the way for the new industrial development board.
Will the established, clearly recognised procedure be continued when the Assembly is elected and the Secretary of State begins the process outlined in clause 3(2)? I am referring only to the first stage. If he continues the present procedure there will be the possibility of friction between the bodies that have been consulted and the Assembly, which may take a different view. On the other hand, the Secretary of State may decide, in order to give the Assembly a clear run, to dispense with the established procedure for consultation. In that case, the bodies that have become accustomed to being consulted may feel aggrieved. Their advice may not always have been taken, but they feel that their views are taken seriously and that occasionally they have an impact on the Government's thinking.
The Assembly will not be a legislature and the examination of proposals for a draft order will not be a first step in a chain of legislative action. The consultation proposed in clause 3(2) is isolated from the legislative process that will take place in the House, perhaps in the Northern Ireland Committee.
My right hon. Friend for Down, South (Mr. Powell) dealt adequately with the question of statutory instruments. We wish to know why the Secretary of State should be selective in that area. The Assembly could do no more than examine and express an opinion upon statutory instruments. A few months ago we discussed with the Secretary of State the relationship between the Assembly, acting in the consolidation role, and the examiner of statutory rules. We came to no definite conclusion. I hope that in the meantime the Secretary of State has developed some further thoughts on the matter. I am sure that he will have studied our suggestions, taken advice and examined the possibilities. Perhaps more importantly, he will have examined the consequences of permitting the Assembly to examine what subsection (2) calls
any instrument or draft of an instrument".
As my right hon. Friend the Member for Down, South said, the Assembly can do nothing to secondary legislation. It would be fairly safe for the Secretary of State to experiment by giving the Assembly rather more scope to examine the matters put before it, in the sure knowledge that it can do no damage because it has no powers.
My right hon. Friend the Member for Down, South expressed a fear that has been echoed subsequently, that, in suggesting that secondary legislation might be put before the Assembly, we might be in some danger of being carried away. He expressed a well-founded fear that we might accidentally erode the powers of Parliament and devolve some scope to nothing more than a discussion group, which would be the sole function of the Assembly in its early stages. We might safeguard the position by avoiding the use of the term "laid before the Assembly". The words in the Bill are "refer to the Assembly", which seems to be safer.
The hon. Member for Brigg and Scunthorpe (Mr. Brown) mentioned that point and asked about the significance of and difference between the two phrases. My right hon. Friend should agree that the term "laid before the Assembly" conjures up visions of that being an operation to trigger off a procedure that is isolated from any consultation or scrutiny.
Perhaps the three final words of subsection (2), which amendment No. 112 seeks to delete, have been inserted to deal with that problem. It states:
But the reference to the Assembly under this section of an insrument or draft shall not be regarded for the purposes of the said paragraph 3 as laying it before the Assembly.
My suggestion has been based largely on the Committee notes, which set out the position clearly.
The intention is that during its consultative stage the Assembly will normally be invited to comment on both these categories of subordinate legislation (ie) instruments dealing with 'transferred' matters and subject either to negative resolution or to no procedure at all, at Westminster. However, any such consultations"—
this part puzzles me—
will be subject to considerations of urgency and the reference of an instrument or draft to the Assembly is not regarded as laying it before the Assembly in the legal sense. The control of both primary and subordinate legislation will remain firmly in the Government's hands.
We accept that. I hope that the Secretary of State will be able to deal with my right hon. Friend's point about secondary legislation.
The Assembly could do a useful job without risk to Parliament or the interests of those who are likely to be affected by the draft orders as it will not have the power to cause any risk.
I do not often disagree with the hon. Member for Antrim, South (Mr. Molyneaux). I reluctantly disagree with him when he says that he doubts whether his party's proposals will do any harm. I do not wish to go so far as to disagree with him in the Lobby but I shall need further persuasion to go with him.
Opening up some hope of the Assembly becoming a forum for legislative devolution has great dangers. I agree with the hon. Member for Belfast, East (Mr. Robinson), who said that he was surprised by the arguments of those who opposed legislative devolution. The Assembly may adopt dangerous attitudes if it considers even the least important statutory instruments.
Few members of any assembly in the civilised world consider statutory instruments in the same detail as the right hon. Member for Down, South (Mr. Powell). I suspect that many Assemblymen will be bored and careless when they consider the least significant statutory instruments. They will take one look at them and say, "There is not much in this for me. If I ring the reporter from the Antrim Courier, there will be little to say about my activities on the consideration of clause 57 of the white fish price-rigging statutory instrument." After several exciting meetings with the reporter at which the Assemblyman has tried to explain the significance of what he has been doing, the reporter will get bored and the Assemblyman will get bored with him.
The hon. Member for Belfast, East may prove to be right. If the Assemblyman is bored with what is presented to the Assembly, he will want richer fare. As the hon. Member for Londonderry (Mr. Ross) made clear, the richest fare of all, the strawberries and cream of legislation, is anything that is connected with security. Once the demand for that is made the House is in a fundamental conflict with the proposed Assembly.
For my part, therefore, I feel that it is likely that there will be some interest at first but frustration later. Moreover, Assemblymen who try to go about their work with the assiduity so often demonstrated by the right hon. Member for Down, South will be operating under some difficulty, because it is difficult to criticise even the most humble of secondary legislation without having to hand over the ultimate power to deal with primary legislation. It would be difficult to deal, say, with secondary legislation relating to the employment Acts without having at some earlier stage given detailed consideration to the primary legislation.
I suggest that even at this very low level this may create sadness and frustration and could lead to the demand for the legislative devolution that many Conservative Members agree with the Ulster Unionists should not ultimately be given to the Assembly. There are difficulties here, and I fear that the proposal has been introduced by the Secretary of State for reasons very different from those for which it is recommended by the Ulster Unionists. The Ulster Unionists see it as a useful but limited way of dealing with the activities of an otherwise powerless and frustrated Assembly. With their clear discipline of mind, they probably see that if they were Assemblymen they would be able to confine their activities to the important but essentially humble role ascribed to the Assembly by clause 3. I suspect, however, that that magnificent discipline of mind will not be shared by the Assemblymen. Indeed, it is not intended that it should be.
The Secretary of State hopes that the provisions of clause 3 will give the Assemblymen training and with it appetite for further legislative activities, which is precisely what many of us do not want. I therefore believe that it would be safer to have nothing whatever to do with it.
Clause 3, which has been the subject of this short but interesting debate, is concerned with setting out the matters for consideration by the Assembly before full devolution takes place. It is intended to give an important deliberative and consultative role to the Assembly before any devolution takes place.
In keeping with that principle, subsection (2) takes what is in itself a major step in giving the Secretary of State of the day the discretion to refer to the Assembly—I shall deal later with the interpretation of the terms "refer" and "lay"—proposals for the making of Orders in Council even though the Assembly has no legislative competence at all at that stage and in the first stage.
Our intention is that, wherever possible, the Assembly in its first consultative and deliberative phase, should have the opportunity to comment when draft Orders in Council in the "transferred" field are published as proposals for general consultation. Orders in the "reserved" field could also be referred at the discretion of the Secretary of State. It is likely that the recommendations of the Assembly will be accepted on these orders provided that they enjoy a wide measure of cross-community support and do not conflict directly with the Government's financial and other policies. That is an important point for the Committee to consider.
Perhaps less importantly, the subsection gives the Secretary of State the discretion to refer to the Assembly for consideration the various pieces of subordinate legislation with which we are familiar and which the right hon. Member for Down, South (Mr. Powell) kindly ran through from A to Z. The intention is that during its consultative stage the Assembly will normally be invited to comment on such legislation.
Such legislation is instruments that deal with transferred matters that are subject to either negative resolution or to no procedure at Westminster. However, any such consultations must always be subject to the considerations of urgency that all Northern Ireland Members are familiar with and have arisen on a number of occasions in recent years.
I hope that it will prove possible in this first deliberative and consultative phase to make extensive use of this provision. I can assure the Committee that the Government will give careful consideration to the views expressed in the Assembly on all the proposals for legislation submitted to it.
I now turn to amendment No. 43, moved by the right hon. Member for Down, South, which seeks to delete subsection (2). 1 hope that the right hon. Gentleman will appreciate that it is clear from what I have already said. that that would remove one of the Assembly's major pre-devolution roles and deny the Government the benefit of advice from locally elected representatives when making local legislation
Mr. J. Enoch Powell:
I understood the Minister to say that the Government would accept the advice of the Assembly if it was clear and had the usual hallmarks of acceptability and unless it ran counter to the Government's policy. Is that equivalent to saying that the legislative function of the House in relation to that legislation would effectively be eliminated by this proceeding? It is difficult to see how, if that is so, there is any genuine role for the House or any of its Committees in dealing with such of the legislation as comes before us.
No. Although the right hon. Gentleman correctly again summarised what I said before, he is summoning up an unrealistic dilemma about what might happen in the Assembly during consideration of orders. He is supposing that the Assembly, when an order or piece of subordinate legislation is referred to the Assembly, will either reject or accept a proposal for a draft order. I suppose that the right hon. Gentleman's analogy is that it will be taking over the legislative functions which should be properly exercised by the House. That is not the case.
It is much more likely that when the orders have been referred the Assembly will simply make suggestions for the improvement of them, and it is those proposals that the Government will deliberate on and carefully consider with a view to making changes, if they can, provided those proposals bear—to use the right hon. Gentleman's phraseology—the hallmarks of the Bill and do not run directly counter to Government policy overall or Government financial policy in particular.
If that is to be so, we should have to invent a kind of pre-proposal stage for the purpose of submission to the Assembly; otherwise, while a Committee of this House, as it often does, was considering the proposals, another body, the advice of which the Government would take, would concurrently be at work. It still seems to me that unless the Assembly's advice is given at a much earlier stage of the formulation of the Government's proposals, there is a real ousting of the legislative function of Parliament by what the Government envisage.
The right hon. Gentleman and I are at one. Draft orders will undoubtedly need to be referred to the Assembly for consultation at the earliest possible stage and before full debate in this House.
I am afraid that the Government cannot. accept amendment No. 43, although we are grateful to the right hon. Gentleman for some of his helpful comments on how the Bill might otherwise be improved. I was fascinated to hear of his fascination with statutory rules and to learn of his large and growing collection of statutory rules.
I expect that the right hon. Gentleman regularly reads, as I have done for the last 18 months, the report of the examiners of statutory rules. Nothing strikes greater terror into the hearts of civil servants in Northern Ireland, apart from a summons to appear before the Chairman of the Public Accounts Committee, than the merest whiff of the examiner of statutory rules coming through Departments.
While our present scrutiny of subordinate legislation may indeed be less than desirable, we at least have that terrifying figure exercising his invigilatory powers over such statutory rules as have been produced by Departments year by year.
Amendment No. 44 has been tabled by the hon. Member for Belfast, East (Mr. Robinson). I hope the Committee will agree that it would be wrong for the Secretary of State to be under a statutory obligation to refer to the Assembly either proposals for legislation for Northern Ireland by Order in Council or subordinate legislation.
There are three reasons. First, I do not believe that every order should appropriately be referred to the Assembly in its pre-legislative scrutinising phase. I have in mind consolidation orders, which make no new law whatever. I believe that it would be inappropriate to refer those orders.
Secondly, a handful of orders are taken under the urgent provisions procedure. Thirdly, we have appropriation orders, and it would be inappropriate to refer those to the Assembly because they are technical measures and we have no tradition of a consultation period as they give effect to Estimates that are published prior to the preparation of the appropriation orders.
Of course, the Assembly in its pre-legislative, scrutinising and deliberative phase will have the opportunity to consider Estimates through the departmentally related committees or in sessions of the Assembly. Having siad that, I assure the Committee in general and the hon. Member for Belfast, East in particular that we shall certainly refer to the Assembly proposals for Orders in Council and subordinate legislation on matters within the unrestricted legislative competence of the Assembly after devolution.
Having heard that assurance, I hope that the hon. Gentleman will consider not pressing his amendment. I do not know whether the smile that has just passed over his face indicates assent or dissent.
Perhaps this might be an appropriate moment to remind the Committee of paragraph 35 of the White Paper, in which the Government said:
in laying draft orders in Council, the Secretary of State will take careful account of the recommendations of the Assembly, and be disposed to accept them if they enjoy a wide measure of support from Members representing both sides of the community, and subject to the wider constraints of the Government's financial and other policies".
I hope that the hon. Member for Belfast, East finds that reassuring.
I apologise for not having been in the Committee when my right hon. Friend the Member for Farnham (Mr. Macmillan) raised the point about the nature of draft Orders in Council, referring particularly to paragraphs (a) and (b) of subsection (1). Paragraph (a) concerns proposals for draft Orders in Council. These would be measures of the Assembly but for direct rule. Paragraph (b) concerns subordinate legislation which is made once it has been laid. I hope that my right hon. Friend will accept that rather brief and scanty explanation of the position.
Amendment No. 112, propounded by my hon. Friend the Member for Brigg and Scunthorpe (Mr. Brown), is apparently designed to turn the Assembly's role regarding subordinate legislation in the period before devolution into a formally legislative one, and this raises a similar point of principle to that raised by the previous amendment. We cannot have a position in which the Assembly has been constituted as a scrutinising, debating and deliberating body in its first phase before it has devolved powers. We cannot, at that stage, allow that body to develop into a legislative body by the back door. At the same time, I agree with the hon. Member for Antrim, South (Mr. Molyneaux) that we must try to ensure that the Assembly has the maximum opportunity to involve itself in the scrutinising of legislation at an early stage.
The Government are well aware that the making of subordinate instruments and similar enactments is a difficult subject under direct rule. It is common ground between the Government and the Official Opposition that the present system is less than perfect.
The right hon. Member for Down, South alluded to these systems of scrutiny, but not all hon. Members were present at the time and were fortunate enough to hear his excursus.
The position at present is as follows. Under paragraph (3) of schedule 1 to the Northern Ireland Act 1974, subordinate legislation which would, but for direct rule, be subject to affirmative resolution in the Assembly, is subject only to annulment at Westminster. Instruments that would, but for direct rule, be subject to negative resolution in the Assembly do not have any parliamentary procedure whatsoever, applied to them.
The Committee will recall that the Government's intention is that, pending devolution, the Assembly will normally be invited to comment on both these categories of subordinate legislation. The most careful consideration will be taken of the recommendations of the Assembly on any legislation which is referred to it.
Here I come to the crux of the point—the question raised by my hon. Friend the Member for Brigg and Scunthorpe about what exactly the word "refer" means in this context as a technical word, and whether it would not be better to use the word "lay". The word "refer" simply means what it says. My right hon. Friend the Secretary of State will refer Orders in Council and subordinate legislation to the Assembly in its pre-legislative phase and ask for its comments. If the Secretary of State were required by an amendment to lay such draft Orders in Council or to lay such subordinate legislation before the Assembly, he would be using a technical method, by which an instrument or the draft of an instrument would be put in front of the Assembly. The Assembly would be given the power at that stage to approve that draft or pass a resolution anulling that draft or subordinate legislation. It is not until devolution has begun to roll and is completed that the Assembly will have the proper legislative powers to deal with draft Orders in Council under the transferred heading, and appropriate subordinate legislation, in the way in which my hon. Friend the Member for Brigg and Scunthorpe wanted in the pre-legislative deliberative phase.
I hope that I have got it right. Is my hon. Friend saying that anything that is laid before the Assembly would have a formal status once it had commented on it, and that that comment would have a formal status, but that although the Assembly's view would normally be accepted by the Secretary of State, subject to the proper safeguards, it has no formal status, and there is no formal power to require him to take it at all?
My right hon. Friend is absolutely right. The term "refer" applies to the Assembly in its deliberative phase, its first phase, and the term "lay" applies to the Assembly in its full legislative glory, at a later stage.
It is clear that the Assembly can have no formal legislative role before devolution. Legislative responsibility must remain with Parliament before devolution takes place. The provision which amendment No. 112 would delete simply makes the position clear. I remain of the view that it is helpful for this to be set out in the Bill.
We are considering three amendments. The first, amendment No. 43, would prevent the Assembly in its first stage from considering draft orders and subordinate legislation, while amendments Nos. 44 and 112 would take away the Secretary of State's discretion in respect of whether he wished, or did not wish, to refer for consultation such draft legislation or subordinate legislation to it. I am afraid that none of the three amendments is acceptable to the Government in their main aim of giving the Assembly a substantial and major deliberate role in its first stage. I therefore advise the Committee to reject the amendments.
|Division No. 225]||[12.53 pm|
|Adley, Robert||Beith, A. J.|
|Alexander, Richard||Berry, Hon Anthony|
|Alton, David||Best, Keith|
|Ancram, Michael||Biffen, Rt Hon John|
|Arnold, Tom||Blackburn, John|
|Aspinwall, Jack||Bottomley, Peter (W'wich W)|
|Atkins, Robert(Preston N)||Brooke, Hon Peter|
|Bruce-Gardyne, John||Maxwell-Hyslop, Robin|
|Bryan, Sir Paul||Mayhew, Patrick|
|Butcher, John||Meyer, Sir Anthony|
|Cadbury, Jocelyn||Mills, Iain (Meriden)|
|Campbell-Savours, Dale||Mitchell, David (Basingstoke)|
|Carlisle, John (Luton West)||Moore, John|
|Carlisle, Rt Hon M. (R'c'n)||Morrison, Hon C. (Devizes)|
|Chapman, Sydney||Needham, Richard|
|Clarke, Kenneth (Rushcliffe)||Onslow, Cranley|
|Cope, John||Page, Richard (SW Herts)|
|Corrie, John||Parkinson, Rt Hon Cecil|
|Costain, Sir Albert||Parris, Matthew|
|Dover, Denshore||Patten, John (Oxford)|
|du Cann, Rt Hon Edward||Pattie, Geoffrey|
|Dunn, Robert (Dartford)||Pawsey, James|
|Dykes, Hugh||Penhaligon, David|
|Emery, Sir Peter||Prentice, Rt Hon Reg|
|Fox, Marcus||Prior, Rt Hon James|
|Goodhew, Sir Victor||Rees, Peter (Dover and Deal)|
|Goodlad, Alastair||Renton, Tim|
|Gow, Ian||Rhodes James, Robert|
|Griffiths, E.(B'ySt. Edm'ds)||Ridley, Hon Nicholas|
|Grylls, Michael||Ridsdale, Sir Julian|
|Gummer, John Selwyn||Rossi, Hugh|
|Hamilton, Hon A.||Rost, Peter|
|Hawksley, Warren||Sainsbury, Hon Timothy|
|Heddle, John||Shaw, Giles (Pudsey)|
|Henderson, Barry||Shaw, Sir Michael (Scarb')|
|Higgins, Rt Hon Terence L||Shelton, William (Streatharn)|
|Holland, Philip (Carlton)||Silvester, Fred|
|Hooson, Tom||Sims, Roger|
|Howell, Rt Hon D. (G'ldf'd)||Smith, Tim (Beaconsfield)|
|Howells, Geraint||Speller, Tony|
|Hunt, David (Wirral)||Spicer, Jim (West Dorset)|
|Johnson Smith, Sir Geoffrey||Spicer, Michael (S Worcs)|
|Jopling, Rt Hon Michael||Sproat, Iain|
|Kershaw, Sir Anthony||Stevens, Martin|
|Kimball, Sir Marcus||Stewart, A.(E Renfrewshire)|
|King, Rt Hon Tom||Stradling Thomas, J.|
|Lamont, Norman||Taylor, Teddy (S'end E)|
|Lang, Ian||Tebbit, Rt Hon Norman|
|Langford-Holt, Sir John||Temple-Morris, Peter|
|Latham, Michael||Thompson, Donald|
|Lee, John||Townsend, Cyril D, (B'heath)|
|Lennox-Boyd, Hon Mark||Trippier, David|
|Lester, Jim (Beeston)||Waddington, David|
|McCrindle, Robert||Wells, Bowen|
|McNair-Wilson, M. (N'bury)||Wells, John (Maidstone)|
|Madel, David||Wheeler, John|
|Major, John||Williams, Rt Hon Mrs|
|Marshall, Michael (Arundel)||Wrigglesworth, Ian|
|Mather, Carol||Tellers for the Ayes:|
|Mawhinney, Dr Brian||Mr. Robert Boscawen and|
|Amery, Rt Hon Julian||Murphy, Christopher|
|Biggs-Davison, Sir John||Paisley, Rev Ian|
|Body, Richard||Powell, Rt Hon J.E. (S Down)|
|Brown, Michael(Brigg & Sc'n)||Robinson, P. (Belfast E)|
|Budgen, Nick||Skinner, Dennis|
|Cranborne, Viscount||Smyth, Rev. W. M. (Belfast S)|
|Cryer, Bob||Stanbrook, Ivor|
|Farr, John||Walker, B. (Perth)|
|Gardiner, George (Reigate)||Winterton, Nicholas|
|Macmillan, Rt Hon M.||Tellers for the Noes:|
|McQuade, John||Mr. William Ross and|
|Molyneaux, James||Mr. K. Harvey Proctor.|
|Division No. 226]||[1.06 am|
|Amery, Rt Hon Julian||Murphy,Christopher|
|Biggs-Davison,SirJohn||Powell, Rt Hon J.E. (S Down)|
|Brown, Michael (Brigg&Sc'n)||Smyth, Rev. W. M. (Belfast S)|
|Cryer,Bob||Walker, B. (Perth)|
|Gardiner, George (Reigate)|
|Goodhart,SirPhilip||Tellers for the Ayes:|
|Lawrence, Ivan||Mr. William Ross and|
|Molyneaux,James||Mr. K Harvey Proctor.|
|Alexander, Richard||Madel, David|
|Berry, Hon Anthony||Mayhew, Patrick|
|Biffen, RtHon John||Mills, \&\n(Meriden)|
|Blackburn.John||Mitchell, David (Basingstoke)|
|Bottomley, Peter (W'wichW)||Morrison, Hon C. (Devizes)|
|Brooke, Hon Peter||Needham,Richard|
|Bryan, Sir Paul||Page, Richard (SW Herts)|
|Butcher,John||Paisley, Rev Ian|
|Carlisle, Rt Hon M. (R'c'n)||Patten, John (Oxford)|
|Clarke,Kenneth (Rushcliffe)||Pawsey, James|
|Corrie,John||Prentice, Rt Hon Reg|
|Costain,Sir Albert||Prior, Rt Hon James|
|Dover,Denshore||Rees, Peter (Dover and Deal)|
|du Cann, Rt Hon Edward||Renton,Tim|
|Dunn,Robert (Dartford)||Rhodes James, Robert|
|Emery, Sir Peter||Ridley,Hon Nicholas|
|Goodlad,Alastair||Robinson, P. (Belfast E)|
|Gow, Ian||Rossi, Hugh|
|Griffiths, E.(B'ySt. Edm'ds)||Rost, Peter|
|Grylls, Michael||Sainsbury,Hon Timothy|
|Hamilton, Hon A.||Shaw, Giles (Pudsey)|
|Higgins, Rt Hon Terence L.||Sims, Roger|
|Howell, Rt Hon D.(G'ldf'd)||Spicer, Jim (West Dorset)|
|Howells,Geraint||Spicer, Michael (S Worcs)|
|Hunt, David (Wirral)||Sproat,Iain|
|Jopling, RtHon Michael||Stewart, A. (ERenfrewshire)|
|Kimball.Sir Marcus||Taylor, Teddy (S'end E)|
|King, Rt Hon Tom||Tebbit, Rt Hon Norman|
|Lang, Ian||Thompson, Donald|
|Langford-Holt,SirJohn||Townsend, Cyril D,(B'heath)|
|Lee, John||Waddington, David|
|Lennox-Boyd,Hon Mark||Wells, Bowen|
|Lester, Jim (Beeston)||Wells,John(Maidstone)|
|McNair-Wilson,M.(N'bury)||Williams, Rt Hon Mrs (Crosby)|
|Wrigglesworth,Ian||Mr. Selwyn Gummer and|
|Mr. Tristan Garel-Jones|
|Tellers for the Noes:|
I beg to move,
That the Chairman do report Progress and ask leave to sit again.
We had a very long sitting yesterday and we have had a substantial sitting today. There are other items on the Order Paper and it might be for the convenience of the Committee if we were to report Progress now.