Amendments Nos. a1, b1 and 3 are related and may be taken together.
SECTION 1.
I move amendment No. a1:
In page 3, subsection (1), line 17, before "agreement" where it secondly occurs to insert "proposed".
The agreement between the two Governments establishing the commission has not yet been entered into. Therefore, to refer to the agreement as an existing document seems incorrect; it should be referred to as the "proposed agreement". It seems meaningless to refer to it as a fait accompliwhen this is not the case. I did not hear the reply on Second Stage when some of these matters may have been discussed.
The same applies to the Long Title which refers to a commission established by the agreement. I suggest that the word "proposed" be used in this case also. I have no objection to legislating in advance of the agreement but one should indicate that the agreement has not yet been entered into.
For example, it is possible that the agreement may never be entered into because of the imminent general election in the UK. This may result in a new Government which takes a different view of Mitchell. Equally, if the circumstances on the ground changed radically the two Governments might decide not to enter into any agreement or propose a different agreement.
I thank the Deputy for his amendments. At no stage did anyone indicate other than that the Bill was being introduced ahead of an agreement on the establishment of the commission. This does not prevent the Bill referring to the agreement establishing the commission or the commission itself. Neither the definitions nor the Long Title require that the agreement be in existence at the time of the enactment of the Bill.
It is not unusual for legislation to be introduced with a built-in enactment day. Section 3(1) provides that the subsequent provisions of this section which relate to the commission shall come into effect when the Minister, after consultation with the Secretary of State, enables the agreement to have full effect. This section makes it clear that the thrust of the establishment of the commission does not come into force until the agreement has been reached. The Northern Ireland Arms Decommissioning Bill also defines the commission by reference to the agreement. Clause 7(1) of that Bill provides inter alia that “the commission means an independent organisation established by agreement”.
The effect of the definitions and section 3 is that the commission will be established by virtue of an agreement between the two Governments which will be underpinned by the provisions of the Bill. It will have a status in international law as well as in statute in both jurisdictions and this ensures that it is an identifiable legal entity.
This amendment would deny the commission such legal identity as it would, by definition, be permanently consigned to the status of a proposed commission. If there is a change of Government in the UK, the legislation would simply wait until section 3(1) comes into effect when a future Minister for Justice or Secretary of State decides to use it.
This is enabling legislation and is an effort by the two Governments to pass legislation so that it would not become a point of contention in the Northern Ireland talks. The intention was that the legislation would be used if and when there was an agreement to establish a commission. Unfortunately, the talks have not reached the issue of the establishment of a commission.
I cannot accept these amendments because they would permanently consign the commission to being a proposed commission. We might then have to introduce further legislation when the commission was set up.
I may not be able to stay because there is another Bill being introduced in the Dáil. The Minister has the benefit of the Minister of State, Deputy Currie, but I may have to leave.
I am sure the Deputy would acknowledge that Deputy O'Dea is more than an assistant spokesperson from time to time?
Yes, but he is an assistant without the formal title so I may have no alternative but to leave shortly.
Deputy O'Malley has pointed out that this legislation is aspirational; it provides for eventualities which might and might not occur. Those aspirations are worthy but, nonetheless, it provides that there will be legislation to effect decommissioning in the future. The fact that the legislation provides for an eventuality and is aspirational means that, of necessity, it is relatively empty on specifics. That much is most certainly true but whether one says that the commission is a proposed commission is of little relevance. However, what is of considerable relevance is the fact that it is a proposed commission. In fact, there is no agreement as such. Any agreement would have to be a proposed agreement because, as Deputy O'Malley correctly pointed out, even an agreement reached with one Government can be changed by a subsequent Administration on either side of an agreement even if one were reached. To that extent, while the legislation is welcome and laudable, it is extremely short on specifics and is aspirational in fact and in text.
I regret that Deputy O'Donoghue must leave the committee early because this meeting clashes with legislation in the Dáil. I hoped some arrangement could be reached through the Whip's office. It is unsatisfactory that you cannot be here for this important Bill. We scheduled this with the Minister for Justice some weeks ago. I suggest that, with the approval of the committee, I consult the Government Chief Whip about this matter. Deputy O'Donoghue should have the opportunity of being with us for the duration of such an important Bill. This is unsatisfactory. This has happened before and I hope it will not happen in the future.
I thought Deputy O'Malley's case for the word "proposed" was logical but, having heard the Minister explain that once it becomes a reality one would have to remove the word "proposed" if one inserted it in advance, it cannot be an agreement if it is only a proposed agreement. I am swayed from what I thought was a logical argument in favour of dealing with reality so that the legislation will be in place if there is an agreement. Otherwise there would be a need for another Bill to delete the word "proposed" later; that could be a nuisance.
It only came to the attention of Deputy O'Donoghue and I late last night that this clash was possible. I tried to contact your office last night, Chairman, and I could not reach you but I left a message so it was probably very late when you received notice of the problem. It was not my fault. As soon as it came to my attention, I tried to do something about it.
I accept that. I wish to apologise to Deputy O'Donoghue for the inconvenience. I regret that he must leave. It is unfortunate.
I take the point that Deputy O'Malley and Deputy O'Donoghue have made. The difficulty is that, while there is a certain element of putting the cart before the horse about the Bill, there is no blueprint or scenario to which we could all subscribe. If there was, life would be very easy for people in Northern Ireland and here. All one can do is have aspirations and goodwill. That might sound inadequate in Parliament but, in the absence of any general agreement, the International Body has tried to put up an outline agreement to which the Bill could subscribe. Despite all the tact, skill and experience of its chairman, former Senator George Mitchell, it has found it very difficult to bring on board people from both wings.
All one can do in this case is one's best to anticipate what might happen. I would not want any wild claims about this Bill but at least it will be on the Statute Book, as the Minister said, and it can be implemented if the time comes. Let us hope there will be a breakthrough due to people's goodwill and the understanding that sooner or later they must sit down together and adopt a united approach. Many years ago I thought that, because of the advent of the EU and its effect on Ireland, people on both sides of the Border might see themselves as Europeans as well as Irish. Merely asking people to behave themselves has not been successful.
This Bill is aspirational, as Deputy O'Malley and Deputy O'Donoghue said, but that is not a bad thing. If we did not have aspirations, we would just lie down and die. Politicians on both sides of the Border must at least attempt to be democratic and fair and go along with those aspirations as long as they are good, genuine and well balanced.
Politicians must have aspirations as part of their vision for their country and for the destiny they wish to forge for it, and I subscribe to that philosophy. Notwithstanding that, the point made by Deputy O'Malley and Deputy O'Donoghue about the previousness of the Bill is valid nevertheless. Is it not being preemptive? Is it not too anticipatory? I have my personal vision just like Deputy Kemmy, although they might not always coincide, but, while I can take on board the philosophy of the aspirational dimension and I subscribe to it as a politician, there is a validity outside of that which needs to be examined carefully by the Minister.
This is a theme which ran through some Second Stage contributions. I accept that this Bill is aspirational and enabling but I never made any other claim for it because that is precisely what it is, and so is its British counterpart. It is being introduced with very sincere aspirations because it is a necessary requisite in our view and that of the British Government to make progress at the Northern Ireland talks. Of course it would be more practical and elegant to wait until the last stage to introduce the legislation when we would have everybody involved in the talks and there would be total agreement.
I remind members that paragraph 35 of the International Body's report states that if decomissioning is to contribute to a progressive pattern of mounting trust and confidence, there is a need for the details of decommissioning to be determined by the parties themselves. The International Body mentioned three specific areas where decisions should be subject to negotiation among the parties: the independent commission; the modalities or methods of decommissioning, that is, the details of decommissioning, including supporting confidence building measures and the timing and sequencing. These considerations have meant that a number of important elements of this legislation cannot be spelt out in detail.
What would be the point of fulfilling the International Body's report if we prescriptively wrote down exactly how the decommissioning was to happen, when it was to happen, who was to be involved, etc. The Fianna Fáil Party and, indeed, all the parties in the House are on record as saying that decommissioning should not be a hurdle which prevents the talks making progress. This is a method to try to move forward and have the bona fides of the two Governments on the table and if and when all these agreements have been reached, we have the necessary legislation and regulating powers invested in both the Secretary of State for Northern Ireland and the Minister for Justice of the day so that they are then able to fulfil what has been reached by agreement.
I know people are trying to criticise me because they say the Bill is enabling. I am actually making that a virtue of this legislation and I make no apologies for that. It is important that members realise that is the purpose of the Bill. I would remind members, again, that the Statute Book is full of situations where we legislate in a prescriptive way for things which even now have not been put into effect. Take the Emergency Powers Act, 1976, which allowed for seven day detention. The legislation remained on the books but that section was not operated over a long period. It was written as if it were operable but another section specified that it only came into play if the Dáil passed a motion to that effect. This is not an unusual format; it is normal where something might not be ready that another section would leave power to the Minister of the day to bring it into force.
It would be unwise to include in the Long Title and the sections the word "proposed" so that the Bill read: "established by a proposed agreement between the Government and the Government of the United Kingdom and to provide for related matters", as we would then have to revisit it. I believe section 3(1) is sufficient to make clear that the legislation is forward looking and will be available if and when that agreement is made. It does not matter which Government eventually reaches agreement on the setting up of a commission because that is the methodology to which both Governments are committed under the International Body's report. It is hoped we will reach that stage.
I hope this is clear to members. I was worried that this morning's debate would be taken up with people saying the Bill was useless because all its provisions are aspirational and enabling — it is supposed to be enabling legislation and, I submit, it is useful for that very reason. Having been involved with the talks for as long as I have, it is clear we cannot be prescriptive about decommissioning at this stage. I ask members to accept my bona fides on that.
The problem which arises here has nothing to do with the philosophy and aspirational aspects of or the future hopes and fears relating to decommissioning — there is no dispute about that. It is the purely legal point that one cannot refer, as this Bill does, to something in the present tense as being in existence if it is not yet in existence.
The consequences of the converse of this point arose two weeks ago in the House. The Minister of State at the Department of the Marine, Deputy Gilmore, had to introduce a Bill to rectify legislation passed a year earlier in which the draftsman made a mistake about the delegation order. Since, at the time that order was made, the Bill in question had not been passed, the powers could not have been delegated and the commission set up under the Bill was invalidly established. That problem had to be rectified. The Minister of State came into the House with his tail between his legs, metaphorically speaking, to say that the Department and the draftspeople got it wrong. That is the converse of this position; it is not an exact parallel but it is the same principle.
There is no argument here and there need be no debate about the aspirational or enabling aspects of the legislation. I do not disagree with that and I do not think anyone else does. I am making a purely legal and drafting point. Unhappily, or perhaps happily, we have been put on notice about how these things can happen by virtue of the events of the past two weeks. No great point of principle is involved and I will not stay up at night worrying about this, it simply seems not to be correct.
The Minister will not have to return with another Bill to remove the words "proposed to be established" or "proposed or intended agreement", as those words will be correct as of the date on which the Bill is passed and that is all that matters. The agreement and the commission will not have been established when the Bill is passed, assuming the Bill will pass Committee Stage today, go through the Dáil within the next two weeks, go through the Seanad and be law in about a month. I do not see the agreement being entered into before then given what is and is not happening.
What matters is whether the Bill is correct on the day it is passed and whether it correctly describes the position on the day it becomes law. These minor changes should be made to the Bill to reflect reality. It is not that the Minister will have to take out words like "proposed" but that she may have to insert them. If the Bill is challenged — and its nature is such that some people may do so — it will be on the grounds that it referred in the past tense to a commission established by agreement, when the commission had not been established at the time the Bill was passed, nor had the agreement been entered into or made. Such rectification may be necessary, as was the case in the House in the last few weeks when the Minister of State, Deputy Gilmore, introduced a Bill to amend an error of this type in the Fisheries (Amendment) Act, 1995.
I accept that the way we are doing this is not elegant. Section 9(2) states:
This Act (other than section 3 [which contains another enabling provision]) shall come into operation on such day or days as, by order or orders made by the Minister under this section, may be fixed therefor . . .
Section 3(1) has a similar provision. Advice can be wrong but I have been told this is legal. I respect the legal basis of what Deputy O'Malley is saying and if he does not push these amendments I will check that there is no other advice that this might not be correct. He said that what is in the Bill must be valid on the day it is passed but it will not come into operation until "such day or days as, by order or orders made by the Minister under this section, may be fixed therefor either generally or with reference to any particular purpose or provision . . ." Therefore the Bill may be passed without coming into operation immediately and I believe the finer legal point is that, although the Bill may be passed, the operative date is the relevant one. However, in view of the Deputy's continued concern and my lack of persuasiveness about my advice that this is the correct way to proceed, I will return on Report Stage, having looked at it again to see if we could put it more elegantly to satisfy him.
Unusually, section 9(2) does not provide for a start-up date. Is this similar to Part V of the Civil Liability Act, 1961, which, although it is laid out in statute form, is not yet law because it requires a trigger mechanism? Is this what is envisaged in this subsection?
It is.
Like Deputy O'Malley I do not doubt the Minister's good faith or sincerity but something appears wrong. Section 3(1) provides that things may be enabled to be done, the commission is defined in section 1(1) as "the commission established by the agreement" and the agreement is defined there also. However, one thing is certain — the commission does not exist as of now and the Minister is making an enabling provision to bring into being a commission which will not exist on the date the legislation is passed. There has to be something wrong with that. It is different from what was provided for in the Emergency Powers Act in relation to seven days detention, for example, because seven days detention can be provided for because the detention facilities exist. We are passing legislation which specifically refers to a commission which does not exist. That gives rise to a difficulty.
Members will have heard what the Minister said regarding the position between now and Report Stage. If there is a mechanism which might go towards meeting the point made by Deputy O'Malley it can be referred to on Report Stage. Is Deputy O'Malley prepared to withdraw the amendments until then or is he anxious to press them?
I am not anxious to press them and I would certainly consider withdrawing them if a genuine effort was made to consider the matter. I am not blaming the Department of Justice because, unfortunately, the consideration will tend to be undertaken in the Attorney General's Office. My great fear is that they will never come to a conclusion which would be unfavourable to their own opinion, even on reflection. We have plenty of examples of that.
The Minister made the point that, because sections 3 and 9 of the Bill will not come into operation until some indeterminate future date, it will only operate from that date. It will only operate from that date but the law will be as on the day it was passed. The Chairman gave the example of the Civil Liability Act. Those sections of that Act are the law at the moment, and have been since 1961, but they are not in operation. The nature of the law will not change simply because it is brought into operation on a later date. There is a jurisprudential distinction between the passing of a law and the operational date of a law. The nature of the law will not be changed by the fact that its operational date is later. If something is not in existence on the day the law is passed it does not come into existence simply because the operational date is later.
It may seem a fine point. If I had made that point on the Fisheries Bill in 1995, for example, I am sure I would have been told it was an overly fine point. However, we ended up amending and correcting a Bill which was longer than the original Bill because the error made had so many consequences. I do not want that to happen here.
It would be disastrous if — and it is a big if — there were an agreement and a commission were established and a procedure was set in place for decommissioning which was then set aside because it was legally defective or deficient. It would be used as an excuse by people who might otherwise have been prevailed upon to decommission arms not to do so. They would claim they were put in jeopardy because the law under which they were carrying out this decommissioning function turned out to be invalid, or at least defective in a way which was legally, if not politically, significant.
It is very important, as members have said, that we get this right. I would not like to be party to any legislation which we thought was a helpful measure towards making some progress in the Northern Ireland talks but which turned out to be the reverse. We had months of discussions with our counterparts in the Northern Ireland Office on decommissioning and the preparation of a Bill. As members know, the timing of the announcement that we were putting a Bill on our Statute Book was such that we are still getting heavy criticism from the Unionists and others in the North because we have not got it on our Statute Book. They feel it needs to be ready and available for use as required.
I have given an undertaking to go back and look at this. I have listened very carefully to Deputy O'Malley and I obviously bow to his better knowledge of jurisprudence. I will look again at what he is proposing. I assure him that will not be done at just a sterile, technical level. I will look at it bearing in mind the purposes of the Bill and the risks he raised about the establishment of the commission. The commission is qualified because we cannot establish it without an agreement. I cannot just suddenly decide to establish a commission — it is qualified by the term "by agreement between the two Governments".
I will put the points made by the Deputy to our legal advisers to see whether that risk is attached to it. Having heard the arguments about the need to amend the Fisheries Act, one must always be conscious that these errors can be made. I thank the Deputy for raising the issue so actively. I assure him I will look at it very seriously because my motivation in bringing this legislation is extremely serious. I will return to it on Report Stage, having thoroughly examined it.
I am grateful. I accept that and I am sure it will be properly examined. At what stage is the British Bill? Is it couched in the same terms as this Bill? Could we have a copy of the British Bill? I should have got it before now.
It is probably even more enabling and less detailed, if that is possible, than ours. Our written Constitution requires us to have more in our legislation. It has passed through the House of Commons and is with the House of Lords. I think they propose to pass it in the next week or two. When I last asked the Minister, Michael Ancram, MP, about it he said they were almost finished it. There is a copy of the Bill in the Library but we will make a copy available to the Chairman so that it can be circulated to members. I can let the Deputy have the copy I have here if he wants it.
Deputy O'Malley chortled when I mentioned my conversion by the Minister. Despite his knowledge of jurisprudence, in my view the word "proposed" refers to the future. If there is an actual agreement, how can it be referred to as a "proposed" agreement? Could I chortle now at Deputy O'Malley and say that perhaps we will have to return here to delete the word "proposed" because it will be past tense at that stage?
We will resume on this matter. It is obvious that there is not going to be agreement.
All the talk about legislation which was not enacted would remind one of a pub with no beer.
As the Fianna Fáil convenor, I consider it a slur on us that Deputy O'Malley, as the spokesman for the Progressive Democrats, got a copy of the Bill and our spokesman did not.
The Deputy should not be so touchy; there are many copies of the Bill.
There will be one for everyone in the audience. Is amendment No. a1 being withdrawn?
Yes, on the basis of the understanding we have come to.
Amendment, by leave, withdrawn.
Amendment No. b1 not moved.
I move amendment No. c1:
In page 4, subsection (1), line 9, to delete "a Secretary of State" and substitute "the Secretary of State for Northern Ireland".
Section 1(1) defines "Secretary of State" as "a Secretary of State in the Government of the United Kingdom". In the course of her remarks on the two earlier amendments, the Minister referred a couple of times to the arrangements that would be made with the Secretary of State for Northern Ireland. She did not speak of a Secretary of State. In the UK, a Secretary of State can constitute any one of seven or eight people. For example, there is the Secretary of State for the Foreign Office, the Secretary of State for the Home Office, the Secretary of State for Education and Employment, the Secretary of State for Health, the Secretary of State for Scotland, the Secretary of State for Wales and so on. Since the only person with whom the Government or the Minister would be dealing in this regard is the Secretary of State for Northern Ireland, that is the person who should be defined. Otherwise there could be a potentially chaotic situation with one Secretary of State overruling the other because, as defined under the Bill, any Secretary of State would have an equal say. Since this matter relates to Northern Ireland the Minister should deal with the Secretary of State for Northern Ireland.
The Bill defines "Secretary of State" as "Secretary of State in the Government of the United Kingdom" without specifying which one. This reflects the legal position and convention relating to the use of that term in British law. The UK Interpretation Act, 1978, defines Secretary of State as meaning one of Her Majesty's Principal Secretaries of State. What that means in practice is that where a function is conferred by statute on the Secretary of State it can be performed by any Principal Secretary of State, effectively any member of the Cabinet.
The term "Secretary of State" is used in that sense in the UK Northern Ireland Arms Decommissioning Bill. The subsequent use of the expression "Secretary of State" in other provisions in the Bill, for example section 3(1) which provides for consultation before the establishment of the commission, does not create a problem as, by definition, it must mean one such Secretary of State, and for any given purpose there will be a single identifiable Secretary of State by reference to the purpose in question.
There is also the point that the effect of clauses 3 and 8 of the UK Bill will be that decommissioning schemes can be made in respect of England, Wales and Scotland in addition to Northern Ireland. It may, therefore, be that, in the event of those schemes involving the designation of a person to whom arms can be transferred, more than one Secretary of State will be involved. When the UK authorities first proposed their legislation, they only meant it to apply to Northern Ireland. They then extended it to England, Scotland and Wales by virtue of pressure from Members of the House of Commons.
We are mirroring their definition of "Secretary of State". It is not necessary, and may prevent something from happening, if we define it only as "Secretary of State for Northern Ireland". My advice is that it should not be so defined.
The Minister says the Bill should accept the definition of the phrase "Secretary of State" laid down in the UK Interpretation Act, 1978. There is a danger in this because it is hard to have a situation where the definition of a phrase is that laid down in an Act of another Parliament or another jurisdiction. If, for example, the UK was to change its definition, where would we stand?
I do not know when or how decommissioning will happen, nor if a Secretary of State with a different responsibility may be given a specific task with regard to the matter. The definition says that a function conferred by statute on the Secretary of State can be performed by any Principal Secretary of State. These, therefore, are the terms in which we use "Secretary of State". For example, specific actions regarding decommissioning could be conferred on the Secretary of State for Defence. In view of this, it is better not to second guess what might be the agreement regarding a Secretary of State. The definition of "Secretary of State" does not leave anything in doubt. I would not, therefore, like to confine the definition in the way suggested by the amendment.
This is similar to Deputy O'Malley's argument regarding the words "proposed commission". He did not want it to be as prescriptive as being the commission established by this legislation. Rather, it is the commission proposed to be established. I would use this argument against prescribing that only the Secretary of State for Northern Ireland might be the person who might have a function in what might be agreed. We are in the realm of speculation here because we do not know what kind of agreement will be reached. While we are erecting the scaffolding we have not put any bricks and mortar on the legislation.
The Minister said that a Secretary of State could be given a function. However, in practice is the Secretary of State for Northern Ireland not involved on nine out of ten occasions? It would be difficult to see how the Secretary of State for Transport could be allocated a role in respect of decommissioning throughout the British Isles. Given the need for expertise and experience in Northern Ireland, would not the Secretary of State for Northern Ireland be involved?
Generally the Secretary of State for Northern Ireland will be involved. Suppose, for example, the Secretary of State was indisposed for a period. Under British law the functions assigned to him can be assigned to any other Secretary of State. If our Bill specifies the Secretary of State for Northern Ireland it could delay matters. This was one of the points discussed in the months of consultation on the legislation with the Northern Ireland Office. This is why we have left it as "Secretary of State", being aware that we could ultimately be responsible for negating action because of a tight definition.
There is a power of delegation if the Minister for Justice was to be afflicted with a serious illness when this legislation was due to be implemented. Equally, there is delegation in Britain. For example, I presume powers have been delegated to all the Ministers of State in Northern Ireland, including Mr. Ancram.
I should have made this matter clearer. There is a delegation order in Ireland. If I am out of the country or indisposed, the Government delegates another Minister to act as the Minister for Justice for the time being. However, British law states that, although the secretarial duties are divided among the persons presiding over their respective Departments, the office of Secretary of State is one and, in law, each Secretary of State is capable of performing the duties of all or any of the Departments. It does not require a delegation order in the same way as it does in Ireland. That is the difference.
It is safe to include the Minister for Justice in this instance because if the Minister for Justice of the day is indisposed or away for six months, the Government would automatically delegate his or her powers. In 1987, when the Labour Party left Government, a number of Fine Gael Ministers became Ministers for about four Departments for approximately 12 days. That is possible under Irish law but delegation is not required under British legislation because they are automatically able to take over the functions of any other Department. This matter has been carefully examined. Our first thought was that the Secretary of State for Northern Ireland should be specified, but given the difference in British law it was decided not to do so.
Amendment, by leave, withdrawn.
Section 1 agreed to.
Sections 2 to 4, inclusive, agreed to.