Clause 88 - Statutory rules

Part of Justice (Northern Ireland) Bill – in a Public Bill Committee am 2:45 pm ar 14 Chwefror 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Des Browne Des Browne Parliamentary Under-Secretary, Northern Ireland Office, Parliamentary Secretary (Northern Ireland Office) 2:45, 14 Chwefror 2002

During Tuesday evening's debate on clause 71, concern was expressed at the lack of detail coming before Parliament on the membership of local community safety partnerships. Amendment No. 302 will require the order that establishes community safety partnerships to be subject to affirmative resolution. That will afford an opportunity for further scrutiny when the Northern Ireland Executive's review of public administration is complete, and we are in a position to firm up partnership, membership and structures. Amendment No. 303 leaves clause 71(2) subject to negative resolution, because it deals only with the name change and it is not necessary to subject that to such anxious scrutiny. I ask that those amendments be made.

Amendment No. 179 would require every provision in the Bill to be commenced by affirmative order, which would be completely unprecedented. I suspect that the hon. Member for Reigate is using the amendment not to achieve that objective, but to debate it and other issues. The amendment would place an undue burden on Parliament and delay the implementation process by requiring every provision to be commenced by affirmative order. Where further parliamentary scrutiny is necessary, or desirable, we have provided for it, as illustrated by amendment No. 302.

I understand from the hon. Gentleman that amendment No. 179 is a probing amendment, although he may have changed his position and I do not bind him to it. My understanding, however, is that he seeks clarification on how the Bill's provisions will be commenced and how devolution will be organised. This might be a good opportunity to explain how the mechanics for transferring the Bill's provisions to the devolved institutions will work when the time comes. I trust, Mr. Pike, that you will consider such remarks to be in order. I believe that they are relevant to our debate. I understand hon. Members' uncertainty about how the Bill will work, and I hope to explain why it is drafted as it is. My explanation will take a little time, but I am sure that hon. Members will be grateful to the hon. Member for Reigate, at whose request I am making it.

Hon. Members will know that the division between what is devolved to Stormont and what is retained at Westminster is governed by the Northern Ireland Act 1998. Broadly, everything is devolved—in the terminology of the 1998 Act it is ''transferred''—except those matters set out in schedules 2 and 3 to the Act. Schedule 2 contains ''excepted matters''. They deal with issues such as national security and will not be devolved under the scheme of the 1998 Act. Schedule 3 to the Act covers matters that are reserved. Those are currently dealt with at Westminster, although the Assembly could legislate on them with the consent of the Secretary of State.

Executive functions in relation to those matters lie with the Government.

Criminal justice matters are generally reserved. Under the original Northern Ireland Act provisions, judicial appointments were excepted matters. The review recommended changing that, and it was achieved under clause 81 of the Bill. Once a decision is taken to devolve matters from the reserved to the transferred field, a number of steps have to be taken to effect the change. Those steps are set out in sections 4 and 86 of the Northern Ireland Act. Section 4 provides that the Northern Ireland Assembly must first pass a resolution, with cross-community support, praying that the matter concerned should cease to be a reserved matter. The Government may then lay before Parliament a draft Order in Council to amend schedule 3 to the Act. That is effectively an affirmative resolution instrument. There will be prior consultation, and a debate in both Houses. If the Order in Council is approved by Parliament, Her Majesty may then make the order.

Once a matter has been moved from the reserved to the transferred field, the Assembly can pass Bills dealing with it without the approval of the Secretary of State. On its own, however, a section 4 order will not transfer existing executive functions to the devolved institutions. For that, we will use an order made under section 86 of the Northern Ireland Act. Section 86 orders are also Orders in Council. The Northern Ireland Act states that they may, among other things,

''make provision for transferring to a Northern Ireland authority, with effect from any date specified in the Order . . . any functions which immediately before that date are exercisable by a United Kingdom authority and appear to Her Majesty to be concerned with a matter which is a transferred matter''.

Once criminal justice has been devolved by an order made under section 4, a transfer of functions order made under section 86 will transfer specific powers from UK authorities to Northern Ireland authorities by name.

Consequential matters such as funding could also be covered by a section 86 order. Westminster will not provide funding for matters that are in the devolved field. References to funding being provided by Parliament will therefore disappear. That is why we did not set out in the Bill what the financial arrangements would be after devolution.

As it stands, the Bill includes a variety of provisions. Some may come into force before devolution and then be transferred, while others will come into force only after devolution. For the latter provisions—basically, the Judicial Appointments Commission and the new Law Officer arrangements—the Bill already sets out where functions will lie. The main political input from the Northern Ireland Administration will be from the First Minister and Deputy First Minister—I shall say this quietly, in case the hon. Member for North Down intervenes on me—acting jointly.

In the case of provisions that may come into force before devolution, such as the prosecution service, the Law Commission and the criminal justice inspectorate, the Bill sets out how they will work before devolution. We decided not to include in the Bill provisions

explaining how things will work post devolution, for the very good reason that we do not know exactly what the post-devolution arrangements will look like. For example, the Executive might decide to create a department of justice—the issue is discussed in the review, where a recommendation is made—or split the responsibilities between two departments. We do not want the Bill to contain provisions that pre-judge decisions to be taken in consultation with the Northern Ireland parties at the proper time. Those who know the structure of the Executive in Northern Ireland—and, indeed, of those in Scotland and Wales, although I am not so familiar with Wales—will know that departments there do not reflect, in terms of responsibilities, the divisions that there are in Westminster. The Executive and the Assembly have the right to decide their own order of priority and their own arrangements.

As a result, the Bill is littered with references to the Secretary of State. I assure hon. Members that almost all of those will disappear on devolution by means of the section 86 transfer of functions order. The only references that will remain after devolution are those that concern the Secretary of State's remaining responsibilities. The only example is the reference to the Secretary of State's order- making power under clause 29(2), and some consequential references to the Secretary of State in the associated schedule 7.

We considered whether to include specific powers in the Bill setting out how devolution in this area should work. Although that might have had presentational advantages for the lay reader—if there is such a thing in relation to a Bill—we were keen not to duplicate the provisions of the Northern Ireland Act 1998, which have a certain elegance and have been tried and tested in setting up devolution. To some degree, the provisions have their roots in many years' worth of consideration in Scotland, via the Scottish constitutional convention. Those of us who were in favour of devolution learned the lesson of an early attempt to devolve government to Scotland in a different way. This short history is for those who do not know what happened.

The previous attempt at a Scotland Act sought to list the functions that were being devolved in schedules to the Act. That occupied the Committee for endless, tedious hours, as people argued around the margins of the provisions. Attempts to introduce lists into the Bill inevitably created a lot of anomalies, and many things were left out. Our best endeavours to list what was transferred were unsuccessful. We learned that lesson and the provisions in the Scotland Act 1998 that are now, to some degree, reflected in the Northern Ireland Act, seek to devolve by reference not to the powers that are being transferred but to those that are being retained. That is a significantly smaller list, when it comes to individual functions.

I hope that that attempt at an explanation is of some help to the Committee and to all our lay readers, whoever they may be. I have endeavoured to address in a short time issues that have—rightly—exercised some members of the Committee, and I hope that I have made them clear.