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Mr. Öpik: Amendment No. 169 refers to deleting the phrase "United Kingdom". That is not a great problem, but there is still an inconsistency in some places about how Ireland is referred to. That has caused problems in
the past. In one notorious legal case--Ellis v. O'Dea--papers demanding the extradition of an Irish suspect to the UK were turned down on appeal in the Dublin courthouse because they referred to the Republic of Ireland rather than Ireland. We must be meticulous in ensuring that the phrases that we use are consistent.
Mr. McNamara: Will my hon. Friend give an undertaking that orders in council that might be forthcoming on fair employment will not be implemented until the Assembly has had an opportunity to look at them?
Mr. Ingram: There is no inconsistency on the point made by the hon. Member for Montgomeryshire (Mr. Öpik). We refer to the Government of Ireland, except when the word "Republic" is required for clarity. The parliamentary draftsmen have been precise, and are conscious of the problem.
Any matters that remain to be dealt with before the Assembly comes into place will need to be proceeded with. The Government still have important issues to deal with. We have to proceed as best we can on the present basis before the full Assembly is up and running. The Government intend to legislate on fair employment before devolution is fully in place.
Lords amendment agreed to.
Mr. Ingram:
I beg to move, That this House agrees with the Lords in the said amendment.
Mr. Deputy Speaker:
With this, it will be convenient to discuss Lords amendments Nos. 163 to 166, 324 to 347 and 383. I must inform the House that Lords amendment No. 347 involves privilege.
Mr. Ingram:
The amendments relate to judicial proceedings. We have provided rights for the devolved authorities to be represented on devolution issues under schedule 11, in consideration of the powers of the courts to vary retrospective decisions under clause 69. We have also added to the list of devolution issues so that all questions appropriate for this special procedure are covered. There is a clause to guide the courts in the interpretation of Assembly Bills. I commend the amendments to the House.
Lords amendment agreed to.
Lords amendments Nos. 163 to 177 agreed to.
Mr. Ingram:
I beg to move, That this House agrees with the Lords in the said amendment.
Mr. Deputy Speaker (Sir Alan Haselhurst):
With this, it will be convenient to discuss Lords amendments Nos. 179 to 192, 196 to 200, 205 to 221, 349 to 363, 365 to 372, 378, 379, 384 and 386 to 417.
Mr. Ingram:
I do not intend to deal specifically with all the amendments, but the group features many miscellaneous provisions, several consequential on changes of substance earlier in the Bill. They include further provision to permit proper co-ordination between the social security systems in Great Britain and Northern Ireland, several additions to the list of provisions to commence on the passing of the Bill, further guidance on interpretation, and a range of consequential changes to existing legislation, resulting from the Bill's main provisions. I commend all the amendments to the House.
Lords amendment agreed to.
Lords amendments Nos. 179 to 192 agreed to .
Mr. Ingram:
I beg to move, That this House agrees with the Lords in the said amendment.
Mr. Deputy Speaker:
With this, it will be convenient to take Lords amendment No. 194, amendment (a) thereto and Lords amendments Nos. 195, 348 and 382. Lords amendments Nos. 194 and 348 involve privilege.
Mr. Ingram:
The amendments establish a new tribunal to which an individual can appeal if the Secretary of State
The tribunal originates from the European Court of Human Rights ruling this summer in the Tinnelly and McElduff cases. In that ruling, the United Kingdom was found to be in breach of article 6 of the convention because no right of appeal exists against certificates issued under the Fair Employment (Northern Ireland Act) 1976.
The Government recognised that the certification powers in the Bill, which restate the long-standing powers in section 23 of the Northern Ireland Constitution Act 1973, were deficient in the light of that ruling. The new tribunal is intended to ensure compliance with the European Court of Human Rights, and to fulfil the agreement commitment to review the national security certification powers. We also gave a commitment on Second Reading, in response to my hon. Friend the Member for Hull, North, to consider these powers in the light of the ECHR ruling.
The tribunal established by amendments Nos. 193 and 194 represents a major step forward in providing a mechanism through which an individual can challenge a certificate. Amendment No. 193 introduces a new test: not only will the tribunal consider whether an act was undertaken for the reasons stated in the certificate, it will also consider whether the act was justified. Those are important new safeguards for the individual.
Other considerations also apply, however, and must be given due weight. Safeguarding national security is a primary function of all Governments, and we continue to believe that it is essential to protect the intelligence information that gave rise to the original act and, ultimately, to the certificate.
At the same time, we fully accept the need to provide a mechanism through which an individual can challenge a certificate. That remains, and will continue to be, a question of balance. It is a difficult one, but I believe that we have got it right. Indeed, the Court noted in its ruling:
The key to achieving the balance appears in proposed subsection (7) in amendment 194, which enables the Attorney-General to appoint a special advocate to represent the interests of the appellant. That will ensure that the appellant will be represented fully by a suitably qualified person. However, we cannot provide the appellant with access to what might be extremely sensitive intelligence information or to any part of the proceedings under examination by the tribunal. We were not required to do so by the European Court of Human Rights ruling.
Lords amendment: No. 162, in page 33, line 32, leave out from second ("to") to end of line 36 and insert--
("(a) the Attorney General for Northern Ireland; and
(b) where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 11), the appropriate authority,
unless the person to whom the notice would be given is a party to the proceedings.
(5) A person to whom notice is given under subsection (4) or, where such notice is given to the First Minister and the deputy First Minister, those Ministers acting jointly")
Lords amendment: No. 178, in page 36, line 24, leave out
("and for making any necessary financial adjustments")
Lords amendment: No. 193, after clause 74, to insert the following new clause--("Discrimination: certificates by Secretary of State--
.--(1) This section applies where in any proceedings--
(a) a person claims that an act discriminated against him in contravention of section 19 or 61; and
(b) the person against whom the claim is made proposes to rely on a certificate purporting to be signed by or on behalf of the Secretary of State and certifying--
(i) that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and
(ii) that the doing of the act was justified by that purpose.
(2) The claimant may, in accordance with rules made by the Lord Chancellor, appeal against the certificate to the Tribunal, that is to say, the tribunal established under section (The Tribunal)").
(3) If on an appeal under subsection (2) the Tribunal determines--
(a) that the act specified in the certificate was done for the certified purpose; and
(b) that the doing of the act was justified by that purpose,
the Tribunal shall uphold the certificate; in any other case, the Tribunal shall quash the certificate.
(4) If--
(a) the claimant does not appeal against the certificate; or
(b) the certificate is upheld on appeal,
the certificate shall be conclusive evidence of the matters certified by it.
(5) In this section "act" does not include the making, confirmation or approval of a provision of subordinate legislation.")
"it should be possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial degree of procedural justice."
The Government believe that we have achieved precisely that balance in establishing the new tribunal. Amendment No. 348 specifically provides that the tribunal will be chaired by an individual holding high judicial office.
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